CLC 2014 Judgments

2014 C L C 569

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

JALAL YAQUB and others----Petitioners

Versus

SOCIETY OF SAINTCATHOLIC and others----Respondents

Review No.267 of 2012 in R.O.R. No.425 of 2010, decided on 8th October, 2013.

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

----S. 44---Mutation---Review---Scope---Predecessor-in-interest of petitioners purchased land in question through registered sale-deeds and the same was incorporated in revenue record---Land in question was mutated in favour of his legal heirs after the death of predecessor-in-interest of petitioners---Respondents assailed mutation of inheritance on the plea that land in question was purchased by a Society of Church for construction of girls hostel---District Officer Revenue directed to review mutation of inheritance which order was maintained by Executive District Officer Revenue as well as by Board of Revenue---Validity---Order for review of mutation of inheritance had already been complied with and Revenue Officer had confirmed the contention of respondents, which was quite in line with the orders of lower forums as well---Order of review of mutation was lawful and had rightly been passed, which needed no interference---Review was dismissed in circumstances.

Khalid Masood Rana for Petitioners.

Ijaz Farhat for Respondent No.1.

Respondents proceeded ex parte.

2014 C L C 652

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD AZAM KHAN and others----Petitioners

Versus

The STATE and others----Respondents

Review Petitions Nos.259 and 256 of 2013, decided on 30th January, 2014.

West Pakistan Land Revenue Rules, 1968---

----R. 17---West Pakistan Board of Revenue Act (XI of 1957), S.8---Review---Lambardar for two adjacent villages---Appointment of petitioner as Lambadar was set aside by Board of Revenue and matter was remanded for decision afresh on the ground that one person could not hold two Lambardaris and there were certain allegations against petitioner---Validity---At one time only one person could be appointed as Lambardar of a village and District Collector appointed petitioner as Lambardar and the same was upheld by Additional Commissioner (Revenue)---Weightage was to be given to the choice of Collector---No bar existed in holding two Lambardaris at one time specifically when villages were adjacent---Petitioner justifiably responded ineligibilities/ allegations levelled against him in revision petition but the same had not taken into consideration at the time of passing order by Board of Revenue---Ineligibilities/allegations pointed out by respondents had been washed away by documentary evidence provided by petitioner---Orders passed by District Collector and Additional Commissioner (Revenue) were in accordance with law and needed no interference and order passed by Board of Revenue in revisional jurisdiction were set aside---Review was allowed in circumstances.

PLD 1969 W.P. (Rev.) 37; 2013 SCMR 363; 1960 PLD W.P. (Rev.) 75; 1996 SCMR 158 and 2004 YLR 440 ref.

Mian Muhammad Siddique Kamyana for Petitioner (in Review Petition No.259 of 2013).

Ehsan Elahi along with Syed Meenoo Chehr for petitioner (in Review Petition No.256 of 2013).

Mumtaz Hussain along with Raja Ghulam Hassan Khan for Respondent No.2.

Malik Sajjad Hussain along with Qayyum Javed Khan and Muhammad Tariq Bashir Awan for Respondent No.3.

Inam Ullah Hashmi as "amicus curiae".

2014 C L C 676

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

ALLAH DITTA----Petitioner

Versus

NAZAR MUHAMMAD----Respondent

R.O.R. No.693 of 2012, decided on 24th July, 2013.

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

----Ss. 135, 150 & 164---Revision---Partition---Petitioner filed application before Tehsildar for partition of joint Khata, which application was accepted and Wandas of parties were framed accordingly---Order of partition was maintained by District Officer (Revenue) but Additional Commissioner (Revenue) allowed revision and modified Wandas of parties---Validity---While passing orders, Additional Commissioner (Revenue) placed thrust upon possession of parties, whereas possession was one of the consideration and not the only consideration for disposal of partition cases---Revenue forums, under mandatory provision viz Ss.135 to 150 of West Pakistan Land Revenue Act, 1967 to keep in view all considerations while deciding matter of partition---Board of Revenue set aside the order passed by Additional Commissioner (Revenue) and remanded the matter to District Collector to decide the same afresh---Revision was allowed accordingly.

Tanveer Hussain Ansari for Petitioner.

Muhammad Abid Hussain on behalf of Hakeem-ud-Din for Respondents.

2014 C L C 696

[Board of Revenue Punjab]

Before Malik Muhammad Aslam, Member (Judicial-VII)

FEHMEEZ AKHTAR----Petitioner

Versus

REVENUE DEPARTMENT through District Collector, Narowal and 2 others----Respondents

R.O.R. No.1222 of 2013, decided on 30th January, 2014.

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

----Ss. 164 & 172---Revision before Board of Revenue---Revenue record, updating of---Correction of name---Petitioner's name was "Fahmeez Akhter" but inadvertently name "Parveen Akhter" was incorporated in revenue record---Application for correction of name was rejected by Additional District Collector with a direction to petitioner to approach Civil Court for correction of her name---Validity---Field staff of revenue department had reported that "Parveen Akhtar" and "Fehmeez Akhtar" were the names of one lady and the only difference was that in revenue record her name was recorded as "Parveen Akhtar" while in school certificate her name was "Fehmeez Akhtar"---No separate lady with the name as "Parveen Akhtar" existed---"Parveen Akhtar" was non-existent but her name had been incorporated in revenue record---Respondent was real brother of petitioner who had also not denied that petitioner was not his sister and daughter of his parents---Revenue authorities were supposed to keep record updated under S.172 of West Pakistan Land Revenue Act, 1967---Board of Revenue set aside the orders passed by the Courts below as the Lower Courts had wrongly referred petitioner to Civil Courts---Board of Revenue directed revenue authorities to correct the record by replacing correct name of petitioner---Revision was allowed in circumstances.

Qazi Misbah-ul-Hassan for Petitioner.

Date of hearing: 22nd January, 2014.

2014 C L C 739

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

SHAFIQ-UR-REHMAN----Petitioner

Versus

RAB NAWAZ----Respondent

Review No.149 of 2013 in ROR No.13 of 2012, decided on 28th January, 2014.

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

----S. 8---Review---Temporary Lease Scheme---Confirmation of auction---State land in question was put to open auction under Temporary Lease Scheme for five years and petitioner was the highest bidder in whose favour auction was also confirmed---Additional Commissioner (Consolidation) accepted time-barred appeal against auction in favour of petitioner and appeal of petitioner was dismissed by Board of Revenue---Validity---Respondent wanted to prolong his unauthorized possession over land in question, who had neither paid dues of government nor was allowing the auction of land to be successful and was distracting the matter into unnecessary litigation---Auction was held for a period of five years (2011 to 2016) and as a consequence of auction requisite mutation had already been sanctioned in favour of petitioner and possession of land was delivered to petitioner, who had deposited requisite amount in government treasury---Cancellation of such auction at belated stage would not only disturb the rights of petitioner but also cause loss to exchequer and that too for benefit of respondent, who was violator of law and encroached upon land in question in sheer violation of resumption order of District Collector, which was implemented on 15-8-2002---Order of Board of Revenue dated 24-6-2012, was set aside and order of District Officer (Revenue) dated 24-3-2011, was upheld---Review was allowed in circumstances.

Malik Ghulam Saddique Awan for Petitioner.

Rao Abdul Jabbar for Respondent.

2014 C L C 751

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD HASSAN

Versus

RABNAWAZ and others

R.O.R. No.90 of 2010, decided on 20th September, 2013.

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

----Ss. 167 & 172---Appeal---Revenue Record, updating of---Correction of Khasra Girdawari---Implementation of Wandas---Appellant wanted Wandas approved by Tehsildar to be implemented, whereas respondent's choice was Wanda approved by District Collector---Appellant wanted to influence partition proceedings by getting Khasra Girdawari corrected in his name, so that he could be benefited positively in partition proceedings pending before Commissioner---Khasra Girdawari in question was result of correction allowed by District Collector, upheld by Executive District Officer (Revenue) and partition decided by District Collector---Question of correction of Khasra Girdawari had become irrelevant as the matter of partition of joint Khata was to be adjudicated upon by Commissioner---Appellant failed to point out any illegality in the order passed by Executive District Officer (Revenue)---Appeal was dismissed in circumstances.

Khaleel-ur-Rehman for Appellant.

Muhammad Tufail Alvi for Respondents.

2014 C L C 762

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III), Nasim Nawaz, Member (Colonies) and Malik Tahir Sarfraz Awan, Member (Consolidation)

Mst. SUGHRA BIBI and others----Petitioners

Versus

D.O.R. TOBA TEK SINGH and others----Respondents

Review No.268 of 2009 in ROR No.397 of 2006, decided on 4th February, 2014.

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

----S. 10---Notifications No. 3910-76/2686-CV, dated 13-7-1976 and No. 4218-79/413-CV, dated 30-1-1980---West Pakistan Board of Revenue Act (XI of 1957), S.8---Review---Lambardari grant---Proprietary rights---Dispute was with regard to proprietary rights of land falling in Lamabardari Grant---Proprietary rights granted in favour of petitioner were set aside by Executive District Officer (Revenue) and Board of Revenue in exercise of revisional jurisdiction remanded the matter to District Officer (Revenue) for decision afresh---Validity---Appointment of respondent as Lambardar was finalized by the order of Supreme Court, so he qualified for allotment of "Lambardari Grant" and his request should be considered accordingly---Very vital aspect of the case had not been thrashed out in earlier orders and the same had been held to be in order in review, which was lawful and needed no interference---Revision was dismissed in circumstances.

M.A. Ghafar ul Haq for Petitioners.

Muhammad Kamran Rasheed for Respondent No.2.

2014 C L C 927

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

GHULAM ABBAS and others----Appellants

Versus

MUHAMMAD HUSSAIN and others----Respondents

Case No.778, decided on 4th November, 2013.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Pending proceedings---Judgment passed by Civil Judge---Petitioner sought allotment of land to him on the basis of judgment dated 30-9-2013, passed by Civil Judge---Validity---Case of petitioner did not fall within the purview of "pending proceedings" nor it was remanded by High Court or Supreme Court---Notified officer, under S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, could take cognizance of a matter, which was either pending before him or was remanded to him by High Court or Supreme Court---Application was dismissed in circumstances.

2011 MLD 196 fol.

Zawar Ahmad Sheikh for Appellants.

2014 C L C 952

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Mst. RABIA GUL----Petitioner

Versus

Mst. ZAHIDA NAZLI and others----Respondents

ROR No.2946 of 2012, decided on 23rd January, 2014.

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

----Ss. 163 (2)(c) & 164---Mutation, review of---Condemned unheard---During litigation among respondents, authorities directed to review disputed mutations---Petitioner was not party to any of such litigation among respondents---Apprehension of petitioner was that in consequence of order to review mutations, the mutation passed in favour of petitioner would also be reviewed without giving any opportunity of hearing to petitioner---Validity---Board of Revenue directed the Collector to give ample opportunity of hearing to petitioner while disposing of the matter of review of disputed mutations and other mutations sanctioned on the basis of disputed mutations under the provision of S.163(2)(c) of West Pakistan Land Revenue Act, 1967---Revision was disposed of accordingly.

1998 SCMR 2268 ref.

Syed Tajamal Hussain Bokhari for Petitioner.

Muhammad Jaffar Khan for Respondent No.1.

2014 C L C 1442

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

KHALID MEHMOOD and others----Petitioners

Versus

ABDUL HAYE and others----Respondents

R.O.Rs. Nos.2237, 2704 and 2705 of 2012, decided on 29th May, 2014.

West Pakistan Land Revenue Rules, 1968---

----R. 17---West Pakistan Land Revenue Act (XVII of 1967), S.164---Lambardar, appointment of---Non-resident candidate---Petitioners assailed appointment of respondent as Lambadar on the plea that he was not residing permanently in the village and was a lecturer in college in some other city---Validity---Respondent was living in other city along with his wife (who was also government servant) and children in a government residence---Permanent presence of village headman was required to perform all duties in just and appropriate manner---Respondent was bound to live for most of his time in other city in connection with his government job and to look after the affairs of his family, so could not be able to do justice with duties to be assigned to him as village headman---Board of Revenue set aside the order passed by revenue authorities appointing respondent as Lamberdar and remanded the matter to Collector for decision afresh---Revision was allowed accordingly.

2013 SCMR 363; PLD 1999 SC 484 and 1966 SCMR 1581 ref.

Mian Abbas Ahmed for Petitioner (in R.O.R. No.2237 of 2012).

Ch. Abdul Ghani for Petitioner (in R.O.R. No.2704 of 2012).

Miss Farzana Yasmeen for Petitioner (in R.O.R. No.2705 of 2012).

Rao Gulzar Ahmed and Rana Sheraz Khalid for Respondent No.1.

2014 C L C 1572

[Election Tribunal (AJ&K)]

Before Justice Azhar Saleem Babar, Election Tribunal

Sardar MUHAMMAD BASHIR PEHLAWAN----Petitioner

Versus

Raja NASIR AHMED KHAN and 13 others----Respondents

Civil Miscellaneous No.15 of 2013, decided on 27th February, 2014.

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

----Ss. 72 & 49---Civil Procedure Code (V of 1908), O. IX, Rr. 8 & 9---Election petition, dismissed in default---Restoration---Sufficient cause---Scope---Contention of petitioner was that he could not appear before the court due to imposition of curfew---Validity---Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 was a special law---Section 72 of the Ordinance had provided powers to the Election Tribunal for dismissal of election petition for non-appearance of petitioner but no provisions to set aside such order had been stipulated in the Ordinance---Election petition was fixed for evidence but neither the petitioner nor his counsel appeared before the Election Tribunal---Petitioner was required to furnish sufficient cause for his non-appearance when petition was called for hearing---Non-appearance of counsel for the petitioner had not been explained in the application for restoration of election petition---Such non-appearance of counsel for the petitioner was deliberate and wilful which did not constitute a sufficient cause---Application for restoration of petition was not worth consideration as counsel for petitioner could not furnish sufficient cause for his non-appearance---Election Tribunal was not vested with the powers to restore an election petition dismissed for default of appearance of petitioner---Application for restoration of election petition was dismissed in circumstances.

1988 MLD 1143; 207 CLC 610 and Haji Muhammad Asghar v. Malik Shah Muhammad Awan and others PLD 1986 SC 542 rel.

Miss Rahat Farooq for Petitioner.

Sardar Muhammad Nisar Khan on behalf of Sardar Tahir Anwar Khan for Non-Petitioner No.1.

2014 C L C 687

[Election Tribunal Balochistan]

Before Muhammad Hashim Khan Kakar, J

ABDUL RAUF MENGAL----Petitioner

Versus

Moulvi QAMAR-UD-DIN and others----Respondents

Civil Miscellaneous Application No.1090 of 2013 in Election Petition No.7 of 2013, decided on 16th December, 2013.

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

----Ss. 62, 63, 64, 54 & 55---Notification No.F1(7)85 Coord, dated 16-3-1985---Civil Procedure Code (V of 1908), O.XVI, Rr.1 & 2---Election petition---Procedure---Election for the seat of Member National Assembly---Non-filing of list and affidavits of witnesses sought to be examined---Production of witness---Good cause---Election Tribunal, powers of---Scope---Contention of petitioner was that list and affidavits of witnesses sought to be examined could not be filed due to lack of time and law and order situation---Validity---Provisions of S.62 of Representation of the People Act, 1976 were directory in nature as no penal consequences had been provided in the said Act for its non-compliance---Penal consequences entailing dismissal of election petition had been provided in S.63 of Representation of the People Act, 1976 which envisaged that Election Tribunal should dismiss the petition if provisions of Ss.54 & 55 of the said Act had not been complied with or petitioner had failed to make further deposit as required---Election petition should not only be accompanied by all such documents and affidavits of witnesses desired to be produced but also by an acknowledgement receipt from the respondent indicating that copy of petition, documents and affidavits annexed thereto had been supplied to him---Respondent was required to file written statement with all the documents relied upon by him and affidavits of witnesses to be produced within seven days of notice of election petition---Petitioner was required to make available his witnesses for cross-examination whose affidavits were relied upon and annexed with the election petition on the first date of hearing before the Election Tribunal---Respondent had to be given intimation that election petition was being filed by a particular candidate on the allegations contained therein, the names of witnesses of petitioner, substance of their evidence and documents to be used against him---Respondent had a right to know the said documents and substance of evidence to be produced in proof of election petition---Failure to supply such documents and affidavits to the respondent would cause prejudice to his defence---Election Tribunal had powers of civil court and every election petition was to be decided in accordance with the procedure laid down by the Election Commission---Election petition should be decided expeditiously without being entangled in the lengthy procedure---Election Tribunal was not bound to follow the procedure as provided in the C.P.C.---No witness whose name was not mentioned in the election petition should be summoned or examined unless required by the Election Tribunal---Election Tribunal had power to call for a witness other than those contained in the list of witnesses but such powers were subject to the condition of showing good cause and court was required in such circumstances to record reasons---Parties were required to furnish list of witnesses whom they proposed to call either to give evidence or to produce documents within seven days of framing of issues and in case of failure the delinquent party had to face the consequences---Party who failed to file list of witnesses or omit a name of witness could seek indulgence of court for calling such witness but only after showing a good cause for such omission---Petitioner had failed to make out a case which required indulgence of Election Tribunal---Grounds furnished by the petitioner for non-filing of list and affidavits of witnesses could not be accepted as he had failed to give explanation with regard to lack of time and unpleasant incident and inadvertence---Valuable rights had been accrued in favour of respondent and same could not be snatched---Witness could be summoned as a court-witness to produce such document which had been referred and relied upon in the body of election petition---Procedure for filing election petition could not be ignored---Ignorance of law was no excuse---When law required a thing to be done in a specific manner then same should be done in such manner otherwise not at all---Petitioner had failed to show good cause for calling of private witnesses at this belated stage---Application to such extent was dismissed however he was allowed to produce official witness after deposit of diet money.

Ehsanullah Reki v. Lt. Gen. (Retd.) Abdul Qadir Baloch PLD 2009 Quetta 16; Muhammad Anwar v. Mst. Ilyas Begum PLD 2013 SC 255 and Abdul Majid v. Mst. Zubeda Begum 2007 SCMR 866 rel.

Shaukat Ali Rakhshani and Sajjid Tareen for Petitioner.

Adnan Ejaz and Tahir Ali Baloch for Respondent No.1.

Muhammad Haroon, Law Officer for Provincial Election Commission.

Dates of hearing: 29th September and 3rd December, 2013.

2014 C L C 805

[Election Tribunal, Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD AKRAM BALOCH----Petitioner

Versus

AKBAR ASKANI and others----Respondents

Civil Miscellaneous Application No.1107 of 2013 in Election Petition No.6 of 2013, decided on 23rd December, 2013.

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

----Ss. 62, 63, 64, 52, 54 & 55---Civil Procedure Code (V of 1908), O.XVI, Rr. 1 & 2---Election petition---Procedure---Election for the seat of Member of Provincial Assembly---Non-filing of list and affidavits of witnesses sought to be examined in the election petition---Production of witnesses---Good cause---Election Tribunal, powers of---Scope---Contention of petitioner was that list and affidavits of witnesses sought to be examined could not be filed due to their non-accessibility---Validity---Election Tribunal had the status of civil court while determining the dispute with regard to rights and liabilities of the parties in presence of their evidence---Election Tribunal did not function as a "court" nor was its action judicial---Provisions of S.62(1) of Representation of the People Act, 1976 were directory in nature as no penal consequences had been provided in the said Act for its non-compliance---Penal consequences entailing in dismissal of election petition had been provided in S.63 of Representation of the People Act, 1976---Election Tribunal should dismiss election petition if the provisions of S.54 or 55 of Representation of the People Act,1976 had not been complied with or if petitioner had failed to make further deposit as required under S.62(4) of the Act---Election Tribunal had the powers of civil court while trying a civil suit under the provisions of C.P.C.---Election petition should be decided expeditiously without being entangled in lengthy procedure---Purpose for filing of affidavits of the witnesses was that before commencement of proceedings the opposite side must be conscious, aware and should be prepared as to what kind of evidence was expected to be given so that they could make preparation for cross-examination and to prevent the concoction and fabrication of the evidence---Election Tribunal was not bound to follow the procedure as laid down in C.P.C. for trial of election petition---No witness whose name was not mentioned in the election petition should be summoned or examined unless required by the Election Tribunal---Election Tribunal had power to call a witness other than those mentioned in the list of witnesses but a party intended to produce such witnesses was required to show "good cause" and Tribunal had to record reasons while granting such permission---Parties to a lis were required to furnish list of witnesses whom they proposed to call either to give evidence or to produce documents within seven days of framing of issues---If a party failed to file list of witnesses or omitted the name of witness therein then for indulgence of the court for calling such witness, good cause had to be shown for such omission of the witness from the list of witnesses---Petitioner had failed to annex affidavits of proposed witnesses with the election petition---Names of witnesses had been mentioned in the list but same could not be termed sufficient compliance of provisions of Representation of the People Act, 1976---Petitioner had failed to show good cause within the meaning of sub-Rule 2 of O.XVI, C.P.C.---Mere assertion that witnesses were not accessible was neither sufficient to establish a good cause nor it could be termed as justified reason for summoning the proposed witnesses---Petition for summoning the witnesses was dismissed in circumstances.

Riaz-ul-Haq v. Federation of Pakistan 2013 PLC (C.S.) 1308; Ehsanullah Reki v. Lt. Gen. (Retd.) Abdul Qadir Baloch PLD 2009 Quetta 16 and Muhammad Anwar v. Mst. Ilyas Begum PLD 2013 SC 255 rel.

Muhammad Aslam Chishti, S.A.M. Qaudri and Sabira Islam for Petitioner.

Amanullah Kanrani and Abdul Sattar Khan for Respondent No.1.

Abdul Razzaq for Respondent No.2.

Naseer Ahmed Bangulzai, A.A.-G. for the State.

Muhammad Haroon, Law Officer for Provincial Election Commissioner.

Dates of hearing: 21st and 28th November, 10th and 16th December, 2013.

2014 C L C 878

[Election Tribunal Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD AKRAM BALOCH----Petitioner

Versus

AKBAR ASKANI and others----Respondents

Civil Miscellaneous No.1118 of 2013 in Election Petition No.6 of 2013, decided on 23rd December, 2013.

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

----Ss. 67 & 52---Qanun-e-Shahadat (10 of 1984), Art. 164---Election petition---Election for the seat of Member of Provincial Assembly---Examination of thumb marks appended on counterfoils of the votes casted at polling station through National Data base and Registration Authority---Conditions---Election Tribunal, powers of---Scope---Modern devices---Evidentiary value---Contention of petitioner was that neither poll was held nor any election staff came at specified polling station and result was fabricated---Validity---Election Tribunal had the powers of civil court while determining the dispute with regard to rights and liabilities of the parties on the basis of their evidence---Election Tribunal did not function as a "court" nor was its action judicial---When Election Tribunal had to determine a dispute with regard to right or liability in the light of evidence of the parties, then it would act judicially and enjoy the status of the court---Inspection of ballot papers and counterfoils should be allowed sparingly and only when it was essential to determine the controversy between the parties---Controversy between the parties could be resolved by referring the counterfoils along with used photo voter's list and statements of count to the National Data base and Registration Authority to determine whether impersonation had been committed or not---Serious allegations with regard to rigging the election process had been alleged against the respondent---Courts were authorized to allow producing of evidence that might have become available due to modern devices and techniques in such cases as it might consider appropriate---Computer technology being a modern device was well within the ambit of Art.164 of Qanun-e-Shahadat, 1984---Report of National Data base and Registration Authority with regard to scanning of thumb marks could be produced as evidence---No harm or prejudice would be caused to either party rather it would be beneficial for all those who believed in fair and impartial election---Both the parties would be at liberty to file objections if any to the report of National Data base and Registration Authority and same would be considered in accordance with law.

Riaz-ul-Haq v. Federation of Pakistan 2013 PLC (C.S.) 1308; Raja Muhammad Nasir v. Mehmood Shaukat Bhatti PLD 2003 Lah. 213 and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni, 1999 SCMR 284 rel.

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

----S. 67---Inspection of ballot papers and counterfoils---Conditions---Conditions for inspection of ballot papers and counterfoils were to maintain the secrecy of the ballots; the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; discretion conferred on the Court or Tribunal should not be exercised in such a way so as to enable the petitioner to indulge in roving inquiry with a view to fishing out materials for declaring the election to be void and sample inspection might be ordered to lend further assurance to the prima facie satisfaction of the Election Tribunal with regard to truth of the allegations made for a re-count.

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

----Art. 2 (b)---"Document"---Meaning---"Document" was any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means intended to be used or which might be used for the purpose of recording such matter.

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

----Art. 2(c)---"Evidence"---Meaning---All statements which court would permit or required to be made before it by witnesses in relation to matter of fact under inquiry and such statements would be called "oral evidence" and documents produced for inspection of the court would be called "documentary evidence"---"Documentary evidence" was such that could be put down on paper, certificate, executed deeds, photographs, maps and caricatures etc.

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

----Art. 2(e)---"Electronic record"---Meaning---"Electronic record" was data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.

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

----Art. 2(e)---"Data"---Meaning---"Data" was a representation of information, knowledge, facts, concepts or instructions which were being prepared or had been prepared in a formalized manner, and was intended to be processed, was being processed or had been processed in a computer system or computer network and might be in any form including computer printouts magnetic or optical storage media, punched cards, punched tapes or stored internally in the memory of computer.

(g) Constitution of Pakistan---

----Art. 226---Secrecy of ballot---Scope---Voter would not be compelled by any authority to disclose as to for whom he had voted so that he might vote without fear or favour and free from any apprehension of its disclosure against his will---Such right of the voter was not absolute---Secrecy of ballot, a privilege of the voter, was not inviolable and might be waived by him to ensure free and fair election.

Muhammad Aslam Chishti and S.A.M. Qureshi for Petitioner.

Amanullah Kanrani and Abdul Sattar Khan for Respondent No.1.

Abdul Razzaq for Respondent No.2.

Naseer Ahmed Bangulzai, A.A.-G. for the State.

Muhammad Haroon, Law Officer for Provincial Election Commissioner.

Dates of hearing: 21st, 28th November, 10th and 16th December, 2013.

2014 C L C 917

[Election Tribunal, Balochistan]

Before Jamal Khan Mandokhail, J

Engr. BASAANT LAL GULSHAN----Petitioner

Versus

ROZI KHAN KAKAR and others----Respondents

Election Petition No.1 of 2012, decided on 2nd December, 2013.

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

----Ss. 34, 36, 43 & 45---Civil Procedure Code (V of 1908), O.XI, R.13, O. VI, R. 15 & Form No. 5 Appendix-C---Election petition---Law and procedure---Senate election for Technocrat's seat---Non-filing of affidavits of private witnesses with the petition---Non-signing of schedule and annexures attached with the petition---Effect---Election petition, its schedule and annexures should be signed by the petitioner and should be verified on oath---Order VI, R.15, C.P.C. fixed responsibility on a party to personally verify the facts of the pleadings and documents---Separate verification of document(s) was not required if same was/were discussed in a pleadings and plaint was verified on oath---If document(s) were not discussed or described in pleadings but same were annexed with the same through a schedule then both schedule and document(s) should be signed by the person intended to produce them and verified on oath---Documents relied upon by the petitioner and filed along with his petition had been described in the election petition which had been signed and verified on oath---Such documents were not annexures, therefore no schedule and separate verification of the same was required---List of witnesses should be filed with the petition if a party desired to summon any official witness/s justifying his/their production and also to mention the documents which were required to be proved through such witness(es)---Witness who was not author of a document/certificate could not be an evidence about the observation of his predecessor and his evidence was immaterial and was of no use---Affidavits of private witnesses were required to be filed with the election petition but same had not been done so by the petitioner---Provisions of Section 43 of Senate (Election) Act, 1975 were directory in nature as no penal consequence had been provided in the said Act for its non-compliance---Election petition could not be dismissed due to non-filing of affidavits of the witnesses---Last opportunity to submit affidavits of private witnesses was to be provided to the petitioner.

Black's Law Dictionary rel.

(b) Words and Phrases---

----"Schedule"---Meaning---"Schedule" was a written or a printed statement showing brief detail of a document or contained a list showing a brief description of a document.

Black's Law Dictionary and Concise Oxford Dictionary rel.

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

----S. 36 (3)---"Annexure" as used in S.36(3), Senate (Election) Act, 1975---Meaning---"Annexure" meant to join or add especially something larger, or to append or attach to a significant thing or in addition to main document, report or a pleadings---"Annexure" was/were the document/documents which had not been described in a main document, a report or a petition but was/were sought to be produced in support of its contents---Documents containing additional grounds of allegation of a substantive nature or at least furnished a better particulars of the allegation in addition to what had been described in a petition or a report, only such document/s was/were to be considered as "annexures"---Documents which had been described in the pleadings and subsequently attached to it did not come within the definition of "annexures" irrespective of the fact that same had been marked as "annexures".

Black's Law Dictionary and Concise Oxford Dictionary rel.

Abdullah Baloch for Petitioner.

Syed Nazeer Agha for Respondent No.1.

Date of hearing: 18th November, 2013.

2014 C L C 94

[Election Appellate Tribunal Punjab]

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

TARIQ MEHMOOD MURTAZA----Appellant

Versus

RETURING OFFICER PP-2, RAWALPINDI and another----Respondents

Election Appeal No.5 of 2013, heard on 13th April, 2013.

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

----Ss. 12 & 14---Constitution of Pakistan, Arts.63 & 62---Rejection of nomination papers---Concealment of assets---Appellant impugned order of Returning Officer whereby his nomination papers were rejected on the ground that appellant concealed his assets on his nomination papers and was therefore disqualified from being elected as a Member of the Provincial Assembly under Arts.63 & 62 of the Constitution---Validity---Factum of ownership of a private limited company and land had not been satisfactorily explained by the appellant, and the said private limited company still existed on the register of the SECP and was yet to be dissolved---Appellant was therefore required under law to disclose that he owned the said company even if it was not conducting any business---Land in question was transferred to the appellant on 19-8-2006, while the appellant's father died in the year 2006, therefore, the contention that the land had been bought by the appellant's father in the appellant's name could not be accepted---Appellant had therefore, not only misdeclared but had also concealed his assets and had thus made a false statement/declaration on oath and was as a result disqualified from being chosen or elected a Member of the Provincial Assembly---Appeal was dismissed, in circumstances.

Ali Raza for Appellant.

Ch. Taufeeque Asif and Ms. Ambreen Nawaz Chaudhry for Respondent No.2.

Date of hearing: 13th April, 2013.

2014 C L C 798

[Election Tribunal Punjab]

Before Rana Zahid Mahmood, J

JAHANGIR KHAN TAREEN----Petitioner

Versus

MUHAMMAD SIDDIQUE KHAN BALOCH and others----Respondents

Case No.355/ECP and 20/ETM of 2013, decided on 6th January, 2014.

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

----Ss. 62(2) & 52---Qanun-e-Shahadat (10 of 1984), Arts.155(1), 156 & 157---Election petition---Right of witness to refresh his memory from his sworn affidavit during cross-examination---Scope---During his cross-examination prosecution witness requested to refresh his memory from his affidavit, about which he stated in his examination-in-chief that he had sworn the same and signed it before the Oath Commissioner---Plea of respondent that provisions of Qanun-e-Shahadat, 1984 did not apply to proceedings before the Election Tribunal; and that only official witnesses could refresh their memory with reference to their previous statement/document---Validity---According to Art.155(1) of Qanun-e-Shahadat, 1984 a witness was permitted to refresh his memory as and when he felt like, however with permission of the court as provided by Art.155(3)---Qanun-e-Shahadat, 1984 conferred a right on prosecution witness under examination to refresh his memory with reference to any document executed by him or read by him (though not executed by him), while he was under examination before a court of law or tribunal---No distinction existed whether examination-in-chief of the witness was recorded through his verbal statement or on the basis of an affidavit earlier executed by him in support whereof he deposed in his examination-in-chief---Prosecution witness, in the present case, was within his right granted to him under Art.155(1) of Qanun-e-Shahadat, 1984 to refresh his memory with permission of the court, unless the court/tribunal was of the opinion that memory of witness about the transaction was fresh in his mind, in which case the court or tribunal could reject the request of witness---Prosecution witness, in the present case, referred to his affidavit, wherein he had detailed some events which he noticed during the recounting process, which was carried out under supervision of Returning Officer and Deputy Returning Officer---Said affidavit was executed on 22-5-2013, therefore it could not be said that his memory was fresh during his cross-examination---Objection raised by respondent was overruled accordingly.

Messrs Crescent Jute Products Limited v. Province of Punjab and others 1994 CLC 311 rel.

AIR 1921 Allahabad 86; AIR 1922 Calcatta 107; AIR 1924 Lah. 605; AIR 1928 (sic) 80; AIR 1928 SC of India 1850 ref.

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

----Arts. 155, 156 & 157---Right of witness to refresh his memory from a previous document/statement---Scope---"Private witness" and "official witness"---Articles 155, 156 & 157 of Qanun-e-Shahadat, 1984 did not draw any distinction between private and official witnesses---Intention of legislature in conferring a right upon witness to refresh his memory from a document/statement could be termed an absolute right, however it was subject to grant of permission by the court/tribunal.

Sikandar Bashir Mohmand, Hameed Ali, Ghulam Murtaza Malik and Jawad Haider for Petitioner.

Mian Abbas Ahmad for Respondent No.1.

2014 C L C 1502

[Election Tribunal, Punjab]

Before Rana Zahid Mahmood, Election Tribunal

JAHANGIR KHAN TAREEN and others----Petitioners

Versus

MUHAMMAD SIDDIQUE KHAN BALOCH and others----Respondents

Civil Miscellaneous No.5 of 2013, decided on 21st May, 2014.

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

----Ss. 33 & 55---Election petition---Prayer---Verification/comparison of thumb-impressions of voters on counterfoils of ballot-papers---Scope---Plea of returned candidate that in the election petition filed by petitioner there was no prayer/request for verification and comparison of thumb-impressions by National Database and Registration Authority ("NADRA"), therefore, petitioner was estopped from asking for such verification now; that such verification at present stage would pre-empt the decision of the election petition on merits before production of evidence by the parties---Validity---Record showed that along with the election petition, petitioner had also filed an application before the Election Commission wherein it was specifically mentioned that approximately 39,677 counterfoils of ballot-papers were without signatures and seal of Presiding Officers; that at 220 polling stations, the counterfoils were without the number of the voter on the electoral roles, without the number of National Identity Card, and without stamp, official mark and thumb-impression of the elector---Petitioner specifically mentioned such facts in the content of his election petition apart from relying upon the report of the Regional Election Commissioner---Petitioner, in circumstances, could not be said to have made compliance with S.55(1)(b) of the Representation of the People Act, 1976---Report from NADRA Authorities about the veracity, authenticity and correctness of the thumb-impressions on the counterfoils of ballot-papers would not finally decide the controversy in the election petition; it would (only) be an indicator and evidence produced by the petitioner---Final verdict in such regard shall be of the Election Tribunal itself---Parties could file contentions for or against such report and the same would be subject to cross examination by the opposite side on the person who prepared it---Application filed by the petitioner for verification and comparison of thumb-impressions by NADRA on the counterfoils of the ballot papers was allowed in circumstances---Election Tribunal directed that petitioner should deposit the expenses of the verification and comparison of thumb-impressions by NADRA Authorities within 3 days that District Returning Officer should despatch in sealed form the relevant election material of the counterfoils along with list of voters so used and scratched by the polling staff to NADRA within 3 days.

Sheikh Muhammad Tariq Rasheed v. Makhdoom Javed Hussain Hashmi and others decided on 12-5-2014 distinguished.

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

----Ss. 33 & 55---Election petition---Verification/comparison of thumb-impressions of voters on counterfoils of ballot papers---Report submitted by National Database and Registration Authority ("NADRA")---Evidentiary value and status of such report---Seeking of report from NADRA Authorities about the veracity, authenticity and correctness of the thumb-impressions of the electors on the counterfoils of ballot papers so used would not finally clinch the controversy in the election petition however it would be an indicator and evidence by the petitioner if the same found favour with the Election Tribunal---Final verdict in such regard shall be of the Election Tribunal itself and the status of the report would be evidence of the petitioner produced by him merely like any other evidence---Parties could file objections for or against the report and the same would be subject to cross-examination by the opposite side on the person who prepared it.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court with Sikandar Bashir Mohmand, Hameed Ahmed and Jawad Haider for Petitioner along with Petitioner in person.

Mian Abbas Ahmad for Respondent No.1.

Date of hearing: 21st May, 2014.

2014 C L C 293

[Sindh Election Tribunal]

Before Dr. Zafar Ahmad Khan Sherwani, Election Tribunal

MUHAMMAD HUSSAIN MEHANTI and others----Petitioners

Versus

ABDUL RASHID GODIL and others----Respondents

Election Petitions Nos.16, 23, 24, 25 and 26 of 2013, decided on 24th December, 2013.

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

----Ss. 52 & 2(iv)---Election petition---Maintainability---"Candidate"---Definition---Petitioner-candidates belonging to a political party which had boycotted the polls on election day before the election process was complete---Contention of respondents/returned candidates that petitioners had got no cause of action to challenge the election under S.52 of the Representation of the People Act, 1976 as the boycott had seized the candidature of the petitioners and they did not remain "candidates" within the ambit of S.2(iv) of the said Act---Validity---No provision existed in the Representation of the People Act, 1976 barring any candidate from challenging the election of any returned candidate from his constituency if he or his political party had boycotted the election after having been validly nominated to contest the election---Without such a substantive provision in the Representation of the People Act, 1976, Election Tribunal could not enforce any disqualification by stretching any existing provision of the said Act and take away the legal right as provided to a candidate under the Act---Election Tribunal could not dismiss present petitions on account of the boycott of the election on the polling day by the petitioners or their party---Election petitions were held to be maintainable in circumstances.

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

----Ss. 54, 55 & 63---Dismissal of election petition during trial---Contents of an election petition---Purpose of S.55 of Representation of the People Act, 1976---Purpose of disposal of election disputes in a speedy manner in accordance with the law provided in Representation of the People Act, 1976 was only to allow the true elected representatives to invest their energy and time in the legislative business for the welfare of the people of their constituencies instead of wasting time in protracted litigation---For such purpose S.63 of Representation of the People Act, 1976 provided that if an election petition did not fulfil provisions of Ss.54 & 55 of the same Act, such petition must be thrown out (without going into the process of regular trial) and it was the responsibility of the Election Tribunal to dispose of such petitions to ensure their compliance in letter and spirit so that a sword might not remain hanging over the heads of true representatives unnecessarily without point or purpose---Legislature had enacted S.55 of the Representation of the People Act, 1976 with the sole purpose to safeguard the interest of the People in their truly elected representatives from unscrupulous litigation by making it incumbent upon an election petitioner to provide all the details, as far as possible, with regard to the illegal practices or acts allegedly committed by the returned candidate or his workers or agents and also the place and time of commission of such practices and acts and to verify such allegations on oath in order to take responsibility of penal consequences in case the allegations were found false---Such requirement of verification on oath also applied to those documents which were annexed with the election petition and disclosed further allegations with regard to corrupt or illegal practices or such acts which were either separate or in addition to the allegations made in the petition or complemented them---Such verification on oath was to ensure that election of a returned candidate might not be challenged in a cursory manner, without taking responsibility of making false allegations as provided in S.55(1)(b) & (3) of the Representation of the People Act, 1976.

Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284 ref.

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

----S. 55(1)(b)---Election petition, contents of---Details of corrupt and illegal practices---Knowledge of petitioner---Scope---Details required under S.55(1)(b) of the Representation of the People Act, 1976 were to be provided by the election petitioner, should they be those which were in his knowledge or those which should have been in his knowledge.

Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284 ref.

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

----Ss. 55(1)(b)& 63---Dismissal of election petition during trial---Particulars of alleged corrupt and illegal practices not mentioned in the election petition---Effect---Petitioners had made serious allegations of all sorts against the returned candidates and the Election Commission right from the announcement of the election till the consolidation of results, but no details were provided regarding polling stations where such illegal acts or illegal practices were committed and as to who were the witnesses of such acts or practices---Petitioners also did not mention specifically that alleged illegal acts were committed at all polling stations of all the constituencies---On one hand petitioners alleged that election material was dispatched at polling stations 1-1/2 to 5 hours late but location and description of such polling stations was not mentioned and also as to how petitioners came to know about it when they had already boycotted the election and left the polling stations---No affidavit in evidence of any polling agent of present petitioners was attached with their election petitions in support of their allegations---Petitioners alleged that Returning Officers handed over election material to un-authorized persons who misused the same in favour of returned candidates by stamping ballot-papers and filled ballot boxes at unauthorized polling stations but again petitioners did not mention in their petitions the location of such unauthorized polling stations; the details of those un-authorized persons to whom election material was handed over, and as to how petitioners came to know about it and what action was taken by them to stop such illegal acts---Petitioners were also required to file affidavits of evidence of their witnesses in support of their allegations as required under a notification issued by the Election Commission under S.62 of the Representation of the People Act, 1976 but no such affidavit had been filed---Petitioners further alleged that Returning Officer and District Returning Officers continuously changed polling stations till the night of the polling date but not a single polling station was mentioned in the election petitions which was changed in such a manner and in violation of Representation of the People Act, 1976 or the relevant rules---Petitioners also alleged that miscreants /activists of returned candidates kidnapped polling personnel at various polling stations and made them hostage and then snatched ballot-papers, ballot boxes, but petitioners again failed to give details of any polling personnel or polling stations where such incidents had taken place--- Prima facie, such details should have been in the knowledge of the petitioners in ordinary course, therefore, they were legally bound to provide the same in compliance with S.55(1) (b) of the Representation of the People Act, 1976---Petitioners on one hand made a bald allegation that Returning Officers had already filled the Consolidated Statements of Count (Form-XVI) in respect of their respective constituencies even before the results and merely signed the same, but on the other hand alleged that they signed them after a delay of many days without adopting the procedure laid down in S.39 of the Representation of the People Act, 1976---Logically it was unacceptable that when Returning Officers had already filed such statements as to why they would delay signing them, and question was as to how petitioners came to know about it when they had boycotted the election---Contents of present petitions clearly showed that the allegations contained therein lacked elementary details of corrupt and illegal practices/acts which were required to be provided under the provisions of S.55(1)(b) of the Representation of the People Act, 1976---Until and unless such details were provided, present petitions were liable to be dismissed under S.63 of the Representation of the People Act,1976---Election petitions were dismissed with costs accordingly.

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

----Ss. 55(1)(b) & 70(b)---Election petition ---Ground for declaring election as a whole void---Extensive corrupt and illegal practices---Proof---For getting relief under S.70 of the Representation of the People Act, 1976 in regard to an allegation of corrupt and illegal acts, the details of such acts must be provided by the petitioner within the ambit of S.55(1)(b) of the same Act.

Sheela B. Charles's case 1996 SCMR 1455 distinguished.

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

----S. 55(3)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition ---Documents attached with an election petition providing additional allegations of illegal acts or practices or complementing such allegations---Attestation---Such documents came within the definition of "Annex" as provided under S.55(3) of Representation of the People Act, 1976 and had to be signed by the petitioner and verified in the manner laid down in C.P.C. for verification of pleadings---Documents annexed to the present election petitions were copies of different applications and letters written to the Election Commission and its functionaries mentioning different allegations which had not been mentioned in the election petitions, thus they were annexures---Said annexures were neither signed by the petitioners nor verified in terms of provisions of S.55(3) of the Representation of the People Act, 1976---Election petitions were dismissed with costs accordingly.

Akram Shahbaz for Petitioner (in Election Petitions Nos.16, 23, 24, 25 and 26 of 2013).

Ubaidur Rehman for Respondent No.1 (in Election Petitions Nos.16 and 24 of 2013).

M.P. Owais for Respondent No.1 (in Election Petition No.23 of 2013).

Syed Masroor Ahmed Alvi for Respondent No.1 (in Election Petitions Nos.25 and 26 of 2013).

2014 C L C 574

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

ABDUL RAJA RAZZAK----Petitioner

Versus

ABDUL HAKEEM BALOCH and 27 others----Respondents

Election Petition No.1 of 2013, decided on 4th February, 2014.

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

----S. 70---Election petition---Security concerns at polling stations---Proof---Corrupt or illegal practices at the election---Scope---Petitioner, who was the runner-up candidate for a seat of National Assembly, alleged that there were serious security concerns at all the polling stations in the constituency, therefore, he wrote a letter to the Chief Election Commissioner and several other election officials praying therein to provide adequate security arrangement at the polling stations but to no avail; that in such circumstances conduct of general elections was affected and also paved the way for the returned candidate and his supporters to rig the election at a large scale---Validity---During his cross-examination petitioner admitted that the Election Commission did not declare any polling station of the constituency as sensitive---Petitioner also admitted that in the entire constituency not even a single incident of baton charge by the police took place---Overall situation in the constituency was conducive, which made it possible to conduct the polling throughout the day without any hindrance---Petitioner showed his concern due to insufficient security staff at polling stations but failed to point out any single unpleasant incident in the constituency on the polling day---Although there were a few incidents of bomb explosions in the city on polling day but none within present constituency, therefore, a large turnout of voters was seen in the constituency---Petitioner failed to produce any tangible evidence to prove his case in the light of the allegations made in the petition---Election petition was dismissed accordingly.

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

----Ss. 39 & 70---Election petition---Illegality during consolidation of results---Scope---Petitioner, who was the runner-up candidate for a seat of National Assembly, alleged that the Returning Officer committed serious illegalities during the consolidation proceedings in respect of consolidation of statements of count as the votes polled in favour of the petitioner were reduced and the votes polled in favour of the returned candidate were increased---Validity---Several statements of count (Form-XIV) in respect of different polling stations were available showing the votes polled in favour of petitioner but the same were either not mentioned in the consolidation statement of the result of the count furnished by the Presiding Officers (Form-XVI), or were shown less---Returned candidate alleged that his situation was also similar as (many) votes in his favour were also not mentioned in the consolidated statement---Counsel for petitioner and returned candidate admitted that the petitioner's votes were reduced to 36325 from 38401 votes whereas, the votes of the returned candidate were reduced to 52761 from 57201---Change in number of votes in favour of both the parties had no effects on the overall result of the election---Election petition was dismissed accordingly.

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

----S. 70---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Election petition---Alleged rigging during polls---Proof---Best witnesses not produced for cross-examination---Presumption---Petitioner, who was the runner-up candidate for a seat of National Assembly, alleged that returned candidate with connivance of his workers committed rigging during the polls---Polling agents/witnesses of petitioner submitted their affidavits in evidence in regard to the allegation---Evidence of said witnesses/polling agents could be the best evidence in support of petitioner's allegations but they were not produced for their cross-examination for reasons best known to the petitioner---Hence in view of Art.129(g) of Qanun-e-Shahadat, 1984 it could be presumed that evidence of said witnesses/polling agents of petitioner, if produced would have been unfavourable to the petitioner---Petitioner did not produce any tangible evidence in support of his allegation---Election petition was dismissed accordingly.

Messrs Habib Bank Ltd. v. Inamur Rehman 1991 CLC 1713 and Qamarul Hasan v. United Bank Limited 1990 MLD 276 rel.

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

----S. 52---Civil Procedure Code (V of 1908), O.VI, Rr.2 & 4 & O.VII, R.1---Election petition---Allegations not contained in the petition---Scope---If any specific allegation was not made in the pleadings of the parties and no such issue was framed, then of course the parties could not be allowed to lead evidence on such allegation---Illustration.

Mir Nabi Baksh Khan v. The Election Petition Tribunals PLD 1957 SC 301; Lala Hem Chand v. Lala Peary Lal and others AIR (29) 1942 PC 64; Mst. Jana Bai v. Mst. Ghulshan and others 1984 CLC 1061 and Province of Punjab through Chief Secretary v. Malik Ebrahim and Sons 2000 SCMR 1172 rel.

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

----Ss. 33(2)(e), 38(9) & 70---Representation of the People (Conduct of Election) Rules, 1977, R. 24---Election petition---Ground for declaring election as a whole void---Scope---Election laws directory in nature---Scope---Non-compliance with election laws relating to officials who conduct elections---Effect---Election results not "materially affected"---Scope---Petitioner, who was the runner-up candidate for a seat of National Assembly, alleged that some of the Presiding Officers failed in complying with provisions of Ss.33(2)(e) & 38(9) of the Representation of the People Act, 1976 while issuing ballot papers and preparing statements of vote count; that in such circumstances the whole election should be declared to be void under S.70 of Representation of the People Act, 1976---Validity---Presiding Officers of several polling stations did not prepare the statement of count as provided in S.38(9) Representation of the People Act, 1976 in the prescribed Form XIV as provided under R.24 of the Representation of the People (Conduct of Election) Rules, 1977 and instead prepared them on plain papers---Some other discrepancies also existed in the statements of count of different polling stations produced by the Assistant Returning Officers, which although were on the prescribed Form-XIV but in some the Presiding Officers had not mentioned the votes of all the contesting candidates including the petitioner and in some they either did not provide their thumb-impressions or their names---National Database and Registration Authority (NADRA) submitted its report regarding examination of thumb-impressions of 32865 counterfoils from 47 polling stations, however said report was very inconclusive because 23432 counterfoils remained unprocessed due to bad quality of thumb-impressions---When Election Tribunal directed NADRA to verify thumb-impressions, NADRA did not raise any issue to the effect that ink for thumb-impressions needed to possess certain features and properties---NADRA only gave conclusive finding with regard to 53 counterfoils that failed the authentication test and 2475 counterfoils that successfully matched the fingerprints of those NIC holders whose numbers were mentioned thereon---NADRA further found 4680 counterfoils having invalid NIC numbers, 435 votes which were from outside of constituency, 1404 duplicate voters on used counterfoils and 386 used counterfoils without fingerprints, despite the fact that no such task was assigned to it by the Election Tribunal---Said report of NADRA could not be relied upon by the Election Tribunal in such circumstances---Election Tribunal also prepared its own report after inspection of 32865 counterfoils from 47 polling stations in presence of the counsel for the parties, and said report showed that 8743 of such counterfoils were not in compliance with S.33(2)(e) of the Representation of the People Act, 1976 because on most of them neither the official marks nor the signature of the Presiding Officers were found and on the remaining there was no thumb-impression of the elector, hence the same had been categorized as defective in the said report---Reports of NADRA and that of Election Tribunal were in respect of counterfoils but not in respect of the ballot papers which were marked in favour of the returned candidate---Nothing on record showed that all the ballot-papers Form (defective) counterfoils were marked in favour of the returned candidate, therefore number of votes for said counterfoils could not be out rightly deducted from votes of returned candidate---Neither the petitioner made any application for inspection of the ballot papers in respect of the 47 polling stations nor there was any other tangible evidence to say that votes from defective counterfoils were cast in favour of the returned candidate---Petitioner had only proved that there was non-compliance of Ss.38(9) & 33(2)(e) of the Representation of the People Act, 1976 by the Presiding Officers in respect of different polling stations, but since said provisions were directory in nature, it could not be said that the election had been materially affected because of the same specially when the non-compliance was at very few (49) polling stations as compared to a total 287 polling stations---Petitioner had also failed to prove that any number of votes were cast in favour of the returned candidate which were procured by illegal acts or practices, therefore they could not be excluded from his count---Vote lead of the returned candidate over other contesting candidate by 16432 votes could not be reduced to less than the votes of any other contesting candidate even if the defective counterfoils were taken to be of the ballot papers marked in favour of the returned candidate---Result of the election had not been materially affected---Election petition was dismissed accordingly.

Muhammad Ali v. Molvi Muhammad Zakaria and others PLD 1986 Journal 167 and 1988 SCMR 105 distinguished.

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

----S. 33(2)(e)---National Database and Registration Authority Ordinance (VIII of 2000), S. 7---Fake ballot papers---Sham voting---Proof---Verification of thumb-impressions on counterfoils of ballot papers---Procedure---Section 33(2)(e) of the Representation of the People Act, 1976 provided, inter alia, that the Presiding Officer of a polling station before issuing a ballot paper should obtain on its counterfoil thumb-impression of the elector and should record the National Identity Card (NIC) number of the said elector as available on the electoral roll for that polling station---If the thumb-impression which was available on the counterfoil of a used ballot papers was compared through any electronic process with the thumb-impression available in the data warehouse of National Database and Registration Authority (NADRA), of that person whose NIC number had been mentioned thereon from the electoral list, then it could be proved on the basis of such examination of doubtful counterfoils to establish whether the voting process was polluted with sham voting or not.

(g) Election---

----Election laws, nature of---Mandatory and directory election laws---Scope---Election law concerning voters was mandatory, and that relating to officers conducting the elections was directory.

Sardar Abdul Hafeez Khan's case 1999 SCMR 284 rel.

Malik Naeem Iqbal for Petitioner.

Raja Mir Muhammad and Raja Mansoor for Respondent No.1.

2014 C L C 1042

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

Mir SHAHNAWAZ KHAN----Petitioner

Versus

MANZOOR HUSSAIN WASSAN and 13 others----Respondents

Election Petition No.8 of 2013, decided on 21st April, 2014.

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

----Ss. 33(2), (3), 46 & 70(a)---Qanun-e-Shahadat (10 of 1984), Art.129(e)--- Election petition--- Fake thumb-impressions on counterfoils, verification of---Non-usage of magnetized ink during the polling---Effect---Substantial (but not complete) compliance with the voting procedure---Counterfoils of the used ballot papers in respect of 81 polling stations as well as used pictorial electoral rolls were forwarded to National Database and Registration Authority ("NADRA") for verification of thumb-impressions of the voters---Report submitted by NADRA showed that it had received 61307 counterfoils bearing thumb-impressions, out of which only 28295 could be authenticated/ verified; that only 248 failed such authentication, whereas 22525 thumb-impressions failed authentication on account of their bad quality and 10239 were not processed on account of other different reasons---Plea of petitioner that since only 46.1% of the total valid votes could be authenticated/verified by NADRA on account of use of unapproved quality of ink (non-magnetized) by the election machinery in the process of taking thumb-impressions of the electors before issuing ballot paper to them as required under S.33 of the Representation of the People Act, 1976, therefore the result of the election had been materially affected in terms of S.70(a) of the said Act and required to be declared void as a whole--- Validity--- Although Election Commission("ECP") had approved the use of magnetized ink during the poll as per sample approved by NADRA and the same quality of ink was purchased from concerned authorities and supplied to the election officials at the polling stations but NADRA's report indicated that the ink used during the process was either not magnetized or deficit of such properties as approved by the ECP ---Even if it was admitted that the quality of ink as approved by the ECP was not used, the Election Tribunal could not declare the election as a whole void because substantial compliance with provisions of S.33 of the Act had been made as admittedly the counterfoils having thumb-impressions which could not be authenticated were bearing the NIC numbers of the genuine voters and no evidence was brought to the effect that they had no electoral numbers of the electors on the electoral rolls or the official marks and signatures of the Presiding Officers---Until and unless there was any tangible evidence to the effect that such thumb-impressions were not of these voters, no finding adverse to their validity could be given, specially keeping in view the provisions of Art.129(e) of the Qanun-e-Shahadat, 1984---Petitioner had not sought audit of the ballot papers used at the polling station under S.46 of the Representation of the People Act, 1976 which meant that there was no dispute with regard to the legal validity of the votes obtained by the returned candidate---Counterfoils only reflected the compliance of the requirements of the provisions of S.33 of the Representation of the People Act, 1976, which related to the officials conducting the election hence directory in nature, and the substantial compliance thereof proved that the election had not been materially affected within the parameters of S.70(a) of the said Act---Election petition was dismissed in circumstances.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 2843 rel.

Jam Mashooq Ali v. Shah Nawaz Junejo, 1996 SCMR 426 and Dr. Sheela Bcharles v. Qaisar Ifraeem Soraya, 1996 SCMR 1455 distinguished.

Haq Nawaz Talpur for Petitioner.

Farooq H. Naik with Sheraz Rajpar for Respondent No.1.

2014 C L C 1181

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

Syed MASHOOQ MOHIUDDIN SHAH----Petitioner

Versus

Syed FAZUL ALI SHAH and 37 others----Respondents

Election Petition No.11 of 2013, decided on 21st April, 2014.

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

----Ss. 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Maintainability---Verification of pleadings---Petitioner not mentioning/referring to the specific paragraphs in the petition at time of its verification---Effect---Petitioner had verified all the contents of the petition on oath believing the same to be true both to the best of his knowledge and his belief as required under the law, and if the paragraphs had not been separated the petitioner could not be unsuited under S.63 of the Representation of the People Act for such a technical shortcoming---Election petition was held to be maintainable accordingly.

Molvi Abdul Qadir v. Molvi Abdul Wassay and others, 2010 SCMR 1877 rel.

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

----Ss. 68 & 70---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Election petition---Corrupt or illegal practices---Rigging---Capturing of polling stations---Taking polling staff as hostage---Proof---Petitioner not producing his witnesses for cross-examination---Polling agents and Returning Officer not examined---Effect---Testimony of petitioner becoming hearsay evidence--- Incumbent upon the petitioner to prove the allegations as made in the election petition filed by him---To discharge his burden of proof petitioner had filed his affidavit-in-evidence and the affidavits of several witnesses but they were not produced for their cross-examination for the reason best known to him, therefore it could be presumed under Art.129 of the Qanun-e-Shahadat, 1984, Illustration (g) that had said witnesses been produced they would have been unfavorable to the petitioner---Testimony of petitioner found no corroboration through any direct evidence as none of his own or any other contesting candidates' polling agents were examined to depose in his support---Evidence of these polling agents could be the best possible direct testimony on the subject but the petitioner chose to withhold the same without giving any plausible reason---Petitioner had not deposed that he had himself remained present during the polling at the polling stations where illegal and corrupt practices were allegedly committed, rather he deposed that he was not even allowed to enter in such polling stations and against that he complained to the Returning Officer on telephone but such statement too, remained uncorroborated as he did not examine the Returning Officer---Testimony of the petitioner would thus amount to hearsay (evidence)---Petitioner failed to prove his allegations beyond reasonable doubt---Election petition was dismissed accordingly.

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

----Ss. 68 & 70---Qanun-e-Shahadat (10 of 1984), Art.33---Election petition---Corrupt or illegal practices---Burden of proof--- Petitioner not cross-examined on the allegations made by him in his affidavit of evidence---Effect--- Plea of petitioner that allegations made by him in his affidavit in evidence with regard to corrupt or illegal practices were not challenged by returned candidate by way of cross-examination, therefore, such allegations stood proved---Validity---Returned candidate had been denying all such allegations since filing of his written statement which were further reinforced in his affidavit in evidence, therefore unless the petitioner independently discharged his burden of proof through tangible evidence, no affirmative finding could be recorded by the Election Tribunal in his favour---Petitioner failed to prove his allegations beyond reasonable doubt---Election petition was dismissed accordingly.

Chief Engineer Irrigation Department N.-W.E.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682 distinguished.

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

----Ss. 68 & 70---Election petition---Corrupt or illegal practices---Standard of proof---Burden of proof---Burden of proof that corrupt and illegal practice were committed during the poll by the returned candidate was to be discharged (by the petitioner) in the same manner as a criminal charge was to be proved beyond all reasonable doubts.

Muhammad Irfan Khan v. Javed Ahmed Chatari and 20 others 1998 CLC 1241 ref.

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

----Ss. 68 & 70---Qanun-e-Shahadat (10 of 1984), Art.33---Election petition---Corrupt or illegal practices---Changing of polling staff at polling stations---Proof---Plea of petitioner that polling staff at different polling stations was changed a day before the polling at the instance of the returned candidate and the persons recommended by him were appointed as Presiding Officers, Assistant Presiding Officers and Poling Officers without any reason, and that a large number of impartial polling personnel were removed from election duty---Validity---Petitioner had failed to produce any iota of evidence as neither any documentary evidence including the official record was produced nor the official witnesses---Allegation of changing of polling staff was required to be proved through documentary evidence from the official record of the returning officer but no effort in such regard was made---Petitioner had also not given a single name of polling staff that was changed, therefore, his oral evidence was not sufficient to prove the allegations---Election petition was dismissed accordingly.

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

----S. 99(1)(f)---Constitution of Pakistan, Art.62(f)--- Election petition---Qualification for membership of Provincial Assembly---False declaration about assets and income at the time of filling nomination form---Not sagacious, righteous, honest and ameen---Proof---Plea of petitioner that returned candidate did not provide any justification or resources for his increased income during the last four years which was proof of the fact that he had amassed wealth through illegal means, therefore, he lacked the qualifications in terms of Art. 62(f) of the Constitution to be Member of the Provincial Assembly---Validity---Allegation against the returned candidate with regard to his ineligibility to contest the election for lacking any of the qualifications as provided under Art.62(f) of the Constitution read with S.99(1)(f) of the Representation of the People Act, 1976 was very specific and were required to be proved through tangible evidence---Petitioner, in the present case, had failed to bring any material on record on the basis of which it could be held that the returned candidate was not qualified to be elected as a member of an Assembly being not sagacious, righteous and non-profligate and honest and amen---Returned candidate's declaration of assets as made in the nomination form was on record and no material against the same had been produced by the petitioner to contradict it and to prove that his solemn verification of assets at the end of his nomination form was false---Mere allegation that the returned candidate had amassed wealth through unknown sources was not sufficient---Election petition was dismissed accordingly.

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

----Ss. 33, 46, 68 & 70---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Election petition---Corrupt or illegal practices---Casting of bogus votes---Fake thumb-impressions---Proof---Non-usage of magnetized ink during the polling---Substantial (but not complete) compliance with the voting procedure---Effect---Counterfoils of the used ballot-papers in respect of 91 polling stations as well as used pictorial electoral rolls and statements of count were forwarded to National Database and Registration Authority ("NADRA") for verification of thumb-impressions of the voters---Report submitted by NADRA showed that it had received 65511 counterfoils for examination, but out of them 12818 counterfoils did not qualify for fingerprint matching; that on 23356 counterfoils the fingerprints were of bad quality and did not pass through the test; that out of the remaining counterfoils thumb-impressions on 29219 counterfoils were successfully authenticated, and that 118 thumb-impressions on the counterfoils failed authentication---In respect of 23356 fingerprints of bad quality it has been mentioned in the said report that such used counterfoils could not be processed due to poor quality of fingerprints because certain qualities were not possessed by the ink used during the polling---Election Commission had approved a sample of the magnetized ink as per proposal of NADRA but there was no proof that the concerned authorities had supplied the ink in accordance with such sample---Petitioner relied heavily upon the process of forensic verification of thumb-impressions through NADRA, but NADRA had been unable to verify huge number of such thumb-impressions because of their bad quality on account of the ink used during the poll, which was either not at all magnetized or it did not have certain properties as approved by the Election Commission---Had there been use of magnetized ink during the poll process the situation would have been different with regard to the verification---Desired credibility on the verification process of thumb-impressions could not be achieved in the present case---Petitioner didn't opt to apply for the audit of the ballot-papers used at any polling station of the constituency under S.46 of the Representation of the People Act, 1976, but only the counterfoils of used ballot-papers of certain polling stations that were sent to NADRA for thumb verification---No specific allegation was made by the petitioner to the effect that the Presiding Officers of the polling stations had issued the ballot-papers to the electors without complying with the requirements of S.33 of the Representation of the People Act, 1976 in respect of counterfoils---If some of the counterfoils did not contain the National Identity Card numbers or thumb-impressions of the electors, it could be for many reasons including human error of the Presiding Officers---During voting polling agents of the petitioner and other candidates at polling stations did not object to such illegality---Since there was no allegation that the counterfoils had no stamp with the official mark or signature of the Presiding Officer, therefore it could not be held that substantial compliance of S.33 of the Representation of the People Act, 1976, had not been made---Counterfoils on which there were thumb-impressions of bad quality as found by NADRA could not be invalidated because there was no tangible evidence that these thumb-impressions were not of the genuine voters as the National Identity Card numbers mentioned thereon were of valid voters of the constituency and there was no other discrepancy or violation of S.33 of the Representation of the People Act, 1976, therefore, presumption under Art.129(e) of Qanun-e-Shahadat, 1984, would be that the polling staff had performed their acts in the regular manner---Until and unless the petitioner proved otherwise through tangible evidence, such votes could not be declared fake because of non-authentication of their thumb-impressions by NADRA on account of the fact magnetized ink was not used---Result of the election in such circumstances could not be held to have been materially affected---Election petition was dismissed accordingly with the direction to the Secretary, Election Commission to conduct an enquiry and take necessary action on the issue of not supplying and using magnetized ink during the election.

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

----S. 33---Substantial (but not complete) compliance with the voting procedure---Effect---Where substantial compliance was made with provisions of S.33 of the Representation of the People Act, 1976 in respect of counterfoils concerning the officers conducting the elections, then such vote could not be rejected by Election Tribunal.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan, 1999 SCMR 284 rel.

Yasir Arafat Shar for Petitioner.

Sheraz Rajpar for Respondent No.1.

2014 C L C 1208

[Election Tribunal Sindh]

Before Muhammad Ashfaq Balouch, Election Tribunal

ARBAB ANWAR JABBAR----Petitioner

Versus

Makhdoom KHALIL-UL-ZAMAN and others----Respondents

Election Petition No.397 of 2013, decided on 19th April, 2014.

(a) Review---

----Scope---Power of review, if provided in a statute, had very limited scope, because it was neither an appeal nor a revision---Review was not a matter decided and elaborated with discussion.

PLD 1986 SC 542 rel.

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

----S. 64---Civil Procedure Code (V of 1908), S.114 ---Powers of the Election Tribunal---Review of order---Election Tribunal was not empowered and competent to review its own order.

PLD 1969 SC 65; PLD 1960 SC 1; 1996 SCMR 426; PLD 1997 SC 865; PLD 1975 SC 318; PLD 1992 SC 207; 2012 SCMR 1235; PLD 2007 SC (AJ&K) 92; 1983 CLC 3031; 1983 CLC 2965; PLD 2006 Lah. 611; 2009 CLC 1 distinguished.

Syed Rashid Ahmed Rizvi for Petitioner.

Ansari Abdul Latif for Respondent No.1.

Remaining Respondents ex parte.

2014 C L C 19

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD AZAM----Petitioner

Versus

CUSTODIAN OF EVACUEE PROPERTY AJ&K MUZAFFARABAD and 15 others----Respondents

Writ Petition No.411 of 2003, decided on 5th April, 2013.

(a) Azad Jammu and Kashmir (Administration of Evacuee Property) Act (XII of 1957)---

----Ss. 22, 23, 25 & 46---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Scope---Restoration of property---Limitation---Condonation of delay---Petitioner moved an application for restoration of property but same was declared an evacuee land and review petition was thereagainst dismissed by the Custodian of Evacuee Property---Validity---Custodian of Evacuee Property had exclusive jurisdiction and acted in a lawful manner---Writ jurisdiction could not be exercised unless it was proved that authority or tribunal had passed the orders in excess of jurisdiction or the same was result of non-reading or misreading of evidence---Petitioner had not succeeded in pointing out any non-reading or misreading of evidence and could not bring his case for condonation of delay or within limitation---No illegality or irregularity or excess of jurisdiction exercised by the Custodian of Evacuee Property was found---No explanation had been brought on record for delayed institution of review petition and nothing was mentioned with regard to limitation from the date of knowledge or condonation of limitation---No application for condonation or affidavit to such effect had been moved and review petition was time-barred---Delay in filing review petition was result of the negligent conduct of the petitioner and no good or sufficient cause was available for condonation of delay---Findings of Custodian of Evacuee Property were concurrent findings of fact and High Court could neither resolve the question of facts not could sit as a court of appeal on concurrent findings---Writ petition was dismissed.

M. Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22 rel.

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

----S. 44---Writ jurisdiction of High Court---Scope---While exercising writ jurisdiction, High Court could neither resolve the question of facts nor could sit as a court of appeal on concurrent findings of facts and facts of possession was an issue of fact which was subject to evidence of the parties---Writ jurisdiction could not be exercised unless it was proved that Authority or Tribunal had passed the orders in excess of jurisdiction or the same was result of non-reading or misreading of evidence.

Mir Tanveer Hussain for Petitioner.

Syed Nazir Hussain Shah Kazmi for Legal Heirs of Respodent No.2.

2014 C L C 314

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and Sardar Abdul Hameed Khan, J

AZHAR HUSSAIN GILLANI----Petitioner

Versus

ELECTION TRIBUNAL AZAD JAMMU AND KASHMIR through Chief Election Commissioner (Secretary Election Commission), Muzaffarabad and 5 others----Respondents

Writ Petition No.1137 of 2012, decided on 16th May, 2013.

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

----Ss. 51 & 59---Civil Procedure Code (V of 1908). O.VI. R.14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Verification of election petition and annexures---Scope---Application filed by the petitioner for rejection of election petition was dismissed by the Election Tribunal---Contention of the petitioner was that he was elected as Member of Azad Jammu and Kashmir Legislative Assembly and was notified as such whereas contention of the respondent was that petitioner was not qualified to be elected as member of that Assembly on the day of filing of nomination papers---Validity---Election Tribunal was a Tribunal of special jurisdiction which could assume the jurisdiction on a properly constituted petition---If election petition and every schedule and annexures to such petition was not signed and verified, then Tribunal should dismiss the same---Mandatory requirement of law was lacking in the present case and Tribunal was bound to dispose of the legal issues first which hardly required any evidence---Writ petition was accepted and impugned order was vacated with the direction to the Tribunal to dispose of preliminary objection with regard to verification of the petition.

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

----S. 44---Writ jurisdiction of High Court---Scope---If no alternate remedy was available then a party could invoke the supervisory jurisdiction of the High Court.

Mansoor Pervaiz Khan for Petitioner.

Sadaqat Hussain Raja for Respondents.

2014 C L C 410

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Ch. MUHAMMAD YOUNAS ARVI and 3 others----Petitioners

Versus

MUSHTAQ AHMED and 6 others----Respondents

Revision Petition No.46 of 2008, decided on 9th April, 2013.

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

----O. IX, R. 13 & O. I, R. 10---Ex parte decree, setting aside of---Non-joinder of necessary party---Scope---Application for setting aside ex parte decree was filed which was accepted---Validity---Evidence had not been legally appreciated---Petitioners were in possession of suit land but they were not arrayed as party in the original suit and consent decree was passed which was not binding upon them---Sale-deed executed on the basis of consent decree was not legal and was non-existent---Judgment and decree were passed in legal fashion and in accordance with law---Application was liable to be dismissed on the point of limitation, for want of proof and for not impleading the petitioners as party and the alienation of Shamlat Deh land by way of compromise decree---Negligent attitude of the respondents in pursuing their case was neither a case for condonation of delay nor a case of sufficient cause---Revision was accepted and impugned order was set aside.

2008 SCR 207; 2008 SCR 223; 2000 MLD 1305 and PLD 1970 SC 196 rel.

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

----O. IX, R. 13---Ex parte decree---Remedies available against---Remedies available against ex parte decree were: an application under O.IX, R.13, C.P.C.; review application under S.114(f) read with O.XLVII, R.1, C.P.C.; appeal under S.96, C.P.C.; application under S.12, C.P.C. and application for re-hearing the matter on the ground of violation of principles of natural justice and inherent powers of court might also be attracted or writ petition might lie.

Muhammad Younas Arvi in person and for Petitioners.

Muhammad Reaz Tabassum for Respondents Nos.1 and 2.

2014 C L C 538

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

FOREST DEPARTMENT through Secretary Forest, Azad Government of the State of Jammu and Kashmir, Muzaffarabad----Appellant

Versus

SHABBIR HUSSAIN and 11 others----Respondents

Appeal No.42 of 2013, decided on 20th November, 2013.

Civil Procedure Code (V of 1908)---

----O. XXVII, Rr. 2 & 3, O. X, Rr. 1, 2 & 3 & S.79---Azad Jammu and Kashmir Law Department Manual (1984), S.28---Suit against Government---Requirements---Disposal of case without framing of issues and recording of evidence---Scope---Plaintiff filed suit against Forest Department for compensation for fortified trees which was decreed by the Trial Court after recording statement and without framing of issues and recording of evidence---Validity---Plaintiff filed suit against Chief Conservator of Forest and other Officers in their personal capacity whereas they were performing as agents and subordinates functionary of the Government--- Defendants were liable to be sued in their official capacity---Trial Court had not adopted procedure provided for institution of suit against the Government and its Officers---Provisions of S.79 and O.XXVII, R.3, C.P.C. had been violated by the Trial Court---Person authorized by the Government could make statement on behalf of the same---In the present case, no application was made by Divisional Forest Officer in terms of O.XXVII R.3, C.P.C. for making statement as agent of the Government---Statement of Divisional Forest Officer was unauthorized because he was only one of the defendants and was not authorized to make statement on behalf of Government---Court should ascertain from each party or his pleader at the first hearing of the suit whether he would admit or deny allegations of fact as were made in the plaint or written statement which were not expressly or impliedly admitted or denied by the party against whom they were made---Trial Court should record such admission and denial---Such procedure to be adopted by the court was only for the purpose of clarifying the pleadings of the parties---Procedure laid down for trial of the suit could not be dispensed with---Award of decree merely on the summary statement of Divisional Forest Officer was without jurisdictional competence---Trial Court had not taken into consideration that damages claimed and ownership of property was a question of fact which could not be proved without regular trial---Trial Court had not followed the procedure provided in Law Department Manual, 1984---Under S.28 of Law Department Manual, 1984 plaint or written statement should be signed by the head of the department in any suit by or against the State and same should also be verified either by him or by any other officer of the department who was acquainted with the facts of the case---Judgment and decree passed by the Trial Court were set aside and case was remanded for fresh trial after framing of issues and recording of evidence---Appeal was accepted in circumstances.

AIR 1931 Privy Council 175 and 1971 PLD 625 (sic) rel.

Raja Amjad Ali Khan for Appellant.

Raja Muhammad Arif Rathore for Respondents.

2014 C L C 874

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

SAIF ALI KHAN and 34 others----Appellants

Versus

KHAN MUHAMMAD KHAN and 11 others----Respondents

Civil Appeal No.132 of 2005, decided on 4th July, 2013.

Civil Procedure Code (V of 1908)---

----S. 100---Specific Relief Act (I of 1877), Ss.42 & 8---Suit for declaration and possession---Second appeal---Scope---Second appeal would lie only when some misreading or non-reading of evidence or record was shown or judgment was arbitrary, capricious and contrary to law---No illegality or irregularity having been pointed out in the impugned judgments, second appeal was dismissed.

Muhammad Yaqoob Khan Mughal for Appellants.

Sardar Atta Elahi Abbasi for Respondents.

2014 C L C 890

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ALI ZAIN-UL-ABADEEN----Petitioner

Versus

CONTROLLING AUTHORITY AJ&K BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MIRPUR and 5 others----Respondents

Writ Petition No.3 of 2013, decided on 5th July, 2013.

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

----S. 44---Writ petition---Educational institution---Difference in Urdu and English version of question in question paper---Re-checking of examination paper---Rules not permitting re-checking of papers---Jurisdiction of High Court to direct re-checking---Scope---Education Board Authorities produced answer sheet which was examined by the High Court---Answer solved by the petitioner was not marked and was crossed by the examiner---Remarks Committee had declared answer as partially correct---Examiner awarded zero mark to the said question which was not fair---Candidates should be permitted to get their answer books re-checked for the purpose that total had been rightly brought forward, no portion of any answer had been left unmarked; there was no mistake in the grand total on the cover of the answer book and answer book had not been changed---Writ petition was accepted to meet the ends of justice and Chairman of Education Board was directed to consider the matter for redressal of grievances of the petitioner.

PLD 2003 Pesh. 69 and 2011 YLR 1656 rel.

1996 SCMR 1872 distinguished.

Babar Ali Khan for Petitioner.

Ch. Muhammad Anwar for Respondents.

2014 C L C 914

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD YOUNAS----Appellant

Versus

UMAR HAYAT and another----Respondents

Civil Appeal No.110 of 2012, decided on 20th December, 2013.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. IX, R. 13---Ex parte decree, setting aside of---Treating application filed under S.12(2), C.P.C. as an application under O.IX, R.13, C.P.C. by the court on its own motion---Scope---Application for setting aside ex parte decree was moved under S.12(2), C.P.C. whereas provision of O.IX, R.13, C.P.C. had been provided for the same---Trial Court had treated the said petition as under O.IX, R.13, C.P.C. on its own motion which was moved under S.12(2), C.P.C.---Provisions under S.12(2), C.P.C. were not intended to be a duplication of proceedings provided in O.IX, R.13, C.P.C.---Applicants did not file petition under O.IX, R.13, C.P.C. for setting aside of ex parte decree and Trial Court was not competent to treat the same as moved under O.IX, R.13, C.P.C.---Petition for setting aside ex parte decree was not moved in accordance with law and same was not maintainable---Impugned order of Trial Court was set aside---Appeal was accepted in circumstances.

1987 SCMR 1300, 1987 SCMR 1440; 2001 CLC 1100 and 2001 CLC 194 ref.

Mehr Din v. Tassadaq Hussain and others1987 SCMR 1300 rel.

Rafi Ullah Sultani for Appellant.

Sardar Mansha Jamal for Respondents.

2014 C L C 973

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD NAJEEB----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE HAJERA and 2 others----Respondents

Civil Appeal No.113 of 2008, decided on 22nd November, 2013.

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.32(2)---Civil Procedure Code (V of 1908), O.XIV, Rr.1 & 5---Writ petition--- Requirements--- Non-filing of affidavit---Effect---Framing of additional issue---Scope---Writ petition was not supported by affidavits as required under R.32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984---High Court had to decide writ petition on the basis of evidence in the shape of affidavits---Respondents had also not filed affidavits with the written statement---Trial Court had prerogative to re-arrange issues even at the time of final order---Present case was on the final stage of arguments before the Trial Court in second round of litigation, non-filing of affidavit, writ petition was incompetent---Writ petition was dismissed, in circumstances.

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

----S. 44---Writ petition--- Requirements--- Filing of affidavits---Purpose---High Court had to decide writ petition on the basis of evidence in shape of affidavits---Writ petition was incompetent without an affidavit.

Sardar Muhammad Abdul Qayyum Khan for Petitioner.

Sardar Muhammad Sabir Kashmiri for Respondent No.2.

2014 C L C 1103

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Mst. WALAYAT BEGUM and 3 others----Appellants

Versus

MUHAMMAD AFSAR and 3 others----Respondents

Civil Appeal No.354 of 2006, decided on 21st January, 2014.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession of immovable property---Limitation---Private partition or family settlement---Official partition against private partition---Contention of plaintiffs was that they were owners in possession of suit property through private partition but they were dispossessed by way of partition through revenue court---Suit was dismissed concurrently---Validity---Plaintiffs and defendant along with others were co-owners in the khewat of disputed land---Defendant moved an application for partition before the revenue court and ex-parte proceedings were conducted against the plaintiffs---Partition deed was prepared and warrant of possession was issued in favour of defendant who was declared owner in possession of suit-land---Private partition or family settlement could not be declared as final partition---Co-owner of joint land could approach the proper forum for partition of the same in accordance with law---Plaintiffs refused the service of notice and they were proceeded against ex-parte by the revenue court---No material was on record to the effect that said service was conducted fictitiously---Forum for redressal with regard to fluctuation/decrease or increase in the quality of land was the revenue court---Official partition was preferred to the private partition---No co-sharer could be deprived of his right due to the fact that other co-sharer was in possession of any land---Plaintiffs filed suit for permanent injunction after issuance of warrant of possession in favour of defendant but same was dismissed for non-prosecution---Plaintiffs were aware about the partition process but they remained absent from partition proceedings---Private partition did not change nature of joint property and same would remain joint unless it was partitioned by the revenue authorities in accordance with law---No suit for possession could be filed by a co-sharer that he was already in possession on a part of disputed land and such suit could not be treated under S.9 of Specific Relief Act, 1877---Suit was filed beyond the time of limitation---Findings recorded by the courts below were based on sound and cogent reasons---Appeal was dismissed in circumstances.

Raja Habib Ullah Khan for Appellants.

Riaz Ahmed Chaudhary Lajpal for Respondents.

2014 C L C 1148

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

CHAIRMAN DEVELOPMENT AUTHORITY, MUZAFFARABAD----Petitioner

Versus

KHAMDO BIBI and 27 others----Respondents

Civil Revision No.86 of 2008, decided on 8th May, 2013.

Civil Procedure Code (V of 1908) ---

----O. XIV, R. 1---Framing of issues---Petitioner filed application for reconstruction of record with the contention that same was destroyed---Dismissal of application---Validity---Averments made in the pleadings related to facts which could be decided in the light of evidence---Issues had to be framed where parties were at issue---Lower court without framing of issues and giving opportunity of adducing evidence decided the case summarily which was not warranted by law---Courts should pronounce its opinion on all relevant points / facts which had arisen or had been raised in a case---Case was remanded to the Additional District Judge for decision afresh after framing of issues and giving opportunity to the parties to lead evidence.

Muhammad Hussain Khan v. Said Muhammad and 11 others PLD 1988 SC (AJK) 184 and Bushra Mehmooda Khatoon v. Secretary Education and others 2005 SCR 217 rel.

Muhammad Aslam Rathore for Petitioner.

Aftab Ahmed Awan for Respondents.

2014 C L C 1281

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SPINTEX LIMITED through Manager Personal Administration----Appellant

Versus

EMPLOYEES OLD AGE BENEFITS INSTITUTION (E.O.B.I.) through Chairman and 3 others----Respondents

Civil Appeal No.95 of 2007, decided on 26th August, 2013.

West Pakistan General Clauses Act (VI of 1956)---

----S. 6---Employees Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act (X of 1980), Ss.1 & 2---Suit for recovery---Effect---Payment of amount to the Employees Old-Age Benefits Institution by the company---Contention of plaintiff-company was that they were paying the contribution to the Institution since September, 1990 whereas Employees Old-Age Benefits Institution Act, 1980 was enforced in Azad Jammu and Kashmir from 12-7-1995 and payment to the Institution should have been made from 12-7-1995 therefore the company was entitled to refund of the amount paid by it during the period when the Act was not enforced in Azad Jammu and Kashmir till the date of its enforcement---Suit of the company was dismissed by the Trial Court---Validity---Rights of employees, privileges, obligations or liabilities acquired, accrued or incurred under any enactment would not be effected by repeal of the same---Employer-company was fulfilling its obligation by making payments to the Institution---Plaintiff-company having been contributing the amount with regard to pension of its retired employees through the Institution, rights, privileges and liabilities acquired by the retired employees of company were intact---Findings recorded by the Trial Court were based on sound and cogent reasons---Appeal was dismissed in circumstances.

2001 PLC (C.S.) 11 rel.

Raja Hassan Akhtar for Appellant.

Mirza Zafar Hussain for Respondents.

2014 C L C 1304

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Mst. PARVEEN AKHTAR and 4 others----Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others----Respondents

Writ Petition No.46 of 2000, decided on 20th November, 2013.

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

----S. 44---Writ petition---Acquisition of land for housing scheme---"Public purpose"---Construction of flats and shops on the surplus land---Contention of petitioners was that land had been used for another purpose which was not a "public purpose"---Validity---More than four hundred kanals of land was acquired for housing scheme out of which petitioners' land was sixteen kanals---Scheme was meant for "public purposes"---Housing scheme would also include the provisions of flats, shops and plazas etc. to meet the needs of inhabitants of said scheme---Construction of some flats and shops for commercial purposes could not take out the acquired land out of the purview of "public purpose" or purpose for which the land was acquired---Possibility of some land being surplus or unnecessary for original purpose could not operate retrospectively to invalidate the same---Surplus land had to be dealt with upon the consideration which were consistent with the original acquisition---Manner in which surplus land was dealt with, in the present case, could not have any effect on the validity of the acquisition---After completing the original "public purpose", there remained in surplus or unnecessary land which was not suitable for residential use which could be utilized by the Government to its option and in such eventuality the original title of the Government or for that matter the award would not be adversely affected---Writ petition was dismissed in circumstances.

1996 CLC 1504 ref.

1996 CLC 1504; 1996 CLC 1502 and 2001 MLD 295 rel.

Muhammad Idrees Khan for Petitioners.

Sardar M.R. Khan, A.A.-G. for Respondents Nos.1 to 4.

Sardar Muhammad Suleman Khan for Respondents Nos.5 and 6.

2014 C L C 1341

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

AMEER AFZAL and another----Petitioners

Versus

AMJAD NAHEEM QURESHI and another----Respondents

Civil Revision No.7 of 2014, decided on 9th April, 2014.

Civil Procedure Code (V of 1908) ---

----O. XVII, R. 3---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Closure of evidence---Scope---Defendants were present in the court who paid cost to the other party---Partial statement of one of the defendants was recorded and next date of hearing was fixed for statement of remaining defendants---Trial Court started recording of statement of one of the defendants as witness but did not complete his statement on the said date and passed the impugned order for closing the remaining evidence of the defendants---Closing of remaining evidence by the Trial Court on the same day was not just and proper---Counter suit was also pending before the Trial Court and both the suits were to be disposed of through a single judgment---Opportunity for production of evidence should be provided to the defendants---Impugned order was set aside and Trial Court was directed to provide an opportunity for production of remaining evidence to the defendants which should be completed on the date fixed for the same---Revision was accepted in circumstances.

Ch. Muhammad Mumtaz for Petitioners.

Kamran Taj for Respondents.

2014 C L C 1474

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

KHADIM HUSSAIN----Appellant

Versus

MUHAMMAD YASEEN and 3 others----Respondents

Civil Appeal No.120 of 2008, decided on 3rd April, 2014.

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

----S. 18(2)---Civil Procedure Code (V of 1908), S.12(2)---Acquisition of land---Reference to court---Question of title of acquired land, determination of---Jurisdiction of Reference Court---Scope---Contention of applicant was that disputed land was transferred in favour of respondent on the basis of fictitious gift-deed and compensation was received by him fraudulently---Validity---Reference Court could exercise its powers to resolve the question of title of any property---Civil suit was pending for cancellation of gift-deed and question of title had yet to be resolved by a competent forum---Both the forums were competent to resolve the question of title of acquired land but civil court was always preferred over the other forum as minute and detailed scrutiny could only be made before the same---Impugned order passed by the Reference Court was set aside and proceedings pending before the same would remain in abeyance till disposal of controversy by the civil court---Revision was accepted in circumstances.

(b) Revision---

----Conversion of appeal into revision---Scope---Appeal could be converted into revision and revision into appeal provided same was with the period of limitation.

1995 CLC 1578 and PLD 1995 Lah. 462 ref.

1995 CLC 1578 and PLD 1995 Lah. 462 rel.

Shakeel Zaman for Appellant.

Sardar Muhammad Azam Khan for Respondents.

2014 C L C 1652

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Syed NAZIR HUSSAIN SHAH----Appellant

Versus

MIR HUSSAIN and 5 others----Respondents

Civil Appeal No.63 of 2005, decided on 30th October, 2013.

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Civil Procedure Code (V of 1908), O.VII, R.7 & O.XX, R.5---Suit for pre-emption---Right of prior purchase---Decision on each issue---Scope---Suit was dismissed on the ground that plaintiff did not seek possession of suit land---Validity---Plaintiff was dispossessed from the land in question during pendency of suit---No issue on the point of possession was framed by the Trial Court---Application for addition of words "recovery of possession" in the title and prayer clause of plaint was filed by the plaintiff but same was dismissed without any reasons---Formal amendment in the plaint was not necessary as facts were not disputed---Court was bound to administer law for the ends of justice to protect statutory rights of pre-emptor---Discretion was vested with the court in such circumstances to be exercised judicially to avoid multiplicity of proceedings and to shorten litigation---Court of law was competent to grant a relief not specifically prayed for or it might grant relief on the ground other than one relied upon in the plaint provided same was not inconsistent with the plaintiff's case and there was no element of surprise to his adversary---Relief could be moulded by the court of law and subsequent events could be taken into consideration at the time of decision---Plaintiff, in the present case, had solicited decree for right of prior purchase on the enlisted grounds which were proved by him and he had also prayed for any other further relief to which he might be found entitled to ---Relief for possession was not inconsistent with the case set up by the plaintiff---Courts below were bound to attend the altered circumstances and mould the decree to do complete justice---Judgments and decrees of courts below were against codal provisions and were not sustainable---Impugned judgments and decrees were set aside and suit of plaintiff was decreed subject to deposit of amount of sale consideration---Appeal was accepted in circumstances.

AIR 1960 Patna 452; Mst. Salma Abbasi and others v. Ahmed Suleman and 2 others 1981 CLC 462; Mehrab Khan v. Province of Sindh and 5 others 2005 CLC 441 and Capt. S.M. Aslam and others v. Karachi 2005 CLC 759 rel.

Syed Riaz Hussain Naqvi for Appellant.

Chaudhry Ghulam Nabi for Respondent No.1.

Nemo for Respondents nos.2 to 6.

2014 C L C 28

[Islamabad]

Before Iqbal Hameedur Rahman, C.J. and Noor-ul-Haq N. Qureshi, J

LESCO and 501 others----Petitioners

Versus

NORTH STAR TEXTILE MILLS and others----Respondents

Intra-Court Appeals Nos.630-W, 599-W, 606-W to 612-W, 637-W to 727-W, 738-W to 752-W, 755-W to 810-W, 812-W to 830-W, 832-W to 847-W, 849-W to 869-W, 871-W to 874-W of 2012, 20-W to 31-W, 46-W to 51-W, 53-W to 60-W, 63-W to 89-W, 112-W to 194-W, 538-W, 541-W to 550-W, 667-W to 669-W, 671-W to 678-W of 2013, Writ Petitions Nos.1487 to 1491, 15141, 1549, 1551 to 1553, 1557, 1562 to 1565, 1574, 1580, 1590, 1593, 1604, 1606, 1629, 1631 to 1633, 1680, 1685, 1686, 1690, 1694, 1697, 1739, 1741, 1761 and 1967 of 2013, Intra-Court Appeals Nos.758 of 2012, 768, to 843 and 865 of 2013, decided on 27th June, 2013.

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

----S. 31(4) & proviso---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972) S.3---Intra-court appeal---Electricity Tariff, determination of---Fuel Adjustment Charge---Retrospective levy of fuel adjustment charge---Notification of tariff/rates approved by NEPRA under section 31(4) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---- Fuel adjustment charge was an operational cost and not a surcharge---Appellants/Electricity Distribution Companies impugned judgment in a Constitutional petition whereby monthly Fuel Adjustment Charges levied on consumers, and determined by NEPRA were declared as unconstitutional inter alia on the ground that the same were levied retrospectively, and were a surcharge/tax and that the authority of NEPRA for purposes of adjustment was limited to a time scale of 15 days under S.31(4) of the Act---Validity----No time scale existed with regard to issuance of notification by NEPRA under S.31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and proviso thereto, while determining tariff including Fuel Adjustment Charges, as the same were an operational price as an addition to the cost of generation---Since no penal clause was provided by S.31 of the Act, the same was therefore directory and not mandatory---NEPRA, in its report had shown the variation of cost of power generation, with month-wise, increased or decreased, and where the cost of generation decreased, bills of consumers were accordingly adjusted---Insofar as the issue as to whether fuel provided to power generation companies was being used for other purposes, High Court directed NEPRA authorities to keep vigilance on such drains by weekly or fortnightly checks on GENCOS according to their capacity and on the NTDC---Held, that the Fuel Adjustment Charges were not additional charges, but were based upon fuel consumption cost, which could be adjusted---Record did not reflect that charges were made with retrospective effect, and were included in the bills as current charges---Impugned judgment was set aside and intra-court appeals were allowed, in circumstances.

[case-law referred]

Munawar-us-Islam, Advocate Supreme Court, Muhammad Usman Sahi along with Syed Mubashar Masood, Director Legal LESCO.

Sh. Muhammad Ali, Muhammad Khalid Zaman, Kamran Amjad for FESCO.

Shamshad Ullah Cheema, Advocate Supreme Court with Muhammad Shafique, Legal Advisor and Irfran-I-Haq, Assistant Legal Advisor for NEPRA.

Khaliq-uz-Zaman and H.M. Mazhar Iqbal for IESCO.

Syed Kazim Hussain Kazmi, Advocate Supreme Court, Ahmad Zaman Khan with Muhammad Siddiqu, Director Legal for GEPCO.

Muhammad Muneer Paracha, Advocate Supreme Court and Nauman Muneer Paaracha, for HESCO.

Syed Mumtaz Ali Zaidi for MEPCO.

Ch. Mushtaq Ahmed Kaboh, Muhammad Anum Salim, Ms. Mehnaz Shiraz, Mian Mehmood Rashid, Muhammad Naveed Chughtai, Khalid Nawaz Ghumman, Sadquain Gardner, Rana Ali Akbar, Malik Najam Ayub, Muhammad Nawaz, Ch. Muhammad Tahir Mahmood, Zulqarnain Hamid, Rana Sajid Rasool, Mian M. Hussain Chotya, Muhammad Siddique Qazi, Muhammad Siddique Mughal, Ch. Muhammad Abdul Latif Gujar, Ch. M. Tahir Mehmood, Shahid Rasool, A. Ammar Sehri, Ch. Mumtaz-ul-Hassan, Ahmad Bilal, Mustafa Kamal, Adnan Ahmad, Muhammad Mohsin Virk, Abdul Waheed, Waheed Zafar, Malik Qamar Afzal, ASC, Nabeel Rehman, Miss Zainab Effendi, Javed Iqbal Qureshi, Abdul Waheed Habib, Ch. Anwar-ul-Haq, Muhammad Nawaz, Nasir Abbas Minhas, Mian Tariq Mahmood for Respondents.

Dates of hearing: 21st, 22nd, 23rd, 27th, 28th, 29th, 30th May, 3rd, 4th and 13th June, 2013.

2014 C L C 87

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

Mst. NOMAIL ZIA----Petitioner

Versus

ADNAN RIAZ----Respondent

Writ Petition No.3133 of 2013, decided on 16th September, 2013.

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

----S. 5, Sched. & S.7----Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.2(a)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of bridal gifts, by husband after dissolution of marriage on the basis of Khula---Jurisdiction of Family Court---Scope---Respondent/husband after dissolution of marriage on the basis of khula filed suit seeking decree for recovery of gold ornaments/bridal gifts---Trial Court dismissed the suit for recovery being not maintainable before Family Court---Appellate Court accepted the appeal of respondent/husband and remanded the case to Family Court for decision afresh on merits---Contention of the petitioner was that Appellate Court erred in observing that Family Court has jurisdiction to try a suit for recovery of "bridal gifts" as restoration of dower to the husband---Validity---Subject-matter of the suit of respondent/husband could safely be termed as "bridal gifts"---Claim pertaining to recovery of "bridal gifts/personal property" of wife fell within the jurisdiction of Family Court, therefore, the suit for recovery of "bridal gifts" filed by husband was competent before Family Court---Constitutional petition was dismissed.

Muhammad Ijaz Ahmad Khan v. Judge, Family Court and another 2005 YLR 2799 ref.

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

----S. 5, Sched. & S.7---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976) S.2(a)---Civil Procedure Code (V of 1908), S.10---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of bridal gifts by husband after dissolution of marriage on the basis of khula---Former suit not decided on merits---Res judicata, principle of---Scope---Petitioner/wife filed a suit for dissolution of marriage on the basis of khula which was resisted by the respondent/husband with claim of recovery of gold ornaments given to his wife as bridal gifts---Trial court decreed the suit of the petitioner/wife to the extent of dissolution of marriage on the basis of khula but to the extent of husband's claim for recovery of gold ornaments/bridal gifts, it was directed to knock the door of proper forum---Respondent/husband filed fresh suit seeking decree for recovery of gold ornaments before Family Court---Family Court dismissed the suit for recovery of bridal gifts being hit by res judicata---Appellate Court accepted the appeal of respondent/husband and remanded the case to trial court for decision afresh on merits---Contention of the petitioner/wife was that in presence of earlier judgment of the Family Court, whereby no relief was given to respondent/husband, second suit was not competent and the same was hit by principle of res judicata---Validity---Earlier decision of Family Court was not on merits of the controversy, therefore, subsequent suit would not hit by res judicata---In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits, therefore the subsequent suit for recovery was competent--- Constitutional petition was dismissed.

Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 rel.

(c) Administration of justice---

----Spirit of law requires decision of controversies on merits rather than on technical knock out.

Akram Shaheen for Petitioner.

2014 C L C 282

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

SARFRAZ MASIH----Petitioner

Versus

MANZOOR MASIH and others----Respondents

Civil Revision No.175 of 2013, decided on 20th June, 2013.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for declaration---Ownership could not be transferred merely on submission of Iqrarnama---Plaintiff had failed to prove agreement by producing cogent, sound and strong evidence---No misreading, non-reading, illegality or infirmity was found in the impugned judgments and decrees passed by the courts below---Said judgments and decrees were based on plausible and sound reasons---Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was slender---Concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below had either misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdictional error.

Hafiz Liaquat Manzoor Kamboh for Petitioner.

2014 C L C 330

[Islamabad]

Before Riaz Ahmad Khan, J

Mst. MAHAM SHABBIR----Petitioner

Versus

SALMAN HAIDER and others----Respondents

Writ Petition No.3767 of 2013, heard on 9th October, 2013.

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

----Ss. 12 & 25---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Interim custody of minor---Scope---Welfare of minor---Father filed application for temporary custody of minor which was accepted by the Guardian Judge---Court had powers to direct to produce minor before the court and then to pass order for temporary custody for the same---Order for temporary custody was usually passed at the time when evidence was not produced before the court---Such order must be passed keeping in view the welfare of the minor---Complete judgment without recording evidence to be avoided---Suckling baby had to be given to his/her mother---Order under S.12 of the Guardians and Wards Act, 1890 should not become the order passed under S.25 of the Act determining the rights of the parties with regard to custody of minor; difference between the two provisions must be kept in view---Questions as to whether mother would be in a position to maintain children and to provide love and affection to them were questions which would require evidence---Such questions could be decided only in final adjudication after recording of evidence---High Court, in exercise of its constitutional jurisdiction was not a court of appeal or revision---Jurisdiction of High Court to interfere on the point of fact was limited---Interlocutory order if did not suffer from any illegality, mala fide or was not in excess of jurisdiction or lack of exercise of jurisdiction or was not based on misreading, misconstruing or discarding of evidence and material on record, could not be challenged in constitutional jurisdiction---Trial Court, in the present case, had stepped into the merits of the case without recording of evidence---Impugned order was in excess of jurisdiction which was set aside---Case was remanded to the Trial Court for deciding application afresh in accordance with law---Constitutional petition was disposed of accordingly.

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

----S. 14---Guardians and Wards Act (VIII of 1890), S.12---Appeal---Maintainability---Scope---Words "decision given" or "decree passed", used in S.14 of the West Pakistan Family Courts Act, 1964 were two different words---Both "decision" as well as "decree" were outcome of final adjudication---"Decision" itself would mean judgment as well as act of deciding determination of point under deliberation or discussion---"Decree" passed meant formal expression adjudicating a fact or law, a controversy or an issue---"Decree" was final outcome of the adjudication whereas "decision" could be any decision given by the Family Court---Order passed under S.12 of the Guardians and Wards Act, 1890 would be appealable under S.14 (1) of the West Pakistan Family Courts Act, 1964---Words 'decision given or decree passed' were to be taken as ejusdem generis---Appeal would lie only against final judgment and not against any interlocutory order---Any final judgment or decision would be appealable but if same was not final then no appeal would lie.

PLD 1989 Lah. 38; PLD 1999 Lah. 33; 1986 CLC 620; PLD 1976 Lah. 1015; 1979 CLC 754 and 1989 ALD 506(1) rel.

Ms. Jamila Jahanoor Aslam for Petitioner with Petitioner in person.

Sardar Asmat Ullah Khan for Respondent No.1 with Respondent No.1 in person.

Date of hearing: 9th October, 2013.

2014 C L C 451

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Sh. AHSAN-UD-DIN, ADVOCATE and 2 others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.4761 of 2013, decided on 15th January, 2014.

(a) Rules for the Use of Staff Cars, 1980---

----S. 24(2)(a)---Constitution of Pakistan, Arts.9 & 199---Constitutional petition---Security for Former Chief Justice of the Supreme Court---Federal Government and its functionaries, obligation of---Scope---Provision of a bullet proof car---Safety precautions taken by Federal Government and its functionaries for protection of Former Chief Justice of the Supreme Court---Propriety---Such precautions and measures were not only derisory and inadequate in the light of prevalent threats to him and his family and the overall prevalent security situation in the country but also an attempt to derision the judicial office he held and the nature of functions he performed therein---Due to prevalent law and order situation in the country and the sheer number of assassinations of prominent national personalities, it was the obligation and primary duty of the Government to provide adequate security, protection as well as take all feasible steps to ensure the protection of its citizens especially state personalities facing foreseeable, existent and actual threats to their lives such as Former Chief Justice of the Supreme Court---Former Chief Justice of the Supreme Court and his family faced recognized foreseeable and inevitable risks and security threats---National Crisis Management Cell, Ministry of Interior had issued a letter containing list of persons who were a target for terrorist activities, and on top of such list was the name of Chief Justice of the Supreme Court, even above the names of Prime Minister and the President---Despite such clear, evident and manifest information, Federal Government and its functionaries had not only disregarded and neglected but also adopted a heedless attitude towards the security of Former Chief Justice of the Supreme Court and his family---Federal Government did provide a bullet proof vehicle to the Chief Justice but it was a decrepit and dilapidated vehicle, which did not even meet the basic requirements of travelling---Such act on part of Federal Government was an intentional and deliberate attempt to disgrace the Former Chief Justice, which in turn was a disrespectful approach towards the institution of Judiciary---Federal Government not only infringed but also disregarded and abridged the fundamental right of protection of life of the Former Chief Justice, and in doing so demeaned his stature and efforts for the country---High Court directed that Former Chief Justice of the Supreme Court should be provided foolproof security along with possession of a bullet proof car for his and his family's use without putting any embargo of time specification; that maintenance and expenses of the said vehicle shall be borne by the Ministry of Law as per S.24(2)(a) of the Rules for the Use of Staff Cars, 1980; that concerned Inspector-General of Police should establish contact with personal secretary of Former Chief Justice of the Supreme Court for seeking requirements for security, etc., and provide the same forthwith---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 9---Right to life, protection of---Federal Government and its functionaries, obligation of---Scope---Word "life" in the Constitution was very significant as it covered all facts of human existence and included provisions of guarding and protecting the same---State should therefore act in aid of enforcement and protection of fundamental right to life guaranteed under Art.9 of the Constitution, and public functionaries like police, Ministry of Interior and Cabinet Division must act in support of the same and facilitate, sustain and minister the enforcement of said constitutional provision rather than violating, neglecting, overlooking and disregarding the same---"Right to life" had to be safeguarded and upheld and no person or institution could be given the right to jeopardize a life and expose a person to danger either due to mala fide intent or heedless attitude---Illustration.

Petitioners in person.

Fazal-ur-Rehman Khan Niazi, D.A.-G. and Jehangir Khan Jadoon, Standing Counsel, Ch. Mubarik Ali, Joint Secretary M/o Interior and Zia-ul-Haq, Joint Secretary, Cabinet Division for Respondents.

2014 C L C 503

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

REHAN ALI----Petitioner

Versus

MINISTRY OF TECHNICAL PROFESSIONAL through Secretary and 3 others----Respondents

Writ Petition No.2841 of 2011, decided on 5th July, 2012.

(a) National Vocational and Technical Training Commission Act (XV of 2011)---

----Ss. 15 & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Organization with non-statutory Rules---"Public servant" and "civil servant"---Distinction---Contract employee seeking regularization of service---Petitioner was appointed in National Vocational and Technical Training Commission ("the Commission") on contract basis and pleaded that despite performing his duties honestly for more than 2 years, he had not been regularized; that present constitutional petition against the Commission was maintainable as S.15 of National Vocational and Technical Training Commission Act, 2011 defined all employees of the Commission as "public servants"---Validity---Section 15 of National Vocational and Technical Training Commission Act, 2011 defined all employees of the Commission as "public servants", but every public servant must not be considered a "civil servant"---Even if petitioner was deemed to be a "civil servant", then his appeal lay to the (Service) Tribunal---Rules framed under S.17 of National Vocational and Technical Training Commission Act, 2011 were not approved as yet by the Government, therefore, same were non-statutory---Constitutional petition against the Commission was not maintainable in such circumstances---Service rules of the Commission did not contain any provision for regularization of contract or daily wage employees, therefore petitioner could not claim regularization in service as a right---No right of petitioner had been violated----Petitioner was removed from service and preferred a petition before the Labour Court, and he had also filed a representation before the Prime Minister, which was pending adjudication---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition---Maintainability---Organization with non-statutory rules---Constitutional petition against organization with non-statutory rules by an employee regarding his service matter was not maintainable---Illustration.

(c) Civil service---

----"Public servant" and "civil servant"---Distinction---Every "public servant" must not be considered a "civil servant"---Illustration.

Muhammad Ramzan Khan for Petitioner.

Barrister Afzal Hussain for Respondent No.2.

Date of hearing: 2nd July, 2012.

2014 C L C 510

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

Syed SHABI HASSAN----Petitioner

Versus

GUARDIAN JUDGE, WEST ISLAMABAD and another----Respondents

Writ Petition No.2498 of 2013, decided on 20th November, 2013.

West Pakistan Family Courts Rules, 1965---

----R. 6---Guardians and Wards Act (VIII of 1890), S.25---Constitution of Pakistan, Art.199---Constitutional petition---Application for custody of minor---Objections with regard to territorial jurisdiction of Guardian Court---Guardian Judge dismissed objection petition filed by the father---Validity---Spouses lived at Peshawar and thereafter at Lahore and then settled at Abu Dhabi---Guardian Judge Islamabad had no jurisdiction to entertain application filed under S.25 of the Guardians and Wards Act, 1890---Impugned order was set aside and Guardian Judge was directed to return application for custody of minor for presentation of the same before the court of competent jurisdiction---Constitutional petition was accepted in circumstances.

Major Muhammad Khalid Karim v. Mst. Sadia Yaqoob PLD 2012 SC 66 rel.

Aleem Baig Chughtai Advocate Supreme Court for Petitioner.

Syed Ishfaq Hussain Naqvi for Respondents.

2014 C L C 516

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

Messrs MEGA SIGN and others----Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

Writ Petition No.3423 of 2013, decided on 28th November, 2013.

Constitution of Pakistan---

---Arts. 199 & 18---Constitutional petition---Allotment of site without open auction---Cancellation of said allotment and re-allotment of same through open auction---Scope---Locus poenitentiae, principle of---Applicability---Contention of petitioners was that sites were allotted to them for a period of five years and advertisement for auction of same was illegal, arbitrary and in contravention of their fundamental rights---Validity---License in question had conferred right in favour of petitioners but such right originally belonged to the State and State exercised its authority through public functionaries---Public functionaries were under obligation to protect and preserve transparency and to ensure maximum gain for public exchequer whenever a right belonging to the State was going to be alienated---Equal opportunity should be extended to all potential aspirants who intended to acquire the State property---Public functionaries were bound to invoke such provisions of law which would ensure maximum participation with an object to gain maximum advantage---Fundamental exercise of public notice was not followed by the Authority which had rendered the whole exercise superfluous---Licenses were granted to the petitioners without any competitive process---Petitioners could not claim to have a vested right to continue for the license period---Article 18 of the Constitution had been violated as no other competitor except petitioners was invited for bidding---Action had been taken across the board against all the licenses which were issued without any competitive process and there was no question of discrimination---Competent authority was vested with powers to repeal an illegal order---Principle of locus poenitentiae was not applicable in the present case---Relief under constitutional jurisdiction could not be extended in aid of injustice---Constitutional petition was dismissed in circumstances.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and 1998 SCMR 516 rel.

Dr. Amjad Hussain Bukhari for Petitioners.

Raja Adnan Aslam for Respondents/CDA.

2014 C L C 528

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

SARA NOOR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.3146 of 2013, decided on 5th December, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on basis of Khula---Statement of wife to the effect that she was ready to forego her dower in lieu of Khula---Scope---Contention of wife was that gold ornaments were snatched by the husband at the time of her desertion---Suit was decreed subject to payment of dower amount---Validity---Wife had alleged that gold ornaments were in the custody of husband whereas he had denied her such assertion---Such controversial issue could not be settled without affording opportunity to both the parties to adduce their evidence, however decree for dissolution of marriage on the basis of Khula could not be revoked and same would remain intact---Proper course would be to frame issue with regard to gold ornaments and decide the case accordingly---Impugned orders and execution petition were set aside and Trial Court was directed to frame issues and proceed with the case in accordance with law---Constitutional petition was accepted in circumstances.

Doctor Akhlaq v. Kishwar Sultana PLD 1983 SC 169 rel.

Musharaf Khan for Petitioner.

Muhammad Sanaullah for Respondents.

Date of hearing: 5th December, 2013.

2014 C L C 600

[Islamabad]

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

MINISTRY OF INTER PROVINCIAL COORDINATION----Appellant

Versus

Major (R) AHMAD NADEEM SADAL and others----Respondents

Intra-Court Appeals Nos.928, 936, 984, 1033 and C.Ms. Nos.4932, 4702, 4848 and 4922 of 2013, decided on 15th January, 2014.

(a) Sport (Development and Control) Ordinance (XVI of 1962)---

----S. 3(2)---Pakistan Cricket Board, status of---Corporate body---Scope---Pakistan Cricket Board was a "Corporate body", which could sue and be sued---Pakistan Cricket Board itself was not a component of the Government.

(b) International agreement---

----Any agreement award not approved by Parliament, does not have the force of law and cannot be executed through the process of court.

Societe Generale De Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance, Revenue Division, Islamabad 2002 SCMR 1694 rel.

(c) Constitution of Pakistan Cricket Board---

----Paras. 6, 28, 29, 30 & 31 ---Civil Procedure Code (V of 1908), O.XXXIX----S.R.O.(1)/2013 dated 14-10-2013---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Chairman, Pakistan Cricket Board ("the Board"), appointment of---Legality---Injunction granted by court against day to day functioning of public functionary---Interference by court in policy matters of Government---Order/judgment passed on personal knowledge or whims of a Judge---Legality---Interim Management Committee and Acting Chairman of the Board, status of---Single Judge of High Court on the first day when case was placed before him, held that entire process of election of Chairman of the Board appeared to be motivated and polluted and restrained him from performing his duties and removed him from office; that Paras.28, 29, 30 & 31 of the Constitution of Pakistan Cricket Board were person specific, made for appointment of Chairman in question, who had personal relations with persons at helm of affair---Validity---Single Judge of High Court passed a final order on the first day of the case and removed Chairman of the Board from his post, which order could not be passed, particularly because Chairman of the Board was not before the Court---Said order as such was totally illegal, violative of principles of natural justice and norms of fairplay---No injunction could be passed against day to day functioning of public functionary, but in the present case by way of temporary injunction Chairman of the Board was restrained from performing his duty, rather he was altogether removed from his post---Such order was neither incidental nor supplemental and by itself was a final order passed at an initial stage of the case---Single Judge of High Court recorded certain observations and apprehensions in his judgment, which were totally personal and not available in the petition---Judgment could not be passed on basis of personal evaluation, knowledge or wisdom of the Judge---International Cricket Council ("ICC") had suggested three different options to cricket nations for constitution of their Boards and nomination of Chairman, and although they were not binding upon the Government of Pakistan, yet the Government decided to adopt said suggestions---Adopting any of three suggestions given by the ICC was a policy matter of the Government, and the High Court could not interfere in such policy matter by taking the role of a policy maker---Single Judge of High Court struck down Part-IV of the Constitution of Pakistan Cricket Board (Paras.28, 29, 30 & 31) on the basis that he had a different view about them---Part-IV of the Constitution of Pakistan Cricket Board could be adjudged upon or struck down but by discussing it at the touchstone of provisions of the Constitution of Pakistan or law, but not for the reason that Judge had a better option or different view---Question as to how Single Judge of High Court came to know that Chairman of the Board had personal relations with the person at the helm of affairs or how Paras.28, 29, 30 & 31 of the Constitution of Pakistan Cricket Board were person specific, was not known---Part-IV of the Constitution of Pakistan Cricket Board (Paras.28, 29, 30 & 31) was thus illegally struck down by Single Judge of the High Court---Interim Management Committee and Acting Chairman of the Board, appointed by the Government through S.R.O. (1)/2013 dated 14-10-2013, was a stopgap arrangement and would come to an end with the present judgment---Even otherwise said S.R.O. was issued for ninety (90) days with effect from 13-2-2013, thus it had become infructuous---Intra-court appeal was allowed and High Court directed that removed Chairman of the Board should be restored to his post; that all decisions taken by the Board or its Interim Management Committee during the interim period, would be considered legal and would stand validated; that Interim Management Committee would stand dissolved, and that situation of the Board would be restored to the day when constitutional petition was filed before the Single Judge of High Court.

Muhammad Ayub and Brothers through Partner v. Province of Sindh through Secretary, Irrigation and another 200 YLR 348 and Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others PLD 2006 Lahore 482 rel.

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

----Ss. 94(c), (e), 151 & O.XXXIX---Restraining order---Scope---Restraining order was passed under O.XXXIX, C.P.C, but was to be read with Ss.94(c) & (e) & 151, C.P.C---Powers under S.94(c), C.P.C. were supplemental---Civil Court had all the powers available to it under Code of Civil Procedure, 1908 and in a suitable case pass an incidental or supplemental order following the procedure prescribed in the said Code.

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

----O. XXXIX---Interlocutory order, passing of---Object---Object of passing an interlocutory order was to prevent the ends of justice from being defeated.

Muhammad Rafique Javaid v. Muhammad Khalil and 3 others 1999 MLD 1672; Mala v. Hashim and 2 others 1993 SCMR 1960 and Islamic Republic of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 rel.

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

----O.XXXIX, Rr. 1 & 2---Injunction against day to day functioning of public functionary---Legality---Such an injunction could not be granted---Illustration.

Muhammad Ayub and Brothers through Partner v. Province of Sindh through Secretary, Irrigation and another 2009 YLR 348 rel.

(g) Administration of justice---

----Order of court---Personal whims or knowledge of the Judge---Scope---Judge had no right to pass an order on the basis of personal whims or knowledge, no matter how authentic same might be---Courts followed adversarial proceedings, where two parties were before the court and the Judge acted as an umpire---Rights of parties were to be determined in accordance with law and not on basis of personal knowledge or experience or knowhow of the Judge.

(h) Constitution of Pakistan Cricket Board---

----Para. 6---Chairman, Pakistan Cricket Board ("the Board"), appointment of---Qualifications---Government had to prescribe the qualifications for the post of Chairman of the Board---Courts had no authority to prescribe qualifications for the said post.

Zafar Iqbal and another v. Director, Secondary Education, Multan Division and others 2006 SCMR 1427 rel.

(i) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Policy matter of Government, interference in---Executive had to play its own role and the courts could not compel the Executive to adopt a particular course---High Court only had the power to interpret law and had no jurisdiction to take the role of policy maker in the garb of interpretation---Illustration.

Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others PLD 2006 Lah. 482 rel.

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

----S. 152---Correction of error in judgment---Scope---Provisions of S.152, C.P.C. dealing with amendment of judgment were confined to the correction of types of errors mentioned therein---Correction of any other type of error could only be obtained through appeal or review in accordance with law---Error should not be contentious in nature and should be apparent from the record---Errors which required judicious application of mind could not be corrected under S.152, C.P.C. and such error in the order or judgment could only be corrected by resorting to review or appeal.

Habib Bank Limited v. 1st Additional District Judge and others 2005 MLD 1525 and Messrs Noorani Traders v. Civil Aviation Authority 2001 YLR 2277 rel.

(k) Constitution of Pakistan Cricket Board---

----Para. 6---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Petitioner as an "aggrieved person"---Scope---Locus standi of petitioner---Scope---Appointment of respondent as Chairman, Pakistan Cricket Board ("the Board") was challenged before High Court by way of a constitutional petition with the plea that petitioner was a graduate cricketer since 1980, therefore he was an "aggrieved person"---Validity---Petitioner did not have a cause of action to file a constitutional petition---Petitioner was required to establish direct or indirect injury to him and substantial interest in the proceedings---Petitioner had nothing to do with the post of Chairman of the Board---By appointment of respondent as Chairman of the Board, no loss was caused to the petitioner, and no right of his had been infringed---Petitioner was not a contender for the post of Chairman of the Board, so he had no cause of action or locus standi to file a constitutional petition--- Constitutional petition was not maintainable, in circumstances.

Province of Balochistan through Secretary Excise and Taxation Department v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 rel.

(l) Constitution of Pakistan---

----Art. 199---Constitutional petition---"Aggrieved person"---Scope---

"Aggrieved person" was a person, who had suffered a legal grievance; against whom a decision had been pronounced, which had wrongfully deprived him or wrongfully refused him something which he was legally entitled to---Petitioner invoking constitutional jurisdiction of the High Court under Art.199 of the Constitution had to establish that any of his legal or fundamental rights guaranteed under the Constitution had been violated resulting in legal loss.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 rel.

Ms. Asma Jahangir and Muhammad Arfan Ullah Khan for Ministry of Inter Provincial Coordination and Pakistan Sports Board.

Afnan Karim Kundi, Momin Ali Khan and Barrister Adeel Aftab for Chaudhry Muhammad Zaka Ashraf.

Taffazul Haider Rizvi and Barrister Salman Naseer, Manager Legal for Pakistan Cricket Board and Najam Aziz Sethi.

Mian Abdul Rauf, Ch. M. Tanvir Hinjra and Waqar Ahmad for Major (Retd.) Ahmed Nadeem Sadal.

Aftab Gul for Ch. Muhammad Anwar.

Hasnain Ibrahim Kazmi for Applicants (in C.M. No 4932 of 2013).

Ch. Faisal Hussain for Applicant (in C.M. No.4702 of 2013).

Applicant in person (in C.M. No.4848 of 2013)

Abdul Razzaq Rajab for Applicant (in C.M. No.4922 of 2013)

Dates of hearings: 7th November, 12th , 16th and 17th December, 2013.

2014 C L C 1291

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Mst. ZEBA SAMIN ARAIN----Petitioner

Versus

RENT CONTROLLER (WEST), ISLAMABAD and others----Respondents

Writ Petition No.4703 of 2013, decided on 21st February, 2014.

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

----S. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Lease agreement---Scope---Tenant, a Deputy Headmistress---Deduction of house rent allowance by the education department from the monthly salary of an employee---Effect---Contention of tenant was that eviction petition could not be filed till the expiry of lease period---Validity---Lease period was extended up to 26-10-2015 by fixing the rent at Rs.21,000 per month---Rent of Rs.14,110 was to be paid by the education department whereas difference of rent of Rs.6,890 was required to be paid by the tenant from her own pocket---Education department should have followed their earlier correspondence with the new owner with regard to completion of lease period and payment of rent---Education department was also impleaded in the ejectment petition but non-deposit of rent was only burdened upon the tenant rather being a common liability should have been shared by the said department also---New owner after purchase of demised premises accepted the commitments and liabilities incurred over the said premises which was binding upon him including the agreement executed between the previous owner and tenant---Rent Controller directed the tenant to pay Rs.1,47,000 as total arrear of rent and that rent of Rs.21,000 per month be paid of each month---Such directions were contrary to law as same were passed ignoring the responsibility of education department to pay its part of rent---Impugned order of Rent Controller suffered from legal and factual infirmities---Education department was favouring the tenant with regard to extended lease period but later on their attitude changed---Impugned order was set aside and Rent Controller was directed to provide further opportunity of hearing to the parties and pass a fresh order in accordance with law---Constitutional petition was accepted in circumstances.

Arif Majeed for Petitioner.

Ch. Waqas Zameer, M. Yousaf Qureshi, Standing Counsel and Said Akbar, Inspector, FDE for Respondents.

Date of hearing: 12th February, 2014.

2014 C L C 1439

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

MUHAMMAD ZAHID KHAN KHATTAK----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petition No.2647 of 2014, decided on 29th May, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage---Maintainability---Denial of existence of marriage between the parties by the husband---Scope---Wife filed suit for dissolution of marriage wherein husband denied the existence of marriage however Family Court rejected the objection that suit did not fall within the jurisdiction of Family Court---Validity---Where one of the spouses denied existence of marriage then under Part-I of the Schedule at Item No.7 of S.5 of the Act same would amount to jactitation of marriage and was within the exclusive domain of Family Court to decide the dispute---Constitutional petition was dismissed in limine.

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

Abdul Waheed v. Asma Jehangir PLD 2004 SC 219 and Abdul Hamid v. Munaza Fakhar 2006 YLR 2622 rel.

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

Khurram M. Qureshi for Petitioner.

2014 C L C 1630

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

AEROTRON (PRIVATE) LIMITED through Managing Director and 2 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Principal Secretary to the Prime Minister (Chief Executive) and 9 others----Respondents

Writ Petitions Nos.2858, 2868 of 2012 and 2927 of 2013, decided on 27th November, 2013.

(a) Purchase Procedure and Instructions (Revised 2002)---

----Chapter III, para. 22---Constitution of Pakistan, Art.199---Constitutional petition--- Locus standi--- Principal and agent relationship---Petitioners were sole representatives for a foreign company dealing in helicopters---Respondents /Authorities wrote letters to foreign company informing that petitioners were security-wise not clear for any interaction with Army and defence organizations, therefore, foreign company was asked to change its representatives---Validity---Petitioners though were performing as agents of their foreign principals but had no written or oral contract with respondents/ authorities and could not claim any violation on the part of respondents---Petitioners should have agitated against their principal who on the basis of correspondence of respondents/authorities discontinued agreement executed between them---Principals were not made party to proceedings nor any allegation was levelled against them---Petitioners did not seek relief against principals in accordance with law in view of certain terms and conditions of agreement executed in between them---When petitioners had no direct concern with respondents, they could not agitate their grievance against respondents and entire proceedings initiated were futile---When there was no agreement executed between petitioners and respondents, the provisions of law as envisaged by Purchase Procedure and Instructions or Public Procurement Rules, could not be enforced for agitating their rights as they claimed---Petition was dismissed in circumstances.

New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Messrs Nizami Construction Company through sole Proprietor v. Chief Executive Officer, Gujranwala Electricity Company (GEPCO) and 2 others 2005 CLC 366; Messrs United Woollen Mills Ltd. Workers' Union v. Messrs United Woollen Mills Ltd. 2010 SCMR 1475; Ashfaq Hussain v. Government of the Punjab and others 2011 PLC (C.S.) 799; Shahzada Zahir Shah and 6 others v. Muhammad Usman Ghani and 3 others 2005 YLR 1394; Messrs M.A. Aleem Khan through Chairman v. Province of the Punjab PLD 2006 Lah. 84; Atlas Cables (Pvt.) Ltd. v. Quetta Electric Supply Company Ltd. PLD 2011 Quetta 67; Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; The Federation of Pakistan, through the Secretary Establishment Division, Government of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151; Zaka Ullah Bajwa v. District Coordination Officer, Gujranwala and others 2004 PLC (C.S.) 332; Muhammad Mahmood Bawani v. Deputy Controller, Building Zone-B and others 2007 SCMR 1209; Secretary Revenue Division, CBR/Federal Board of Revenue Islamabad v. Gul Muhammad and others 2011 SCMR 295; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; I.C.A No.85 of 2011 titled Mst. Mehboob Mehrbani etc. decided on 2-5-2011; v. Secretary, Ministry of Education Islamabad etc., Khaiid Mehmood v. Collector of Custom, Customs House, Lahore 1999 SCMR 1881; Muhammad Abbasi v. S.H.O. Bharakahu and 7 others PLD 2010 SC 969; Lahore Conservation Society through President and 3 others v. Chief Minister of Punjab and another PLD 2011 Lah. 344; Syed Manzoor Hussain v. Tehsil Nazim, Tehsil Municipal Administration, Tehsil Sarai Alamgir, District Gujrat and 3 others PLD 2010 Lah. 101; BP Pakistan Exploration and Production INC, Karachi v. Additional Commissioner, Inland Revenue-B Enforcement and Collection Division-1, Karachi and another 2011 PTD 647; Writ Petition No.3022 of 2012 titled Iftikhar Ahmed Abbasi v. Senior Superintendent of Police, Islamabad etc., decided on 26-9-2013; Nagina Bibi and others v. Federal Directorate of Education etc. PLJ 2013 Islamabad 33; Amjad Pervaiz v. Inspector-General Railway. Police, Lahore PLJ 2012 Lahore 259; Abdul Rahim Khan v. Managing Director PEPCO, WAPDA House Lahore and 2 others 2011 PLC (C.S.) 1551; Dr. Molazim Hussain Sumro, Medical Superintendent Tehsil Headquarter Hospital, District Bahawalpur v. Special Secretary Health 2011 PLC (C.S.) 1209; Shagufta Begum v. The Income Tax Officer, Circle XI, Zone B, Lahore PLD 1989 SC 360; Niaz Ali and others v. Federation of Pakistan and others 2004 MLD 460 and Dr. Raja Muhammad Kamran v. Shaheer Constructions through Rao Naveed Aftab (Partner) and 3 others 2013 MLD 118 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Show-cause notice---Scope---Issuance of show-cause notice cannot be called in question unless the same yielded some results when a real cause of action accrued to petitioner.

Sikandar Bashir Mohmand, Mustafa Aftab Sherpao and Hamid Ahmad for Petitioners.

Sana Ullah Zahid, D.A.-G.

Tariq Mehmood Jehangiri for Respondents Nos.6, 7, 8 and 9 (in Writ Petition No.2858 of 2012), for Respondents Nos.5, 7 to 9 (in Writ Petition No.2868 of 2012) and for Respondents Nos.6 to 11 (in Writ Petition No.2927 of 2013).

Major M. Sajjad Baig, Assistant Director Legal, Directorate General Procurement (Army).

Dates of hearing: 29th April and 26th November, 2013.

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2014 C L C 5

[Sindh]

Before Syed Muhammad Farooq Shah, J

ABDUL LATIF SHAIKH, ADVOCATE----Applicant

Versus

Messrs WORLD CALL TELECOM LIMITED through Executive Managing Director----Respondent

Revision Application No.141 of 2012, decided on 8th October, 2013.

Suit for damages---

----Mental suffering---Proof---Concurrent findings of fact---Plaintiff sought damages from defendant-company for not providing proper USB for internet---Suit and appeal were concurrently dismissed by Trial Court and Lower Appellate Court---Validity---Plaintiff was a non-technical man and levelled allegations against defendant without adducing any evidence of technical person---Covenants of contract of internet connection obtained by plaintiff was not available on record to show as to what part and clause of contract had been violated by defendant---Both the Courts below correctly observed that damages suffered and quantity of amount claimed under each head could have to be proved by cogent evidence and mere assertion of inflated amount without any corroborative evidence would be of no avail to plaintiff---Damages for mental suffering, mental and physical shock, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, attributable to medical treatment for injury and amount of compensation, varied with intensity of pain and suffering of plaintiff---Mental suffering and psychiatric injury would follow from foreseeable physical injury, could be compensated under the head "pain and suffering" or mental suffering which amounted to recognizable psychiatric illness which required evidence and the same was lacking---No jurisdictional error was noticed and decision of Lower Appellate Court was not so perverse that grave injustice had resulted therefrom---High Court, in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

PIAC v. Paksaaf Dry Cleaners PLD 1981 SC 553; Abdul Ghaffar v. Jamaluddin 1986 CLC 747; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 ref.

Muhammad Nazir Tanoli for Applicant.

Tasawar Ali Hashmi for Respondent.

Dates of hearing: 4th and 24th September and 2nd October, 2013.

2014 C L C 71

[Sindh]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

Mst. NISHAT ISHAQ----Appellant

Versus

AMJAD KHAN and 2 others----Respondents

High Court Appeal No.241 of 2007, decided on 30th October, 2013.

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

----O. VII, R. 11---Rejection of plaint, application for---Factors requiring consideration by Court---Scope---Averments made in plaint only would be taken into consideration.

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

----Ss. 8, 42 & 54---Cooperative Societies Act (VII of 1925), S.70---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, possession of plot and permanent injunction---Plaintiff claimed to be owner of plot located in Cooperative Housing Society---Notice under S.70 of Cooperative Societies Act, 1925 sent by plaintiff to Deputy Registrar of Cooperative Societies---Reply of Deputy Registrar directing plaintiff to approach Civil Court---Private defendant's application under O.VII, R. 11, C.P.C. seeking rejection of plaint on ground that non-delivery of such notice to Registrar resulted into non-compliance with mandatory provision of S.70 of the Act---Validity---Society had not disowned such reply of Deputy Registrar, whereby he had showed inability to resolve dispute between the parties---Society itself had not raised such objection, thus, plaint could not be rejected on basis of such objection raised by private defendant---Plaintiff had raised complicated questions of facts and law in plaint, which could not be decided by Registrar of Cooperative Societies, rather same could be properly decided by Civil Court after recording evidence---Main relief claimed by plaintiff against private defendant could be decided independently on basis of pleadings and evidence of parties---Non-compliance of S.70 of the Act would bar institution of suit against society and its officials, but against private individuals---High Court dismissed such application of private defendant in circumstances.

Lahore Cantt. Cooperative Housing Society v. Messrs Builders and Developers Pvt. Ltd. and others PLD 2002 SC 660; Haji Shafi Muhammad Jamot v. Fisherman Cooperative Housing Society Ltd. and 6 others 1999 MLD 1668; Mst. Qadri Begum v. Province of Sindh, 1999 CLC 2023; Messrs Super Builders v. Gulshan-e-Faisal Cooperative Housing Society and others, 2000 YLR 1385; Muhammad Zaman and others v. Shah Vazir Khan PLD 2002 Pesh. 45; Abdul Ghaffar Mahenti and 2 others v. Kathiawar Cooperative Housing Society Limited and another, 2003 YLR 2635 ref.

Karachi Parsi Cooperative Housing Society Ltd. v. Mrs. Dina S. Hazari and others, 2004 YLR 2071, Mehar Ali Memon v. Federation of Pakistan through Chairman Pakistan Railway and 13 others PLD 2012 Sindh 425 rel.

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

----S. 70---Notice to Registrar before filing of suit---Object and effect stated.

The object of delivery of notice under section 70 of the Cooperative Societies Act, 1925 and making it mandatory is to afford an opportunity to the aggrieved parties in the Cooperative Societies to resolve their disputes through the Registrar of Cooperative Societies the Society before going into litigation.

Section 70 bars the institution of suit only against the Society and its officials and not against private individuals.

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

----S. 70---Civil Procedure Code (V of 1908), O.VII, R.11---Suit against Society and private defendant---Application by private defendant seeking rejection of plaint for non-issuance of notice to Registrar under S.70 of Cooperative Societies Act, 1925 by plaintiff---Validity---Non-compliance of provision of S.70 of the Act would bar institution of suit against Society and its officials, but not against private individuals---Plaint could not be rejected for non-issuance of such notice in absence of objection raised by Society itself in such regard.

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

----O. VII, R. 11 --- Rejection of plaint --- Scope --- Plaint could not be rejected in piecemeal.

Mansoor ul Arfain for Appellant.

Abdul Muqtadir Khan for Respondent No.1.

Saifullah, A.A.-G. for Respondents Nos.2 and 3.

Date of hearing: 24th September, 2013.

2014 C L C 98

[Sindh]

Before Zafar Ahmed Rajput, J

UDHA RAM----Applicant

Versus

MUHAMMAD MEHTAB and another----Respondents

Civil Revision Application No.123 of 2009, decided on 6th September, 2013.

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

----S. 115---Revision petition---Concurrent findings of two courts below---Interference in such findings by High Court---Scope---Powers of High Court in revisional jurisdiction were very limited---Even on reappraisal of the evidence, if a different view was possible, the High Court could not substitute its own view and upset the findings of facts concurrently arrived at by the courts below---Concurrent findings of courts below could only be interfered with if the courts below had misread and misconstrued the evidence on record or had committed any jurisdictional error or any material irregularity and illegality in arriving at such findings---Revision petition was dismissed.

Amjad H. Malik v. Razia Begum 1989 SCMR 1414 distinguished.

(b) Islamic Law---

----Pre-emption---Right of pre-emption---Suit property was not available for sale---Effect---Suit for pre-emption was not maintainable---Revision was dismissed.

(c) Islamic Law---

----Pre-emption---Claim of---Talb-e-Ishhad, performance of---Talb-e-Ishhad was not made on the suit property---Scope---Talb-e-Ishhad must be made in presence of the buyer, or the seller, or on the premises which were the subject-matter of the sale---Talb-e-Ishhad made by pre-emptor at his own house was not in accordance with Islamic law---Omission was fatal to the claim of applicant as pre-emption required strict proof---Right of pre-emption being in the nature of a piratical right had always insisted upon a strict compliance of the law applicable to pre-emption.

Lal Khan's case 1973 SCMR 252 rel.

Rehmat Ali and others v. Muhammad Nazir 1997 MLD 1017 and Jadal v. Abdul Majeed and 2 others PLD 1978 Kar. 732 ref.

Abdul Qadir Shaikh for Applicant.

Shakeel Akhtar Memon and Zafar Eidan Mangi for Respondents.

Date of hearing: 2nd September, 2013.

2014 C L C 117

[Sindh]

Before Salahuddin Panhwar, J

Dr. SAFDAR HUSSAIN and another----Applicants

Versus

MUNAWAR AHMED----Respondent

Civil Revision Application No.66 of 2011, decided on 19th September, 2013.

(a) Islamic law---

----Pre-emption---Suit for possession through pre-emption---Application for rejection of plaint---Scope---Contention of defendant was that cause of action had ceased to exist on account of cancellation of sale-deed and revival of suit-land in favour of original owner---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Exercise of jurisdiction under O.VII, R.11, C.P.C. in the pre-emption suit could only be invoked where the suit did not prima facie establish category of pre-emptor and any failure in performing talbs---Once there was a valid, complete and bona fide sale which had given rise to right of pre-emption to the pre-emptor then defendant could not frustrate such right by any way---Pre-emption could be claimed on the basis of ownership existing at the time of sale and not on the basis of subsequent ownership---Improvement in the status of vendee after institution of suit did not defeat the right of pre-emptor whether same was his intentional act or was natural event---Subsequent cancellation of sale or re-transfer of suit-land or any other attempt made by the vendee-defendant would not affect the right of pre-emption---Impugned sale-deed did not specify whether same was conditional or incomplete---Defendant had failed to point out any illegality or irregularity in the impugned order passed by the Appellate Court---Revision was dismissed.

Fatawa Alamgiri page 192 Vol.V rel.

(b) Islamic law---

----Pre-emption---"Pre-emption suit" and "other suit"---Distinction---Right of pre-emption was a special right and suits for such right were not to be treated as one filed for other rights---Difference between suit for pre-emption and other suit with regard to maintainability was that in the former case the party only had to plead his status and that of having completed requisite formalities to claim title in exercise of right of pre-emption while in the latter the party not only had to establish his status but infringement or denial of any of his right or character; in the former the question of cause of action had to be examined only within the meaning of Islamic Law while in latter within the meaning of C.P.C. and other law; in the former only relief of recovery was available while in the latter multiple reliefs could be sought.

(c) Islamic law---

----Pre-emption--- Pre-emptor--- Categories--- Pre-emptor could be categorized in three categories viz. Shafi-i-Sharik, Shafi-i-Khalit and Shafi-i-Jar---First category of pre-emptor excluded the second and second excluded the third category---Any person within rights of his/her category could avoid introduction of stranger by getting the title of sold property by exercising right of pre-emption.

(d) Islamic law---

----Pre-emption---Right of pre-emption---Object---Object of right of pre-emption was to avoid introduction of stranger and was an exception over absolute right of owner of property to sell the same which was protected and guaranteed by other laws of the land---Such right would accrue only when there was sale and not otherwise---Sale alone would give right to the pre-emptor to exercise right of pre-emption and not otherwise---Sale should be valid, complete and bona fide.

(e) Islamic law---

----Pre-emption--- Right of pre-emption--- Scope--- Sale--- Scope---Agreement to sell was not sale and contract for sale alone would not give rise to right of pre-emption---No suit for pre-emption could be entertained on the basis of "sale agreement"---Possession over a property could not be termed to be a sale---Delivery of possession alone was not sale and same would not give right of pre-emption.

(f) Islamic law---

----Pre-emption---Suit for pre-emption---Grounds of pre-emption must continue until the decree was passed---Scope---Pre-emptor should continue with his right of pre-emption from the date of sale till date of decree---If right of pre-emption had ceased or come to an end before date of decree then suit for pre-emption could not succeed.

Muhammad Saleem Hashmi for Petitioner.

Wali Muhammad Khoso for Respondent.

2014 C L C 134

[Sindh]

Before Irfran Saadat Khan, J

SIDDIK through Legal Heirs----Applicants

Versus

Mst. FATIMA BAI through Legal Heirs----Respondents

Civil Revision Applications Nos.12 and 13 of 1996, decided on 9th October, 2013.

(a) Adverse possession---

----Necessary ingredients---Enumerated.

Following are the necessary ingredients with regard to adverse possession:---

(1) Adverse possession should be open, hostile, which is expressly or impliedly denial of title of true owner.

(2) Mere possession of land howsoever long, would not give a party adverse possession.

(3) Adverse possession should be known to public.

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

----Art. 144--- Adverse possession--- Limitation--- Starting point---Principle---Starting point with regard to adverse possession is the period from when first time it is declared by person holding such possession, openly, widely and in a hostile manner that possession is adverse and is a categorical denial of title of real owner about property in question---Such possession should be for an uninterrupted period of more than 12 years---Possession must be nec vi nec clam nec precario i.e. peaceful, open and continuous.

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

----Ss. 8 & 42---Suit for recovery of possession and declaration---Adverse possession---Plaintiffs sought possession of suit property claiming themselves to be owners and defendants as trespassers---Suit and appeal were concurrently decided in favour of plaintiffs---Validity---Plaintiffs admitted that houses in question were more than 40 years old and were constructed before 1947 and no legal action was taken by plaintiffs against defendant between years 1947 and 1979 i.e. when rent application was filed by plaintiffs against defendants for ejecting them from suit property or restraining them from raising illegal construction on their property---Plaintiffs had to prove that they or their predecessors were at any point of time in possession of suit property---No answers were available to such questions and the same could only be answered after detailed deliberation and recording of evidence in such issues and allowing parties to lead evidence thereon---Plea of limitation and adverse possession were questions of facts and had to be established on record before the Court taking evidence, which was Trial Court---Simple averments and vague statements were not sufficient rather each and every statement made on behalf of defendants and plaintiffs had to be substantiated with cogent material and evidence---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Courts below and remanded the matter to Trial Court to decide issues afresh after providing opportunity to lead further evidence to parties---Revision was allowed accordingly.

Adusumilli Gopalakrishnayya Garu v. Province of Madras AIR (34) 1947 PC 132; Mir Ghaus Bakhsh Bizanjo v. Chief Election Commissioner of Pakistan and others PLD 1969 Kar. 662; Allah Baksh and 4 others v. Dr. Abdul Waheed and another PLD 1996 Kar. 458; Alam Khan Sahib v. A.L.M. Karuppannaswani Nadan and others AIR 1938 Madras 415; Sangam Lal v. Ganga Din and others AIR (33) 1946 All. 389; Official Receiver of East Godavari at Rajahmundry v. Chava Govindaraju and another AIR 1940 Madras 798; Pt. Jai Mangal Teevari and others v. Bindeshuri Singh and others AIR 1940 Oudh 134; Lingamma v. Putte Gowda and another AIR 1963 Maysore 1; Abdul Hamid Khan and others v. Inayat Khan and others PLD 1958 (WP) Lah. 99; Syed Moin Ahmed v. Khondkar Mohiuddin PLD 1969 Dacca 132; Mst. Shah Sultana and others v. Abdul Khaliq and another 1987 SCMR 1791; Syed Hazrat Said v. Capt. Abdur Rasheed 1990 SCMR 114; Afzal Khan and others v. Abdul Fahim and others PLD 1994 Quetta 26; Wazir Khan and others v. Qutab Din and others PLD 2009 SC 95; Kazim Imam Jan v. Muhammad Jawaid and others 2003 CLC 200; Syed Iftikharuddin Haider Gardezi v. Central Bank of India and others 1996 SCMR 669; Nasir Abbas and others v. Manzoor Haider Shah PLD 1989 SC 568; Hyderabad Development Authority v. Abdul Majeed and others PLD 2002 SC 84; Juma Khan v. Mst. Shamim and others 1992 CLC 1022; Province of the Punjab and others v. Ch. Mehraj Din & Company 2003 CLC 504; Imam Dino and others v. Nawaz Ali Shah 2003 CLC 1889; Government of N.-W.F.P. v. Zain Khan PLD 1993 Pesh. 131; Maqbool Ahmed v. Pakistan 1991 SCMR 2063; Messrs Kashmirian (Pvt.) Ltd. v. Ghulam Nabi Gujjar 2006 CLC 482; Muhammad Rafiq v. Muhammad Siddique 2006 MLD 892; Ghulam Sarwar v. Allah Yar Khan 2004 SCMR 1836; Moulvi Noor Ahmed v. Shaikh Abdul Qadeem 1995 SCMR 522; Azizur Rehman v. Ali Haider Shah 1993 CLC (AJ&K) 454; Raja Muhammad Shareef Khan v. Custodian of Evacuee Property 2012 MLD 1311; Mirza Ghulam Hussain v. Ch. Iqbal Ahmed PLD 1991 SC 290; Nazar Khan v. Hassan Begum 2013 MLD 913; Muhammad Siddiq v. Abdul Rehman 2013 CLC 1164; Irshad Ahmed v. Sabiran Bibi and others 1989 SCMR 1672; Malik Muhammad Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428 and Peria Swami v. Peria Thami 1995 SCC 523 ref.

Shabbir Ahmed Shaikh for Applicants.

Muhammad Zahid Khan for Respondents.

Dates of hearing: 13th, 22nd August, 3rd and 9th September, 2013.

2014 C L C 160

[Sindh]

Before Muhammad Shafi Siddiqui, J

Qazi MUHAMMAD ILYAS and 7 others----Applicants

Versus

Qazi MUHAMMAD RAEES and 3 others----Respondents

Civil Revision No.155 of 2011, decided on 18th September, 2013.

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

----O. XVII, R. 3---Applicability of O.XVII, R.3, C.P.C.---Scope---Non-production of evidence by plaintiff despite availing five (5) last/final adjournments and one (1) on payment of cost---Suit dismissed by Trial Court for such failure of plaintiff restored by Appellate Court---Validity---Plaintiff had not challenged factum of having availed such adjournments, rather had pleaded that instead of invoking penal provision of O.XVII, R.3, C.P.C., Trial Court should have dismissed suit for non-prosecution---Provision of O.XVII, R.3, C.P.C. could be applied, if a party had failed to adduce evidence consistently---Plaintiff had wilfully and deliberately remained absent without any explanation---High Court set aside order of Appellate Court in circumstances.

Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673 and Munawar Hussain v. Additional District Judge, Jhelum and 3 others 1998 SCMR 1067 rel.

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

----Ss. 96, 107, 115 & 149---Filing of first appeal without court-fee---Making up deficiency of court-fee---Scope---Payment of court-fee along with application under S.149, C.P.C. made at time of arguments---Order of Appellate Court allowing appellant to pay court-fee---Validity---Time for payment of court-fee could be extended under S.149, C.P.C. before expiry of period of limitation prescribed for filing an appeal, but not thereafter---Delay in filing appeal or payment of court-fee could not be condoned under S.149, C.P.C. after expiry of prescribed period of limitation---Payment of court-fee beyond period of limitation prescribed for filing an appeal would render appeal itself as time-barred---Appellate Court had allowed appellant to pay court-fee when his appeal was barred by limitation---High Court accepted revision petition and set aside impugned order in circumstances.

Mst. Safia Siddiq v. Haji Fazal-ur-Rehman and 2 others, 2009 CLC 262 and Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919 rel.

Jagdish R. Mullani for Applicants.

Shoukat Ali Kaka for Respondent No.1.

2014 C L C 174

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs SHAHBAZ ENTERPRISES through Authorised Officer and another----Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Local Government Department, Karachi and others----Respondents

Constitutional Petitions Nos.D-3737 and D-3981 of 2013, decided on 31st October, 2013.

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

----R. 7---Sindh Public Procurement Rules, 2010, R.17(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Contract awarded by Municipal Corporation for collecting fee from Cattle Piri in Metropolis---Imposition of tax on entrance of cattle in Cattle Piri at Baldia Town through notification issued by Administrator---Validity---Tax imposed through impugned notification was different and distinct from fee being collected by Corporation at Toll Plaza, Super Highway for providing health services to owners of Milching animals in order to avoid their entry and sale/purchase of unhealthy animals in City---Both such levies being charged separately for different purposes under lawful authority could not be regarded as double taxation---High Court dismissed constitutional petition in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---"Aggrieved person"---Public auction---Bidding process was challenged by a person who had not participated in the bidding---Such person could not be considered as an "aggrieved person"---Constitutional petition was dismissed in circumstances.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Concealment of material facts by petitioner---Effect---Such conduct of petitioner would disentitle him from claiming discretionary relief under Art.199 of the Constitution---High Court dismissed constitutional petition in circumstances.

Hassan K. Hashmi for Petitioner.

Malik Khushhal Khan for Petitioner (in Constitutional Petition No.3981 of 2013) and for Respondent No.6 (in Constitutional Petition No.D-3737 of 2013).

S. Sultan Ahmed for Respondent No.2.

Khalid Mehmood Siddiqui, Zaheer-ul-Hassan Minhas and Abdul Hadi for Respondent No.3.

Ch. Muhammad Rafiq Rajuorvi, A.A.-G. for the State.

Date of hearing: 9th October, 2013.

2014 C L C 197

[Sindh]

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

PAKISTAN BROADCASTERS ASSOCATION through Executive Director and 7 others----Petitioners

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and another----Respondents

Constitutional Petition No.D-2633 of 2010, decided on 12th September, 2013.

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

----Ss. 18, 19, 24(4) & 39---Pakistan Electronic Media Regulatory Authority (TV/Radio Broadcast Operations) Regulations, 2002, Regl.9(5)---Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 8---Constitution of Pakistan, Art. 199---Constitutional petition---Licence for operation of TV Broadcast Station or TV network---Demand of surcharge along with annual licence fee by Authority at time of renewal of licence---Validity---Authority could grant a licence subject to payment of levied fee---Term "surcharge" was not used in Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Authority by virtue of Regln.9(5) of Pakistan Electronic Media Regulatory Authority Regulations, 2002 could impose "surcharge" at specified rate on account of late payment of licence fee or renewal of licence fee, but not at time of renewal of licence---Authority had no constitutional power to levy tax under the Regulations--- High Court accepted constitutional petition and cancelled impugned demand.

Province of Sindh v. Messrs Azad Wine shop PLD 2006 SC 528 ref.

(b) Words and phrases---

----"Surcharge"---Definition stated.

Wikipedia ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition based on important question of law of general application---Maintainability---Such question could be raised directly before High Court and constitutional petition was maintainable in circumstances.

Salahuddin Ahmed for Petitioners.

Kashif Hanif for Respondent No.1.

Muhammad Ashraf Mughal, D.A.-G. for Respondent No.2.

2014 C L C 213

[Sindh]

Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ

MUHAMMAD ALI----Petitioner

Versus

ALLAH RAKHIO and 10 others----Respondents

Constitutional Petition No.D-1022 and M.As. Nos.4811 and 4812 of 2013, decided on 4th September, 2013.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Alternate remedy---Factual controversy---Prayer of petitioner was that the respondents be restrained from getting the entry of sale agreement in the record of rights---Validity---Factual controversy existed with regard to genuineness or otherwise of the agreement and entries in the record of rights which could not be determined by exercising constitutional jurisdiction---Said controversy required probe and evidence in proof and disproof which exercise was not permissible in the constitutional jurisdiction---Maintaining of entries in the record of rights was function of Revenue Authorities---Petitioner had alternate remedies before Revenue Authorities and Civil Court---Constitutional petition was not maintainable which was dismissed in limine.

Muhammad Iqbal v. S.A.M. Khan, Member, Board of Revenue, West Pakistan, Lahore PLD 1970 Lah. 614, Wilayat Shah v. District Judge, Kohat 1997 CLC 1796, Fateh Ali v. Province of Balochistan 1997 SCMR 1687; Ijaz Hussain Suleri v. Registrar 1999 SCMR 2381 and KESC Labour Union and another v. Federation of Pakistan and others 2006 PLC 186 rel.

Abdul Hussain A. Junejo for Petitioner.

Date of hearing: 4th September, 2013.

2014 C L C 222

[Sindh]

Before Aftab Ahmad Gorar, J

ZULFIKAR ALI----Applicant

Versus

MUHAMMAD HANEEF----Respondent

Civil Revision Application No.118 of 2005, decided on 17th July, 2013.

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

----S. 53-A---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Part performance of contract---Protection of right of possession of transferee---Scope---Plaintiff in support of his claim had examined attesting witnesses of the sale agreement---Attesting witnesses categorically deposed that sale agreement was executed in their presence and that the plaintiff was already in possession of the said land---Possession of plaintiff was to be protected under S.53-A of the Transfer of Property Act, 1882---Plaintiff was deemed to be in possession of the land in question in part performance of contract.

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

----Arts. 73, 76, 78 & 79---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Scope---Execution of document to sell---Proof---Trial court dismissed the suit for specific performance of agreement to sell filed by plaintiff/ transferee---Appellate court set aside the judgment and decree of trial court and decreed the suit in favour of plaintiff/transferee---Applicant/transferor contended that plaintiff/respondent had failed to produce sufficient oral or documentary evidence to substantiate the execution of agreement to sell in question---Validity---Document/agreement to sell could be proved under Art.73 of Qanun-e-Shahadat, 1984 by its production for the inspection of the court---Execution of document/agreement to sell could be proved under Arts.78 & 79 of the Qanun-e-Shahadat, 1984---Under Art.78 of the Qanun-e-Shahadat, 1984, the signature on the document could be proved by the person who signed it---Article 79 of the Qanun-e-Shahadat, 1984, provided that the execution of the document could be proved through the scribe of the document---Plaintiff had fulfilled the requirements of Qanun-e-Shahadat, 1984 by producing the original document for the inspection of court and examining two attesting witnesses, so also the scribe of the document---Applicant during the cross-examination had remained unsuccessful to shake/shatter the evidence produced by plaintiff---Appellate court rightly passed the decree and judgment in favour of plaintiff---Revision petition was dismissed.

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

----S. 12---Suit for specific performance of agreement to sell---Entries of "khasra girdawari" register---Presumption of truth attached to such entries---Scope---Contention was that the entries in "khasra girdawari" were fictitious---Validity---Applicant having not challenged the entries before the concerned revenue authorities, presumption of truth was attached to the entries of the "khasra girdawari" register until and unless the same were proved to be fictitious and forged and thus, cancelled by the competent authorities.

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

----Art. 59---Opinion of Handwriting Expert---Scope---Contention was that the Court did not appreciate the report of Handwriting Expert which proved that the signatures on the sale agreement were forged one being not of the alleged signatory---Validity---Opinion of the Handwriting Expert was not final word on the subject and it would be dangerous to place implicit reliance on such opinion.

PLD 2005 Quetta 1 rel.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.59---Suit for specific performance of agreement to sell---Determination of genuineness of the signatures on the document (sale agreemnent)---Opinion of Handwriting Expert---Scope---Trial Court while relying on the opinion of Handwriting Expert dismissed the suit for specific performance of agreement to sell---Appellate court set aside the judgment and decree of Trial Court and decreed the suit in favour of plaintiff/transferee---Validity---Trial Court although had obtained the signatures of the applicant/defendant but had not bothered to compare the signatures on the sale agreement---Trial court could have inspected the sale agreement and then would have opined about the genuineness or otherwise of the signatures---Expert opinion was admissible only to aid the Court in forming its opinion and in order to form its opinion the Court was competent to call for such opinion if felt necessary---Court could not come to its own conclusion independently of the expert's opinion after taking into consideration the facts and circumstances of particular case---Attesting witnesses of the sale agreement as well as scribe had fully supported the execution of the sale agreement in their presence and the applicant/other side had not shaken/shattered the evidence---Trial Court ought to have placed reliance on the evidence of these witnesses instead of the report of Handwriting Expert---Trial Court wrongly dismissed the suit---Decree and judgment passed by appellate court was maintained---Revision petition was dismissed.

2004 SCMR 1859 rel.

1992 CLC 140; 1990 CLC 60; 2011 CLC 309; 1977 SCMR 433; 1994 SCMR 583; 1993 SCMR 238; 1993 CLC 747; 1993 MLD 401; 2006 CLC 779 and 1995 SCMR 1237 ref.

Kashif Paracha for Applicant.

Jhamat Jethanand for Respondent.

Date of hearing: 17th April, 2013.

2014 C L C 261

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Mirza AFZAL BAIG----Appellant

Versus

MUDABBIR ALI KHAN and others----Respondents

High Court Appeal No.4 of 2012, decided on 11th October, 2013.

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

----O. I, R. 10---Necessary and proper parties---Scope---Necessary party is one, without whom no proper order can be made effectively, whereas proper party is one, in whose absence, although effective order can be made but presence of such party is necessary for complete and final adjudication of questions involved in any proceedings---Addition of parties is generally not a question of initial jurisdiction of Court---Such is the judicial discretion of Court, which has to be exercised after examining peculiar facts and circumstances of each case.

Ghulam Ahmad Chaudhry v. Akbar Hussain through legal heirs and others PLD 2002 SC 615 rel.

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

----O. I, R. 10---Specific Relief Act (I of 1877), S.12---Law Reforms Ordinance (XII of 1972), S.3---Suit for specific performance of agreement to sell---Intra-court appeal---Necessary party---Principles---Suit was filed in year, 2005 and appellant filed an application in year, 2008, for impleading as necessary party---Contention of appellant was that he was in possession of suit property, while plaintiff and defendant in collusion and in order to deprive him of his valuable rights in suit property filed the suit---Validity---While considering application under O.I, R.10, C.P.C. the Court had to minutely examine peculiar facts of each case and after satisfying as to whether or not an applicant had made out a case to be impleaded as party, either as plaintiff or as defendant, as the case might be, could pass necessary orders by allowing or refusing such request---Appellant was not stepping into the shoes of defendant nor of substitution as defendant, who was contesting suit filed by plaintiff---Defendant had filed written statement, wherein he accused plaintiff of even forging his signatures---Division Bench of High Court, at such stage, declined to give any observation that there was any element of collusion or connivance between plaintiff and defendant, as alleged by appellant and nothing had been brought on record to show so as to corroborate such allegation---Order passed by Single Judge dismissing application of appellant did not suffer from any factual or legal error---Single Judge had exercised discretion vested in it properly by keeping in view peculiar facts and circumstances of the case---Division Bench declined to interfere in order passed by Single Judge---Intra-court appeal was dismissed in circumstances.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Shahnawaz v. Abdul Ghafoor and others 2008 SCMR 352; Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590; UZIN Export Import Enterprises for Foreign Trade Karachi v. Union Bank of Middle East Limited PLD 1994 SC 95 distinguished.

Bibi Zubaida Khatoon v. Amichand Aggarwal AIR 2004 SC 173; Messrs Vidur Impex and Traders (Private) Limited and others v. Tosh Apartments (Private) Limited AIR 2012 SC 2925; Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay (1992) 2 SCC 524; Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC 147; Mumbai International Airport (P) Limited v. Regency Convention Centre and Hotels (P) Limited AIR 2010 SC 3109; Kasturi v. Iyyamperumal AIR 2005 SC 2813 and Savitri Devi v. D.J. Gorakhpur AIR 1999 SC 976 ref.

Mirza Adil Baig for Appellant.

Imran Ahmed for Respondent No.1.

Date of hearing: 21st September, 2013.

2014 C L C 322

[Sindh]

Before Muhammad Ali Mazhar, J

Mrs. SHABEENA FARHAT----Plaintiff

Versus

Messrs HIGHWAY HOUSING PROJECT and 2 others----Defendants

Suit No.119 of 2006 and C.M.A. No.3077 of 2009, decided on 28th August, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XII, R.6---Suit for specific performance of agreement to sell---Decree on admission---Principle---Written statement, consideration of---Plaintiff filed application for passing of decree in her favour on the basis of admission made by defendant company in its written statement---Validity---Admission must be taken as a whole and it was not permissible to rely on a part of admission ignoring the rest---Plaintiff asserted on the basis of statement of defendant company that it had agreed to execute lease but on the other hand plaintiff ignored remaining part of statement which showed that it was merely an offer for resolution of entire controversy by way of amicable solution---Court could not accept one portion of written statement as admission while ignoring rest of the statement where it had refuted claim of plaintiff---Neither written statement filed by defendant company nor subsequent statement filed by it in Court could be treated unqualified, unconditional, clear, specific and or unambiguous or unequivocal admission---Application was dismissed in circumstances.

G.R. Syed v. Muhammad Afzal 2007 SCMR 433 and Mrs. Haseena v. Mrs. Shafqat Malik 2001 CLC 1224 ref.

Syed Waqar Haider Zaidi v. Mst. Alam Ara Begum 2013 CLC 535; Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Kar. 75; Wazedunnessa Khatun v. Daliladdin alias Dalu and others 1971 DLC 703; Messrs Gerry's International (Pvt.) Ltd. v. Messrs Qatar Airways PLD 2003 Kar. 253 and Dudh Nath v. Suresh Chandra AIR 1986 SC 1509 rel.

Badar Alam for Plaintiff.

Abdul Qadir Khan for Defendants.

Date of hearing: 22nd April, 2013.

2014 C L C 335

[Sindh]

Before Muhammad Ali Mazhar and Sadiq Hussain Bhatti, JJ

M.Q.M. and others----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

Constitutional Petitions Nos.D-5098, 4559, 4463, 4521, 4803, 5023, 5080, 5091, 5104, 5172, 5294, 5329, 5369, 4724, 4763, 5325 and 5404 of 2013, decided on 26th December, 2013.

(a) Words and phrases---

----"Gerrymandering"----Meaning---Gerrymandering was a practice in the process of setting electoral districts that attempted to establish a political advantage for a particular party or group by manipulating district boundaries to create partisan advantaged districts---Resulting district was known as a "gerrymander", however, said word could also refer to such a process--When used to allege that a given party was gaining disproportionate power, the term "gerrymandering" had negative connotations.

Ref: http://en.wikipedia.org/wiki/Gerrymandering ref.

(b) Delimitation of Constituencies Act (XXXIV of 1974)---

----S. 9---"Delimitation of electoral districts"---Meaning and principles---"Gerrymandering"---Meaning---Boundary delimitation was the drawing of boundaries, particularly of electoral precincts, states, counties or other municipalities, and in the context of elections, it could be called redistribution in order to prevent unbalance of population across districts---Unbalanced or discriminatory delimitation was called "gerrymandering"---Electoral districts were delimited in different ways; sometimes they were drawn based on traditional boundaries, sometimes based on the physical characteristics of the region and, often, the lines were drawn based on the social, political and cultural contexts of the area---Delimitation was a serious business which could not be done in a slipshod manner or in spur of the moment but it required hectic and strenuous efforts.

(c) Interpretation of statutes---

----Proviso to a section---Scope and function---Proviso attached to any section could not be read in isolation---Powers given in the proviso could not be uncontrolled or independent to the original section---Normal function of a proviso was to except something out of the enactment or to qualify something enacted therein, which but for the proviso would be within the purview of the enactment---When the enacting portion of a section was not clear a proviso appended to it might give an indication as to its true meaning.

(d) Interpretation of statutes---

----Intention of legislature---Determination---Intention of the legislature was primarily to be gathered from the language used, which meant that attention should be paid to what had been said as also to what had not been said---Words of a statute were first understood in their natural, ordinary or popular sense and phrases and sentences were construed according to their grammatical meaning, unless that led to some absurdity or unless there was something in the context, or in the object of the statute to suggest the contrary.

(e) Interpretation of statutes---

----'Proviso', 'Exception' & 'Saving Clause'---Distinction---'Exception' was intended to restrain the enacting clause to particular cases; 'Proviso', was used to remove special cases from the general enactment and provide for them specially; and 'Saving Clause' was used to preserve from destruction certain rights, remedies or privileges already existing.

Principles of Statutory Interpretation (Fourth Edition) 2006 by Justice G.P. Singh ref.

(f) Constitution of Pakistan---

----Pt. II, Ch. 1---Fundamental Rights---Characteristics, scope and enforcement---Any right safeguarded by a Constitutional guarantee was called a 'Fundamental Right', which placed it beyond the power of any organ of State, whether, Executive or Legislative to act in violation of it---Such a right could not be taken away, suspended or abridged---Fundamental Right guaranteed by the Constitution could not be annihilated or taken away in the garb of reasonable restrictions---Fundamental Rights were natural rights which were personal to the individual as a citizen of a free and civilized community---Essential characteristic of Fundamental Rights was that they imposed limitations, express or implied, on public authorities from interfering with their exercise---Courts were duty bound to protect Fundamental Rights granted in the Constitution.

(g) Constitution of Pakistan---

----Pt. II, Ch. 1 [Arts.8 to 28] & Art.199---Fundamental Rights, enforcement of---Jurisdiction of High Court under Art.199 of the Constitution---Scope---Article 199 of the Constitution empowered the High Court to issue any appropriate directions for the enforcement of Fundamental Rights conferred by the Constitution.

(h) Constitution of Pakistan---

----Arts. 25, 184(3) & 199---Discrimination---Connotation---Reasonable classification--- Scope--- Judicial review--- Scope--- Discrimination against a group or an individual implied making an adverse distinction with regard to some benefit, advantage or facility---Discrimination thus involved an element of unfavourable bias---Act was discriminatory only when it was improper or where there was capricious exercise or abuse of discretionary authority, and the person against whom that discretion was exercised faced certain appreciable disadvantages which he would not have faced otherwise---Article 25 of the Constitution enshrined the basic concept of religion of Islam by providing that all citizens were equal before law and were entitled to equal protection of law, however, the above clause did not prohibit treatment of citizen on the basis of reasonable classification---Under Art.25 of the Constitution, reasonable classification was not prohibited but it was required that all persons similarly placed should be treated alike---When no standard was provided to avoid the violation of equality clause, the court could judicially review to see whether or not the powers delegated had been exercised arbitrarily---When a provision of statute was pressed into service in a discriminatory manner, it was liable to be struck down on the ground of violation of Art.25 of the Constitution.

(i) Vires of statute---

----"Void ab inito"---Scope---Courts generally leaned towards upholding the constitutionality of a statute rather than destroying it, however if a statute was ex facie discriminatory or capable of discriminatory application or violated any provision of the Constitution, it may be declared void ab initio since its inception.

(j) Administration of justice---

----Judiciary, function of---Function of judiciary was not to legislate or question the wisdom of legislature in making a particular law nor could it refuse to enforce a law even if it nullified its own decision.

(k) Vires of statute---

----Principles--- Doctrine of severability--- Scope--- Doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire act void.

(l) Sindh Local Government Act (XLII of 2013)---

----Ss. 10, 11, 12, 13, 16, 18(12) & (14) & 33---Sindh Local Councils (Election) Rules, 2013, Rr. 8, 9 & 10---Delimitation of Constituencies Act (XXXIV of 1974), Ss.3, 9, 10 & 10A---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Discretion of court to ignore an illegality in the national interest---Scope---Delimitation of electoral units carried out by Government of Sindh ("Provincial Government") for Local Government elections---Delimitation process was carried out illegally and was also violative of certain Articles of the Constitution---Plea on behalf of Provincial Government that date of local body elections was very near and if any wrong or violation of law was committed even then the court might ignore such illegality---Validity---Such plea was of no relevance as subject of present petition was vires of law under which elections of the Local Government were to be conducted---During the delimitation process besides committing lapses in the constitutional mandate, independent candidates were ousted from contesting the elections unless they formed a panel---Such ouster could not be considered a reasonable classification made in the law---Entire delimitation exercise carried out by the delimitation officers was conducted in violation of Ss.10, 11, 12 & 13 of the Sindh Local Government Act, 2013 and the guidelines issued by the Provincial Government---Consequently High Court set aside the final delimitation proposals for different divisions published in official Gazette---Constitutional petition was allowed accordingly.

Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 distinguished.

(m) Sindh Local Government Act (XLII of 2013)---

----Ss. 10, 11, 12, 13, 16, 18(12) & (14) & 33---Sindh Local Government (Third Amendment) Ordinance (XV of 2013), Ss.3, 4 & 8---Sindh Local Councils (Election) Rules, 2013, Rr.8, 9 & 10---Delimitation of Constituencies Act (XXXIV of 1974), Ss.3, 9, 10 & 10A---Constitution of Pakistan, Art.199---Constitutional petition---Delimitation of electoral units for Local Government elections---Procedural or directory requirement---Substantial compliance as opposed to strict compliance---Scope---Government of Sindh ("Provincial Government") carried out the delimitation process after making amendments in the Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013---Plea on behalf of Provincial Government that there might be certain difficulties or deficiencies in the amendments but if such difficulties did not materially affect the election process and in case procedural and directory requirements were substantially complied with, then violation of law, if any, might be ignored as the date of Local Government elections was fast approaching---Validity---Lapses in the delimitation process and the effect of Sindh Local Government (Third Amendment) Ordinance, 2013 had far reaching adversative effects which could not be considered mere directory, thus the question of substantial compliance, either partial or impartial did not arise when the amendments were ab initio void and/or in derogation of the law and the constitutional mandate---Amendments made in the Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013 were struck down consequently---Constitutional petition was allowed accordingly.

Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal and others (2011) 1 Supreme Court Cases 236 distinguished.

(n) Sindh Local Government Act (XLII of 2013)---

----Ss. 10, 11, 12, 13, 16, 18(12), (14), 33,34, 35, 36, 153A & Sched.1, Pt. C---Sindh Local Government (Third Amendment) Ordinance (XV of 2013), Ss. 3, 4 & 8---Sindh Local Councils (Election) Rules, 2013, Rr.8, 9 & 10---Delimitation of Constituencies Act (XXXIV of 1974), Ss.3, 9, 10 &10A---Constitution of Pakistan, Art.17, 25, 140A, 218, 219 & 199---Constitutional petition---Vires of amendments made in the Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013---Delimitation of electoral units for Local Government elections---Delimitation process carried out by the Government of Sindh ("Provincial Government") for various Union Committees, Union Councils, Town Committees, Municipal Committees, Municipal Corporation and Metropolitan Corporation(s) in the Province of Sindh--- Constitutionality--- Government of Sindh ("Provincial Government") vide a notification appointed Deputy Commissioners of respective districts as delimitation officers in respect of local councils---Subsequently guidelines for delimitation of constituencies were also issued---Although it was provided in the said guidelines that the delimitation officers could seek assistance in the delimitation work from the Assistant Commissioners, Mukhtiarkars and other relevant officers in the district but nothing was provided to maintain transparency in the delimitation process or to make it foolproof or watertight---Similarly said guidelines did not provide that delimitation officers may hold inquiries and summon witnesses for the purposes of making the delimitation exercise fair and transparent---Almost all the petitioners had challenged the delimitation process as being sham, mock or non-transparent and pleaded that their objections were not considered by the delimitation officers nor any ample opportunity was afforded to them---Delimitation officers were appointed on 26-9-2013 and the guidelines for delimitation were issued much earlier on 19-8-2013 but the Provincial Government promulgated Sindh Local Councils (Election) Rules, 2013 on 27-11-2013---Although said Rules were primarily germane to the election and contained provisions dedicated to the delimitation of electoral units, but in the said Rules neither the earlier notification appointing delimitation officers nor the guidelines issued were protected---Rule 8 of Sindh Local Councils (Election) Rules, 2013 provided that for the purposes of election a local area shall be divided into electoral units keeping in view the number of seats of the council and the population of the local area; that electoral units within the area shall be delimited having regard to the territorial unity and as far as practicable to distribution of population---Rule 9 of Sindh Local Councils (Election) Rules, 2013 provided that the delimitation officer shall arrange preliminary list of the units delimited together with a notice inviting objections or suggestions---Crucial exercise of carrying out inquiry, summoning of witnesses or recording of evidence was not carried out by delimitation officers prior to submitting the final delimitation proposal and such lapses became the root cause of the allegations of gerrymandering against the Provincial Government---During delimitation process lapses and irregularities were committed when certain rural areas were included in urban areas, which was a glaring contravention of S.13 of Sindh Local Government Act, 2013---Proviso was added to said S.13 by virtue of S.3 of Sindh Local Government (Third Amendment) Ordinance, 2013, to cover up irregularities, deficiency and violations during the delimitation process and an attempt had been made to cover up and protect non-compliance with S.13 of Sindh Local Government Act, 2013---Proviso in question was also discriminatory and illegal and was made to circumvent the original text of S.13---Proviso in question provided protection with retrospective effect to illegalities committed by delimitation officers, therefore it was unconstitutional, since it made it impossible to hold fair and free elections in terms of S.34 of the Sindh Local Government Act, 2013 and under Arts.218 & 219 of the Constitution---Proper population criteria was also not followed during the delimitation process---Prior to amendment made by S.8 of Sindh Local Government (Third Amendment) Ordinance, 2013, population limit/figure of union committee in metropolitan corporation was between 40,000 to 50,000 but after the amendment said figure was substituted with a figure of "10,000 to 50,000"---Said amendment was made on 13-12-2013 whereby a crucial fluctuation and change in the population was made but the final delimitation proposals for certain divisions submitted by the Commissioners were published in the official gazette on 13-11-2013, which showed that said amendment too was made to protect the defects of delimitation officers by giving it retrospective effect---Such fluctuation in population figures ranging from 10,000 to 50,000 was totally discriminatory, unrealistic and made without any justification, which gave rise to allegations of gerrymandering---During delimitation process names of certain Union Councils/Committees were unlawfully changed, in contravention of S.16 of the Sindh Local Government Act, 2013---By virtue of S.4 of Sindh Local Government (Third Amendment) Ordinance, 2013, subsections (12) & (14) were added into S.18 of Sindh Local Government Act, 2013 and a mandatory condition for formation of panel was imposed---Said amendments provided that there shall be a panel consisting of nine contesting candidates, including general members, woman, peasant or labourer and non-Muslim for contesting election in a union council or a union committee as the case might be; that in case a political party or independent candidates failed to form a panel for contesting election the nomination papers of all other independent candidates or nominees of a political party shall be deemed to have been rejected---Through said amendments an independent candidate who might be pious, competent, person of integrity and was entitled to contest local bodies election was ousted, which was a sheer violation of Ss.35 & 36 of Sindh Local Government Act, 2013, wherein no condition of panel was attached---Said amendments were also opposed to Arts.17 & 25 of the Constitution---Election through panel was also in conflict with the proviso to S.33 of Sindh Local Government Act, 2013, by which an independent candidate could contest the election and thereafter, at his own will, he might or might not join any party---High Court declared that entire delimitation exercise carried out by the delimitation officers was in violation of Ss.10, 11, 12 and 13 of the Sindh Local Government Act, 2013 and the guidelines issued by the Provincial Government, and consequently, the final delimitation proposal published in official gazette for certain divisions was set aside; that Local Government elections in the Province may be conducted on 18-1-2014 on the position which existed prior to the delimitation process started in the year 2013; that if the Provincial Government was of the view that the exercise of delimitation was necessary prior to Local Government elections then it may make a request to the Supreme Court and the Election Commission for extension in the date of election; that if the date of elections was extended by the Supreme Court and Election Commission for delimitation purposes, then it was suggested that an independent commission or body be formed by the Provincial Government with proper rules and the procedure to deal with the objections and also to provide an independent forum of an appellate authority to hear and decide the appeals in the delimitation cases; that amendments made in Sindh Local Government Act, 2013 through Ss.3, 4 & 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 were violative of Ss.12, 13, 34, 35, 36 & 153-A of the Sindh Local Government Act, 2013 and also opposed Arts.17, 25, 140A, 218 & 219 of the Constitution, and were consequently struck down---Constitutional petition was allowed accordingly.

White v. Weiser 412 U.S. 783 (1973) ref.

Mahan v. Howell 410 U.S. 315 (1973) ref.

Dr. Muhammad Farogh Naseem for Petitioner (in C.P. No.D-5098 of 2013).

Petitioner in person (in C.P. No.D-4559 of 2013).

Muhammad Mansoor Mir for Petitioner (in C.P. No.D-4463 of 2013).

S. Mureed Ali Shah for Petitioner (in C.P. No.D-4521 of 2013).

Narain Das Motiani for Petitioner (in C.P. No.D-4803 of 2013).

Abdur Rehman for Petitioner (in C.P. No.D-5023 of 2013).

Iqbal Qadri for Petitioner (in C.P. No.D-5080 of 2013).

Khizar A. Zaidi for Petitioner (in C.P. No.D-5091 of 2013).

Muhammad Aslam Bhutta for Petitioner (in C.P. No.D-5104 of 2013).

Inayatullah G. Morio for Petitioner (in C.P. No.D-5172 of 2013).

Abdur Rehman for Petitioner (in C.P. No.D-5294 of 2013).

Abrar Hassan for Petitioner (in C.P. No.D-5329 of 2013).

M. Waseem Sammo for Petitioner (in C.P. No.D-5369 of 2013).

M. Mehboob Awan for Petitioner (in C.P. No.D-4724 of 2013).

Muhammad Mehboob Awan for Petitioner (in C.P. No.D-4763 of 2013).

Moharram G. Balouch for Petitioner (in C.P. No.D-5325 of 2013).

Syed Yasir Ahmed Shah for Petitioner (in C.P. No.D-5404 of 2013).

Khalid Javed Khan, A.-G., Sindh, Sibtain Mehmood, A.A.-G., Abdul Jalil Zubedi, A.A.-G., along with Mustafa Sohag, Deputy Secretary and Akhlaq Ahmed Section Officer, Local Government Department, Asadullah Abro, Dy. Commissioner, Kamber/Shahdad Kot, Agha Shahnawaz, Dy. Commissioner, Thatta, Gul Muhammad Kurijo, Asstt. Commissioner Garabari, Abdul Aleem Lashari, Dy. Commissioner, Shaheed Benazirabad, Ghulam Farooq Leghari, Asstt. Commissioner, District Central and Ghaffar Ali Abbasi, Asstt. Mukhtiarkar, Karachi Central for Respondents.

Muhammad Zahid Khan, Deputy Attorney-General, along with Muhammad Najeeb, Joint Provincial Election Commissioner, Sindh, S. Rashid Hussain, Election Officer and Asadullah Hanjra, Law officer, Election Commission.

Ahmed Ali Ghumro for Interveners (in C.P. No.D-4803 of 2013).

Shahnawaz Dahri for Interveners (in C.P. No.D-4763 of 2013).

Mirza Sarfraz Ahmed for Interveners (in C.P. No.D-5369 of 2013).

Dates of hearing:19th, 20th, 23rd and 24th December, 2013.

2014 C L C 420

[Sindh]

Before Nazar Akbar, J

Mrs. SHABINA AZIZ----Plaintiff

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN----Defendant

Suit No.433 of 2000 and C.M.A. No.7439 of 2010, decided on 10th October, 2013.

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

----O. XVI, R. 1(2)---Limitation Act (IX of 1908) S.3---Summoning and attendance of witnesses---Object, scope and nature of O.XVI R.1, C.P.C.---List of witnesses, non-filing of---Provisions of O.XVI, R.1, C.P.C. were mandatory---Use of the word "shall" in O.XVI, R.1(1), C.P.C. was re-emphasized with a prohibition that the party "shall not" be permitted to call witnesses other than those in the said list except with the permission of the court on showing "good cause" for the omission of said witnesses from the list---Time limit was an essential requirement of O.XVI, R.1, C.P.C. for seeking any relief with respect to summoning and attendance of court witnesses---Limitation of seven days was imposed so that the other side should be well aware of possible evidence expected in the case to meet it in rebuttal---Such limitation, if was allowed to be flouted with impunity, then the parties would keep on surprising each other by introducing witnesses and documents in evidence---After seven days from the time of framing of issues, upon failure to file list of witnesses, a statutory right was accrued in favour of opposite party which was; that even if evidence was available with a party such evidence shall not be used by the party having such evidence in their possession---Said right was analogized to the right of parties under S.3 of the Limitation Act, 1908---Rights survived but the remedy was extinguished---Evidence may be available but its effect was barred seven days after framing of issues by the court---Not only the "good cause" had to be shown by the delinquent party for calling a witness through the court but at the same time the applicant was required to explain the delay in disclosing the name of the witness---Failure of party to explain such delay would disentitle such party from getting relief and it would be against the spirit of the law to causally condone the time limit given in O.XVI, R.1, C.P.C. in the name of doing justice on merit.

Muhammad Umar Mirza v. Waris Iqbal and others 1990 SCMR 964; 2008 YLR 1871 and 2008 CLC 1334 rel.

(b) Administration of Justice---

----Submission of irrelevant case-law by counsel appearing in court---Complaint of overwork in the judiciary was one of the basic obstacles in the administration of justice and it was not for the courts alone to administer justice and ensure that justice was not denied on account of inordinate delay in the disposal of cases---Each and every lawyer appearing in court had an equal responsibility to ensure that they should not consume the time of the court out of proportion to the issue in hand on the date of hearing---Very valuable time of the court can be consumed in the reading of case-law submitted by counsel and if such case-law was not relevant, it was one of the major contributing factor in the delay of administration of justice----Counsel were expected to be brief and to the point to help save time of the courts which in turn would utilized by the courts in disposal of other cases particularly the old cases.

S. Mazhar-ul-Haq for Plaintiff.

Muhammad Aziz Khan for Defendant.

Date of hearing: 4th September, 2013.

2014 C L C 442

[Sindh]

Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ

MUHAMMAD SIDDIQUE----Petitioner

Versus

DISTRICT JUDGE, JACOBABAD and 3 others----Respondents

Constitutional Petition No.D-1155 and MA. No.5628 of 2013, decided on 9th October, 2013.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Constitution of Pakistan, Art.199---Constitutional petition---Necessary party, impleading of---Limitation---Scope and application of O.I, R.10, C.P.C.---Defendant was aggrieved of order passed by Lower Appellate Court, allowing plaintiff to array revenue officials as defendants---Plea raised by defendant was that the application was moved by plaintiff at a belated stage when his evidence was closed---Validity---Allowing any party to be joined or substituted as party was discretionary with Court and such discretion was to be exercised depending upon facts and circumstances of the case guided by rules of propriety and justice---Impleading of a party, under O.I, R.10, C.P.C. at any stage meant and sufficed for its impleading for all subsequent stages of suit---Scope of O.I, R.10, C.P.C. was very wide and it was to be exercised liberally and no technical hurdle was to be considered so strong as to override the considerations of "adjudication" or right to justice and no question of limitation was involved in impleading or transposing any person as party---Evidence of plaintiff was recorded and matter had not been finally decided before Trial Court, therefore, contention of defendant could not be made basis against the order of Lower Appellate Court who failed to raise any question of law---High Court declined to interfere in the order passed by Lower Appellate Court---Petition was dismissed in circumstances.

Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590 rel.

Muhammad Aslam H. Jatoi for Petitioner.

2014 C L C 484

[Sindh]

Before Munib Akhtar, J

NOORULLAH KHAN and others----Plaintiffs

Versus

Mst. KISHWARI BEGUM through L.Rs. and others----Defendants

C.M.A. No.11775 of 2011 in Suit No.1473 of 2008, decided on 26th August, 2013.

Limitation Act (IX of 1908)---

----Art. 127---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XX, R.13---Exclusion from joint family property---Scope---Administration suit---Limitation---Application for rejection of plaint---Article 127 of Limitation Act, 1908 applied to joint family property---Scope of such provisions could not extend to Muslims in the context of legal heirs holding shares in the estate of deceased---Estate of deceased Muslim would devolve on the legal heirs at the moment of his death as per their respective shares---Legal heirs were co-owners of the estate but were not joint owners---Interest of each legal heir in the estate was separate and same was not joint property---Suit was not barred in terms of Article 127 of Limitation Act, 1908 therefore, application for rejection of plaint was dismissed.

Saran v. Abdul Rashid and others PLD 1950 Sind 131; Jeevenbai Nadishaw Golwalla (through legal heirs) v. Darab Burjorji Golwalla and others 1981 CLC 503 and Kaleem Hyder Shah v. Mehmooda Begum and others 2006 YLR 599 distinguished.

Asif Khan for Plaintiffs.

Sarfraz Ali for Defendants Nos.1(d-e), 3(e)(vi), 3(f)(i-iv), 3(i) and 3(j)(i-v).

Ms. Faima Khalid for Defendants Nos.1(a-h).

Date of hearing: 20th August, 2013.

2014 C L C 492

[Sindh]

Before Muhammad Shafi Siddiqui, J

AKHLAQUE KHAN----Petitioner

Versus

MUHAMMAD JAVAID SHAIKH and 2 others----Respondents

Constitutional Petition No.S-679 of 2010, decided on 11th October, 2013.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Title of demised property on the basis of agreement to sell---Scope---Ejectment application and appeal filed by landlord were dismissed by Rent Controller and Lower Appellate Court respectively, on the ground that there was no relationship of landlord and tenant between the parties and possession of tenant was on the basis of agreement to sell---Validity---Agreement of sale did not create any title, therefore, without determination of such title by Civil Court, findings of Rent Controller were pre-matured and resulted into miscarriage of justice---Tenant could not prove execution of sale agreement as suit for specific performance was dismissed and no appeal was preferred---Rent Controller on the basis of mere agreement of sale could not hold that there existed no relationship of landlord and tenant unless a suit for specific performance was decreed by civil court---No clause of agreement could be relied upon, when the agreement itself was not proved by tenant as suit for specific performance was dismissed---Petition was allowed in circumstances.

Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925; Niaz Mohy-ud-Din v. Muhammad Yar 1994 CLC 1628; Sh. Abdur Rashid v. Sh. Mubarik Ali and others 1994 CLC 1617 and Hikmat Khan v. Shamsur Rehman 1993 SCMR 428 distinguished.

Aleem-ud-din v. Muhammad Saleem 1991 SCMR 850; Kassim v. S. Rahim Shah 1990 SCMR 647 and Sh. Manzoor Ahmad v. Mst. Iqbal Begum 1989 SCMR 949 rel.

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

----S. 53-A---Part performance of agreement of sale---Scope---Provision of S.53-A of Transfer of Property Act, 1882, is recognized as defence against suit for possession filed by purported owner---Person occupying premises in part performance of agreement of sale can defend his possession pursuant to S.53-A of Transfer of Property Act, 1882.

Arshad S. Pathan for Petitioner.

Rafiq Ahmed for Respondents.

Date of hearing: 3rd October, 2013.

2014 C L C 506

[Sindh]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

MUHAMMAD USMAN----Petitioner

Versus

MUHAMMAD NASEEM and others----Respondents

Constitutional Petitions Nos.D-103, D-224 and D-9 of 2011, decided on 25th November, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition involving intricate, contested and complicated questions of facts---Jurisdiction of High Court to resolve such questions---Scope---High Court in its constitutional jurisdiction, could not resolve such questions by recording evidence---Principles.

High Court in exercise of constitutional jurisdiction cannot ordinarily embark upon an exercise to determine intricate, contested and complicated questions of fact. Resolution of such factual disputes has to take place through ordinary legal process. This extraordinary jurisdiction is primarily meant for providing expeditious remedy in a case when the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Whereas the facts of present petitions reveal that to probe into serious allegations of alleged misappropriation of millions of rupees and plots, detailed investigation/evidence would be required, which cannot be undertaken while sitting in exercise of constitutional jurisdiction.

Petitioners in person.

Ansar Ahmed and Rizwan Nadeem and Saifullah, A.A.-G. for Respondents.

Date of hearing: 10th October, 2013.

2014 C L C 524

[Sindh]

Before Abdul Maalik Gaddi, J

SHAKEEL AHMED----Petitioner

Versus

Mst. KAUSAR PARVEEN and others----Respondents

Constitutional Petitions No.S-1431 of 2011, decided on 20th September, 2013.

(a) Administration of justice---

----Law would help vigilant not indolent.

1999 SCMR 1326 and 2009 CLC 420 rel.

(b) Administration of justice---

----Who seeks equity, must do equity.

(c) Administration of justice---

----Equity moves in the aid of law and not to defeat the law.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition--- Suit for maintenance---Ex parte judgment, setting aside of---Scope---Suit for maintenance allowance filed by wife was decreed ex parte---Petitioner-husband aggrieved by the ex parte judgment filed application for setting aside ex parte judgment and decree---Application was dismissed by trial Court and the appellate Court maintained the order passed by Trial Court---Contention of the petitioner/husband was that he had no knowledge about the pendency of case and he was entitled to get an opportunity to contest the case on merit---Validity---Claim of the petitioner/husband was based upon false plea that he was not served with summonses/notices, which was not supported from the record---Equitable relief could not be granted to person, foundation of whose claim was based upon illegality---Petitioner/husband had approached the Court with unclean hands, as he suppressed the fact that he had served twice through bailiff in the trial Court, therefore he was not entitled to any relief---Respondent was wife of the petitioner, therefore she filed the case for maintenance before trial Court and under the Islamic Law the husband was duty bound to maintain his wife, which was neglected by the petitioner---Constitutional petition was dismissed.

2006 YLR 549 distinguished.

Mrs. Meena Devi for Petitioner.

Faiz Muhammad Larik for Respondent No.1.

Date of hearing: 13th September, 2013.

2014 C L C 533

[Sindh]

Before Syed Muhammad Farooq Shah, J

ARAB KHAN----Appellant

Versus

Lt. Commdr. (Rtd.) MUHAMMAD AKHTAR JAVED----Respondent

Civil Appeal No.35 of 2010, decided on 29th November, 2013.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.4---Institution of summary suit on negotiable instrument---Contention of defendant was that alleged document did not fulfil the ingredients of "promissory note"---Suit was decreed by the Trial Court---Validity---Loan amount had not been denied by the defendant---Conditions for "promissory note" had been fulfilled---Genuineness or execution of promissory note had not been challenged by the defendant---Evidence had been thoroughly discussed by the Trial Court---No misappreciation, non-reading or misreading of evidence had been pointed out by the defendant---Trial Court had passed judgment on cogent reasons---Appeal was dismissed in circumstances.

Nadeem Kamran and another v. Waseem Akhtar Tareen 2011 CLC 837 and Muhammad Rafique v. Muhammad Nawaz 2001 CLC 318 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---"Promissory note"---Meaning.

(c) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---"Promissory note"---Conditions---Conditions for promissory note were: An unconditional undertaking to pay; sum of money should be certain; the payment should be to the order of, or to a certain person or to the bearer of the instrument and the maker should sign the document.

Amir Pervez for Applicant.

Mehreen Ibrahim for Respondent.

2014 C L C 561

[Sindh]

Before Muhammad Junaid Ghaffar, J

MUHAMMAD IMRAN----Plaintiff

Versus

PRESIDENT KASB BANK LTD. and another----Defendants

C.M.A. No.4891 of 2010 in Suit No.1139 of 2007, decided on 7th October, 2013.

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

----O. I, R. 10(2)---Misjoinder of parties---Application for striking out the name of improper party---Scope---Application for striking/deleting the name of party could be filed at any stage of the proceedings, but such leniency provided under the law was only exercisable, when it transpired that something new had been developed in the proceedings and for a proper appraisal and adjudication of the case, the addition and/or deletion of the parties was unavoidable---Court had to minutely examine the pecuniary facts of each case and after satisfying itself, as to whether the case for deleting/striking out of the name had been made out in the matter, pass necessary orders by allowing such request---Court had to see and examine the averments made in the plaint primarily to decide this aspect of the case, as there was no standard rule or procedure laid down, except to examine the contents of the plaint and the facts and circumstances of the case.

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

----O. I, R. 10(2)---Misjoinder of parties---Striking out the name of party---Scope---Plaintiff/ employee of private Bank was dismissed from service on the basis of audit report issued by State Bank/defendant/ applicant---Plaintiff filed suit for damages and arrayed the State Bank of Pakistan as defendant along with employer Bank---Applicant/State Bank of Pakistan filed application for deleting its name from array of defendants---Contention of the applicant/State Bank was that the plaintiff was employee of private Bank, therefore the applicant could not be subjected to any claim of damages---Validity---Plaintiff was dismissed from service on the basis of report issued by defendant/applicant (State Bank of Pakistan)---Defendant/employer had categorically stated that they had relied upon the report of State Bank---Claim of the plaintiff was based upon the inspection report of State Bank and as such his presence was necessary and things would only be crystallized after completion of the evidence of State Bank---Application for striking/deleting the name of defendant/applicant (State Bank) was dismissed.

2010 YLR 256 distinguished.

Messrs Frontier Ceramics Limited v. United Bank Limited 2001 CLC 90 rel.

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

----O. I, R. 10---Impleadment of parties to suit---"Dominus Litis", principle of---Scope---Case of impleadment of parties to a suit is dependant upon the plaintiff, as a general rule of "Dominus Litis", the plaintiff is the controller of the suit or litigation---Plaintiff could not be compelled to initiate litigation against a specific person, or drop the same, as the case may be---Impleadment of parties to a suit is entirely dependant on the case set up by the plaintiff in plaint, as to who should be sued and arrayed as defendant, as it is for the plaintiff to first determine the cause of action against a specific defendant and then prove same in evidence---Mere fact that at the pre-trial stage, one feels that no case would be proved or could not be proved, the name of defendant could not be struck out or deleted, except in very remote cases.

Altaf Parekh v. Delements Construction Company 1992 CLC 700 rel.

Nemo for Plaintiff.

Saleem Iqbal for Defendant No.1.

Masroor Alvi for Defendant No.2.

Date of hearing: 30th September, 2013.

2014 C L C 599

[Sindh]

Before Abdul Maalik Gaddi, J

Khawaja MUHAMMAD SHAHID: In the matter of

S.M.A. No.187 of 2013, decided on 21st January, 2014.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Letters of Administration---Non-contentious matter---Petition for grant of Letter of Administration in respect of movable and immovable properties of deceased by son of deceased---Succession petition had been duly published in Daily newspapers, and two independent witnesses had also sworn in their affidavits that no other legal heirs of the deceased existed except those present before the Court---Legal heirs of deceased had also submitted affidavits of no objection in favour of the petitioner/son of the deceased---Held, that matter was non-contentious and under such circumstances, the petition was allowed and Letter of Administration was ordered to be granted to the petitioner in respect of the properties and estates left by the deceased, conditional upon the petitioner furnishing one surety---Succession petition was allowed, accordingly.

Muhammad Aqil for Petitioner.

Date of hearing: 21st January, 2014.

2014 C L C 627

[Sindh]

Before Zafar Ahmed Rajput, J

AUCHER KHAN and 2 others----Applicants

Versus

PROVINCE OF SINDH through Deputy Commissioner, Khairpur and 6 others----Respondents

Civil Revision No.S-109 of 2012, decided on 20th December, 2013.

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

----O. XVII, Rr.2 & 5---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Dismissal of suit---Non-appearance of plaintiffs---Despite many opportunities, plaintiffs did not produce their evidence and finally when case was transferred to another Court, plaintiffs failed to appear, resultantly the suit was dismissed under O.XVII, R.2, C.P.C.---Order passed by Trial Court was maintained by Lower Appellate Court---Validity---After appearance of one of the plaintiffs before Trial Court, after transfer of suit, there remained no requirement of issuance of Court motion notices to plaintiffs, who were fully conscious about the date of hearing---Provision of O.XVII, R.2, C.P.C. was applicable upon failure of party to appear on adjourned date of hearing, no matter at whose instance the adjournment might have been, except the adjourned date fixed by Reader and not by the Court, in such circumstances provision of O.XVII, R.5, C.P.C. was applicable---Plaintiffs failed to make there case on ground of any material irregularity or exercise of jurisdiction not vested in Courts below or failure to exercise jurisdiction vested in it---High Court declined to interfere in the orders passed by both the Courts below as the same were legal and had been passed in lawful exercise of their jurisdiction and did not suffer from any infirmity either in law or equity---Revision was dismissed in circumstances.

S. Mahmood Hyder v. Messer Alliance Enterprises PLD 1985 Kar. 691 distinguished.

Messrs Rehman Weaving Factory (Regd.) Bahawalpur v. Industrial Development Bank of Pakistan PLD 1981 SC 21 and Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. 2005 SCMR 609 ref.

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

----Art. 181---Residuary provision of Art.181, Limitation Act, 1908---Scope---Provisions of Art.181 of Limitation Act, 1908, are applied to all matters in respect of which no period of limitation has been provided elsewhere in the Schedule to Limitation Act, 1908.

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

----S. 5---Condonation of delay---Principle---For seeking condonation of delay beyond limitation period, each day to be explained with cogent and substantial reasons---In civil matters a valuable right accrues to the other side by laps of time.

Syed Jafar Ali Shah for Applicants.

Syed Manzoor Hussain Shah for Respondent No.7 in person.

Date of hearing: 9th December, 2013.

2014 C L C 639

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

ABDUL FATAH BHUTTO and others----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 3 others----Respondents

Constitutional Petitions Nos.D-1300, D-1301 and D-1302 and M.As. Nos.6592, 6473, 6346, 6347, 6591, 6474, 6348, 6349, 6596, 6472, 6350 and 6351 of 2013, decided on 17th December, 2013.

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

----S. 14(3)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Laches---Rejection of nomination papers---Petitioner not availing remedy before forum specifically constituted for the purpose---Effect---Nomination papers of candidate/petitioner were accepted by Returning Officer, however on appeal Election Tribunal rejected his nomination papers---Candidate filed present constitutional petition against order of Election Tribunal---Chief Justice of the concerned High Court had constituted a special Bench of three Judges of the High Court for adjudicating upon petitions arising out of decisions of the Election Tribunal, and all such petitions were placed before the said Bench---Candidate in question did not file his petition against order of Election Tribunal for a considerable period of time and opted to remain silent, which clearly suggested that he had not opted to present his case before the forum which was specifically constituted for such purpose---Candidate neither adopted the specified procedure nor approached the proper forum in the given time---When a thing was to be done in a particular manner, same must be done in that manner and not otherwise---Legal remedy was available to candidate, but he did not adopt the prescribed course/remedy by not approaching the specially constituted Bench---Present constitutional petition was also hit by laches---Constitutional petition was dismissed in circumstances as being not maintainable.

(b) Administration of justice---

----When a thing was to be done in a particular manner, same must be done in that manner and not otherwise.

Tehsil Nazim TMA, Okara v. Abbas Ali 2010 SCMR 1437 and Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 152-G of 2010: In the matter PLD 2010 SC 759 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Disputed questions of fact raised in a constitutional petition---Factual controversy raised and agitated before a High Court could not be decided in writ jurisdiction.

Fida Hussain v. Mst. Saiqa 2011 SCMR 1990 and Secretary to Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

Inayatullah G. Morio for Petitioners (in all three petitions).

Nemo for Respondents.

Date of hearing: 12th December, 2013.

2014 C L C 669

[Sindh]

Before Sadiq Hussain Bhatti, J

FIRST WOMEN BANK LTD. Through Authorized Representative/Attorney----Plaintiff

Versus

Major (R) SHAMSHAD ALI KHAN and 3 others----Defendants

Suit No.1218 and C.M.A No.12728 of 2012, decided on 25th September, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Application for rejection of plaint---Complaints were made by defendants to FIA and State Bank against the Bank and false news stories and its employees tarnishing reputation of bank were published in newspaper---Suit for recovery of damages and compensation on behalf of Bank---Contention of defendant was that no cause of action had been disclosed in the suit---Validity---Averments made in the plaint could only be considered while deciding application under O.VII, R.11, C.P.C.---No other material could be seen at such stage---Averments made in the plaint were to be treated as true---In the present case, allegations had been made against the defendant in the plaint and cause of action had been shown---Such allegations if taken to be correct would result into a decree---Bank being a fictitious person could not suffer from mental torture and agony---Only officers of the Bank against whom complaints were submitted could file a suit for damages and compensation if same were not true---Plaint had made allegations on behalf of Bank itself and on behalf of officers of the Bank but present suit had been filed by the Bank only---Allegations which were levelled against the officers of Bank could not be made a cause of action on behalf of Bank---Allegations with regard to false news tarnishing reputation of plaintiff-Bank had to be decided after recording of evidence---Dismissal of suit without affording an opportunity to the plaintiff-Bank to adduce evidence would be premature---Application under O.VII, R.11, C.P.C. was dismissed in circumstances.

Shahzada v. Khairullah and others 2012 CLC 773 rel.

Muhammad Asif for Plaintiff.

Defendant No.1 in person.

Nemo for Defendants Nos.2 to 4.

2014 C L C 725

[Sindh]

Before Muhammad Ali Mazhar, J

HAIDER LADHU JAFFAR and another----Plaintiffs

Versus

HABIB BANK LTD. through President and 10 others----Defendants

C.M.As. Nos.3650 and 3125 of 2012 in Suit No.385 of 1996, decided on 29th November, 2013.

(a) Administration of justice---

----Legal plea---Scope---Such plea can be raised at any stage even up to the level of appellate forum.

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

----S. 4---Limitation period---Court closed---Effect---Period of limitation prescribed under law does not extend under S.4 of Limitation Act, 1908, but it simply permits a suit, appeal or application to be filed on re-opening of Court, if period of limitation expires on a day when Court is closed.

Ikramullah v. Said Jamal 1980 SCMR 375 rel.

(c) Sindh Courts Act (VII of 1926)---

----S. 8---Original civil jurisdiction---High Court, powers of---While exercising its original jurisdiction, High Court exercises powers of civil court.

Muhammad Naved Aslam and others v. Mst. Aisha Siddiqui and others 2011 CLC 1176 rel.

(d) Administration of justice---

----Wrong provision of law---Effect---Nomenclature of application does not matter but what matters is pith and substance.

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

----O. XLVII, R. 1---Limitation Act (IX of 1908), S.4 & Art.23---Suit for damages---Malicious prosecution---Review of judgment---Maintainability---Scope---Suit filed by plaintiff for recovery of damages for malicious prosecution was dismissed in his absence being barred by limitation---Plea raised by plaintiff was that last day of limitation fell during summer vacations and he filed the suit on the first day when Court was reopened, therefore, suit was within limitation---Plea raised by defendant was that when right of appeal was available review was not maintainable---Validity---Mere fact that appeal was competent was no ground for refusing review---Grounds on which review could be sought were enumerated in O.XLVII, R.1, C.P.C.---Review could be filed for rectification of any mistake or error apparent on the face of record---Such mistake or error might be one of law which could be established without elaborate arguments---Error must have also substantial effect on the fate of case and error apparent from the face of record might be corrected without driving a party to appeal---Plaintiff felt no urgency or did not opt to institute plaint during vacations and it did not mean that benefit of S.4 of Limitation Act, 1908, was wiped out which was always a beneficial provision in nature and plaintiff could not be non-suited---High Court recalled its judgment and decree and restored the suit to its original position---Review was allowed in circumstances.

2010 CLD 1541, Mst. Razia Jafar and others v. Government of Balochistan and others 2007 SCMR 1256; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720; Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Ali Muhammad v. Chief Settlement Commissioner and others 2001 SCMR 1822; Muhammad Yar v. Muhammad 2003 SCMR 1772 and Nooruddin and others v. Pakistan 2000 SCMR 354 ref.

Memon Educational Board and Society Karachi v. Munawar Hussain 2003 SCMR 157; Sirajuddin v. Muhammad Sharif PLD 1963 Kar. 883; Muhammad Shareef v. Muhammad Ramzan and others 2006 CLC 618; Jumma v. Maulvi Mubarak 1971 SCMR 779; Lehar Khan and others v. Amir Hamza and others 1999 SCMR 108; Messrs M.A. Nawaz & Co. and others v. National Bank of Pakistan 1970 SCMR 234 and Khushi Muhammad v. Muhammad Sharif 1995 MLD 1042 distinguished.

Ms. Saba Latif for Plaintiffs along with Tafazul Haider Rizvi Attorney of Plaintiff No.1.

Ghulam Murtaza for Defendants Nos.1, 3, 6, 7, 8 and 9.

Date of hearing: 12th September, 2013.

2014 C L C 776

[Sindh]

Before Munib Akhtar, Hasan Azhar Rizvi and Muhammad Farooq Shah, JJ

ALI GOHAR KHAN MAHAR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others----Respondents

Constitutional Petition No.3248 of 2013, decided on 3rd January, 2014.

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

----Ss. 54, 55, 63 & 67---Constitution of Pakistan, Arts.199 & 225---Constitutional petition--- Maintainability--- Election dispute---Interlocutory order---Petitioner was returned candidate and Election Tribunal directed to verify counterfoils of ballot papers from NADRA---Validity---Election Tribunal constituted under S.57 of Representation of the People Act, 1976, and trying election petition presented under S.52 of Representation of the People Act, 1976, a petition under Art.199 of the Constitution to challenge an interlocutory order was not maintainable---Interlocutory order could only be assailed under S.67(3) of Representation of the People Act, 1976, at appropriate stage---High Court declined to consider the matter on merits as it was domain of Supreme Court---Petition was dismissed in circumstances.

Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 rel.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCMR 1299; Muhammad Arif Hussain v. Rao Sikandar Iqbal and others PLD 2008 SC 429; Nayyar Hussain Bukhari v. District Returning Officer and others PLD 2008 SC 487; Muhammad Husain Babar v. Election Commission of Pakistan and others PLD 2008 SC 495; Lt.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Aftab Shahban Mirani v. Muhammad Ibrahim and others PLD 2008 SC 779; Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 and Muhammad Asim Kurd v. Mir Lashkari Khan Raisani 1999 SCMR 689 ref.

Jamal Shah v. Election Commission of Pakistan PLD 1966 SC 1 and Abdul Ghani and another v. Election Tribunal and others 1999 SCMR 1 distinguished.

Shabbir Shah for Petitioner.

Malik Naeem Iqbal for Respondent No.2.

Dates of hearing: 5th, 21st and 25th November, 2013.

2014 C L C 816

[Sindh]

Before Maqbool Baqar and Riazat Ali Sahar, JJ

Syed AZEEM SHAH and another----Petitioners

Versus

PROVINCE OF SINDH through Secretary, Local Government Sindh and 8 others----Respondents

Constitutional Petition No.D-3645 of 2011, decided on 7th February, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Encroachment and unauthorized construction under flyover---Order of High Court for removal of such encroachment---Non-compliance of such order of High Court---Effect---Contention of petitioners was that installation of cabins under flyovers would cause trafficjams and same would be a threat for the general public---Validity---High Court directed Municipal Corporation to remove encroachments under all flyover in the city and ensure that no illegal and unauthorized construction/occupation took place in future---Police was directed to provide security to the functionaries of Municipal Authorities so that they could carry out order of High Court safely and swiftly---Compliance report with regard to removal of encroachments under the flyover was directed to be submitted in the court---Constitutional petition was disposed of accordingly.

Asadullah Memon for Petitioner.

Khursheed Javed for K.M.C.

Shafi Muhammad Memon, A.A.-G.

2014 C L C 837

[Sindh]

Before Aziz-ur-Rehman, J

PAK PETROCHEMICAL INDUSTRIES PVT. LTD. through Chief Executive----Plaintiff

Versus

Syed HAMID ALI----Defendant

Civil Suit No.1764 of 2010, decided on 29th May, 2013.

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

----O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of money on basis of dishonoured cheque---Proof---Presumption attached to cheque for being a negotiable instrument was not only statutory, but also mandatory---Special rules of evidence in terms of S.118 of Negotiable Instruments Act, 1881 would apply to such instrument, thus, party wishing to dispel such presumption would have to produce cogent evidence/proof in its rebuttal.

Muhammad Sabir v. Khalil-ur-Rehman 2002 CLD 1543 and EFU General Insurance Ltd v. Messrs Security and Management Services (Pvt.) Ltd. 2002 CLD 107 rel.

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

----O. XXXVII, R. 2---Negotiable Instruments Act (XXVI of 1881), S.118---Recovery of money on basis of dishonoured cheque---Remedies available to plaintiff---Scope---Discretion vested in plaintiff to institute on basis of such cheque either suit under O.XXXVII, C.P.C. or ordinary/regular civil suit---Filing of such ordinary/regular civil suit would not deprive plaintiff of benefit of presumption attached to negotiable instrument under S.118 of Negotiable Instruments Act, 1881.

Syed Kausar Abbas Shah v. Sardar Khan 2005 YLR 3321 rel.

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

----S. 73---Suit for damages for breach of contract---Absence of defence and evidence in rebuttal, of plaintiff's claim---Details of damages missing in plaint, affidavit-in-ex parte proof and documentary evidence---Validity---Damages could not be granted merely on basis of routine assertions---Fixed amount of damages could not be granted without proving quantum of actual losses through cogent evidence---Party claiming damages was legally obliged firstly to plead and then lead sufficient, truthful and positive evidence in proof thereof---Heavy burden was on plaintiff to prove damages despite absence of defence/evidence---Plaintiff had failed to discharge such burden---Suit was dismissed in circumstances.

Muhammad Amin Muhammad Bashir Ltd. v. Muhammad Amin Brothers Ltd. PLD 1969 Kar. 233 and Daoud Shami v. Messrs Emirates Airlines and another PLD 2011 SC 282 rel.

Junaid M. Siddiqui for Plaintiff.

Nemo for Defendant.

Date of hearing: 15th May, 2013.

2014 C L C 875

[Sindh]

Before Nazar Akbar, J

ABID HUSSAIN----Plaintiff

Versus

MANSOOR ALI SHIEKHA and 4 others----Defendants

Suit No.1510 of 2007, decided on 22nd January, 2014.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 45---Misconduct---Legal ethic and etiquettes---Hindrance in court work---During pendency of proceedings, counsel for defendant caused hindrance in work of dispensation of justice by Court---Counsel of defendant wilfully attempted to unlawfully undermine the order of Court for appointment of Commissioner for recording of evidence---Though it was case of contempt of Court in the face of Court but Court preferred to leave it at the discretion of lawyers' body, which claimed to be the custodian, protector of lawyers' rights and responsibilities---Lawyers behavior had been several times reported in electronic media and all such news items had adversely affected the name and respect earned by the institution of lawyers in recent past---High Court found it high time that conduct of lawyers be carefully checked by Sindh Bar Council and other associations responsible for maintaining dignity of profession---High Court found the conduct of counsel for defendant as insulting and humiliating and referred the matter to Sindh Bar Council for appropriate action.

Muhammad Irfan Haroon for Plaintiff.

Irfan Ali for Defendants.

2014 C L C 903

[Sindh]

Before Faisal Arab and Shaukat Ali Memon, JJ

Barrister WALEED KHANZADA----Petitioner

Versus

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

Constitutional Petition No.D-1143 of 2011, decided on 4th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Amenity plot---Conversion---Grievance of petitioner was that respondent had included land of public park into his commercial plot---Validity---Bye-laws of Cantonment Board specifically provided that even for conversion of residential plot into commercial, it required certain steps to be taken under bye-laws of the Cantonment Board---Amenity plot meant purely for public park was annexed with a commercial plot and that too without any consideration when such conversion was not permissible under any circumstances---Dispute was not even of conversion of residential plot into commercial---Entire exercise of annexing amenity plot meant for park with commercial plot was illegal, without any lawful authority and of no legal effect---High Court directed the authorities to take appropriate action for retrieving the plot originally meant for park---High Court also directed the authorities to remove any construction that had so far been raised thereon and to restore it as a park for common use of residents of the area---Petition was allowed in circumstances.

2001 SCMR 493; PLD 2001 SC 149 and 2012 SCMR 455 ref.

Petitioner in person.

Mushtaq A. Memon for Respondent No.4.

Khawaja Shamsul Islam for Respondent No.3.

Date of hearing: 4th December, 2013.

2014 C L C 945

[Sindh]

Before Zafar Ahmed Rajput, J

Syed MUNAWAR HUSSAIN SHAH----Applicant

Versus

Syed NUSRAT HUSSAIN through L.Rs. and others----Respondents

Civil Revision No.S-11 of 2013, decided on 23rd December, 2013.

(a) Islamic Law---

----Inheritance---Principle---On death of a Muslim, his legal heirs are entitled to inherit his estate although their names do not appear as heirs in record of rights maintained by Revenue authorities.

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

----O. XL, R. 1---Receiver, appointment of---Object and scope---Object behind appointment of receiver is to preserve status quo during pendency of litigation---Appointment of receiver is harshest remedy provided by Civil Procedure Code, 1908---Upon appointment of receiver, property comes into custodia legis for the benefit of all owners of property---Possession of Receiver is deemed to be possession of Court.

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

----Ss. 8, 42 & 54---Partition Act (IV of 1893), S.4---Civil Procedure Code (V of 1908), O.XL, R.1---Suit for possession declaration, injunction and partition---Receiver, appointment of---Parties were legal heirs of deceased owner of immovable properties---Except one defendant remaining all legal heirs including plaintiff were out of possession---On application filed by plaintiff, Trial Court appointed revenue official as receiver over suit properties but Lower Appellate Court set aside order passed by Trial Court---Validity---Plaintiff and other legal heirs of deceased, except one in possession, were not benefited from the properties, its crops and revenue---Agriculture suit land was unmanaged and unprotected---Order passed by Trial Court was just and proper which had been set aside by Lower Appellate Court without considering status of plaintiff as one of the legal heirs of his deceased father---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed accordingly.

Muhammad Yousuf Sani v. Haji Muhammad Hussain 2012 YLR 713 ref.

Khalil Ahmed Maitlo for Applicant.

Muhammad Yaqoob Soomro for Respondents Nos.1(a) to 1(f).

Imtiaz Ali Soomro, A.A.-G. for Respondents.

Date of hearing: 20th November, 2013.

2014 C L C 958

[Sindh]

Before Irfan Saadat Khan and Abdul Rasool Memon, JJ

Mrs. ALIYA HUMAYUN----Appellant

Versus

NADEEM-UL-HAQ and 4 others----Respondents

C.M.As. Nos.44 and 45 of 2014 in H.C.A. No.9 of 2014, decided on 15th January, 2014.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Execution of decree in an administration suit---Auction of suit property through court Nazir---Court stipulating a specific opening and closing time for the auction---Party failing to participate in auction proceedings within the stipulated time---Effect---High Court had directed the Nazir to sell subject property through auction to the highest bidder and that all the concerned parties should appear before the Nazir on given date at 11 A.M.; that no date or extension (in time) whatsoever shall be given to any party, and that in case no one was present within half an hour of the time (i.e. 11 A.M.), then the exercise (auction) shall be deemed to have been closed and the offer already made for the property shall be deemed to be accepted---On auction day Nazir started bidding at 11 A.M. and when the highest offer/bid was received, he ended the auction at 11:30 A.M.---Appellant reached the auction place at 12:08 P.M. and offered to match the highest bid, but the Nazir did not allow her as the bidding process had already been completed---Legality---High Court had fixed the date and time of the auction and it had further clarified that no date or extension whatsoever shall be given and all parties must be present before the Nazir on the date and time given---Court in emphatic terms had put all parties on notice that the bidding process had to be completed within the stipulated time and on the stipulated date---Each and every party/bidder was clearly conveyed the message that there would be no extension in time---Appellant in such circumstances had to be extra-cautious to ensure that if she was interested in matching the bid already made for the property, she should have been present before the Nazir well before time or at least on time---Appellant was unable to provide any plausible reason as to what precluded her from reaching the Nazir's office within time---Ample opportunity was provided to appellant to match the highest bid but she was unable to avail such opportunity for which she could not blame anyone but her own-self---Nazir was completely justified in completing the auction proceedings at 11:30 A.M., as directed by the High Court---Appeal was dismissed accordingly.

Nadeem Pirzada for Appellant.

2014 C L C 965

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

MUHAMMAD ASIF and another----Petitioners

Versus

Haji FAZAL AHMED and 2 others----Respondents

Constitutional Petition No.D-5421 of 2013, decided on 1st March, 2014.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S.12---Qanun-e-Shahadat (10 of 1984), Arts.114 & 115---Limitation Act (IX of 1908), Art.113---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance of contract---Limitation---Oral agreement to sell---Dispute between landlord and tenant---Estoppel, principle of---Applicability---Rejection of plaint---Documents to be considered by the court---Scope---Plaintiffs filed suit wherein defendants moved an application for rejection of plaint which was dismissed by the Trial Court but same was accepted by the Appellate Court---Validity---Plaintiffs were tenants in the disputed property before claiming of entering into an oral agreement to sell---Plaintiffs never claimed such agreement even after receiving notice on behalf of defendants up to filing of their written reply in the rent case wherein issue with regard to existence of relationship of landlord and tenant was framed---Said issue was decided in favour of defendant and against the plaintiffs---Plaintiffs in their reply to such notice not only admitted their status in the disputed property as tenant but they also did not raise any plea of occupying such premises not as a tenant but as a purchaser---No plea with regard to any oral agreement to sell was taken by the plaintiffs in rent case that suit property had been sold to them by the defendant---Knowledge of client was the knowledge of his counsel---Plaintiffs were estopped from claiming themselves as occupants in the suit property as purchasers after their admission that they were tenants of defendant in the same---Court had to take into consideration the contents of plaint and documents on which same had been based---Plaintiffs did not file any suit for specific performance of contract soon after receiving the said notice---Present suit had been filed after 18 years of the alleged oral agreement of sale and after three years and 8 months of receiving said notice which was barred by 8 months from the date of notice under Article 113 of Limitation Act, 1908---Principle of estoppel would operate against the plaintiffs who had no cause of action to maintain the present suit---Status of plaintiffs was not more than that of a tenant and a tenant could not question the title of landlord---No irregularity or illegality was pointed out in the impugned order---Constitutional petition was dismissed in limine.

Kamaruddin Valika v. Government of Sindh and others 2004 YLR 373 distinguished.

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

----Art. 114---"Estoppel"---Meaning---"Estoppel" was a legal rule of evidence which would prevent a person from making a claim or allegation or denial that would contradict what he had previously stated or what had been legally established as true.

(c) Words and Phrases---

----"Cause of action"---Meaning---"Cause of action" was a set of predefined factual elements that would allow a legal remedy.

(d) Maxim---

----"Nemo contra factum suam venire potest"---Meaning---No man can contradict his own act or deed.

Naley Mitho alias Muhammad Ishaque Kubar for Petitioner.

Nemo for Respondent.

Date of hearing: 31st January, 2014.

2014 C L C 981

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL WAHAB----Appellant

Versus

ABDUL RASHEED and 2 others----Respondents

Miscellaneous Appeal No.40 of 2012, decided on 10th April, 2014.

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

----Ss. 278 & 372---Letter of administration and succession certificate issuance of---Limitation---No limitation existed in matters of letter of administration and succession certificate.

Abdul Rauf Chaziani v. Zaibunissa and 2 others PLD 1975 Kar. 76 rel.

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

----S. 278---Letter of administration, issuance of---Matters to be considered by court---Scope---Deceased was survived by three daughters and two sons---Respondent (one of the sons of deceased) filed a petition for grant of letter of administration in respect of immovable property left by the deceased---Appellant (other son of deceased) filed objection against the grant of letter of administration on the grounds that immovable property in question was allotted to him; that he incurred large sum of money on the reconstruction of the property in question, and on the marriages of his three sisters; that respondent had already taken his share in the property from the appellant---Validity---While considering issuance of letter of administration, court would only determine questions about assets left by the deceased and inherited by the legal heirs---Appellant was at liberty to avail any remedy available under the law for redressal of his grievances i.e. for recovery, but in no case, in the proceedings under Succession Act, 1925 he was supposed to raise any such claims---Even otherwise appellant did not refer to or produce any evidence or document to substantiate his claims---Appeal was dismissed accordingly.

Sindh Industrial Trading Estate) Ltd. through Secretary v. Muhammad Ilyas and another 2005 SCMR 309 rel.

(c) Pleadings---

----Proof---Verbal assertions---Mere verbal assertions in the absence of any documentary evidence were not sufficient.

S. Inayat Hussain Shah for Appellant.

Mehar Khan for Respondent No.1.

2014 C L C 990

[Sindh]

Before Hassan Feroze, J

MUHAMMAD RASHEED----Appellant

Versus

Mst. SAEEDA BANO and 4 others----Respondents

II Appeal No.111 of 2012, decided on 4th March, 2014.

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

----S. 12---Suit for specific performance on the basis of oral agreement to sell---Documentary evidence against the oral evidence---Scope---Contention of defendant was that he had purchased suit property through sale-deed---Suit was decreed concurrently to the extent of return of sale price along with mark-up---Validity---Burden to prove a prima facie case was on the plaintiff and when he had got recorded such evidence which would support a prima facie case then the onus would shift on the defendant to adduce rebuttal evidence---Documentary evidence would prevail over the oral one and if such documentary evidence was recorded by a public officer in discharge of official duty then same would be preferable to oral statement of a witness---Both the courts below recorded their concurrent findings and no justification existed for filing second appeal---No error or misreading of evidence was pointed out in the impugned judgments and decrees passed by the courts below---Impugned judgments and decrees were not contrary to law or usage having the force of law which were based on sound footings and well reasons---Second appeal was dismissed in circumstances.

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

----Ss. 100, 101 & 103---Limitation Act (IX of 1908), Arts.151, 153 & 156---Second appeal---Scope---Limitation---Scope of second appeal was limited and High Court had no jurisdiction to entertain second appeal on the ground of erroneous findings of facts---Second appeal would lie on the ground of law or error in procedure which had affected decision of case on merits---Findings on a question of fact was open to attack as erroneous in law only if same were not supported by any evidence or were unreasonable and perverse---Decision as to credibility of witnesses was neither an error of law nor of procedure---Error would not justify interference in second appeal unless there was misreading or non-reading of evidence---High Court was not precluded to consider issue of fact if same had not been determined or wrongly determined by the courts below by reason of any illegality, omission, error or defect---High Court in second appeal had power to examine the soundness of conclusion drawn from evidence and question whether such conclusions were correct---Findings of facts recorded by the lower appellate court on appraisal of evidence could not be disturbed even such findings were fallacious unless such fallacy had involved an error of law or of procedure---Fallacy in appraising the evidence as to fact had never been held to be an error of law justifying interference by the High Court---If lower appellate court had recorded findings on the basis of evidence then High Court could not re-appreciate such evidence---Limitation for filing an appeal to High Court was 90 days except in cases falling under Arts.151 & 153 of Limitation Act, 1908 in which limitation was 20 days when order or decree was passed by the High Court in exercise of its original jurisdiction.

1996 SCMR 808; 1991 MLD 581; PLD 1957 SC (Ind.) 188; PLD 1984 SC (AJ&K) 1388; 1977 SCMR 280; 2001 SCMR 1641; 1986 MLD 854; PLD 1955 SC 38; PLD 1984 SC 289 and AIR 1965 SC 195 rel.

Zafaruddin Khan for Appellant.

Fazal Dad for Respondents.

Date of hearing: 15th January, 2014.

2014 C L C 1002

[Sindh]

Before Faisal Arab and Riazat Ali Sahar, JJ

PAKISTAN BROADCASTING ASSOCIATION through Chairman----Appellant

Versus

SARFARAZ HUSSAIN SHAH----Respondent

H.C.A. No.144 and C.M.As. Nos.1992 and 1993 of 2012, decided on 13th November, 2012.

Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court appeal---Interim order---Interference by appellate court---Scope---Normally, Appellate Court does not interfere in the interim order passed during pendency of suit---In the present case, Single Judge of High Court, without hearing the application on merits had passed interim orders which was not justified---Impugned interim order was set aside in High Court Appeal and Single Judge was directed to decide all the pending applications accordingly---Appeal was disposed of.

Jam Asif Mehmood along with Wasif Riaz for Appellant.

Abid S. Zuberi, M. Haseeb Jamali, Shakeel Rabbani, Saad Siddiqui and Balosch for Respondent.

2014 C L C 1006

[Sindh]

Before Nazar Akbar, J

MUHAMMAD ALI ABBAS----Plaintiff

Versus

Syed HASSAN RAZA RIZVI and 2 others----Defendants

Suit No.1740 of 2010, decided on 28th February, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, O. II, R. 2, O. IX, R. 9 & O. XX, Rr.13 & 18---Succession Act (XXXIX of 1925), S.372---Administration suit---Limitation---Fresh suit on same cause of action---Rejection of plaint---Scope---Earlier suit for partition of same property was dismissed for non-prosecution wherein plaintiff was party---Plaintiff should have continued said suit in which claim was identical to the present one---Second suit on same cause of action and subject-matter was hit by the provisions of O.II, R.2 & O.IX, R.9, C.P.C.---Plaintiff was required to seek restoration of his earlier suit within the prescribed time under O.IX, R.9, C.P.C.---Decree under O.XX, R.13, C.P.C. read with O.XX, R.18, C.P.C. in a suit for partition/administration had distinct features---Limitation had estopped once the earlier suit for partition of estate of deceased was filed---Issue of inheritance could not be raised again and again between the same parties---Neither second suit for partition of estate of deceased nor second succession application under S.372 of Succession Act, 1925 could be filed---Plaintiff was not legal heir of the deceased as his mother who was alive at the time of opening of succession had excluded him from the legacy to claim share in the estate---No suit for administration of estate could be filed by someone who was not amongst the legal heirs of deceased at the time of opening of succession to claim anything by way of inheritance---Present suit for administration of estate of grandfather should be dismissed as grandson was not entitled to claim in the estate of grandfather---Mother of plaintiff had died after the death of her both parents and plaintiff had not claimed inheritance on the basis of son of pre-deceased daughter---Plaintiff could not claim anything from the estate of deceased in circumstances---Plaint was rejected accordingly.

Muhammad Zahid through Legal Heirs v. Mst. Ghazala Zakir and 7 others PLD 2001 Kar. 83 ref.

Aziz Ahmad and others v. Mst. Hajran Bibi and another 1987 SCMR 527; Mst. Khatoon and 3 others v. Siddiq Muhammad and another 1981 CLC 409 Md. Bazlur Rahman v. Syed Ali Pramanik PLD 1967 Dacca 809 rel.

Muhammad Zahid through Legal Heirs v. Mst. Ghazala Zakir and 7 others PLD 2001 Kar. 83 distinguished.

Munir-ur-Rehman for Plaintiff.

Abadul Hasnain for Defendant.

Date of hearing: 9th December, 2013.

2014 C L C 1019

[Sindh]

Before Nazar Akbar, J

ANJUM REHMAT and another----Plaintiffs

Versus

(Rtd.) Sqn. Ldr. Sheikh GHULAM SADIQ and 3 others----Defendants

Suit No.879 of 1979 (New Suit No.51 of 2003) and C.M.A. No.8818 of 2009, decided on 23rd December, 2013.

Civil Procedure Code (V of 1908)---

----S. 144 & O. XX, R. 12(1) (b)---Delivery of possession of property to the plaintiffs by Nazir of High Court in execution of decree which was set aside---Reversal of decree---Wrongful possession---Mesne profit, recovery of---Application on behalf of Official Assignee for restitution of said property acquired by the plaintiffs---Scope--- Property/benefits of decree must be restored to the position as the same was on the date of passing of decree which had been set aside/reversed---Court was bound to place the parties in the position which they would have occupied prior to execution of decree---Such was directory for the court to pass order consequential on such variation or reversal of decree; order to include refund of cost, payment of interest even damages and compensation and mesne profit by the beneficiary of the decree for the period he had enjoyed the property or any other benefit but for the decree---Property should be restored to the Nazir of High Court through whom plaintiffs had acquired possession of the same---Decree had been reversed and plaintiffs were to be placed in the position which they had occupied prior to such decree---Official Assignee was not party when execution was ordered and decree was set aside---Suit would revive along with pending applications on remand or setting aside of judgment and decree---Official Assignee/Liquidator had first to prove that he was dispossessed from the property in execution of decree---Possession of property could not be handed over to the Official Assignee as same would violate the status quo and even at that time neither he was party to the suit nor his claim of bona fide owner was before the court---Plaintiffs should hand over peaceful possession of suit property to the Nazir---Plaintiffs remained in possession of the suit property for more than 24 years and 6 months under a decree which had been reversed and their possession from the date of reversal of decree till date of possession was wrongful possession---Benefits enjoyed by the plaintiffs for such period were liable to be refunded which could not be determined without inquiry---Nazir was directed to hold inquiry to ascertain the mesne profit---Application was disposed of accordingly.

Khalid Latif for Plaintiff.

Nemo for Defendants.

Mansoor-ul-Arfin for Official Assignee.

Date of hearing: 4th November, 2013.

2014 C L C 1029

[Sindh]

Before Farooq Ali Channa, J

ISRAR AHMED----Applicant

Versus

Mst. PUKHRAJ AHAD----Respondent

Civil Transfer Application No.S-20 of 2013 and C.M.A. No.415 of 2009, decided on 5th July, 2013.

West Pakistan Family Courts Rules, 1965---

----R. 6---West Pakistan Family Courts Act (XXXV of 1964), S.25-A---Territorial jurisdiction of Family Court---Convenience of wife---Scope---Plea of husband that he faced inconvenience while coming to Family Court where case was being heard, therefore same should be transferred to any other Family Court at District Headquarters---Convenience of litigants was a main determining factor in family cases---Under Rule 6 of West Pakistan Family Courts Rules, 1965, the Family Court within the local limits of which wife ordinarily resided, had jurisdiction to entertain the suit---Normal rules providing for territorial jurisdiction for trial of cases in Family Courts had been relaxed in favour of females than the convenience of males, as females were generally put to great inconvenience if ordered to pursue their suit in a Family Court at some distance---Transfer application of husband was dismissed in circumstances.

Shahid Ali K. Memon for Applicant.

Muhammad Yakoob Soomro for Respondent.

2014 C L C 1031

[Sindh]

Before Nazar Akbar, J

FIDA ALI SAWANI and 2 others----Plaintiffs

Versus

KHAN MUHAMMAD and 6 others----Respondents

Suit No.981 of 2009 and C.M.A. No.7668 of 2011, decided on 28th March, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.2 & 12---Contract Act (IX of 1872), S.10---Transfer of Property Act (IV of 1882), S.52---Time bound agreement to sell---Application for rejection of plaint on the grounds of limitation, lack of cause of action, and existence of arbitration clause in the agreement to the effect that in case of any dispute between the parties, the matter shall be resolved through the Shia Ismaili Conciliation and Arbitration Board of Karachi---Validity---Plaintiffs never sent any legal notice in writing to the defendants nor took any steps pursuant to the agreement to show their own bona fides in getting the property transferred in their names---Plaintiffs themselves had filed a letter dated 20-10-2008 issued from the defendants' side asking the plaintiffs to complete the deal within 15 days time---Plaintiffs had never come forward to complete the deal nor did the plaintiffs get the lease of the plot renewed at their cost as agreed in the agreement---Defendants sent another notice to complete the deal, but the plaintiffs did not pay any sale consideration---Plaintiffs filed a suit for specific performance without offering to deposit balance sale consideration in Court---In a suit for specific performance, it was the buyer and not the seller who had to show by positive conduct that he had approached the seller to complete the deal and the buyer was ready and willing to perform his part of the contract and on refusal from the seller, the buyer could file a suit for specific performance---Defendants had not refused to execute documents, hence, no cause of action had accrued to the plaintiffs---Plaint was silent about the date on which plaintiffs offered to tender sale consideration and demanded transfer of suit property---Plaintiffs had not offered to tender the sale consideration through the Court---On account of plaintiffs' failure to offer/tender sale consideration to the defendants on specific date and time and then demand transfer of suit property, the plaintiffs could not assert that the defendants had refused to perform their part of the contract and a cause of action had accrued to them---Application for rejection of plaint was allowed, in circumstances.

Mst. Khatoon Begum v. Mst. Barkatunnisa Begum and 6 others PLD 1987 Kar. 132 rel.

Abdur Rehman for Plaintiffs Nos.1 to 3.

Abdul Qadir Laghari for Defendants Nos.1 to 6.

Defendant No.7: Ex parte.

Date of hearing: 10th March, 2014.

2014 C L C 1060

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD ASHRAF----Petitioner

Versus

MEHMOOD ELAHI and 2 others----Respondents

Constitutional Petition No.S-1034 of 2004, decided on 11th February, 2014.

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

----S. 15---Civil Procedure Code (V of 1908), O.VIII, R.5---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Allegation of sub-letting---Allegation of fact not specifically denied or controverted deemed to be accepted---Ejectment application filed by landlord was accepted on account of the allegation of sub-letting the demised premises---Appeal filed by tenant was dismissed---Contention of the petitioner/tenant was that evidence produced by landlord on the point of sub-letting was very weak, therefore orders passed by both the courts below were unjustified---Validity---Landlord in his ejectment application as well as affidavit in evidence had given statement that the tenant/petitioner had sub-let the demised premises---Tenant/petitioner had neither controverted such contention during cross-examination nor he denied the contention of landlord but on the other hand he kept silent to the effect of statement made by landlord regarding sub-letting---Particular fact had been deposed on oath but the same had not been controverted/challenged/questioned in cross-examination, the presumption would be that such part of evidence was deemed to have been accepted by the party against whom that evidence was given---Landlord had successfully proved that the tenant had sub-let the premises in question---Concurrent findings of two courts below could not be disturbed in circumstances---Constitutional petition was dismissed.

Messrs Habib Bank Ltd. v. Messrs Publix Industries Ltd. 1991 CLC 1907; Khuda Bux through L.Rs. v. Muhammad Iqbal and 2 others 2008 CLC 1071 and Arshad Mehmood Siddiqui v. Muhammad Haroon 1992 MLD 810 rel.

Mahfoz-ul-Haq for Petitioner.

Mirza Atif M. Baig for Respondent No.1.

Date of hearing: 11th February, 2014.

2014 C L C 1080

[Sindh]

Before Nazar Akbar, J

MUHAMMAD SALEEM----Plaintiff

Versus

Messrs PREMIER AGGLOW INDUSTRIES (PVT.) LIMITED.----Defendant

Civil Suit No.74 of 2007 C.M.As. Nos.1416 of 2014 and 6939 of 2009, decided on 21st March, 2014.

Civil Procedure Code (V of 1908)---

----S. 151 & O. XXII, R. 3---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Refund of earnest money from the defendant---Inherent powers of court---Scope---Plaintiff filed suit wherein one of legal heirs on his death moved an application for refund of earnest money paid by his father to the defendant---Validity---Prayer for refund of earnest money was out of purview of the pleadings---Inherent powers under S.151, C.P.C. could not be stretched to change the complexion of a suit from the suit for specific performance of contract to the suit for refund of money---Legal heirs of the plaintiff had not been impleaded nor any application for the same had been moved---No material was on record whether applicant was the legal heir of the deceased---None of the legal heirs of deceased had authorized the applicant to claim/seek refund of earnest money from the defendant through court---Earnest money, if same was refundable, could not be refunded to the legal heirs unless they were impleaded in the suit or they produced succession certificate to claim the refund as legal heirs of the deceased---Application for refund of earnest money was dismissed in circumstances.

Province of West Pakistan v. Mistri Patel & Co. PLD 1969 SC 80 and Abdul Wahab v. Shahana Nasim 2010 YLR 1418 ref.

Collector of Central Excise and Sales Tax v. Pakistan Fertilizer Company Limited 2007 SCMR 351 rel.

Province of West Pakistan v. Mistri Patel & Co. PLD 1969 SC 80 and Abdul Wahab v. Shahana Nasim 2010 YLR 1418 distinguished.

Arshad Hussain for Plaintiff.

Salman Talibuddin for Defendant No.1.

Asim Iqbal for Defendant No.2.

Date of hearing: 14th March, 2014.

2014 C L C 1098

[Sindh]

Before Faisal Arab and Shaukat Ali Memon, JJ

MUHAMMAD JAMEEL through L.Rs.----Petitioners

Versus

Syeda SAKINA RAIZ and 2 others----Respondents

Civil Petition No.D-4099 of 2012, decided on 20th December, 2013.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Necessary party---Execution of relinquishment deed---Suit for specific performance, declaration, permanent injunction and damages was pending when predecessor-in-interest of petitioners filed application to be impleaded on the plea that he was a necessary party---Application was allowed by Trial Court but Lower Appellate Court, in exercise of revisional jurisdiction dismissed the same---Validity---Relinquishment deed was a registered document which was executed in year, 2005 after an order was passed by High Court in an application, while application under O.I, R.10, C.P.C. was moved in year, 2010---In the meanwhile petitioners remained silent and did not question the order or execution of relinquishment deed rather predecessor-in-interest of petitioners admitted its execution expressing his no concern with subject property in rent case filed against its tenants---High Court declined to interfere in order passed by Lower Appellate Court---Petition was dismissed in circumstances.

2007 SCMR 882; 2009 MLD 1237 and 2012 CLC 1477 distinguished.

Iftikhar Hussain Qureshi for Petitioners.

Faiz H. Shah for Respondents Nos.1 and 2.

Date of hearing: 19th November, 2013.

2014 C L C 1110

[Sindh]

Before Zafar Ahmed Rajput, J

Mst. WAZIRAN----Applicant

Versus

Dr. HABIB AHMED SIDDIQUI through Attorney and 3 others----Respondents

Civil Revision Application No.S-113 of 2012, decided on 11th October, 2013.

Civil Procedure Code (V of 1908) ---

----O. VII, Rr. 11 & 10---Qanun-e-Shahadat (10 of 1984), Arts.111 & 113---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Rejection of plaint at advance stage of suit---Scope---Contention of defendant was that there was no cause of action and suit of plaintiff was false, frivolous, vexatious and same was not maintainable---Application for rejection of plaint was accepted concurrently---Validity---Plaintiff took the plea of purchasing suit property from Evacuee Trust Property Board whereas her earlier stand in previous round of litigation was that Board was owner of said property---Plea of plaintiff in the present case was inconsistent to the plea made in previous round of litigation---Plaintiff was not willing to vacate property in question---Plaintiff had filed present suit with ill-will and mala fide intention to deprive the defendant from his right in the suit property---Alleged agreement to sell had been executed during pendency of previous litigation which could not be believed in such a bitter and hostile situation---Rejection of plaint could not be termed at advance stage of trial when same was rejected when suit was fixed for evidence of plaintiff---Copies of plaint and written statement with regard to previous round of litigation were filed which were admitted as undisputed documents---Facts judicially noticeable need not to be proved and no fact needed to be proved which had been admitted by the other party---Court in addition to plaint could look into admitted/ undisputed documents such as record of previous litigation to determine if same was liable to be returned or rejected---Plaintiff had failed to establish that alleged agreement to sell was true and genuine document---Plaintiff had no cause of action for maintaining suit for specific performance of contract---Still born suit should be buried at its inceptional stage in the interest of litigant parties and judicial system itself---Impugned order was based on proper application of law---Revision was dismissed in limine.

Mst. Hajiyani Khadija Bibi v. Dawood and others 2003 MLD 828 and Mir Sahib Khan v. Janan 2011 SCMR 27 rel.

Bahadur Ali Shah for Applicant.

Date of hearing: 7th October, 2013.

2014 C L C 1123

[Sindh]

Before Nadeem Akhtar, J

Mst. AZIZ BANO through L.Rs. and others----Plaintiffs

Versus

Khalifa AZIZ MIAN through L.Rs.and others----Defendants

Suit No.323 of 2013 and C.M.A. No.3084 of 2014, heard on 10th April, 2014.

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

----S. 7, proviso [as amended by S.2 of Sindh Civil Courts (Amendment) Act (III of 2010)]--- (Sindh) High Court--- Original civil jurisdiction--- Minimum limit of pecuniary jurisdiction---Civil suits and proceedings pending in the (Sindh) High Court in its original civil jurisdiction before change in minimum limit of pecuniary jurisdiction brought about by Sindh Civil Courts (Amendment) Act, 2010---Such suits and proceedings shall continue to be tried and decided by the (Sindh) High Court---Minimum limit of pecuniary jurisdiction of the (Sindh) High Court was changed/enhanced through the Sindh Civil Courts (Amendment) Act, 2010, which came into force on 24-2-2011---Proviso to S.7 of Sindh Civil Courts Ordinance, 1962 specifically provided that suits or proceedings pending before the (Sindh) High Court in its original civil jurisdiction prior to commencement of Sindh Civil Courts (Amendment) Act, 2010, shall not be affected by the change/enhancement in the minimum limit of pecuniary jurisdiction of the (Sindh) High Court; and all such suits and proceedings shall continue to be tried and decided by the (Sindh) High Court.

K.B. Bhutto for Plaintiffs.

Ch. Muhammad Hanif for Defendant No.1.

Raza Rabbani, Saalim Salam Ansari and M. Zeeshan Abdullah for Defendants Nos.8 to 13.

Date of hearing: 10th April, 2014.

2014 C L C 1142

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD SALEEM and another----Plaintiffs

Versus

MUHAMMAD ALTAF and 12 others----Defendants

C.M.As. Nos.5465, 5466 of 2009, 11849 of 2011 and 2499 of 2013 in Suit No.744 of 2009, decided on 3rd May, 2013.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.39, 42, 54 & 55---Suit for cancellation of documents, declaration, injunction and damages---Application for rejection of plaint to the extent of one defendant---Scope---Said defendant had no nexus with the suit and rejection of plaint to his extent would cause no prejudice to the plaintiff---Main relief sought by plaintiff was against first defendant---Second defendant/applicant in question had already sold the subject property, and had no nexus with the same---First defendant, who was contesting the suit in question recorded his "no objection" if plaint with regard to second defendant was rejected---No prejudice would be caused to the plaintiff if the plaint was rejected against second defendant, who had already sold the subject property---Application for rejection of plaint filed by second defendant was allowed in circumstances and plaint with respect to him was rejected.

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

----O. VII, R. 11---Rejection of plaint---Purpose---Purpose of rejection of plaint was that still born suit ought to be buried at its very inception; that no time should be consumed on fruitless litigation, and that plaintiff should have a chance to retract his steps at the earliest possible time.

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

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

----O. VII, R. 11---Rejection of plaint, application for---Documents to be looked into by the Court---Apart from averments of plaint, the court could look into admitted/undisputed documents such as previous record of litigation---Court while doing so had to keep in mind the true spirit of O.VII, R. 11, C.P.C, i.e. incompetent suit should be buried at its inception without any delay.

Mst. Hajiani Khatija Bai and others v. Haji Dawood and 11 others 2003 MLD 28 ref.

Muhammad Mustafa Hussain for Plaintiff.

Basil Nabi Malik for Defendants Nos.1 to 5.

Zeeshan Adhi for Defendant No.7.

Jafar Raza for Defendants Nos.9 and 10.

2014 C L C 1158

[Sindh]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

Mrs. FARAH HAMAYUN SHEHZAD BALOCH----Petitioner

Versus

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

Constitutional Petition No.D-1159 of 2005, decided on 22nd October, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Amenity plot---Conversion---Dispute was with regard to raising of construction over amenity plot, by a school---Validity---In civilized societies everywhere in the world, civic facilities are meant for benefit of public at large are to be consciously guarded to protect interest of residents of the area and public at large---Authorities were duty bound to check that no unauthorized or illegal construction was raised over any piece of land in the scheme which under the layout plan was meant for any other particular purpose/amenity purpose---Even when amenity plot was to be changed for the benefit of public at large, then procedure prescribed by law for such purpose was to be adhered to; objections were to be invited before change of use and due opportunity of hearing was to be given to residents of the area who were likely to be adversely affected---School was being run in a residential area and disputed plot was originally meant for park, which was surrounded by walls and had cemented floor and was contrary to original scheme---High Court directed the authorities to demolish all illegal construction over disputed plot and restore the same to its original position of park / garden, meant for the use of residents of the area---Petition was allowed in circumstances.

Presidential Order 7 of 1980 (PLD 1981 Central Statues 33); Irfan Merchant and others v. Federation of Pakistan through Ministry of Environmental Protection and others 2013 CLC 853; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and others 1999 SCMR 2883; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 and Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394 rel.

Yousuf Moulvi for Petitioner.

S. Mohsin Imam, D.A.-G. for Respondent No.1.

Nazar Hussain Dhoon for Respondent No.2.

Sohail H.K. Rana for Respondent No.3.

Date of hearing: 18th September, 2013.

2014 C L C 1172

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

Mst. HAMIDA FATIMA and another----Petitioners

Versus

HASHMAT ALI CHAWLA and 3 others----Respondents

Constitutional Petition No.D-4177 of 2011, decided on 29th March, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2), O.I, R.10 & O.XVII, R.3---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance---Scope of S.12(2), C.P.C.---Lower Courts dismissed petitioner's applications under S.12(2) and O.I, R.10, C.P.C. filed in a dismissed suit on the basis of agreement to sell which the petitioner had entered into with one of the parties to the said dismissed suit---Validity---Jurisdiction of civil court under S.12(2), C.P.C. could be invoked where a judgment, decree or order was obtained by fraud or misrepresentation---Party was bound by determination of court---Orders passed with jurisdiction, whether such orders were right or wrong, were binding on the parties unless such orders had been set aside by proper forum---Fraud and misrepresentation vitiated proceedings---Where civil court was satisfied that an order or decree had been obtained by fraud or misrepresentation, court could recall the order or decree at its own motion without application by an aggrieved party under S.12(2), C.P.C.---Section 12(2), C.P.C. provided immediate (expedious) remedy to an aggrieved person without filing a fresh suit---Petitioner had no locus standi to revive proceedings of the suit dismissed under O.XVII, R.3, C.P.C.---Petitioner failed to establish ownership of suit property---Party to the suit who entered into agreement to sell with petitioner was neither bona fide owner of the suit property nor had any legal authority to sell the same---Petitioner having no legal right over the suit property failed to establish that decree was obtained by fraud or misrepresentation---Petition, being devoid of merits, was dismissed.

1980 CLC 595; PLD 1985 Pesh. 91; 2000 YLR 2723 and 2004 CLC 1175 distinguished.

Naseer Ahmad for Petitioners.

Dildar M.S. Shaikh for Respondent No.2.

Date of hearing: 23rd October, 2013.

2014 C L C 1218

[Sindh]

Before Nazar Akbar, J

NASIM BEG----Plaintiff

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Chairman and 2 others----Defendants

Suit No.139 of 2010, decided on 28th April, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Companies Ordinance (XLVII of 1984), S.224(2)---Discretion of court as to declaration of status or right---Bar to such declaration---Trading by director, officers and principal shareholders of a company---Show-cause notice under S.224(2) of the Companies Ordinance, 1984---Suit for declaration and permanent injunction challenging issuance of show-cause notice to plaintiff by the Securities and Exchange Commission of Pakistan (SECP), under S.224(2) of the Companies Ordinance, 1984---Maintainability of such suit---Contention of the plaintiff was inter alia that he had not realized any tenderable and/or other gain and was not therefore liable to tender any amount under S.224 of the Companies Ordinance, 1984---Held, that declaration sought by plaintiff was not in respect of any legal character of the plaintiff---Very fact that plaintiff had submitted a detailed reply to the show-cause noticed issued by the SECP, was contrary to his claim in the plaint and in the said reply plaintiff had not claimed that the defendants had acted illegally, in a mala fide way or that they were not competent to issue impugned notice under S.224 of the Companies Ordnance, 1984---Fact that plaintiff had submitted to the jurisdiction of the SECP unconditionally amounted to accepting jurisdiction of SECP to issue notice under the Companies Ordinance, 1984---Plaintiff should have appeared before the competent authority for personal hearing, which he had avoided---Plaintiff had not sought declaration as to his own rights and status; and declaratory relief could only be granted in respect of legal character which was not under threat in the present case---Plaintiff was therefore neither entitled to declaration or permanent injunction---Suit being incompetent and not maintainable, was dismissed in circumstances.

Karsaz Construction Company v. Pakistan 1999 CLC 1719 and Alvi Sons Ltd. v. Government of East Pakistan PLD 1968 Kar. 222 rel.

Emad-ul-Hassan for Plaintiff.

Naveed-ul-Haq for Defendants Nos.1 and 2.

Date of hearing: 10th December, 2013.

2014 C L C 1229

[Sindh]

Before Muhammad Ali Mazhar, J

Messrs AL-MEEZAN HAJJ GROUP (PRIVATE) LIMITED through Chief Executive----Plaintiff

Versus

Messrs PAKISTAN HAJJ GROUP ORGANIZER COMMITTEE (PHGOC) and 3 others----Defendants

Suit No.845 and C.M.A. No.7669 of 2013, decided on 9th September, 2013.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Injunction, grant of---Factors essential to be considered by Court stated.

While granting the injunction, Court has to consider in each case not merely whether the plaintiff's legal right has been infringed or even merely infringed, but also whether under all circumstances of the case, the plaintiff has to be granted injunction as a proper and appropriate remedy for such infringement. This discretion is required to be exercised in a judicial manner and only in the clear case and not in an arbitrary manner. The power of the Courts to issue injunction should be exercised with great caution and only where the reason and necessity therefor is clearly established.

Before seeking the injunctive relief, it is incumbent upon the plaintiff to show a prima facie right which has been infringed.

Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd., 1991 MLD 284; AIR 1943 Madrass 497; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers Housing Authority and others 2010 MLD 1267; Jeremy's Equity Jurisprudence; Promeroy's Equity Jurisprudence; Union of India v. Bakhshi Amrik Singh AIR 1963 Punjab 104 and Ghulam Nabi Shah v. PIAC 2013 PLC (C.S.) 768 rel.

(b) Election---

----Election under challenge---Duty of Court stated.

Even if the election is challenged, the elected representatives should be allowed to perform their duties. The Court has a very low tendency in denying the rights of elected representatives from discharging their functions in a democratic manner.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Injunction, grant of---Scope---Party seeking such relief would have to show that his conduct in matter in dispute remained fair and honest---Principles.

An injunction is an equitable remedy and he who seeks equity must do equity. Hence, a party who asks for an injunction must be able to satisfy the court that his dealing of the matter had been fair, honest and free of any fraud or illegality, and had not acted in an unfair or inequitable manner. An equitable remedy will not be granted unless an applicant praying for the relief is fair and honest.

Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd., 1991 MLD 284; AIR 1943 Madrass 497; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers Housing Authority and others 2010 MLD 1267; Jeremy's Equity Jurisprudence; Promeroy's Equity Jurisprudence; Union of India v. Bakhshi Amrik Singh AIR 1963 Punjab 104 and Ghulam Nabi Shah v. PIAC 2013 PLC (C.S.) 768 rel.

Muhammad Safdar for Plaintiff.

Yawar Faruqi and Irfan Ahmed Memon for Defendants Nos.1 and 2.

Nafees Usmani, A.A.-G.

2014 C L C 1242

[Sindh]

Before Aqeel Ahmad Abbasi, J

Mst. REHANA HAFEEZ----Petitioner

Versus

MUHAMMAD ALI alias EHSAN through L.Rs.----Respondents

Constitutional Petition No.S-31 of 2012, decided on 22nd July, 2013.

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

----Ss. 15, 2(f) & 2(g)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment petition---Contention of landlord was that premises was required for his personal bona fide need---Denial of relationship of landlord and tenant by the tenant---Ejectment petition was accepted concurrently---Validity---Landlord was co-owner in the subject tenement which had been acknowledged by the tenant---Tenant had not raised specific objection with regard to relationship of landlord and in her written statement---Tenant, after accepting the landlord as owner and co-sharer of the premises had paid rent---Nothing had been produced to create doubt with regard to entitlement or co-ownership of the landlord over the tenement---No one had claimed exclusive title over the premises nor anyone including the tenant had disputed the title of landlord---Tenant could not be allowed to dispute title of landlord to create a false ground with regard to relationship of landlord and tenant---No factual and legal impediment existed for the landlord in seeking ejectment of the tenant---Statement of landlord with regard to personal bona fide need remained unshaken in cross-examination by the tenant---No evidence or material contrary to the assertion with regard to bona fide personal need was brought on record---Impugned judgment did not suffer from any illegality nor contained any perverse findings on facts---Concurrent findings recorded by the courts below in such matters could not be disturbed by the High Court in its constitutional jurisdiction unless any grave illegality, jurisdictional error or perverse findings on facts were pointed out---Constitutional petition was dismissed.

Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429 and Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 rel.

(b) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Constitutional jurisdiction of High Court---Scope---Concurrent findings recorded by the courts below in rent matters could not be disturbed by the High Court in its constitutional jurisdiction unless any grave illegality, jurisdictional error or perverse findings on facts were pointed out.

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

----S. 2 (g)---"Landlord"---Meaning---"Landlord" meant the owner of the premises and included a person for the time being authorized or entitled to receive rent in respect of such premises.

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

----S. 2(g)---"Personal use"---Meaning---"Personal use" meant the use of premises by the owners or his wife (or husband), son or daughter.

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

----O. XX, R. 1(2)---Pronouncement of judgment---Scope---Provisions of O.XX, R.1(2), C.P.C. were directory and not mandatory in nature.

Juma Khan and others v. Mst. Bibi Zenaba and others PLD 2002 SC 823 and Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408 rel.

Hafiz Abdul Baqi for Petitioner.

Muhammad Habib Jalib for Respondents.

Date of hearing: 26th February, 2013.

2014 C L C 1275

[Sindh]

Before Abdul Maalik Gaddi, J

VENUS DISTRIBUTORS (PVT.) LTD.----Appellant

Versus

ABDULLAH HANIF and others----Respondents

IInd Appeal No.147 of 2010, decided on 14th February, 2014.

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

----Art. 129(e)---Civil Procedure Code (V of 1908), S.100---Second appeal---Recovery of money---Judicial and official acts---Concurrent findings of fact by two Courts below---Suit filed by plaintiff for recovery of money was concurrently decreed in his favour by Trial Court and Lower Appellate Court---Plea raised by defendant was that Trial Court did not hear him before passing judgment in favour of plaintiff---Validity---Presumption of truth was attached under Art.129(e) of Qanun-e-Shahadat, 1984, to the record of Court---Nothing was brought on record to show that defendant was not heard, even affidavit of defendant or his advocate was not filed to such effect---Plaintiff proved his case on the basis of convincing evidence on record and Trial Court directed defendant to pay suit amount to plaintiff---Such finding of Trial Court was upheld by Lower Appellate Court and the same could not be disturbed unless it was shown that the findings were against evidence on record---Conditions for filing second appeal under S.100, C.P.C. were missing---High Court declined to interfere in judgments and decrees passed by two Courts below, as defendant failed to point out any illegality or infirmity in them---Second appeal was dismissed in circumstances.

Syed Ali Asghar and 3 others v. Creators (Builders) 2001 SCMR 279 and Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 rel.

Mrs. Perveen Pervaiz for Appellant.

Khalid Javed for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2014 C L C 1295

[Sindh]

Before Nazar Akbar, J

SADRUDDIN----Decree-holder

Versus

C.V. "LAMON BAY" through Master/Chief Officer and 3 others----Judgment-debtors

C.M.As. Nos.461 and 606 of 2012 in Ex. No.66 of 2004, decided on 20th December, 2013.

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

----O. VI, R. 17---Amendment of execution petition---Applicability of O.VI, R.17, C.P.C.---Scope---Provisions of O.VI, R.17, C.P.C. were not applicable to the execution petition---Amendments should be made for the purpose of determining the real questions in controversy between the parties---No controversy was in existence between the parties---Execution proceedings would start on culmination of controversies between the parties on pronouncement of judicial order---Contents of execution petition were not pleadings as applicant could not write anything in the application from his own sweet will nor could plead anything even if it was left undetermined by the court in the judgment---Execution petition was a pro forma and it had to be filled by the applicant in accordance with the statement of decree which in itself was a "formal expression of adjudication"---Neither execution petition could be treated as "pleadings" nor courts were empowered to amend the contents of the same during the process of achieving the satisfaction of a decree---Execution petition on amendment would not continue to be in conformity with the decree on court file---Authority of Executing Court was limited---Such court could not go beyond the decree---Order on an amended execution application would amount to going beyond the decree---Executing Court had no authority to amend an execution application and pass orders on such amended execution petition and ignore the decree---Power of court in terms of provisions of O.VI, R.17, C.P.C. was not available to the Executing Court---Application for amendment in execution application was dismissed in circumstances.

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

----O. VI, R.1---"Pleadings"---Meaning---"Pleadings" would mean plaint or written statement.

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

----O. XX, R. 6 & S. 2 (2)---Decree, contents of---Scope---Decree was formal expression of an adjudication which conclusively determined the rights of parties with regard to all or any of the matters in controversy in the suit---Contents of decree were compulsorily required to "agree with the judgment".

Shaiq Usmani for Decree-holder

Saifuddin Pishori holds brief for R.F. Virjee for Judgment-debtors.

Date of hearing: 20th December, 2013.

2014 C L C 1312

[Sindh]

Before Nazar Akbar, J

Mrs. MEHER ROHINTON MINWALLA----Applicant

Versus

DARAYUS CYRUS MINWALLA and others----Respondents

C.M.As. Nos. 96 and 102 in Ex.No.5 of 2005, decided on 29th January, 2014.

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

----R. 50---Withdrawal of power of attorney by advocate of party---Effect---Applicant sought restoration of her execution petition which was dismissed after withdrawal of power of attorney by her advocate---Validity---Grievance of applicant was that intimation notice was issued to previous attorney after withdrawal of Vakalatnama---Issuance of notice to the attorney of applicant was not even required after compliance of notice under R.50 of Sindh Chief Court Rules (O.S.)---Court had shown grace by issuing notice, in the given facts and circumstances of the case, the Court could not ignore deliberate and wilful negligence of applicant herself in pursuing the case---Applicant failed to show bona fide in prosecuting her case with due diligence---High Court declined to restore execution petition---Application was dismissed in circumstances.

Messrs United Bank Limited v. Messrs. Plastic Pack (Pvt.) Limited 2012 CLD 239; United Bank Limited v. The Chairman, Banking Tribunal-I, Lahore 1999 MLD 3267; Alamgir v. The State 1988 SCMR 642 distinguished.

Bashir Ahmed v. Settlement of Rehabilitation Commissioner 1982 SCMR 188; Rafiq Ahmed v. Abdul Haleem 1982 SCMR 1229; Muhammad Rahim v. Mst. Begum Kaniz Fatima Hayat 1986 CLC 178 and Zulfiqar Ali v. Lal Din and others 1974 SCMR162 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Provisions of Art.10-A of the Constitution are not for prosecutor to claim "fair trial and due process"---Protection of Art.10-A of the Constitution is available only to defendant and / or accused facing civil or criminal trial, as the case may be so that they may not be condemned unheard or treated unfairly in the process of adjudication.

Muhammad Safdar for Decree-holder.

Salahuddin Ahmed for Judgment-debtor No.2 along with Nadeem Ahmed.

Ch. Mamoon for Objectors.

S. Arshad Ali holding brief for Shahenshah Hussain for Contemnors.

Date of hearing: 29th January, 2014.

2014 C L C 1318

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD ESSA----Applicant

Versus

ALI MUHAMMAD and 4 others----Respondents

Civil Revision Application No.28 of 2011, decided on 30th April, 2014.

Limitation Act (IX of 1908)---

----S. 5---Specific Relief Act (I of 1877), S.42---Suit for declaration---Condonation of delay---Ground of illness---Appellate Court dismissed application for condonation of delay---Validity---Applicant applied for the supply of certified copies even after the expiry of period of limitation for filing appeal---Medical certificate of the applicant did not mention that he remained in the hospital as an in-door patient and was bed-ridden and so was unable to file the appeal---No details of medicines or medical tests were shown in the certificate---Law favoured the vigilant and not the indolent---Applicant was not entitled to any concession for his negligence in filing appeal with inordinate delay---Applicant failed to show sufficient cause and reasonable ground to condone the delay in filing appeal whereas he was bound to furnish plausible explanation for delay of each and every day in filing appeal---No illegality or irregularity was pointed out in the impugned order---Revision was dismissed.

Lal Khan through legal heirs v. Muhammad Yousuf through legal heirs PLD 2011 SC 657; IGI Investment Bank Ltd. v. Messrs Admore Gas (Pvt.) Ltd. and another 2014 CLD 658; Allah Dino v. Haji Ahmed through legal heirs and 3 others PLD 2006 Kar. 148 and Muhammad Hussain v. Waheed Ahmed and others 2000 MLD 281 rel.

Muhammad Ishaque Khoso for Applicant.

Zain-ul-Abdin Mirza for Respondents.

Date of hearing: 10th March, 2014.

2014 C L C 1334

[Sindh]

Before Zafar Ahmed Rajput, J

ZAHID HUSSAIN and 10 others----Applicants

Versus

SHAMASUDDIN and 9 others----Respondents

Civil Revision No.S-191 of 2010, decided on 24th December, 2013.

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

----Ss. 11, 53, 164 & 172---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Correction of revenue record---Civil Court, jurisdiction of---Plaintiffs were aggrieved of revenue entry and filed civil suit to get disputed entry in revenue record cancelled---Trial Court rejected the plaint and the order was maintained by Lower Appellate Court---Validity---If plaintiffs were dissatisfied with the orders of revenue authorities, they should have filed revision under S.164 of West Pakistan Land Revenue Act, 1967, before Board of Revenue---Plaintiffs could not bypass the highest forum in revenue hierarchy---Any person aggrieved by some entry in record of rights could invoke provision of S.53 of West Pakistan Land Revenue Act, 1967---Plaintiffs questioned order of cancellation of entry in their favour, thus provision of S.53 of West Pakistan Land Revenue Act, 1967, was not applicable---Jurisdiction of Civil Courts to entertain any suit was barred under S.11 of West Pakistan Land Revenue Act, 1967, which was filed on account of any act or omission of any revenue officer unless plaintiffs could prove that they had presented appeal allowed by the law for the time being in force within the period of limitation of such suit---High Court declined to interfere in orders passed by two Courts below as there was no material irregularity or exercise of jurisdiction not vested in the Courts or failure to exercise of jurisdiction vested in it---Revision was dismissed in circumstances.

Abbasia Cooperative Bank (Now Punjab Cooperative Bank) v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3; Mian Muhammad Latif v. Province of West Pakistan and another PLD 1970 SC 180; Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671; Muhammad Jamil Asghar v. Improvement Trust Rawalpindi PLD 1965 SC 698; Muhammad Zafar and 23 others v. Yousuf Ali and 9 others 2003 CLC 1922 and Rais Muhammad Khan v. Ali Nawaz and others 1997 MLD 1309 distinguished.

Abdul Rehman v. Sher Zaman and another 2004 CLC 1340 and Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana (Barrage Mukhtiarkar) and others 2007 CLC 1790 ref.

Muhammad Jalat Khan v. Faisal Hayat Khan and 4 others 2003 CLC 837 and Muhammad Yousaf Khan Bugti and another v. Province of Sindh through Senior Member, Board of Revenue and 5 others 2013 CLC 1155 rel.

Mukesh Kumar G. Karara for Applicants.

Najeebullah Jalbani for Respondents.

Date of hearing: 16th September, 2013.

2014 C L C 1343

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

ALI RAZA----Petitioner

Versus

MUHAMMAD SHOAIB and 2 others----Respondents

Constitutional Petition No.D-3662 of 2011, decided on 21st April, 2014.

Registration Act (XVI of 1908)---

----S. 17---Civil Procedure Code (V of 1908), O.XXIII, R.3---Specific Relief Act (I of 1877), S.42---Gift---Suit for declaration---Unregistered gift-deed---Under S.17 of the Registration Act, 1908 no right, title or interest in immovable property of the value of more than one hundred rupees could be created without registered document---Despite compromise between the parties, court could not grant declaration in respect of unregistered gift-deed in violation of statutory provision---Court was bound to apply correct law---Constitutional petition was dismissed.

Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29; Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. PLD 1968 Kar. 115; Shaukat Habib and 5 others v. Raja Muhammad Bashir and another 2004 YLR 1775 and Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi and another PLD 1998 Kar. 291 ref.

Allah Diwaya v. Ghulam Fatima, represented by Ahmad Sher and others PLD 2008 SC 73; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (Formerly Messrs Japan Cotton and General Trading Co. Ltd.) Karachi PLD 1976 SC 781; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311 rel.

Naveed Ali for Petitioner.

Shafiq Ahmed for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 14th April, 2014.

2014 C L C 1367

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD RASHID HUSSAIN SHAMSI----Appellant

Versus

Syed HAMEED-UD-DIN and another----Respondents

Ist Appeal No.1 of 2013, decided on 23rd August, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of dishonored cheques---Conditional leave to defend the suit---Failure to comply with the condition---Suit filed by plaintiff was decreed by Trial Court as defendant failed to comply with the conditions imposed at the time of grant of leave to defend the suit---Validity---Once conditional leave was granted to defendant to appear and defend the suit filed by plaintiff, defendant could only appear and defend the suit when the condition for grant of leave to defend was met---Defendant having failed to meet the condition imposed by Trial Court, Trial Court was justified in decreeing the suit of plaintiff---Defendant had taken full responsibility of paying share of plaintiff and post-dated cheques issued by him to plaintiff which were in fact for payment of the share of plaintiff in respect of his investment in Joint Venture Agreement---High Court declined to interfere in judgment and decree passed by Trial Court in favour of plaintiff---Appeal was dismissed in circumstances.

United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 MLD 1835 rel.

Fidaaly v. Syed Iqbal Shabbir and another PLD 1960 (WP) Kar. 241 and Industrial Control (Pak) (Pvt.) Ltd. and others v. Alpha Insurance Company Limited and another 1994 CLC 1526 ref.

Raheel Ali Bhatti for Appellant.

Raja Sikandar Khan for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 7th August, 2013.

2014 C L C 1372

[Sindh]

Before Nazar Akbar, J

TANVEER AHMED SHAH----Petitioner

Versus

RENT CONTROLLER, FAISAL CANTT., KARACHI and another----Respondents

Constitutional Petition No.S-673 of 2014, decided on 30th May, 2014.

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

----S. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Non-filing of copy of impugned order---Effect---Ejectment of tenant---Interim order, remedy against---Scope---Impugned orders had not been filed by the petitioner with the Constitutional petition, Court without examining the same could not set aside the order nor maintainability of constitutional petition could be determined---Illegality/irregularity committed by the Trial Court would provide good grounds to the petitioner to strike the final order in appeal---Authenticity of documents could be determined in the light of evidence produced by the parties---Rent Controller was supposed to formulate "points for determinations/issues" after recording of evidence and hearing the parties in the judgment---Petitioner could capitalize irregularities committed in the proceedings in the appeal against the final order---No remedy had been provided against any interim order passed under the Cantonments Rent Restriction Act, 1963---Petitioner had misused the authority of High Court to delay the proceedings of the case---Constitutional petition was dismissed with cost of Rs.10,000 and Rent Controller was directed to decide the matter within a period of four months.

Niaz Khalil v. Muhammad Shafiq 1995 SCMR 791 and Mst. Shagufta Shaheen v. Muhammad Ismail Qureshi PLD 2011 Pesh. 238 ref.

Niaz Khalil v. Muhammad Shafiq 1995 SCMR 791 and Mst. Shagufta Shaheen v. Muhammad Ismail Qureshi PLD 2011 Pesh. 238 distinguished.

Nazakat Ali Tanwari for Petitioner.

Nemo for Respondents.

Date of hearing: 20th May, 2014.

2014 C L C 1392

[Sindh]

Before Mushir Alam, C.J. and Nadeem Akhtar, J

MUHAMMAD IQBAL through duly authorized Attorney----Petitioner

Versus

MUHAMMAD AHMED RAMZANI and 2 others----Respondents

Constitutional Petition No.D-277 and Miscellaneous No.1623 of 2012, decided on 6th August, 2013.

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

----Ss. 12(2) & 96---Limitation Act (IX of 1908), Ss. 3, 5 & Art.154---Constitution of Pakistan, Art.199---Constitutional petition---First appeal---Limitation---Application for condonation of delay of six (6) months and ten (10) days---Appellate Court without deciding such application, which remained pending about three (3) years, remanded case to Trial Court for its decision afresh after accepting appeal on basis of compromise filed by parties---Preliminary decree passed in post-remand proceedings by Trial Court on basis of another compromise signed by plaintiff's attorney---Plaintiff's application under S.12(2), C.P.C. for setting aside preliminary decree on ground that his attorney was authorised to represent him in appeal, but not in suit---Order of Trial Court dismissing application under S.12(2), C.P.C. upheld by Revisional Court---Validity---Court could not assume jurisdiction in a time-barred matter without condoning delay first, otherwise not only its entire proceedings, but all subsequent proceedings arising therefrom would also become void and without jurisdiction---Appellate Court without deciding question of limitation first had accepted compromise in time-barred appeal and set aside impugned judgment/decree and remanded case to Trial Court---Judgment of Appellate Court without fulfilling mandatory condition of deciding question of limitation first was illegal and coram non judice, thus, its order accepting compromise in appeal, preliminary decree and order of Revisional Court were also illegal and coram non judice---When very foundation was held to be illegal or void, then entire superstructure built thereon would fall to ground automatically---Such illegality committed by Appellate Court resulted not only into multiplicity of proceedings, but also grave miscarriage of justice---High Court accepted constitutional petition and set aside judgment of Appellate Court, preliminary decree passed by Trial Court, order of Revisional Court and remanded case to Appellate Court for deciding first application under S.5 of Limitation Act, 1908.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124 rel.

(b) Jurisdiction---

----Jurisdiction of court was subject to limitation---Court could not assume jurisdiction in a time-barred matter without condoning delay first, otherwise not only its entire proceedings, but all subsequent proceedings arising therefrom would also become void and without jurisdiction---Principles.

The jurisdiction of a court is always subject to limitation. If the proceedings brought before a court is barred by time, the court cannot assume jurisdiction and shall have no jurisdiction in the matter, unless the delay is condoned first. Till such time, the jurisdiction of the court will be restricted only to the extent of deciding the question of limitation. In case such question is decided by the court by declining to condone the delay, the proceedings shall remain time-barred and the matter will end there. On the other hand, if the delay is condoned, only then shall the court have the jurisdiction to proceed further in the matter. Thus, it is mandatory for the court to decide the question of limitation before entertaining the matter and before passing any other order therein. Since the court shall have no jurisdiction in a time-barred proceedings, all steps taken and orders passed in any such barred proceedings, and in all proceedings arising therefrom, shall be void and without jurisdiction.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124 rel.

(c) Constitution of Pakistan---

----Art. 203 --- Supervisory jurisdiction of High Court --- Scope --- High Court could exercise such jurisdiction in cases of total absence of jurisdiction or excess of jurisdiction by Subordinate Court --- Principles.

Article 203 of the Constitution has conferred the general power upon the High Court, without any limits, fetters or restrictions to supervise and control all Subordinate Courts in all administrative as well as judicial matters, and has made the High Court the custodian of justice within the territorial limits of its jurisdiction. In cases where there is a total absence of jurisdiction or the manifest excess of jurisdiction, the High Court will not refrain in exercising its power under Article 203 by remedying the error, mistake, wrong or illegality committed by a subordinate court.

Fazal-ur-Rehman for Petitioner.

Muhammad Arshad Tariq for Respondent No.1.

Date of hearing: 7th May, 2013.

2014 C L C 1407

[Sindh]

Before Muhammad Ali Mazhar, J

Mst. DODA BEGUM----Plaintiff

Versus

ISRAR HUSSAIN ZAIDI and others----Defendants

C.M.As. Nos.9255 and 6333 of 2013 in Suit No.5 of 1998, decided on 21st February, 2014.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), S. 14 & Art.162---Specific Relief Act (I of 1877), S.42---Review of consent order---Scope---Limitation---Condonation of delay---Review application against the decree or order of High Court could be filed within 20 days under Art.162 of Limitation Act, 1908---Application for review of consent order was time barred as same was filed after the delay of more than two and half months---No application for condonation of delay was filed with the application---Delay of each and every day had to be explained for seeking condonation of delay which had not been done---Impugned order was passed with the consent of defendant---Defendant had not sought review of said order but she had requested for some modification in the same---No reason had been mentioned for deviating or resiling from the consent order---Scope of review was limited which must confine to the errors apparent on the face of record---"Powers of review" conferred upon the High Court were not synonymous to the powers conferred in "appeal"---Review petition would be maintainable only upon discovering of new and important piece of evidence or when there existed an error apparent on the face of record---Wrong decision could be subjected to an appeal to a higher forum but review was not permissible on the ground that court proceeded on wrong presumption of law---Person seeking review of a judgment or an order must bring his case within the four corners of provisions of O.XLVII, R.1, C.P.C.---Purpose of review could not be a re-hearing of case---Consent decree or order could not be reviewed on the ground that same was obtained by fraud, undue influence or coercion or on the ground that counsel had exceeded his authority in making the promise---Application for review was dismissed in circumstances.

Assistant Director, Labour and Inspector of Factories, Hyderabad v. Naeem Ali Muhammad Munshi, Employer, Shalimar Food Products 1990 PLC 609; Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144 and K.E.S.C. Ltd. v. Lawari and 4 others PLD 2000 SC 94 distinguished.

Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 ref.

Uda Ram's case AIR 1998 Rejasthan 186 rel.

Gharib Nawaz Daccawala for Plaintiff.

Moulvi Iqbal Haider for the Legal Heirs of Defendant No.1.

Defendants Nos.2 and 3: Ex parte, Date of hearing: 28th October, 2013.

2014 C L C 1421

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ZAHID SIDDIQUE----Petitioner

Versus

Mst. SEEMA NAZ and another----Respondents

M.As. Nos.10587 of 2012, 6400 and 6401 of 2013 in Constitutional Petition No.S-877 of 2012, decided on 21st October, 2013.

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

----S. 5, Sched. Part-I, Item 9---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of gold ornaments---Husband, right of---Petitioner filed suit against his ex-wife for recovery of gold ornaments which he claimed to have been given to her by his parents and other relatives, at the time of marriage---Family Court decreed the suit in favour of petitioner but Lower Appellate Court dismissed the suit on the ground that Family Court was not competent to entertain the suit---Validity---Present was not a dispute relating to marriage, family affair or for matters connected therewith but was an outcome of alleged breach of promise allegedly made by wife or her parents for returning gold ornaments---Such cause/dispute did not fall within the meaning of items mentioned in S.5, Sched. (Part-I) of West Pakistan Family Courts Act, 1964---Husband had no right to file a suit under Item No.9 of Sched. (Part-I), S.5 of West Pakistan Family Courts Act, 1964---Lower Appellate Court committed no illegality in setting aside judgment and decree passed by Family Court---Constitutional Petition was dismissed in circumstances.

Shoukat Ali Pathan for Petitioner.

Mukhtiar Ahmed Khanzada, State Counsel.

Date of hearing: 21st October, 2013.

2014 C L C 1459

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

NOOR MUHAMMAD----Petitioner

Versus

MUHAMMAD IQBAL and 5 others----Respondents

Constitutional Petition No.D-4357 of 2013, decided on 31st March, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Suit for declaration---Fraud---Scope---Contention of respondent was that applicant had not preferred any appeal against the impugned judgment and decree and same had attained finality---Application under S.12(2), C.P.C. was dismissed concurrently---Validity---Suit filed by the respondent was decreed in his favour which was contested by the applicant---Applicant in the said application had not challenged the impugned judgment and decree which had attained finality---Application filed under S.12(2), C.P.C. was not substitute to regular appeal or revision or review nor such provisions could be construed as something over and above the normal modes of questioning a decree by way of appeal, revision or review---Both the courts below had acted in accordance with law and had properly appreciated the facts of the case---No illegality or material irregularity was committed by the courts below---Constitutional petition was not maintainable which was dismissed in limine.

United Bank Limited v. Messrs The Hinna Export Co. (Pvt.) Limited Office Karachi 1998 PSC 78 and Muhammad Ibrahim and another v. Group Captain Salehuddin and others 1987 SCMR 218 rel.

Muhammad Javed Tanoli for Petitioner.

2014 C L C 1497

[Sindh]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

KARACHI GOAN ASSOCIATION through Honourary Secretary----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Constitutional Petition No.D-2817 and Miscellaneous No.12642 of 2011, decided on 29th November, 2013.

West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S.4(e)---Constitution of Pakistan, Art.199---Constitutional petition---Public parks and playgrounds---Exemption of property tax---Alternate remedy, non-availing of---Petitioner was a welfare society of a specific community and had assailed notice of property tax issued by authorities for its land being used as park and playground---Plea raised by authorities was that petitioner did not avail departmental remedy, before approaching High Court---Validity---High Court set aside the notice and remanded the matter to authorities to adjudicate the same after giving proper opportunity of hearing to petitioner, through speaking order---High Court directed the authorities to determine whether the property for which exemption was being claimed was being put to commercial use or its usage was in terms as claimed by petitioner---High Court further directed the authorities to act in accordance with law and parameters as laid down and established by and in earlier judgment---Petition was disposed of accordingly.

Pakistan Cricket Board v. D.G. Excise and Taxation 2011 CLC 1894 and Hatim Ali Bhatti v. The Excise and Taxation Officer and others NLR 1989 TAX 38 ref.

Abdul Rehman for Petitioner.

Saifullah, A.A.-G. for Respondents.

2014 C L C 1509

[Sindh]

Before Shahnawaz Tariq, J

HASSAN IRANI through L.Rs.----Petitioners

Versus

MINHAJUNNISA through L.Rs. and 5 others----Respondents

Constitutional Petition No.S-429 of 2005, decided on 29th April, 2014.

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

----S. 15(2)--- Constitution of Pakistan, Art.199--- Ejectment application---Default in payment of rent---Bona fide personal need of landlord---Conversion of demised property---Tenant denied relationship of landlord and tenant and claimed ownership of demised property---Ejectment order of Rent Controller upheld by District Judge---Validity---Landlady had established her ownership of the demised property by producing necessary documents; she produced tenancy agreement signed by her and witnesses and rent receipts issued by her---Tenant failed to made out a case for interference in concurrent findings---Constitutional petition was dismissed in circumstances.

Haji Noor Muhammad and others v. Karachi Development Authority and 2 others, PLD 1975 Kar. 373; General Manager, Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal, PLD 2003 SC 952; Nasrullah Jan v. Mst. Farzana Begum, 2002 CLC 1523 and Syed Abdul Qadeem v. Additional Secretary and Member Judicial, Government of Pakistan and others, 2004 YLR 2097 rel.

Azhar Faridi for Petitioners.

Muneer-ur-Rehman for Respondent No.1.

2014 C L C 1519

[Sindh]

Before Syed Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

MANAGING DIRECTOR, KARACHI FISH HARBOUR AUTHORITY--- Appellant

Versus

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

H.C.A. No.237 of 2010, decided on 11th February, 2014.

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

----Ss. 33 & 30---Application for making award Rule of Court---Objections filed against such application, adjudication of---Principle---While hearing objections to an arbitration award, the Court could not sit in appeal on the award which had been passed after recording of evidence led by both parties, with reasons thereon---Court before which the arbitration award was filed, ought not to launch into an exercise of reappraisement of evidence or to set itself up as an Appellate Court, and it should only interfere with the award when there was an error on the face of the award.

Federation of Pakistan through Secretary, Ministry of Food, Islamabad and others v. Messrs Joint Venture Kocks K.G./Rist PLD 2011 SC 506; Haji Abdul Hameed & Co. v. Insurance Company of North America 1999 YLR 1213 and Joint Venture KG/RIST v. Federation of Pakistan reported as PLD 1996 SC 108 rel.

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

----First Sched.Cl.(3) & Ss.30 & 33 ---Arbitrator to make award within four months of entering of the reference---Scope---Contention of the appellant was that arbitration award be set side on the ground that the arbitrator had failed to make the award within the stipulated time-frame of four months per provisions of Clause 3 of the First Schedule to the Arbitration Act, 1940, and after passage of such time, the Arbitrator had become functus officio---Held, that once a party had chosen to participate in the proceedings before the Arbitrator, even if the time stipulated under Clause 3 of the First Schedule to the Arbitration Act, 1940 had lapsed, however by the conduct of the parties, such time-frame stood extended, ipso facto---Appellant, in the present, case was also estopped by its own conduct, as it had sought repeated adjournments during the arbitration proceedings---Appeal was dismissed.

WAPDA v. Khanzada Muhammad Abdul Haque Khan Khattak and Company PLD 1990 SC 359 rel.

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

----Ss. 13, 33 & 30---Appellant objected to the arbitration award on the ground that the Sole Arbitrator had framed issues to decide the controversy after recording of evidence, and such procedure was illegal---Validity--- Sole arbitrator had the authority to regulate its own procedure, and was not bound to follow any specific procedure, subject to the condition that the parties be allowed to lead their evidence as well as be provided with an opportunity to contest claims---Appellant in the present case, objected to the fact that issues were framed by the Sole Arbitrator after recording of evidence, which had done so as a matter of convenience to decide the controversy between the parties at hand and to give its findings on all issues which had arisen and were relatable to the evidence led by the parties, and none of the issues that were decided, were outside the scope of the evidence so lead by the parties---Appeal was dismissed.

The Premier Insurance Co. (Pakistan) Ltd. Karachi v. Ejaz Ahmed Khawaja and 3 others 1981 CLC 311 rel.

Messrs Design Group of Pakistan v. Clifton Cantonment Board 1990 MLD 261; Messrs Fazal Textile Mills Ltd. v. Messrs Sattar Cotton Ginning Factory Ltd. 1982 CLC 97; Messrs Ismail Brothers (Karachi) Ltd. Karachi v. Messrs S.M. Fazil & Co. Karachi PLD 1958 (W.P.) Kar. 158; Ramnath Narendranath v. Nanjee Shamjee & Co. AIR 1953 Cal. 787; Sh. Mehtabuddin and another v. Abdul Sattar and 2 others 1981 CLC 828; Syed Mukhtar Hussain v. Mst. Hajani Zubeda and another 2003 YLR 3289 and Fazal Textile Mills Ltd. v. Sattar Cotton Ginning Factory Limited 1982 CLC 97 ref.

Shaiq Usmani for Appellant.

Muhammad Masood Khan for Respondent.

Date of hearing: 23rd January, 2014.

2014 C L C 1534

[Sindh]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

ASGHAR KHAN and 5 others----Petitioners

Versus

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

Constitutional Petition No.D-723 of 2011, decided on 16th May, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Vested right---Laches, principle of---Scope---In year, 2008, petitioners applied for jobs in Sindh police and they were successful in physical and written tests---Petitioners claimed to have a vested right to be appointed for the posts in question---Plea raised by authorities was that petition filed in year, 2011 was hit by principle of laches and petitioner did not have any vested right---Validity---Petitioners did not have vested right for enforcement under Art.199 of the Constitution on the date when they filed petition and it was hit by laches---Consideration upon which Court refused to exercise its discretion, where petition was delayed, was not limitation but matters relating to conduct of parties and change in situation---Laches in the simplest form meant failure of a person to do something which should have been done by him within a reasonable time, if remedy of Constitutional petition was not availed within reasonable time the interference could be refused on the ground of laches---Grant of relief in Constitutional jurisdiction was discretionary and it was required to be exercised judiciously---No hard and fast rule could be laid down for the exercise of discretion by Court for grant or refusal of relief in exercise of extraordinary jurisdiction---Petition was dismissed in circumstances.

Manthar Ali M. Jatoi v. Government of Sindh 1988 PLC (C.S.) 344; Abdul Razzak v. The Collector of Customs and another 1995 CLC 1453; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; Chairman, PCSIR v. Dr. Mrs. Khalida Razi 1995 SCMR 698 and Secretary Finance v. Ghulam Safdar 2005 SCMR 534 ref.

Abdul Salam Memon for Petitioners.

Sibtain Mehmood, A.A.-G. and Malik Tariq, D.S.P. (T&R) and Inspector Abdul Rehman for Respondents.

Date of hearing: 14th February, 2014.

2014 C L C 1586

[Sindh]

Before Zafar Ahmed Rajput, J

USMAN ALI through L.Rs. and others----Applicants

Versus

COMMISSIONER SUKKUR DIVISION AT SUKKUR and 13 others----Respondents

Civil Revision No.134 of 2009, heard on 16th December, 2013.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.I, R.10, O.VII, R.11, O.IX, Rr.3, 9 & S.115---Suit for declaration and injunction---Dismissal of suit for non-prosecution---"Date of hearing"---Scope---Suit was fixed for decision on applications under O.I, R.10 and O.VII, R.11, C.P.C. when it was dismissed for non-prosecution---Validity---On the alleged date of hearing suit was not fixed for hearing but two miscellaneous applications under O.I, R.10, C.P.C. filed by intervener and application under O.VII, R.11, C.P.C. filed by defendants were fixed for hearing---Two applications could have been dismissed for non-prosecution by Trial Court and suit should have been fixed for hearing---Trial Court proceeded in the matter without applying judicious mind and acted with material irregularity in exercise of its respective jurisdiction---Order passed by Trial Court was set aside and application for restoration of suit was allowed resulting in restoration of suit filed by plaintiff---Revision was allowed in circumstances.

Sarfraz A. Akhund for Applicants.

Shaikh Amanullah for Respondents Nos.7 to 11 and 13 and 14.

Imtiaz Ali Soomro, A.A.-G.

Date of hearing: 16th December, 2013.

2014 C L C 1615

[Sindh]

Before Nadeem Akhtar, J

AHMED RAZA THAHEEM and 3 others----Appellants

Versus

GHULAM MOHIUDDIN and 6 others----Respondents

Second Appeal No.29 of 2010, decided on 30th April, 2014.

(a) Islamic law---

----Pre-emption---Right of---Suit for pre-emption can be filed only by the class of persons namely, (1) a co-sharer in property/Shafi-i-Sharik (2) a participator in immunities and appendages, such as a right of way or a right of discharge water/Shafi-i-Khalit and (3) owners of adjoining immovable property/Shafi-i-Jar but not tenants, nor persons in possession of such property without any lawful title.

(b) Islamic law---

----Pre-emption right---Plea raised by vendees was that pre-emptors did not perform required Talbs before filing of suit and pre-emptors were represented through attorney---Validity---Date, time and place of both Talbs were specifically pleaded in plaint, therefore, assertion of vendees that requisite details of Talbs were not disclosed in plaint was not correct---Plaint showed that Talbs were made in presence of witnesses, however names of witnesses were not mentioned---Fact about presence of two witnesses was proved by pre-emptors in their evidence, as attorney had disclosed their names in his evidence which remained unrebutted and those two witnesses were also produced who corroborated evidence of attorney, which too remained unrebutted---Trial Court discussed entire evidence and had given exhaustive findings on each and every issue after full application of mind---Lower Appellate Court also gave full detailed reason in its judgment for agreeing with Trial Court---Findings of both the Courts below were in accordance with evidence on record and were based on proper appreciation of evidence---High Court declined to interfere in concurrent findings of fact by two Courts below---Second appeal was dismissed in circumstances.

Mst. Rasoolan Bibi v. Khizar Hayat 2008 SCMR 37; Bashir Ahmed and another v. Mushtaq Ahmed, 2007 SCMR 895; Khyber Khan and others v. Haji Malik Amanullah Khan, 2007 SCMR 1036; Muhammad Ilyas v. Ghulam Muhammad and another, 1999 SCMR 958; Haji Noor Muhammad v. Abdul Ghani and 2 others, 2000 SCMR 329; Allah Dad v. Bashir Ahmed and another PLD 2002 SC 488; Khadim Hussain v. Ghulam Eissa and others, 2009 SCMR 488; Unair Ali Khan and others v. Faiz Rasool and others, PLD 2013 SC 190; Hayat Muhammad and others v. Mazhar Hussain, 2006 SCMR 1410; Allah Bakhsh and another v. Falak Sher, 2004 SCMR 1580; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others, 2005 SCMR 1201 and Mushtaq Hussain v. Syed Ali Ahmad Shah, PLD 1988 Lah. 722 ref.

Haji Noor Muhammad v. Abdul Ghani and 2 others, 2000 SCMR 329; Muhammad Feroze and others v. Muhammad Jammat Ali, 2006 SCMR 1304; Abbas Ali Shah and 5 others v. Ghulam Ali and another, 2004 SCMR 1342; Fazal Rehman v. Amir Hyder and another 1986 SCMR 1814; Malik Katoo and 3 others v. Allah Bakhsh and 2 others 1986 SCMR 1363; Fazal Ellahi v. Sarfraz Khan 1987 SCMR 312-and Qurban Hussain and others v. Hukam Dad, PLD 1984 SC (AJ&K) 157 rel.

M. Suleman Unnar for Appellants.

Ghulam Qadir Sial for Respondent No.1.

Muhammad Arshad S. Pathan for Respondent No.2.

Allah Bachayo Soomro, Addl. A.-G., Sindh for Respondents Nos.3, 4 and 5.

Respondents Nos.6 and 7 called absent.

Date of hearing: 3rd February, 2013.

2014 C L C 1666

[Sindh]

Before Sajjad Ali Shah and Sadiq Hussain Bhatti, JJ

MUHAMMAD NASIR and 7 others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Ministry of Housing and Town Planning, Islamabad and 6 others----Respondents

Constitutional Petition No.D-448 and C.M.As. Nos.6921 and 2115 of 2014, decided on 7th May, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Restraining of construction---Status of land, change of---High rise building---Petitioners were aggrieved of raising of ground plus 18 storyed building by respondents on plot in question---Validity---No impediment existed in construction of high rise building of a plot after change / conversion of its use from residential to commercial or residential-cum commercial provided that provisions relating to conversion of plot and commercialization contained in laws / regulations were complied with and concerned authorities had undertaken to provide better sewerage system, roads and ensured enjoyment of peaceful life to residents of locality---Respondents placed on record "No Objection Certificate" from Water and Sewerage Board as well as Electric Supply Corporation and environment impact of construction in question had been taken care of by Environmental Protection Agency by issuing Initial Environmental Examination (IEE)---Advertisement provided under bye laws was issued before converting status of plot---Individual notices informing neighbours about intent of conversion was neither feasible nor requirement of procedure entitling petitioners to interim order---High Court declined to restrain respondents from carrying out construction on plot in question---Application was dismissed in circumstances.

Nighat Jamal v. Province of Sindh and others 2010 YLR 2624; Mst. Ummatullah v. Province of Sindh and others PLD 2010 Kar. 236; Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883; Muhammad Munir and others v. City District Government, Karachi and others 2007 CLC 906; Muhammad Islam and other v. Messrs Real Builders PLD 2011 Kar. 204; Captain S.M. Aslam v. Arif Chishti and others 2008 CLJ 5; Messrs Datari International v. Navaid Hussain and others 2007 MLD 951; Navid Hussain and others v. City District Government Karachi and others 2007 CLC 912; Muhammad Anas Kapadia and others v. M. Farooq Haji Abdullah and others 2007 CLC 943; Irfan and others v. Karachi Building Control Authority and others 2005 CLC 694; Capt. S.M. Aslam and others v. K.B.C.A. and others 2005 CLC 759; Sheikh Naeem Ahmed and others v. Province of Sindh and others 2006 CLC 1231; Ardeshir Cowasjee and others v. K.B.C.A. and others PLD 2006 Kar. 63; Arshad Abdullah v. Government of Sindh and others 2006 YLR 3209; Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113; Navaid Hussain and others v. Jahangir Siddiqui and others 2007 CLC 1568; Syed Ali Asghar and others v. Creators (Builders) and others 2001 SCMR 279; Haji Amin v. Navaid Hussain and others 2008 SCMR 133; Sheni C.B.B. and others v. K.B.C.A. and others 2003 YLR 1086; Mrs. Abida D'SA and others v. Mrs. Naheed Pabani and others 2008 YLR 738; Mrs. Farida v. New Allied Electronics (Pvt.) Ltd. 2009 YLR 1896 and Jawed Mir Muhammad v. Haroon Mirza PLD 2007 SC 472 ref.

Haseeb-ur-Rehman for Petitioners.

Mushtaq A. Memon and Ishtiaq Memon for Respondents Nos.8 and 9.

Ahmed Madani holds brief for Abdur Rehman for Intervenor.

Muhammad Ashraf Butt for Cantonment Board.

2014 C L C 1685

[Sindh]

Before Farooq Ali Channa, J

ABDUL MALIK AWAN----Appellant

Versus

ARSALAN AHMED----Respondent

Second Appeal No.127 of 2012, decided on 20th May, 2014.

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

----S. 100---Second appeal---Limitation---Appeal was filed with delay of 66 days and no application under Section 5 of Limitation Act, 1908 for condonation of delay was moved---Appellate Court had dismissed the appeal being time barred---No illegality or infirmity was pointed out in the impugned judgments passed by the courts below---Defendant had failed to point out the violation of any law or substantial errors or defects in the decision upon merits of both the courts below---Second appeal was dismissed in circumstances.

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

----S. 100---Second appeal---Bar---Scope---Section 100, C.P.C. barred second appeal on question of facts rather confined to the competency of High Court to deal with question of law and substantial errors or defects of procedure which would cause or might result in miscarriage of justice.

Abdul Khalique for Appellant.

Asim Iqbal along with Ms. Sumaya Tayeb for Respondent.

Date of hearing: 20th May, 2014.

2014 C L C 1695

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD RIAZ SHAIKH and 2 others----Petitioners

Versus

IFTIKHARUDDIN and 2 others----Respondents

Constitutional Petition No.S-1258 of 2010, decided on 28th January, 2014.

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

----Ss. 10, 13 & 15---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---Default in payment of rent---Burden of proof---Scope---Non-payment of rent was a negative fact---Landlord appeared in Court and stated on oath that he had not received rent for a certain period, in such circumstances, burden lay on landlord would sufficiently discharged and the same was shifted upon tenant to prove affirmatively that he had paid or tendered such rent.

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

----Ss. 10, 13 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction of tenant (petitioner)---Default in payment of rent---Rent paid through money order---Proof and procedure---Landlord (Respondent) sought eviction of tenant (petitioner) on account of willful default in payment of monthly rent---Ejectment application was initially dismissed by Rent Controller, the Appellate Court allowed appeal of landlord and consequently accepted ejectment application on account of default in payment of rent---Contention of the petitioner (tenant) was that he regularly paid rent through money order and also produced receipt of money order in his evidence and as such he did not committed any default in payment of rent---Validity---Where payment of rent by money order was disputed, it was proper to examine postal authorities to establish remittance, delivery and acceptance or refusal of such amount---Procedure prevalent for remitting money order required that money order should be tendered with a form by the postman and if it was accepted, a receipt was given by the payee and if it was refused, same was returned to the remitter with an endorsement of refusal and in case of acceptance receipt would be delivered to remitter---Mere receipt of remittance of money order, photocopy of which was filed by tenant, could not be created as an authentic document to prove that money order was remitted---Constitutional petition was dismissed.

Ghulam Nabi v. Noushad Ali and 2 others 2010 MLD 1543 rel.

1995 SCMR 330, 1986 CLC 705 (Kar), 1990 MLD 1667, 1989 SCMR 1670 and 1992 SCMR 46 ref.

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

----Ss. 10, 13 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Default in payment of rent---Mode of payment of rent---Scope---Ejectment application filed by landlord (respondent) was allowed on account of willful default in payment of rent---Contention of the tenant (petitioner) was that landlord refused the receiving of rent, thereafter the lapse of certain period, he started depositing rent of the disputed period in court---Validity---Landlord had refused the money order sent by tenant---Tenant was under obligation to deposit rent of the disputed period by availing alternative mode just immediate after refusal of money order---Petitioner (tenant), in the present case had started depositing rent after committing willful default---Tender of rent after committing of default could not save tenant from consequence of default in payment of rent---Constitutional petition was dismissed.

Razia Sultana v. Muhammad Hasan Khan 1991 CLC 632 and 199 YLR 230 rel.

Afaq Ahmed for Petitioners.

Syed Muhammad Haider for Respondent No.1.

Date of hearing: 28th January, 2014.

2014 C L C 1705

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD DAWOOD----Petitioner

Versus

UNITED INSURANCE CO. PAKISTAN LTD. and 8 others----Respondents

Insolvency Petition No.Nil of 2012, decided on 7th October, 2013.

Insolvency (Karachi Division) Act (III of 1909)

----Ss. 9 & 15 (3) (a)---Sindh High Court Rules (Original Side), Rr. 586 (1) & 586 (2)---Insolvency petition---Requirements---Contention of petitioner was that due to theft in his office and payment of ransom amount he had no movable and immovable assets to pay loan to the bank---Validity---Petitioner had failed to fulfill mandatory requirements of S.15(3)(a) of Insolvency (Karachi Division) Act, 1909 and Rr.586(1) & (2) of Sindh Chief Court (O.S.) Rules---No book of account was maintained by the petitioner---No documentary evidence and audit report that petitioner sustained losses had been produced before the Official Assignee---Petitioner had tried to take advantage in civil and criminal proceedings initiated against him by the creditors---Petitioner had failed to make out his case for grant of Insolvency Certificate---Petition was dismissed in circumstances.

Navaid Ahmed Siddiqui and 2 others v. Official Assignee PLD 2012 Sindh 522 ref.

Ziauddin Junejo along with Petitioner.

Zeeshan Abdullah for Respondent No.1.

Suleman Huda for Respondent No.2.

Kh. Raza Noman for Respondents Nos.4, 5 and 5.

Syed Bashir Hussain Shah for Purchaser.

Qadir Bux Umrani Official Assignee.

Date of hearing: 2nd October, 2013.

2014 C L C 1714

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL REHMAN KHAN and 5 others----Plaintiffs

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION through Managing Director----Defendant

C.M.As. Nos.1915, 3459, 8903 and 9076 of 2013 in Suit No.169 of 2013, decided on 24th February, 2014.

Civil Procedure Code (V of 1908)---

----O. I, Rr.1 & 10---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Impleading as plaintiff/employees---Common question of law or fact---Plaintiffs/employees neither challenged nor claimed their promotion or their rights and interests as against those of other individuals---Plaintiffs/employees were jointly interested in challenging a circular which according to them was in violation of policy---Applicants sought permission for impleading them as plaintiffs---Validity---By challenging circular as against policy, any person interested or right of every individual including applicants was involved as it was not a case where plaintiffs/employees and applicants were directly seeking their promotion---Present was a case wherein applicants intended to join proceedings where common circular was alleged to be not in accordance with law---Ground raised in challenging circular in question were also common and it did not depend upon any individual's right or entitlement---Common circular had been challenged through common grounds which involved a common question of fact and as it involved common grounds, it involved common question of law as such was covered by O.I, R.1, C.P.C.---Application was allowed in circumstances.

Umeed Ali v. Government of Sindh PLD 2007 Kar. 224; Ghulam Qadir v. Member (Revenue) Board of Revenue Punjab 1988 SCMR 1311 and Aslam Industries (Pvt.) Limited Khanpur v. Pakistan Edible Corporation and others 1993 SCMR 683 ref.

Muhammad Ali Lakhani for Plaintiffs as well as for interveners.

Khalid Javed for Defendant.

Date of hearing: 10th February, 2014.

2014 C L C 1730

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

AKHTAR BILLO through Attorney----Petitioner

Versus

PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION through Chief Executive Officer and 3 others----Respondents

Constitutional Petition No.D-3550 of 2013, decided on 11th April, 2014.

Constitution of Pakistan---

----Arts. 199, 9, 23 & 24---Constitutional jurisdiction---Scope---Removal of encroachment---Adequate remedy---Controversial questions of facts---Scope---Respondent had filed civil suit with regard to land in question which had been claimed by the petitioner---Petitioner had not mentioned as to when he was dispossessed form the disputed land---Petitioner had a adequate remedy if he was dispossessed other than due course of law under Illegal Dispossession Act, 2005 which had provided a complete mechanism against wrong doer---Party might invoke the constitutional jurisdiction of High Court for enforcement of his right if no adequate remedy was available---Constitutional jurisdiction of High Court could not be invoked if an adequate remedy was available under the relevant law---Party complaining of breach of statute must first avail the remedy provided by the statue for such breach before he applied for order in the nature of constitutional jurisdiction---Controversial question of facts were involved in the present case which could not be resolved by invocation of constitutional jurisdiction---Controversial questions of facts could not be resolved by the High Court in exercise of constitutional jurisdiction---Constitutional petition being not maintainable was dismissed, however petitioner could seek his remedy available to him by adopting other mode of proceedings if so advised.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 929; Waqar Ali and others v. The State through Prosecutor/Advocate-General Peshawar and others PLD 2011 SC 181; Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others 2009 CLD 939 and Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472 ref.

Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810; Moula Bux alias Mouledino and 2 others' case 2003 YLR 1316; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and agriculture, Peshawar and others 1993 SCMR 618; Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37 and Adeel-ur-Rehman and others v. Federation of Pakistan and another 2005 SCJ 343 rel.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 929; Waqar Ali and others v. The State through Prosecutor/Advocate-General Peshawar and others PLD 2011 SC 181; Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others 2009 CLD 939 and Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472 distinguished.

Sameer Ghazanfar for Petitioner.

Akhtar Ali Mahmud for Respondent No.1.

Muhammad Ahmed Pirzada for Respondents Nos.2 and 4.

Qazi Muhammad Bashir, A.A.-G. for Respondent No.3.

Dilawar Hussain, Standing Counsel on Court Notice.

Date of hearing: 7th April, 2014.

2014 C L C 1756

[Sindh]

Before Aftab Ahmed Gorar, J

ARIF LAKHANI----Appellant

Versus

IRFAN NAZAR and another----Respondents

First Rent Appeals No.42 and 43 of 2010, decided on 30th June, 2014.

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

----Ss. 17(8) & 17(9)---Default in payment of rent---Non-deposit of arrears of rent by tenant as ordered by Rent Controller---Striking off defence---Contention of the tenant was that the order had been passed in hasty and mechanical manner and the Rent Controller had no jurisdiction to pass an order for arrears of rent beyond three years---Plea of landlord was that once the tentative rent order was passed by the Rent Controller the tenant was bound to comply with the same or challenge the same before the competent forum, which was not done by the tenant---Validity---Only summary inquiry had to be made by the Rent Controller to determine the arrears of rent due, which had been done in the present case---Once the tentative rent order was passed by the Rent Controller, the tenant was bound to comply with the order and if he was not satisfied with said order he should have challenged the same before the competent forum which was not done by the tenant---Default on the part of the tenant stood established and his defence was rightly struck off---Delay of even a single day in the payment of the rent/deposit of the rent in the court created valuable right in favour of the landlord and the delay could not be condoned in the absence of reliable and cogent reasons for the same---Present case was even on the worse side so far as the tenant was concerned, as he had not deposited the rental amount and failed to comply with the order of the Rent Controller---Tentative rent order passed in the case was apparently a restrictive order whereby the landlord was restrained from withdrawing the amount of rent till final decision of the rent cases and the rate of rent and question of actual arrears of rent was yet to be determined on the basis of evidence of the parties but the tenant failed to comply with the tentative rent order, therefore, the Rent Controller had no option but to pass the order---Appeal was dismissed in limine.

Khawaja Muhammad Mughees v. Mrs. Sughra Dadi 2001 SCMR 2020 rel.

Muhammad Zahid Kabeer for Appellants.

Hasin Ahmed for Respondent No.1.

Date of hearing: 7th May, 2014.

2014 C L C 1792

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

SHAHID NABI MALIK and others----Petitioners

Versus

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

Constitutional Petitions Nos.D-3508 of 2011 and D-582 of 2012, decided on 7th July, 2014.

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

----Reglns. 2-12 & 25-3.2 & Chap. 16---Constitution of Pakistan, Art.199---Constitutional petition---Widening of service road---Notification---Mala fides---Construction of residential and commercial project ("project")---Demolition of part of project for widening of service road---Legality---Issue of legality of construction already settled by judgment of the High Court---Vested right in favour of builder---Contravention of judgment of the High Court---Building Control Authority issued a notification in respect of widening of service roads, and in pursuance of said notification demolished certain part of the project to widen a service road---Issue of raising of disputed construction had already been settled in favor of petitioner, by the High Court through a judgment---Said judgment of High Court had been challenged before the Supreme Court, but the matter was still pending, wherein neither any interim orders were passed nor the operation of the judgment of the High Court was suspended---Notification to widen service roads was issued after the judgment of the High Court, thus it defeated and flouted the directions of the High Court, and was based on mala fides---Notification in question had a direct effect on the vested rights accrued to the petitioner on the basis of the judgment of the High Court---Notification could not be applied retrospectively as vested rights had accrued to the petitioner after passing of judgment of the High Court---Building Control Authority and City District Government ought to have implemented the judgment of the High Court by taking steps which were in conformity with the said judgment, instead of entering into an exercise of road widening and defeating the directions in the judgment---Notification was approved for such portion of the project which was never available for a road widening scheme and was in fact a part and parcel of the petitioner's property on which the said project was being constructed---Building Control Authority and City District Government could not satisfy the court that the road widening scheme was necessary in the larger public interest---Widening of service road was not understandable, when the same was not a through road, and when other main roads of the city were in dire need of widening---In terms of Regulation 16.2.2 of the Karachi Building and Town Planning Regulations, 2002, the Building Control Authority was required to issue a public notice and to call for the objections from the general public before initiating any road widening scheme, however, in the present case, no such public notice was ever issued before taking up the decision to widen the roads---Both parties jointly appointed an engineering service company as Commissioner to prepare a report regarding the legality and conformity of the project with the approved plan and relevant laws and regulations---Said report mentioned that project in question was constructed as per approved plans---Demolition of the disputed construction was, thus, unlawful---Impugned notification to widen service roads was set-aside for being issued in violation of the law, relevant rules and procedure, and directions of the High Court---Constitutional petition was disposed of accordingly.

(b) Notification---

----Retrospective effect---Notification not to nullify judgment of court---Cases where the issue had been decided by the Courts, the executive had no authority to issue notifications so as to nullify the effects of the judgments of the Court by giving such notifications any retrospective effect.

Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 391 and Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430 rel.

Dr. Muhammad Farogh Naseem for Petitioner (in C.P. No.3508 of 2011).

Qazi Bashir A.A.-G. for Respondents.

Ms. Rizwana Ismail for SBCA (in C.P. No.582 of 2012 and Ali Azad Saleem (in C.P. No.3508 of 2011).

Syed Sultan Ahmed for KMC/CDGK.

Rafiq Ahmed Kalwar for Respondent No.2 (in C.P. No.582 of 2012).

Haider Imam Rizvi for Respondent No.4 and for Petitioner (in C.P. No.582 of 2012).

Dates of hearing: 10th, 24th September, 24th October, 21st November, 16th, 23rd, 24th December, 2013 and 19th June, 2014.

2014 C L C 1

[Lahore]

Before Amin ud Din Khan, J

PAKISTAN SARAIKI PARTY through Provincial President----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner of Pakistan, Islamabad and 23 others----Respondents

Writ Petitions Nos.4548 and 4549 of 2013, decided on 7th May, 2013.

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

----Ss. 15, 16 (4) & 18---Representation of the People (Conduct of Election) Rules, 1977, R.7---Constitution of Pakistan, Art.199---Constitutional petition---Term "contesting candidate"---Deferring of election---Death of candidate---Grievance of petitioner was that candidate of his party had died and Returning Officer declined to defer the election---Validity---When candidate had died before preparation of list of contesting candidates, election could not be deferred in accordance with section 18 of Representation of the People Act, 1976---Election could only be deferred if a contesting candidate had died---Deceased was not contesting candidate at the time of his death, therefore, decision of Returning Officer was in accordance with law and rules made thereunder---High Court declined to exercise extraordinary jurisdiction in favour of petitioner and refused to interfere in order passed by Returning Officer---Petition was dismissed in circumstances.

Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab Lahore and others PLD 2008 SC 310; Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487; Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab Lahore and others PLD 2008 SC 313; Shaikh All-ud-Din v. Election Tribunal, Lahore High Court, Lahore and 12 others 2009 YLR 1930; Lt.Gen.(R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.158, Naushero Feroze and others 1994 SCMR 1299; Complaint of malpractices in Constituency No.N.A.57, Sargodha-V PLD 1977 Journal 164 and Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 ref.

Malik Javeed Akhtar Wains for Petitioner.

Javed Iqbal Hashmi, Standing Counsel for Respondent No.1.

Malik Muhammad Bashir Lakheser, A.A.-G. for Respondent No.2.

Ch. Abdul Sattar Goraya, for Respondents.

2014 C L C 11

[Lahore]

Before Syed Iftikhar Hussain Shah, J

ABDUL HAMEED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DERA GHAZI KHAN and 3 others----Respondents

Writ Petition No.13701 of 2012, heard on 5th June, 2013.

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

----S. 5, Sched & S.14---Constitution of Pakistan, Art.199---Constitutional petition--- Appeal against interlocutory order---Maintainability---Pending suit, right of defendant to produce documentary evidence was struck off---Defendant preferred appeal against the order of Family Court---Appellate Court accepted the appeal of defendant---Contention of the petitioner was that the order of the Family Court was interlocutory one, therefore, no appeal was competent against the same---Validity---Order of Family Court was interlocutory order whereby the right to produce documentary evidence was closed---No appeal or revision shall lie against an interim order passed by Family Court as appeal against interlocutory order of Family Court was specifically barred under S.14(3) of the West Pakistan Family Courts Act, 1964---Order passed by Appellate Court was set aside---Constitutional petition was allowed.

Muhammad Akram v. Mst. Raheela Aslam and 2 others PLD 1999 Lah. 33; Nawab Khan and another v. Waris Iqbal and 5 others PLD 1976 SC 394 and Messrs Capital Farms, Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99 ref.

(b) Administration of justice---

----Courts have primary duty to decide lis in accordance with law.

(c) Administration of justice---

----Courts were not relieved of its duty on account of an act or omission of a litigant or a lawyer.

(d) Jurisdiction---

----Jurisdiction of Tribunal or a Court was always conferred by law and not by consent of the parties, express or implied---Consent of the parties could neither confer nor take away jurisdiction.

Muhammad Maalik Khan Langah for Petitioner.

Syed Amjad Naseem Bokhari for Respondents Nos.3 and 4.

Date of hearing: 5th June, 2013.

2014 C L C 25

[Lahore]

Before Muhammad Qasim Khan, J

RIAZ HUSSAIN and another----Petitioners

Versus

TEVTA through Chairman, Lahore and 13 others----Respondents

Writ Petition No.6233 of 2013, decided on 30th May, 2013.

(a) Constitution of Pakistan---

----Art. 199---High Court under Art.199 of the Constitution can issue five types of writs for enforcement of any of the Fundamental Rights---Nature, type, purpose and connotation of all such five writs elaborated.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of 'mandamus'---Scope---Petitioner sought direction from High Court to the effect that respondent-authority should treat his constitutional petition as representation and decide the same in accordance with law---Validity---Neither any appeal/revision/review/application or representation of the petitioner had been filed nor the same was pending before the respondent authority and every such move would definitely entailed some period of limitation, apart from other intricacies---Any direction given to respondent authority, in circumstances, would amount to taking away or assuming the jurisdiction of such authority/court or the tribunal---Constitutional petition was dismissed.

Muhammad Shoaib Khan for Petitioners.

Mubashir Latif Gill, Asstt. A.-G. for Respondents.

2014 C L C 65

[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---Temporary injunction, grant or refusal of---Essential factors requiring considerations by Courts stated.

An injunction is not to be granted only on the basis that a prima facie case exists in favour of the plaintiff. The courts are required to take into consideration whether the question of balance of convenience or irreparable loss to the party seeking such relief co-exists or not.

Besides the above factors, the courts in the facts and circumstance of a case have to take into consideration certain other factors such as whether the plaintiff has approached the court with clean hands or not; whether the court has been approached promptly or not; whether the grant of an injunction will be against public interest/policy; whether grant of an injunction to a party will result into an undue advantage being given to him which would perpetuate injustice, and whether a party approaching the court for interim relief has concealed material facts and/or acted in a mala fide manner. In case the answer of any of the questions is in the affirmative, then the relief of an injunction being discretionary in nature can be granted.

One who seeks discretionary relief is required to approach the court with clean hands or in other words one who seeks equity must do equity.

Marghub Siddiqi 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.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Subsequent suit for declaration---Non-disclosure of filing of earlier suit regarding same subject matter in subsequent suit---Application for grant of temporary injunction to protect plaintiff's possession over suit land---Validity---Land possessed by plaintiff was beyond his share/entitlement therein---Plaintiff by concealing factum of filing of earlier suit had acted in a mala fide manner, thus, he had not approached court with clean hands---Plaintiff by his such conduct had become disentitled to grant of such discretionary relief as person seeking equity would have to do equity---Such application was dismissed in circumstances.

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 Petitioners.

Zafarullah Khan Khakwani, Asstt. A.-G. Punjab.

Ch. Saghir Ahmad for Respondents Nos.7 to 11.

2014 C L C 77

[Lahore]

Before Amin-ud-Din Khan, J

MANZOOR HUSSAIN and another----Petitioners

Versus

SHAH NAWAZ through L.Rs. and others----Respondents

Civil Revision No.1156 of 2010, heard on 25th April, 2013.

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

----S. 42---Suit for declaration---Gift---Ingredients of gift---Burden of proof---When mutation of gift was challenged by any legal heir of the deceased-donor in favour of some of legal heirs, the plaintiff had stated on oath that there was no gift made in life time of donor then onus to prove the valid gift and valid attestation of mutation in favour of donee shifted on him to establish the same---Making of gift or offer, acceptance and delivery of possession prior to the attestation of mutation was missing from pleadings of defendants in the present case---When there was no pleadings in that context, no case could be established through evidence on the point which had not been pleaded by a party---When there was no pleadings with regard to the gift, there was no question of proof of event of gift independent of attestation of mutation---Defendants were the beneficiary of transaction, it was their duty to prove the event of gift independent of attestation of mutation and valid attestation of gift mutation on the basis of gift already completed by proving offer, acceptance and delivery of possession---Donees had not tried to plead and prove the making of valid gift---Two witnesses of impugned mutation had denied their signatures upon the same---Two reports of Handwriting Experts were on record which were conflicting with each other and none of them could be relied upon---Report of Expert with regard to handwriting was an opinion which was not binding upon the court---Statements on oath by two witnesses could not be ignored in such circumstances---Both the courts below had ignored the law that the beneficiary of transaction was bound to prove the same and further in case of gift beneficiary was bound to prove the transaction independent of attestation of mutation---Courts below fell in error while not applying the correct law while deciding the lis---Findings of two courts below were not sustainable under the law---Revision was accepted and impugned judgments and decrees of both the courts below were set aside and suit was decreed.

Major Sher Afzal v. Shamim Firdaus and another PLD 1980 SC 228 rel.

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

---S. 115---Revisional jurisdiction of High Court---Scope---High Court while exercising revisional jurisdiction was not precluded from touching the concurrent findings of courts below when same were based upon misapplication of law or misreading and non-reading of evidence.

Ch. Abdul Sattar Goraya, Masud Bilal and Muhammad Shabbir Anjum Khokhar for Petitioners.

Qamar-uz-Zaman Butt and Ch. Muhammad Habib for Respondents.

Date of hearing: 25th April, 2013.

2014 C L C 105

[Lahore]

Before Abdus Sattar Asghar, J

BINYAMEEN KHALIL----Petitioner

Versus

RIAZ AHMED RAHI----Respondent

Civil Revision No.128 of 1998, decided on 3rd October, 2013.

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

----O. XXXVII, Rr. 2 & 4---Limitation Act (IX of 1908), Arts.159 & 181---Application for setting aside of ex parte decree passed in suit for recovery of money on basis of pro note---Dismissal of such application by Trial Court---Defendant's plea was that non-supply of copy of plaint to him at time of service of summons would constitute a special circumstance for setting aside such decree---Validity---Report of Process Server dated 22-5-1997 showed that he had not delivered copy of plaint to defendant at time of service of summons upon him---Limitation for filing application for leave to defend suit would not be computed from 22-5-1997 as summons served upon defendant on such date could not be termed as a "proper service"---Defendant without having copy of plaint could not be expected to raise proper defence in leave application---Non-supply of copy of plaint to defendant at time of service of summons upon him would constitute a special circumstance for setting aside decree under O.XXXVII, R.4, C.P.C.---Impugned order suffered from jurisdictional error and legal infirmity---High Court set aside impugned order, accepted application for setting aside ex parte decree and remanded case to Trial Court for providing an opportunity to plaintiff to file afresh leave application within 10 days after providing him copy of plaint.

Muhammad Amin v. Ali Ahmad 1986 CLC 2236 rel.

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

----O. XXXVII, R. 4---Limitation Act (IX of 1908), Art.181---Application for setting aside of ex parte decree---Limitation---Such application would be governed by Art.181 of Limitation Act, 1908.

Ch. Muhammad Ali Binyameen for Petitioner.

Nemo for Respondent, proceeded against ex parte.

2014 C L C 112

[Lahore]

Before Shezada Mazhar, J

LIAQUAT ALI----Petitioner

Versus

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

Writ Petition No.2295 of 2013, decided on 29th October, 2013.

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

----O. XVIII, R. 8---Recording of evidence through Local Commission on basis of National Judicial Policy---Failure of Judge to make in his handwriting a memorandum of substance of what each witness deposed in open court and affix thereon his signature---Validity---Such Policy required recording of evidence through Commission in physical presence of Judge---Such omission of Judge, if not caused any prejudice to any party, could not be termed as an illegality---Word "shall" used in O.XVIII, R.8, C.P.C., in absence of penal consequences thereof, would not make the same mandatory---Principles.

Muhammad Ramzan v. Muhammad Jahangir and another 2012 CLC 844; Noor and others v. Mst. Sattan through Legal Representatives and others PLD 2013 Lah. 30; Muhammad Maqsood Shah Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28; Mst. Salim-un-Nisa widow and 5 others v. Aziz and another 2009 CLC 860; and Abdul Majeed v. Noor Muhammad and 2 others PLD 2006 Lah. 649 ref.

(b) Interpretation of statutes---

----Procedural law, object of---Scope---Object of such law being to help people, but not to hinder grant of rights to them.

Bahadur Ali v. Syed Ghulam Sabir Gillani 1990 MLD 588 rel.

(c) Administration of justice---

----Unnecessary technicalities should not be allowed to deter due process of law.

(d) Void order---

----Void order would mean an order having no legal force or binding effect or not enforceable under law---Order of a Court having jurisdiction to pass same could be termed as wrong order, but not without jurisdiction or void order.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Failure to challenge order of court below for eleven (11) months despite having its knowledge and without showing any just cause---Effect---High Court declined interference in the matter---Constitutional petition was dismissed in circumstances.

Sh. Zamir Hussain for Petitioner.

Muhammad Hussain Chaudhry for Respondents.

2014 C L C 130

[Lahore]

Before Ayesha A. Malik, J

MUHAMMAD IDREES----Petitioner

Versus

PROVINCE OF PUNJAB through Collector District Sialkot and others----Respondents

Writ Petition No.12691 of 2012, heard on 7th January, 2013.

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

----S. 55---Punjab Land Acquisition Rules, 1983, R.14(2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---"Aggrieved person"---Scope---Restoration of the acquired land to original owners or their heirs on completion of purpose of acquisition---Petitioner relied upon a letter by Railway Authorities that the land that was acquired by the Railways may be relinquished in favour of the original owners as purpose of acquisition no longer existed---Implementation of said letter was sought by the petitioner through constitutional petition so that the land could be restored to the petitioner at original price---Validity---Letter by the Railway Authorities did not create a right in favour of the petitioner---High Court in an earlier constitutional petition filed by the petitioner on the same subject-matter had directed the petitioner to file an application before the Deputy Commissioner for redressal of his grievance---No such application was available on record to show that the same was filed or was pending---Nothing was available on record to show that the authorities did not require the land---In order to avail the benefit of constitutional jurisdiction, the petitioner must show that he is aggrieved---Person aggrieved must be a man, who has suffered a legal grievance, against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something---Aggrieved person is one who has suffered any legal wrong---Petitioner should have moved an application before the Deputy Commissioner for decision of the matter in accordance with law and should have pursued the claim in a diligent manner---Without having done the same, the petitioner cannot now claim that he is aggrieved---Length of the delay involved in the case and the conduct of the petitioner both support the fact that the petitioner is not an aggrieved person---Petitioner has no right on the basis of the letter by the Railway Authorities nor he is an "aggrieved person" under Art. 199 of the Constitution---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---"Aggrieved person"---In order to avail the benefit of constitutional jurisdiction, the petitioner must show that he is aggrieved---Person aggrieved must be a man, who has suffered a legal grievance, against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something---Aggrieved person is one who has suffered any legal wrong.

(c) Constitution of Pakistan ---

----Art. 199---Aggrieved person---Scope---Person aggrieved must be a man, who has suffered a legal grievance, against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.

(188) 1 Ch. D. 458 ref.

Majid Ali Wajid for Petitioner.

Syed Nayyar Abbas Rizvi, Addl. A.-G. with Rasheed-ud-Din Dar, Tehsildar and Waheed Ahmad Chaudhry for Respondents.

Date of hearing: 7th January, 2013.

2014 C L C 154

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD ASLAM----Appellant

Versus

GENERAL MANAGER PIONEER PAKISTAN SEED LIMITED, LAHORE and 4 others----Respondents

First Appeals from Order Nos.89 and 69 of 2009, decided on 5th August, 2013.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 33---Limitation Act (IX of 1908), S.5---Appeal---Condonation of delay---Deceiving by respondent--- Effect--- Consumer filed appeal against decision of Trial Court beyond period of limitation---Consumer sought condonation of delay on the ground that after decision of Trial Court, respondent-company approached him and promised that he would be compensated by providing 250 bags of seed of maize and thus they deceived consumer and let the limitation period expire---Validity---Explanation extended by consumer in order to seek condonation of delay caused in filing of appeal did not appeal to sense and such plea had never been recognized as justification for condonation of delay in filing of some legal proceedings---High Court declined to condone delay, as consumer failed to justify delayed filing of appeal---Appeal was dismissed in circumstances.

(b) Punjab Consumer Protection Act (II of 2005)---

----Ss.25, 28 (3) (4) & 30---Consumer protection---Claim---Limitation---Consumer purchased seed of maize on 11-12-2007 and used the same in the month of June, 2008, but claim was instituted before Consumer Court on 7-10-2008 and notice was issued on 21-9-2008---Consumer Court partly allowed claim filed by consumer and directed company to provide him 250 bags of maize seed---Validity---Starting point of period of limitation provided for filing of claim before Consumer Court was accrual of cause of action and if in particular background of the matter, cause of action was accrued to consumer in the month of June, 2008, when crop was harvested, institution of claim before Consumer Court was beyond limitation---Consumer purchased 250 bags of maize and out of the same 248 bags were consumed and used by consumer and subsequently challenged quality of whole purchased lot only by producing two bags and that too without any proper seal over the same---Not certain that either the bags contained seed, were in fact originally filled by the company or after de-sealing the same by consumer, those were refilled by some substandard seeds by consumer to create a circumstance to justify the claim---Consumer failed to bring any convincing evidence on record to show that seeds in sealed bags of company were in fact substandard one---Merely by saying of consumer, it could not be presumed that quality of seed was not up to the mark for the reason that consumer was not an expert in the relevant field---Claim was placed by consumer before Consumer Court was beyond limitation as provided in section 28 of Punjab Consumer Protection Act, 2005, and also was not maintainable in absence of mandatory notice, delivery of which was to be proved beyond any shadow of doubt and also on merits---High Court directed Punjab Government to initiate appropriate administrative/legislative measure to make necessary amendments in section 30 of Punjab Consumer Protection Act, 2005, in order to provide power to Consumer Court to frame issues from divergent pleadings of parties and also to record evidence of parties on such issues and then to give issue-wise findings on such material available before it---High Court set aside the order passed by Consumer Court---Appeal was allowed in circumstances.

Al-Jehad Trust through Habibul Wahab Al-Khairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 rel.

Mian Ahmad Mahmood for Appellant.

Barrister Rafey Altaf for Respondents.

Date of hearing: 24th June, 2013.

2014 C L C 167

[Lahore]

Before Mehmood Maqbool Bajwa, J

Mst. FARRAH NAZ and 5 others----Petitioners

Versus

Rana MEHBOOB KHAN and 2 others----Respondents

Civil Revision No.2538 of 2010, decided on 12th March, 2013.

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

----O. I, R.3---Death of defendant, effect of---Suit had been filed against the only defendant (predecessor-in-interest of the petitioners), who was dead at the time of the institution, such suit would be still born, non-existent, and a nullity in the eye of law and it would not be merely defective but could not be revived by impleading the legal heirs of the deceased defendant-petitioners---Plaintiffs-respondents, in such a situation, subject to law, might have the option to bring a fresh suit against the legal heirs on the basis of the same cause of action---Where the suit had been instituted against more than one defendants and one of them was dead at the time of institution of suit, then the suit would not be nullity in totality, but would be validly instituted against the living defendants, however, it would be defective qua the deceased party, which defect shall be curable by the plaintiffs-respondents, bringing on record the legal heirs of the deceased defendant.

Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615; Ch. Muhammad Tufail Khan alias Tufail Muhammad through Legal Representatives v. Zari Taraqiati Bank Limited through Branch Manager PLD 2007 Lah. 180; Prim Pala Mul-Narain Mal v. Fauja Singh AIR 1926 Lah. 153; Roop Chand v. Sardar Khan and others AIR 1928 Lah. 359; Ghulam Qadir Khan v. Ghulam Hussain and others AIR 1937 Lah. 794; Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others PLD 1969 Lah. 880 and The Province of East Pakistan v. Major Nawab Khawaja Hasan Aksary and others PLD 1971 SC 82 rel.

Mehdi Khan v. Faqir Muhammad and 4 others PLD 1980 Lah. 110; Ghulam Masih Albert Gill through Special Attorney v. Province of Punjab through District Officer Revenue/Collector, Sahiwal and 2 others 2011 CLC 848 and Muhammad Yar (deceased) through LRs. and others v. Muhammad Amin (deceased) through LRs. and others Civil Petition No.1657-L of 2010 distinguished.

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

----S. 201---Termination of agency---Agency came to an end with the death of principal.

Mehdi Khan v. Faqir Muhammad and 4 others PLD 1980 Lah. 110 rel.

Muhammad Imran Sarwar for Petitioners.

Saifullah for Respondent No.1.

2014 C L C 188

[Lahore]

Before Shujaat Ali Khan, J

Professor Syed KHURSHID ALAM----Appellant

Versus

Ch. MUHAMMAD ASLAM----Respondent

First Appeal from Order No.9 of 2010, Civil Revision No.1508 and Criminal Original No.90 of 2012, decided on 8th April, 2013.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Essential ingredients stated.

For grant of temporary injunction, a party has to prove three ingredients viz prima facie case in his favour, balance of convenience tilts in his favour and in case the sought injunction is not granted, he would suffer an irreparable loss.

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

----O. XXXIX, Rr. 1 & 2---Transfer of Property Act (IV of 1882), S.52---Punjab Pre-emption Act (IX of 1991) Ss.6 & 13---Pre-emption suit---Plaintiff's application under O.XXXIX, Rr.1 & 2, C.P.C. to restrain defendant from alienating suit-land and changing character thereof during pendency of suit---Validity---Balance of inconvenience could not be said to lie in plaintiff's favour before proving his superior right and performance of talbs on basis of evidence---Question of prima facie case in favour of plaintiff would be determined after scanning evidence of parties---Principle of lis pendens would take care of alienation of suit-land by defendant during pendency of suit---Injunctive order would deprive defendant of his vested right to use suit-land as its owner according to his choice---Application for temporary injunction was dismissed in circumstances.

Gul Zare Khan v. Zafarullah 2011 MLD 138 rel.

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

----O. XVI, R. 1 & O. XIII, R.2---Summoning of witness and production of additional evidence by a party---Powers of court---Scope---Court at any stage could allow any party to adduce additional evidence oral as well as documentary, but subject to showing sufficient cause for non-production of evidence at relevant time and necessity of evidence of such witness for just decision of case---Additional evidence could not be allowed to fill up lacunae by a party.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Iqbal Parekh and 4 others v. Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.) Karachi and 4 others 2008 CLC 1334; Mst. Rukhsana Bibi v. Muhammad Ansar 2006 YLR 666; Haji Muhammad Tufail v. Muhammad Iqbal 2005 MLD 688; Arshad Ali and another v. Abdul Rashid and 2 others PLD 1980 Lah. 382; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Akbar Khan and 6 others v. Allied Bank of Pakistan through President and 2 others 2011 YLR 496; Kohinoor Industries Limited Project Kohinoor Textile Mills Ltd. through Chief Executive v. Sargodha Spinning Mills Limited through Chief Executive and 2 others 2005 CLC 1781 and Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal PLD 2007 Lah. 377 ref.

Mst. Nasreen Akhtar v. Mohsin Ali 2011 CLC 1206 rel.

Manzoor Hussain Dogar for Appellant.

Naveed Ahmad Khawaja for Respondent.

2014 C L C 207

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ISMAIL and 5 others----Petitioners

Versus

MUHAMMAD ASHRAF and 4 others----Respondents

Writ Petition No.19832 of 2010, heard on 29th May, 2013.

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

----S. 12 (2) & O. I, R. 10---Constitution of Pakistan, Art.199---Constitutional petition---Application under S.12(2), C.P.C. for setting aside consent decree---Non-joinder of necessary party---Scope---Revisional Court directed the Trial Court to frame an issue, record the evidence and send the same to it for adjudication---Validity---Suit land was allotted under Ejectment Tenant Scheme and ownership of the same remained available with the Provincial Government---Status of allottee was only of tenant and Provincial Government was not made party to the impugned decree---Trial Court while dismissing the application under S.12(2), C.P.C. had recorded findings of fact without recording the evidence thus committed material illegality---Revisional Court was bound to examine the order of Trial Court as supervisor and not as Appellate Court---If the Revisional Court was of the opinion that recording of evidence was necessary then it was to remand the case for that purpose and to decide the same on merit---Revisional Court had no jurisdiction to direct the Trial Court to record the evidence and send the same to it for decision and by doing so illegality was committed by the said court---Impugned decree in exclusion of Provincial Government who was owner of the land in question was nullity in the eye of law and such aspect of the case had been ignored by the Trial Court as well as Revisional Court---Constitutional petition was allowed and impugned orders were set aside and case was remanded to the Trial Court for decision afresh after framing issues and recording evidence.

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

----S. 115---Revisional jurisdiction---Scope---Revisional Court had to examine only three factors as detailed in S.115(1)(a), (b) and (c), C.P.C. and such powers were supervisory and not of a court of appeal---Revision was not a right but was a privilege and was available only where the right of appeal was not provided in the statute, whereas the appeal was right created by the statute.

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

----O. XLI, R. 25 & S. 115---Power of Appellate Court---Scope of O.XLI, R.25, C.P.C. and S.115, C.P.C.---Comparison---Appellate Court, if considered that evidence was necessary to be recorded, had powers to direct the Trial Court to record the same and give the findings and send to it but the Revisional Court had no such powers except in special circumstances---Jurisdiction of Revisional Court was supervisory jurisdiction and said court could set aside the order under revision but could not pass an order in every case in terms of O.XLI, R.25, C.P.C.

Sh. Naveed Shahryar for Petitioners.

Taqi Ahmed Khan for Respondents Nos.1 to 3.

Ch. Muhammad Iqbal, Addl. A.-G. Punjab.

2014 C L C 216

[Lahore]

Before Shujaat Ali Khan, J

Malik ALLAH BAKHSH----Petitioner

Versus

DISTRICT JUDGE, RAJANPUR and 2 others----Respondents

Writ Petition No.11906 of 2012 and C.M. No.888 of 2013, decided on 14th May, 2013.

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

----O. VII, R. 11 & S. 9---Punjab Office of the Ombudsman Act (X of 1997), Ss. 9 & 29---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Application for rejection of plaint---Jurisdiction of civil court---Scope---Plaintiff filed suit for declaration wherein an application for rejection of plaint was filed which was dismissed concurrently---Validity---Provincial Ombudsman had not determined the rights of parties and order passed by the Ombudsman could not take away the jurisdiction of civil court---High Court and courts subordinate thereto had been excluded from the jurisdiction of the Ombudsman---Proceedings conducted by the Ombudsman had no bearing on the suit when neither any order was passed by the Ombudsman nor any proceedings pending before him had been challenged in the same---Bar contained in S.29 of the Punjab Office of the Ombudsman Act, 1997 was inoperative against the plaintiff---Civil courts were considered as courts of ultimate jurisdiction and jurisdiction vested in them could not be taken away on the ground that aggrieved party had already opted to approach another forum for redressal of his grievance---Trial Court would attend to the point as to whether plaintiff was debarred to file suit after dismissal of his application from the Ombudsman and defendant would be at liberty to challenge the same---Application under O.VII, R.11, C.P.C. was rightly dismissed by the courts below---Constitutional petition was dismissed.

Darayus Cyrus Minwala v. National Accountability Bureau and 2 others 2010 MLD 1931; Mst. Mumtaz Maqsood v. Secretary, Revenue Division and another 2010 YLR 1869; Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676; University of Health Sciences through Vice-Chancellor v. Dr. Azeemuddin Zahid and another 2007 CLC 1055 and Shaukat Ali v. Secretary, Revenue Division, Islamabad 2005 PTD 1855 distinguished.

(b) Punjab Office of the Ombudsman Act (X of 1997)---

----S. 9---Jurisdiction, functions and powers of the Ombudsman---Scope---Domain of the Provincial Ombudsman was not to enter into arena of civil disputes between the private parties rather his jurisdiction was confined to conduct inquiries against the members of the agencies, departments or statutory bodies with specific reference to corrupt practice and misuse of powers by them.

(c) Punjab Office of the Ombudsman Act (X of 1997)---

----Ss. 29 & 2 (1)---Bar of jurisdiction---Scope---Jurisdiction of any court or authority had been ousted to question the validity of any action taken or proposed by the Ombudsman and no injunctive order could be passed against the proceedings pending before him.

Aftab Alam Yasin for Petitioner.

Malik Muhammad Bashir Lakhesar, A.A.-G. for Respondents.

2014 C L C 230

[Lahore]

Before Ayesha A. Malik, J

MUJADDAD ASHRAF and 5 others----Petitioners

Versus

COMMISSIONER LAHORE DIVISION, LAHORE and 3 others----Respondents

Writ Petition No.22606 of 2012, heard on 7th November, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 17(4), 5, & 5-A---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land in cases of urgency---Acquisition of land for the purpose of development of a mass transit metro-bus project---"Public purpose"---Scope---Petitioners impugned proceedings initiated for acquisition of the petitioner's land for a mass transit metro bus project, inter alia on the ground that proper procedure had not been followed and no notice under Ss.5 & 5-A of the Land Acquisition Act, 1894 was served on the petitioners and no opportunity was provided to them for filing objections---Validity---Provincial Government had issued notifications declaring urgency, under Ss.4 & 17(4) of the Act, and the same were affixed at conspicuous places of the locality---Project was for "pubic purpose" and under the Land Acquisition Act, 1894 the Provincial Government had power to acquire land for "public purpose"---Upon issuance of notice under S.17(4) of the Land Acquisition Act, 1894 provisions of Ss.5 & 5-A of the Act were done away with upon a direction of the Commissioner---Metro Bus project was aimed at the planned development of the city and therefore land was required urgently hence provisions of said S.17(4) were invoked---Section 17(4) of the Land Acquisition Act, 1894 was based on subjective satisfaction of the competent authority to determine whether to apply the provisions or not according to prevailing circumstances, and the same was not available for scrutiny by the court---When provisions of S.17(4) were invoked and urgency was declared, no prior notice or intimation to owners of land was required---Petitioners were, therefore, bound by law to surrender their land for public purpose and a remedy was available to them to raise objections on the compensation or enhancement thereof under S.18 of the Land Acquisition Act, 1894---Constitutional petition was dismissed, in circumstances.

Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another PLD 2008 SC 335 and PLD 2009 SC 217 rel.

Petitioner No.1 in person.

Syed Nayyar Abbas Rizvi, Addl. A.-G.

Waqar A. Sheikh, Legal Adviser, L.D.A.

Ashfaq Ahmad Rana, Litigation Officer, TEPA, L.D.A.

Rab Nawaz Kathia, Assistant Director, TEPA, L.D.A.

Waseem Alam, LAC, L.D.A.

Date of hearing: 7th November, 2012.

2014 C L C 238

[Lahore]

Before Shujaat Ali Khan and Amin-ud-Din Khan, JJ

UTILITY STORES CORPORATION OF PAKISTAN (LTD.) through Managing Director and another----Appellants

Versus

UNI-CARE INTERNATIONAL COSMETICS, MULTAN through Proprietor----Respondent

Regular First Appeal No.153 of 2012, heard on 27th March, 2013.

Specific Relief Act (I of 1877) ---

----S. 12---Arbitration Act (X of 1940), S.34---Civil Procedure Code (V of 1908), O.XV, R.1---Suit for specific performance of contract---Application under S.34, Arbitration Act, 1940---Scope---Counsel for the defendants got recorded his statement admitting the claim of the plaintiff and proceedings were adjourned for filing written statement however prior to filing written statement, defendants submitted application under S.34 of the Arbitration Act, 1940, for stay of proceedings according to arbitration clause and after submission of reply of said application, the case was fixed for arguments and instead of passing order on the application, the defendants were proceeded against ex parte who then moved application for setting aside the same---Trial Court dismissed said application for setting aside ex parte proceedings and decreed the suit---Validity---Plaint demonstrated that main grievance of the plaintiff was regarding display and purchase of his products---From statement made by the counsel of the defendants before the Trial Court it appeared that the claim of the plaintiff stood admitted and no cause of action was left and in such situation, provisions of O.XV, R.1, C.P.C. would come into play and the court could dispose of the suit forthwith but instead of doing so, the Trial Court adjourned the case for submission of written statement---Such approach of the Trial Court while conducting proceedings in the suit of the plaintiff was inconsistent as while derogating from the established procedure that prior to taking any action in the main suit, the Trial Court should have decided the fate of the application filed under S.34 of the Arbitration Act, 1940, of the defendants---Application under S.34 of the Arbitration Act, 1940, should have been filed promptly and if the same was filed after taking other steps the same could be dismissed on such score and the Trial Court was not obliged to dismiss the said application in default when the same was fixed for pronouncement of orders after hearing the arguments---In view of the controversy involved between the parties, the defendants were entitled to defend themselves by joining the proceedings as law favoured adjudication of matters on merits instead of technicalities---Conduct of the Trial Court and the manner in which proceedings were conducted, invited objections---Appeal was allowed and the impugned judgment and decree were set aside and matter was remanded for decision afresh.

Westinghouse Electric Corporation, the Quadrangle 4400 Alafaya Trail Orlando, Florida, U.S.A. and 3 others v. Wak Orient Power and Light Limited, Gulberg-III, Lahore PLD 2001 Lah. 143 rel.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196; Messrs Dada Steel Mills v. Metalexport and 5 others 2009 CLC 1431; Province of Punjab through Collector Sargodha and others v. Muhammad Asghar 2008 YLR 300 and India General Navigation and Railway Company Ltd. v. Eastern Assam Co. Ltd. AIR 1921 Calcutta 315 distinguished.

Malik Javed Akhtar Wains for Appellants.

Ch. Habib Ullah Nahang for Respondent.

Date of hearing: 27th March, 2013.

2014 C L C 254

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

NISAR AKBAR KHAN and 15 others----Petitioners

Versus

JAMAL NASIR KHAN and 4 others----Respondents

Civil Revision No.2989 of 2004, decided on 31st May, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration along with partition---Gift deed---Limitation---Plaintiffs filed suit with the contention that property in dispute was jointly owned by the parties---Contention of the defendants was that suit land was gifted to them by their predecessor-in-interest---Suit was decreed by the Trial Court but the same was dismissed by the Appellate Court---Validity---Parties were co-owners in the joint khata and no partition had taken place---Partition of joint property was a continuing right---Mere holding of possession did not disentitle other co-owners from claiming partition---Suit for partition could be filed at any time---Suit qua the relief of partition was not barred by limitation---Both the parties had been selling out land from the joint khata---Co-sharer was entitled to alienate or transfer his share and deliver possession of property in his possession/control---Vendee stepped into shoes as a co-sharer and property would be subject to partition---No doubt there was no bar against transfer of land by way of gift by a co-sharer to the extent of his share but donor, in the present case, was attorney of other co-owners and without prior approval of the principal he could not make any gift---Defendants had obtained only ownership rights in the joint property and till partition they could not claim exclusive possession---Main relief being the partition and the relief qua gift deed being in relation thereto, the suit could not be dismissed on the ground of limitation---Parties jointly owned land measuring 130 Kanals but plaintiffs had filed suit of land measuring 4 Kanals and 9 Marlas without consent of other share holders---Suit of the plaintiffs was not maintainable in its present form---Appellate Court had wrongly dismissed the suit as the parties were not provided opportunity to resolve the controversy before the court---Case was remanded to the Trial Court and parties were ordered to be afforded opportunity to lead evidence---Amendment if sought would be allowed by the Trial Court---Revision was disposed off accordingly.

Sarakhi Abdul Rahiman Trangan and another v. Muhaidin Pathaummal Bivi and another AIR 1917 Madras 244; Habib-ur-Rehman v. Abdul Rahman and 3 others 1987 CLC 195; Hamayun Kabeer v. Qaiser Nazir 2006 MLD 1496; Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462; Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811; Muhammad Yasin v. Dost Muhammad PLD 2002 SC 71; Jamil Akhtar v. Las Baba PLD 2003 SC 494; Muhammad Ashraf v. Muhammad Malik PLD 2008 SC 389; Muhammad Yousuf v. Iqbal Bibi 2005 CLC 1839; Maqsood Ahmad v. Salman Ali PLD 2003 SC 31; Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463; Noor Muhammad v. Allah Ditta PLD 2009 SC 198; Samar Gul v. Central Government PLD 1986 SC 35; Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman PLD 1969 SC 565; Sajawal v. Muhammad Din 2000 CLC 267 and Devasahayam v. Savithramma (2005) 7 SCC 653 rel.

Uzair Karamat Bhandari for Petitioners.

Kh. Saeed-uz-Zafar for Respondents.

Dates of hearing: 26th September, 2012 and 31st May, 2013.

2014 C L C 272

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD NASRULLAH----Petitioner

Versus

FAUZIA BIBI----Respondent

Writ Petition No.22557 and C.M. No.1 of 2013, decided on 30th September, 2013.

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

----S. 5, Sched---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower, dowry articles and maintenance allowance---Haq Mehr in the form of gold ornaments was found mentioned in the Nikah Nama---Wife in the absence of evidence with regard to payment of Haq Mehr was entitled for the same---Maintenance allowance of minor was rightly enhanced by the Appellate Court keeping in view the financial status of the father---Defendant being father and natural guardian was bound to support and maintain his offspring---Both the orders of the Appellate Court with regard to remand of case were self conflicting---Husband did not comply with the directions of the Appellate Court---Defendant was provided single opportunity to produce his evidence but he failed and his evidence was closed---Evidence of wife remained un-rebutted---Parties could not be granted another opportunity to produce evidence---Matter being a past and closed transaction could not be re-opened---Order of Appellate Court directing parties to produce their entire evidence afresh was nullity in the eye of law---Judge of the appellate court had become functus officio to pass second remand order---Evidence of wife with regard to dowry articles was not evaluated and scrutinized in its true perspective---Impugned order was set aside to the extent of dowry articles and Appellate Court was directed to scrutinize and determine ostensible price of dowry articles itself---Constitutional petition was disposed of accordingly.

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

----Preamble---Objective and function of Family Court---Special forum had been constituted for accelerated disposal of family cases---Family courts were entrusted with the task to curb multiplicity of proceedings.

Shehzad Khan Kakar for Petitioner.

2014 C L C 308

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD HAYAT----Petitioner

Versus

ZAFAR IQBAL and others----Respondents

Civil Revision No.547 of 2004, decided on 2nd October, 2012.

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

----Ss. 13 & 19---Pre-emption right---Scope---Talb-e-Ishhad, performance of---Contention of plaintiff was that notice of Talb-e-Ishhad was served upon two minor vendees (defendants) through their father and suit should have been decreed to the extent of minor defendants whereas defendants contended that only one notice of Talb-e-Ishhad was sent in the name of all the vendees---Suit was dismissed concurrently---Validity---Service of notice of Talb-e-Ishhad upon the defendants including minor vendee was disputed---Plaintiff was bound to produce postman to prove service of said notice and without his production same could not be said to have been proved---Right of pre-emption was neither transferable nor divisible and claim for pre-emption had to be made on the whole pre-emptible property---Revision was dismissed in circumstances.

Muhammad Askari v. Rahmatullah and others AIR 1927 All. 548 distinguished.

Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 rel.

Mujeeb-ur-Rehman Kiani for Petitioner.

Malik Lal Khan for Respondents.

2014 C L C 318

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUZAFFAR KHAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Civil Revision No.2466 of 2013, decided on 1st November, 2013.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.133---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Plaintiff's plea in plaint was that he made jumping demand on 23-12-2005 at 2.30 noon in presence of witnesses; and that he sent notice of Talb-e-Ishhad to defendant---Proof---Plaintiff in his deposition in Court did not state any word regarding delivery of such notice to defendant---Informer and second witness to such notice in their depositions in Court stated that plaintiff was informed about suit sale in summer season---Such contradictions in statements of plaintiff and his witnesses regarding performance of jumping demand proved his story to be concocted---Informer did not depose regarding delivery of such notice to defendant---Second witness of such notice in his deposition in Court denied same to have been read over to him---Defendant's deposition in Court denying to have received such notice would be deemed to be admitted by plaintiff due to failure to cross-examine him---Plaintiff in evidence could not prove sending of such notice and its receipt by defendant---Suit was dismissed in circumstances.

2011 SCMR 762; 2007 SCMR 1105 and 2013 SCMR 721 rel.

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

----S. 13---Talb-e-Ishhad, notice of---Duty of plaintiff would be to prove sending of such notice and its receipt by defendant.

2011 SCMR 762; 2007 SCMR 1105 and 2013 SCMR 721 rel.

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

----Art. 133---Failure to cross-examine a portion of statement of witness made in examination-in-chief---Effect---Such portion of statement would be deemed to be admitted by other party.

PLD 2011 SC 296 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Such jurisdiction being narrower and restricted was meant for correcting errors of law committed by Courts below.

2007 SCMR 236 and 2011 SCMR 762 rel.

Rai Muhammad Hussain Kharal for Petitioner.

2014 C L C 417

[Lahore]

Before Syed Iftikhar Hussain Shah and Kh. Imtiaz Ahmed, JJ

PROVINCE OF PUNJAB through Secretary, Local Government and Community Development, Lahore and 3 others----Appellants

Versus

BEZAD HAIDER KHAN----Respondent

Intra-Court Appeal No.95 of 2013 in Writ Petition No.2721 of 2012, decided on 29th October, 2013.

(a) Limitation---

----Office objection---Effect---Time specified by office for removal of objections does not stop limitation from running.

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

----S. 3---Limitation Act (IX of 1908), S.5---Intra-court appeal---Limitation---Office objection---Respondent raised objection that Intra-court appeal was time-barred and no application for condonation of delay had been filed---Validity---Period from the date of raising objection by office till refiling of the case could not be excluded under Limitation Act, 1908 and the proper course for the appellant was to file an application for condonation of delay while refiling appeal after removal of objections---Notice regarding objections raised by office was displayed on Notice Board and appellants had the knowledge of the same---Intra-court appeal was dismissed in circumstances.

Bank of Punjab v. Punjab Labour Appellate Tribunal PLD 2010 Lah. 666; Collector Land Acquisition v. Fazal ur Rehman 2009 SCMR 767; Mst. Bhakhan v. Mst. Ghulam Janat 2005 SCMR 1662; Government of Balochistan v. Ghulam Muhammad 2001 SCMR 19; Board of Governors v. Farah Zahra PLD 2005 SC 153 and Government of Balochistan v. Muhammad Ali 2007 SCMR 1574 ref.

Shahid Mehood Abbasi, A.A.-G. for Appellants.

Tanveer Iqbal Khan for Respondent.

2014 C L C 438

[Lahore]

Before Nasir Saeed Sheikh, J

KHAN MUHAMMAD and another----Petitioners

Versus

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

Civil Revision No.442 of 2004, heard on 10th September, 2013.

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

----S. 13---Talb-i-Ishhad, notice of---Burden of proof---Examination of postman---Scope---Pre-emption suit was decreed in favour of pre-emptor---Appellate court dismissed the appeal---Contention of the petitioners/vendees was that they specifically denied the claim of pre-emptors regarding performance of Talb-i-Ishhad in written statement---Pre-emptor did not produce the postman before trial court, therefore the performance of Talb-i-Ishhad had not been proved and as such judgments and decrees passed were not sustainable in the eye of law---Validity---Pre-emptors had claimed that they had performed Talb-i-Ishhad which fact had been denied by the vendees in their written statement---Pre-emptors had claimed that notices of Talb-i-Ishhad were sent and served upon the vendees and had produced copies of the postal receipts and the acknowledgment postal cards but production of same was not sufficient for the entitlement to the decree of possession in exercise of the right of pre-emption---Pre-emptors were under obligation to produce postman to prove due performance of Talb-i-Ishhad and failure to do so would result into the dismissal of suit---Impugned judgments and decrees passed by two courts below in favour of the pre-emptors were set aside---Revision was allowed.

Allah Ditta and others v. Muhammad Anar 2013 SCMR 866; Muhammad Bashir and others v. Abbas Abbas Ali Shah 2007 SCMR 1105 and Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 rel.

Malik Muhammad Kabir for Petitioner.

Fida Hussain Mirza and Ch. Naseer Ahmed Tahir for Respondents.

Date of hearing: 10th September, 2013.

2014 C L C 445

[Lahore]

Before Syed Mansoor Ali Shah and Mamoon Rashid Sheikh, JJ

Ch. MUHAMMAD SALEEM----Appellant

Versus

DIRECTOR-GENERAL ENVIRONMENTAL PROTECTION AGENCY----Respondent

Environmental Appeal No.892 of 2010, heard on 4th March, 2013.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 22 & 23---Appeal---Limitation---Appeal has to be preferred before Tribunal or High Court within thirty days of communication of order.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 22 & 23---General Clauses Act (X of 1897), S.9---Limitation Act (X of 1908), S.12---Appeal---Limitation---Computation---Period spent in getting certified copy---Appellant preferred appeal before Environmental Tribunal, which was dismissed being barred by limitation---Plea raised by appellant was that no order was communicated to the appellant and appeal was filed after getting certified copy of the order---Validity---Nothing was placed on record to show as to when order of Environmental Tribunal was communicated to the appellant, if at all---Benefit of time spent by appellant in obtaining certified copy of the order, therefore, accrued to him, by virtue of provisions of S.12 of Limitation Act, 1908---Appeal filed by appellant was well within time and order passed by Tribunal was set aside and matter was remanded for decision afresh---Appeal was allowed accordingly.

Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; Sher Muhammad and 6 others v. Gul Fraz 1989 CLC 1344; Messrs Malik Muhammad Nawaz, Haji Aziz Ahmad Commission Agents, Chakwal v. Syed Mehmood Hussain 1997 SCMR 264 and Muhammad Amin v. Muhammad Latif PLD 1996 Lah. 321 ref.

Imran Ahmad Bhatti for Appellant.

Sharjeel Haider, Assistant Director (Legal), Environment Protection Agency, Punjab for Respondent.

Date of hearing: 4th March, 2013.

2014 C L C 465

[Lahore]

Before Mamoon Rashid Sheikh and Kh. Imtiaz Ahmad, JJ

FAZAL KHALIQ and another----Appellants

Versus

NATIONAL HIGHWAY AUTHORITY and 2 others----Respondents

Regular First Appeal No.177 of 2010, decided on 3rd December, 2013.

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

----S. 18---Reference to Court---Nature of objections---Determination---If any person is not satisfied with award he may file application before Collector to refer the matter to Referee Court for determination of his objection whether it is in respect of measurement of land or amount of compensation payable or the person to whom it is payable or the apportionment of compensation amongst persons interested.

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

----S. 18---Reference to Court---Limitation---Computation---If person making application was present or represented before Collector at the time of making award, then application has to be filed within six weeks from the date of the award---If person making application was neither present nor represented at the time of making of award, then application can be made within six weeks of the receipt of the notice under S.12(2) of Land Acquisition Act, 1894, from Collector or within six months from the date of award whichever period expires first.

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

----S. 18---Referee Court---Jurisdiction---Referee Court cannot go behind the reference and hold that it was illegally made.

Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516 rel.

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

----Ss. 18 & 54---Reference to Court---Limitation---Determination---Jurisdiction of Court---Reference filed by Collector on the application of landowner was rejected by Court on the ground that it was barred by time---Validity---Question of limitation could not have been decided by Referee Court while exercising its jurisdiction under S.18 of Land Acquisition Act, 1894---Referee Court could not go behind the reference and reject it being barred by limitation or to hold that reference had been illegally made as application for making reference was beyond time---High Court set aside the order rejecting the reference and remanded the case to Referee Court for decision afresh---Appeal was allowed in circumstances.

Government of N-W.F.P. through District Collector, Abbottabad and 2 others v. Allah Dad and 6 others 1996 SCMR 384; Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and others PLD 1998 SC (AJ&K) 26; Jannat Khan v. Chairman National Highway Authority, Islamabad and 3 others 2013 CLC 1134; Muhammad Yousuf v. Collector Land Acquisition, District Skardu and 6 others 2007 CLC 1288; Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516; Government of West Pakistan (now N-W.F.P.) and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1983 SC 109; Muhammad Rafique Khan v. Province of Punjab through Collector Bahawalpur and another 1992 CLC 1775 and Muhammad Sharif and 12 others v. Oil and Gas Development Corporation, Club Road Branch, Karachi through Chairman and 2 others 2001 YLR 618 rel.

Azad Government of the State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 Azad J&K 33 ref.

Muhammad Ilyas Sheikh for Appellants.

Ms. Shahina Akbar for Respondents.

Date of hearing: 3rd December, 2013.

2014 C L C 477

[Lahore]

Before Abid Aziz Sheikh, J

SHIFA LABORATORIES (PVT.) LTD. through Chief Executive Officer----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Health and 9 others----Respondents

Writ Petition No.25589 of 2013, heard on 20th November,2013.

Drugs Act (XXXI of 1976)---

-----Ss 3(z), 22 & 19(6)---Constitution of Pakistan Art.199---Constitutional petition---Alternate Remedy---Contractual matter---Supply of pharmaceutical drugs---Quality standard---Specifications to test quality of drugs---Scope---Reports of government analysts---Petitioner, Pharmaceutical Company, impugned test reports of Government Analyst, whereby samples of a drug (paracetamol tablets) supplied by the petitioner were found to be substandard and payment of the petitioner was withheld by the Provincial Government---Contention of the petitioner was inter alia, that as per specification provided in the British Pharmacopoeia, "Friability test"; which was carried out by the Government Analyst, was not applicable to the drug supplied by it, and therefore, the report of the Government Analyst was illegal---Petitioner-company further sought direction to Provincial Government to pay the petitioner for the supply of the drug---Validity---Provisions of S.22 of the Drugs Act, 1976, provided that Government Analyst could carry out the tests and the National Institution of Health, was the expert statutory authority in the matter---Since no specification of drug in question had been prescribed, under S.3(z) of the Drugs Act, 1976 specification provided in the British Pharmacopoeia was applicable----As per production formula given in the British Pharmacopoeia, the "Friability Test" was applicable to the drug in question, and the contention of the petitioner was therefore contrary to what was contained in the British Pharmacopoeia for the said drug---Factual controversy as to whether the drug in question was according to specification or was it substandard could not be resolved in the Constitutional jurisdiction of High Court and could only be resolved by the Expert / Competent Authority under the law, which had already given its findings---Petitioner, under S.19(6) of the Drugs Act, 1976 could present any grievance regarding quality of its drug, before the Provincial Quality Control Board---Any direction from the High Court to release the pending payment of the petitioner could not be issued, as the same was the enforcement of a "contractual obligation" which could not be done through the Constitutional jurisdiction of the High Court---Constitutional petition was dismissed, in circumstances.

Salim Siddiqui v. The State 1987 SCMR 2100; Provincial Quality Control Board and others v. Irza Pharma and others 1992 MLD 481; Drug Inspector v. F.A. Zuberi and others NLR 1989 TD 378 and Civil Revision No.666 of 1989, decided on 13-5-2002 distinguished.

British Pharmacopoeia rel.

Sh. Muhammad Nawaz for Petitioner.

Kashif Javed Chaudhary, Rana Shamshad Khan, Asstt. A.-G., Punjab along with Mauzzam Ali Khan, Secretary Provincial Quality Control Board, Health Department Government of Punjab, Jamil Anwar, Director Drug Testing Laboratories Lahore for Respondents.

Respondent No.8 in person.

Date of hearing: 20th November, 2013.

2014 C L C 499

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

Mst. FAYYAZ BANO and 9 others----Appellants

Versus

TARIQ MEHMOOD and 3 others----Respondents

Regular First Appeal No.132 of 2009, heard on 30th September, 2013.

Contract Act (IX of 1872)---

----S. 55---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Contention of defendants was that plaintiff had violated agreement to sell and time was essence of the contract---Suit was decreed by the Trial Court---Validity---Ordinarily, time was not essence of contract for transfer of immovable property except when the parties intended for the same and specifically mentioned that time was essence of contract---Mentioning of specific date for performance and penalty for non-performance did not make automatically the time as essence of contract---Intention of parties must be specifically mentioned in clear words in the agreement for making time as essence of contract---No such intention was available in the agreement in the present case---Plaintiff was willing to perform his part of contract---Suit had been filed after nine days of the cut-off date---Each and every detail was not required to be mentioned in the pleadings---Evidence which proved pleadings would prove each and every requisite detail---Photocopy of legal notice had been produced in the statement of counsel for the defendants which was not proved---Defendants were bound to hand over vacant possession of suit-land before the date for performance of contract---Defendants had failed to perform their part of contract---Suit was rightly decreed---No case for interference by the High Court was made out---Appeal was dismissed in circumstances.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Mst. Shaheen Kausar v. Shakeel Ahmed 2005 YLR 1347; Zahid Rahman v. Muhammad Ali Asghar Rana 2007 CLC 1814; Saeed Naseem Cheema v. Mrs. Rukhsana Khan 2010 MLD 123; Mukhtar Hussain and others v. Sohbat Ali and another 2011 SCMR 1926 and Mst. Munawar Shahzadi v. Muhammad Ghafoor 2013 CLC 880 distinguished.

Ch. M. Anwar-ul-Haq for Appellants.

Syed Athar Hassan Shah Bukhari for Respondent No.1.

Zulfiqar Ali Azhar Bhutta for Respondents Nos.2 to 4.

Date of hearing: 30th September, 2013.

2014 C L C 520

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

NATIONAL HIGHWAY AUTHORITY through Chairman and another----Petitioners

Versus

ABID MUGHAL and 2 others----Respondents

Writ Petition No.1265 of 2011, heard on 4th November, 2013.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of damages---Application for amendment of plaint---Scope---Trial Court dismissed application for amendment of plaint but same was accepted by the Revisional Court---Validity---Trial Court had passed fanciful order in a clandestine manner---Trial Court had failed to appreciate the provisions regarding amendment of pleadings and dismissed application for amendment of plaint on the assumption that plaintiff had availed many opportunities to adduce evidence---Order of Trial Court was not according to the mandate of O.VI, R.17, C.P.C.---Application under O.VI, R.17, C.P.C. could only be dismissed on the ground that the proposed amendment would change the nature or complexion of plaint/written statement---Illegality and material irregularity committed by the Trial Court had rightly been corrected by the Revisional Court in circumstances---Case could not be remanded merely for the reason that defendants were not heard by the Revisional Court as defendants had even failed to make out case before the High Court that the proposed amendment would change the nature or complexion of plaint--Findings of Revisional Court were based on proper appraisal of law---Constitutional petition was dismissed with costs.

Muhammad Khan Zaman for Petitioners.

Nemo for Respondents.

2014 C L C 542

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD IJAZ AHMAD CHAUDHRY----Petitioner

Versus

ELECTION TRIBUNAL and others----Respondents

Writ Petition No.29437 of 2013, decided on 19th November, 2013.

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

----Ss. 64 & 67---Constitution of Pakistan, Art.199---Constitutional petition---Election petition--Exhibiting of documents through Tribunal during pendency of election petition---Election Tribunal allowed the documents to be exhibited which were neither mentioned in the election petition nor same were relied upon---Validity---Election Tribunal had clarified that the questions of admissibility in evidence, relevancy and evidentiary value of all the documents would be subject to scrutiny and criticism and all such questions would be answered at the time of final arguments/order---Mere adducing documents in evidence would not mean that same had been believed and accepted---Worth and significance of such documents were to be seen at the time of trial---Clarification/observation was made by the Election Tribunal to the satisfaction of petitioner who did not object to the same---Election Tribunal had the jurisdiction to decide election petition in accordance with law and had all the powers of civil court---Procedures were meant for advancement of cause of justice and not for the purpose of entrapping a litigant or to punish him---Constitutional petition had been filed against an interim order which was not amenable to the constitutional jurisdiction---Decision of Election Tribunal was appealable and petitioner had adequate and alternate remedy, therefore constitutional petition was not maintainable---Impugned order was neither illegal nor without jurisdiction---Constitutional petition was dismissed in limine.

Allah Ditta v. Barkat Ali and 3 others 1992 SCMR 1974; Mushtaq Hussain Bokhari v. The State 1991 SCMR 2136; Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Allah Ditta v. Additional District Judge, and other 1996 MLD 403; Sh. Rashid Ahmad v. The Election Tribunal Comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court Lahore and another PLD 1993 Lah. 791 rel.

Syed Nayyar Hussain Bukhari v. District Returning Officer, NA 49 Islamabad and others PLD 2008 SC 487; Messrs Javed Nazir Brothers Pvt. Ltd. v. Al Barak Islamic Bank and others 2008 CLC 722; Asif Jameel and others v. The State 2003 MLD 676; Jamal Din and others v. Additional District Judge, Jhang and others 1990 MLD 1934 and Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 distinguished.

(b) Constitution of Pakistan---

----Arts. 199 & 225---Interim order of Election Tribunal challenged in constitutional petition---Validity---Election was to be challenged through election petition---Election process should not be interfered with constitutional jurisdiction.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 rel.

Hafeez Saeed Akhtar for Petitioner.

2014 C L C 590

[Lahore]

Before Mrs. Ayesha A. Malik, J

Messrs LAHORE ELECTRIC SUPPLY CO. LTD.----Petitioner

Versus

PROVINCE OF PUNJAB----Respondent

Writ Petitions Nos.18373 and 13836 of 2012, decided on 29th March, 2013.

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----Ss. 3 & 4---Constitution of Pakistan, Arts.154, 165, 165(1), 183 & 199---Constitutional petition---Lahore Electric Supply Company---Grid Stations of such company sealed by Punjab Government due to non-payment of property tax in compliance of demand notice issued by Government---Validity---Federal Government had incorporated such company for distributing electricity within its licensed area---Distribution of electricity being a public utility was being provided by such company under control and supervision of Federal Government---Federal Government owned 100% shares of such company and its property vested in Federal Government---Such company was being controlled by Board of Directors elected by its shareholders i.e. Federal Government---Use of word "Federal Government" in Art.165 of the Constitution would include an instrumentality of Federal Government---Federal Government was doing its business through a corporate body, which was an instrumentality of Federal Government and exempt from levy of provincial property tax---High Court accepted constitutional petition in circumstances.

Province of N.-W.F.P. through Secretary, Local Government and Rural Development Peshawar v. Pakistan Telecommunication Corporation through Chairman and others PLD 2005 SC 670; WAPDA v. Government of Sindh and others PLD 1998 Kar. 209; Water and Power Development Authority through General Manager and Project Director and another v. Administrator, District Council, Swabi and 5 others 2005 SCMR 487; Pakistan Television Corporation Limited v. Capital Development Authority and others 2011 SCMR 1117 and Zila Council Jhang District Jhang v. Daewoo Corporation Kot Ranjeet, Sheikhupura 2001 SCMR 1012 ref.

(b) Taxation---

----Immunity of instrumentalities, doctrine of---Applicability of the doctrine to a statutory corporation owned and controlled by Federal Government---Test.

To apply doctrine of Immunity of Instrumentalities, the court has to examine the relationship between the Government and the statutory corporation to determine whether corporation was a Government instrumentality, and will apply the following test:---

(1) Whether body has any discretion of its own; if it has, then what is the degree of control by the Executive over the exercise of that discretion?

(2) Whether the property vested in the corporation is held by it for and on behalf of the Government;

(3) Whether the corporation has any financial autonomy;

(4) Whether the functions of the corporation are Government functions.

McCulloch v. Maryland, 17 U.S. 316 4 Wheat (1819) rel.

Munawar-us-Salam for Petitioner.

Muhammad Bilal Khan for Respondent No.6.

Iftikhar Ahmad Mian for City District Government with Firdous Akhtar (DDEEE).

Syed Nayyar Abbas Rizvi, Addl. A.-G.

Date of hearing: 29th March, 2013.

2014 C L C 633

[Lahore]

Before Amin-ud-Din Khan and Shahid Waheed, JJ

Messrs ATTIQ-UR-REHMAN and 2 others----Appellants

Versus

BANK OF OMAN LTD. through Managers----Respondent

C.Ms. Nos.1-C and 2-C of 2012 in E.F.A. No.514 of 2006, decided on 11th June, 2013.

Limitation Act (IX of 1908)---

----S. 5 & Art. 168---Civil Procedure Code (V of 1908), O.XLIII, R.3---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.22---Maxim: nullus commodum capere potest de injuria sua propria: No one can take advantage of his own wrong---Appeal under S.22 of the Financial Institutions (Recovery of Finances) Ordinance 2001---Limitation---Condonation of delay---Appeal of applicant was dismissed for non-prosecution---Contention of the applicant was that his non-appearance before the Court on the date of hearing was due to non-receiving of cause-list and that the applicant was a heart-patient undergoing treatment and was therefore not aware of the date of hearing---Validity---As per Art.168 of the Limitation Act, 1908 time began to run from the date of dismissal and not from date of knowledge of dismissal of appeal and the period of thirty days had been provided for filing of application for readmission of appeal dismissed for want of prosecution whereas applicant filed application after a lapse of six months ---Ground of non-receiving of cause-list from the Bar hardly constituted a sufficient cause for the reason that cause list was not only provided to the Bar but was also displayed on the website of the High Court---High Court also communicated the cause list to counsel through email and SMS and the negligence of counsel to get cause list from Bar or to check the website email or SMS was not excusable on basis of the maxim nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong)---Application was dismissed, in circumstances.

Mian Javed Jalal for Applicants.

Muhammad Asif Ismail for Respondent.

2014 C L C 643

[Lahore]

Before Umar Ata Bandial, J

Syed ZAFAR HUSSAIN and others----Petitioners

Versus

GOVERNMENT OF PAKISTAN and others----Respondents

Writ Petition No.15445 of 2004, decided on 12th June, 2009.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Civil Service--- Locus poenitentiae, principle of---"Past and closed transaction"---Recovery excess payment in salaries---Petitioners who were employees of Civil Aviation Authority ("CAA"), impugned Directive issued by Federal Government whereby excess payments erroneously made to them by the CAA over a period of three years, were ordered to be recovered---Validity---Held, it was unfair to expect the petitioners to have saved the large differential amount received by them over a three years' period; law extended its equitable principles to protect the rights of a person to retain benefits conferred by a competent authority----Although the petitioners had received payments in excess of the amount allowed by the Federal Government, but the fact was that such payments were authorized and disbursed to the petitioners by the competent authority in the CAA and therefore, the petitioners could not be held responsible for the failure of the CAA to correctly administer the rules of internal administration with respect to securing the approval of and implementing policy Directives from the Federal Government---High Court further held that on the principle of Locus Poenitentiae and "past and closed transaction", the petitioners would retain the excess payments received by them---Constitutional petitions were allowed, in circumstances.

Controlling Authority N.-W.F.P., Board of Technical Education Peshawar and others v. Abdul Salam Secretary, N.-W.F.P. Chairman Board of Technical Education Peshawar PLD 1993 SC 200 and The Engineer in Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal-ud-Din PLD 1992 SC 207 rel.

Kh. Saeed-uz-Zafar and Miss Shahzia Hassan for Petitioners.

Aamir Rehman, Dy. A.-G.

Yawar Ali Khan for Respondents Nos.2 to 6.

2014 C L C 648

[Lahore]

Before Miss Aalia Neelum, J

ZAFAR IQBAL----Petitioner

Versus

CHAIRMAN, BOARD OF GOVERNORS, CADET COLLEGE, OKARA and 5 others----Respondents

Writ Petition No.17201 of 2013, decided on 5th November, 2013.

(a) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.11 & O.XXIII, R.1---Constitutional petition---Res judicata, principle of---Applicability---Scope---Petitioner, having withdrawn his earlier constitutional petition, filed second petition on the same subject-matter---Validity---Petitioner had withdrawn his earlier constitutional petition unconditionally and without any permission to file a fresh one for the time being---Petitioner having abandoned relief by withdrawing the earlier constitutional petition, could not file a fresh petition to re-agitate the same relief with the same grounds---Constitutional petition was dismissed.

Hussain Bakhsh's case PLD 1970 SC 1 and Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC 145 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court has no jurisdiction to resolve the disputed question of facts in constitutional jurisdiction.

Muhammad Younas Khan v. Government of N.-W.F.P. and others 1973 SCMR 618 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Muhammad Anas Bin Ghazi for Petitioner.

Muhammad Mukaram Ali for Respondent No.6.

Rai Ashfaq Ahmad Kharal, Asstt. A.-G. with Muhammad Rafique, Deputy Director (Legal), ACE, Sahiwal for Respondents.

2014 C L C 679

[Lahore]

Before Amin-ud-Din Khan, J

MUKHTIAR HUSSAIN and others----Petitioners

Versus

MANSOOB ALI KHAN and others----Respondents

Civil Revision No.799-D of 2010, heard on 3rd May, 2013.

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

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Requirements---Right of pre-emption on the basis of contiguity---Proof---One of the plaintiffs who appeared in the witness-box had not stated that he was appearing on behalf of all the plaintiffs as attorney and was proving Talb-i-Muwathibat on behalf of other plaintiffs---Statement of one of the plaintiffs was recorded on 21-9-2006 whereas power-of attorney in his favour was filed as well as got exhibited in the statement of counsel for the plaintiffs on 30-11-2006---Power of attorney being not available on the file at the time of making statement by one of the plaintiffs, his statement would be presumed to be to his extent only---Making of Talb-i-Muwathibat was a personal act and a person must prove the same by appearing as a witness before the court or specifically by appointing an attorney to prove the same---Talb-i-Muwathibat had not been proved in the present case---Neither postman had been produced nor there was any record of receipt of notice of Talb-i-Ishhad by the addressees or refusal on their part nor acknowledgement-due had been produced---If receipt of acknowledgment-due was not received back then service of registered letter could have been proved by producing original record from the Post Office---Plaintiffs had failed to prove the delivery of the notice of Talb-i-Ishhad and did not discharge their duty to prove sending of said notice through registered post acknowledgment-due---Making of Talb-i-Ishhad was not proved in accordance with law---"Aks Masavi" had been produced but Patwari was not produced to prove the same---Plaintiffs were bound to prove Khasra numbers owned by them adjacent with that of suit property---Oral assertion of the plaintiffs was not sufficient to determine that they had right of pre-emption on the basis of contiguity which had not been proved in the present case---No private khaal had been established in the Naqsha of Khaal produced by the plaintiffs and no special right attached with the suit property could be presumed---Revision was dismissed.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366 rel.

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

----S. 13---Talb-i-Muwathibat, performance of---Making of Talb-i-Muwathibat was a personal act and a person must prove the same by appearing as a witness before the court or specifically by appointing an attorney to prove the same.

Syed Muhammad Ali Shah Gillani for Petitioner.

Ch. Muhammad Anwar-ul-Haq for Respondent.

Date of hearing: 3rd May, 2013.

2014 C L C 698

[Lahore]

Before Mamoon Rashid Sheikh, J

TAUSEEF IDREES and another----Petitioners

Versus

HAMAYUN KHALID and others----Respondents

Writ Petition No.1644 of 2012, decided on 18th December, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Fresh plea, raising of---Scope---Suit for recovery of maintenance allowance, dowry articles and jewellery---Trial Court decreed suit of wife partially which was maintained by the Appellate Court with certain modifications---Validity---No misreading or non-reading of evidence had been pointed out by the parties---List of dowry articles was not proved as same was tendered into evidence in the statement of counsel and objection to such effect was also raised from the opposite side---Decree to the extent of dowry articles was varied according to the concessional statement of husband---No cogent evidence was produced with regard to snatching of jewellery from the wife---Prayer for recovery of maintenance till the minor was suckling baby had not been made by the wife in her plaint, therefore same could not be considered---Parties were bound by their pleadings and they could not be allowed to lead evidence beyond the same---If any evidence was sought to be led beyond pleadings then same would not be recorded and if same was led then it was not to be considered---Plea with regard to recovery of maintenance till the minor was suckling baby was neither raised at the appellate stage nor same was included in the grounds of present constitutional petition---Party could not be allowed to raise fresh plea in the constitutional petition of which the opposite side had no notice---New plea could not be raised which would require a fresh investigation of facts---Impugned judgment qua recovery of maintenance was maintained---Constitutional petition was partially accepted in circumstances.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Irshad Begum v. Muhammad Rafique PLD 2010 Lah. 649; PAKCOM Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Mst. Roshan Akhtar v. Muhammad Boota and 4 others 2000 SCMR 1845; Messrs Bakhsh Textile Mills Ltd. v. Pakistan and others 1982 SCMR 497 and Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 S.C. 322 rel.

Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473 distinguished.

Ms. Shahida Tanveer Chaudhry for Petitioner.

Muhammad Arif Malik for Respondent No.1.

2014 C L C 711

[Lahore]

Before Shoib Saeed, J

SAMI ULLAH KHAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BHAKKAR and another----Respondents

Writ Petition No.19179 of 2010, heard on 28th October, 2013.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XVI, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance to sell---List of witnesses---Additional evidence---Defendant moved an application to file list of witnesses including one advocate who was Notary Public---Application was dismissed by Trial Court but Lower Appellate Court, in exercise of revisional jurisdiction, allowed defendant to file list of witnesses---Validity---Notary Public having attested documents could go to the roots of entire controversy between the parties---Allowing such witness was necessary and indispensable for a just and fair decision of a case on its merits---Such was done in the interest of justice and to avoid miscarriage of justice---Lower Appellate Court had rightly exercised jurisdiction vested in it and there was no infirmity or illegality in the order---Petition was dismissed in circumstances.

Mst. Musarat Bibi and 2 others v. Tariq Mehmood Tariq 1999 SCMR 799; Ejaz Muhammad Khan and others v. Sahib Bibi through Shahzad Khan and others 1996 SCMR 598; Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 and Anwar Ahmad v. Mst. Nafis Bano through LRs. 2005 SCMR 152 distinguished.

Muhammad Arshad Awan for Petitioner.

Mushtaq Ahmad Kashmiri for Respondent No.2.

Date of hearing: 28th October, 2013.

2014 C L C 718

[Lahore]

Before M. Sohail Iqbal Bhatti, J

TEHSIL MUNICIPAL ADMINISTRATION----Petitioner

Versus

Messrs ICI PAKISTAN LTD. and others----Respondents

Civil Revision No.335 of 2005, decided on 20th January, 2014.

Contract Act (IX of 1872)---

----Ss. 2(a), 7 & 10---"Offer", "Acceptance" and "formation of a legally binding contract"---Scope---- Plaintiff had contended that the defendant increased prices of items supplied to it despite the fact that there was a binding agreement between the parties wherein it was stipulated that the defendant would not increase prices more than a certain percentage for three years---Contention of the defendant was that there was no binding agreement between the parties and there existed only an understanding---Held, that perusal of letter written by plaintiff to defendant showed that the same was an offer and a subsequent letter which was written by the defendant was an "acceptance" letter, which created a binding contract between the parties---Defendant had not only accepted the offer but had also performed the conditions of the proposal by not increasing rates for two years, which established, that a valid contract had been concluded between the parties---Offer made by the plaintiff was accepted by defendant in absolute terms and also the benefit of the contract was extended to the plaintiff for a period of two years which itself showed that a valid contract in terms of section 10 of the Contract Act, 1872 had been executed between the parties---No illegality existed in the impugned order---Revision was dismissed.

Hafiz-ur-Rehman Sayyed for Petitioner.

Miss Ayesha Hamid for Respondent No.1.

Khurshid Ahmad Satti, A.A.-G.

2014 C L C 721

[Lahore]

Before Umar Ata Bandial, C.J.

DOST MUHAMMAD----Petitioner

Versus

CANTONMENT BOARD, SARGODHA and others----Respondents

Writ Petition No.19106 of 2012, decided on 21st January, 2014.

Cantonments Land Administration Rules, 1937---

----Rr. 5, 4 & 26---Constitution of Pakistan, Art.199---Constitutional petition ---Use of Class 1(A) Military Land---Petitioner was handed over possession of a cattle market set up by the Cantonment Board against payment of monthly instalment/rent to the Cantonment Board---Petitioner sought direction from High Court to the effect that he be refunded the instalment amounts already paid by him, on the ground that the Cantonment Board had illegally set up a second cattle market in proximity to the one occupied by him---Validity---Contention that Cantonment Board was organizing the parallel cattle market was not correct as such cattle market was being organized by Military Authorities---Petitioner only paid instalments for a period of three months, and had occupied the market for five months, and his claim therefore had no merit---Second Cattle Market on Class 1(A) land leased by Military Authorities derived its validity from notification / Policy of the Federal Government issued in exercise of powers conferred to it under the Cantonments Land Administration Rules, 1937---Nature and classification of Class A(1) Land under the said Rules left no doubt as to the purposes for which the land may be used, and the same was a matter to be determined by the Federal Government---Use of the land in question for purposes of holding a cattle market, was therefore lawful and no burden for holding the same could be cast on the Cantonment Board---Constitutional petition was dismissed, in circumstances.

Mubashar Iqbal Cheema v. Cantonment Board and others Writ Petition No.22106 of 2011 ref.

Syed Manzoor Hussain v. Tehsil Nazim, Tehsil Municipal Administration, Tehsil Sarai Alamgir, District Gujrat and 3 others PLD 2010 Lah. 101 distinguished.

Ch. Muhammad Yaqoob Sidhu for Petitioner.

Muhammad Mahmood Khan, Dy. A-G. for Pakistan.

Shahid Mubeen, Addl.A.-G.

Mubeen-ud-Din Qazi and Haroon Duggal for Respondents.

2014 C L C 773

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD KHALIQ----Petitioner

Versus

JALAL DIN through Legal Heirs and 2 others----Respondents

Writ Petition No.24291 of 2009, decided on 30th January, 2014.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.76---Constitution of Pakistan, Art.199---Constitutional petition---Suit for pre-emption---Notices of Talb-i-Ishhad---Photocopies---Production of photocopies of Talb-i-Ishhad as secondary evidence---Admissibility---Notices of Talb-i-Ishhad sent by the pre-emptor were not allegedly received by the vendee---Sealed envelopes of said notices were made part of the record of the pre-emption suit---At the time of recording of statement of witnesses, when sealed envelopes of notices of Talb-i-Ishhad were re-opened, they were closed with a stapler instead of glue, and notices were also found to be incomplete---Pre-emptor alleged some overt act/intrigue on part of defendants in league with administrative staff of the Trial Court in changing of the original notices---Pre-emptor moved an application before the Trial Court, seeking to produce photocopies of original notices of Talb-i-Ishhad sent by the him by way of secondary evidence---Said application was allowed by Trial Court---Revisional Court set aside order of Trial Court and resultantly dismissed application for production of secondary evidence---Validity---Trial Court should have referred the matter for inquiry in order to probe the allegation of the pre-emptor, however without such probe, Trial Court accepted the allegation as correct and incomplete notices found inside the envelope, which were opened in court, were considered a result of foul play and resultantly production of secondary evidence was allowed---Secondary evidence could only be allowed, if the party claiming production of secondary evidence, had proved on record either the loss of original documents or possession thereof with the other party---Pre-emptor had failed to prove the loss of original notices of Talb-i-Ishhad, allegedly sent to the vendees, and Trial Court after believing one sided version of the pre-emptor allowed production of secondary evidence---Application for production of secondary evidence was illegally allowed by the Trial Court, therefore judgment of Revisional Court did not call for interference---Constitutional petition was dismissed in circumstances.

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

----Art. 76---Secondary evidence relating to document---Admissibility---Secondary evidence could only be allowed, if the party claiming production of secondary evidence had proved on record either the loss of original documents or possession thereof with the other party---Loss of original documents was a sine qua non in order to permit the production of secondary evidence.

Shaigan Ijaz Chadhar for Petitioner.

2014 C L C 813

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

NAHEED SIDIQUE----Petitioner

Versus

D.D.O. LITIGATION and others----Respondents

Writ Petition No.,23303 of 2013, decided on 2nd December, 2013.

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

----S 7(3)---Constitution of Pakistan, Art.199---Constitutional petition---Divorce---Pronouncement of divorce by husband and sending notice for the same to the Chairman Arbitration Council---Withdrawal of such notice of divorce---Legal position that revocation of divorce was within the prescribed period of ninety days and same was not effective before such period---Scope---Contention of wife was that divorce had become irrevocable after expiry of ninety days---Validity---Issuance of notice of divorce to the Chairman Arbitration Council was not mandatory---Divorce would become effective after expiry of ninety days from the date of its pronouncement and not from the date of issuance of notice of such divorce to the Chairman Arbitration Council---Husband, in the present case, pronounced divorce to the wife on 18-3-2013 and period of Iddat of ninety days expired on 17-6-2013 and divorce was irrevocable on 20-6-2013 when notice for withdrawal of same was issued---Chairman Arbitration Council was directed to issue divorce certificate to the wife forthwith---Constitutional petition was accepted in circumstances.

Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.

Ch. Fayyaz Ahmad for Petitioner.

Inam ul Islam for Respondent No.4.

2014 C L C 817

[Lahore]

Before Malik Shahzad Ahmad Khan and M. Sohail Iqbal Bhatti, JJ

MUHAMMAD RIAZ----Appellant

Versus

PROVINCE OF PUNJAB and others----Respondents

Intra-Court Appeal No.41 of 2011, decided on 27th January, 2014.

(a) Punjab Office of the Ombudsman Act (X of 1997)---

----S. 32---"Representation to Governor"---Connotation---Though word representation has been used in section 32 of Punjab Office of the Ombudsman Act, 1997, but it partakes the nature of an appeal to the next forum/authority against the order passed by Provincial Ombudsman.

Oxford Advanced Learner's Dictionary; Chambers English Dictionary; Black's Law Dictionary Ninth Edition and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 rel.

(b) Punjab Office of the Ombudsman Act (X of 1997)---

----S. 32---Constitution of Pakistan, Arts.129 & 248---Law Reforms Ordinance (XII of 1972), S.3---Intra-court Appeal---Maintainability---Direction to Governor---Immunity---Scope---Complaint filed by petitioner was dismissed by Provincial Ombudsman, against which representation to Governor was pending---Petitioner sought direction to Governor for deciding his representation expeditiously---Validity---Governor was acting as an appellate authority to substitute the decision of Provincial Ombudsman---Any order passed by Governor in representation when challenged before High Court, the Governor could be impleaded as an appellate authority to decision made by the Ombudsman---Wisdom behind immunity provided to Governor under Art.248 of the Constitution was that since he was acting upon advice of Cabinet, therefore, immunity had been provided to the office of Governor under Art.248(1) of the Constitution---While deciding representation, Governor was not to act in accordance with advice of Cabinet or Chief Minister but was acting as quasi judicial authority--- High Court declined to interfere in the judgment passed by Single Judge of High Court---Intra-Court Appeal was dismissed in circumstances.

Sardar Abdul Raziq Khan for Appellant.

Shahid Mahmood Abbasi, A.A.-G. for Respondents.

Date of hearing: 27th January, 2014.

2014 C L C 832

[Lahore]

Before Arshad Mahmood Tabassum, J

NASIR MEHMOOD----Petitioner

Versus

KHAWAR HUSSAIN and 5 others----Respondents

Writ Petition No.1396 of 2013, heard on 16th January, 2014.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 15---Cantonments Rent Restriction Act (XI of 1963), Ss.17 & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment proceedings---Premises situated in cantonment area---Property was situated within the cantonment limits but ejectment proceedings were initiated under Punjab Rented Premises Act, 2009---Ejectment petition was accepted concurrently---Validity---Demised shop was located within the limits of Cantonment Board---Punjab Rented Premises Act, 2009 had no application to the facts of present case nor Rent Tribunal appointed under the said Act had any jurisdiction to adjudicate upon the matter---Cantonments Rent Restriction Act, 1963 had been promulgated for the control of rent of buildings within the limits of cantonment area---Ejectment petition could be filed in the court of Rent Controller appointed under the provisions of Cantonments Rent Restriction Act, 1963 and not in the court of Rent Tribunal appointed under Punjab Rented Premises Act, 2009---Rent Tribunal had illegally assumed jurisdiction in the present case and he had no jurisdiction to adjudicate upon the ejectment petition---Findings of Rent Tribunal were misconceived and based upon wrong assumption of law---Sections 3 & 17 (11) of Cantonments Rent Restriction Act, 1963 had no relevance in the present case as matter was between two individuals---Landlord could file ejectment petition in the court of Rent Controller, Cantonment Board under S.17 of the said Act---Impugned judgments passed by both the courts below were without jurisdiction and had been passed without any lawful authority which were set aside---Constitutional petition was accepted in circumstances.

Syeda Fatima's case PLD 1988 SC 258 and Habib Masih and another's case 2003 YLR 1245 rel.

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

----S. 2(d)---"Controller"---Meaning---"Controller" meant a Controller of rent appointed by the Central Government and same also included the Additional Controller.

Arif Nisar for Petitioner.

Muhammad Ikhlaq Awan for Respondents.

Date of hearing: 16th January, 2014.

2014 C L C 860

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD HANIF----Petitioner

Versus

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

Writ Petition No.1984 of 2008, decided on 29th January, 2014.

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

----Ss. 17-A & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Suit for recovery of maintenance allowance---Interim maintenance was fixed by the Family Court but same was not paid by the husband and his defence was struck off---Contention of husband was that wife had refused to perform matrimonial obligations and she was not entitled for any maintenance allowance---Suit was decreed concurrently---Validity---Constitutional petition was not maintainable as Judge Family Court was not arrayed as one of the respondents---Husband did not challenge the validity of order by virtue of which interim maintenance was fixed---Husband was estopped to question the correctness of such order through present constitutional petition---Impugned order could not be declared to have been passed without jurisdiction and lawful authority---Family Court had rightly insisted upon implementation of order for payment of interim maintenance---Section 17A of West Pakistan Family Courts Act, 1964 empowered the Family Court to strike off defence of husband who had failed to pay interim maintenance and decree the suit without recording evidence---Suit was rightly decreed by the courts below---Constitutional petition was dismissed in circumstances.

Muhammad Shamas-ul-Haq for Petitioner.

Ch. Muhammad Hussain for Respondents Nos.2 and 3.

2014 C L C 868

[Lahore]

Before Umar Ata Bandial, C.J.

Prof. PERVEEN AWAN----Petitioner

Versus

Syed MUZZAMIL HUSSAIN and others----Respondents

Writ Petition No.23441 of 2012, heard on 30th September, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Housing Society---Double/ multiple allotment of plots---Petitioner had been provisionally allotted a plot in the Housing Society, and had paid requisite dues to the Society---Respondent (allotee) had also been provisionally allotted the same plot---Housing Society vide an order decided to allot the said plot to the respondent allottee on the ground that petitioner did not have seniority over the respondent allottee in terms of the allotment formula adopted by the Society in its Annual General Meeting---Held, that controversy arose due to arbitrary and non-transparent actions of the Society, and the provisional allotment of plot in favour of the petitioner was prior in time and she had made full payment of dues to the Society, which was upheld in an arbitration award---Respondent allottee was a defaulter and the impugned orders had deprived the petitioner of her lawful right to be allotted a plot---Housing Society acted complicitly to accommodate the respondent allottee by issuing him the final allotment letter whilst Society's appeal was still pending against the petitioner regarding the same plot---High Court observed that after considering the matter fairly and candidly, the petitioner deserved relief in the present case since the respondent was given undue favour by the Society in derogation of the rights of petitioner and without hearing the petitioner---Constitutional petition was allowed, in circumstances.

Dr. Seema Malik v. Government of Punjab Writ Petition No.6469 of 2005 distinguished.

Waqar A. Sheikh for Petitioner.

Ch. Khadim Hussain Qaiser, Addl. A.-G.

Ahmad Shahzad Farooq Rana for Respondent No.2.

Khalid Ishaq for Respondent No.1.

Date of hearing: 30th September, 2012.

2014 C L C 895

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD ZAHID----Petitioner

Versus

Mst. GHAZALA MAZHAR and others----Respondents

Writ Petition No.3101 of 2013, decided on 29th January, 2014.

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

----S. 5. Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dowry articles---Wife sought recovery of gold ornaments weighing 12 tolas and the same was decreed in her favour---During execution husband intended to pay market value of gold prevalent at the time of filing of suit---Validity---Wife had only prayed for recovery of 12 tolas of gold ornaments and she did not fix price of gold jewellery in alternative---Decree for recovery of 12 tolas gold jewelry was passed by lower Appellate Court in favour of wife---Husband had the option either to hand over 12 tolas of gold jewellery to wife or in case he was not in position to do so, then to compensate wife in terms of money equal to an amount that would enable her to purchase 12 tolas gold from open market---Executing Court rightly held that wife was entitled to recover present market value of gold jewelry---Petition was dismissed in circumstances.

Mst. Ayesha Shaheen v. Khalid Mehmood and another 2013 SCMR 1049 rel.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 distinguished.

Habib Ullah Malik for Petitioner.

2014 C L C 929

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Syed GULZAR ALI SHAH----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.2766 of 2014, decided on 3rd February, 2014.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 19 & 24(1), (2), (4)---Constitution of Pakistan, Art.199---Constitutional petition---Failure of tenant to comply with tentative rent order of Rent Tribunal---Effect---Tenant was under mandatory obligation to comply with the order about the payment of tentative rent fixed by the Rent Tribunal as non-compliance thereof entailed penal consequence---Petitioner/tenant had not complied with the order of deposit of tentative rent, therefore the Rent Tribunal had rightly closed his defence and passed the final eviction order---Constitutional petition was dismissed.

Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 19 & 24(1), (2), (4)---Constitution of Pakistan, Art.199---Constitutional petition---Tentative rent order---Default in compliance of order of Rent Tribunal on the plea of unjust determination of tentative rent---Eviction of tenant---Scope---Landlord filed ejectment application on the ground of default in payment of monthly rent---Rent Tribunal directed the tenant to deposit tentative rent---Tenant failed to comply with the tentative rent order passed by the Rent Tribunal, therefore eviction order was passed---Appeal filed by tenant was dismissed by appellate Court---Plea of the tenant/petitioner was that Rent Tribunal wrongly determined the rate of rent, therefore petitioner/tenant was not bound to comply with the order of Rent Tribunal---Validity---Compliance of the tentative rent order was a condition precedent to enable the Rent Tribunal to examine the bona fides of correctness of various defence pleas of the tenant/petitioner so as to proceed further---In any eventuality the tenant had a remedy of complying with the tentative rent order so as to prove his case by production of evidence and to seek adjustment of the rent, if any, paid in excess---Tenant could not take it upon himself to decide that the order to deposit tentative rent passed by the Rent Tribunal was illegal---Eviction order did not suffer from any jurisdictional defect---Constitutional petition was dismissed.

Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496 and Javed Iqbal Butt v. Sheikh Fiyaz Ali by L.Rs. 2004 CLC 981 rel.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 19 & 24(1), (2), (4)---Constitution of Pakistan, Art.199---Constitutional petition---Determination of tentative rent---Failure to deposit tentative rent on the direction of Rent Tribunal---Eviction of tenant---Scope---Tenant was directed to vacate the premises on account of default in payment of tentative rent---Contention of the petitioner/tenant was that tentative rent so determined by the Rent Tribunal was unjustified, therefore eviction order was illegal---Validity---Main purpose of the promulgation of the Punjab Rented Premises Act, 2009 and its preceding legislations was not so much to provide a fast track mechanism to a landlord to realize unpaid rent or to evict a non-compliant tenant but was primarily aimed at protecting the rights of a tenant who was cognizant of the privilege and the license which had been granted to use the rented premises and who had not in any manner rendered himself liable to be eviction on the grounds provided in the law---If a statute granted privilege upon certain conditions to a person the said person seeking the privilege must also demonstrate that he had strictly complied with the conditions of the privilege and unless such conditions was not religiously fulfilled the said privilege was not available to the said person and as the other party to the lis could not be deprived of its rights under the law---Section 24(4) of the Punjab Rented Premises Act, 2009 being mandatory in nature required that the Rent Tribunal "shall forthwith pass the final order" in case of non-compliance of its direction or order---Lawful orders of Rent Tribunal could not be avoided by the tenant under the garb of putting forward his own stance---Tenant if not satisfied with calculation or with rate of rent so determined, was duty bound to made deposit to avoid striking off defence---Tenant, at best could ask Rent Controller to decline withdrawal of amount by landlord, but could not withhold deposit of arrears on any flimsy plea---Constitutional petition was dismissed.

Muhammad Hanif v. Ch. Sami Ullah 2000 MLD 1345 and Abdul Qayyum Paracha v. Ghulam Hussain and others 1985 SCMR 580 rel.

Khair Muhammad Nizamani v. Abdul Qauddus PLD 1965 (W.P.) Karachi 367 and Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 ref.

(d) Constitution of Pakistan---

----Art. 199---Issuance of writ---Principles and scope---Writ would not be issued by the Court as a matter of course---Writ could be refused even against an illegal order owing to the malicious conduct of a writ petitioner or the application of the established principle that "writ would not be issued in the aid of injustice".

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

Nauman Qureshi for Petitioner.

2014 C L C 940

[Lahore]

Before Miss Aalia Neelum, J

PERVAIZ AKHTAR----Petitioner

Versus

MUHAMMAD ARIF and 2 others----Respondents

Civil Revision No.1921 of 2012, decided on 11th December, 2013.

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

----S. 13---Talb-i-Ishhad, performance of---Requirements---Plaintiff had claimed performance of Talb-i-Muwathibat in his plaint on 6-9-2004 but he had failed to mention the date of sending notice of Talb-i-Ishhad in the same which was fatal for him---Talb-i-Ishhad was required to be made as soon as possible after performance of Talb-i-Muwathibat but not later than 14 days span---Requirement of mentioning of all details in the plaint was imperative so that the pre-emptor might not improve his case during the trial or make a departure from his pleadings---Litigants had to first plead the facts and pleas in the pleadings and then to prove such facts through evidence---Party could not be allowed to improve his case from what was originally set up in the pleadings---Party could not be allowed to lead evidence with regard to a plea which was not taken in the pleadings and if same was led then such evidence could not be considered in the case---Concurrent findings of facts were recorded by both the courts below which were based on proper appreciation of evidence---No misreading and non-reading of evidence had been made out in the present case---No infirmity had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings---Scope of revision was very limited---Concurrent findings of facts or law recorded by the courts below could not be interfered with by the High Court in revisional jurisdiction unless such findings suffered from jurisdictional defect, illegality or material irregularities.

2012 SCMR 730; 2012 SCMR 508; 2000 SCMR 346; 2000 SCMR 431 and PLD 2002 SC 293 rel.

Qaisar Hasnain Khan for Petitioner.

2014 C L C 955

[Lahore]

Before Atir Mahmood, J

NAZIR AHMAD----Petitioner

Versus

MUHAMMAD SIDDIQUE and another----Respondents

Civil Revision No.2767 of 2013, decided on 2nd December, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Recovery suit based on negotiable instrument---Application for leave to appear and defend the suit---Contention of plaintiff was that leave to appear and defend the suit should be granted subject to some payment or furnishing a reasonable security---Validity---No condition was necessary for granting leave to appear and defend the suit by furnishing any sort of security or any payment---Trial Court, granting application for leave to defend had passed the impugned order while looking into the relevant material placed on the file which could not be termed as illegal or unlawful one---Revision was dismissed in limine.

Muhammad Afzal Shad for Petitioner.

2014 C L C 962

[Lahore]

Before Umar Ata Bandial, C.J.

Malik SHAHBAZ ALI----Petitioner

Versus

SCS and others----Respondents

Writ Petition No.5764 of 2014, decided on 18th March, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Housing Society---Election for post of General Secretary of Housing Society---Disqualification for election of office-bearer on ground of conflict of interest (property business of the candidate)---Scope---Petitioner impugned order of Housing Society whereby he was disqualified from contesting election on ground that he was engaged in property business, which created a conflict of interest---Contention of petitioner was that petitioner had previously been elected to this post and no complaint was filed against him and that he had also subsequently sold his property business, evidenced through documents brought on record---Validity--- Impugned order failed to take into account petitioner's unobjected and unblemished three years of service as General Secretary of the respondent-Society; which established the fact that the petitioner did not promote his personal business in a way that conflicted with his authority as office-bearer of the Society---Court, although was inclined to interpret the rule of conflict on interest and duties very strictly, however, lack of any objection whatsoever against petitioner in his three years tenure was a persuasive ground to believe his statement that he had sold his share in the property business---High Court observed that if any connection of the petitioner with the alleged property business was established, then any member of the Society may approach for action against petitioner in accordance with law---Impugned order was set aside, and Constitutional petition was allowed, accordingly.

Ahmad Waheed Khan for Petitioner.

M. Iftikhar Shah for Respondent No.2.

Zubair Mahmood Chaudhry for Respondent No.3.

M. Sarfraz Ahmad, Assistant Registrar Cooperatives Department (Housing-III) Lahore.

2014 C L C 999

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD WARIS----Petitioner

Versus

COMMISSIONER SARGODHA DIVISION and others----Respondents

Writ Petition No.28739 of 2013, decided on 12th November, 2013.

Punjab Local Government Act (XVIII of 2013) ---

----S. 8---Constitution of Pakistan, Art. 199---Constitutional petition---Exclusion of village from one Union Council and inclusion of the same in another Union Council---Scope---Village "A" was adjoining to Union Council "B" on the basis of natural compactness and territorial unity---Inclusion of such village to the said Union Council did not break any revenue estate---Delimitation Authority was vested with the powers to make such change for convenience of the public at large---No illegality or violation of any provision of law had been committed by the Delimitation Authority---Constitutional petition was dismissed in circumstances.

Ch. Zulfiqar Ali for Petitioner.

Waqas Qadeer Dar A.A.-G.

Muhammad Moazzam Sher for Respondents Nos.4 and 5.

2014 C L C 1004

[Lahore]

Before Atir Mahmood, J

MUHAMMAD ZAHID----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 3 others----Respondents

Writ Petition No.33206 of 2013, decided on 9th January, 2014.

Civil Procedure Code (V of 1908)---

----S.115---Constitution of Pakistan, Art.199---Constitutional petition---Revision petition dismissed for non-prosecution---Legality---Revisional court dismissed revision petition filed by petitioner for non-prosecution---Plea of petitioner that his revision petition could not have been dismissed for non-prosecution in view of the law laid down in the case of Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 Supreme Court 820)---Validity---Counsel for respondent could not controvert the law laid down by the Supreme Court in the said case---Order of revisional court whereby revision petition of petitioner was dismissed for non-prosecution was set aside---High Court directed that revision petition filed by petitioner would be deemed to be pending before the revisional court, which shall decide the same on merits in accordance with law---Constitutional petition was allowed accordingly.

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820 rel.

Barrister Haris Azmat for Petitioner.

Sultan Mahmood Dar for Respondent No.2.

2014 C L C 1014

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. ZAINAB and another----Petitioners

Versus

ALLAH WASAYA through L.Rs. and others----Respondents

Civil Revision No.784 of 2013, decided on 18th November, 2013.

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

----S. 12 (2)---Disposal of application filed under S.12(2), C.P.C. without framing of issues---Scope---Limitation---Contention of applicants was that no issue was framed by the Trial Court---Validity---Trial Court was not bound to follow the procedure in detail as provided in Civil Procedure Code, 1908 including the framing of issues in every case---Remedy provided under S.12(2), C.P.C. was intended to be a substitute for a suit but not to be a replication---Present application was time-barred and no application for condonation of delay had been moved---Applicants were kith and kins to the suitors and it could not be presumed that they remained unaware for over 4-½ years---Present application was moved with ill-will, animus and malice of applicants---No illegality and infirmity had been pointed out in the impugned order---Revision was dismissed in limine.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Government of N.-W.F.P through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi PLD 2002 SC 500; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Government of Sindh v. Fazal Muhammad PLD 1991 SC 197 rel

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

----Ss. 42 & 34-A---Registered deed, incorporation in Revenue Record---Scope---Revenue Officer was bound to incorporate registered deed in the revenue record irrespective of the fact whether same was presented to him or it came to his knowledge through any source.

Umer Din v. Muhammad Anwar 2003 YLR 67 and Syed Ghulam Sabir Gillani v. Ghulam Muhammad 2005 MLD 38 rel.

Sh. Inam-ur-Rehman Ashraf for Petitioner.

2014 C L C 1038

[Lahore]

Before Muhammad Tariq Abbasi, J

Syed NADEEM ABBAS----Petitioner

Versus

Mst. SADIA FIDA KHAN and others----Respondents

Writ Petition No.9982 of 2009, heard on 4th December, 2013.

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

----S. 5, Sched & S.17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance, dowry articles and dower---Trial Court decreed the suit which was upheld by the Appellate Court with certain modifications---Validity---Wife in order to substantiate her claim with regard to dowry articles not only appeared herself but also produced her witnesses and also brought on record the proof regarding purchase of such articles---List of dowry articles was tendered in evidence and during said evidence plaintiff-wife reiterated her contention raised and grounds taken in the plaint---Trial Court had rightly concluded that wife was entitled to receive a sum of Rs. 6 lac as price of dowry articles and rest of her claim was turned down---Wife instead of filing appeal erroneously filed cross-objection/counter-claim which had not only been entertained by the Appellate Court but had also been accepted by the said Court---Proceedings of Appellate Court with regard to cross-objection/counter-claim, findings on the same and judgment and decree passed by the said court could not be sustained, however its finding passed on the appeal of husband were reasonable and the result of correct appreciation of evidence and material available on record---Impugned judgment and decree passed by the Appellate Court with regard to cross-objection/counter-claim was set aside and rest of its findings were maintained and those of Trial Court were restored---Constitutional petition was disposed of accordingly.

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

----S. 14---Appeal---Scope---Decree passed by the Family Court (dower or dowry) exceeding Rs. 30,000/- , maintenance allowance exceeding Rs.1000/- could only be challenged by filing an appeal.

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

----S. 17---Appeal---Filing of cross-objection/counter-claim against the decree passed by the Family Court---Scope---Decree passed by the Family Court could only be challenged by filing appeal and in family matters/suits Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 (except sections 10 & 11) were not applicable---Cross-objection/ counter-claim could not be filed in family matters which was the subject of Civil Procedure Code, 1908.

Ch. Abdul Ghani for Petitioners.

Mehar Haq Nawaz Humayun for Respondents.

Date of hearing: 4th December, 2013.

2014 C L C 1057

[Lahore]

Before Abdus Sattar Asghar, J

HAMAD RAZA----Appellant

Versus

SAJID HUSSAIN----Respondent

First Appeal from Order No.577 of 2013, decided on 19th November, 2013.

Arbitration Act (X of 1940)---

----S. 34--- Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Arbitration clause---Stay of proceedings---Expression "at any time before filing a written statement or taking any other steps in the proceedings" contained in S.34 of Arbitration Act, 1940---Scope---Contention of plaintiff was that application under S.34 of Arbitration Act, 1940 was not filed on the first date of hearing---Application filed under S.34 of Arbitration Act, 1940 was accepted by the Trial Court---Validity---If a party intended to enforce an arbitration clause then it must do so at the earliest possible moment prior to filing written statement or taking further steps in the proceedings---Defendant thus moved application under S.34 of Arbitration Act, 1940 on the very first date of hearing fixed by the Trial Court for filing of written statement---Defendant thus invoked the arbitration clause at the earliest possible moment without acquiescing the proceedings of suit---Impugned order passed by the Trial Court did not suffer from factual or legal infirmity, material irregularity or jurisdictional error---Appeal was dismissed in limine.

Rana Sardar Ali for Appellant.

2014 C L C 1076

[Lahore]

Before Abdus Sattar Asghar and Muhammad Anwaarul Haq, JJ

MUHAMMAD ADNAN----Appellant

Versus

RETURNING OFFICER, PP-136, NAROWAL and others----Respondents

Election Appeal No.1-A of 2014, decided on 30th April, 2014.

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

----Ss. 99(1-A)(l), 77 & 14 ---Constitution of Pakistan, Art.63(1)(o)---Disqualification from being elected member of an Assembly---"Government dues"---Scope---Defaulter of costs of an election petition---Nomination papers of such defaulter could not be rejected on the ground of non-payment of costs of election petition---Costs of election petition being a personal financial obligation of a petitioner did not fall within the ambit of "Government dues" or "public exchequer".

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

----Ss. 99(1-A)(l) & 14 ---Disqualification from being elected member of an Assembly---Illegal and corrupt practices by Returning Officers during the elections---Whether such practices by Returning Officers would disqualify the returned candidate from contesting in by-elections---Acceptance of nomination papers, objection against---Election of returned candidate/respondent was declared null and void by the Election Tribunal due to illegal and corrupt practices committed by Returning Officers during the election---Subsequently by-elections were held in the same constituency for which returned candidate/ respondent again filed his nomination papers---Plea of appellant-objector that findings of Election Tribunal regarding illegal practices during the general elections were sufficient to disqualify returned candidate/respondent from contesting the by-elections---Validity---Election Tribunal had not found the returned candidate directly responsible for any illegal and corrupt practices, rather being beneficiary of the same, declared that he was bound to face the legal consequences of illegal and corrupt practices of State functionaries (i.e. Returning Officers)---Candidature of returned candidate for by-elections, thus, did not suffer from disqualification under S.99(1-A)(l) of Representation of the People Act, 1976---Objection against acceptance of returned candidate's nomination papers was unfounded and untenable in circumstances---Appeal was dismissed accordingly.

Rana Zia ur Rehman and Ms Misbah Serwar for the Appellant.

2014 C L C 1088

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD AKRAM and 5 others----Petitioners

Versus

Mst. CHANAN BEGUM through L.Rs. and others----Respondents

Civil Revision No.587 of 1999, decided on 19th March, 2013.

Conciliation Courts Ordinance (XLIV of 1961)---

----S. 9, Parts-I & II, Section-B---Punjab Conciliation Courts Rules, 1982, Rr.15 & 28---Constitution of Pakistan, Art.175(2)---Application for return of gifted land---Respondent's promise to return such land to applicant---Order of Chairman Conciliation Court deciding application on basis of such promise by observing that respondent had accepted applicant's claim---Validity---Impugned order did not show that Chairman before assuming jurisdiction had determined value of such land not to be exceeding Rs.1,00,000/----Mere recital in impugned order that both parties had consented to jurisdiction of Conciliation Court could not be a ground to assume jurisdiction---Conciliation Court in event of admission of applicant's claim by respondent could not be constituted---Conciliation Court after making decision was legally bound to draw a decree, which applicant failed to produce---Applicant had not filed application for enforcement of any such decree before District Judge---Impugned order for being illegal and without jurisdiction was, not to have any evidentiary value against rights of respondent.

Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 844; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Fida Hussain through Legal heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCMR 1043; Abdul Aziz v. Khuda Dad Khan 2004 SCMR 1046; Barkat Ali through Legal heirs and others v. Muhammad Ismail through Legal heirs and others 2002 SCMR 1938; Ghulam Abbas v. Province of Punjab through District Collector, Jhang and 9 others 2005 CLC 1816; Khalid Mehmood v. Asghar Ali Bhatti 2005 CLC 1821; Muhammad Shafiq and another v. Maqsood Ahmad and 2 others 2002 CLC 1372; Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633; Nazir Hussain and 2 others v. Mst. Aziz Fatima and 3 others 2006 YLR 1254; Mst. Khurshid Bibi and others v. Ramzan and others 2006 CLC 1023; Khizar Hayat and another v. Pakistan Railways through Chairman, Pakistan Railways, Lahore and 2 others 2006 CLC 1028; Principles of Mohammedan Law by D.F. Mulla para.164; Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Muhammad Sadiq v. Sardar and others 1995 SCMR 710; Asmatullah v. Allah Nawaz and others 2007 MLD 1329; Muhammad Mansha v. Hashmat Ali and another 2010 YLR 1498; Madeline Kathleen Ahmed and another v. Muhammad Khalid Qureshi and another 1992 MLD 507; Muhammad Shafiq and another v. Maqsood Ahmad and 2 others 2002 CLC 1372; Ghulam Abbas v. Province of Punjab through District Collector, Jhang and 9 others 2005 CLC 1816; Hakim Khan v. Aurangzeb and others 1979 SCMR 625; Abdul Hameed and others v. Muhammad Mohyuddin Siddique and others 1996 CLC 227 and Mst. Khan Bibi v. Mst. Safia Begum and others PLD 1969 Lah. 338 ref.

Syed Kabir Mehmood for Petitioners.

Muhammad Asif Ismail for Respondents.

Date of hearing: 19th March, 2013.

2014 C L C 1106

[Lahore]

Before Muhammad Khalid Mehmood Khan and Muhammad Ameer Bhatti, JJ

DISTRICT COLLECTOR/DISTRICT OFFICER REVENUE, FAISALABAD----Appellant

Versus

Messrs HUDAYBAIA TEXTILE MILLS LIMITED through Mian Zahoor Ahmad and 6 others----Respondents

E.F.A. No.102 of 2009, decided on 18th December, 2012.

Civil Procedure Code (V of 1908)---

----S. 47---Execution petition filed according to the observation of High Court---Objection petition was dismissed by the Executing Court on the ground that it had no power to review its earlier order---Validity---Executing Court had erred in law to consider the objection petition as a review petition---Objection petition having been filed according to the observations of the High Court, Executing Court was bound to decide the same after considering all the objections in accordance with law---Merits of the case had not been determined by the Executing Court which ought to have been first determined by the same on the objection petition---Executing Court had not decided the objection petition in circumstances---Earlier objection petition which was filed by the incompetent person was dismissed by the Executing Court and questions whether same was maintainable and what would be consequences of order passed on the said application were to be determined by the Court---Questions and objections raised required deeper appreciation which had to be decided by the Executing Court at its first instance---Impugned order passed by the Executing Court was set aside---Objection petition should be deemed to be pending before the Executing Court which should be decided after considering the objections in accordance with law---Appeal was accepted in circumstances.

Inspector-General of Police, Punjab Lahore and another v. Muhammad Iqbal 2007 SCMR 1864 and Directorate General Civil Defence, Government of Pakistan, Interior Division, Islamabad v. Mian Abdul Salam 2007 SCMR 1779 ref.

Mehmood A. Sheikh for Appellant.

S.M. Naseem, Ali Akbar Qureshi and Imran Muhammad Sarwar for respondents Nos.2, 3 and 4.

2014 C L C 1119

[Lahore]

Before Atir Mahmood, J

MUHAMMAD RAMZAN through L.Rs.----Petitioners

Versus

WALAYAT ALI alias WALAYATI and 2 others----Respondents

Writ Petition No.21685 of 2009, heard on 11th December, 2013.

Arbitration Act (X of 1940)---

----Ss. 34, 14 & 17---Specific Relief Act (I of 1877), S.8---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for possession of immovable property---Arbitration agreement---Stay of proceedings---Scope---Contention of plaintiff was that decision of arbitrator had been denied by him being based on fraud---Application filed under S.34 of Arbitration Act, 1940 was dismissed by the Trial Court but same was accepted by the Appellate Court---Validity---Proceedings of suit could be stayed under S.34 of Arbitration Act, 1940 if matter was mutually agreed between the parties---No occasion to stay proceedings of the present suit existed as factum of alleged arbitration agreement had been denied by the plaintiff---Impugned judgment passed by the Appellate Court was not sustainable in the eye of law which was passed without application of judicious mind and in excess of jurisdiction vested in it---Impugned judgment passed by the Appellate Court was set aside and order of Trial Court was restored---Constitutional petition was accepted in circumstances.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196 ref.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196 rel.

Shabbir Ahmad Khan for Petitioners.

Shahid Shaukat for Respondent No.1.

Date of hearing: 11th December, 2013.

2014 C L C 1135

[Lahore]

Before Ijaz Ahmad, J

Messrs COCA COLA BEVERAGES PAKISTAN LIMITED through Company Secretary----Petitioner

Versus

CITY DISTRICT GOVERNMENT, RAWALPINDI through DCO and 3 others----Respondents

Writ Petition No.2191 of 2007, decided on 31st October, 2013.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 116, 142 & 54---Punjab Local Government (Taxation) Rules, 2001, Rr.3, 4, 5, 6, 7, 8 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Imposition of advertisement fee by City District Government on shop board installed on the front of shop for advertisement of commercial product of company---Contract for collection of advertisement fee by the private person---Issuance of demand notice for demanding advertisement fee by such private person---Scope---City District Government issued notification for collection of advertisement fee on shop boards installed on the front of shops for advertisement of commercial product of petitioner-company---Contention of petitioner-company was that demand of advertisement fee by the Authority was illegal as no notice was served; that notification to levy fee was not published in the official Gazette and that no proposal for taxation was published in the newspapers and objections were not invited and no opportunity of hearing was provided on the said proposal---Validity---City District Government was not providing any service to the petitioner-company for displaying the name of its products or logo on the façade of shops of private persons---Such was a private arrangement between the company and shopkeepers---Company had used the façade of shops to display its logo---Shops name also appeared on the board or neon-sign at the expenses of petitioner-company---Money demanded by the Authority could not be termed as "fee"---City District Government could not demand advertisement fee from the company and said demand was illegal--- Notification for collection of advertisement fee on shop boards installed on the front of shops for advertisement of commercial product was not published in the official Gazette and same had no legal effect---Said notification could not take retrospective effect as same would adversely affect the rights of petitioner-company---Authority had also failed to place on record any document substantiating that requirements of S.116 of Punjab Local Government Ordinance, 2001 had been complied with---Authority had also failed to comply with Taxation Rules for publication of proposal, notice inviting public objections and suggestions, hearing of objections, finalization of proposal and subsequent sanction by the Local Council---Notice for collection of advertisement fee was therefore illegal---Such notice could only be issued by an officer of the local government authorized by its Nazim whom a contractor might make a request---Contractors were not under the administrative control of Nazim, therefore notices for demand of advertisement fee issued by them were without lawful authority---Town Municipal Administration might assign or contract out its functions to public or private organization but not to an individual---Award of contract for collection of advertisement fee to an individual was an illegality---City District Government could not demand advertisement fee from the petitioner-company as no services were being provided to the company---Imposition of advertisement fee without satisfying preconditions and without providing any corresponding service or facility and issuance of recovery notices were declared to be illegal, ineffective on the rights of petitioner-company---Impugned notification and demand notices were illegal, unlawful having been issued without lawful authority and same were set aside---Constitutional petition was accepted in circumstances.

Secretary to the Government of Pakistan, Ministry of Finance and others v. Muhammad Hussain Shah and others 2005 SCMR 675; Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited PLD 2011 SC 347; Rauf Trading Company Limited versus Faisalabad Municipal Corporation through Mayor and another 1990 CLC 1732; Messrs Shamim and Co. v. Tehsil Municipal Administration Multan City through Nazim and 2 others 2004 YLR 366 and Arbab Contracting and Co. through Managing Partner v. Tehsil Municipal Administration Multan and Two Others 2005 MLD 1520 rel.

(b) Words and Phrases---

----"Tax"---Meaning---"Tax" was a compulsory exaction of money by public authority for public purposes enforceable by law and was not payment for services rendered.

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond upon Thames 1994 SCMR 1393 and Lucky Cement Factory v. Government of N.-W.F.P. 2013 SCMR 1511 rel.

(c) Words and Phrases---

---"Fee"---Meaning---"Fee" might be a charge for a special service rendered to individual by some governmental agency or local council.

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond upon Thames 1994 SCMR 1393 and Lucky Cement Factory v. Government of N.-W.F.P. 2013 SCMR 1511 rel.

Rashid Hafeez for Petitioner.

Shahid Mehmood Abbasi, A.A.-G.

2014 C L C 1151

[Lahore]

Before Ali Baqar Najafi and Miss Aalia Neelum, JJ

BAJWA INDUSTRIES (PRIVATE) LIMITED through Chief Executive----Appellant

Versus

MUHAMMAD JEHANGIR----Respondent

Regular First Appeal No.402 of 2008, heard on 25th February, 2014.

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

----O. XXIX, R. 1---Suit by corporation---Requirements---Person instituting legal proceedings on behalf of company should be authorized through a resolution passed by the Board of Directors in a meeting convened for such purpose---Order XXIX, R.1, C.P.C. allowed a person to sign or verify on behalf of corporation a suit validly instituted but did not authorize the institution of the same---Plaintiff was a private limited company and its Chief Executive should be empowered/authorized through a resolution by Board of Directors to exercise and perform powers to institute a suit---Chief Executive who was not authorized by the Board of Directors had filed present suit but no resolution passed by the company was filed with the same---Examination-in-chief of defendant remained unrebutted and plaintiff had failed to prove that notice was served on the defendant---No written order with regard to preparing and supply of goods was produced in the court nor same was mentioned in the plaint---Claim made by a party would fail if evidence was not produced to support such claim---Plaintiff-company had failed to prove its claim by leading cogent and reliable evidence---Both suit and appeal were filed by a person who was not authorized to file the same on behalf of company---Appeal was dismissed in circumstances.

Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 rel.

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

----S. 115---High Court (Lahore) Rules and Orders, Volume V, Ch. I, Part A, Rr.9 & 9-A---Revision---Office objection---Limitation---Scope---Revision could not be termed to be barred by time when same was originally filed within time but was deficient in some respect and such deficiencies were not supplied and made up in the given time.

Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392 rel.

Khawaja Abrar Majal for Appellant.

Ch. Aamar Rehman for Respondent.

Date of hearing: 25th February, 2014.

2014 C L C 1168

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

SHAHBAZ AFTAB KHAN----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petition No.27257 of 2013, decided on 4th December, 2013.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Application for custody of minor---Conditional order for visitation of minor subject to submission of surety bond---Validity---Mother filed petition for custody of minors which was accepted with the consent of parties subject to affording the father opportunity to meet his minor children---Neither mother showed any apprehension of removal of minors from the territorial jurisdiction of court nor her counsel requested for any condition at the time of passing of impugned order as imposed by the Guardian Court---Proceedings before the Guardian Court were conducted in congenial and harmonious manner---Dispute between the parties was decided with the concurrence of the parties and Trial Court was not justified in passing an order which was beyond the prayer of parties---Father was not likely to remove the minors from the territorial jurisdiction of Family Court---Right of father to see his children could not be curtailed by imposing condition of submission of sureties every time he had to meet his own children---Impugned order with regard to imposition of such condition was illegal and arbitrary exercise of power---Technicalities could not prevent High Court to strike down such order in exercise of its constitutional jurisdiction when act of court or tribunal would infringe the fundamental right of a citizen---Impugned order was set aside to the extent of imposition of condition with regard to submission of two surety bonds in the sum of Rs. 10,00,000 each with local sureties and same was modified to the extent that father would be entitled to meet his children twice in a month when he would be in Pakistan subject to advance intimation of 72 hours to the mother---Father was told that if he would misuse such concession granted by the High Court or attempted to remove the minors from the territorial jurisdiction of Guardian Court then he would be liable to face contempt of court proceedings and would also loose the right of visitation of his children---Constitutional petition was accepted in circumstances.

Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 rel

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court, invocation of---Scope---Aggrieved person---Scope---If an order was passed by any court or tribunal in violation of law and without authority the same could be questioned by an aggrieved person by invoking constitutional jurisdiction of High Court.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 rel.

Ch. Shaukat Ali Saqib for Petitioner.

Aamir Iqbal Basharat for Respondent No.2.

2014 C L C 1205

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

MUHAMMAD ABDULLAH----Appellant

Versus

MUHAMMAD ASLAM----Respondent

Regular First Appeal No.145 of 2010, heard on 27th September, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Art.84---Stamp Act (II of 1899), Sched. I, Art.5 & S.35---Institution of summary suit on negotiable instrument---Contention of defendant was that blank cheques were handed over to the plaintiff for payment of price and agreement was written that no amount was due against him---Suit was decreed by the Trial Court---Validity---Agreement was mentioned in the written statement but plaintiff had denied the same---Said document was in the custody of defendant and was not confronted to the plaintiff, such document could not be used against plaintiff---Agreement was on the plane paper and no stamp duty had been paid on the same in accordance with law---Stamp duty was required to be paid on the instrument---Non-judicial paper of Rs.100/- was required for writing of agreement---Trial Court was bound to impound said document and ask the defendant to deposit original duty along with fine---Instrument which was not duly stamped was inadmissible in evidence---Neither Trial Court had adopted the procedure nor defendant was offered to discharge his duty in accordance with law---Presumption of correctness was attached to negotiable instrument and defendant was bound to rebut the same---Defendant had failed to discharge his duty---Issuance of cheques and signatures thereupon were admitted---Trial Court exercised powers properly for comparison of signatures and handwriting of defendant on the cheques---Findings with regard to filling up the cheques were in accordance with law---Defendant had failed to point out any illegality or infirmity in the findings recorded by the Trial Court---No case for interference by the High Court had been made out---Appeal was dismissed in circumstances.

Malik Muhammad Latif Khokhar for Appellant.

Muhammad Tariq Rajwana for Respondent.

Date of hearing: 27th September, 2013.

2014 C L C 1222

[Lahore]

Before Shujaat Ali Khan, J

SHAFQAT MEHMOOD----Petitioner

Versus

MUHAMMAD NAZIR----Respondent

Civil Revision No.82 of 2014, heard on 26th March, 2014.

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

----O. V, R.24, O.XXXVII, Rr.1 & 2---Limitation Act (IX of 1908), Art.159---Recovery suit---Service of summons on defendant in person---Scope and procedure---Defendant's petition for leave to appear and defend was dismissed for being time-barred---Defendant contended that he was confined in jail and summons was not served properly---Validity---Limitation for filing leave to appear and defend in suit under O.XXXVII, Rr.1 & 2, C.P.C. was ten days under Art.159 of the Limitation Act, 1908 which would run from service of summons---Service of summons upon clerk of jail did not fulfil requirement of law---Where limitation was prescribed by legislature to be ascertained from date of service, the same could not be ascertained from date of knowledge---Any word should be construed in its general meaning, and deviation from general meaning would render the intent of legislature redundant---Trial Court should have ordered production of defendant from jail for service of summons and supply of copy of plaint while exercising powers conferred under O.V, R.24, C.P.C.---Courts should do substantial justice instead of knocking out a person due to non-fulfilment of certain formalities---Defendant, in circumstances was not served with any summons properly---Dismissal of petition on ground of limitation was not justifiable---Summons in suit filed under O.XXXVII, Rr.1 & 2, C.P.C. were issued in Form No.4 of Appendix B of C.P.C. whereunder summons had to be accompanied by copy of plaint---Defendant could not obtain copy of plaint as he was in jail; his counsel could not be supposed to obtain copy of plaint---Once a defendant had properly been served with summons in a suit, repetition of service was not required---Petition for leave having been filed within ten days from service, application under S.5 of Limitation Act, 1908 was not required---Penal provisions of O.XXXVII, Rr.1 & 2, C.P.C. could only be invoked against a defendant where notices were issued properly in prescribed form---When the law required an act to be done in a particular manner, that act had to be done in that manner alone; such dictate of law could not be termed as technicality---Trial Court had committed material illegality in dismissing petition on point of limitation---Revision was accepted.

Ghulam Rasool v. Abdullah 1991 SCMR 1964 and Muhammad Nadeem Amin v. Ch. Farasat Ullah PLD 2006 Lah. 32 ref.

Messrs Qureshi Salt and Spice Industries, Khushab v. Muslim Commercial Bank Limited, Karachi 1999 SCMR 2353 and Abbas Ali and another v. Asif Abbas and 3 others 2012 CLC 1762 distinguished.

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

----S. 5 & Art.159---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2, C.P.C.---Limitation for filing leave to defend in suit under O.XXXVII, Rr.1 & 2, C.P.C.---Limitation for filing leave to appear and defend in suit under O.XXXVII, Rr.1 & 2, C.P.C. was ten days which would run from service of summons.

(c) Interpretation of statutes---

----Word of a statute should be construed in its general meaning, any deviation from general meaning would render the intent of legislature redundant.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 rel.

(d) Administration of justice---

----Substantial justice---Significance---Courts should do substantial justice instead of knocking out a person due to non-fulfillment of certain formalities.

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

----O. XXXVII, Rr.1 & 2---Penal provisions---Scope---Penal provisions of O.XXXVII, Rr.1 & 2, C.P.C. could only be invoked against a defendant where notices were issued properly in prescribed form.

(f) Administration of justice---

----When the law required a thing to be done in a particular manner, such act had to be done in that manner alone; such dictate of law could not be termed as a technicality.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Kanwar Intezar Muhammad Khan for Petitioner.

Ch. Shahid Mehmood Gujjar for Respondent.

Date of hearing: 26th March, 2014.

2014 C L C 1238

[Lahore]

Before Shezada Mazhar, J

SHAHDAD KHAN----Petitioner

Versus

JUDGE FAMILY COURT, RAWALPINDI and another----Respondents

Writ Petition No.1740 of 2013, decided on 6th November, 2013.

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

----S. 5, Sched---West Pakistan Family Courts Rules 1965, R.6---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage---Application for rejection of plaint---Contention of husband was that wife was residing in United Kingdom and Family Court in Pakistan had no jurisdiction to entertain the suit---Application for rejection of plaint was dismissed by the Family Court---Validity---Court in whose jurisdiction cause of action wholly or in part arose or parties were residing or last resided together would have the jurisdiction to entertain the suit---Cause of action had not arisen in Pakistan in the present case---Both the parties were residing in United Kingdom at the time of marriage and they last resided together there---Rule 6 (b) of West Pakistan Family Courts Rules was not applicable to the facts of present case---Wife was not ordinarily residing in Pakistan but both the parties were residing in United Kingdom and their Nikah ceremony and Rukhsati were also performed there---Differences between the parties arose in United Kingdom and matter was adjudicated upon by the Fiqah Council Birmingham of United Kingdom---Wife had filed suit for dissolution of marriage before Family Court in Pakistan in violation of R.6 of West Pakistan Family Courts Rules, 1965---Said Rule did not grant right to wife to institute suit for dissolution of marriage in Pakistan---Temporary visit of wife to Pakistan would not give jurisdiction to Family Court in Pakistan to entertain the suit---Family Court in Pakistan having no jurisdiction to entertain the present suit, impugned order was without lawful authority---Constitutional petition was accepted in circumstances.

Rehmatullah v. Mst. Shameem Akhtar 2. Civil Judge 1st, Manserah/Judge Family Court, Mansehra 1997 CLC 16 rel.

Sh. Kamran Shehzad for Petitioner.

Sardar Muhammad Naseem Khan for Respondent.

2014 C L C 1259

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD SALEEM----Petitioner

Versus

PROVINCE OF PUNJAB through Administrator Town Municipal Administration, District Gujranwala and 2 others----Respondents

Writ Petition No.28415 and C.M. No.3475 of 2013, decided on 13th November, 2013.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 146-D---Constitution of Pakistan, Arts. 199, 4, 9, 23 & 24---Constitutional petition---Maintainability---Sealing of premises without prior notice to the occupant on the ground that same was constructed without approval of TMA---Exercise of discretionary power---Power of Enforcement Inspector to seal building---Scope---Contention of petitioner was that no opportunity of hearing was provided to him---Validity---Enforcement Inspector had power to seal the premises, however such power could only be exercised in case of any serious threat to the public health, safety, welfare or danger to the life and property---Power of Enforcement Inspector to seal the premises was not to be exercised automatically but he should be satisfied that the sealing of premises was necessary---Such power of Enforcement Inspector to encroach upon the right of property and right to carry lawful business which was fundamental right of every citizen should be exercised after inquiry and notice to the parties---Petitioner was in possession on the building which was constructed in the year 2004 and since then he was carrying his business thereupon---No prior notice under S.146-D of Punjab Local Government Ordinance, 2001 and hearing was given to the petitioner before sealing the premises---No inspection was carried out before sealing the premises to ascertain whether there was threat to public health, safety, welfare or danger to the life and property---Discretionary power of Enforcement Inspector to seal premises was not unbridled---Enforcement Inspector being public functionary while exercising his such power had to act justly and fairly especially where fundamental rights of citizen were involved---Discretionary decision should be made according to rational reasons otherwise same would be arbitrary and might be considered misuse of powers---Functionaries of any organization or establishment could not be allowed to exercise discretion at their whims, sweet-will or in an arbitrary manner rather they were bound to act fairly, evenly and justly---Enforcement Inspector was required to follow the requirements of due process and rule of natural justice by giving hearing to the petitioner---Running business and building of a person could not be sealed without any notice or hearing---Where statute effecting fundamental rights did not provide for hearing or notice, the principle of rule of natural justice requiring such notice or hearing was to be read into such statute---Petitioner was acquitted from the criminal case (unauthorized construction of building) on the statement of Enforcement Inspector that no unauthorized building was constructed by him---Petitioner had a defence and a point of view to present before the Authorities if an opportunity of hearing was given to him---Litigation with regard to ownership of premises was pending between private parties in the courts and premises was sealed on the application of a private party---Impugned order was passed without prior inquiry and same being without any notice and hearing was violative of fundamental rights and was without authority, therefore constitutional petition was maintainable---Impugned order to the extent of sealing the building was set aside, however respondent-Authority might proceed in the matter after hearing the petitioner in accordance with law---Constitutional petition was accepted in circumstances.

Abid Hassan and others v. P.LA.C. and others 2005 PLC (C.S.) 1117; Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 1993 SCMR 122; Shifa Laboratories (Private) Limited through Chief Executive v. Lahore Development Authority through Director-General LDA, Plaza and 3 others 2004 MLD 1377; 1986 SCMR 962; 2000 YLR 1867; M.D. The Bank of Punjab and another v. Syed Shahzad Hussain 2006 SCMR 1032; Atta Muhammad v. Deputy District Officer (Revenue), Rohri, District Sukkur and 2 others PLD 2003 Kar. 516; Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board, Karachi and 4 others PLD 2003 Kar. 495; Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manager and another 2007 SCMR 1240 and Messrs Ameer Khan & Co. v. Government of the Punjab through Secretary Local Government Lahore PLD 2010 Lah. 443 rel.

(b) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Maintainability--- Alternate remedy---Fact that alternate remedy of appeal was available to the parties did not bar jurisdiction of High Court especially when remedy was not adequate and efficacious---Rule of alternative remedy was to regulate the constitutional jurisdiction and exception to the rule was in a case where the impugned order was patently illegal and without jurisdiction.

(c) Constitution of Pakistan---

---Art. 10-A---Right of fair trial---Scope---Fair trial and due process was a fundamental right of every citizen.

Malik Noor Muhammad Awan for Petitioner.

Usman Haider for Respondent/Applicant (in C.M. No.3475 of 2013).

Mubeen-ud-Din Qazi for TMA.

2014 C L C 1270

[Lahore]

Before Atir Mahmood, J

Syed HAROON SULTAN BOKHARI----Petitioner

Versus\

Syeda MUBARAK FATIMA and another----Respondents

Writ Petition No.23268 of 2010, heard on 7th March, 2014.

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

----S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Khula---Suit for dissolution of marriage was decreed on the basis of khula subject to relinquishment of her dower amount by wife or portion of the plot equal to dower amount---Wife had developed aversion and hatred towards the husband---Settlement/agreement without any condition to surrender the right of gift on the part of wife was arrived at between the parties---Contention of husband was that after dissolution of marriage on the basis of khula, according to agreement, wife was bound to return the plot to husband, which was mentioned in Column No.16 of Nikah Nama---Validity---Under the Islamic Law, if the dissolution of marriage was made on the basis of khula, the wife was under an obligation to return/forgo the dower amount and the benefits derived from the husband but said principle was applicable when the khula was claimed by the wife without any fault of the husband but if the aversion or hatred was result of the conduct of the husband which could be mental or physical torture, non-payment of maintenance allowance etc., then the return of dower amount was not essential---Property having been given to wife as a bridal gift could not be termed as "Haqmehr"/Dower, therefore, it was not returnable in consideration of "khula"---Constitutional petition was dismissed.

Flight LT. Anwarul Haasan Siddiqui v. Family Judge, Court No.III, Karachi and 2 others PLD 1980 Kar. 477; Abdul Majid v. Razia Bibi and another PLD 1975 Lah. 766; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Allauddin Arshad v. Mst. Neelofar Tareen and 2 others 1984 CLC 3369 and Mst. Saleha Babar v. Basit Saleem 2005 YLR 1648 distinguished.

2005 CLC 1844. 2006 CLC 1662; 2006 SCMR 100; PLD 2009 Lah. 227; PLD 2009 Lah. 484; Abdur Rashid and another v. Mst. Shaheen Bibi and 2 others PLD 1980 Pesh. 37; Shakeel Saood Khan v. Rizwana Khanum and another PLD 2012 Lah. 43 and Mst. Mussarat Iqbal Niazi v. Judge Family Court and others 2013 CLC 276 ref.

Talat Farooq Sheikh for Petitioner.

Muhammad Shahnawaz Khan for Respondents.

Date of hearing: 7th March, 2014.

2014 C L C 1299

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ZARINA BIBI----Petitioner

Versus

MUHAMMAD ASHRAF and another----Respondents

Writ Petition No.21752 of 2010, decided on 18th February, 2014.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Welfare of minor---Father filed application for custody of minor daughter on the grounds that he could provide better health facilities and education to her as compared to the mother who had contracted second marriage and had children from said marriage and that the parties had settled that in such a situation mother would hand over the custody of minor to him---Mother contended that application for custody of minor had been filed to avoid payment of maintenance allowance to the minor and father had also contracted second marriage out of which he had two children---Application for custody of minor daughter was dismissed by the Guardian Court but same was accepted by the Appellate Court---Validity---Father had contracted second marriage prior to divorcing the respondent out of which he had two children---Criminal case was got registered under S.302 of P. P. C. against the father and he was discharged from Pakistan Army---Father did not meet the minor for the last 4/5 years and he had not paid maintenance to her except through court---Father had agreed at the time of divorce that he would not demand the custody of minor---Father neither made effort to meet the minor prior to filing of suit for maintenance allowance by the mother nor he had paid any maintenance to her---Father had no interest with the welfare of minor and he had filed present application for her custody in order to avoid responsibility of maintenance allowance---Father was an accused of criminal case of henious nature in which he remained behind the bars and custody of minor girl should not be handed over to him---Minor was growing up and getting education properly in the custody of mother and was living with her since her birth---Minor was in such a part of her age which required company of a real mother for her certain personal needs and she could not be left at the mercy of step-mother---Nothing was on record that the education or health of the minor was suffering due to financial inability of mother to maintain her---Father was legally and morally bound to maintain the minor even if she was residing with her mother---Mother could not be deprived of the custody of minor on the pretext of having limited resources---Nothing was on record that second husband of mother of minor was averse towards keeping her in his house---Marriage of mother would not ipso facto disentitle her from retaining custody of minor children and handing them over to the father when same was not otherwise in the welfare of minor---Prime consideration for deciding the application of custody of minor was the welfare of minor and nothing else---Minor had developed great love and affection with her real mother and if her custody was disturbed at such stage same would adversely affect her upbringing---Lap of mother was considered as cradle of God---In presence of real mother it would be very harsh for the minor to be left at the mercy of step-mother who was having two children of her own from the father of minor---Welfare of minor would lie in the custody of mother---Guardian Court had rightly dismissed the application of father for custody of minor after due appreciation of material available on record---Impugned judgment passed by the Appellate Court was set aside and that of Guardian Court was restored---Constitutional petition was accepted in circumstances.

Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Firdaus Iqbal v. Shafaat Ali and others 2000 SCMR 838 rel.

Shahid Mehmood Khan Khilji for Petitioner.

Rai Muhammad Shehbaz Bhatti for Respondent No.1.

2014 C L C 1329

[Lahore]

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD MAHERBAN----Petitioner

Versus

MUHAMMAD SIPARAS and others----Respondents

Civil Revision No.223 of 2014, decided on 5th March, 2014.

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

----O. XXI, R.66---Auction---Reserve price---Object---Purpose of fixing reserve price under proclamation was that Court is to safeguard the rights of judgment-debtor and that the bid should start from that figure.

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

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

----Pre-amble---Object of Civil Procedure Code, 1908, is to promote interest of justice and provide remedy to avoid injustice.

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

----O. XXI, Rr. 66 & 89---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Execution of decree---Auction proceedings---Setting aside of sale by auction---Executing Court did not fix reserve price and suit property was auctioned---Judgment-debtor filed application under O.XXI, R.89 C.P.C. for permission to deposit auction price, which application was allowed by Lower Appellate Court---Validity---Executing Court did not comply with mandatory provisions of O.XXI, R.66, C.P.C., therefore, entire superstructure of sale and issuance of sale certificate was dashed to ground---Basic concept of O.XXI, R.89, C.P.C. was to provide opportunity to judgment-debtor which was the only means of avoiding a sale after it had been carried out---Provisions of O.XXI, R.89, C.P.C. afforded last chance to judgment-debtor after auction had taken place to get the sale set aside on payment of decretal amount---Lower Appellate Court had passed a beneficial order in favour of auction-purchaser while allowing mark-up at the rate of 7% per annum from the date of deposit of purchase money along with 5% of purchase price as provided under O.XXI, R.89, C.P.C.---No jurisdictional error or material irregularity was found in the judgment passed by Lower Appellate Court---Revision was dismissed in circumstances.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 rel.

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

----S. 5---Condonation of delay---Principle---Delay of each and every day has to be explained, as on account of limitation certain valuable rights accrue in favour of other party.

Shakeel Ahmed Qureshi for Petitioner.

2014 C L C 1348

[Lahore]

Before Abdus Sattar Asghar, J

IQBAL AHMAD DHUDHI----Petitioner

Versus

FEDERATION OF PAKISTAN and 5 others----Respondents

Writ Petition No.2133 of 2013, decided on 30th January, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Zonal Chief/Manager of Bank---Appointment of respondent on such post alleged to be violative of Bank's policy not allowing posting of an officer as Manager/Chief Manager of a Branch one year before proceeding on leave preparatory to retirement; and that respondent had been involved in corrupt practices---Validity---Petitioner, a practising lawyer, had not pleaded his personal grievance qua an act of respondent or his such posting---Neither petitioner was employee of such Bank nor had he provided particulars of alleged corrupt practices of respondent--Charge of malpractice or corrupt practices would not be entertained without giving necessary details thereof so that person charged must have a fair opportunity to reply same and hearing---In absence of necessary particulars of corrupt practices, law would protect dignity of .every person by not allowing to plead such plea against him in a casual manner---Petitioner had failed to show himself to be an aggrieved person to agitate any bona fide grievance as pro bono publico---High Court dismissed constitutional petition in limine.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199 --- Public interest litigation, --- Concept and object of such litigation, and role of judiciary therein stated.

"Public interest litigation" is defined as the legal action initiated in a court of law for the enforcement of public interest or general' interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. The concept of public interest litigation provides opportunity to all the citizens to have inviolable access to justice for the protection and enforcement of their fundamental human rights to life and liberty etc.

Black's Law Dictionary quoted.

In the constitutionally governed States, judiciary is provided pivotal role of protection and enforcement of the fundamental human, constitutional and statutory rights. In the cases of infringement of fundamental rights even involving a question of public importance, superior courts in Pakistan have been earnestly guarding the long-standing concept of "other adequate remedy provided by law" and "aggrieved person" while assuming extraordinary jurisdiction to issue writs and orders under Articles 199 and 184(3) of the Constitution of Islamic Republic of Pakistan, 1973.

Object of the public interest litigation is to provide remedy to the wrongs done to the poor, unprivileged people and weaker segments of the society lacking power or resources to have an access to justice. The principles of "locus standi" or "aggrieved person" having been liberally interpreted by the courts in the recent past provide a right to a person having bona fide interest to maintain a petition in the larger public interest subject to fulfilling other requirements under Article 199 of the Constitution.

Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Black's Law Dictionary; Muhammad Bin Ismail v. Tan Sri Haji Othman Satt 1982-2 MLJ 133; Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139 rel.

(c) Pleadings---

----Malpractice or corrupt practices, charge of---Absence of necessary particulars thereof in pleadings---Effect---Charge would not be entertained as person charged must have a fair opportunity to reply same and hearing---Law would protect dignity of every person by not allowing pleading of such charge against him in a casual manner---Principles.

Petitioner in person.

2014 C L C 1358

[Lahore]

Before Amin-ud-Din Khan, J

MURAWAT ALI----Petitioner

Versus

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

E.S.A. No.2 of 2012, heard on 17th January, 2013.

Civil Procedure Code (V of 1908)---

----Ss. 47, 144 & O.XX, R.18---Partition of property---Execution of decree---Restoration of possession---Plaintiffs contended that during pendency of suit possession of suit-land was transferred and they sought restoration of the same---Validity---If there was any right of plaintiffs for restoration of possession under S.144 C.P.C., they might move for the same before proper forum but in a suit for partition Lower Appellate Court while ignoring law straightaway granted decree without specifying right of every party on specific portion of property---Decree was defective one, therefore, no warrant of possession for specific property could be issued in execution of such decree and it was to be seen by Executing Court and Lower Appellate Court---Both the courts below failed to exercise jurisdiction vested in them by law---High Court in exercise of revisional jurisdiction set aside the orders passed by courts below so that grievance could be redressed by competent forum---Revision was allowed in circumstances.

Mrs. Irrum Sajjad Gul for Appellant.

Zaheer Zulfiqar and Raja Tayyab Jamal Qadir for Respondents.

Date of hearing: 17th January, 2013.

2014 C L C 1377

[Lahore]

Before Mehmood Maqbool Bajwa, J

Dr. SIDDIQA SULTANA----Appellant

Versus

Mrs. ZENAT ZULFIQAR----Respondent

First Appeal from Order No.343 of 2009, decided on 10th December, 2012.

Civil Procedure Code (V of 1908)---

----O. XI, Rr. 1, 2, 4, 11 & 21---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Interrogatories, non-replying of---Striking of defence---Procedure---Plaintiff filed application to answer interrogatories and Trial Court struck of defence of defendant on the ground that he did not file answer to all interrogatories---Validity---Non-compliance of provisions contained in O.XI, Rr.1 and 2, C.P.C. did not empower the court to make order under R.21, O.XI, C.P.C. in case of non-compliance of R.11 thereof---Trial Court was not competent to make order under O.XI, R.21---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court and remanded the matter to Trial Court to decide application of plaintiff afresh---Appeal was allowed in circumstances.

Messrs Delhi Vanaspati Syndicate v. R.C. Chawla AIR 1983 J&K 65; Premsukh Chunder and others v. Indro Nath Baner Jee" (ILR Vol.XVIII Calcutta Series 420 and Sham Kishore Mundle v. Shoshib Hoosun Biswas ILR Calcutta Series Vol. V 707 ref.

Syed Kaleem Ahmad Khurshid for Appellant.

Auranbzeb Mirza for Respondent.

2014 C L C 1384

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Syed SULTAN SHAH----Petitioner

Versus

GHULAM QADIR and 8 others----Respondents

Writ Petition No.1958 of 2005, heard on 14th April, 2014.

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

----S. 12(2)---Specific Relief Act (I of 1877), S.12 ---Suit for specific performance of an agreement to sell---Decree allegedly obtained by fraud and collusiveness without knowledge of owner of property---Application under S.12(2), C.P.C., filing of---Limitation---Plaintiffs filed a suit for specific performance against the defendant regarding an oral agreement to sell---Defendant filed written statement objecting that he had no nexus with the disputed property and that the petitioner was the actual owner of the property, who should be impleaded as a party to the suit---Trial Court decreed the suit despite such objection from the defendant---Subsequently upon coming to know about the decree petitioner filed an application under S.12(2), C.P.C. for setting aside the same---Appellate court dismissed said application on ground of limitation---Legality---Defendant to the suit had taken a clear stance and objection that disputed property was owned not by him but by the petitioner, who should be impleaded as a party to the suit---Trial Court in light of such objection also framed a specific issue, but despite that did not take care of such issue while passing the decree---Question of limitation was pivotal, but where allegation of fraud and collusiveness was raised by the petitioner in his application under S.12(2), C.P.C., then courts below should have framed issues, collected evidence and then decided the matter---Application under S.12(2), C.P.C. filed by petitioner could not have been decided summarily as the petitioner had raised allegation of fraud and collusion---Petitioner had a cause of action against the plaintiffs, therefore in his absence no valid judgment and decree could have been passed---Impugned judgment of appellate court below was set aside and High Court directed that application filed by petitioner under S.12(2), C.P.C. would be deemed to be pending before the lower appellate court, which shall decide the same after framing of issues and collecting evidence afresh in accordance with law---Revision petition as allowed accordingly.

Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through Legal Heirs PLD 2006 Lah. 371; Muhammad Ilyas v. Muhammad Bashir PLD 2006 Lah. 365; Mst. Rasool Bibi through Legal Heirs v. Additional District Judge, Sialkot and another PLD 2006 Lah. 181 and Faizum alias Toor v. Nader Khan and others 2006 SCMR 1831 distinguished.

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

----S. 12(2)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Decree obtained by fraud and collusion---Application under S.12(2), C.P.C., filing of---Limitation---Procedure to be adopted by the court---Question of limitation was pivotal and important to decide a lis, but where allegation of fraud and collusiveness was raised by an applicant in his application under S.12(2), C.P.C., then proper course for the Trial Court was to frame issues, collect evidence and then decide the matter.

(c) Limitation---

----Limitation was a mixed question of law and fact.

(d) Fraud---

----Fraud vitiated all solemn acts.

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

----S. 12(2)---Challenging a decree, judgment, instrument or deed obtained by fraud---Limitation---Such decree, judgment, instrument or deed was a nullity in the eyes of law and could be questioned at any time.

(f) Fraud---

----Question of fraud was never purely a question of law and could be thrashed after recording of evidence.

Mst. Zulaikhan Bibi through L.Rs. and others v. Mst. Roshan Jan and others 2011 SCMR 986 rel.

Shaigan Ijaz Chadhar for Petitioner.

Muhammad Baleegh uz Zaman for Respondents.

Date of hearing: 14th April, 2014.

2014 C L C 1401

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

AFTAB AHMAD KHAN and another----Petitioners

Versus

WAZIR AHMAD and 4 others----Respondents

Civil Miscellaneous Nos.2-C of 2012, 1, 2, 3 of 2014 and Civil Revision No.1686 of 2012, decided on 12th February, 2014.

Arbitration Act (X of 1940)---

----S. 34---Stay of proceedings in suit---Filing of application under S.34 of Arbitration Act, 1940 by defendant after having availed several adjournments for filing written statement---Application filed by the petitioner/defendant was dismissed---Validity---Petitioner/defendant on number of occasions had not only appeared before the Court but in order to contest the suit availed opportunities to file written statement---Application under S.34, Arbitration Act, 1940 was moved in order to avoid the filing of written statement for which the trial court had provided last and final opportunity to the petitioner---Act on the part of petitioner/defendant in filing the belated application under S.34 of Arbitration Act, 1940 was not only violative to the requirements of said provision of law but also was contumacious in order to avoid the filing of written statement---Trial court had rightly proceeded to dismiss the application of petitioner---Revision petition was dismissed.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196 and Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 rel.

Raja Nadeem Haider for Petitioners.

Syed Shahab Qutab for Respondents Nos.1 to 3.

2014 C L C 1418

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Sayed ABDUL FAHEED through L.Rs.----Petitioners

Versus

HASSAN MUHAMMAD through L.Rs.----Respondents

Civil Revision No.796 of 2005, heard on 15th May, 2014.

Civil Procedure Code (V of 1908)---

----S. 96 & O.XLI, R.1---Appeal filed before the wrong forum/court---Court admitting such appeal for regular hearing---Contributory negligence of court and appellant---Scope---Filing of an appeal before the wrong forum was to be treated as an appeal filed before the wrong forum and memo of appeal was to be returned to the appellant for its presentation before the proper court---When such an appeal was still admitted to regular hearing by the wrong forum/court, then it was a case of contributory negligence of both, the appellant and the court---Party to such appeal must not be knocked out on technical grounds, when act of court also contributed to such episode.

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

Shaigan Ijaz Chadhar for Petitioners.

Muhammad Jehan Zaib for Respondents.

Date of hearing: 15th May, 2014.

2014 C L C 1425

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

IFFAT BEGUM and another----Petitioners

Versus

ROBINA SHAHEEN----Respondent

Civil Revision No.678 of 2010, decided on 7th November, 2013.

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

----S. 13---Talbs, performance of---Requirements---Right of pre-emption could not be activated unless Talb-i-Muwathibat was performed---Performance of Talb-i-Muwathibat was not a mere technicality vis-a-vis the superior right of pre-emption and that was more important than the superior right---Witness of plaintiff did not utter a single word with regard to performance of Talb-i-Muwathibat by her---Notice of Talb-i-Ishhad was not got exhibited in the statement of plaintiff and her witness had not stated that it was scribed---Pre-emptor had not got declared her witness hostile who was bound by the statement of her own witness---Performance of Talb-i-Muwathibat and Talb-i-Ishhad could not be said to have been proved in the present case---Appellate Court had wrongly declared that performance of Talb-i-Muwathibat had been proved by the plaintiff---Averments of plaint and testimony of witnesses of plaintiff were silent with regard to delivery of notice of Talb-i-Ishhad---Plaintiff had failed to produce "registry booking clerk" of post office and postman to prove the dispatch of notice of Talb-i-Ishhad and its delivery to the defendants---Pre-emptor was bound to produce postman to prove that notice of Talb-i-Ishhad had been served upon the defendants but she had failed which was fatal to her claim---Defendants' appeal was accepted in oblivion of record of the case---Impugned judgment and decree passed by the Appellate Court could not sustain in the eye of law---Judgment and decree of Appellate Court were set aside and those of Trial Court were restored---Revision was accepted and suit was dismissed with costs.

Fazal Din through L.Rs. v. Muhammad Inayat through L.Rs. 2007 SCMR 1; 2013 SCMR 866; 2013 YLR 2016 and 2007 SCMR 1105 rel.

Nemo for Petitioners.

Abdul Rasheed Awan for Respondent.

2014 C L C 1429

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD JAHANGIR----Petitioner

Versus

VICE-CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY, LAHORE and 3 others----Respondents

Writ Petition No.27647 of 2011, decided on 16th January, 2013.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Educational institution---Admission, restoration of---Cancellation of admission after completion of degree---Propriety---Petitioner was admitted to Masters course after fulfilling the advertised criteria for admission, which was a Cumulative Grade Point Average (CGPA) of 2.5/4.00 in Bachelors degree or 60% marks in the annual system---Petitioner successfully completed his Masters course and submitted his thesis, whereafter University authorities issued a notification cancelling admission of petitioner on the basis that he did not meet the admission criteria for the Master's degree---Contentions of University were that at the time of admission petitioner did not submit his final transcript and submitted a copy of his Bachelor's degree which did not contain detailed marks or CGPA; that petitioner was granted admission provisionally and it was mentioned in the merit list that admission would be confirmed after verification of result card, and that upon receipt of result card it was found that petitioner did not fulfil the requisite criteria---Validity---Contention of university authorities that petitioner was granted provisional admission was not borne out from the record---University had not laid down any term or condition regarding provisional admission in the advertisement nor the merit list was produced in court, on basis of which petitioner was allegedly granted provisional admission---Record did not show that University ever required petitioner to produce his final transcript of Bachelor's degree---Even if the final transcript was mandatory and was required for admission, then it was not difficult for the University to obtain the same through its own channels as admittedly the petitioner had also obtained his Bachelor's degree from the same University---No explanation was offered as to why University made no effort to verify antecedents of the petitioner during the two years he had spent in the course of Master's degree---Constitutional petition was allowed in circumstances and notification whereby admission of petitioner was cancelled was declared to be illegal and without lawful authority, and admission of petitioner was restored.

University of Karachi and others v. Tariq Hussain and others 2012 SCMR 1694 rel.

Syed Waqar Hussain Naqvi for Petitioner.

Ali Husnain for Respondents.

Anees Ahmad Sajid for Respondent No.4.

2014 C L C 1448

[Lahore]

Before Amin-ud-Din Khan, J

Khalifa AZHAR MUMTAZ---Appellant

Versus

GHULAM AKBAR---Respondent

R.F.A. No. 39 of 2002, heard on 16th August, 2013.

Negotiable Instruments Act (XXVI of 1881)---

----Ss. 72, 84 & 6---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2---Suit for recovery of money---Non-presentation of cheque, effect---Dishonourment---Cause of action---Scope---Plaintiff sought recovery of money on basis of a cheque given to the plaintiff by the defendant---Suit was dismissed on the ground that the said cheque was never presented to the bank for payment, therefore no cause of action had arisen---Validity----When the cheque was never presented for payment, then in light of S.72 read with S.84 of the Negotiable Instruments Act, 1881, there was no refusal by the drawer or the bank for payment of the cheque, therefore, no cause of action accrued to the plaintiff for filing a suit under provisions of O.XXXVII, C.P.C.---Cheque was only payable on demand and cause of action arose only when such demand was not honoured---Suit of the plaintiff was therefore, not maintainable---Appeal was dismissed.

Sardar Tariq Sher Khan for Appellant.

Nemo for Respondent.

Date of hearing: 16th August, 2013.

2014 C L C 1454

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Messrs ADAM MOTOR COMPANY LIMITED through Chief Executive----Appellant

Versus

Major (R) WASEEM MEHMOOD BUTT and 3 others----Respondents

First Appeal from Order No.210 of 2008, heard on 23rd May, 2014.

(a) Punjab Consumers Protection Act (II of 2005)---

----Ss. 28, 33 & 27---Complaint, rejection of---Interlocutory order---Appeal---Scope---Respondent moved an application under S.28 of Punjab Consumers Protection Act, 2005 for rejection of complaint on the ground of limitation which was dismissed by the Trial Court---Validity---No exact limitation had been provided for a consumer to lodge a claim as he had firstly to issue a written notice that a product or service was defective or faulty or the conduct of manufacturer or service provider was in contravention of provisions of Punjab Consumers Protection Act, 2005 and he should remedy the defects or give damages---Manufacturer or service provider had to reply the said notice within fifteen days after receipt of the same---Consumer Court should not entertain any claim unless the consumer or the Authority had given notice and provided proof that same was duly delivered but manufacturer or service provider did not respond the said notice---Period of thirty days for filing a claim by the consumer or the Authority had been provided from arising of cause of action---Consumer Court could extend the stipulated period in filing a claim up to sixty days from the expiry of warranty or guarantee period specified by the manufacturer or service provider and if no period was specified one year from the date of purchase of the product or providing of services---Period of limitation had to be calculated from the date when cause of action accrued---No remedy had been provided against the interlocutory order in Punjab Consumers Protection Act, 2005 but an appeal could only be filed against the final order---Appeal was not maintainable which was dismissed in circumstances.

Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others 2014 CLC 154 and Coca-Cola Beverages Pakistan Limited v. Ashiq Ali PLD 2014 Lah. 196 ref.

Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others 2014 CLC 154 and Coca-Cola Beverages Pakistan Limited v. Ashiq Ali PLD 2014 Lah. 196 distinguished.

(b) Punjab Consumers Protection Act (II of 2005)---

----S. 33---Interlocutory order---Appeal---Scope---No remedy had been provided against the interlocutory order in Punjab Consumers Protection Act, 2005, but an appeal could only be filed against the final order.

Azmat Lodhi for Appellant.

Abid Raza Shaheen and Mehmood Anwar Butt for Respondent No.1.

Date of hearing: 23rd May, 2004.

2014 C L C 1484

[Lahore]

Before Abdus Sattar Asghar, J

MAZHAR HUSSAIN and others----Petitioners

Versus

SHAHRAN BANO and others----Respondents

Writ Petition No.263 of 2011, heard on 27th May, 2014.

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

----Ss. 53, 44, 45, 52 & 172---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Correction of long standing entries of record of rights---Bar on jurisdiction of civil court---Scope---Member Board of Revenue directed the parties to seek their remedy before the civil court with regard to correction of long standing entries of record of rights---Validity---Application for correction of entries of record of rights, in the present case, was moved after 65 years of the preparation of said record---Lot of transactions in the meanwhile had taken place in favour of various bona fide purchasers who were not impleaded as parties at any stage before the revenue hierarchy---Section 172 of West Pakistan Land Revenue Act, 1967 barred the jurisdiction of civil court in the matters with regard to correction of any entry in the record of rights which would exclusively fall within the jurisdiction of Revenue Officer---Jurisdiction of Revenue Officer with regard to such matters would be determined under S.44 of West Pakistan Land Revenue Act, 1967---Presumption of truth would attach to an entry made in the record of rights until contrary was proved or new entries were substituted thereto---Said presumption could only be dislodged under S.53 of West Pakistan Land Revenue Act, 1967 by institution of suit for declaration---Jurisdiction of civil court was not barred to question the correctness of entries of revenue record---Member Board of Revenue had rightly passed the impugned order---No infirmity or jurisdictional error was pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

Dilmir and others v. Member Board of Revenue. Punjab Lahore PLD 1991 Lah. 314; Ghulam Muhammad v. Mst. Shahnaz Bibi and 10 others 1989 CLC 831; Sardar Khan v. Ghulam Hussain and 31 others 2003 YLR 1788; Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338; Mst. Gulzar Bibi and 2 others v. Chief Commissioner and 19 others 2009 CLC 542; Ghulam Muhammad and others v. Manzoor Ahmad and others 2006 SCMR 1534; Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 and Himat alias Allah Deya v. Rehmat 2004 YLR 2992 ref.

Dilmir and others v. Member Board of Revenue. Punjab Lahore PLD 1991 Lah. 314; Ghulam Muhammad v. Mst. Shahnaz Bibi and 10 others 1989 CLC 831; Sardar Khan v. Ghulam Hussain and 31 others 2003 YLR 1788; Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338; Mst. Gulzar Bibi and 2 others v. Chief Commissioner and 19 others 2009 CLC 542; Ghulam Muhammad and others v. Manzoor Ahmad and others 2006 SCMR 1534 distinguished.

Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 rel.

Muhammad Amir Butt for Petitioners.

Syed Qalab Hassan Shah for Respondents.

Date of hearing: 27th May, 2014.

2014 C L C 1516

[Lahore]

Before Shoaib Saeed, J

NISAR AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

Writ Petition No.13408 of 2011, heard on 5th December, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suits for recovery of maintenance allowance, dowry articles, dower and restitution of conjugal rights---Wife filed suit for recovery of maintenance allowance, dowry articles and dower whereas husband filed suit for restitution of conjugal rights---Trial Court decreed suit of husband for restitution of conjugal rights subject to payment of maintenance allowance and dower which was upheld by the Appellate Court with certain modifications---Contention of husband was that dower was conditional to wife for cohabitation with him---Validity---Parties entered into agreement at the time of marriage wherein husband made commitment to transfer five marla plot as prompt dower---Said commitment had also been mentioned in the Nikah Nama and no restriction could be attached to it---Plea of husband that dower was conditional to wife's cohabiting with him was not tenable---Maintenance allowance was correctly fixed as no condition of settlement could be attached in such circumstances---Wife resided with her husband for a couple of years and dowry articles given to her at the time of marriage must have been used---No illegality or infirmity had been pointed out in the impugned judgments and decrees passed by the courts below---Constitutional petition was dismissed in circumstances.

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

----Ss. 10 (4) & 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on the basis of khula---Scope---Contention of husband was that Family Court was bound to pass decree for dissolution of marriage on the basis of khula directing the wife to return the benefits she had derived in lieu of said decree---Validity---Decree for dissolution of marriage on the basis of khula was passed in lieu of dower with the observation that parties were at variance with regard to dower and same would be resolved after recording evidence of both the parties---Issues were framed and parties had been put to trial---Dispute with regard to dower would be resolved in due course of time and decree passed in favour of wife had neither any legal infirmity nor was violative of any law---Constitutional petition was dismissed in circumstances.

Khalil-ur-Rehman Mayo for Petitioner.

Syed Shamshad Ali Rizvi for Respondents.

Date of hearing: 5th December, 2013.

2014 C L C 1529

[Lahore]

Before Atir Mahmood, J

GHULAM ALI----Petitioner

Versus

Mst. FATIMA BIBI and others----Respondents

Writ Petition No.30640 of 2012, heard on 7th May, 2014.

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

----S. 5, Sched.---Transfer of Property Act (IV of 1882), S.43---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Attachment of property of the surety--- Scope--- Execution petition--- Auction-purchaser--- Deposit of decretal amount in lieu of setting aside auction proceedings---Bona fide purchaser---Scope---Judgment-debtor did not appear in execution proceedings wherein surety submitted surety bond that he would pay the decretal amount---Executing Court attached the property of surety wherein auction-purchaser moved an application seeking permission to deposit decretal amount being bona fide purchaser but same was dismissed---Validity---Surety took responsibility for payment of decretal amount by submitting surety bond and got recorded his statement to such effect---Judgment-debtor did not appear and property of surety was attached and put to auction which was purchased by the auction-purchaser---Neither auction had been confirmed nor sale certificate was issued nor possession of property was handed over to the auction purchaser---Applicant was bona fide purchaser of disputed property without notice and was protected under S.43 of Transfer of Property Act, 1882---Revenue record was silent with regard to proceedings of the court---No bar existed with regard to purchase/transfer of property in question in favour of auction-purchaser---Surety was bound to pay the decretal amount to the extent only for which he gave surety---Surety could not be held responsible for decretal amount accumulated on account of non-payment of decretal amount by the judgment-debtor---Applicant had stepped into shoes of surety by purchasing the property from him and he was responsible for the amount due against the surety only---Surety did not undertake to pay the future liability of judgment-debtor rather he declared to pay the decretal amount against him at such time---Surety could not be held for future liability of judgment debtor---Impugned order and judgment passed by the courts below were not in accordance with law---Constitutional petition was accepted and impugned orders passed by the courts below were set aside and applicant was allowed to deposit the decretal amount and auction proceedings were set aside---Decree-holder might proceed against judgment debtor for recovery of remaining decretal amount due against him in accordance with law.

Javed Imran Ranjha for Petitioner.

Yasar Javed Malik for Respondents Nos.1 and 4.

Allah Bakhsh Gondal for Respondent No.2.

Date of hearing: 7th May, 2014.

2014 C L C 1541

[Lahore]

Before Umar Ata Bandial, C.J. and Muhammad Farrukh Irfan Khan, J

INDEPENDENT MEDICAL COLLEGE, FAISALABAD----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

Intra-Court Appeal No.804 of 2013 and Writ Petition No.23 of 2014, decided on 10th June, 2014.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 11 & 22 [as amended by Medical and Dental Council (Amendment), Act (XIX of 2012)]---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3(2)---Intra-court appeal---Withdrawal of recognition of medical institution---Surprise inspections of medical colleges---Power and authority of Pakistan Medical and Dental Council (PMDC)---Appellant-College was granted permission to intake 50 students for MBBS classes, which was subsequently enhanced to 100 students---Inspectors designated by the PMDC came to the appellant-College for a surprise inspection, but they were not allowed access and asked to produce the authority for carrying out surprise inspection---Ban was imposed on the appellant-College to further give admissions to the students---Aggrieved, appellant-College filed constitutional petition which was dismissed---Appellant-College preferred Intra-court appeal---Constitutional petition was filed against the letter, whereby appellant-College had been stopped from further intake of students' admissions and final decision rendered by the PMDC were challenged---Contention of the appellant-College was that PMDC had no authority to make decision qua recognition and number of students in the Medical Colleges; that said authority vested in the Federal Government and that the Pakistan Medical and Dental Council Ordinance, 1962 had not mandated to the PMDC to carry out any sort of inspection---Validity---Comprehensive report of inspection had been submitted by the inspectors, who were appointed with consent of the parties and all sorts of objections on the competency and authority of Pakistan Medical and Dental Council (PMDC) to carry out inspection of the appellant-College stood resolved---Original report had been ordered to be dispatched to the Registrar, PMDC, who might proceed further in accordance with law and rules---PMDC was the creation of Pakistan Medical and Dental Council Ordinance, 1962 under which PMDC had been given the role to act as a supervisory body on medical education---Pakistan Medical and Dental Council Ordinance, 1962 mandated upon the PMDC to check the standard of education being imparted by the Medical Colleges affiliated with the University of Health Sciences and it was within the scope and authority of the PMDC to inspect the medical colleges for the purposes of not only renewal of the permission for recognition of the institution/college but also to check and verify the facilities available in the affiliated medical colleges to comply with the needs and requirements commensurate with the approved strength of the students admitted in the college---Recognition of the college could be withdrawn if any recognized institution had violated the provisions of the Pakistan Medical and Dental Council Ordinance, 1962 (as amended)---PMDC had every right to carry out inspection of appellant-institution and by doing so it had not committed any illegality or irregularity---PMDC was a supervisory and controlling authority of the medical colleges and it could validly carry out their inspection and stop further intake of students in any institution if the deficiencies found during the inspection were not removed---Appellant-Medical College had not been able to prove any mala fide or ulterior motive on the part of the PMDC to take any biased action against the appellant-Medical College---Notwithstanding the fact that inspection team constituted by consent of the parties, through its report had unanimously recommended the renewal of recognition of the appellant's Medical College and found it eligible for imparting medical education and training for 100 MBBS students, if at belated stage the appellant-College was allowed to grant admission to 1st year MBBS students for the Sessions 2013-14 which was going to end by October/November, 2014 it would be impossible for the students to complete the academic course of whole year within a short span of 3/4 months and it would not be in their interest and equally it would also be against the basic scheme of imparting medical education which placed a requirement of undertaking certain prescribed number of hours to be spent under academic instructions by the student throughout the span of the academic year which corresponded to almost a full calendar year---High Court observed that in view of the report of the Inspectors, it was quite just and fair to direct the PMDC to allow the appellant-College to intake the prescribed number of students for the Session 2014-15---Intra-court appeal and constitutional petition were disposed of with the above observations/directions.

Noshab A. Khan for Appellant.

Barrister Ch. Muhammad Umar for Respondents.

Mian Tariq Ahmed, Dy.A.-G. for Pakistan.

Date of hearing: 13th May, 2014.

2014 C L C 1549

[Lahore]

Before Muhammad Khalid Mehmood Khan, Shahid Hameed Dar and Muhammad Anwarul Haq, JJ

MUHAMMAD KAMRAN----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petitions Nos.21009 and 20880 of 2014, decided on 13th August, 2014.

Constitution of Pakistan---

----Arts. 16, 50, 90, 199, 218---Constitutional petition---Sit-in protest---Long march---Constitutionality---Respondent-political parties had decided to launch "Long Marches" towards the capital city on the Independence Day of Pakistan with the demands that the Prime Minister should step down; that the Parliament should be dissolved; that the Election Commission should be re-constituted, and that an interim government of technocrats should be formed for conducting fresh elections---Held, that said demands raised by the respondent-political parties were in violation of the Constitution---Violation of the Constitution by the protestors and their leaders would expose them to the legal consequences---High Court directed that respondent-political parties were restrained from launching their Marches or holding sit-ins (dharna), in any unconstitutional way, keeping in view the sanctity of the independence day and the current chaotic and uncertain situation prevailing in the country---Order accordingly.

Asad Manzoor Butt for Petitioner.

A.K. Dogar for Petitioner (in W.P. No.20880 of 2014).

Salman Aslam Butt, Attorney-General for Pakistan; Ch. Naseer Ahmad Bhutta, Addl. Attorney General for Pakistan; Waqas Qadeer Dar, D.A.-G.; Ch. Aamir Rehman, D.A.-G.; Amjad Hussain Malik, D.A.-G. along with Irshad Ahmad, Section Officer, Home Department.

Muhammad Hanif Khatana, A.-G., Punjab; Malik Abdul Aziz Awan, Asstt. A.-G. Punjab; Ch. Muhammad Iqbal, Addl. A.-G. Punjab.

Ahmad Awais for Respondent No.2/Pakistan Tehreek-e-Insaf P.T.I. along with Waheed Ahmad, Syed Shodab Hussain Jafri, Umair Khan Niazi, Anis Hashmi.

Syed M.J.I. Jafree.

Shoaib Rashid.

Irshad Ahmad, Section Officer Home Department on behalf of respondent No.2.

Akhtar Shah, on behalf of respondent No.5 Pakistan Awami Tehreek P.A.T.

2014 C L C 1558

[Lahore]

Before Mahmood Ahmad Bhatti, Arshad Mahmood Tabassum and Ch. Muhammad Masood Jahangir, JJ

GOHAR NAWAZ SINDHU----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petitions Nos.21921, 21892 and I.C.A. No. 760 of 2014, decided on 13th August, 2014.

Constitution of Pakistan---

----Arts. 4, 9, 14, 15, 16, 17 & 199---Police Order [22 of 2002], Art.124--- Constitutional petition---Protest by political parties---Processions---Regulation and control of protest processions---Restrictions on the movements of persons and vehicles---Reasonableness---Placing of containers and barriers on roads and streets---Arrests made by Government to prevent citizens from participating in protests---Forced disruptions to the supply of petrol at petrol stations---Constitutionality and legality---Government placed containers and barriers on different streets, roads, highways and motorways, and arrested several people and forcibly disrupted supply of petrol to petrol stations to regulate and control protest processions, contending that such measures were taken in the public interest and to maintain public order---Validity---Peaceful protests and taking out processions, without carrying arms, by the disgruntled to voice their grievances were inherent in a democracy---Unreasonable restrictions imposed by the Government such as blocking all roads, routes, highways, motorways by putting up barriers and placing containers were tantamount to denying, curtailing and abridging the Fundamental Rights enshrined in Arts.15 & 16 of the Constitution---Wholesale blockades on roads, highways, motorways were unwarranted, unlawful and unconstitutional---When people were confined to one city or one place, separating them from other parts of either the same district or the province, such a restriction could not by any stretch of imagination be regarded as reasonable---Such restrictions negated the assurance held out by the State to the citizens that they were free to enter and move throughout the country---When citizens were not allowed to go from one place to another in the name of imposing reasonable restrictions and maintaining public order, the right to freedom of assembly was likely to be impaired and abridged---Locking down a whole province and/or restricting the movements of the public at large, bordering on their confinement was contrary to the Constitutional guarantee contained in Art.15 of the Constitution, besides being offensive to Art.9---No order under Art.124 of the Police Order, 2002, for fencing off streets, roads etc. temporarily, was passed by any police officer to put up barriers or to place containers on the roads---Large-scale arrests intended to prevent citizens from participating in processions were abhorrent to the spirit and mandate of the Constitution---Forced disruptions to supply of petrol to petrol pumps was violative of Art. 9 of the Constitution, inasmuch as such act of the Government tended to deprive the citizens to enjoy decent life and if such act was aimed at keeping the motor vehicles off the roads, they were in negation of Art.15 of the Constitution as well---Such acts of the Government did not come within the purview of reasonable restrictions imposed by law on the right to freedom of movement---Such innovative technique(s) to regulate and control processions lacked any sanction of law behind it---Constitutional petition was allowed accordingly.

Qari Abdul Hameed Qadri v. District Magistrate, Lahore and another PLD 1957 (W.P.) Lah. 213; Syed Abul Ala Mauddodi and others v. The Government of West Pakistan and others PLD 1964 SC 673 and The State of Madras v. V.G. Row AIR 1952 (sic) 196 ref.

Shehla Zia v. WAPDA PLD 1994 SC 693; 2014 SCMR 396 and Human Rights Case No.20107-G of 2013, 2014 SCMR 287 rel.

Ahmad Awais, Shadab Hussain Jafri, Anees Ali Hashmi, Zia Ibrahim Bhinder, Qaiser Mahmood and Umair Niazi for Petitioner.

Muhammad Hanif Khatana, A.-G., Punjab along with Khawar Ikram Bhatti, Addl. A.-G.

Mushtaq Sakhera, Inspector-General of Police and Zulfiqar CCPO in person.

2014 C L C 1570

[Lahore]

Before Atir Mahmood, J

MANZOOR AHMAD and 2 others----Petitioners

Versus

GHULAM HASSAN and 2 others----Respondents

Civil Revision No.800-D of 2013, decided on 19th November, 2013.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 9---Specific Relief Act (I of 1877), S.42---Suit for declaration---Appointment of local commission---Scope---Suit was dismissed by the Trial Court whereagainst appeal was filed in which plaintiffs moved an application for appointment of local commission which was dismissed---Validity---Application for appointment of Local Commission was moved after 10-1/2 years after institution of suit---No such application was filed before the Trial Court---Application for appointment of Local Commission for determination of possession over the suit property could not be allowed at such a belated stage as same would prolong the litigation---Plaintiffs were bound to prove their possession by production of evidence which had already been recorded and Appellate Court was now seized with the matter---Appointment of Local Commission was prerogative of the court and no party could seek such appointment to create evidence in his favour---No illegality had been pointed out in the impugned order---Revision was dismissed in limine.

Jalal Khan and 10 others v. Khandoo Malik and 24 others 2003 SCMR 1351 rel.

Malik Abdul Ghafoor Panwar for Petitioners.

2014 C L C 1578

[Lahore]

Before M. Sohail Iqbal Bhatti, J

Messrs NATIONAL HIGHWAY AUTHORITY----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petition No.318 of 2006, decided on 21st April, 2014.

(a) National Highway Authority Act (XI of 1991)---

----Ss. 3, 10(2)(xv) & 27---Constitution of Pakistan, Art.199---Provincial Government cancelled contract awarded to respondent/ contractor after completion of 60% work by him---Matter was referred to arbitration wherein respondent was found entitled to recovery of remaining amount through award which became rule of court---Executing Court held that petitioner/National Highway Authority was obliged to satisfy the decree---Road in question was handed over to National Highway Authority---District Judge dismissed revision---National Highway Authority contended that the right of way had to be given to the Authority in terms of S.10(2)(xv) of the National Highway Authority Act, 1991---Validity---Under S.10(2)(xv) of the National Highway Authority Act, 1991 right of way of roads declared as National Highways with consent of the provinces and approval of the Federal Government would be effected free of cost and without any liability or condition---Word 'liability' was not defined in National Highway Authority Act, 1991, so its ordinary/dictionary meaning read with S.10(2) of the National Highway Authority Act, 1991, showed that no liability could have been transferred upon National Highway Authority in contravention of statutory provisions of S.10(2)(xv) of National Highway Authority Act, 1991---Contract executed between the parties in violation of law was ab initio void and was not enforceable at law---Revisional court passed impugned order due to misconceived application of S.27 of National Highway Authority Act, 1991---Constitutional petition was accepted.

(b) Void order---

----Effect---Limitation---Any order passed in disregard of an existing law was a nullity; such order was not required to be set aside---Limitation would not run against order passed in contravention of mandatory provisions of law as such order was a nullity---Passage of time would not confer legality upon a void order.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543 and Miss Reeta v. Government of Sindh and others 2001 CLC 1825 rel.

(c) Constitution of Pakistan---

----Art. 199--- Judicial review--- Scope--- Writ of certiorari---Maintainability---Power of judicial review in writ of certiorari would be exercised by High Court in case of defective exercise of jurisdiction by courts below---High Court could interfere while exercising authority under Art.199 of the Constitution where revisional court had passed order in violation of express provisions of law.

Muhammad Anwar and others v. Ilyas Begum and others PLD 2013 SC 255 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Alternate remedy---Dispensation---Where impugned order was completely without jurisdiction and patently illegal, availing of the alternate remedy was not required---Power of judicial review was available even if alternate remedy had been availed provided the impugned act could not be countenanced in law.

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672 rel.

Babar Sattar for Petitioner.

Mujeeb-ur-Rehman Kiani for Respondent No.6.

Shahid Mahmood Abbasi, A.A.-G.

2014 C L C 1590

[Lahore]

Before Amin-ud-Din Khan and Shahid Waheed, JJ

GHULAM RASOOL----Appellant

Versus

Rana MANZOOR HUSSAIN and another----Respondents

Regular First Appeal No.299 of 2013, heard on 12th March, 2014.

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

----S. 12---Suit for specific performance of contract to sell immovable property---Contention of defendants was inter alia that plaintiff did not make payment of the consideration amount and that since time was essence of the contract, plaintiff could not ask for specific performance---Held, that language of the agreement did not make time as essence of contract and when the pleadings and evidence of defendants was contradictory on said point, their defence could not be accepted---Plaintiff was justified in pressing for fulfilment of agreement conditions through the Court---High Court set aside order of Trial Court and held that the plaintiff was entitled to a decree of specific performance---Appeal was allowed, in circumstances.

Muhammad Nawaz Khan and another v. Mst. Farrah Naz PLD 1999 Lah. 238; Ali Muhammad v. Shah Mohammad and others PLD 1987 Lah, 607; Bank of Bahawalpur Ltd. v. Punjab Tanneries, Wazirabad Ltd. and 2 others PLD 1971 Lah. 199 and Sree Lal Chamaria v. Hariram Goenka and another AIR 1926 Calcutta 181 ref.

Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others 2009 MLD 1314 and Seth Essabhoy v. Saboor Ahmad PLD 1972 SC 39 rel.

(b) Contract----

----Pleadings of any oral condition in contradiction to the written agreement/contract had no value in the eye of the law.

Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others 2009 MLD 1314 rel.

Nusrat Javed Bajwa for Appellant.

Muhammad Aslam Zar for Respondents.

Date of hearing: 12th March, 2014.

2014 C L C 1600

[Lahore]

Before Shezada Mazhar, J

Syed MUHAMMAD SHAMIM ASGHAR----Petitioner

Versus

R.D.A. and others----Respondents

Writ Petition No.2616 of 2011, decided on 1st April, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Locus standi---Factual controversy---Petitioner claimed that his deceased father was running a company and plots in question were purchased by that company in auction---Grievance of petitioner was that authorities did not issue transfer letter with regard to plots in question---Validity---Petitioner did not place on record any document which could show that the company had any nexus with plots in question---All letters issued by authorities were in the name of late father of petitioner, therefore, petitioner had no locus standi to file petition in his personal capacity without obtaining decree from Court of competent jurisdiction regarding legal heirs of deceased father or in his capacity as chairman of the company---Disputed facts were involved which could not be resolved through Constitutional jurisdiction---High Court could not ascertain from available record whether petitioner was the only surviving legal heir of deceased owner of the company---Petition was dismissed in circumstances.

National Bank of Pakistan v. Punjab Buildings Products Ltd. PLD 1998 Kar. 302; Dawood Islamic Bank Limited v. Admore Gas Pvt. Limited and 6 others 2012 CLD 263; Agricultural Development Bank of Pakistan v. Messrs Bandagi Agro Services Pvt. Limited and another 2002 CLD 1686; Manzoor Hussain v. Karam Hussain and others 2006 SCMR 869 and Commissioner of Income-Tax v. Narendra Doshi 2004 PTD 2128 ref.

Ms. Shazia Bilal for Petitioner.

Kashif Ali Malik for R.D.A.

2014 C L C 1605

[Lahore]

Before Shahid Jamil Khan, J

FARRAH BASHIR----Petitioner

Versus

MUHAMMAD UMAR TAHIR and others----Respondents

Writ Petition No.337 of 2012, decided on 1st April, 2014.

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

----Ss. 10 (4) & 17---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on the basis of khula---Scope---Family Court dissolved marriage on the basis of khula and ordered the wife for return of dower amount---Contention of wife was that she had not received dower and Family Court was bound to record evidence after framing of issues---Validity---Wife had denied the receiving of dower whereas husband claimed the return of the same in his written statement---Family Court on failure of pre-trial proceedings passed judgment decreeing the suit for dissolution of marriage on the basis of khula and ordered for return of dower received according to Nikah Nama---Family Court did not discuss the contents of divergent pleadings or refer any evidence and erred in exercise of jurisdiction---Possibility existed that despite writing payment of dower at the time of Nikah, the same had not been given---Impugned judgment and decree to the extent of returning of dower amount was set aside and case was remanded to the Trial Court with the direction to frame issue on payment of dower and decide the same after recording evidence---Constitutional petition was disposed of accordingly.

Wahid-ul-Islam v. Shaheen Akhtar and 2 others 2011 CLC 566; Abdul Sattar v. Mst. Kalsoom PLD 2006 Kar. 272 and Aurangzeb v. Mst. Gulnaz and another PLD 2006 Kar. 563 ref.

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

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

----S. 17---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code 1908, applicability of---Scope---Section 17 of West Pakistan Family Courts Act, 1964 barred the application of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 to the proceedings before Family Court for expeditious disposal of family cases keeping in view the practice and customs prevalent in the society.

Syed Muhammad v. Mst. Zeenat and others PLD 2001 SC 128 and Ahmad Yar v. Additional District Judge, Chiniot, District Jhang and others 2007 SCMR 1768 rel.

Sardar Muhammad Hafeez Khan for Petitioner.

Sardar Aftab Ahmad for Respondent No.1.

2014 C L C 1662

[Lahore]

Before Amin-ud-Din Khan, J

Mst. MUREED FATIMA and others----Petitioners

Versus

GUL MUHAMMAD through Legal Heirs and 3 others----Respondents

Civil Revision No.2301 of 2005, heard on 2nd April, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 6---Specific Relief Act (I of 1877), S.42---Suit for declaration---Previous suit withdrawn---Extension in limitation for filing fresh suit---Scope---Plaintiffs/daughters of pre-deceased son filed suit for declaration seeking share of their father alleging that gift deed in favour of paternal uncles was result of fraud---Father of plaintiffs having died prior to the death of their grandfather, case/claim of plaintiffs was not based on inheritance---Plaintiffs were required to prove that mutation was forged and fictitious---Donor/grandfather remained alive for nine years after attestation of gift mutation and never challenged the same---Plaintiffs having filed and withdrawn an earlier suit, had to seek extention of limitation for filing suit in accordance with O.VII, R.6, C.P.C.---Statement on oath having been made by plaintiffs in support of their pleadings, burden of proof could not be shifted to defendants---Even if plaintiffs were allowed to file fresh suit after withdrawal of the previous one, bonus of limitation could not be granted to a party second time---Revision was dismissed.

Sheikh Naveed Shehryar and Miss Humera Bashir Chaudhry for Petitioners.

Qazi Khursid Alam Siddiqui for L.Rs. of Respondent No.1.

Date of hearing: 2nd April, 2014.

2014 C L C 1677

[Lahore]

Before Mahmood Ahmad Bhatti, J

ABDUL REHMAN and another----Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary and 4 others----Respondents

Writ Petition No.927 of 2013, decided on 16th April, 2014.

West Pakistan General Clauses Act (VI of 1956) ---

----S. 8---Limitation Act (IX of 1908), S.12---Constitution of Pakistan, Art.199---Constitutional petition---Auction of plot of Housing Scheme---Successful bidder---Deposit of price of plot---Limitation---Scope---Secretary Housing Committee forfeited earnest money deposited by the petitioners on the ground that they had not deposited 1/3rd amount of price of plots in question within seven days after holding of auction in their favour---Validity---Auction of plots in question was held on 11-4-2012---Petitioners were successful bidders of said plots and they were required to deposit 1/3rd price of the same within seven days---Petitioners deposited cost of plots on 18-4-2012 in favour of authorities---Day when auction proceedings were held was not to be reckoned and counted towards the time within which a successful bidder was to deposit the price at which auction of a particular plot, item, article etc was done---Successful bidder had right to take a second look before committing himself irrevocably and for the same he must have sufficient time at his disposal to brood and rethink about his final act---Petitioner must have seven clear days after the due date when auction proceedings were held in which he turned out to be the highest and successful bidder---Petitioners did not violate the terms and conditions prescribed for auction of plots while depositing price of the same on 18-4-2012---Impugned order was issued without lawful authority and without jurisdiction which was illegal, unlawful having no legal effect---Petitioners were entitled for transfer of plots in question subject to fulfilling other terms and conditions of auction with regard to deposit of balance price---Constitutional petition was accepted in circumstances.

Rao Jamshaid Ali Khan for Petitioners.

Muhammad Javed Saeed Pirzada, A.A.-G. with Masood Shahid, Housing Management Officer, PHATA, Multan for Respondents.

2014 C L C 1689

[Lahore]

Before Shahid Bilal Hassan, J

Hafiz IFTIKHAR AHMED and 3 others----Petitioners

Versus

KHUSHI MUHAMMAD and anther----Respondent

Civil Revision No.21 of 2010, heard on 5th May, 2014.

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

----S. 52---Civil Procedure Code (V of 1908), S.12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Transfer of property within limitation period of appeal---Lis pendence, principle of---Applicability---Application moved under S.12(2), C.P.C. was dismissed---Contention of applicants was that no lis was pending when they purchased suit property and they were bona fide purchasers---Validity---Appeal against judgment and decree of civil court was filed within time limitation---Suit of respondent had been decreed and gift mutation had been declared null and void---Transaction on the basis of said mutation would automatically become of no use to the applicants---Applicants purchased suit land during the time limit for filing appeal---No party could alienate or otherwise deal with the immovable property pending litigation to the detriment of his opponent---Any such transfer would be hit by S.52 of Transfer of Property Act, 1882---No need existed to implead applicants as party to the suit, appeal or revision when they were not party to the suit inter se the respondents as they were not necessary party and they could not claim as such---Rule of lis pendence would apply in the present case---Respondent could not lawfully transfer the suit property---Applicants would not be deemed to have acquired land in question and their application filed under S.12(2), C.P.C. was rightly dismissed by the court below---No illegality or irregularity or wrong exercise of jurisdiction had been committed---Revision was dismissed in circumstances.

Commissioner of Income Tax, Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Sahib Dad v. Province of Punjab and others 2009 SCMR 385; Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique and Co. (Regd.) and others 2008 SCMR 1272; Malik Muhammad Iqbal v. Ghulam Muhammad and another 1990 CLC 670; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905, Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024 ref.

Sahib Dad v. Province of Punjab and others 2009 SCMR 385; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024 rel.

(b) Maxim---

---"Ut lite pendente nihil innovetur"---Meaning---Pending litigation, nothing new should be introduced.

Chaudhary Ehsan Sabri for Petitioners.

Malik Abdul Wahid for Respondents.

Date of hearing: 5th May, 2014.

2014 C L C 1708

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ISMAIL----Petitioner

Versus

REHMAT BIBI through L.Rs. and 25 others----Respondents

Civil Revision No.1994 of 2012, decided on 29th November, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17, 79 & 129(g)---Suit for specific performance of contract---Except first agreement to sell, other agreements did not find mention of thumb-impressions or signature of its executant and even same did not contain her name---Such agreements had no binding force on the defendant---Only one marginal witness of agreement to sell was produced and other was withheld---Plaintiff was bound to prove the execution of agreement to sell by production of legal evidence but he had withheld the same---Mode for payment of earnest money to the defendant had not been disclosed---Best evidence had been withheld and inference would be against the plaintiff that if such evidence was produced then same would not support his version---Defendant was not paid share from the further amount and new agreements were executed by her exclusion---No misreading or non-reading of evidence on record had been pointed out---Impugned judgment passed by the Appellate Court was based on cogent reasons---Revision was dismissed in circumstances.

Ch. Akbar Ali Shad for Petitioner.

2014 C L C 1737

[Lahore]

Before Atir Mahmood, J

BABAR HUSSAIN----Petitioner

Versus

FARAH HUSSAIN and 2 others----Respondents

Writ Petition No.10678 of 2011, heard on 16th June, 2014.

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

----S. 5, Sched.---Civil Procedure Code (V of 1908), O.IX, R.13---Suit for recovery of dower and dowry articles---Ex parte decree, setting aside of---No sufficient cause for not appearing before the court---Effect---Wife had filed suit for recovery of dower and dowry articles against the husband/petitioner---Petitioner-husband engaged a counsel, but during course of evidence, he stopped pursuing the case---Ex parte proceedings were initiated against the petitioner-husband, and the suit was decreed in favour of the wife---Petitioner-husband filed an application for setting aside ex parte decree with the plea that due to a flood in his mother's village, he went to help his relatives and due to such reason he could neither attend court nor contact his counsel---Validity---Even if petitioner (was away and) not available, his counsel being present in court could appear before the court to pursue the case---Further in today's modern age, telephone and mobile facilities were available everywhere including the villages---No one could take a plea that he being in a village was unable to contact his counsel in the city---Plea taken by the petitioner for setting aside ex parte decree was thus unconvincing---Appellate Court below had correctly upheld the ex parte decree against the petitioner-husband---Constitutional petition was dismissed accordingly.

Mehr Ahmad Bakhsh Bharwana for Petitioner.

Shaigan Ejaz Chadhar for Respondent No.1.

Date of hearing: 16th June, 2014.

2014 C L C 1745

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD SHER----Appellant

Versus

MAULA BAKHSH----Respondent

Regular Second Appeal No.34 of 2005, decided on 13th January, 2012.

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

----Arts. 17 & 79---Document---Proof---Failure to produce two witnesses---Scope---One marginal witness appeared as witness but the other was not capable of giving evidence, as it was evident from report of Local Commissioner, not subject to challenge---Effect---Inability to produce second witness by itself was not sufficient to suggest conscience non-compliance of provisions of Art.17 read with Art.79 of Qanun-e-Shahadat, 1984.

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

----Art. 79--- Document--- Proof--- Scribe as marginal witness---Principle---In order to treat scribe, as marginal witness, it is necessary for such witness to depose that executant signed or thumb marked the document in his presence and view while admitting its contents.

Mst. Fatima Bibi v. Mst. Nasim Akhtar and others 2000 YLR 2953 and Zafar Ullah Khan v. Mst. Hakim Bibi and another 2000 YLR 2789 rel.

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

---Art. 79---Expression "execution"---Scope---Expression "execution" means signing of document as a consenting party---Where document is required by law to be attested, execution designates whole exercise including both signature by executant and attestation by subscribing witnesses---Expression 'execution' also suggests signing a document, written, read over and also includes signing in presence of witnesses where witnesses are necessary.

Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

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

----S. 12---Suit for specific performance of agreement of exchange---Agreement---Proof---Plaintiff claimed that there was agreement between parties regarding exchange of landed property and possession was accordingly surrendered to each other and on denying of defendant suit was filed---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the suit filed by plaintiff---Validity---Factum of possession of plaintiff over suit land claiming in part performance controverted by defendant adding same to be a permissible possession as tenant by itself was not sufficient to prove agreement of exchange though it could have been considered a corroborative evidence if execution' of agreement was proved in accordance with law---Plaintiff failed to prove existence, terms and conditions of agreement in accordance with law---High Court declined to interfere with judgment and decree passed by Lower Appellate Court as the same was not contrary to law in order to attract provision of S.100, C.P.C.---Second appeal was dismissed in circumstances.

Muhammad Abdul Mannan v. Dr. M. Hamid Afsar 2002 MLD 1368; Mst. Rasheeda Begum and others and Muhammad Yousaf and others 2002 SCMR 1089 and Shabbir Anwar v. Sh. Tariq Mehmood and 2 others 2002 CLC 1102 ref.

Mian Ghulam Rasool for Appellant.

Muhammad Akhtar for Respondent.

Date of hearing: 13th January, 2012.

2014 C L C 1760

[Lahore]

Before Atir Mahmood, J

Syed AKBAR HUSSAIN through L.Rs. and another----Petitioners

Versus

Mst. NAZIRAN BEGUM and another----Respondents

Civil Revision No.3384 of 2012, decided on 18th December, 2013.

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

---Arts. 59 & 84---Civil Procedure Code (V of 1908), O.XVIII, R.2 & S.151---Specific Relief Act (I of 1877), S.42---Suit for declaration---Comparison of thumb-impressions---Scope---Suit was decreed by the Trial Court whereagainst appeal was filed in which defendants moved an application for comparison of thumb impressions of plaintiffs which was dismissed---Contention of plaintiffs was that original documents were not produced in evidence and comparison of thumb impressions could not be carried out---Validity---Documents produced in the court were copies of a register of scribe which were produced in the court through stamp vendor and scribe vendor---Original register was produced before the court and copies of relevant pages were exhibited---Defendants had requested to summon Vasiqa register for comparison of thumb impressions of plaintiffs which was relevant for the just decision of main suit---Defendants had not submitted in the court that thumb-impressions on the documents were the result of coercion, inducement or undue influence but their case was that of denial of the same---Plaintiff had denied her signatures on the disputed documents---Thumb-impression of one person did not tally with the thumb-impression of other person in the world---Comparison of disputed thumb-impressions in the Forensic Science Laboratory with the admitted one could help the court to reach at a just and correct decision and same would be beneficial for the plaintiff if her thumb-impressions were not available on the said documents---Said report of Finger Prints Expert could be challenged by way of cross-examination---Impugned order passed by the Appellate Court was set aside and application for comparison of thumb-impressions was accepted---Appellate Court was directed to get verified thumb-impressions of plaintiff on the disputed documents through Finger Prints Expert and then decide the case in accordance with law---Revision was accepted in circumstances.

S.M. Zahir v. Pirzada Syed Fazal Ali Ajmeri 1974 SCMR 490; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214; Sultan Ahmad (deceased) through L.Rs. v. Muhammad Yousuf 2011 SCMR 621; Abdul Ghafoor and others v. Mst. Marriam Bibi (deceased) through Legal Heirs and others 2011 SCMR 1648 and Shtamand and others v. Zahir Shah and others 2005 SCMR 348 rel.

Agha Abdul Hassan Arif for Petitioners.

Raja Muhammad Munir and Rafiq Javed Butt for Respondent No.1.

2014 C L C 1766

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Messrs ALZAIR TRAVEL AND TOURS (PVT.) LTD. through Chief Executive and 10 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Regligious Affairs and 16 others----Respondents

Writ Petition No.13332 and C.Ms. Nos.2 to 13, 1434, 1435, 1466, 1467, 1504, 1547, 1562, 1698, 1699, 1325, 1326, 1941, 1977, 1978 of 2014, decided on 15th July, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Policy matters of the Executive---Interference by the High Court---Scope---High Court did not enjoy the jurisdiction to interfere in the policy matters of the Executive as it was against the principle of trichotomy of powers---However, the High Court in its jurisdiction under Art.199 of the Constitution could annul an "order" or a "Policy" framed by the Executive, if it was violative of the "Constitution", "law" or was "product of mala fides".

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

(b) Hajj Policy and Plan, 2014---

----Part. 1, Heading 7(III)---Constitution of Pakistan, Art.199---Constitutional petition---Hajj quota---Private Hajj Tour Operators---Exclusion of some Private Hajj Operators from the allotment of Hajj quota---Legality---Contention of petitioners (excluded private operators) was that Hajj Policy-2014 violated the guidelines settled by the Supreme Court of Pakistan in the case of Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 Supreme Court 1); that quota of 15,000 pilgrims was allotted only to those private operators who were part of Hajj Organizers Association of Pakistan Group ("HOAP"), which allegedly was functional during Hajj in 2013; that exclusion of the petitioners from the allotment of Hajj quota alone was sufficient to establish the mala fide of the Government---Plea of Government that during Hajj-2013, due to unavoidable circumstances the Government utilized its Hajj quota more than its entitlement, thus it entered into a Memorandum of Understanding with HOAP to compensate its members by increasing its allotted quota by 15000 pilgrims for Hajj-2014---Validity---Memorandum of Understanding signed between the Government and HOAP did not mention anywhere that it was being entered into due to the reason that the Government had booked more Hajjis than their allocated quota for Hajj-2013---In Hajj Policy 2014, the Government had declined to offer even a single seat of pilgrim to private tour operators who were not members of HOAP---Hajj Organizers Association of Pakistan Group (HOAP) was already enjoying 50% Hajj quota, and it was not a public private partnership but an Association purely for the benefit of its member tour operators who were minting money by providing facilities of Hajj in better hotels or places of residences---Government had wrongly allotted quota of 15,000 pilgrims to HOAP under the garb of Memorandum of Understanding---Government was bound to offer the said quota to all the tour operators who intended to apply or had applied for the allocation of quota---Government should have also fixed the maximum expenses which the private tours operators could recover---High Court declared Hajj Policy-2014 to the extent of grant of quota of 15,000 pilgrims to HOAP as per list of 2013, without lawful authority and against the law---High Court directed that the Government should, in the first instance, utilize the quota (of 15000 pilgrims) so released itself and if it was unable to perform its duty due to any reason, said quota of 15000 pilgrims should be offered to all the registered tour operators of Ministry of Religious Affairs---Constitutional petition was allowed accordingly.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Hajj---Expenses---Duty of Governmental and Private Hajj Operators---Hajj was a sacred duty for the Muslims and it was the bounden duty of the Government as well as the Private Hajj Operators to assist the Muslims in the performance of Hajj and not to burden them (financially) to that extent that it became impossible for a Muslim to perform this sacred duty.

Muhammad Azhar Siddique, S.S. Paracha, M. Irfan, Muneer Ahmad and Shabbir Ismail for Petitioners.

Muhammad Javed Kasuri and Nasar Ahmad, Deputy Attorneys General for Pakistan.

Muzamil Akhtar Shabir and Muqtedir Akhtar Shabir for Competition Commission of Pakistan.

Aitezaz Ahsan and Farhan Shahzad for HOAP.

Saeed Ahmad Malik, Director Hajj, Lahore in person.

Dates of hearing: 26th, 27th, 30th June, 4th, 7th, 11th and 14th, July, 2014.

2014 C L C 1788

[Lahore]

Before Shezada Mazhar, J

AMER OBAID----Petitioner

Versus

Mst. FARHAT JABEEN and another----Respondents

Writ Petition No.14997 of 2009, heard on 17th September, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Recovery of dowry articles, suit for---Value of dowry articles---Loss in value/utility by use---Purchase receipt of gold ornaments not produced in evidence---Wife filed suit for recovery of dowry articles against her husband, claiming dowry articles as per list provided by her or in lieu thereof Rs.975,880 as their price---Trial Court decreed wife's suit to the tune of Rs.400,000 only on the ground that she failed to prove all of the list and that exaggerated price of articles had been mentioned---Appellate Court decreed the suit for the full amount of Rs.975,880 after holding that the wife had proved her case through confidence inspiring evidence---Validity---Appellate Court failed to realize that dowry articles remained in common use of the parties for a considerable period---Dowry articles included clothes and other daily use items, which must have lost their value/utility by their use over the years---Further, regarding gold ornaments, neither any receipt of purchase nor any evidence regarding leaving gold ornaments in the husband's house was produced by the wife---Wife failed to prove the value of the list of dowry articles, hence, Family Court had rightly fixed the value of dowry articles as Rs.400,000---Judgment and decree of Appellate Court was set aside to the extent of enhancement of value of dowry articles, and decree of Family Court was upheld---Constitutional petition was disposed of accordingly.

Azhar Mehmood v. Ms. Hafeez-un-Nisa PLD 2014 Lah. 131 ref.

Haris Azmat and Muhammad Ali Salimi for Petitioner.

Nemo for Respondent No.1.

Date of hearing: 17th September, 2014.

2014 C L C 1819

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ANWAR----Petitioner

Versus

BASHIR AHMAD and another----Respondents

Civil Revision No.482 of 2004, heard on 11th September, 2014.

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

----S. 13---Transfer of Property Act (IV of 1882), S.118---Performance of Talbs---Talb-i-Muwathibat---Date, time and place of performance of Talb-i-Muwathibat not proved through evidence---Making of Talb-i-Ishhad also not proved---Suit property was not sold but was in fact an "exchange"---Even otherwise, pre-emptor in his examination-in-chief did not depose the exact time, date, month or year of performance of Talb-i-Muwathibat---Pre-emptor's informer appeared as witness but did not mention any specific time, date, month, year or the period when he informed the pre-emptor about the disputed sale---Alleged participant of the gathering, wherein pre-emptor purportedly performed Talb-i-Muwathibat, also appeared as witness but he too did not depose the specific date when the first demand was performed by the pre-emptor---Perusal of plaint showed that pre-emptor had failed to plead the date when notice of Talb-i-Ishhad was dispatched; the post office through which it was sent, and whether the same was served upon the vendees or they had refused to receive the same---Pre-emptor had failed to prove the requisite Talb-i-Muwathibat and Talb-i-Ishhad---Revision petition was dismissed accordingly.

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

----O. V1, R. 1 ---Pleadings---Evidence led by party departing from its pleadings---Such evidence had to be ignored.

Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965 rel.

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

-----S. 13--- Suit for pre-emption--- Plaint--- Talb-i-Ishhad--- Date regarding dispatch of performance of Talb-i-Ishhad not mentioned---Fatal for pre-emptor---Right of pre-emption could not succeed on account of such lapse.

Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Bakht Taj and 2 others v. Umar Rehman 2014 CLC 937 and Syed Munawar Hussain Shah and another v. Sahib Khan 2013 CLC 1488 rel.

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

----S. 13(1)(a)---Talb-i-Muwathibat---Jumping demand---Essence of the concept of jumping demand was its promptness and immediateness.

(e) Constitution of Pakistan---

----Art. 189---Latest principle/view laid down by the Supreme Court---Had retrospective application to pending suits with similar facts and circumstances.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Dilber Khan v. Muhammad Ashraf PLD 2013 SC 171 ref.

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

----S. 13(1)(a)---Talb-i-Muwathibat---Proof---Pre-emptor was not only required to narrate the date, place and time regarding performance of Talb-i-Muwathibat in his plaint, but he was also required to prove the same by producing cogent and inspiring evidence.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911 rel.

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art.103---Right of pre-emption---Whether property was sold or exchanged ---Proof---Burden of proof---Onus was on the plaintiff to prove that the transaction was a sale (and not an exchange)---Exchange mutation, in the present case, was attested in the common assembly by the revenue officer while performing his public duties, which attained presumption of truth---Oral evidence of plaintiff's witnesses to prove that transaction was a sale and not an exchange could not exclude documentary evidence, i.e. attested exchange mutation---Suit land was exchanged and not sold---Revision petition was dismissed accordingly.

Elahi Bakhsh through Legal Heirs and others v. Muhammad Iqbal and another 2014 SCMR 1217 rel.

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

----S. 5 ---Transfer of Property Act (IV of 1882), Ss.118 & 122---Right of pre-emption---Not applicable where property exchanged or gifted---Right of pre-emption could be defeated by legitimate devices like exchange and gift---However such device must possess all essentials of exchange or gift as defined under the Transfer of Property Act, 1882.

1981 CLC 527; PLD 1983 Pesh. 13 and PLD 1961 Pesh. 62 rel.

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

----S. 5 ---Transfer of Property Act (IV of 1882), S.118---Right of pre-emption---Whether suit property exchanged---Inequality between value of exchanged properties---No ground to discard exchange---Merely on account of distinct/inequal value of exchange properties, no restriction could be imposed upon its owners to exchange their properties with each other at their option.

Shaighan Ejaz Chadhar for Petitioner.

Ch. Khusheed Ahmad for Respondents.

Date of hearing: 11th September, 2014.

2014 C L C 15

[Peshawar]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

ABDUL SATTAR----Petitioner

Versus

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

Writ Petition No.3165 of 2011, decided on 2nd April, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower amount---Every fact and material which was proper for adjudication of a dispute between the parties should be stated in the pleadings---Defendant (petitioner) could not be allowed to deviate from the case set up in his pleadings at the Trial Court---Conduct of defendant (petitioner) had proved that he had not paid dower amount---Constitutional petition was dismissed.

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

----S. 5, Sched.---"Deferred" and "prompt dower"---Distinction---Law does not permit withholding of payment of dower till the dissolution of marriage---Deferred dower is a sort of guarantee for a woman against ill-treatment, non-maintenance, desertion, or any other abnormality in the family life including rash and arbitrary divorce whereas the prompt dower is payable either at the time of marriage or at any subsequent time when it is demanded by the wife.

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

----S. 6(5)(a)---Payment of dower amount---Burden of proof---Petitioner-defendant (husband) claimed that he had paid full dower and nothing was against him---Burden to prove payment of amount of dower was on the husband.

Muhammad Shabir v. Rehana Kausar and others PLD 2013 SC 102 rel.

Haji Muhammad Zahir Shah for Petitioner.

Wasimuddin Khattak for Respondents.

Date of hearing: 2nd April, 2013.

2014 C L C 81

[Peshawar]

Before Abdul Latif Khan, J

HAQ NAWAZ----Petitioner

Versus

SANAULLAH KHAN----Respondent

Civil Revisions Nos.398 and 402 of 2010, decided on 24th June, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.117---Talb-e-Muwathibat, performance of---Non-disclosure of date, time and place by plaintiff in evidence---Plaintiff failed to fortify the stance taken by him in his plaint---Effect---Plaintiff, in order to succeed in the case of possession through pre-emption, had to prove in unequivocal manner, the performance of Talbs in proper order---On acquiring of knowledge, the plaintiff had to prove the performance of Talb-e-Muwathibat---Talb-e-Muwathibat stated in the plaint, had not been proved in evidence---Suit for pre-emption was dismissed.

Amir Muhammad through Legal Heirs and 7 others v. Muhammad Ashraf PLD 2011 Pesh. 116; Fazal-ur-Rehman v. Khurshid Ali and another 2012 SCMR 635 and Munawar Hussain and others v. Afaq Ahmad 2013 SCMR 721 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O.VII, R.1---Qanun-e-Shahadat (10 of 1984), Art.117---Plaint containing plea as to plaintiff's superior right of pre-emption---Non-appearance of plaintiff as witness to prove such plea---Effect---Plaint containing the plea of superior right and performance of Talbs would be of no effect, if the same was not proved through evidence---Non-appearance of the plaintiff or non-disclosure of facts by plaintiff despite appearance in support of the plea would affect the case of plaintiff---Mere averment in pleadings, would carry no weight unless proved through cogent evidence---Pleadings being neither substitute of evidence nor substantive evidence would carry any weight unless admitted by the other party or proved through cogent evidence.

Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others 2007 SCMR 870 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.117---Talb-e-Muwathibat, performance of---Failure to fortify the averments made in plaint in respect of Talbs---Effect---Trial court dismissed the suit for pre-emption---Appellate court accepted the appeal and decreed the suit in favour of plaintiff---Validity---Plaintiff had not produced any evidence to fortify the averments made in plaint with special reference to date, time and place of Talb-e-Muwathibat---Plaintiff having failed to disclose the date, time and place in his plaint as such the contents of the plaint to this extent remained unproved, disentitling the plaintiff for decree of pre-emption.

Muhammad Kamran Niazi for Petitioner.

Muhammad Younis Thaheem and Nasrullah Khan for Respondent.

Date of hearing: 24th June, 2013.

2014 C L C 108

[Peshawar]

Before Musarrat Hilali, J

ROMAN and others----Petitioners

Versus

MAQBALI and others----Respondents

Civil Revision No.395-P of 2012, decided on 13th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.64---Civil Procedure Code (V of 1908), S.11---Suit for declaration---Limitation---Inheritance---Pedigree table---Constructive res judicata, principle of---Applicability---Contention of plaintiffs was that they were minors and when they attained the age of majority, they challenged the matter---Suit was dismissed concurrently---Validity---Claim of plaintiffs was based on pedigree table which connected them with their predecessor---No evidence was available on record in support of their claim---Pedigree table by itself was not a proof of relationship unless same was proved by some reliable and independent evidence---Such table not corroborated by convincing and independent evidence did not have much evidentiary value---Relationship on which the right of inheritance of the plaintiffs was based had failed for lack of independent evidence---Predecessor of plaintiffs brought suit claiming inheritance with regard to property in question and all the rights and obligations stood adjudicated which was never challenged---Present suit was hit by principle of constructive res judicata---Plaintiffs were bound to file suit within 3 years after attaining majority---Suit filed by the plaintiff was time-barred---Father of plaintiffs died 35 years back who did not challenge the inheritance of his mother during his life time---Plaintiffs had no locus standi to question the same---Both the courts below had recorded concurrent findings which were not open to exception---No illegality or irregularity was shown to have been committed by the courts below---No misreading or non-reading of evidence had been pointed out---Revision was dismissed in circumstances.

Abdul Haq and others v. Mst. Surraya Begum and others 2002 SCMR 1330 rel.

Malik Zeb Khan for Petitioners.

Arshad Jamal for Respondents.

2014 C L C 126

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. RIFFAT YASMEEN----Petitioner

Versus

HASSAN DIN and another----Respondents

Civil Revision No.225 of 2012, decided on 3rd September, 2013.

Succession Act (XXXIX of 1925)---

----S. 372---Succession certificate---General Provident Fund, leave salary, leave encashment and gratuity being in nature of tarka should go to the legal heirs of the deceased while group insurance, financial assistance and benevolent fund which did not fall within the ambit of tarka were just grant and grantee was empowered to distribute the same as per rules and regulations of service or any provision of law---Order of Trial Court was in accordance with law---Appellate Court remanded the case without any reason which would prolong the agony of the parties---Impugned order of Appellate Court was set aside and that of Trial Court was restored---Revision was accepted in circumstances.

Government of Pakistan v. Public-at-large PLD 1991 SC 731; Dr. Nasir Ullah v. Abdul Majeed Soomro and others 2009 PLC (C.S.) 263; Naseem Akhtar alias Lali v. Khuda Bux Pechoho and others 2006 CLC 1589; Zaheer Abbas v. Pir Asif and 6 others 2011 CLC 1528 rel.

Abdur Rehman Qadri for Petitioner.

Faisal Saeed for Respondent No.1.

Ghulam Younis Tanoli for Respondent No.2.

Date of hearing: 3rd September, 2013.

2014 C L C 151

[Peshawar]

Before Mazhar Alam Khan Miankhel and Malik Manzoor Hussain, JJ

CHAMAN ZADA----Petitioner

Versus

SHAH ZEB and 2 others----Respondents

Writ Petition No.2703 of 2009, decided on 31st July, 2013.

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

----Ss. 2(c) & 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application---"Landlord"---Definition---Ejectment petition filed by a person who was not owner of the suit property---Maintainability---Landlord may not be in stricto sensu the owner of the rent premises---Person collecting rent on behalf of the owners could be termed as "landlord"---Constitutional petition was dismissed.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application---Landlord and tenant, relationship of---If a tenant denies the relationship of landlord and tenant, tenancy was automatically terminated and he was liable to eviction.

Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443; Muhammad Yousaf v. Asghar Hussain 1980 SCMR 886; Muhammad Rafique and 6 others v. Khalid Rauf and another 1986 SCMR 1985 and Ghulam Samdani v. Abdul Hamid 1992 SCMR 1170 rel.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application--- Landlord and tenant--- Rule of estoppel---Scope---Petitioner inducted as tenant under a written agreement, could not challenge the title of the landlord without first surrendering the possession to him.

Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 and Madrassa Darul Uloom v. Additional District Judge PLD 1992 SC 401 rel.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of High Court---Scope---Ejectment application---Concurrent findings of two courts below---Hallmark of constitutional jurisdiction was to foster justice and to right a wrong---Constitutional jurisdiction could not be exercised in favour of the person who came to Court with soiled hands in order to satisfy from greedy and covetous instincts---Concurrent findings recorded by two Courts of competent jurisdiction after due consideration of material on record, were not open to question in constitutional jurisdiction---Constitutional petition was dismissed.

M. Amjid Bhutta and Co. v. Malik Abdul Hamid Tiwana PLD 1990 Lah. 412 and Abdul Ghani v. Zahida Begum PLD 1982 Lah. 401 rel.

Fayaz Ahmad for Petitioner.

Qazi Muhammad Aaqil for Respondents.

Date of hearing: 31st July, 2013.

2014 C L C 185

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

MUHAMMAD AKBAR KHAN and another----Petitioners

Versus

MUHAMMAD NAEEM KHAN and 6 others----Respondents

Writ Petition No.921 of 2005, decided on 6th June, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Lease of land---Default in payment of lease money---Order for ejectment of tenants---Validity---Tenancy existed between the parties---Defendants neither produced any receipt nor any person to prove payment of lease money or produce---Suit-land had been sold in favour of plaintiffs---Plaintiffs were landlords whereas defendants were tenants who were defaulters and were liable to be ejected---Objection with regard to non-framing of issues had been raised for the first time before the High Court in constitutional jurisdiction and was never raised before the appellate, revisional or review forum---Such objection was meaningless as both the parties had adduced their evidence as they wished---Constitutional jurisdiction conferred on the High Court was of extraordinary nature which was not for interference with the matter pertaining to the exclusive domain of tribunal or statutory forum unless it was shown that order, action or inaction was in violation of any provision of law or without lawful authority or jurisdiction---Defendants had failed to make out a case for the indulgence of the High Court in its extraordinary jurisdiction---No jurisdictional error, illegality or irregularity was found in the impugned judgments/orders---Constitutional petition was dismissed.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Eada Khan v. Mst. Ghemwar and others 2004 SCMR 1524 rel.

Abdul Wadood for Petitioners.

Nasir Mehmood for Respondents.

Date of hearing: 6th June, 2013.

2014 C L C 203

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

MUHAMMAD SHAHID----Petitioner

Versus

Mst. AASMA NOSHEEN and 2 others----Respondents

Writ Petition No.319 of 2012, decided on 6th June, 2013.

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

----S. 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Suit for recovery of dowry articles and gold ornaments---Contention of husband was that wife had taken away with her all the jewelry and dowry articles in his absence---Suit was decreed concurrently---Validity---Father of defendant-husband came with jirga members but without the gold ornaments due to which jirga did not reach to any settlement---Gold ornaments belonging to the plaintiff-wife were with the defendant-husband---Said ornaments had been given to his second wife by the defendant-husband---Husband had not produced any evidence which could show that plaintiff wife had taken with her jewelry and dowry articles---Findings of the Trial Court were based on proper appreciation of evidence---No illegality in the concurrent findings of the courts of competent jurisdiction was found---Concurrent findings could not be interfered with in constitutional jurisdiction as powers of High Court under constitutional jurisdiction were not that of an appellate court---High Court could set at naught order passed by subordinate court if same was without lawful authority and jurisdiction but at the same time High Court could not substitute its own judgment to that of the subordinate court---Constitutional petition was dismissed in circumstances.

Tariq Abbas Qureshi for Petitioner.

Zain-ul-Abidin for Respondent.

Date of hearing: 6th June, 2013.

2014 C L C 234

[Peshawar]

Before Qaiser Rashid Khan, J

NAEEMUR REHMAN and others----Petitioners

Versus

HAYATULLAH and another----Respondents

Civil Revision No.1716 of 2011, decided on 6th September, 2013.

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

----O. IX, R. 13---Specific Relief Act (I of 1877), S.42---Suit for declaration---Application for setting aside ex parte decree---No summons issued to defendant by the Trial Court---Summons in a suit had to be issued to the defendant to procure his attendance and reply to the claim---Fact that service of the defendant was not possible through ordinary means was not borne out from the record---Substituted service was to be made where the court was satisfied that there was reason to believe that defendant was keeping himself out of the way for the purpose of avoiding service or for any other reasons the summons could not be served in the ordinary way---Nothing was on record that defendant was avoiding service which prompted the Trial Court for substituted service---Such hasty arrangement made by the Trial Court was not only in derogation to law and procedure, but in such process, a person was also deprived of his right of defence---Publication in a Newspaper should be made as a last resort for the purpose of service of defendant---Other defendants did not appear to be serious contenders except the applicant who was placed ex parte in a rather hasty manner though he died during the pendency of suit---Legal heirs of the applicant were not brought on record---Entire exercise was conducted in order to deprive applicant of his right of defence---Impugned judgments and decrees of both the courts below were set aside and application for setting aside ex parte decree was accepted and case was remanded to the Trial Court for decision on merit---Revision was accepted accordingly.

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

----O. V, Rr. 10, 12, 16, 17 & 20---Modes of service---Substituted service---Modes---Three modes of service of summons for personal service: Service by affixation of summons and substituted service; service by affixation of summons to be resorted to when personal service was not possible and substituted service of the defendant should be made as a last resort and not by bypassing the first two modes of personal service and service by affixation---Substituted service was to be made where the court was satisfied that there was reasons to believe that defendant was keeping out of the way for the purpose of avoiding service or for any other reasons the summons could not be served in the ordinary way.

Asghar Ali for Petitioners.

Peer Bakhsh Mahtab for Respondents.

Date of hearing: 6th September, 2013.

2014 C L C 244

[Peshawar]

Before Abdul Latif Khan, J

TASAM ALI BUKHARI----Appellant

Versus

GHULAM MUSTAFA and 4 others----Respondents

Regular First Appeal No.18 of 2007, decided on 30th September, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit on the basis of negotiable instrument---Contention of defendant was that he was in judicial lock up and he had not issued the cheque---Suit was dismissed by the Trial Court---Validity---Presumption was attached to negotiable instrument and burden would lie upon the defendant to prove contrary---Cheque was issued from the cheque book of the defendant---Defendant had not denied his signature on the said cheque---No evidence had been produced by the defendant that he had not issued the cheque nor signed same---Mere denial that he had not issued the cheque would not be sufficient---Plaintiff had proved that cheque was issued which was presented before the bank but was bounced due to insufficient amount---Plaintiff was entitled for recovery of amount mentioned in the cheque---Findings of Trial Court were alien to law---Trial Court had erred in appraising evidence in its true perspective---Impugned judgment and decree of Trial Court were set aside and suit of plaintiff was decreed---Appeal was accepted in circumstances.

Saleemullah Khan Ranazai for Appellant.

Sajid Nawaz Khan and Ghulam Hur Khan Baloch for Respondents.

Date of hearing: 30th September, 2013.

2014 C L C 276

[Peshawar]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

Mian ZIA-UR-REHMAN----Petitioner

Versus

Syed AHMED HUSSAIN SHAH----Respondent

Writ Petition No.730-A of 2013, decided on 3rd October, 2013.

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

----Ss. 54, 55 & 63---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Election Tribunal, direction to---Petitioner was declared as returned candidate in general elections and unsuccessful candidate assailed the election before Election Tribunal---Petitioner sought direction to Election Tribunal to decide preliminary issue/objection in accordance with law---Validity---Issues had been framed which included issue of non-compliance of provisions of Ss.54 & 55 of Representation of the People Act, 1976, and Rules framed thereunder---Election Commission had advised Election Tribunal to decide the matter without unnecessary delay including the issue of mandatory provisions of Ss.54 & 55 of Representation of the People Act, 1976, in spite of the fact that provisions of law were cleared by Commission while referring the petition to Election Tribunal for trial---Election Tribunal was conducting proceedings in accordance with law after its receipt from Election Commission---High Court, while exercising its power under Art.199 of the Constitution, had no appellate or revisional or supervisory power to direct Election Tribunal to conduct proceedings in any way---Petition was dismissed in circumstance.

PLD 2009 SC 284; Aurangzeb Khan v. Election Commission PLD 2010 SC 35; 2007 SCMR 1776; 1995 CLC 158; 1991 CLC 175; 2010 CLC 1424; 2009 CLC 1192; 2007 CLC 671; 2009 CLC 1302; 2002 SCMR 250; 1999 MLD 1533; 2003 YLR 2878; 2009 CLC 771; 2010 CLC 912; PLD 2007 SC 362; 2009 CLC 1469 and 1991 CLC 175 ref.

Khalid Mahmood for Petitioner.

S. Sajjad Hussain Shah, T.H. Lughmani, Wajih-ur-Rehman and Junaid Anwar for Respondent.

Date of hearing: 3rd October, 2013.

2014 C L C 311

[Peshawar]

Before Lal Jan Khattak, J

Malik MUHAMMAD HUSSAIN----Petitioner

Versus

SAADULLAH KHAN----Respondent

Civil Revision No.356 of 2009, decided on 8th April, 2013.

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

----S. 8---Suit for recovery of possession---Land occupied by "trespasser"---Scope---Suit for recovery of possession filed by plaintiff was decreed in his favour against the petitioner/defendant---Appeal filed by defendant was dismissed, the judgment and decree passed in favour of plaintiff/respondent was upheld---Contention of the petitioner/defendant was that even if any encroachment was made by him and being a trespasser he could not be evicted from the suit land except in accordance with law---Validity---Petitioner being a trespasser had not the protection of law as he had violated a law and sought refuge behind another for the protection of his unlawful interest---Trespasser had no legitimate right whatsoever on the land in dispute as he had entered into the land in question without the permission of the relevant authorities and had started using the same for own purpose without any authorization---Petitioner was not entitled to any protection of law---Revision petition was dismissed.

PLD 2008 Kar. 1821 and 2005 MLD 814 ref.

1968 SCMR 1286 and PLD 1982 SC 308 rel.

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

----S. 115---Revision---Concurrent findings of two courts below---Interference in such findings by revisional court---Scope---Concurrent findings could not be reversed unless and until, the same were proved from record of the case that the same either were the result of non-reading or misreading of evidence.

PLD 1983 SC 53 rel.

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

----S. 117---Urban property, defining of boundaries---Revenue officer, powers of---Scope---Contention of the petitioner was that suit land located in city area could not be demarcated by revenue officer---Validity---Revenue officer had been empowered to enter upon the question of demarcation even if the land was located in a city.

2011 YLR 872 rel.

Malik Muhammad Bashir for Petitioner.

Ghulam Muhammad Sappal for Respondent.

Date of hearing: 8th April, 2013.

2014 C L C 402

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. ZUBAIDA BEGUM----Petitioner

Versus

Haji DIN MUHAMMAD----Respondent

Civil Revision No.1046-P of 2012, decided on 30th October, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129 (g)---Talbs, performance of---Requirements---Talb-i-Muwathibat was fact which was personal to the pre-emptor---Attorney not a substitute---Exceptions---Pre-emptor was bound to prove said talb through cogent and convincing evidence---Best evidence with regard to performance of Talb-i-Muwathibat was the per-emptor and no one else---No disability or plausible reason was shown as to why plaintiff did not appear for recording of her statement---Attorney might not be substitute for pre-emptor and best evidence had been withheld---Plaintiff had failed to discharge onus or shift the same on the defendant---Judgments of both the courts below were unexceptionable and based on correct appraisal of material available on the file---Revision was dismissed in circumstances.

Dilshad Begum v. Nisar Akhtar 2012 SCMR 1106 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 rel.

Mazullah Khan Barkandi for Petitioner.

Syed Culb Abbas for Respondent.

Date of hearing: 30th October, 2013.

2014 C L C 434

[Peshawar]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

KHYAL BADSHAH----Petitioner

Versus

RAEES KHAN and 3 others----Respondents

Writ Petition No.549-P of 2013, decided on 7th August, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Auction---Petitioner and respondent participated in auction proceedings wherein petitioner was declared as successful bidder---Validity---Auction was held after proclamation in the newspaper and due process of law---Petitioner offered highest bid which was accepted and approved and he deposited lease-money---Respondent who participated in the auction had waived off his right, if any, by not challenging the said proclamation within a reasonable time---Principle of estoppel was attracted to the case of respondent---Revision petition was filed by respondent after 9 months from passing of impugned order which was beyond the period of limitation and was wrongly entertained---Neither any application for condonation of delay had been filed nor any sufficient cause for delay was available on the record---Revisional forum had ignored the question of limitation and had exercised jurisdiction beyond its mandate attracting interference by the High Court---Impugned order of revisional court was set aside declaring the same as illegal and without jurisdiction and orders of lower fora were restored---Constitutional petition was accepted and revenue staff was directed to enter the name of applicant as lessee after delivery of possession to him.

Abdul Sattar v. Federation of Pakistan and others 2013 SCMR 911; Mrs. Akram Yaseen and others v. Asif Yaseen and others 2013 SCMR 1099 and Anam Jabbar and 6 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 12 others 2013 YLR 169 rel.

Shakil Azam Awan for Petitioner.

Aminur Rehman and Muhammad Iqbal, D.A.-G. for Respondents.

Date of hearing: 7th August, 2013.

2014 C L C 473

[Peshawar]

Before Abdul Latif Khan, J

ABDUL MAJEED CHAUDHRY----Appellant

Versus

ABDUL HAKEEM SHAH----Respondent

Regular First Appeal No.31-D of 2012, decided on 15th July, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Suit for recovery of money on the basis of cheques---Contention of the defendant was that one of the cheque was returned by the Bank being post-dated and suit to the extent of said cheque could not be filed---Defendant had admitted the arbitration deed and despite failure of the plaintiff to mention the same in the plaint, the admission of the defendant made it clear that arbitration took place between the parties and cheques were issued by the defendant in favour of plaintiff---No plea of coercion as alleged by the defendant was taken in the written statement nor any evidence was produced about the same---No positive evidence was on record with regard to non-existence of relations between the parties and money exchanged in the shape of loan or investment---Presumption was attached to negotiable instruments and defendant was bound to prove contrary---Initial presumption in cases based upon negotiable instruments was that they were made, drawn or accepted for consideration---Once signatures on such documents were admitted or proved, burden would shift upon the maker and mere denial could not exonerate the defendant from discharging said burden---Defendant had admitted the agreement and plaintiff was entitled to the relief as claimed for except to the extent of cheque which was returned by the bank being post-dated---Appeal was dismissed except to the extent of post-dated cheque.

Burhan Latif Khaisori for Appellant.

Ziaur Rehman Qazi for Respondent.

Date of hearing: 15th July, 2013.

2014 C L C 489

[Peshawar]

Before Lal Jan Khattak, J

HABIB ULLAH----Petitioner

Versus

MUHAMMAD IQBAL KHAN and others----Respondents

Civil Revision No.370-D of 2012, decided on 24th June, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration---Right of inheritance---Rejection of plaint on technical ground of limitation---Scope---Plaintiff filed suit for declaration claiming shari share---Application for rejection of plaint filed by defendant was allowed by trial Court and the suit for declaration was dismissed without recording evidence of parties---Appellate Court set aside the order of trial Court and remanded the case for disposal of plaint on merits---Contention of the petitioner/defendant was that appellate Court illegally set aside the order of trial Court as the suit filed by plaintiff was time-barred---Validity---Trial Court dismissed the Suit at very initial stage as neither any written statement had been filed nor any other sort of evidence was available which could substantiate the contention of the petitioner/defendant regarding his respective plea which prevailed with the trial Court---Court, in cases of inheritance, was required to ensure that no legal heir had been denied from his due legal share in the estate of deceased on technical grounds---Court, in such cases, was required to decide the controversy of legacy after recording pro and contra evidence---Plaint was sparingly rejected on the point of limitation---Limitation was a mixed question of law and facts which could not be resolved without recording evidence of the parties---Order of the appellate Court was based on proper appreciation of points involved---Revision petition was dismissed.

Malik Muhammad Bashir for Petitioner.

Muhammad Yousaf Khan for Respondents.

Date of hearing: 24th June, 2013.

2014 C L C 513

[Peshawar]

Before Lal Jan Khattak, J

ABDULLAH and others----Petitioners

Versus

BASHIR AHMAD and 2 others----Respondents

Civil Revision No.367 of 2009, decided on 30th September, 2013.

(a) Gift---

----Essentials---Gift through attorney---Scope---In order to make a valid gift through attorney not only the attorney be specifically authorized but the donee should also be a specified and nominated person---Attorney might be empowered by his principal through a general power of attorney to make a gift but it does not mean that he has got an absolute power to appease and bless any person of his choice---Attorney cannot dole out the property of his principal in the garb of gift on a person not nominated for this purpose by the principal.

(b) Gift---

----Gift made by attorney on behalf of principal---Scope---Donee not specifically nominated by principal---Effect---Petitioner/principal challenged the gift effected by his attorney---Suit was dismissed and the same was affirmed in appeal---Contention of the petitioner/principal was that his attorney transferred the landed property through gift without his consent and permission---Validity---Gift emanates always from love and affection of the donor to a donee and some time is a quid pro quo for personal services rendered by the donee to the donor---Express consent and permission of the principal in the process of making a gift by his attorney cannot be bypassed because it is the inner feelings and state of mind of the donor which inclined him towards a donee for blessing him with a gift---Attorney could not make a gift in favour of a person neither known to the principal or inimical to him---Impugned judgments and decrees were not based on correct legal approach relating to the issues raised in the case and the same were set aside---Revision petition was accepted.

Malik Muhammad Bilal for Petitioners.

Muhammad Aslam Khan for Respondents.

Date of hearing: 30th September, 2018.

2014 C L C 531

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. KHURSHEED and others----Petitioners

Versus

LAL HUSSAIN and others----Respondents

Civil Revision No.28 of 2006, decided on 22nd November, 2013.

Islamic law---

----Inheritance---Contention of plaintiffs was that they being legal heirs were owners of suit property and defendant-widow was divorced by the deceased in his life time---Suit was decreed by the Trial Court but same was partially dismissed by the Appellate Court---Validity---Land in question was mutated in favour of all the legal heirs of the deceased and they were in possession of the same---Plaintiffs had proved the execution of divorce deed through documentary and reliable evidence and there was no rebuttal from the other side---Defendant-widow having been divorced by the deceased in his life time, she was not entitled to inheritance-- Trial Court had passed judgment and decree on proper appreciation of evidence---Judgment and decree of Appellate Court were set aside and that of Trial Court were restored---Revision was accepted in circumstances.

M. Naeem Anwar for Petitioners.

Riaz Ahmed for Respondents.

Date of hearing: 22nd November, 2013.

2014 C L C 635

[Peshawar]

Before Abdul Latif Khan, J

GUL ZAMAN and another----Petitioners

Versus

MAULA DAD and 3 others----Respondents

Civil Revision No.561 of 2011, decided on 16th September, 2013.

Islamic Law---

----Will---Testamentary power, limit of---Mandate given to testator under Islamic law---Scope---Plaintiff had claimed the entire property of testator/deceased owner, by dint of will deed but legally the testator could bequest only one third of his entire property and was barred to bequest more than one third without consent of the legal heirs---Legal heirs had not given any consent to the will, therefore the will was held to be valid only to the extent of one third share of testator's holding.

Principles of Mohammadan Law by D.F. Mulla ref.

Muhammad Saleem Bhatti for Petitioners.

Muhammad Aslam Khan for Respondents.

Date of hearing: 16th September, 2013.

2014 C L C 706

[Peshawar]

Before Mrs. Irshad Qaisar, J

WAZIR MUHAMMAD----Petitioner

Versus

HAROON-UR-RASHID----Respondent

Civil Revision No.1223-P of 2013, decided on 8th March, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24, 24(2), 27 & 28---Civil Procedure Code (V of 1908), O.VII, R.11---Non-deposit of required zar-e-soem within 30 days by plaintiff---Respondent filed application under O.VII, R.11, C.P.C. for rejection of suit---Trial Court dismissed the suit of plaintiff---Appeal filed by the plaintiff was also dismissed---Validity---Non-deposit of one third of the sale price by plaintiff would entail dismissal of the suit.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 24(2)(3)---Requirement for deposit of pre-emption amount---Mandatory---Object---Object of the deposit is to guarantee the vendee against frivolous proceedings on part of the possible pre-emptor and is a token of good faith on pre-emptor's part and such deposit shall also be available for the discharge of the costs.

Sanwal Das v. Jaigo Mal and others AIR 1924 Lahore 68 and Mst. Sakina Begum v. Mst. Surat Bibi 1991 CLC 398 ref.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 24(1)(2)---Time period for depositing zar-e-soem---Scope---Court is under legal obligation to require mandatorily the plaintiff pre-emptor to deposit zar-e-soem and for that purpose it has the discretion to fix a specific time-frame---Such period cannot and should not exceed 30 days, neither it is a specific constraint on the jurisdiction/discretion of the court and any order of the court permitting the pre-emptor to make the deposit beyond 30 days shall be in violation of law and thus illegal and untenable in the eyes of law.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24(1)(2), 27 & 28---Non-deposit of required zar-e-soem---Order of Trial Court with regard to zar-e-soem was not clear in term that amount required to be deposited was not specifically mentioned and plaintiff on his own presumption deposited one third of the amount which he claimed to be the actual and genuine sale consideration---Dismissal of suit for non-deposit of zar-e-soem---Validity---Plaintiff had deposited 1/3rd of amount which he presumed/claimed to be the sale price---Said amount could not be accepted as the actual sale consideration and the market value had to be determined by the court at the time of its final adjudication of the case---Requirement of deposit of one third of the sale price under S.24 of KPK Pre-emption Act, 1987 referred to the price which was reflected from the deed/sale mutation to be deposited within the period fixed by court.

(e) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24(1)(2), 27 & 28---Determination of zar-e-soem---When no sale price is mentioned in mutation of sale deed, in that case court would ask for the deposit of 1/3rd of probable value of the suit property---In the present case the sale consideration was clearly fixed/mentioned in the mutation and also reflected in the plaint, thus the order of Trial Court for deposit of 1/3rd of zar-e-soem (pre-emption amount) was very clear, therefore, plaintiff was bound to deposit 1/3rd of sale amount and it was not discretion/sweet will to deposit 1/3rd of that amount which plaintiff presumed and claimed to be the sale consideration.

(f) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24(1)(2), 27 & 28---Right of pre-emption---Mandatory requirements---Pre-emption right being a feeble right, pre-emptor seeking exercise of such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree.

2009 MLD 837 and 2008 CLC 1559 ref.

Mian Muhammad Younis Shah for Petitioner.

2014 C L C 715

[Peshawar]

Before Mazhar Alam Khan Miankhel and Musarrat Hilali, JJ

MUHAMMAD SAAD ALI and 2 others----Petitioners

Versus

Mst. MARYAM KHAN and 2 others----Respondents

Writ Petition No.864-P of 2013, decided on 13th May, 2013.

(a) Administration of justice---

----Cases to be decided on merits and technicalities avoided.

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

----S. 5, Sched., Ss.9 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Power of Family Court to review its own order---Scope---Suit for recovery of dower, maintenance allowance and dowry articles---Defendant's right of defence was struck off by the Family Court due to non-filing of written statement---Application for review filed by defendant was dismissed as provision of review had not been provided in the Family Courts Act, 1964---Validity---Family Court had every jurisdiction to adopt any procedure/law to meet the situation to do the substantial justice between the parties and to secure the ends of justice---Family Court could adopt every procedure/law in the furtherance of dispensation of justice unless the procedure/law going to be adopted was specifically prohibited---Family court could not refuse to exercise the jurisdiction on the ground of non-availability of the provision of review---Petitioner was allowed to file written statement and case was remanded to trial court to proceed afresh---Constitutional petition was allowed.

(c) Administration of justice---

----Recourse to general law is permissible when the provisions of special law are silent on a particular point except where the provisions of general law are inconsistent with the provisions of special law.

Muzaffer Ali v. Mst. Mehrun Nisa and 2 others 1989 CLC 1805; Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 and Javed Bashir v. Judge, Family Court, Lahore and another 2003 MLD 814 rel.

Adil Majeed Khan for Petitioners.

Muhammad Ijaz Khan Sabi for Respondent No.1.

2014 C L C 744

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD YOUNUS and 3 others----Petitioners

Versus

GHULAM YASIN and 10 others----Respondents

Civil Revision No.179 of 2009, decided on 13th August, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 2 (d)---Contract Act (IX of 1872), S. 11---Suit for possession through partial pre-emption---Maintainability---Superior right---Talbs, performance of---Sale of property through agreement to sell in favour of some of minor vendees---Effect---Plaintiff filed pre-emption suit against the defendants out of whom some were minors---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Minors were not competent to enter into contract before attaining the age of majority---Relatives of minors were also not competent to enter into an agreement to sell on their behalf---Agreement executed between vendor and vendees would not be valid to the extent of shares of minors---Registered sale-deed was executed during pendency of suit but same had not been questioned nor talbs were performed against the same---Suit could not be considered nor was maintainable to the extent of minor defendants as there was no sale in their favour---Plaintiff could not claim beyond the share sold in favour of major vendees---Material contradictions were on record with regard to performance to Talb-i-Muwathibat---Acknowledgement-due cards were not available on the file---Postman was required to be produced to prove the delivery of notices of Talb-i-Ishhad but same had not been done---Service of notices of Talb-i-Ishhad in the absence of acknowledgement-due cards stood disproved which was fatal to the case---Shares of minor defendants were to be excluded from the disputed property as there was no suit for pre-emption against those shares---Plaintiff had based his claim on the basis of contiguity and by acquiring right of ownership by the minor defendants, the superior right of plaintiff could be defended by them as being co-sharers in the suit property---Plaintiff could be non-suited having inferior right qua the minor defendants---Plaintiff had assailed agreement to sell in toto but sale being violative of law could be considered only to the extent of shares of major defendants---No effort was made to perform talbs with regard to transaction made in favour of minor defendants during the pendency of suit---Suit of plaintiff would fall within the ambit of partial pre-emption which was not permissible under the law and such aspect was also fatal to the suit---Revision was accepted and judgment and decree of the Appellate Court were set aside and those of Trial Court were restored.

Muhammad Nazeef Khan's case 2012 SCMR 235; Bashir Ahmad's case 2011 SCMR 762; Amir Muhammad's case PLD 2011 Pesh. 116; Mst. Gul Rangeena. v. Khushal Khan 1999 CLC 831; Muhammad Iqbal v. Muhammad Gul 2010 CLC 1035 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 2(d)---"Sale"---Scope---Sale was transfer of ownership of immovable property for valuable consideration, irrespective of the fact whether mutation or registered deed were attested to that effect or not---Sale could be effected orally and mere non-attestation of an instrument did not take out the transaction from the ambit of "sale".

Rustam Khan Kundi and Malik Muhammad Jahangir Awan for Petitioners.

Syed Mastan Ali Zaidi for Respondents.

Date of hearing: 13th August, 2013.

2014 C L C 824

[Peshawar]

Before Ikramullah Khan, J

Mst. MEHR ANGIZA through L.Rs. and 8 others----Petitioners

Versus

Mst. KHUSHNOODA BEGUM and 7 others----Respondents

Civil Revision No.1125 of 2011, decided on 20th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Gift---Pardanasheen lady---Mutation---Burden of proof--- Co-sharer--- Limitation--- Mushaa, doctrine of---Scope---Contention of defendants was that plaintiff had gifted suit land in their favour---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---No witness had been produced by the defendants to substantiate their plea of transfer of property in their names---Beneficiaries of mutation were bound to prove the execution of the same with free consent---Defendants had failed to bring on record the required evidence for establishing the factum of acquisition of rights through the impugned mutation---Neither any witness who had recognized the plaintiff in the common assembly nor any document had been produced by the defendants to infer that disputed mutation had been signed and attested by her---Bald statements of witnesses of defendants were insufficient to infer that mutation was executed by the plaintiff---No limitation would run against a co-sharer---Every fresh entry in the periodical record with regard to immovable property would give fresh cause of action---Wrong entries never conferred or deprived a person of his rights in immovable property---Strong, cogent and irrebuttal evidence was required to prove transfer of rights in immovable property and to deprive a person of his rights therein---Burden of proving the transaction would lie on the person who would be beneficiary of such transaction and same never shifted on aggrieved person---Express repudiation and ouster of rights should be proved through high standard of evidence which could not create a single dent in the smooth completion of such transaction which took away the right of pardanasheen lady---Adverse entry and non-participation in the profits of the property would not amount to an ouster of co-sharer---Wrong mutation conferred no right in the property--- Revenue record was maintained only for the purpose of ensuring and realization of land revenue---Alleged gift was not gift in real sense but same was a kind of Mushaa as plaintiff allegedly had transferred her share in undivided property---Delivery of particular piece of land in such kind of gift was sine qua non for completion of the same through Mushaa and if in future the undivided property was partitioned, the gift would be considered as completed---Defendants had failed to prove that disputed mutation had been attested or effected by the plaintiff---Factum of possession would not deprive the plaintiff of her legal sharai share in the legacy---No illegality or irregularity had been pointed out in the impugned judgment---Revision was dismissed in circumstances.

Fazal Hussain v. Muhammad Saleem and 4 others 2002 YLR 3262; Redi Gul and 16 others v. Haji Swab Gul and others PLJ 2009 Peshawar 39; Mst. Khiswar v. Abdul Dehyan 2004 CLC 203 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Muhammad Taif Khan for Petitioners.

Muhammad Riaz Khan for Respondents.

Date of hearing: 20th September, 2013.

2014 C L C 864

[Peshawar]

Before Syed Afsar Shah, J

GULDAR SHAH----Petitioner

Versus

MOHABAT SHAH----Respondent

Civil Revision No.187-B of 2013, decided on 21st October, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat, performance of---Talb-i-Muwathibat being question of fact required proof through convincing evidence---Informer had failed to prove that he had got information with regard to suit mutation in the hotel where he was taking tea---Informer was having knowledge of transaction earlier and he conveyed the same to his father earlier than the date alleged in the plaint---Conduct of pre-emptor and informer who was his son was not above board with regard to knowledge of suit transaction---Trial Court had exercised jurisdiction properly which was upheld by the Appellate Court---High Court would not interfere in the concurrent findings unless and until discretion was exercised arbitrarily---Courts below had properly discussed the evidence on record---No misreading or non-reading of evidence or defect was pointed out by the plaintiff---Revision was dismissed in circumstances.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had limited jurisdiction to interfere with the concurrent findings of courts below unless and until same were the result of misreading or non-reading of evidence.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Hidayat Ullah Khattak for Petitioners.

2014 C L C 871

[Peshawar]

Before Lal Jan Khattak, J

Mst. SAMINA YASMIN----Petitioner

Versus

AMAN ULLAH and another----Respondents

Civil Revision No.13-D of 2013, decided on 12th April, 2013.

Specific Relief Act (I of 1877)---

----S. 9---Qanun-e-Shahadat (10 of 1984), Art.76---Suit for specific performance of agreement to sell---Permission for adducing secondary evidence---Scope---Plaintiff lost the original deed/agreement during pendency of suit for specific performance of agreement, therefore he filed an application for seeking permission to adduce secondary evidence---Application for producing secondary evidence was allowed by trial court---Petitioner/defendant aggrieved by the order of trial court, contended that plaintiff was not entitled for permission of adducing secondary evidence and as such order of trial court suffered from legal infirmity---Validity---Plaintiff had filed a suit for specific performance of a deed in his favour---Entire case of plaintiff hinged on deed/agreement, which was a document relied upon in support of his claim---Nothing would remain to be proved in the case by the plaintiff, if he was refused to produce secondary evidence in circumstances---Objection of the petitioner was premature as the plaintiff would face the test of cross-examination by the opposite side qua authenticity of the deed and further admissibility or legality of the deed---Admissibility or legality of the deed would be determined on merit by the trial court at later stage---Impugned order was unexceptionable---Revision petition was dismissed.

PLD 2006 Quetta 44 ref.

Ch. Muhammad Ayaz for Petitioner.

Nemo for Respondents.

Date of hearing: 12th April, 2013.

2014 C L C 900

[Peshawar]

Before Lal Jan Khattak, J

CHIEF ENGINEER CRBC, DISTRICT DERA ISMAIL KHAN and another----Appellants

Versus

BHAWAL DIN and 2 others----Respondents

Regular First Appeal No.108 of 2012, decided on 24th June, 2013.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 4---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs.5746.74/- per kanal to Rs. 28,000/- per kanal---Validity---Reliance should not be placed on one year average only while fixing or determining market value of the acquired land but other factors and considerations which were relevant must be taken into account---Court could rely on instances of sale made shortly before and after the notification for determining market value of the acquired land---Inordinate delay caused in-between the issuance of notification and announcement of award, inflationary trend in the currency, price hike in real estate, location of acquired land and the loss by reason of severing of said land from rest of the land of landowners and also the damaging effect of the acquisition of land might also be looked by the court---Acquired land was located near village bazaar, college, mosque, residential houses and metalled link road was connecting the said village to the highway having school and electricity facilities etc.---Land of the landowners had been divided into two parts and one part had been damaged by the construction of drain of the Authorities---Commissioner appointed by the Trial Court visited the spot and enquired about market value of the acquired land---Said Commissioner checked the sale mutations executed in the village between the period of issuance of notification and date of announcement of award and fixed market value of the acquired land as Rs. 28,000/- per kanal---Trial Court rightly enhanced the rate from Rs. 5746.74/- to 28,000/- per kanal---Judgment of the Referee Court was based on correct appreciation of evidence---Said judgment and decree was maintained and appeal was dismissed with certain modifications with regard to reduction in simple interest.

S. Abid Hussain Shah Bukhari for Appellants.

Malik Muhammad Bilal for Respondents.

Date of hearing: 24th June, 2013.

2014 C L C 937

[Peshawar]

Before Waqar Ahmad Seth, J

BAKHT TAJ and 2 others----Petitioners

Versus

UMAR REHMAN----Respondent

Civil Revision No.175 of 2006, decided on 26th April, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Nothing was on record that notice of Talb-i-Ishhad was personally served upon the defendants and one of the notices was original and others were photocopies---Plaintiff had not mentioned in his plaint the date of sending of notice of Talb-i-Ishhad and thus had not fulfilled the requirements of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Courts below had wrongly and illegally decreed the suit which was liable to be set aside---Plaintiff had failed to bring on record cogent evidence in the shape of death certificate as to when his father died and inheritance mutation had been attested after the performance of Talb-i-Muwathibat and even institution of the suit---Talb-i-Muwathibat etc. including the institution of suit did not correspond with the date and time for the purpose of exercising the right of pre-emption where the date of death was not definite/certain---Suit was dismissed.

Rooh-ul-Qadoos v. Muhammad Rafique and 2 others 2002 CLC 379; Muhammad Bashir's case 2007 SCMR 1105 and Mian Pir Muhammad and another v. Faqir Muhammad PLD 2007 SC 302 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat, performance of---Talb-i-Muwathibat etc. including the institution of suit did not correspond with the date and time for the purpose of exercising the right of pre-emption where the date of death of the father of plaintiff (the person who filed the suit) was not definite/certain.

Adam Khan Jadoon for Petitioner.

M. Ilyas Khan for Respondent.

Date of hearing: 26th April, 2013.

2014 C L C 976

[Peshawar]

Before Syed Afsar Shah, J

ZABIULLAH and others----Petitioners

Versus

AWAL KHAN----Respondent

Civil Revision No.240-B of 2011, decided on 4th November, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---General Clauses Act (X of 1897), S. 29---Talbs, performance of---Requirements--- Truthfulness of witness--- Non-examination of postman---Effect---Suit was partially decreed concurrently---Pre-emptor had knowledge with regard to suit transaction and his conduct to such extent was not above board---Plaintiff had failed to comply with the mandatory provisions of talbs and truthfulness of his witness was doubtful---Defendants had denied the delivery of notices of Talb-i-Ishhad---Pre-emptor ought to have examined either the postman or concerned booking/dispatch official to prove service of said notices---Official acts were presumed to be regularly performed but such presumption stood rebutted when the addressees made statement on oath that no such notices of Talb-i-Ishhad had been delivered to them---Only the statement on oath was sufficient to prove negative assertion and burden to prove the positive would shift on the party who had asserted the same---Burden to disprove the element of notices of Talb-i-Ishhad stood discharged by the defendants by making statement on oath and said burden would shift on the plaintiff to prove positive assertion---Plaintiff had failed to prove such assertion as he had neither examined the concerned postman nor dispatch/booking official---Pre-emptor had failed to prove notices of Talb-i-Ishhad in accordance with law---Impugned judgments of both the courts below suffered from misreading of evidence which were not sustainable in the eye of law---Courts below had reached on wrong conclusion which had resulted into miscarriage of justice---Impugned judgments of courts below were set aside and suit was dismissed.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Basheer Ahmed v. Ghulam Rasool 2011 SCMR 762 ref.

Muhammad Nazeef Khan v. Gulabat Khan and others 2012 SCMR 235; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Basheer Ahmed v. Ghulam Rasool 2011 SCMR 762 ref.

Asghar Ali Khan for Petitioners.

Abdul Waheed Ayaz for Respondent.

Date of hearing: 4th November, 2013.

2014 C L C 985

[Peshawar]

Before Mrs. Irshad Qaiser and Waqar Ahmad Seth, JJ

MUMTAZ KHAN and others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Forest Department and others----Respondents

Writ Petition No.250-A of 2006, decided on 28th November, 2013.

Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----S. 73---Khyber Pakhtunkhwa Sale, Sawing and Processing of Timber Rules, 2004, R.71---Constitution of Pakistan, Arts.199 & 128---Constitutional petition---Maintainability---Alternate remedy---Rules framed by the Government with regard to the sale and sawing of timber---Scope---Contention of petitioners was that Rules with regard to the sale and sawing of timber were illegal being excessive delegation of legislative powers---Validity---Government had enacted law with regard to protection, conservation, management and sustainable development of forests and other renewable natural resources---Object of such enactment was to regulate and to protect the black-marketing of timber and illegal cutting of trees and sale of illicit timber---Courts did not sit in judgment over the wisdom of Legislature---Governor had exercised legislative and not executive powers while enacting the Rules---No mala fide could be attributed to such legislation---No tax had been levied by the Government through such Rules---Nominal fee for registration of sale depots and saw units and annual renewal fee had been imposed---Khyber Pakhtunkhwa Forest Ordinance, 2002 was validly promulgated in accordance with the constitutional provisions---No fundamental rights of petitioners had been violated and right of appeal was also provided to them---No valid and legal ground existed to strike down the legislative instrument on the pretext of being promulgated in excess of delegation of legislative powers to the executives---Constitutional petition was not maintainable as petitioners had not availed the remedy of appeal---Constitutional petition was dismissed in circumstances.

Sajjad Ahmad Abbasi for Petitioners.

Muhammad Naeem Abbasi for Respondents.

Date of hearing: 28th November, 2013.

2014 C L C 1026

[Peshawar]

Before Musarrat Hilali, J

ZAKIRULLAH and others----Petitioners

Versus

MUHAMMAD REHMAN and others----Respondents

Civil Revision No.1374 of 2010, decided on 18th November, 2013.

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

----O. VII, R. 11 & S. 11---Partition Act (IV of 1893), S.4---Suit for possession through partition--- Res judicata, principle of---Applicability---Rejection of plaint---Applicability---Documents to be considered by the court---Scope---Plaintiffs filed suit wherein defendants moved an application for rejection of plaint which was accepted concurrently---Validity---Provision of O.VII, R.11, C.P.C. was to prevent the multiplicity of litigation on the same cause of action---No evidence could be looked into for invoking O.VII, R.11, C.P.C. as conclusion had to be drawn from the averments made in the plaint---Plaintiffs in the present case, had no share in the disputed khata---Previous suit for declaration and permanent injunction filed by the plaintiffs was dismissed and that order had attained finality as no appeal was filed against the same---Present suit had been filed for possession through partition on same cause of action---No chance was available for the success of present suit of plaintiffs as the matter had already been tried and decided earlier against them---Findings recorded by the courts below were well-founded---Revision was dismissed in circumstances.

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

----S. 11---Res judicata, principle of---Scope---Principle of res judicata was that once a judgment was handed down in a suit which was no longer subject to an appeal or revision then said matter could not be raised again between the same parties over the same cause of action.

Fayaz Khan Chamkani for Petitioner.

Javed Yousafzai for Respondents.

Date of hearing: 18th November, 2013.

2014 C L C 1084

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

IJAZ AHMAD----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Peshawar and 4 others----Respondents

Writ Petition No.2786-P of 2013, decided on 1st November, 2013.

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

----Art. 114---Constitution of Pakistan, Art.199---Constitutional petition---Educational Institution---Admission in M.B.B.S. programme against reserved seats for backward areas---Criteria---Ineligibility of candidate due to completion of his education from outside the backward areas---Promissory estoppel, doctrine of---Applicability---Contention of petitioner was that he migrated from his native town due to worst condition---Validity---Petitioner besides being on the top of merit list was not considered and respondents were declared successful candidates---Education facility in the area was available and out of 12 candidates 8 got completed education from class-1 till F. Sc. within the concerned backward area while 3 candidates including the petitioner failed to get completed education from the concerned area and they were declared disqualified---Candidate for reserved seats of backward area who had obtained education from a place outside the respective backward area could not be considered at par with the candidates who received education from within the backward areas or concerned area---Essential consideration for admission against reserved seats for backward area was that candidates should not only be domiciled of the area but had completed total education therefrom---Petitioner was estopped from challenging the policy of admission for backward areas as he himself accepted the terms and conditions for admission under the said policy with his affidavit---Candidate was estopped to challenge any of the condition contained in the prospectus under the doctrine of promissory estoppel---Constitutional petition was dismissed in limine.

Atteeya Bibi Khan's case 2001 SCMR 1161; Manzoor Ahmad Qurashi v. Joint Admission Committee PLD 2005 Pesh. 116; Khitam-ul-Haq v. Government of Khyber Pakhtunkhwa through Secretary Health 2013 YLR 1325; Huma Saad v. Chairman, Joint Admission Committee Medical/Dental Colleges, Khyber Pakhtunkhwa, Peshawar 2012 CLC 891 and Secretary Economic Affairs Division, Islamabad v. Anwarul Haq Ahmad 2013 SCMR 1687 rel.

M. Ajmal Khan for Petitioner.

Nemo for Respondents (being a motion case).

Date of hearing: 1st November, 2013.

2014 C L C 1117

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MUBARAK ALI SHAH----Petitioner

Versus

MUHAMMAD KHAN and 3 others----Respondents

Civil Revision Nos.31 and 32 of 2010, decided on 13th February, 2013.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 1---Framing of issues---Trial court failed to frame issues as per pleadings of the parties and had left some material issues unframed due to which judgments and decrees were suffering from miscarriage of justice---Additional issues were framed by the High Court and cases were remanded to the courts below for affording opportunities to produce pro and contra evidence on the additional issues and then to decide the cases afresh.

Malik Muhammad Bashir for Petitioner.

Rashidullah Khan Kundi and Sh. Iftikhar-ul-Haq for Respondents.

Date of hearing: 13th February, 2013.

2014 C L C 1166

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Messrs KARAM CNG through Dildar----Appellant

Versus

CNGC, SWABI and others----Respondents

R.F.A. No.59-P with C.M. Nos.83 and 84 of 2013, decided on 8th April, 2013.

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

----S. 96---Limitation Act (IX of 1908), Art.156---Appeal---Limitation---Appeal had been filed after a delay of 264 days while the stipulated period of limitation of ninety days (90) had been mentioned in Art.156 of the Limitation Act, 1908---Appeal being time-barred was dismissed in limine.

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

----Preamble---Object and scope of Limitation Act, 1908---Law of limitation could not be considered merely a formality but the same was required to be observed and taken into consideration being mandatory in nature---Purpose of law of limitation was to help the vigilant and not the indolent---Helping hand might not be extended to a litigant having gone into deep slumber, on having become forgetful of his rights.

Shakeel Ahmad for Appellant.

2014 C L C 1179

[Peshawar]

Before Malik Manzoor Hussain, J

MUHAMMAD YOUNAS KHAN----Petitioner

Versus

NOOR ALI----Respondent

Civil Revision No.193-P of 2013, decided on 17th May, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31 & 32---Talbs, performance of---Limitation--- Plaintiff filed pre-emption suit wherein defendant moved application for dismissal of the same on the ground that the suit was time-barred---Validity---Sections 31 and 32 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, were independent from each other---Non-compliance of S.32 of the Act, by Registration Officer would not enlarge the time limit in different eventualities given in the said provisions---Language of provision of S.32 (1) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, appeared to be mandatory, in view of expression "shall" used therein, but in fact such was directory for want of penal clause---Where the consequence of failure to comply the provision was not mentioned, the provision was directory, where, however, the consequence was mentioned, the provision was mandatory---Provision of S.32 being directory could not override or dilute the provisions of S.31 of the Act, which were mandatory---Plaintiff-petitioner had filed suit on the basis of registered sale-deed attested on 9-7-2010 and as per S.31 of Khyber Pakhtunkhwa Pre-emption Act, 1987, the suit should be filed within 120 days from the date of registration of the sale-deed but suit was filed on 30-11-2010 which was beyond the prescribed limit of 120 days and it was futile exercise to continue the proceedings---Suit was not maintainable being time-barred and orders passed by both the lower courts were in accordance with law---Revision was devoid of force which was dismissed in limine.

Muhammad Aqeel v. Fayyaz Hussain and others 1999 MLD 1506; Noor Khan v. Mumtaz Khan 1994 CLC 1739 and Noorul Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

Attaullah Khan Tangi for Petitioner.

2014 C L C 1252

[Peshawar]

Before Qaiser Rashid Khan, J

HAKEEM KHAN and 6 others----Petitioners

Versus

ANWAR MUHAMMAD KHAN and 28 others----Respondents

Civil Revision No.968 of 2011, decided on 9th December, 2013.

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

----Ss. 60 & 61---Limitation Act (IX of 1908), Art.148---Suit for possession through redemption---Limitation---Scope---Contention of plaintiffs was that they mortgaged suit property in favour of defendants but redemption had not been given effect to in the revenue record---Suit was dismissed concurrently---Validity---Continuous mortgage of suit property was in existence in favour of defendants---No redemption of suit property was available in the revenue record in favour of plaintiffs---Suit-land was in possession of defendants as mortgagees since 1870 to-date---No documentary evidence was available with regard to payment of mortgage money to the defendants or re-mortgage of suit property in their favour---Mortgage of disputed land had taken place 40 years prior to the institution of suit---Defendants had revenue record in their favour for years long---Article 148 of Limitation Act, 1908 had provided for a period of 60 years for a suit for redemption of mortgage---Present suit was filed after over 100 years of the mortgage of suit-land---Plaintiffs were debarred to seek decree for possession through redemption and they were rightly non-suited by the courts below---No illegality, material irregularity, misreading or non-reading of evidence had been pointed out in the findings of both the courts below---Revision was dismissed in circumstances.

Kata Mir and others v. Mst. Sho Begum and others 2003 SCMR 589; Baidullah Jan and another v. Aurangzeb and another PLD 2010 Pesh. 96; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524; Din Muhammad and 5 others v. Ghulam Wahid and 3 others 1995 SCMR 675; Ghazi Marjan and others v. Alam Gul and others PLD 2009 Pesh. 83 and Abdul Haq v. Ali Akbar and others 1994 SCMR 2531 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of courts below could not be set at naught unless it was proved that same were patently illegal, based on misreading, non-reading of evidence, erroneous, fanciful or had resulted into great miscarriage of justice.

Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 and Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 rel.

Mian Muhammad Younas Shah for Petitioners.

Ahmad Ali and Aamir Javed for Respondents.

Date of hearing: 9th December, 2013.

2014 C L C 1284

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD YOUNAS and others----Petitioners

Versus

ZARDAD and 18 others----Respondents

Civil Revision No.611 of 2011, decided on 10th June, 2013.

Civil Procedure Code (V of 1908)---

----S. 47---Specific Relief Act (I of 1877), S.42---Suit for declaration---Compromise---Execution of judgment based on compromise---Scope---Suit was disposed of in terms of compromise---Execution petition was filed and objections were turned down concurrently---Validity---Defendants-applicants admitted the claim and hissadari possession of the plaintiffs-respondents---Terms and conditions of compromise were admitted according to which certain acts were to be performed by the defendants---Judgment based on compromise was executable and defendants could not be allowed to resile from the same---Orders passed by the courts below were just and fair---Revision was dismissed.

PLD 1975 Lah. 95; 1997 SCMR 517; PLD 2008 Quetta 33 and 2010 MLD 187 rel.

Ayub Awan for Petitioners.

Shahzada Khan Jadoon for Respondents.

Date of hearing: 10th June, 2013.

2014 C L C 1307

[Peshawar]

Before Yahya Afridi and Ikramullah Khan, JJ

MUHAMMAD SOHAIB and another----Petitioners

Versus

Mst. SHAMEEM AKHTAR and 2 others----Respondents

Writ Petition No.49-P of 2013, decided on 4th June, 2013.

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

----Ss. 17 & 13---Civil Procedure Code (V of 1908), O.XX, R.10---Suit for recovery of movable property which was part of dower---Determination of value of ornaments given which were part of dower---Decree of delivery of such property---Principles---No court may assume the status of an administrator in regard to determination of value of gold or other property without taking recourse to the established principles in this regard and without appointing of a commission as well as examining the statements in respect of prevailing rates of gold from those who remained acquainted with the business of gold or without ascertaining the official market rate of gold prevailing at the time when the marriage was solemnized or at the time of the institution of the suit or when the decree was awarded---Section 13 of the West Pakistan Family Courts Act, 1964 was not helpful in the determination of market value of ornaments (movable property), and was silent on the determination of case of a decree for delivery of such property was unexecutable---Even though C.P.C. was not applied to proceedings before Family Court, for the safe administration of justice, provisions of O.XX, R.10, C.P.C. would be applicable insofar as determination of value of property was concerned.

AIR (32) 1945 Peshawar 5 rel.

Suhil Ahtir for Petitioner.

Hussan U.K. Khan for Respondent.

2014 C L C 1353

[Peshawar]

Before Mian Fasih-ul-Mulk and Muhammad Daud Khan, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA WORKS AND SERVICES/COMMUNICATION AND WORKS DEPARTMENT, PESHAWAR and 6 others----Appellants

Versus

FAZLE WAHID KHAN----Respondent

Regular First Appeal No.384-P of 2010, decided on 28th June, 2013.

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

----Ss. 18, 34, 31, 4, 17, 11, 25, & 23---Reference to court---Payment of interest---Respondent filed reference petition for grant of 8% compound interest on the compensation paid which was accepted from the taking of possession till the actual payment---Validity---Collector Land Acquisition had not granted 8% compound interest despite the fact that respondent and other landowners were dispossessed prior to payment of compensation for which the affected landowners were entitled---Land of respondent was taken into possession on emergency basis prior to making of award and compensation amount was not deposited with the court---Landowner/respondent had received the compensation amount without protest but he had raised objection on non-payment of compensation for trees and crops---Neither the compensation amount was deposited with the court after taking possession nor the respondent had asked for enhancement in the rate of compensation---No valid exception could be taken to the well-reasoned findings of the Referee Judge---Appeal of acquiring authority was dismissed.

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

----Preamble---Procedure, steps and purpose for acquisition of land---Provisions of Land Acquisition Act, 1894 were self-contained for acquisition of land and payment of compensation---Part second of the Act commenced with a mandate that the authority should issue notification where after objections were invited and having disposed of the objections the Collector was expected to make award---Part third dealt with the procedure of making a reference to the court which spelt out as to what factors were to be taken into consideration and what should be ignored---Legislature had laid down the procedure and the guidelines which had to be adopted with regard to the acquisition of land and payment of compensation---Court was bound to follow the legislative intent which was of relevancy when the court was interpreting the law---Object of the Act was to fulfil the various purposes to serve the public interest for which land had been acquired with other statutory benefits---Power of compulsory acquisition had an element of duty and responsibility to pay the compensation which was just, fair, and without delay.

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

----Ss. 11, 31, 34, 18 & 25---Award---Amount of compensation---Payment of compensation and interest---Reference to court---Scope---Collector should tender payment to the persons interested entitled according to award and should pay the same unless prevented by the contingencies---When amount of compensation awarded was not paid or deposited on or before taking possession, then Collector should pay the amount awarded with interest at the rate of 8% from the time of taking possession until same had been so paid or deposited---Person interested who was not satisfied with the amount of compensation was entitled to receive the same under protest and could apply to the Collector to refer the matter to the court---Collector was then to make a statement to the court and court was empowered to fix the compensation which should not exceed the amount so claimed or be less than the amount awarded by the Collector---When the applicant/landowner had omitted to make such claim, the amount awarded to him should not be less than that, and might exceed the amount awarded by the Collector---Collector had to deposit or pay the amount of compensation with the Referee Court.

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

----Ss. 23, 34, 31, 18, 28 & 27---Award---Stages---First stage of award occurred when same was passed and that would take in all the amounts as well as the interest---Such amount was to be paid or deposited by the Collector and no shortfall in deposit was contemplated---On the deposit by the Collector the first stage would come to end and second stage occurred on a reference to court---Collector had the duty to deposit amounts when the Referee Court awarded enhanced compensation---Third stage occurred when appeals were filed in the High Court.

Muhammad Javed DAG for Appellants.

Said Ahmad Khan Nasir for Respondent.

Date of hearing: 26th June, 2013.

2014 C L C 1362

[Peshawar]

Before Abdul Latif Khan, J

Mst. MURIDAN BIBI and another----Petitioners

Versus

GHULAM FAREED and 7 others----Respondents

Civil Revision Petition No.334 of 2011, decided on 23rd October, 2013.

(a) Islamic Law---

----Gift---Mutation---Inheritance---Limitation---Admission of fact in ignorance of legal right---Scope---Contention of plaintiffs was that defendants were bound to prove the gift mutation and wrong admission made by the witness would not be binding upon the party who produced him---Suit was dismissed concurrently---Validity---Simple deposition on oath would be sufficient on the part of plaintiffs who had challenged the transaction and burden would shift on the other side who were beneficiary to prove that transaction took place transparently and validly---Except one other marginal witnesses of mutation were not produced by the defendants---None of marginal witness was close relative of donor which had cast doubt on her identification at the time of attestation of mutation---Patwari halqa and Tehsildar were important entities but defendants failed to produce them and as such they had failed to discharge the burden lay upon them---Present suit had been filed for shari share in inheritance for which no limitation would run---Wrong entries in Jamabandi repeated in the subsequent Jamabandi would give fresh cause of action and suit could not be termed as time-barred---Fact admitted by witness in cross-examination would be treated as inferential evidence and same would not be binding upon the parties---Such admission might be shown to be wrong---Admissions were not conclusive proof of the matter even if same amounted to clear admission---Admission of a party in ignorance of legal right was not binding and admission on wrong title of fact was not admissible in evidence---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed---Revision was accepted in circumstances.

Mst. Farrukh Jabin's case PLD 2004 SC 499 rel.

(b) Admission---

----Scope---Admission was not conclusive proof of the matter even same amounted to clear admission---Admission of party in ignorance of legal right was not binding---Admission on wrong title of fact was not admissible in evidence.

Mst. Farrukh Jabin's case PLD 2004 SC 499 rel.

Ahmed Ali Khan for Petitioner.

Muhammad Khalid Chaudhry for Respondents.

Date of hearing: 23rd October, 2013.

2014 C L C 1404

[Peshawar]

Before Musarrat Hilali, J

SHAHBAZ GUL SHINWARI----Appellant

Versus

FAQIR HUSSAIN----Respondent

First Appeal from Order No.5-P of 2012, decided on 24th May, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.IX, R.13---Limitation Act (IX of 1908), S.5---Suit for recovery---Ex parte decree---Execution proceedings---Applications for setting aside ex parte decree, condonation of delay and suspension of execution proceedings were dismissed---Appellant/defendant's attorney entered appearance once before the Trial Court and whereafter neither the appellant/defendant nor his attorney appeared for production of original power of attorney and written statement, therefore, ex parte proceedings were initiated against the appellant---Contention of the appellant was that no personal service had been effected on him, nor the substituted services had been adopted in the prescribed manner---Publication had been made in "daily newspaper", which was not a widely circulated paper---Fact of shifting of appellant to Islamabad was already in the knowledge of plaintiff/ respondent, but that fact was concealed from the Trial Court---Neither the appellant authorized any person to appear on his behalf before the Trial Court nor Wakalat Nama was duly signed by him---Validity---Contention of the appellant that he was not served had force, as the publication was made in a daily newspaper, which was not a widely circulated paper---Owing to leave of Presiding Officer, that case was adjourned to 2-5-2009 on "Note Reader", when the Trial Court initiated ex parte proceedings against the appellant---When the case was adjourned on "Note Reader", which was not the "date of hearing", the order of the Trial Court for initiating ex parte proceedings was made on an adjourned date, which was not valid order---Appellant specifically claimed that he got the knowledge of ex parte decree on 26-3-2011, but the Trial Court without recording pro and contra evidence dismissed the applications of the appellant being barred by time---Limitation was mixed question of law and fact, which could not be decided without recording pro and contra evidence---Trial Court was not justified to reject the applications of the appellant summarily without recording pro and contra evidence, therefore, appeal was allowed and the impugned order was set aside.

Farmanullah Khattak for Appellant.

Sikandar Rashid for Respondent.

Date of hearing: 24th May, 2013.

2014 C L C 1415

[Peshawar]

Before Lal Jan Khattak, J

SAEED AKBAR KHAN----Appellant

Versus

Mst. AMIR MAI----Respondent

Regular First Appeal No.241 of 2011, decided on 9th October, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Institution of summary suit based on negotiable instruments---Comparison of finger prints/impressions---Dismissal of suit on the basis of report and statement of Finger Prints Expert---Scope---Contention of plaintiff was that Finger Prints Expert had not checked the finger impressions of defendant available on pro note rather finger impressions affixed on the receipt of the pro note were compared---Validity---Plaintiff himself moved an application for sending original pro note and samples of finger impressions of the defendant for opinion of Finger Prints Expert and then to decide the case on such report---Trial Court sent original pro note along with sample slip of finger impressions of defendant to the Finger Prints Bureau who reported that there was difference between the finger impressions affixed on the document and sample slip of finger impressions of defendant---Receipt to the pro note was an integral part of the same which could not be taken in isolation from the same---Dent had been created in the case of plaintiff by the report of Finger Prints Bureau which could not be repaired---Such exercise was undertaken on the application of plaintiff by the court and now he was bound to accept the result---No illegality had been pointed out in the judgment and decree passed by the Trial Court---Appeal was dismissed in circumstances.

Rabnawaz Awan for Appellant.

Muhammad Anwar Awan for Respondent.

Date of hearing: 9th October, 2013.

2014 C L C 1470

[Peshawar]

Before Waqar Ahmad Seth and Lal Jan Khattak, JJ

Mst. SUMERA GUL----Petitioner

Versus

MENHAJ-UD-DIN and 2 others----Respondents

Writ Petitions Nos.3117, 3078 of 2010 and 3077 of 2011, decided on 28th March, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 2(d) & 13---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Right of pre-emption---Mutation based on decree---Scope---Plea not raised---Revisional Court, jurisdiction of---Vendees sought rejection of plaint on the plea of limitation but their application was dismissed by Trial Court---Lower Appellate Court in exercise of revisional jurisdiction rejected plaint on the ground that mutation in question was based on decree hence suit was barred under S.2(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987---Validity---Application of vendees was specifically on the point of limitation and there was no question of maintainability, regarding sale---Applicability of excluding clause was neither agitated in application nor even in written statement, thus revisional Court had no jurisdiction to go to such extent for rejecting of plaint filed by pre-emptor---Mutation in question was attested on the basis of decree in a suit which was not a money decree, hence it did not come within the excluding clause of S.2(d)(ii) of Khyber Pakhtunkhwa Pre-emption Act, 1987, nor the same came within the purview of order as mentioned in it---High Court, in exercise of Constitutional jurisdiction, set aside the order passed by Lower Appellate Court and restored the suit---Petition was allowed in circumstances.

PLD 2011 Pesh. 1 ref.

Abdul Sattar for Petitioner.

Syed Attique Shah for Respondents.

Date of hearing: 28th March, 2013.

2014 C L C 1478

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

MUKHTIAR ALI SHAH----Petitioner

Versus

FAZAL MIR and 2 others----Respondents

Writ Petition No.74-B of 2014, decided on 27th March, 2014.

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

----O. XVI, Rr. 1 & 2---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S.13---Constitution of Pakistan, Art.199---Constitutional petition---Pre-emption suit---Summoning of witness whose name was not included in the list of witnesses---"Good cause"---Scope---Names of witnesses sought to be summoned were not included in the list of witnesses filed by the plaintiff---List of witnesses of plaintiff was submitted through counsel and he was aware of the witnesses to be produced for evidence and production of documents to prove the case---Parties had to furnish list of witnesses whom they proposed to call either to give evidence or to produce document within seven days of framing of issues and no witness could be summoned by the court except the witness whose name appeared in the list submitted in the court---Party had to show "good cause" for the omission with regard to inclusion of name of witness in the said list for summoning him through court---Present application for summoning of witnesses through process of court was without any cogent reason and "good cause"---Pre-emption suit was like a criminal case and no omission could be allowed to be supplied by means of amendment, addition, strike off, make of default and delinquency---Principle of law could not be used as an instrument to avoid, shun or defeat the specific provision of law and save the party from consequences of his delinquency against the clear command of law----No error was found in the impugned judgment and order passed by the revisional court---Constitutional petition was dismissed in circumstances.

1981 SCMR 150; PLD 1992 SC 811; 2004 SCMR 1367; 2005 CLC 325 and 2011 CLC 569 ref.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 rel.

1981 SCMR 150; PLD 1992 SC 811; 2004 SCMR 1367; 2005 CLC 325 and 2011 CLC 569 distinguished.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Scope---Plaintiff was legally bound to prove factum of performance of Talb-i-Muwathibat and Talb-i-Ishhad in prescribed manner according to law within the time limit.

Abdur Rashid Khan Marwat for Petitioner.

Sardar Naeem for Respondent.

Date of hearing: 27th March, 2014.

2014 C L C 1555

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

ABDUL BAQI through L.Rs.----Appellants

Versus

LAL BADSHAH----Respondent

Regular First Appeal No.109 of 2010, decided on 8th February, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Summary suit for recovery of money---Plaintiff-respondent produced Cashier of the Bank who affirmed the existence of account number of the defendants-respondents and production of cheque by the plaintiff-respondent---Plaintiff-respondent himself appeared in the witness box in support of his claim---Defendants-respondents had failed to rebut the claim of the plaintiff-respondent through any reliable evidence brought on record---Plaintiff-respondent had successfully established his case through oral and documentary evidence---Trial court had reached to a correct conclusion while passing judgment and decree which was based on sound reasons and correct legal footings---Appeal was dismissed with cost.

Muhammad Iqbal Khan Kundi for Appellants.

Rustam Khan Kundi for Respondent.

Date of hearing: 8th February, 2013.

2014 C L C 1595

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

Malik SAMI ULLAH AZEEMI----Petitioner

Versus

KHAYAM and 2 others----Respondents

Writ Petition No.3561 of 2011, decided on 7th June, 2013.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition--Ejectment proceedings---Personal bona fide need of landlord---Reconstruction of suit premises---Scope---Non-approval of site plan for construction by the competent authority---Effect---Landlord had claimed ejectment of tenant on the ground of reconstruction of the building and bona fide personal need---Ejectment petition filed by landlord was dismissed by Rent Controller---Appeal filed by Landlord was also dismissed---Validity---Landlord had not placed an iota of evidence, demonstrating the dire personal need of the suit premises or sanction of the site plan for demolition and reconstruction of the property in dispute---In case of ejectment of the tenant, on the ground of reconstruction of building and bona fide personal need, it was obligatory on the landlord to obtain necessary sanction for reconstruction or erection, from the relevant authorities, at the time of filing the eviction petition or at least during its pendency, but in the present case, the landlord had failed to brought any supporting document providing his bona fide personal need---Constitutional petition was dismissed.

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

----S. 13(3)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Personal bona fide need of landlord---Conditions---Scope---Landlord could file application before the Rent Controller for ejectment of tenant, if he required the property in good faith for his own use or for the use of his children, who were not occupying any such property suitable for his/their need, in the same urban area---Conditions stated in S.13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 are sine qua non and must exist before the landlord becomes entitled to the ejectment of tenant.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Personal bona fide need of landlord---Superior right of landlord on property---Scope---Landlord had claimed ejectment of tenant on the ground of his bona fide personal need---Ejectment petition and appeal filed by landlord was dismissed---Validity---Incumbent upon the landlord, to establish his bona fide personal need for seeking ejectment of the tenant---Landlord at least had to state in his testimony on oath before the Rent Controller, the basic facts wherefrom the court would be able to ascertain and assess in an objective manners that the demand for the ejectment of the tenant from the suit property was based on honesty and with good intention---No doubt, the landlord had a superior right of possession and use of his property as against the tenant, but the tenant could also not be deprived of his legal business and could not be shunted out from the suit premises, on mere assertion of the landlord---Constitutional petition was dismissed.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Recognized grounds for ejectment---Protection of tenant from arbitrary ejectment---Scope---West Pakistan Urban Rent Restriction Ordinance, 1959 was not meant to oust the tenant from rented property, merely on the whims and wishes of the landlord---Ordinance provided protection to the tenant, to the effect that until and unless the landlord proved the recognized grounds for ejectment, landlord was not entitled to seek ejectment of his tenant.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Good faith of landlord---Determining factor of ejectment petition---Concealment of facts by landlord---Effect---Earlier ejectment petition filed by the landlord was dismissed on the same ground---Fresh ejectment petition was filed without disclosing the fact of dismissal of earlier petition---Validity---Petitioner on the same ground had filed the ejectment petition but the facts qua rejection of previous petition and then dismissal of appeal and Constitutional petition were not disclosed in the present ejectment petition---Not only the cause of action in favour of the landlord had diminished, rather his "good faith" also seriously impaired---Conduct of the landlord would be a determining factor for his good faith in demanding the eviction of tenant---Constitutional petition was dismissed.

Attiqur Rehman for Petitioner.

Saadullah Khan for Respondent.

Date of hearing: 7th June, 2013.

2014 C L C 1659

[Peshawar]

Before Lal Jan Khattak, J

FAREED ULLAH KHAN and another----Petitioners

Versus

Mst. PARVEEN AKHTAR and 3 others----Respondents

Civil Revision No.139-D of 2012, decided on 28th October, 2013.

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

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.31---Gift---Ingredients/essentials---Burden of proof Defendants being beneficiary of the Tamleek mutation had to prove that property was legally transferred to them---Three ingredients namely offer, acceptance and delivery of possession were the litmus test to ascertain the validity of a Tamleek or gift transaction---No evidence of delivery of possession was adduced---Mutation per se was not sufficient to prove the factum of gift unless actual transaction thereof was proved---Mutation was attested in Mauza other than the one where suit land was situated---Revenue Officer sanctioning the mutation had not been produced as witness to prove the genuineness of the transaction---Appellate Court had dismissed all the available evidence of the case whereafter it concurred with the trial Court---No irregularity or illegality was committed by courts below---Revision was dismissed.

PLD 1994 SC 650 and PLD 2004 SC 520 ref.

(b) Gift---

----Essentials---Offer, acceptance and delivery of possession were three ingredients of a valid gift.

Abdullah Khan Gandapur and Muhammad Walid Anjum and Salah-ud-Din Khan Gandapur for Petitioners.

S. Mastan Ali Zaidi for Respondents.

Date of hearing: 28th October, 2013.

2014 C L C 1674

[Peshawar]

Before Abdul Latif Khan, J

GUL ZAMAN----Petitioner

Versus

SHAH NAWAZ and another----Respondents

Civil Revision No.53-D of 2013, decided on 27th December, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 5---Civil Procedure Code (V of 1908), O. IX, R. 13---Limitation Act (IX of 1908), Arts.164 & 181--- Pre-emption suit---Ex parte decree, setting aside of---Limitation---Condonation of delay---Scope---Petitioner-defendant despite service did not turn up and Trial Court was left with no option but to place him ex parte---Evidence was produced by the plaintiff and suit was ex parte decreed---Defendant moved application for setting aside ex parte decree without giving reasons for delay and without showing his source of information about the proceedings---Application of defendant, however, was accepted on payment of Rs.2500---Defendant joined the proceedings and contested the suit by filing written statement but again absented himself from the court and ex-parte decree was passed against him---Defendant again moved another application which was dismissed by the courts below due to his conduct and mischief of limitation---Said application for setting aside ex parte decree was covered under Art.164 and not Art.181 of Limitation Act, 1908 and was barred by time---No plausible reasons or sufficient cause having been shown in the application which was not supported by even tentative piece of evidence---Delay of each and every day had to be explained in accordance with law---No reason for condonation of delay was assigned in the said application which was barred by 53/54 days---Conduct of defendant had disentitled him to lenient view of the court as he did not turn up again on the first occasion despite service and absented himself from the court---Defendant had been rightly dealt with by the courts below in accordance with law---Revision was dismissed in circumstances.

Saleem Nawaz Awan for Petitioner.

S. Mastan Ali Zaidi for Respondent.

Date of hearing: 26th December, 2013.

2014 C L C 1681

[Peshawar]

Before Muhammad Daud Khan, J

GUL USMAN and others----Petitioners

Versus

DEPUTY COMMISSIONER and others----Respondents

Civil Revision No.456-M of 2013, decided on 2nd December, 2013.

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

----O. VII, R. 10 & S. 9---Specific Relief Act (I of 1877), S.42---Land Acquisition Act (I of 1894), Ss.4, 6, 7, 17, 18 & 23---Suit for declaration---Return of plaint---Scope---Suit property had been acquired for public purpose and after issuance of notification award had also been announced---Reference had been filed before the Referee Judge for determination of amount of compensation which was sufficient to redress grievance of effectee/owner of a property---Civil court had got no jurisdiction to try the matter if right was created by special law and procedure for enforcement of the same had also been provided in such special law---Plaintiffs had already joined the procedure and adjudication under Land Acquisition Act, 1894 which had provided forum in the shape of reference---Both the courts below had passed just, balanced and correct judgments/orders---Revision was dismissed in circumstances.

Raees Ghulam Sarwar through Attorney v. Mansoor Sadiq Zaidi and 4 others PLD 2008 Kar. 458 rel.

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

----S. 9---Jurisdiction of civil court---Scope---Civil court was court of general and ultimate jurisdiction to try all suits of civil nature unless expressly or impliedly barred by law---Civil court had got jurisdiction to try the suit under Section 9, CPC if legal right was created by the special law but no remedy was provided under the same.

(c) Maxim---

---"Ubi jus ibi remedium"---Meaning---There was no wrong without remedy.

Sayyed Badshah for Petitioners.

Muhammad Javid, D.A.-G. for Respondent.

Date of hearing: 2nd December, 2013.

2014 C L C 1701

[Peshawar]

Before Qaiser Rashid Khan and Musarrat Hilali, JJ

Ms. TASLEEM JEHAN----Petitioner

Versus

JOINT ADMISSION COMMITTEE through Chairman/Principal, Khyber Medical College, Peshawar and 3 others----Respondents

Writ Petition No.2879-P of 2013, decided on 18th December, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition--Educational Institution---Factual controversy---Admission in M.B.B.S. programme against reserved seats for backward areas---Criteria---Admission form---Condition---In-eligibility of candidate due to completion of education from outside the backward areas---Validity---Petitioner got initial education from backward area but she also remained student outside the said area---Respondent got her entire education from backward area and she was rightly considered for admission in M.B.B.S. programme on the seat reserved for the said area---Factual controversy requiring the recording of evidence was not within the domain of High Court---Petitioner had failed to fulfill the criterion for admission and she was rightly not considered for admission in M.B.B.S. programme against the seats reserved for backward area---Petitioner had only given the option for admission in application form as college "X" while leaving the other three columns blank---Candidate had to give his/her preference in order of priority for medical/dental colleges in the designated space provided in the admission form which once given should be final and could not be changed subsequently---Such condition was mandatory and neither any subsequent change was entertainable nor any exception would be made---Respondents-department had not committed any illegality while declaring the petitioner as out candidate---Constitutional petition was dismissed in circumstances.

Shakeel Ahmad and Zia-ur-Rehman Tajik for Petitioners.

Fawad Saleh for Respondents.

Date of hearing: 18th December, 2013.

2014 C L C 1725

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

FATEHULLAH KHAN----Appellant

Versus

IKRAMULLAH KHAN GANDAPUR and others----Respondents

E.A. No.1 of 2013 and Civil Miscellaneous No.1 of 2013, decided on 21st November, 2013.

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

----Ss. 12 & 14---Powers of Returning Officer to decide objections to nomination papers---Omission to mention extra educational qualification in nomination papers---Effect---Returning Officer was empowered to conduct summary enquiry and decide objections without detailed probe in scrutiny of nomination papers---Contention of appellant was not supported by documentary proof---Under S.14(5) of Representation of the People Act, 1976, Returning Officer was not required to hold detailed enquiry---Under sub-clause (ii) of the proviso to subsection (3) of S.14 of Representation of the People Act, 1976 Returning Officer could remedy the defect relating to details of income tax if such defect was not of substantive nature---Omission to mention educational qualification of previous elections did not amount to concealment of facts---Returning Officer passed order in accordance with Ss.12 & 14 of the Representation of the People Act, 1976---Appeal was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 62(i)(f)---Allegation was that candidate was not sagacious, righteous, honest and ameen---Appellants failed to show any declaration by competent court or order of conviction against candidate vis-a-vis allegations levelled against him---Candidate could not be held to be not honest, righteous and ameem in terms of Art.62(1)(f) of the Constitution.

Abdur Rashid Khan for Appellant.

M. Waheed Anjum for Respondents.

Kamran Hayat Miankhel, Standing Counsel for Official Respondents.

Date of hearing: 21st November, 2013.

2014 C L C 1740

[Peshawar]

Before Muhammad Daud Khan, J

QASIM KHAN through L.Rs.----Petitioner

Versus

GUL NAWAZ and 2 others----Respondents

Civil Revision No.91-B of 2010, decided on 16th June, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Non-mentioning of date of demand through notice of Talb-i-Ishhad in the plaint---Effect---Truthfulness of witness---Scope---Proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad in their respective chronological order for successful exercise of right of pre-emption were necessary---Any deficiency in such legal requirements would render a pre-emption suit liable to be dismissed---Plaintiff, in the present case, had not mentioned the date of demand through notice of Talb-i-Ishhad in the plaint---Mentioning of date, time and place of making immediate demand as well as of demand through notice of Talb-i-Ishhad were mandatory requirements and omission of such particulars would be fatal for the suit of pre-emption---Plaintiff was bound to produce postman to prove service/delivery of notice of Talb-i-Ishhad but neither scribe of said notice nor postman was produced---Witnesses of plaintiff were contradictory to each other with regard to date of sending of notice of Talb-i-Ishhad and they were not truthful and trustworthy witnesses---Performance of notice of Talb-i-Ishhad had not been proved in the present case---Pre-emptor, in circumstances, had failed to comply with the mandatory provisions of talbs---Both the courts below had rightly dismissed the suit by properly appreciating evidence available on record---No infirmity, misreading or non-reading of evidence was found in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Fazal-ur-Rehman v. Khurshid Ali and another 2012 SCMR 635; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Basheer Ahmed v. Ghulam Rasool 2011 SCMR 762; Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866 and Muhammad Nazeef Khan v. Gulabat Khan and others 2012 SCMR 235 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction was very limited---High Court could not set aside concurrent findings of facts nor it could upset the same even if considering on appreciation of evidence, a different view could be formed unless said findings were outcome of a jurisdiction vested but not exercised or jurisdiction not vested but exercised or one of material irregularity.

Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Saleemullah Khan Ranazai for Petitioners.

Respondent Nos.1 and 2 through Respondents No.3.

Date of hearing: 16th June, 2014.

2014 C L C 1751

[Peshawar]

Before Mrs. Irshad Qaiser, J

Mst. RUKHSANA YOUNAS----Petitioner

Versus

AZIZ-UR-REHMAN----Respondent

Writ Petition No.465-A of 2012, decided on 18th February, 2014.

Dissolution of Muslim Marriages Act (VIII of 1939)

----S. 2---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance, dowry articles, dower and gold ornaments---Dissolution of marriage on the basis of cruelty and non-payment of maintenance allowance on the part of husband---Validity---Husband had not participated in the trial proceedings due to which no effort was made for pre-trial and post-trial reconciliation by the Family Court---Defendant did not appear in the witness box and had not expressed his affiliation and love toward his wife---Husband had only submitted his written statement wherein he denied the allegations of wife and levelled false allegations against her---Wife had been subjected to mental cruelty---Husband had already contracted two marriages but he did not disclose the same to the wife---Defendant had no love and affection toward his wife rather he was ready to contract fourth marriage and he filed suit for restitution of conjugal rights only as a counter blast to the suit of wife---Husband had never tried to settle his wife in his house who was ready to go to her husband's house---Wife had not herself deserted, rather she was compelled to leave the house of her husband due to his cruel behaviour---Husband never got executed the decree for restitution of conjugal rights having not filed any execution petition in spite of having such decree in his favour---Defendant had not paid maintenance allowance in spite of decree passed in favour of wife---Wife was entitled to the dissolution of her marriage on the grounds of cruelty and non-payment of maintenance for a period of 7 years---Judgments and decrees of both the courts below were modified and decree for dissolution of marriage was granted---Husband had not been able to substantiate his claim by producing convincing, cogent, reliable and confidence inspiring evidence---Concurrent findings of both the courts below with regard to dower, gold ornaments, dowry articles and maintenance allowance were based on correct appreciation of evidence and no misreading and non-reading of evidence or jurisdictional error was pointed out to such extent by the defendant---Decree for restitution of conjugal rights passed in favour of husband was set aside---Constitutional petitions were disposed of accordingly.

2002 CLC 127 rel.

Malik Masood Awan and Mrs. Sajada (sic) for Petitioner.

Abdul Salam Sadozai for Respondent.

Date of hearing: 18th February, 2014.

2014 C L C 60

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

BIBI FEROZA and 5 others----Petitioners

Versus

ABDUL HADI and another----Respondents

Criminal Quashment No.201 of 2013, decided on 24th August, 2013.

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

----S. 7---West Pakistan Family Courts Act (XXXV of 1964), Ss.5 & 10, proviso---Dissolution of marriage---"Talaq" and "Khula"---Non-return of benefits---Effect---Divorce on the basis of Khula by wife is right at par with right of pronouncement of Talaq by husband, with one difference that husband can pronounce Talaq himself but wife has to file suit in that behalf---Right of Khula is not contingent upon consent of husband but is dependent upon reaching conclusion on the part of Court that spouses could no longer live within the limits of Almighty Allah---Wife is bound to return benefits which she received on account of marriage from husband but Family Court determines as to what benefits have been received by wife and also to direct their return---Return of benefits is not a condition precedent to dissolution of marriage---Decree of dissolution of marriage on the basis of Khula, even though made condition upon return of benefits, would operate to dissolve the marriage, when it is passed and effect thereof would not be postponed till the benefits were returned---Failure on the part of wife to return benefits received by her from her husband within stipulated period would not adversely affect factum of dissolution and return of benefits by wife to husband remains merely a liability of civil nature, which can be enforced by husband through appropriate means---Similarly, dissolution of marriage effected through Khula is neither revocable nor appealable and only decision regarding dower is appealable.

(b) Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.494 & 493-A [as inserted by Protection of Women (Criminal Laws Amendment)] Act (VI of 2006)---Quashing of F.I.R.---Scope---Marrying again during lifetime of husband---Respondent was ex-husband of petitioner, who got F.I.R. registered against petitioner and her new husband---Plea raised by petitioner lady was that F.I.R. was based upon mala fide and she contracted second marriage after the first one had been dissolved on the basis of Khula---Validity---Investigation was right of police and should come to its natural conclusion without interference, however, proceedings under section 561-A, Cr.P.C. were competent against any criminal inquiry or investigation, if the same had encroached upon any fundamental right guaranteed by the Constitution or had violated some other law or was motivated by some mala fide reasons---Continuance of proceedings against petitioner in a case under S.494, P.P.C. read with S.493-A, P.P.C. [as added by Protection of Women (Criminal Laws Amendment) Act, 2006, would amount to unnecessary harassment---No Court on such baseless and misconceived allegation could convict petitioner---High Court in exercise of its inherent jurisdiction quashed F.I.R. registered against petitioner---Petition was allowed in circumstances.

Rizwana Bibi's case 2012 SCMR 94 rel.

Zaffar Hayat Mullazai for Petitioners.

Hamayun Tareen for Respondent No.12.

Miss Sarwat Hina, Addl. P.-G. for the State.

Date of hearing: 20th August, 2013.

2014 C L C 92

[Balochistan]

Before Muhammad Noor Meskanzai, J

Sayed TAYAB ALI----Petitioner

Versus

Sayeda NUSRAT JAHAN and 12 others----Respondents

Civil Revision No.324 of 2012, decided on 26th July, 2013.

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

----O. XXXVIII, R. 1, O. XX, R. 12 & S.151---Qanun-e-Shahadat (10 of 1984), Art. 115---Partition Act (IV of 1893), S. 4---Suit for partition---Application for preliminary decree for possession and mesne profits---Furnishing of surety---Estoppel---Inherent powers of court---Plaintiff filed suit for partition wherein she moved an application for preliminary decree for possession and mesne profits which was dismissed however, Trial Court directed defendant to furnish surety amount---Defendant filed application for reduction of the same which was dismissed---Validity---Impugned order was passed with the consent of parties---Defendant was estopped to challenge the validity of said order on the principle of estoppel---Defendant while filing application for reduction of surety amount was satisfied with the nature of order but was aggrieved of the quantum of surety amount---Defendant could not be allowed to approbate and reprobate---No misexercise of jurisdiction nor any illegality, irregularity, perversity or infirmity was found in the impugned order---Revision was dismissed in circumstances.

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

----S. 115---Revision---Competency---Order passed on application under S.151, C.P.C. was appealable and revision was not competent.

Zahid Malik for Petitioner.

Nemo for Respondents.

Date of hearing: 20th June, 2013.

2014 C L C 285

[Balochistan]

Before Muhammad Noor Meskanzai, J

ABDULLAH----Petitioner

Versus

PROVINCIAL GOVERNMENT through Secretary Board of Revenue and 3 others----Respondents

Civil Revision No.116 of 2013, decided on 20th September, 2013.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below---Setting aside of such findings of fact by High Court in revisional jurisdiction---Validity---Both the Courts below after attending each and every aspect of the matter by referring to the ocular account as well as documentary evidence available on record had discussed and considered the same keeping in view the established principles of law---Conclusions drawn by the Courts below had been perfectly based on proper appreciation of facts, correct appraisal of evidence and did not suffer from any infirmity---Petitioner had not pointed out any piece of evidence either to have been misread or omitted from consideration---Concurrent findings of facts arrived at by both the Courts below had based on proper appraisal of evidence and had not suffered from any misreading or non-reading of evidence, therefore could not be interfered with even if on re-appraisal of evidence another view might be possible---Revision petition was dismissed.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 rel.

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

----S. 9---Suit for possession of immovable property---Title of plaintiff was not clear---Suit in question was dismissed---Validity---Meaningful analysis and purposeful perusal of the entire case of the petitioner reflected that no title had vested in the plaintiff on account of illegal, invalid, inadmissible sale---Plaintiff having no perfect title was not entitled to file the suit in question---Suit for declaration, without perfect title was incompetent, therefore liable to be buried at its very inception---Revision petition was dismissed.

S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 rel.

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

----O. XIII, Rr. 3 & 4---Document not brought on record through witness or duly exhibited---Validity---Such document could not be taken into consideration by Court---Petitioner had produced a copy of lease deed/document, which was neither tendered in evidence nor had exhibited, therefore the same had not been taken into consideration by both the Courts below---Suit filed by plaintiff was not based on the lease deed/document nor any reference of the said lease deed/document had appeared in the pleadings---Document/lease deed beyond the pleadings was entertained.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 and Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 rel.

Zahid Muqeem Ansari for Petitioner.

Respondents by (sic).

Date of hearing: 27th August, 2013.

2014 C L C 405

[Balochistan]

Before Qazi Faez Isa, C.J. and Jamal Khan Mandokhail, J

PAKISTAN PETROLEUM LIMITED through Attorney----Petitioner

Versus

CHIEF MINISTER, BALOCHISTAN through Principal Secretary Chief Minister House, Quetta and 3 others----Respondents

Constitutional Petition No.450 of 2013, decided on 23rd October, 2013.

Balochistan Mineral Rules, 2002---

----Constitution of Pakistan, Arts.185(3) & 199---Constitutional petition---Dispute over allotment of mines between parties---Order of Supreme Court directing parties to maintain status-quo during pendency of petition for leave to appeal---Subsequent order passed by Chief Minister allowing respondent to continue mining activities in disputed area during subsistence of such status-quo order---Validity---Matter was still sub judice before Supreme Court---Initiation of contempt proceedings before Supreme Court and challenging order of Chief Minister were two distinct and separate matters, whereas petitioner had chosen to declare impugned order as illegal and ultra vires---Respondent for getting permission could approach Supreme Court for issuance of appropriate orders, but he did not do so---Chief Minister had no power under Balochistan Mineral Rules, 2002 to pass impugned order---High Court declared impugned order as illegal, ultra vires and of no legal effect.

New National Mining Corporation v. Government of Balochistan PLD 1977 Quetta 15; Siraj Din v. Amanullah Qureshi PLD 1980 SC 1; Muhammad Asghar Khan v. Mirza Aslam Baig PLD 2013 SC 1; S.M. Waseem Ashraf v. Federation of Pakistan, 2013 SCMR 338; Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262; Nawab Ferozuddin v. State 2009 MLD 94 and Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari 2012 SCMR 366 ref.

Amanullah Kanrani for Petitioner.

Shai Haq Baloch, Asstt. A.-G. for Respondents Nos.1 to 3.

Abdullah Baloch for Respondent No.4.

Date of hearing: 7th August, 2013.

2014 C L C 426

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

MRDUMAN-E-MALLE ZAI NIDA KAHOL through Haji Saleh Muhammad and others----Appellants

Versus

MARDUMAN-E-KILLI KHUDAI-E-RAHIM SADEZAI (SHAI) through their Elders and others----Respondents

Regular First Appeal No.19 of 2006, decided on 18th July, 2013.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Limitation Act (IX of 1908), Arts. 120 & 142---Civil Procedure Code (V of 1908), O. VII, R. 3---Suit for declaration and possession---Limitation---Suit where besides declaration, possession had also been sought should be filed within 12 years from the date of dispossession---Plaintiffs were bound to prove their earlier possession and subsequent dispossession within 12 years but in the present case, they had failed to do so---Suit of the plaintiffs was barred by time---Suit/appeal/application or any proceeding brought beyond limitation should be dismissed irrespective of the fact the limitation had not been pleaded as defence---Incompetent suit must be buried at its very inception---Claim of plaintiffs was based on a decision passed in a previous suit---Such judgment did not mention the boundaries of disputed property and the fact that property in question was the same which was now subject-matter between the parties---Said judgment had not established whether possession was delivered to the plaintiffs or not and defendants were in possession---Plaintiffs were bound to specify the date of their dispossession by showing their earlier occupation but they had failed---Evidence available on record was contrary and conflicting with the statement recorded by the plaintiffs---Plaint did not contain boundaries of suit property nor any survey number had been mentioned---Statements of witnesses produced by the plaintiffs were divergent, conflicting and contradictory with each other qua the measurement, period of occupation of land by the defendants---Trial Court was left with no other option except to dismiss the suit---No misreading, non-reading or misappreciation of evidence was available on record---No illegality or irregularity could be pointed out by the plaintiffs---Appeal was dismissed in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 and S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 rel.

Mujeeb Ahmed Hashmi for Appellants.

Syed Ayaz Zahoor and Abdul Aziz Khilji, A.A.-G. for Respondents.

Date of hearing: 18th March, 2013.

2014 C L C 548

[Balochistan]

Before Ghulam Mustafa Mengal, J

MUHAMMAD ISHAQ----Petitioner

Versus

JUNAN and 2 others----Respondents

Civil Revision No.115 of 2010, decided on 28th October, 2013.

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

----Art. 79---Specific Relief Act (I of 1877), S.42---Suit for declaration---Non-production of two attesting witnesses of agreement to sell---Effect---Contention of plaintiff was that defendant entered into an agreement to sell with him but he transferred a portion of suit land through another agreement to sell---Suit was dismissed concurrently---Validity---Plaintiff was bound to prove his own case and he could not be benefited from the weakness of other side---Copy of agreement to sell was produced in the court which could not help to the plaintiff as same had not been proved in accordance with law---Said document having not been exhibited as inadmissible in evidence---Only one marginal witness of agreement to sell was produced in the court whereas other marginal witness was not produced by the plaintiff and remaining witnesses had not signed the deed---Document could only be used as evidence when two witnesses had proved its execution---Copy of document could not be admitted as secondary evidence under the law---Evidence produced by the plaintiff was not sufficient to discharge the onus with regard to proof of alleged agreement to sell---Document which was not proved was inadmissible in evidence unless proof of the same was waived---Evidence produced by the plaintiff was contradictory---Findings recorded by the courts below were well founded---Plaintiff had failed to point out any illegality, irregularity nor an iota of evidence was misconstrued by the courts below---Revision was dismissed in circumstances.

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

----Art. 79---Document, proof of---Scope---If a document was required to be attested, it should not be used as evidence until at least two attesting witnesses had been called for the purpose of proving its execution if they were alive and were capable of giving evidence.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts could not be interfered with by the High Court until and unless grave injustice or material illegality was proved---High Court in its limited revisional jurisdiction was neither required nor supposed to interfere with such findings.

Petitioner in person.

Aminullah Kakar for Respondents Nos.1 and 2.

Tariq Ali Tahir for Respondent No.3.

Date of hearing: 8th October, 2013.

2014 C L C 1063

[Balochistan]

Before Abdul Qadir Mengal and Ghulam Mustafa Mengal, JJ

ABDUL KARIM MENGAL----Appellant

Versus

SULTAN BADSHAH----Respondent

Regular First Appeal No.88 of 2012, decided on 18th February, 2014.

Civil Procedure Code (V of 1908) ---

----O. XXXVII, Rr. 2 & 3---Suit on negotiable instrument---Consideration and cause for initiation of suit---Scope---Contention of defendant was that he got stopped payment from his account due to loss of cheque in question---Suit was decreed by the Trial Court---Validity---Present suit was filed under Order XXXVII, Rules 2 & 3, CPC which would require summary trial and procedure for the same was different to the rest of civil suits---Consideration and cause for initiation of every claim was necessary but in the present suit same was absent---Evidence of plaintiff was silent as to when and in whose presence the cheque in dispute was issued to him---Claim of plaintiff had no support from his evidence that there existed such amount against the defendant---Cheque in dispute was not dishonored due to insufficient amount but same was referred to drawer on account of his application with regard to stoppage of payment from his account---Defendant had been acquitted from the criminal case registered on the basis of said cheque---No evidence was on record with regard to any business transaction/ partnership between the parties---Plausible explanation had been given by the defendant that his cheque book was stolen by the plaintiff from his Munshi and his statement had not been rebutted---Plaintiff had failed to rebut the fact that as to why and under what circumstances and for what purpose defendant thus informed the bank for loss of his cheque book prior to four months to the issuance of cheque in question---Such fact was in the knowledge of plaintiff but he remained silent---Onus of proof in civil cases would not be permanently fixed but same would shift consistently---No burden or duty was on the plaintiff to prove the transaction of cheque when signature over the same was accepted by the defendant but defendant had discharged his burden with regard to theft of cheque, fraud on the part of plaintiff, missing of cheque book and stoppage of payment from his account---Plaintiff had failed to make out a case to justify or entitle him for the claim of alleged amount---Trial Court had not considered the real facts and evidence and instead of deciding contentious points attended extraneous material---Impugned judgment and decree were set aside and suit was dismissed---Appeal was accepted in circumstances.

Muhammad Tariq v. Mst. Shamsa Tanveer PLD 2011 SC 151; 2013 YLR 611; 2013 CLC 1048; PLD 2004 Pesh. 168; 2007 CLC 39; 2012 MLD 1898; 2009 CLD 1301; PLD 2008 Kar. 429; 1985 MLD 181; 2013 CLC 1048; 2009 CLD 1301 and AIR 1988 Calcutta 59 ref.

Akbar Ali v. Ehsan Ellahi PLD 1980 Lah. 145 rel.

Bailol Khan and Barrister Muhammad Aamir Lehri for Appellant.

Mujeeb Ahmed Hashmi and Khushal Khan Kasi for Respondent.

Date of hearing: 12th December, 2013.

2014 C L C 1126

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

GOHRAM alias ALI GOHAR and another----Petitioners

Versus

Mst. ZAR BANO alias ZERO through L.Rs. and others----Respondents

Civil Revision No.143 of 2006, decided on 18th March, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Limitation Act (IX of 1908), Art.120---Qanun-e-Shahadat (10 of 1984), Art.100---West Pakistan Land Revenue Act (XVII of 1967), Ss.39 & 52---Suit for declaration and possession---Limitation---Scope---Contention of plaintiffs was that they were owners of suit property and entries in the Revenue Record were result of fraud---Suit was dismissed concurrently---Validity---Six years period was available to the plaintiffs to approach a court for declaration of title from the date when right to sue accrued---Accrual of grievance would be the relevant time to determine the stipulated period of limitation for filing of suit---Period of limitation would start as soon as title was denied or the entries in the record had become adverse---Defendants were in possession of the suit property---Date of recording of impugned entries in the Revenue Record was not disclosed by either of the parties---Said entries were not made part of record which were neither tendered in evidence nor marked as exhibits by either of the parties---Said entries were effected in the record during the course of settlement held 30 years back---Time to file a suit for declaration as to entry in the record of rights or periodical record would start from the accrual of cause of action to a party and not from the date of effecting of such entry---No record was available as to when such entries were effected in the Revenue Record, however same were made 25 to 30 years back---Plaint and evidence on record had not specified the date or period when title of plaintiffs was denied by the defendants---Entries maintained in the Revenue Record were not for the purpose of title deed but it described that a title would rest with a person---Entry in the Revenue Record would neither create a title nor extinguish the same but it would describe a title of a person which was believed to be true until proved otherwise---Presumption of truth would be attached to the entry in the record of rights and periodical record until contrary was proved or a new entry was lawfully substituted, however such presumption was rebutable---Name of plaintiffs did not appear in the alleged agreements on the basis of which suit was filed---No document was produced in the name of plaintiffs or their father to prove title of plaintiffs and they had failed to establish the execution of alleged agreements---Discretion provided in Article 100 of Qanun-e-Shahadat, 1984 could only be exercised when a document was produced from a proper custody and purported or proved to be thirty years old---Plaintiffs had failed to discharge the basic requirement that alleged documents were executed on the dates mentioned therein---No evidence was on record with regard to the facts when suit property was handed over to the defendants and when they received the proceeds and even the dates for the same had not been proved---Plaintiffs had failed to establish title of property in question in their favour---Revision was dismissed in circumstances.

Taj Muhammad for Petitioners.

Muhammad Aslam Chishti and Hamayun Tareen, Additional Advocate-General for Respondents.

Date of hearing: 8th November, 2013.

2014 C L C 1211

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J

INSTITUTE FOR DEVELOPMENT STUDIES AND PRACTICES, QUETTA----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, SECRETARY LAND UTILIZATION/SENIOR MEMBER BOARD OF REVENUE, QUETTA----Respondent

Constitutional Petition No.725 of 2010, decided on 1st April, 2014.

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

----S. 24(b)---Constitution of Pakistan, Arts.10A, 24(1), 24(2) & 199---Constitutional petition---Land granted on lease to an Institute providing valuable skills to deprived people---Resumption of such land by the Provincial Government without issuing show-cause notice and assigning reasons---Legality---Right of hearing---Due process of law---Scope---Trustees of a Trust applied to Provincial Government for allotment of land, to build thereon an Institute---Lease deed was executed in favour of the Institute---Subsequently four years after the said lease deed, revenue authorities cancelled the lease and resumed the land in favour of the State---Legality---Entire amount of lease had been paid to the Provincial Government---Institute had demonstrably utilized the land for the purpose it was granted---Neither a show-cause notice was issued citing the reason that might have required the Government to resume the land nor an opportunity of hearing was provided to the Institute---Provincial Government therefore clearly acted without due process---Fundamental Rights of the Institute under Arts.24(1) & 24(2) of the Constitution (Protection of property rights) were also violated---Institute was serving the people and providing valuable skills to a deprived sector, including teaching and showing models of sustainable living, water harvesting, biogas generation, utilization of wind and sun to generate electricity---Such skills being taught by the Institute accorded with law, international conventions and the latest scientific evidence---Provincial Government was expected to support the activities of the Institute but instead it acted unreasonably, illegally and unconstitutionally---Order of Provincial Government whereby it resumed the land leased to the Institute was declared to be illegal and unconstitutional and was struck down---Constitutional petition was allowed accordingly with costs of Rs.20,000, which were to be paid to the Institute.

H. Shakeel Ahmed for Petitioner.

Shai Haq Baloch, Asstt. A.-G. for Respondent.

Date of hearing: 1st April, 2014.

2014 C L C 1288

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

MUHAMMAD ESSA----Petitioner

Versus

DISTRICT JUDGE, PISHIN and 14 others----Respondents

Constitutional Petition No.876 of 2012, decided on 30th April, 2014.

Civil Procedure Code (V of 1908)

----O. VI, R. 17--Constitution of Pakistan, Art.199--Constitutional petition---Pre-emption suit---Amendment of plaint---Scope---Trial Court dismissed application for amendment of plaint but same was accepted by the Revisional Court---Validity---Contention of defendant was that Revisional Court had no jurisdiction to pass impugned order as valuation of subject-matter was Rs.29,00,000---Validity---Valuation clause of the plaint was Rs.29,00,000 and plaintiff had affixed maximum court-fee---Value of suit property being beyond jurisdiction of Revisional Court revision petition was not competent---Amendment allowed by the Revisional Court was not permissible as same would change the complexion of suit qua sale consideration of suit property---Plaintiff had never disputed sale price and vague amendment could not be sought---Controversial amendment was hit by the principle of approbate and reprobate--Impugned order was illegal, unlawful and same was passed without jurisdiction which was set aside---Constitutional petition was accepted and application for amendment of plaint was dismissed in circumstances.

Abdul Nasir Kakar for Petitioner.

Imdad Shah for Respondents.

Date of hearing: 26th March, 2014.

2014 C L C 1323

[Balochistan]

Before Muhammad Ejaz Swati and Muhammad Noor Meskanzai, JJ

NASRULLAH----Appellant

Versus

MUHAMMAD RASOOL and 7 others----Respondents

Regular First Appeal No.171 of 2010, decided on 30th April, 2014.

Islamic law---

----Pre-emption---Talbs---Talb-e-Muwathibat---Essentials---Date, time and names of witnesses were not mentioned in the plaint---Plaintiff made contradictory statements as to when he came to know about the sale transaction---Plaintiff having not pleaded in the plaint assertion of right of pre-emption in the presence of witnesses, could not be allowed to set out a new case beyond the scope of his pleadings---Right of pre-emption would be extinguished where plaintiff did not make talbs in accordance with law---Talb-e-Muwathibat, the first demand had to be made in the same meeting---Plaintiff, in the present case, neither declared his intention nor asserted the right of pre-emption immediately after receiving information of sale rather he went to the suit-land to claim right of pre-emption in the presence of notables which did not constitute Talb-e-Muwathibat in accordance with law---Plaintiff did not satisfy the requirements of Talb-e-Muwathibat---Appeal was dismissed.

2008 SCMR 1682; Muhammad Ashraf v. Muhammad Tahir and 6 others 1990 MLD 2399 and Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886 rel.

Mehmood Sadiq Khokar for Appellant.

Naseer Ahmed Bangulzai, Addl. A.-G. for Official Respondent.

Date of hearing: 25th March, 2014.

2014 C L C 1381

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J

HAIDER ALI KHAN JAMALI----Petitioner

Versus

RETURNING OFFICER/ADC JAFFARABAD and 2 others----Respondents

Constitutional Petition No.S-111 of 2003, decided on 20th December, 2013.

Electoral Rolls Act (XXI of 1974)---

----S. 20---Balochistan Local Government Act (V of 2010), Ss.23 & 24---Constitution of Pakistan, Art.199---Constitutional petition---Correction of electoral rolls---Bar to such correction---Scope---Electoral rolls should not be rendered invalid by reason of any erroneous description therein of any person listed or of an omission of the name of any person entitled or of inclusion of the name of a person not so entitled---Electoral rolls prepared before general election could be used in the forthcoming local bodies election---Sufficient time was provided to the applicant to seek correction of electoral rolls prior to the announcement of election---Electoral rolls could not be corrected at such belated stage in view of the bar contained in S.20 of Electoral Rolls Act, 1974 as election schedule had been announced---Constitutional petition was dismissed in limine.

Nadir Ali Chalgari for Petitioner.

Haroon Kasi, Law Officer, Provincial Election Commissioner and Shai Haq Baloch, Asstt. A.-G. for Respondents.

Date of hearing: 22nd November, 2013.

2014 C L C 1433

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

YAR MUHAMMAD----Petitioner

Versus

PROVINCIAL TRANSPORT AUTHORITY, BALOCHISTAN through Chairman and 3 others----Respondents

Constitutional Petition No.(S)9 of 2013, decided on 28th April, 2014.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 62---Constitution of Pakistan, Art. 199---Constitutional petition---Cancellation of route permit---Scope---Petitioner filed appeal before Chairman Provincial Transport Authority wherein direction was issued to Secretary Regional Transport Authority to allow the petitioner to ply his bus and to issue time table in his favour---Said order was not complied with and order of cancellation of route-permit was passed without considering the legal aspect of the matter that both the orders were conflicting---Provisions of Provincial Motor Vehicles Ordinance, 1965 were not adhered while passing the impugned order as respondent-Transport Authority decided the fate of route permit without directing any inquiry or probe---Transport Authority which granted a permit might cancel or suspend the same for such period which was considered proper---Cancellation of route permit could be ordered only by the Transport Authority who granted the same subject to procedure prescribed by law and rules---Authority had no jurisdiction to issue any such order without making probe or conducting inquiry through concerned Transport Authority which had granted route permit---Authority had based his order on the verbal assertion of the party despite the fact that relevant record and reports of concerned Transport Authority was not available---Impugned order had no legal sanction and same was not sustainable and was set aside and Transport Authority was directed to decide the matter in accordance with law---Constitutional petition was disposed of accordingly.

Sardar Ahmed Haleemi for Petitioner.

Humayun Tareen, Addl. A.-G. for Respondents

Date of hearing: 13th March, 2014.

2014 C L C 1450

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J

ABDUL HADI----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT RURAL DEVELOPMENT AGROVILLES DEPARTMENT through Secretary and 2 others----Respondents

Constitutional Petition No.744 of 2013, decided on 19th December, 2013.

(a) Electoral Rolls Act (XXI of 1974)---

----S. 20---Balochistan Local Government (Delimitation) Rules, 2011, Rr.7, 4, 5 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Competency---Alternate remedy---Delimitation of wards of union council---Appeal---Limitation---Scope---Contention of petitioner was that Government on its own was not authorized to prescribe the limits of wards and union councils---Validity---Government had not only complied with the provisions of Balochistan Local Government Act, 2010 and Balochistan Local Government (Delimitation) Rules, 2011 but petitioner was also on board during the process of delimitation---Section 20 of Electoral Rolls Act, 1974 did not permit alteration, amendment or change in the limits of wards after the announcement of election schedule---Petitioner had not filed an appeal against the recommendations with regard to delimitation of wards which was required to be filed within seven days---Petitioner could not file constitutional petition without availing of the said alternate remedy---Constitutional petition was only competent when no other remedy was available to the aggrieved person---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Competency--- Constitutional petition was only competent when no other remedy was available to the aggrieved person.

Amanullah Batezai and Niamatullah Batezai for Petitioner.

Shai Haq Baloch, Asstt. A.-G. and Haroon Kasi, Law Officer, Provincial Election Commissioner Balochistan, Quetta for Respondents.

Date of hearing: 20th November, 2013.

2014 C L C 1463

[Balochistan]

Before Muhammad Ejaz Swati, J

ABDULLAH and another----Appellants

Versus

Mst. FARZANA----Respondent

First Appeal from Order No.2 of 2011, decided on 13th June, 2014.

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

----S. 13---Ejectment of tenant--- Wilful default--- Proof--- Rent Controller allowed ejectment application and passed eviction order against tenant on the ground of wilful default in payment of monthly rent---Validity---Tenant through verbal evidence asserted that rent from March, 2011 to February, 2012 was paid through valid receipt issued by landlady but no such receipt was produced during evidence or recording statement of tenant nor put the same to landlady during her statement or cross-examination---Mere appending a purported receipt along with memo of appeal could not be termed as evidence unless proved in accordance with law---Accepting of rent by landlady after 3 to 6 months/periodically from tenant and receipts annexed with appeal showing lump sum payment would lead to presumption that practice of receiving periodic rent was adopted by landlord was not tenable---Tenant was under legal obligation to pay monthly rent to landlady and if tenant had adopted practice to pay rent at irregular intervals, he made himself liable to eviction---Tenants were under legal obligation to deposit rent within 60 days after it had become due but he failed to do so and committed wilful default---High Court declined to interfere in eviction order passed by Rene Controller---Appeal was dismissed in circumstances.

Hazrat Umar v. Zafar Majeed and 13 others PLD 1991 SC 138; Muhammad Siddique and another v. Dr. Edgar Nathenial, 1997 CLC 2041; Mst. Hajiani Aisha and others v. Abdul Waheed, PLD 1989 SC 489 and Malka Begum v. Mehr Ali Hashmi, 1984 SCMR 755 rel.

Ghulam Mustafa Buzdar for Appellants.

Respondent proceeded Ex parte.

Date of hearing: 6th June, 2014.

2014 C L C 1490

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

HAYRBAYAR DOMKI----Petitioner

Versus

RETURNING OFFICER, MUNICIPAL COMMITTEE SIBI/ADDITIONAL DEPUTY COMMISSIONER and others----Respondents

Constitutional Petitions Nos.S-50 and 55 of 2014, decided on 29th May, 2014.

(a) Balochistan Local Government Act (V of 2010)---

-----Ss. 2(1)(lii) & 12---Balochistan Local Government (Election) Rules, 2013, R.50(3)--- Constitution of Pakistan, Arts.25 & 32---Local bodies elections---Reserved seats---Object, scope and purpose---Garb of downtrodden peasants, who till land to eke out a bare living, cannot be donned to secure an advantage and one which is exclusively meant for the benefit of peasants---Reserved seats including those for peasants are meant to secure representation of downtrodden and deprived segments of society in the system of government at the lowest tier, to have their voices heard, to encourage them to participate in local matters that affect them and to partly alleviate deprivation faced by them.

(b) Balochistan Local Government Act (V of 2010)---

----Ss. 2(1)(lii) & 12---Balochistan Local Government (Election) Rules, 2013, R.50(3)---Constitution of Pakistan, Art.199---Constitutional petition---Local bodies elections---Reserved seats---Petitioner was son of Sardar of Domki Tribe and filed his nomination papers for seats reserved for peasants as well as for social workers but Returning Officer rejected the papers---Validity---If persons like petitioner were also able to contest elections on seats reserved for peasants, rights of peasants were violated and letter and spirit of Balochistan Local Government Act, 2010, and the Constitution would have been violated---Definition of 'peasant' contained in Balochistan Local Government Act, 2010, meant a person who was either a landless or one who owned not more than five acres of land and was engaged 'himself personally in cultivation for his maintenance'---Petitioner did not even aver that he engaged himself personally in cultivation for his maintenance, therefore, even if he did not own more than five acres of agricultural land, it did not automatically followed that he was a peasant---Petitioner should have demonstrated that he himself used to cultivate land personally for his maintenance---High Court had already struck down the amendments made in Balochistan Local Government (Election) Rules, 2013---As category of 'social worker' no longer existed, therefore, petitioner could not contest on the seat reserved for social worker---High Court declined to interfere in orders passed by Returning Officer---Petition was dismissed in circumstances.

Shahid Khan v. Senior Civil Judge/Returning Officer 2002 MLD 1945; Asmatullah Khan v Government of Balochistan PLD 2013 Bal. 13; Sarfraz v. Allah Dad 1992 MLD 1959; Naseer Ahmed v. Deputy Commissioner-cum-Returning Officer 2006 MLD 715; Shahid Mehmood Khan v. Returning Officer 2003 CLC 176 and Majeed Ahmad v District Returning Officer PLD 2006 Lah. 43 ref.

Attaullah v. Government of Balochistan C.P. No.86 of 2014 rel.

Adnan Kasi for Petitioner (in C.P. No.50(S) of 2014).

Abdul Basit and Nauroz Mengal for Respondent No.3 (in C.P. No.50(S) of 2014).

Abdul Basit and Nauroz Mengal for Petitioner (C.P. No.55(S) of 2014).

Adnan Kasi for Respondent No.1 (in C.P. No.55(S) of 2014).

Date of hearing: 19th May, 2013.

2014 C L C 1609

[Balochistan]

Before Muhammad Ejaz Swati, J

SHAH MUHAMMAD and 3 others----Petitioners

Versus

ABDUL SAMAD and 6 others----Respondents

Civil Revision No.176 of 2010, decided on 27th June, 2014.

Civil Procedure Code (V of 1908)---

----O. XIV, Rr. 1, 3 & 5---Specific Relief Act (I of 1877), S.42---Suit for declaration---Issue, framing of---Scope---Pleadings were not perused with diligent application of mind by the Trial Court---Issue with regard to the validity of impugned mutation was not framed and parties had failed to substantiate their claims by producing evidence---Provisions of O.XIV, Rr.1, 3 & 5, C.P.C. were ignored and findings recorded by the courts below were lacking the determination on the points of real controversy between the parties---Trial Court was bound to frame proper issues which had not been done and principal question of facts remained unattended---Judgments and decrees of both the courts below suffered from material irregularities and illegalities---Suit land prior to impugned mutation was not owned by the owners in their independent and joint capacity rather same was Shamilat Deh---Patadaran of Shamilat Deh were required to be impleaded as a party who were not impleaded as a party in the present case---Impugned judgments and decrees passed by the courts below were not sustainable which were set aside and case was remanded to the Trial Court for decision afresh in accordance with law---Revision was accepted in circumstances.

Mst. Rasheeda Bibi v. Mukhtar Ahmed 2008 SCMR 1384 and Khalique Ahmed v. Abdul Ghani PLD 1973 SC 214 rel.

Muhammad Aslam Chishti for Petitioners.

Muhammad Haroon for Respondents Nos.1 to 8.

Sardar Ahmed Halimi for Respondents Nos.10, 12, 14, 16 and 17.

Date of hearing: 13th June, 2014.

2014 C L C 1778

[Balochistan]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

TARIQ HUSSAIN MAGSI and another----Petitioners

Versus

SPEAKER BALOCHISTAN PROVINCIAL ASSEMBLY and others----Respondents

Constitutional Petitions Nos.186 and 170 of 2013, decided on 19th March, 2014.

(a) Constitution of Pakistan---

----Art. 224(1A), proviso---Caretaker government---Object, scope and purpose---Object of introducing caretaker governments is to ensure against election malpractices that may be attributable to a partisan government---To ensure a viable democratic process, it is necessary to ensure fair and free elections--Generally, whenever an election is held in Pakistan there are quarters that assail transparency of electoral process which in turn undermines credibility of government formed after such elections---With a view to attend to such concerns and to ensure a free, fair and transparent elections that forms the basis of civil democracy, the concept of caretaker government has been introduced in Pakistan through proviso to Art.224(1A) of the Constitution.

(b) Balochistan Assembly Members (Salaries and Allowances) (Amendment) Act (VIII of 1975)---

----S. 2(d)---Constitution of Pakistan, Arts. 199 & 224(1-A)---Constitutional petition---Leader of the Opposition---Appointment---Petitioner was appointed as Leader of the Opposition in Balochistan Assembly vide notification dated 18-12-2012---Grievance of petitioner was that respondent was Minister in Balochistan Government who resigned on 17-3-2013 and joined opposition and on 18-3-2013 he was made Leader of the Opposition in place of petitioner and on the same day the Assembly was dissolved--- Validity---Declaration/notification of respondent as purported Leader of the Opposition, immediately after his having held the post of Minister in the Government of Balochistan and at a time when the Assembly was about to complete its tenure, was with a view to capture seat of Leader of the Opposition, and as such same was not in accordance with the Constitution---High Court declared notification dated 18-3-2014, whereby respondent was notified to be Leader of the Opposition by the Speaker, as ultra vires the Constitution, of no legal effect and void ab initio---High Court upheld notification dated 18-12-2012, whereby petitioner was declared/notified as Leader of the Opposition---Petition was allowed accordingly.

Muhammad Azhar Siddiqui v. Federation of Pakistan, PLD 2012 SC 774 and Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament 22nd Edition, Butterworths, London 1997, at page 211 ref.

Hadi Shakil Ahmed, Adnan Kasi and Dawood Kasi for Petitioners.

Kamran Murtaza, Adnan Ejaz Sheikh, M.A. Rauf, Baz Muhammad Kakar and Amanullah Kanrani, A.-G. for Respondents.

Date of hearing: 19th March, 2013.

2014 C L C 1810

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

MAHER GUL----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, EDUCATION DEPARTMENT through Secretary and 2 others----Respondents

Constitutional Petition No.440 of 2011, decided on 7th July, 2014.

Constitution of Pakistan---

----Arts. 25A & 199 ---Constitutional petition---Free and compulsory education for children in Balochistan---Ghost schools in Balochistan---Repair/renovation of schools, contracts for---Contracts awarded without publication---Pilferage and fraud---Collusion of education department officials---Substantial amount of money had been allocated for repair/renovation of schools in a certain district of Balochistan, however inquiry committee formed to probe into the matter found that repair/renovation of schools in some areas, where no schools existed, had also been paid for; that repair/renovation of some schools had not been carried out at all, and in respect of some schools no record existed---No action appeared to have been taken against the responsible officers and the contractors who had been paid for the works---Such inaction demonstrated the Government's lack of desire to stem pilferage and fraud and reflected sadly on the Government---Possibility of collusion of District Education Officers could not be excluded as in many areas where schools were stated to exist, they had not even been built or the school building was in the illegal possession of some influential person of the area---Overwhelming majority of schools in the Balochistan province had not been entered in the revenue record---Substantial number of children in Balochistan were being deprived of their Fundamental Right to free and compulsory education---High Court directed that each and every primary, secondary and high school should be photographed and their global positioning coordinates should be determined; that Provincial Government of Balochistan should record particulars of all schools, including the respective area of land, in the revenue record, and in such regard the concerned District Education Officer should approach the revenue staff for doing the needful; that in case the District Education Officer or revenue officer did not pursue the matter or make the requisite entry the Government should initiate disciplinary action against them; that names of all teachers appointed/posted at all schools should be inscribed at a conspicuous place within each school; that a website should be launched containing all information i.e. location of school and the name of teachers serving at such school to enable the parents to have information about the closest school and whether the teachers were attending to their duties, and that the Provincial Government of Balochistan should provide requisite resources for the storage and display of the such data---Constitutional petition was disposed of accordingly.

Nadir Ali Chalgari for Petitioner.

Tariq Ali Tahir, Addl. A.-G. for Respondents Nos.1 and 2.

Date of hearing: 7th July, 2014.

2014 C L C 397

[Shariat Court (AJ&K)]

Before Sardar Muhammad Shahzad Khan, J

Mst. GULSHAN PARVEEN----Appellant

Versus

AMAR SAFEER KHAN and 10 others----Respondents

Civil Appeal No.35 of 2012, decided on 7th June, 2013.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Suit for restitution of conjugal rights and suit for jactitation of marriage---Trial Court decreed suit for restitution of conjugal rights in favour of husband, while dismissed cross-suit for jactitation of marriage filed by the wife against her husband---Statements of three witnesses produced by husband in proof of his claim, had revealed that wife had contracted marriage with the plaintiff-husband with her own free-will and consent---Defendant/wife admitted Nikah Nama with the plaintiff-husband; and she also admitted her signatures on the contents of the Nikah-Nama and admitted that she prepared the deed by her own writing, and also signed affidavit---Wife was a student of M.Phil and not an illiterate lady, who did not know anything---Plaintiff-husband, in circumstances had proved his case through cogent and convincing evidence, and the Trial Court had rightly decreed suit for restitution of conjugal rights in favour of plaintiff/husband---Witnesses produced by the wife in proof of her case for jactitation of marriage, had not denied the Nikah-Nama with her husband---Wife having failed to prove her case through cogent and convincing evidence, Trial Court had rightly dismissed her suit for jactitation of marriage in right direction---No misreading or non-reading of evidence had been committed by the Trial Court while recording impugned judgment and decree, same were allowed to stand.

PLD 1997 Lah. 301; PLD 1997 Lah. 666; PLD 1999 Lah. 494 and PLD 1999 Lah. 479 distinguished.

Manzoor Hussain Raja for Appellant.

Ch. Muhammad Manzoor for Respondent No.1.

2014 C L C 248

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD RAMZAN----Appellant

Versus

MUHAMMAD LATIF and 34 others----Respondents

Civil Appeal No.89 of 2009, decided on 14th March, 2012.

(On appeal from the judgment and decree of the High Court dated 11-5-2009 in Civil Appeal No.166 of 2006)

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Plaintiff alleged encroachment on his land by the defendants, praying that defendants be ordered to remove the material piled up by them on the suit land---Commissioner was appointed with consent of parties, who after spot inspection, prepared his report, recorded the statements of the parties, wherein both the parties stated that they accept the demarcation made by the Commissioner on the spot---Trial Court on the basis of due appreciation of evidence and in the light of report of the Commissioner, decreed suit for possession of land encroached by the defendants---Said decree was upheld upto the High Court---Validity---All the three courts had recorded unanimous findings and had also analysed the evidence brought on record---Factum of encroachment having stood proved from the evidence brought on record, courts below while recording findings, had neither made any misreading, non-reading or wrong reading of the evidence---Concurrent findings recorded by the courts were upheld and there was no justification to interfere with---Defendants having no claim over the suit land, ownership of the plaintiff was admitted---Defendants having failed to make out any case for interference of Supreme Court, appeal was dismissed, in circumstances.

2003 SCR 2 and 2010 SCR 250 ref.

Muhammad Rafiq v. Allah Rakha's case 2002 YLR 2073; Muhammad Yaqoob v. Muhammad Ishaque 1980 CLC 2056; Messrs Muhammad Amin Muhammad Bashir Limited and another v. Pakistan through Secretary, Ministry of Communications Rawalpindi and 5 others 2000 CLC 1559; Majhena Advocate's case 2000 YLR 280 and Paryaldas and others' case 2000 YLR 584 rel.

Muhammad Siddique Chaudhry, Advocate for Appellant.

Sardar Muhammad Razaq Khan, Advocate for Respondents.

Date of hearing: 29th February, 2012.

2014 C L C 554

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

ASHFAQ AHMED----Petitioner

Versus

Ch. MAQBOOL RAZA and 10 others----Respondents

Civil Review No.17 of 2011, decided on 29th March, 2012.

(Review petition from the judgment of this Court dated 10-5-2011 in Civil Appeal No.48 of 2008).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVI---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment in civil and criminal matters---Principles---Scope of review was very limited, and the whole case could not be reopened, merely on the ground that in the examination of one of the parties another interpretation of law was possible, or a party was dissatisfied with the conclusion drawn by the court and the party seeking review wanted a different conclusion---Court had to meet the ends of justice as far as possible and to carry out the purpose of the relevant law and facts of the case---Law, facts of the case, contentions and views of the parties, were to be considered, but the decision had to be made in the light of law which the court perceived---Review of Supreme Court judgment in civil matters, under O.XLVI of Azad Jammu and Kashmir Supreme Court Rules, 1978, was permissible on the grounds similar to those mentioned in O.XLVII, R.1, C.P.C.---Remedy by way of review petition was different from that of appeal---Review could not be granted on the ground that a party was not satisfied with the judgment, or a different view of the matter was also possible or a different interpretation of law could be made---Under O.XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, the Supreme Court, in criminal proceedings, could review its judgment or order, if there was an error apparent on the face of record.

Azad Government and 3 others v. Mujahid Hussain Naqvi and another 2009 SCR 447 and Azad Government of the State of Jammu and Kashmir and others v. Mujahid Hussain Naqvi and another (Civil Review Petition No.20 of 2010 decided on 9-5-2011) ref.

Ch. Zahid Hussain v. Khalid Iqbal and 3 others 2009 SCR 192;Muhammad Riaz and others v. Pervaiz Mehndi and 72 others PLD 2006 SC (AJ&K) 5; Malick Zafar Ali Awan and 3 others v. Muhammad Riaz Khan and 7 others 2011 SCR 96; Syeda Tasneem Kazmi v. Education Department and 8 others 2011 SCR 155 and Allah Ditta and others v. Mehrban and others 1993 SCR 18 rel.

Khalid Rasheed Ch., Advocate for Petitioner.

Sardar Muhammad Azam Khan, Advocate for Respondent No.1.

Date of hearing: 28th March, 2012.

2014 C L C 758

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J

Raja MUZAFFAR HUSSAIN KHAN and 9 others

Versus

BOARD OF REVENUE through Member Muzaffarabad and 26 others

Civil P.L.A. No.350 and Civil Miscellaneous No.318 of 2011, decided on 8th March, 2012.

(Petition for leave to appeal from the judgment of the High Court, dated 4-10-2011 in Writ Petition No.195 of 2003)

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

----O. I, R.10---Failure to implead necessary party---If necessary party was not impleaded in the line of respondents, no order could be passed against said party.

Zahid Mehmood Shah and 24 others v. Azad Government and 14 others 2011 SCR 159 ref.

Muhammad Resham Khan v. Chairman Inspection Team and 3 others 1990 CLC 1355 rel.

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

----S. 135---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42(12) & 44---Partition of land---Writ petition before High Court---Scope---Parties were co-sharers in the land in dispute, and if one party claimed that the land in possession of other party was in excess of its marginal share, then it was enjoined upon the Revenue Assistant to order for partition of the land according to the shares---Co-sharer had right to apply for partition of the land, and get the land partitioned, and entered in the revenue record in separate khewat and khata number---Orders passed by Revenue Authorities and the judgment of High Court in that respect, were perfectly legal---If the findings recorded by the lower Tribunals were based on no evidence, or were against the record, then High Court could interfere with the findings of the lower Tribunals under extraordinary jurisdiction vested in it under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974---In the present case the findings recorded by the lower Tribunals were based on the record---High Court was justified in dismissing writ petition---Petition for leave to appeal was dismissed in circumstances.

Sardar Atta Ellahi Abbasi, Advocate for Petitioners.

Respondent No.2, in person

Date of hearing: 7th March, 2012.

2014 C L C 1051

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Ch. ALLAH DITTA----Appellant

Versus

MUHAMMAD AZEEM BHATTI and 15 others----Respondents

Civil Appeal No.73 of 2006, decided on 29th March, 2012.

(On appeal from the order of the High Court dated 10-6-2005 in Writ Petition No.67 of 2003).

Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971---

----S. 50(1)(b)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition before High Court---Maintainability--- Aggrieved person--- Alternate and efficacious remedy---Non-availability of---Effect---Minister for Transport issued notifications whereby route permits for motor vehicles were issued in favour of the appellant and pro forma respondents---Respondents feeling aggrieved filed writ petition before the High Court to challenge the validity of said notification---Main grievance of the respondents was that Minister had no jurisdiction to issue route permits---High Court through impugned judgment/order cancelled route permits---Validity---Minister for Transport, though had been delegated powers vested in the Government under S.50(1)(b) of Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971, but delegation of the powers did not authorize the Minister to issue route permits---Delegatee could not go beyond the powers delegated to him, nor the delegator could delegate the powers which were not vested in him---Minister for Transport was delegated the powers whereby Minister was only authorized to order Transport Authority for introduction of new routes or any number of additional permits for existing route of stage carriage, and granting the same to any particular party, but he could not directly sanction the route permits himself, or under the garb of said notification---High Court, had rightly held that the route permits issued by the Minister in favour of appellant, were issued without lawful authority---Respondents, in their writ petitions had specially averred that they were conducting the transport business in the area, it could not therefore, be said that respondents were not aggrieved persons or they had no interest in the subject matter---Minister had issued route permits, while exercising powers under S.50(1)(b) of Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971, against such like orders no alternate, efficacious or adequate remedy was provided by law and only efficacious remedy was writ jurisdiction, which had rightly been exercised in the case---No illegality existed in the impugned judgment of High Court, which was consistent with the spirit of law; appeal against said judgment was dismissed by the Supreme Court, in circumstances.

Messrs Asraf and Akbar another v. Kh. Abdul Khaliq and others 1995 SCR 196 and Ali Muhammad Chacha v. Azad Government and 4 others 2008 CLC 1648 rel.

Khalid Rashid Chaudhry, Advocate for Appellant.

Farooq Hussain Kashmiri, Advocate for Respondents.

Date of hearing: 27th February, 2012.

2014 C L C 1624

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

WAPDA through Chief Engineer/Project Director, Mangla Raising Project, Mangla and another----Appellants

Versus

Raja MAROOF and 4 others----Respondents

Civil Appeal No.49 of 2013, decided on 7th April, 2014.

(On appeal from the judgment of the High Court, dated 2-5-2013 in Civil Revision Petition No.54 of 2012).

(a) Pakistan Water and Power Development Authority Act (XXXI of 1958)--

----S. 3---Civil Procedure Code (V of 1908), O.III, R.2 & S.115---Specific Relief Act (I of 1877), S.8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Suit for possession of immovable property---Non-impleading of necessary party---Appeal---Competency---WAPDA could be sued through authority or could sue any other person through authority---Present suit had been filed by WAPDA through Chief Engineer and Project Director---Only the Authority had power to file suit, revision petition and appeal etc.---WAPDA had delegated powers for engaging counsel on its behalf apart from Chairman, Chief Engineer, Superintending Engineer, Project Director and Directors of circles etc. who were competent to engage counsel for filing a suit on behalf of WAPDA, defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions in cases arising out of their respective regions, circles, directorates from approved panel of counsel provided by Law Division, WAPDA and also to sanction their fees in accordance with approved schedule of fee---Said authorities had been conferred powers for engaging counsel in Trial Court and Courts of District Judge but in no other court---Power of attorney was to be strictly construed---Attorney could only exercise such powers which were vested in it expressly or by necessary implications and regard must be had to the recitals of power of attorney---In the present case, revision petition in the High Court and petition for leave to appeal in the Supreme Court had been filed through Chief Engineer/Project Director who had no power to file the same on behalf of WAPDA---Petition for leave to appeal having been filed without authority was liable to be dismissed---Plaintiffs filed suit against six defendants and appeal before the District Judge was filed against only one defendant and all other defendants were not arrayed as party---Appeal before District Judge was liable to be dismissed on the ground that necessary parties were not impleaded---Plaintiffs again arrayed all the six defendants in the High Court who were party in the Trial Court including five defendants who were not party before the District Judge---Revision petition against the said five defendants was incompetent---Plaintiffs failed to implead one of the defendants in the Trial Court against whom they had requested for grant of stay order without arraying him as a party---Suit and appeal could not proceed in absence of necessary party---No order could be passed in absence of necessary party and without arraying a necessary party appeal was not competent---Appeal was dismissed by Supreme Court (AJ&K) in circumstances.

Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541; Jiwibai v. Ramkuwar Shriaiwas Murarka Agarwala AIR 1947 Nag. 17 and Vice-Chancellor and 3 others v. Muhammad Shahzad Khalid PLD 2001 SC (AJ&K) 21 rel.

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

----O. I, R. 10---"Necessary party"---Meaning---"Necessary party" was a party in whose absence no effective decree or order could be passed.

Sardar Muhammad Raziq Khan, Advocate for Appellants.

Muhammad Younas Tahir and Masood A. Sheikh for Respondents.

Date of hearing:23rd January, 2014.

2014 C L C 1718

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD ARIF and 3 others---Petitioners

Versus

MUHAMMAD IQBAL and another---Respondents

Civil Appeal No.61 of 2013, decided on 15th January, 2014.

(On appeal from the judgment and decree of the High Court dated 13-4-2011 in Civil Appeal No.58 of 2008)

Pakistan Administration of Evacuee Property Act (XII of 1957) ---

----S. 41---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Evacuee property---Bar on jurisdiction of civil court---Scope---Suit was dismissed on the ground that suit land was an evacuee property and civil court had no jurisdiction to entertain the suit---Validity---Jurisdiction of civil court had been ousted with regard to the matters whether any person or property was or was not an evacuee property or what right or interest if any an evacuee had in any such property---Custodian of Evacuee Property was empowered to determine the status of a person or property as evacuee or non-evacuee---Property in question was an evacuee property and same was not in the possession of plaintiffs---Courts below had rightly observed that disputed property was an evacuee property and civil court had no jurisdiction to entertain any suit with regard to such property---Present suit had rightly been dismissed---Appeal was dismissed with costs.

Abdul Shah v. Rehabilitation Department and others 1992 SCR 269; Muhammad Sarwar Khan v. Atta Muhammad 2003 SCR 81; Muhammad Ayub and 4 others v. Muhammad Fazil and 17 others 2005 YLR 568; Muhammad Mumtaz Malik v. S.H.O. Police Station Kotli and 3 others 2003 YLR 1241; 1999 SCR 269(sic), 1991 SCR, 87; Javed Iqbal v. Mst. Kulsoom Bi 1996 SCR 33 and Muhammad Ibrhaim v. Custodian and 2 others 2000 YLR 2367 ref.

Muhammad Mumtaz Malik v. S.H.O. Police Station Kotli and 3 others 2003 YLR 1241 distinguished.

Fazal Dad v. Custodian Evacuee Property and 3 others 1984 CLC 487; Ghulam Ahmed and others v. Raja Muhammad Yusuf Khan and others PLD 1986 SC (AJ&K) 16 and Khurshid Anwar and 25 others v. Muhammad Aslam and 2 others 2001 MLD 757 rel.

Kh. Muhammad Nasim for Appellants.

Syed Nazir Hussain Shah Kazmi for Respondents.

Date of hearing: 8th January, 2014.