CLC 2015 Judgments

2015 C L C 232

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

TANVIR AKHTAR and another----Petitioners

Versus

SAHAB BIBI and others----Respondents

R.O.R. Nos.1847 and 2200 of 2013, decided on 24th September, 2014.

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

----Ss. 36 & 164---West Pakistan Land Revenue Rules, 1968, R.17---Appointment of Lamberdar---Widow of the deceased Lamberdar, having been appointed Lamberdar of concerned Chak on the hereditary claim, petitioner and two others had challenged said appointment in appeal before Appellate Authority---Female was not ordinarily eligible for appointment to the office of head man/Lamberdar, and could only be appointed in exceptional circumstances e.g. if she was sole owner of the entire revenue estate, and no other male candidate was in field---No such special/exceptional circumstances existed in the case to appoint lady as Lamberdar---Petitioner who owned more land than lady Lamberdar and was permanent resident of Chak concerned, was eligible to be appointed---Impugned order was set aside and the petitioner was appointed as Lamberdar.

2005 CLC 1899; PLD 1993 Lah. 423; 1993 CLC 858; PLD 1999 SC 484 and 1996 SCMR 1581 ref.

Syed Aal-e-Ahmed for Petitioner (in ROR No.1847 of 2013).

Rana Muhammad Hamid for Petitioner (in ROR No.1847 of 2013).

Fiaz Ahmed for Respondents.

2015 C L C 273

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

GHULAM HASSAN----Petitioner

Versus

The STATE----Respondent

R.O.R. No.2611 of 2013, decided on 24th June, 2014.

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

----Ss. 92, 98, 104 & 164---Auction of State land under temporary Cultivation Lease Scheme---Refusal to confirm highest bid---Land in dispute was put to auction under temporary Cultivation Scheme for a period of 5 years---Petitioner offered highest bid, but his bid was not confirmed, on the ground that Commissioner did not get approval for inclusion of land in dispute in the schedule of auction---Petitioner, who participated in auction proceedings, deposited the required amount and after fulfilling all the terms and codal formalities won the auction---If some lacunae had been pointed out by the authorities, afterwards, petitioner could not be punished as he had fulfilled the requirements at the time of auction---Impugned orders passed by authorities, were suspended by the Board of Revenue---Collector was directed to examine the matter to ascertain, if land in dispute could be included in the schedule for temporary lease scheme, as per instruction of the Board of Revenue.

Rasheeda Batool for Petitioner.

Allah Yar, Colony Clerk, AC Office Jalalpur Pirwala.

2015 C L C 424

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD AKRAM and others----Petitioners

Versus

Mst. FAZLAN MAI and others----Respondents

R.O.R. No.1481 of 2010, decided on 9th January, 2014.

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

----Ss. 39, 42-A(7), 44 & 164---Mutation---Setting aside of---Petitioners, claimed that their father, who was owner of land in dispute, gifted the land in their favour through mutation and asserted that they thumb-marked on the mutation in presence of witnesses, but mutation was sanctioned 5 days after the death of their father as mutation fee was not deposited---Deceased owner of land in dispute, who died one day after allegedly recording his statement before Revenue Officer, left two sons and 5 daughters alive---Daughters of the deceased had alleged that petitioners/sons of the deceased managed and manipulated the attestation of disputed mutation, whereby the petitioners had deprived the daughters of their legal and lawful right of inheritance---Appeal filed by the daughters against sanction of mutation having been rejected by Deputy District Officer (Revenue), they filed appeal before Executive District Officer (Revenue), which was accepted---Validity---Impugned mutation was recorded just one day before the death of father of the parties, whereas mutation was sanctioned 5 days after death of their father; meaning thereby that at the time of sanction of mutation, owner, father of the parties was dead---Presence of the owner/vendor was mandatory before the concerned Revenue Officer at the time of sanction as per S.42-A(7) of Punjab Land Revenue Act, 1967---Vendor/owner was established to have died at the time of sanctioning of mutation---Such mutation had been passed in violation of mandatory provision of law, and could not sustain---Revision filed by the petitioners was dismissed, and impugned order passed by Executive District Officer (Revenue) was upheld, in circumstances.

Mian Muhammad Saeed for Petitioners.

Akhtar Ali for Respondent No.1.

Malik Shahid Sultan for Respondent No.3.

2015 C L C 526

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD RAMZAN and others----Petitioners

Versus

HAMAD RAZA and others----Respondents

R.O.R. No.562 of 2012, decided on 23rd October, 2014.

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

----Ss. 39, 44 & 164---Mutation---Setting aside of---Petitioners purchased land from respondents through mutation, and possession of said land was handed over to the petitioners---Another respondent filed time-barred appeal before Deputy District Officer (Revenue) against mutation, which was accepted---Appeal filed by the petitioners against order of Deputy District Officer was dismissed---Matter had gone to the Board of Revenue in revision twice---Additional Commissioner (Revenue) dismissed the revision petition vide impugned order and cancelled mutation of the petitioners---Validity---All the parties were bona fide purchasers and had lawful title---Only issue in the case was that there were contesting contentions regarding location of particular piece of land purchased/owned by the parties---Matter had become of demarcation, and not of dispute of title---Revision petition filed by the petitioners was accepted, and order regarding cancellation of mutation of the parties, was set aside---Parties could move to the competent forum for demarcation of the property claimed / owned by them.

Saeed Asif Bati for Petitioners.

Muhammad Tufail Alvi for Respondent No.1.

Ex parte against remaining Respondents.

2015 C L C 546

[Board of Revenue Punjab]

Before Nadeem Ashraf, Senior Member (Revenue)

IBRAR AHMED----Petitioner

Versus

REHEEM DAD and 8 others----Respondents

R.O.R. No.1173 of 2013, decided on 22nd December, 2014.

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

----Ss. 135 & 164---Partition of joint khewat of land---Petitioner, who was sharer in three joint khewats of land, applied for partition of his share from only one khewat---Respondents/other sharers of those khewats opposed said mode of partition, contending that petitioner should have sought partition of his share from all three joint khewats---Tehsildar/Assistant Collector approved mode of partition of only one Joint Khewat, and District Collector upheld findings of Assistant Collector---Revision by respondents against order of District Collector was accepted by the Commissioner---Validity---Each joint khewat was a separate unit and any joint owner thereof could apply for partition of his share under S.135 of the West Pakistan Land Revenue Act, 1967---Contention of respondents, was devoid of any legal force---Impugned order of Commissioner was set aside, and orders passed by forums below, were restored, in circumstances.

Muhammad Yasin and another v. Jan Muhammad and 32 others 2005 CLC 1944 ref.

Malik Rafique Ahmed for Petitioner.

Malik Fazal-ur-Rehman for Respondents.

2015 C L C 742

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Malik SHAH NAWAZ and others----Petitioners

versus

FARAQAT ALI and others----Respondents

R.O.R. No.2039 of 2012, decided on 23rd July, 2014.

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

----Ss. 39, 44 & 164---Mutation---Cancellation of---Claim of the petitioners was that their father purchased property in dispute and possession of the same, though was handed over to their father, but mutation in that respect was not sanctioned despite repeated requests made by the petitioners---Petitioners alleged that Revenue Officer had cancelled the mutation without notice to the petitioners---Revenue Officer on appeal was directed to sanction the mutation---Respondents assailed said order which was accepted and impugned order was dismissed---Respondents also claimed that land in dispute was subsequently purchased by them from the owner thereof---In another litigation pertaining to the same disputed property, and between the same parties regarding ejectment, the matter went up to the Supreme Court and Supreme Court ordered the petitioners to hand over peaceful vacant possession of the property to respondents/landlords---Review petition filed by the petitioners against said order of the Supreme Court, was pending adjudication before the Supreme Court---Where, the matter of title of disputed property had been settled while deciding the issue of ejectment and respondents had been declared owners of the land by the Supreme Court and review petition of the petitioners was pending before the Supreme Court---Board of Revenue disposed of the revision petition with observation that parties could contest their case before Supreme Court.

Khalid Masood Rana for Petitioners.

Raja Sajjad Haider for Respondents.

2015 C L C 1426

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member Judicial-III

FAZAL-UR-REHMAN and others----Petitioners

versus

The STATE----Respondent

Case No.278, decided on 9th February, 2015.

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

----Ss.2 & 3---Katchi Abadi Scheme---Allotment of land---Entitlement---Chief Settlement Commissioner, in the light of judgment of Supreme Court dated 2-10-1990, whereby displaced persons were held entitled for accommodation, issued directions to the District Collector for allotment of suitable land to accommodate displaced persons, including the petitioners, on the available land---Petitioners had sought implementation of said direction of Chief Settlement Commissioner and requested that allotment in pursuance of said order be ordered to be made---Perusal of said order of Chief Settlement Commissioner showed that allotment had been ordered to be made under Katchi Abadi Scheme---For allotment under such scheme, the Government of Punjab vide memorandum had constituted Committee at District level---Matter had already been referred to District Collector, who could take further necessary action as required under the law and in the light of assertion made by Government counsel before Supreme Court.

Muhammad Akbar Hayat Khan for Petitioners.

Ch. Muhammad Saeed for Respondent.

2015 C L C 1445

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Mian EHSAN-UL-HAQ----Petitioner

versus

The STATE----Respondent

Case No.407, decided on 3rd June, 2014.

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

----Ss. 2 & 3---Settlement Scheme No.1---West Pakistan Land Revenue Act (XVII of 1967), Ss.166 & 172(2)(vi)---Allotment of land---Correction of wrong entries in record---Predecessor-in-interest of the petitioner, being claimant displaced person, was allotted an area measuring 36-Kanals under Settlement Scheme No.1, out of property measuring 54-Kanals, by Deputy Settlement Commissioner, with the condition that the allottee, would surrender the excess area, which was more than three times of built up area---Subsequently, the petitioner purchased said area, as well, but possession was handed over to the petitioner to the extent of 20-Kanals only and possession of remaining area was not handed over to the petitioner, who requested that said area could also be allotted and handed over to him---Ownership of the petitioner regarding said remaining land, remained intact in revenue record i.e. Register Haqdaran Zamin till the year 1969-70, but at the time of preparation of Register Haqdaran Zamin for the year 1973-74, the ownership of the petitioner was deleted without mentioning any reference/order---According to the provisions of Ss.166 & 172(2)(vi) of West Pakistan Land Revenue Act, 1967, correction of wrong/clerical mistakes in the revenue record, was the subject matter of District Revenue Authorities---District Collector as Custodian of the revenue record of whole District, was competent and responsible to keep the record maintained in its true form at all times---Correction of such entries fell within the domain of said authority---Old or new wrong entries in the revenue record, which were found having no base, could be corrected at any time---Additional District Collector, was directed to proceed with the case of the petitioner, according to the provisions of S.172(2)(vi) of the West Pakistan Land Revenue Act, 1967, and redress the grievance of the petitioner and pass a speaking order after hearing the petitioner.

Syed Meenoo Chehr for Petitioner.

Patwari Halqa with record.

2015 C L C 1613

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

ZAHOOR MAI----Petitioner

versus

ADDITIONAL COMMISSIONER (REVENUE) and others----Respondents

Review No.332 of 2013, decided on 25th February, 2015.

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

----Ss. 132 & 163---West Pakistan Board of Revenue Act (XI of 1957), S.8---Demolishing sanctioned path---Petitioner alleged that sanctioned path, which was being used as approach to Masjid and for other inhabitants of the area, was demolished by respondents by encroaching said land---On filing application by the petitioner for removing the encroachment and to restore the path to District Collector, Tehsildar was directed to restore the path and remove encroachment allegedly made by respondents---Respondents filed civil suit, and also filed appeal before Additional Commissioner---Suit was dismissed as withdrawn, but Additional Commissioner accepted appeal of respondents---Revision before Board of Revenue against order of Additional Commissioner was dismissed---Review---Competence---Path claimed by the petitioner, was not an approved path---Report submitted by Local Commissioner, also affirmed said factual position---No new ground had been raised in the review petition, nor any element of misreading/non-reading of the facts had been indicated---Review, in circumstances, was not competent.

2007 CLC 693 and PLD 1997 SC 865 ref.

Ch. Imtiaz Ahmed Bajwa for Petitioner.

Mehr Muhammad Shakeel for Respondents.

2015 C L C 1636

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

FAYYAZ MEHMOOD KHAN and others----Petitioners

versus

AYYAZ MAHMOOD KHAN and others----Respondents

R.O.R. No.871 of 2012, decided on 16th March, 2015.

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

----Ss. 44, 45, 163 & 164---Rectification of longstanding entries in revenue record---Review of mutations---Powers of District Officer (Revenue)---Revenue field staff, submitted report mentioning therein that sale-deeds in question, were not implemented in the revenue record according to the Khewats in which land was sold----District Officer (Revenue) granted necessary permission for correction of revenue record after reviewing mutations---Revision filed by petitioners against order of District Officer (Revenue) having been dismissed by Additional Commissioner (Consolidation), petitioners had filed revision before Board of Revenue---Held, under provisions of S.163(2)(a)(ii) of West Pakistan Land Revenue Act, 1967, District Collector was not competent to grant permission to review mutations in question sanctioned by Revenue Officer---As order of sanction of mutations was an appealable order, party had the choice to avail the remedy as provided in law, instead of seeking permission in review of order of Revenue Officer from District Collector---Revision petition was accepted by Board of Revenue and impugned order passed by Additional Commissioner (Consolidated) and order passed by District Officer (Consolidation), were set aside.

1999 CLC 990 ref.

Muhammad Tufail Alvi for Petitioners.

Malik Abdul Ghani for Respondents Nos.1/A to 1/D.

2015 C L C 194

[Election Tribunal, Punjab]

Before Justice Kazim Ali Malik, Election Tribunal

WALID IQBAL----Petitioner

Versus

Sh. ROHALE ASGHAR and 17 others----Respondents

Election Petition No.316 of 2013, decided on 30th June, 2014.

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

----Ss. 52(1) & 54(a) ---Civil Procedure Code (V of 1908), O.VIII, R.1---Challenging election results---Procedure---Election petition---Petitioner challenging election result by way of election petition and naming returned candidate and contesting candidates as respondents---One of the contesting candidates filing written statement and challenging election results---Propriety---Said contesting candidate tried challenging election results by filing a written statement and wanted to assume role of petitioner without filing an election petition herself---Validity---Section 52 of Representation of the People Act, 1976 barred assailing of an election result without filing an election petition---Contesting candidate, named as a respondent in the election petition filed by the petitioner, could not assume role of petitioner by filing a written statement---Written reply submitted by contesting candidate in question could not be considered as an election petition, particularly when she neither entered the witness box nor produced any other evidence---Election petition was dismissed accordingly.

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

----S. 55(1)(b)---Election petition, contents of---Allegations of corrupt and illegal practices---Vague and general allegations---Providing full particulars and details of any corrupt or illegal practices/acts mandatory---Petitioner completely failed to put forward full particulars of corrupt and illegal practices or other illegal acts alleged to have been committed by the returned candidate and his supporters---Similarly, allegations put forward by petitioner did not tell the names of those persons, who committed corrupt or illegal practices---Instead of providing full particulars of the corrupt and illegal practices allegedly committed during the election process, the petitioner relied on vague and general allegations---Affidavits and statements of petitioner's election agent and polling agents repeated the vague allegations in line with each other word for word---Petitioner alleged that supporters of the returned candidate bribed the electors, but the election petition and testimonies of the witnesses did not tell as to who bribed the voters---Similarly, the names and particulars of those voters, who received illegal gratification, could not be furnished by petitioner's witnesses---Statements of the petitioner and his witnesses did not disclose identity of the voters, who had been harassed or injured by the supporters of the returned candidate---Likewise, names and particulars of those, who had threatened and injured the electors, were missing---Not a single voter entered the witness-box, who had allegedly been threatened or injured by the supporters of the returned candidate---Medico-legal reports of the injured electors, if any, were not adduced in evidence---Not a single voter could be produced or named, who had been forbidden by the supporters of the returned candidate from casting his vote in favour of the petitioner, or who was not allowed to exercise his right of vote due to alleged highhandedness of the supporters of returned candidate---Polling camps of petitioner and returned candidate, which were installed within the prohibited zone were uprooted before election day ---Even if petitioner's contention that his polling camps were removed first and that of returned candidate were demolished with some delay, was admitted, even then the election of the returned candidate, who defeated the petitioner by 76,791 votes would not be adversely affected---Due to non-availability of official buildings, the District Returning Officer established some polling stations in the buildings of private schools---If the petitioner was aggrieved of such notified polling scheme, he should have filed objections within the prescribed period before the District Returning Officer---Not an iota of direct or indirect evidence on record, showed that the election conducted in the buildings of private schools caused any damage to the cause of petitioner or any other contesting candidate---Election petition was dismissed accordingly.

(c) Evidence---

----Self-assertion---Self-assertion was not the substitute of legal evidence.

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

----Ss. 781(3)(d) & 52---Conduct of General Elections Order (7 of 2002), Art.8A---Constitution of Pakistan, Art.62(1)(f)---Election petition---Fake or bogus educational qualifications/degrees---Proof---Degree recognized by Higher Education Commission of Pakistan---Allegation against returned candidate was that he contested last general election in the year 2008 on fake and bogus academic degrees---Validity---Petitioner could not lead any evidence against the Intermediate Examination Certificate and Secondary School Examination Certificate of the returned candidate---Regarding petitioner's Bachelor's degree, the testimonies of the Registrar of the concerned University and Director, Higher Education Commission of Pakistan showed that a Bachelor's degree was awarded to petitioner, and the same was also recognized by the Higher Education Commission---Election petition was dismissed accordingly.

Mian Muhammad Azam Chaila v. Wajid Ali Khan and others PLD 2009 Lah. 449; Haji Nasir Mehmood v. Mian Imran Masood and others PLD 2010 SC 1089; Sardar Azmat Ullah Khan v. Molvi Muhammad Sarwar and others 2011 SCMR 107; Mian Najeeb-ud-Din Owaisi v. Amir Yar Waran and others PLD 2013 SC 482; Abdul Ghafoor Lehri v. Returning Officer and others 2013 SCMR 1271; Malik Iqbal Ahmad Langriyal v. Jamshed Alam and others PLD 2013 SC 179; Nawab Zada Iftikhar Ahmad Khan v. Chief Election Commissioner, Islamabad and others PLD 2010 SC 817 and Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 distinguished.

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

----Ss. 78(3)(d) & 52---Constitution of Pakistan, Art.62(1)(f)---Election petition---Fake or bogus educational qualifications/degrees---Proof---Testing returned candidate's knowledge of subjects passed by him in his Bachelor's degree---Relevance---Returned candidate was cross-examined with questions relating to subjects of his Bachelor's degree to test his mental faculty and knowledge---Returned candidate was unable to answer such questions---Inference---Only inference which could be drawn in such circumstances was that returned candidate was not an able student having enough and required knowledge of the subjects, which he had passed---Election Tribunal was not supposed to assume the role of Controller of Examinations or Chancellor of the University---Secondly, it was common knowledge and a ground reality that sizeable number of people held very important official and unofficial positions in the system on the basis of their educational certificates and professional degrees without knowing the basics of the subjects which they had passed as per their certificate or degree, but it did not mean that they were holding fake degrees---Exercise of testing mental faculty of the returned candidate with reference to the subjects passed by him almost nine years ago could not be carried out nor such exercise would be desirable and permissible under the law---Election petition was dismissed accordingly.

Muhammad Afzal Khan for Petitioner.

Khalid Ishaq for Respondent No.1.

Shoukat Ali Javed for Respondent No.2.

Respondent No.8 in Person.

Remaining respondents: Ex parte.

Date of hearing: 30th June, 2014.

2015 C L C 428

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

Syed GHOUS ALI SHAH----Petitioner

Versus

NAWAB ALI WASSAN and 16 others----Respondents

Election Petition No.10 of 2013, decided on 6th December, 2014.

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

----Ss. 52, 68(d), 69 & 78---Election Petition---Illegal and corrupt practices---Proof---Petitioner assailed election on the plea that returned candidate had used illegal and corrupt practices during polling process---Validity---Tangible evidence led to the conclusion that returned candidate committed corrupt practice within the contemplation of S.78 of Representation of the People Act, 1976, as he himself was seen firing at one polling station to deter voters of petitioner from exercising their right of vote---One close relative of returned candidate with his unidentified accomplices abducted, maltreated and illegally confined voters to refrain from voting---Concrete evidence showed that returned candidate was an influential person and relative of ex-home minister in the previous government, prior to caretaker setup---Returned candidate as well as his close relative committed corrupt practice, therefore, election of returned candidate was declared void under S.68(d) of Representation of the People Act, 1976, and petitioner being runner up was declared as elected under section 69 of Representation of the People Act, 1976---Petition was allowed in circumstances.

Anada Bachar v. A.R. Khan PLD 1967 Dacca 362; Abdul Hafeez v. M. Tahir Khan Looni 1999 SCMR 284; Zia-ur-Rehman v. The State PLD 1972 Lah. 382; Imran Khan v. Election Commission of Pakistan PLD 2013 SC 120; PLD 2013 SC 410; Jam Mashooq Ali v. Shah Nawaz Junejo 1996 SCMR 426; Sheela B. Charles v. Qaiserl Fraeem Soraya 1996 SCMR 1455; Muhammad Abdul Rauf Siddiqui v. Israr Ahmed Abbasi and others 2014 SCMR 2432; Haji Attaullah Baloch v. Asadullah Baloch 2012 CLC 469;, Muhammad Sadiq v. Allah Ditta 2012 CLC 495; Muhammad Yusuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160; Hoshang and others v. Dr. Eddie P. Bharcucha PLD 1973 SC 206; Muhammad Hussain Mehanti v. Abdul Rashid Godil, 2014 CLC 293; Mir Shahnawaz Khan v. Manzoor Hussain Wassan 2014 CLC 1042; Ch. Allah Ditta v. Muhammad Azeem Bhatti 2014 CLC 1051; Abdul Raja Razzak v. Abdul Hakeem Baloch 2014 CLC 574; Messrs Lahore Electric Supply Co. Ltd. v. Province of Punjab 2014 CLC 590 and Syed Mashooq Mohiuddin Shah v. Syed Fazal Ali Shah 2014 CLC 1181 ref.

Muhammad Aslam Bhutta for Petitioner.

Farooq H. Naik with Barrister Shiraz Rajpar for Respondent No.1.

Nemo for remaining Respondents.

2015 C L C 1312

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

NADEEM and others----Petitioners

versus

ZAMINDARAN BIRGAL through representatives and others----Respondents

Civil Revision No.30 of 2013, decided on 27th February, 2015.

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

----O. I, R. 8 & S.12(2)---Representative suit---Compromise and ex parte decree---Scope---Compromise decree could be passed or a compromise could be made rule of the court only when all the parties to the suit had concurred to said compromise---Court had no power to give binding force to a compromise if any or few of the persons to a case or suit did not concur to any compromise when suit was of representative nature or character---Compromise decree and an ex parte decree on the basis of ex parte proceedings were quite different, two things and joining of the two were in contradiction of each other---Compromise decree would cover all the suit land and after decreeing the suit on the basis of compromise nothing would remain in the suit property for an ex parte decree---Ex parte decree passed against some of the defendants in representative suit was wrong practice---Compromise decree could not be treated operative against the defendants who were proceeded against ex parte---Trial Court had omitted to discuss the evidence of the parties while passing the impugned order---Appellate Court had failed to discuss all issues in the light of evidence of the parties---Omission of Appellate Court for not giving its findings on all issues was a material irregularity--Impugned orders were set aside and parties were directed to join trial proceedings of the suit from the stage where it was given up and Trial Court was directed to resume the trial of said suit from the same stage---Revision was accepted accordingly.

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

----O. I, R. 8---Representative suit---Scope---Trial courts were bound to ascertain the capacity/powers of the representatives of the parties in representative cases.

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

----S. 12(2)---Application under S.12(2), C.P.C.----Treatment to be given to such an application by the court---Scope--- Application under S.12(2), C.P.C. normally had to be given treatment of a suit by the courts and failure of the Trial Court not to discuss the evidence of the parties was a material irregularity.

Latif Shah and Muhammad Hussain Shehzad for Petitioners.

Saeed Iqbal for Respondents.

Date of hearing: 27th February, 2015.

2015 C L C 60

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Ch. MUHAMMAD SIDDIQUE and another----Petitioners

Versus

EXECUTIVE ENGINEER ELECTRICITY DEPARTMENT, AJ&K BHIMBER

and 7 others----Respondents

Writ Petition No.189 of 2006, decided on 29th January, 2014.

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

----S. 44---Civil Procedure Code (V of 1908), S.11---Writ petition---Res judicata, principle of---Applicability---Claim of outstanding electricity bill from subsequent buyer/owner of auctioned property---Scope---Petitioner being a successful bidder purchased a property/Mill auctioned by the orders of Banking Court---Electricity department claimed outstanding bill of property in question from the subsequent buyer/owner and initiated recovery proceedings---Contention of the petitioner was that any liability of outstanding bills of previous owner could not be placed on the shoulders of present petitioner/buyer---Validity---Outstanding electricity bill pertained to the period prior to the auction when the Mill in question was functioning under the supervision of its previous owners/directors---Banking Court had dismissed the application for recovery of electricity bills from the bid money and the Electricity Department had not filed any appeal or revision against the said judgment, which had attained finality, therefore the matter was hit by the general principle of res judicata---Any order made on an application for adjustment of outstanding bills was a judicial order and the affected party was required to challenge the same before the higher forum---Petitioner had purchased the Mill in question as a result of the judgment passed by the Banking Court and auction made later on---Electricity Department could not claim any outstanding bill from the petitioner subsequent buyer/owner of Mill---Impugned recovery proceedings of outstanding electricity bills were set aside---Writ petition was allowed.

Khalid Rasheed Chaudhary for Petitioners.

Raja Niaz Ahmed Khan for Respondents.

2015 C L C 220

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD MUSHTAQ and 13 others----Appellants

Versus

FEDERATION OF PAKISTAN through Defence Division Ministry of Defence, Government of Pakistan----Respondent

Civil Appeal No.118 of 2003, decided on 29th May, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Maintainability of suit filed on behalf of Federation of Pakistan through a counsel, was objected to by the defendant contending that suit filed without power of attorney, and without any legal sanction/permission, was illegal and was liable to dismissal on that score---Validity---Suit was filed by the counsel in the light of his appointment under law through power-of-attorney of Government of Pakistan Justice Division; and plaint was signed by the counsel---Suit, in circumstances, was competently filed---Record had revealed that matter of jurisdiction which was decided by High Court, had attained finality---Plaintiff in support of his version produced two witnesses---Defendant also got recorded his statement and documentary evidence---Case of plaintiff, came within the purview of admitted facts; and facts admitted need not to be proved---Trial Court reached the correct conclusion, which warranted no interference, by High Court; in circumstances.

Muhammad Yaqoob Mughal for Appellants.

Raja Muhammad Hanif Khan for Respondent.

2015 C L C 253

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

INHABITANTS OF VILLAGE BATTAL through Legal Heirs----Petitioners

Versus

DISTRICT JUDGE, MUZAFFARABAD and another----Respondents

Writ Petition No.734 of 2008, decided on 6th December, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, O. I, R. 8, Ss.2(2) & 96---Specific Relief Act (I of 1877), S.42---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44--- Writ petition--- Maintainability--- Alternate and efficacious remedy---Scope---Suit for declaration---Plaint, rejection of---Appeal---Limitation---Defendant filed application for rejection of plaint which was dismissed by the Trial Court but Appellate Court rejected the plaint---Contention of defendant was that plaint was rejected while exercising revisional jurisdiction under S.115, C.P.C. against which an appeal could be filed and writ was not maintainable---Validity---Order for rejection of plaint passed by the Appellate Court was a "decree"---Appeal could be filed against the impugned order and decree and writ petition was not maintainable---Plaintiffs could prefer an appeal against the impugned order and decree, on account of availability of an alternate and efficacious remedy, present writ petition was liable to be dismissed---Appeal could be filed within 90 days and if present writ petition was treated as an "appeal" same was barred by 28 days---Writ petition was dismissed, being not maintainable.

Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141; Azad Government and 3 others v. Abdul Ghaffar Butt and 2 others 1999 PLC (C.S.) 1203 and Iqtedar Hyder v. Bank of Punjab through its Chairman and another 2001 MLD 1537 rel.

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

----S. 96---Appeal---Limitation---Appeal could be filed within a period of 90 days.

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

----S. 44---Writ jurisdiction, invocation of---Scope---Writ jurisdiction to be exercised in favour of a suitor who had invoked the same with clean hands.

Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141; Azad Government and 3 others v. Abdul Ghaffar Butt and 2 others 1999 PLC (C.S.) 1203 and Iqtedar Hyder v. Bank of Punjab through its Chairman and another 2001 MLD 1537 rel.

Raja Iqbal Rasheed Minhas for Petitioners.

Nemo for Respondent No.1.

Mir Abdul Latif for Respondent No.2.

2015 C L C 393

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

DIVISIONAL FOREST OFFICER, BAGH and 2 others----Appellants

Versus

MUHAMMAD RAFIQUE KHAN and others----Respondents

Civil Appeal No.175 of 2012, decided on 26th November, 2014.

Azad Jammu and Kashmir Law Department Manual, 1984---

----R. 29---Specific Relief Act (I of 1877), S.42---Suit for declaration against government department---Appeal-----Defendants (Government department) filed appeal against the impugned judgment and decree before first Appellate Court without obtaining sanction from Law---Department---Effect---Sanction from Law Department was mandatory before filing an appeal---No lis on behalf of the State or Public Officer could be instituted without sanction of Law Department---Appeal filed by the defendants was bad in law---Appeal being Incomplete, question of its disposal on merit could not arise---No illegality was committed by the first Appellate Court while dismissing the appeal on sole legal ground---Second appeal was dismissed in circumstances.

Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan and 3 others 2010 SCR 17 rel.

Raja Amjad Ali Khan for Appellants.

Sardar Muhammad Azam Haider for Respondent no.1.

Nemo for Pro forma Respondents Nos.2 to 18.

2015 C L C 644

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary and Sardar Abdul Hameed Khan, JJ

GHULAM QADIR----Petitioner

Versus

UNITED BANK LIMITED through President and 4 others----Respondents

Review Petition No.22-A of 2007, decided on 10th December, 2014.

(a) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 43(4)---Limitation Act (IX of 1908), Arts.162 & 173---Civil Procedure Code (V of 1908), O.XLVII, R. 1---Review of judgment by High Court---Limitation---Sufficient cause---Scope---Review petition under Rule 43 (4) of Azad Jammu and Kashmir High Court Procedure Rules, 1984 could be filed within 30 days---Period for filing review petition against order passed in original/constitutional jurisdiction of High Court was 20 days---Petition was time-barred---No sufficient cause for delay existed in the present case---Review petition was dismissed in circumstances.

(b) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 43(4)---Limitation Act (IX of 1908), Arts.162 & 173---Review of judgment by High Court---Limitation---Review petition under R.43(4) of Azad Jammu and Kashmir High Court Procedure Rules, 1984 could be filed within 20 days.

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

----Art. 162---Review of judgment by High Court---Limitation---Period for filing review petition against order passed in original/constitutional jurisdiction of High Court was 20 days.

Muhammad Riaz Tabassum for Petitioner.

2015 C L C 689

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL KARIM----Petitioner

Versus

SAIN MUHAMMAD and another----Respondents

Civil Revision No.40 of 2007, decided on 15th October, 2014.

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

----S. 9---Suit for restoration of possession---Limitation---Suit was dismissed for want of proof as well as on the point of limitation and cause of action---Validity---Plaintiff had failed to prove that his possession on suit property had been snatched by the defendants---Both the parties were co-sharer of the land in question---Record of the case was not in line with the claim of plaintiff---Plaintiff firstly opted to file a declaratory suit for cancellation of a gift deed and, during pendency of lis, he was deprived of the possession of suit land---Plaintiff should have prayed for the recovery of possession of land as consequential relief by way of amendment in the said suit---Present suit had been dismissed by the Trial Court in a right direction---Plaintiff was bound to institute suit for restoration of possession within a period of six months---Plaintiff had failed to prove his dispossession from the specific date mentioned in the plaint---No illegality, irregularity or perversity had been pointed out in the impugned judgment and decree passed by the Trial Court---Trial Court had exercised jurisdiction vested in it by law in a legal manner---Suit was rightly dismissed for want of proof, being beyond limitation and for cause of action---Revision was dismissed in circumstances.

2001 MLD 799; 2004 SCMR 1777; PLD 1972 SC 25; 1985 CLC 2644; PLD 1984 Lhr. 287; 1999 MLD 3384; 2006 YLR 8517 and 2005 YLR 241 ref.

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

----S. 9---Suit for restoration of possession---Limitation---Suit for restoration of possession could be filed within six months from dispossession of property.

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

----S. 9---Suit for restoration of possession--- Scope--- Suit for restoration of possession could be instituted irrespective of any right or title etc. which was special remedy to redress the persons dispossessed without any legal right and in unlawful manner.

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

----S. 42---Suit for declaration---Scope---Any person entitled to a legal right or character might institute a suit against any person denying such right or character and court might in its discretion make a declaration that he was so entitled---No declaration should be given where a further or consequential relief deriving from the declaration which could have been claimed by way of relief before the same court and in the same suit had not been claimed---Purpose of such jurisdiction was to prevent future litigation and to remove existing sources of controversy.

Mir Tanvir Hussain for Petitioner.

Kh. Shaukat Hussain Ganai for Respondents.

2015 C L C 727

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Raja LAL KHAN----Appellant

versus

Raja MUHAMMAD ASLAM and 2 others----Respondents

Civil Appeal No.145 of 2012, decided on 21st October, 2014.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Arts. 164 & 181---Ex parte decree, setting aside of---Limitation---Applicant-defendant appeared and contested the suit, thereafter, absented himself after filing written statement---Application for setting aside ex parte decree was dismissed on the ground that same had been filed after the prescribed period of limitation---Validity---Article 164 of Limitation Act, 1908 would apply for an application for setting aside ex parte decree where summons was not duly served---Article 181 of Limitation Act, 1908 would apply in all other cases when right to apply had accrued---One could not be punished for error or omission of the court---Counsel of the applicant-defendant was contesting the case by appearing before the Trial Court---Application for withdrawal of authority was filed by the counsel of applicant-defendant and he also got recorded his statement---Applicant-defendant should have been summoned by the Trial Court---Trial Court passed ex parte order against the applicant-defendant and on the same day recorded ex parte statement of plaintiffs-respondents---Trial Court had erred in passing the impugned order instead of giving a fair opportunity to the applicant-defendant of being heard---Trial Court should have summoned the parties instead of proceeding ex parte---When original order could not be termed as judicial order, structure built upon the foundation of said order would fall to earth---Right to apply to the applicant-defendant accrued firstly on the date when his counsel gave up his prosecution---Present application for setting aside an ex parte decree was within three years which was within limitation---Both the courts below had misconstrued the law on the point of limitation---Article 164 of Limitation Act, 1908 was not applicable in the present case as there was no question of service effected upon the parties---Applicant-defendant due to ill advice of the counsel remained indolent to seek remedy at earliest opportunity---Impugned orders passed by the courts below were set aside by the High Court---Case was remanded with the direction to proceed in accordanpopopce with law---Second appeal was accepted in circumstances.

2003 YLR 1596 and 2003 YLR 2208 ref.

(b) Administration of justice---

----One could not be punished for error or omission of the court.

(c) Administration of justice---

----When original order could not be termed as judicial order then structure built upon the foundation of said order would fall to earth.

Sardar Ishtiaq Khan for Appellant.

Raja Muhammad Najeeb for Respondents.

2015 C L C 769

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

SHABIR KHAN and 2 others----Petitioners

versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 44 others----Respondents

Revision Petition No.1 of 2014, decided on 23rd September, 2014.

Civil Procedure Code (V of 1908) ---

----S. 75 & O. XXVI, Rr.9 & 10---Local commission, appointment of---Scope---Application for appointment of local commission for assessment of improvement and site situation was dismissed by the Appellate Court---Validity---Earlier, local commission was appointed by the Trial Court and matter had been decided---Difference between the report of local commission and oral evidence of the parties was on record---Matter should have been decided by resolving each and every controversial point---Question of improvement could be determined after assessment of the same---Application for appointment of local commission should have been allowed in order to meet the ends of justice---Impugned order passed by the Appellate Court was set aside with the direction to appoint another local commission and decide the controversy in the light of the report of local commission---Revision was accepted in circumstances.

PLD 1989 Kar. 75; 2003 SCR 172 and 1981 CLC 368 ref.

PLD 1989 Kar. 75 rel.

Sardar Atta-ur-Rehman Abbasi for Petitioners.

A.A.-G. for the Government.

Raja Muhammad Imtiaz Khan for Respondents.

2015 C L C 1326

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

RASHID SHAMIM----Petitioner

versus

JUDGE FAMILY COURT/CIVIL JUDGE COURT NO.II, MUZAFFAGARH

and 3 others----Respondents

Writ Petition No.1483 of 2013, decided on 22nd January, 2015.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Preamble---Object of the Act---Purpose for enacting Azad Jammu and Kashmir Family Courts Act, 1993, was for expeditious settlement and disposal of the disputes with regard to the matrimonial matters and other affairs connected therewith.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Schedule---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Amendment of pleadings---Powers of Family Court---Scope---Plaintiff instituted suit for dower and recovery of maintenance allowance before Family Court---Plaintiff lady was pregnant at the time of institution of suit---After birth of child application was moved for arraying the minor in line of plaintiffs by amending plaint which was accepted---Petitioner assailed order allowing the amendment on grounds that no procedure had been provided for amendment---Principle---No provisions for amendment of pleadings were provided but there existed no prohibition or absolute bar on powers of Family Court to allow any party to amend pleadings---Family Court can allow any procedure not expressly barred under law for final disposal of case---When parentage was not being disputed there was no bar for impleadment of minor in suit for maintenance as party---Application for amendment after birth of child was also held to be continuation of stance taken in suit for recovery of maintenance and writ petition was dismissed in circumstances.

2005 SCR 37; 1999 CLC 81; 1983 CLC 3305; 2012 YLR 1488 rel.

(c) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 17---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Applicability of provision of C.P.C. and Qanun-e-Shahadat, 1984 to proceedings before Family Court---Scope---Neither provisions of Civil Procedure Code, 1908 nor that of Qanun-e-Shahadat, 1984 were applicable to proceedings under Azad Jammu and Kashmir Family Courts Act, 1993, however, principles of C.P.C. were attracted when there was no conflict between provisions of Azad Jammu and Kashmir Family Courts Act, 1993 and Civil Procedure Code, 1908.

(d) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Family Court, jurisdiction of---Family Court possess exclusive jurisdiction to entertain matter pertaining to dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children and guardianship---Parties were entitled to file suit pertaining to one or more than one matters jointly in one suit.

(e) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Maintenance for child---Obligation of father---Husband being father of child born to wife was required under law not only to provide food and shelter but also take care of genuine needs of the family.

Raja Zulqarnain Khan for Petitioner.

Ch. Muhammad Mumtaz for Respondents.

2015 C L C 1433

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

ABDUL RAHEEM and others----Appellants

versus

EHSAN and others----Respondents

Civil Appeals Nos.103 of 2007 and 16 of 2010, decided on 19th February, 2015.

Specific Relief Act (I of 1877) ---

----Ss. 42 & 12---Transfer of Property Act (IV of 1882), Ss.7, 51 & 54---Suit for declaration by plaintiff and for specific performance of contract by defendant---"Sale"---Scope---Original agreement to sell was not available on record which had not been registered either by Sub-Registrar or by Notary Public---Ingredients of a "sale" or "contract for sale" were lacking in the agreement to sell---Vendors had nowhere promised to sell any land nor any price of land had been fixed in the agreement to sell---Contract for sale could be made by a competent person---Unattested photo-copy of Khasra Girdawari could not be read as evidence---Alleged document was not a contract for sale and defendants were not entitled to file suit for specific performance of contract on the basis of said document---Admission of party would not change the nature of document---Defendants had made bona fide improvements in the land and they were entitled to costs of such improvements---Plaintiffs were entitled to declaration to the extent of land in their ownership---Defendants were not to be ejected from suit land without due course of law and they would be entitled for costs of improvements made in the suit land---Value of improvements might be calculated during execution proceedings---Appeal was accepted accordingly.

Ghulam Mustafa Qureshi for Appellants/Respondents.

Muhammad Yaqoob Khan Mughal for Respondents/Appellants.

2015 C L C 1652

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., M. Tabassum Aftab Alvi, Sardar Abdul Hameed Khan, Chaudhary Jahandad Khan and Azhar Saleem Baber, JJ

Raja MUHAMMAD NAEEB KHAN THAKAR and 6 others----Petitioners

versus

DE-LIMITATION COMMISSION, AZAD JAMMU AND KASHMIR through Secretary, Election Commission and 3 others----Respondents

Writ Petition No.567 of 2015, decided on 25th March, 2015.

(a) Azad Jammu and Kashmir De-limitation of Constituencies Ordinance, 1970---

----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---De-limitation of constituency---Necessary party, non-impleadment of---Effect---Aggrieved person---Locus standi---Petitioners had not impleaded in line of respondents all the contesting candidates in the bye-election---Quashment of notification for de-limitation and polling scheme prepared on the basis of said notification would affect those candidates who contested elections---No writ could be issued in absence of a necessary party---Voters of the constituency would be condemned unheard due to cancellation of impugned notification---Cancellation of notification would also affect polling scheme prepared on the basis of said notification---Voters being necessary party, writ petition must fail due to their non-impleadment in the line of respondents---Petitioners were not aggrieved from the issuance of notification for de-limitation of the constituency---Petitioner had to be an aggrieved person for invoking extraordinary jurisdiction of High Court and he must have locus standi for availing such jurisdiction---Nothing was on record to show as to how petitioners had been affected by the issuance of impugned notification---No legal right or tangible interest had been infringed due to issuance of impugned notification in question---Writ petition was dismissed in circumstances.

Muhammad Akram v. Cap. C.A. Saeed Deputy Commissioner Election Tribunal Gujrat and another PLD 1965 Lah. 703; Ch. Shafqatullah v. Delimitation Commission Pakistan through its Secretary PLD 1971 Lah. 533; Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission Islamabad PLD 2003 Lah. 125; Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through Joint Secretary Council Secretariat Sector F-5/2 Islamabad and others PLD 2013 AJK HC 34; AJK Government and 4 others v. Mohi-ud-Din, Islamic University and 2 others 2014 SCR 382; Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat Quetta and 2 others v. Murree Brewery Company Ltd., Through Secretary PLD 2007 SC 386; A.K. Trading Corporation v. Messrs Z.H. Construction and 2 others PLD 1998 SC (AJ&K) 7 Muhammad Afsar and 10 others v. Sultan Muhammad and 7 others 2006 SCR 8 and Raja Iqbal Rashid Minhas v. AJK Council and 3 others PLD 2002 SC (AJ&K) 1 ref.

Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission, Islamabad PLD 2003 (Lah.) 125; Raja Iqbal Rashid Minhas, Advocate's case PLD 2002 SC (AJ&K) 1; Sherij Khan and others v. Azad Government of Jammu and Kashmir through its Chief Secretary and others 2013 CLC 684; Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat Quetta and 2 others v. Murree Brewery Company Ltd., Through Secretary PLD 2007 SC 386 and Noor-ul-Amin Bar-at-Law v. The Government of the State of Azad Jammu and Kashmir Per its Chief Secretary and 2 others PLD 1987 AJK (H.C.) 88 rel.

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

----S. 44---Writ jurisdiction, invocation of---Requirements---Petitioner should be an aggrieved person for invoking extraordinary jurisdiction of High Court and he must have locus standi for availing such jurisdiction.

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

----S. 44---Writ petition---Necessary party, non-impleadment of---Effect---No writ could be issued in absence of a necessary party.

Shahbaz Khan v. Election Commission of Pakistan through chief Election Commission Islamabad PLD 2003 Lah. 125 rel.

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

----S. 44---Writ petition---Aggrieved person---Requirements---Person should show that due to violation of some law, rule or regulation he had been adversely affected, or at least his tangible interest which was affected and it was not necessary that a right in strict juristic sense should be vested in him.

Raja Muhammad Hanif Khan and Raja Ayaz Farid for Petitioners.

Abdul Rasheed Abbasi, Mushtaq Ahmed Janjua, and Ch. Shaukat Aziz, A.A.-G. for Respondents.

Ch. Khalid Rashid, Azad Khan Tareen, Kh. Farooq Ahmed, Anjum Nisar Mir on behalf of Barrister Sultan Mehmood Chaudhary, applicant.

2015 C L C 1711

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL REHMAN----Appellant

versus

Syed ARIF HUSSAIN SHAH and 5 others----Respondents

Civil Appeal No.248 of 2005, decided on 22nd May, 2015.

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

----S. 8---Suit for possession of immovable property---Limitation---Scope---No limitation would run against a lawful owner for seeking possession of his property from an aggressor---Plaintiffs, in the present case, had neither challenged the decree nor agreement to sell of suit property---Limitation for cancellation of document/decree in case of declaratory suit would not run in the case---No improvements had been made on the suit property by the defendants---Suit property was in the ownership of plaintiffs who were entitled for possession of the same---Property in question was in the possession of defendants without any legal rights---Appeal was dismissed in circumstances.

2012 MLD 1635 and 2013 SCR 29 rel.

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

----O. XX, R. 5 & O. XLI, Rr. 23 & 24---Decision on each issue---Remand of case by Appellate Court---Scope---Appellate Court was bound to discuss and resolve each and every issue in favour of either party---Suit could be finally determined if sufficient evidence was available on record.

Sardar K.D. Khan for Appellant.

Ch. Kaleem Afsar for Respondents Nos.1 to 3.

2015 C L C 1754

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

HABIB BANK LIMITED through Attorneys----Petitioner

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 8 others ----Respondents

Writ Petition No.871 of 2012, decided on 28th May, 2015.

(a) Azad Jammu and Kashmir Local Government Act, 1990---

----S. 65---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Publicity and advertisement fee---Scope---Displaying of name of sank outside of a branch---Collection of publicity/advertisement fee from the Bank---Laches, doctrine of---Applicability---Municipal Corporation issued demand notices for payment of publicity/advertisement fee from the petitioner-bank for sign boards which were erected at various branches by hiring the services of a contractor---Validity---Impugned notices did not indicate that some tax had been levied on the Bank rather certain amounts had been demanded as "tax" and "fee" by the officials---Officials could be empowered to levy tax for cleaning and providing bins as keeping the streets clean for 'public purpose'---Municipal Corporations had already levied taxes under the head "public purpose"---Authority established under law could not be restrained from levying tax/fee even if business had been established under some specific provisions of law---Displaying of name of Bank outside a branch did not fall within the definition of 'advertisement'---Authorities had demanded different amounts as publicity fee which the officials were not empowered under the law to impose---Tax/fee could not be imposed without its publication in the official gazette---Taxes, rates, tolls and fees had to be notified in the prescribed manner---Officials could not satisfy that imposition of taxes/fees had properly been notified---Impugned demand notices of advertisement fee were bad in law---Fees were being demanded continuously under the impugned notification which would create a continuous cause of action in favour of Bank---Principle of !aches did not attract in the present case---Impugned notices demanding "publicity fee" from the Bank were set aside and officials were restrained from levying or demanding any tax/fee for displaying name of the Bank outside the building of a branch---Writ petition was accepted in circumstances.

2008 YLR 1888; 1991 CLC 354; PLD 1998 Pesh. 26; PLD 1998 SC (AJK) 17; 2007 CLC 35; PLD 1993 SC AJ&K 12; 2008 SCR 619 and 2012 SCMR 1004 ref.

1999 PLC (C.S.) 1173 and 2011 MLD 1987 rel.

(b) Words and phrases---

----"Tax"---Meaning---Tax was an obligation imposed by an Authority for "public purpose".

(c) Words and phrases---

----"Fee"---Meaning---Fee was a payment of obligation imposed on the rule of "quid pro quo" which would postulate that the Authority had to render some service in lieu of fee.

(d) Taxation---

----Tax/fee could not be imposed without publication of the notification in the official gazette.

Barrister Hamayun Nawaz Khan for Petitioner.

Sardar Abdul Sammie Khan, Jahandad Khan Mughal and Syed Amjad Ali Shah for non-Petitioners.

2015 C L C 34

[Islamabad]

Before Athar Minallah, J

Major (Retd.) AHMED NADEEM SADAL and 3 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Sports, Islamabad and 3 others----Respondents

Writ Petition No.3644 and C.M. 4056 of 2014, decided on 5th September, 2014.

(a) Words and phrases---

----"Frivolous"---Meaning.

Black's Law Dictionary rel.

(b) Words and phrases---

----"Vexatious"---Meaning.

Black's Law Dictionary rel.

(c) Judge---

----Knowledge of law---Scope---Judge must wear all laws of country on his robes.

Muhammad Fiaz Khan v. Ajmer Khan and others 2010 SCMR 105; Muhammad Gulshan Khan v. Secretary, Establishment Division, Islamabad and others PLD 2003 SC 102 and Iffat Jabeen v. District Education Officer (M.E.E), Lahore and others 2011 SCMR 437 rel.

(d) Administration of justice---

----Concealment of facts---Effect---Suppression or concealment of relevant facts is a kind of fraud and has been rightly termed as a jugglery which has no place in equitable and prerogative jurisdiction---Frivolous, vexatious litigation based on suppression of facts has serious consequences for administration of justice---Such litigation subverts course of justice for other bona fide litigants by clogging judicial system and give rise to mistrust of legal system it causes delay for others by wasting public time and loss to exchequer and is, therefore, an abuse of process of Court---Court has duty to protect its process from being abused, which is in the nature of fiduciary duty which Court owe towards pubic and bona fide litigants---Obstinate litigants causing abuse of process of Court undermine public confidence in administration of justice and Courts---Being conscious of such onerous duty, Courts cannot show leniency when its process is abused, despite the fact that grace and magnanimity is its essential attributes.

Allen v. Sir Alfred Mc ALPINE & Sons (1968) 1 All.E.R. 543 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Misstatement of facts---Effect---Petitioners misstated before High Court on first date of hearing that they were not aware of short order or judgment of Supreme Court---Instead of outrightly withdrawing petition, petitioners wished to argue as was also evident from their subsequent sworn affidavits---Such being not enough, petitioners also filed false affidavits in High Court by again suppressing material facts and misleading the Court by bending backwards in distorting judgment of Supreme Court---Such conduct of petitioners was beyond recklessness, rather deliberate and it could neither be condoned nor taken lightly---Jurisdiction of High Court under Art.199 of the Constitution was discretionary and equitable in character---Petitioners seeking the court to invoke its extraordinary jurisdiction ought to have come with clean hands because he who sought equity must come to Court with clean hands---Petitioners did not state relevant facts correctly or candidly, had suppressed misstated or misrepresented material facts, which by itself was sufficient for outright dismissal of petition without going into merits---High Court imposed special costs to all petitioners to be paid to specified respondent---Petition was dismissed in circumstances.

Shehla Zia's case PLD 1994 SC 693; Abdur Rashid v. Pakistan and others 1969 SCMR 141; Nawab Syed Raunaq Ali and others v. Chief Syed Settlement Commissioner and others PLD 1973 SC 236; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462; Thakur Dan Singh Bist and others v. Registrar of Companies AIR 1960 Allahabad 160; Daulat Singh and others v. The Deputy Commissioner, Karnal and others AIR 1972 Punj. and Har. 28; Corporation of Calcutta v. Narayan Chandra Das AIR 1957 Calc. 447; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; S.M. Sohail v. Mst. Sitara Kabir-ud-Din and others PLD 2009 SC 397; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Shahid Orakzai and another v. Federation of Pakistan PLD 2008 SC 77; Mir Sahib Jan v. Janan 2011 SCMR 27; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others 1993 SCMR 639; The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Sher Ahmed and others v. The State 1995 SCMR 145; Muhammad Zia v. Ch. Nazir Muhammad, Advocate and 4 others 2002 CLC 59; Kawasb. AGA and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; Smt. Satya v. Teja Singh AIR 1975 SC 105; Hindustan Transport Co. and another v. State of UP and others AIR 1984 SC 953; The Election Commission of India v. Shivaji and others AIR 1988 SC 61 ref.

Muhammad Faiz Cheema and Ch. Tanvir Ahmed for Petitioners.

Mian Abdul Rauf for Applicants (in Civil Miscellaneous No.4056 of 2014).

Tariq Khokhar, Addl. Attorney-General, Malik Faisal Rafique, D.A.-G. and Tallat Abbas Khan, Standing Counsel for Respondents.

Date of hearing: 19th August, 2014.

2015 C L C 349

[Islamabad]

Before Muhammad Anwar Khan Kasi, CJ

NOSHEEN AGHA and another----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE (WEST) ISLAMABAD and another----Respondents

Writ Petition No.3608 of 2013, decided on 2nd December, 2014.

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

----Ss. 5, Sched., 17-A & 17-B---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Maintenance, determination of---Scope---"Decree"---Meaning---Family Court fixed interim maintenance which was not deposited by the father and his defence was struck off and suit was decreed as prayed for whereby maintenance of Rs.1,50,000 per month was sought---Appellate Court reduced maintenance allowance to the tune of Rs.15,000 per month with annual increase @ 15% till marriage or till adverse decision of civil court with regard to legitimacy of minor daughter---Validity---Family Court had discretion to strike off right of defence of defendant if interim maintenance was not paid by him and decree the suit---Father did not pay interim maintenance but filed application for conducting DNA test of minor daughter which was dismissed and suit was decreed as prayed for---Default of father with regard to payment of interim maintenance was on record---Family Court had rightly invoked the provision of S.17-A of West Pakistan Family Courts Act, 1964 but both the courts below did not refer any material on the basis of which quantum of maintenance allowance was adjudged and failed to inquire into the financial position of father and did not take into account the justification with regard to the normal needs of minor daughter in custody of her mother---Decree would refer to judicial determination of a matter in controversy and such determination could not be done without application of mind in accordance with evidence and law on the subject---Impugned judgment could not be called a decree---Family Court was bound to seek evidence of plaintiff-mother in proof of justification with regard to quantum of maintenance allowance and financial position of defendant-father---Reduction in quantum of maintenance allowance by the Appellate Court was not warranted---Impugned judgment passed by the Appellate Court was set aside and that of Family Court was restored to the extent of striking off defence of father while to the remaining issue case was remanded to the Family Court to decide the quantum of maintenance allowance after recording of evidence of mother viz-a-viz financial status of father---Suit was directed to be decided within a specified period---Constitutional petition was disposed of accordingly.

Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and others PLD 2004 Kar. 492; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Noor Muhammad and another v. Muhammad Ishaq and another 2000 MLD 251; Khawaja Jameel Ahmad. v. Judge, Family Court, Multan and two others 2007 YLR 1401; Syed Zubair Shah v. Mst. Shahnaz Anwar and 2 others 2010 MLD 726; Lieutenant Iffat Kazmi etc. v. Shuja Akbar Shah and others PLD 2005 SC 395; Javed Ahmad alias Javed Iqbal v. Additional District Judge Lahore and others 2013 YLR 1362; M. Saleem Ahmad v. Mst. Sabir-a Begum and others 2001 YLR 2329; Iftikhar Nazir Ahmad Khan and others v. Ghulam Kibria and others PLD 1968 Lah. 587; Manzoor Hussain v. Zahoor Ahmad and others 1992 SCMR 1191; Bashir and others v. Ilam Din and others PLD 1988 SC 8; Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others 2000 SCMR 88; Tariq Mehmood v. Collector, District Gujranwala and 2 others 1991 CLC 793; Faiz Ahmad and 23 others v. Ahmad Khan and 7 others PLD 2013 Lah. 234; Abdul Waheed through legal heirs and others v. Mst. Mumtaz Gulshan and 2 others 2013 YLR 239; The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1; Syed Imtiaz Hussain v. Muhammad Salim and others 2004 MLD 1548; Muhammad Salim v. Lahore Development Authority and others 1993 MLD 2312; Syeda Sameera Akhlaq and another v. Judge Family Court, Lahore 2011 MLD 964; Awal Ameer v. Additional District Judge and others 2013 MLD 1342; Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767 and Shafqat Abbas v. Zabia Shafqat 2003 YLR 2364 ref.

Messrs UBL v. Messrs Silver Oil Mills Ltd. 2003 SCMR 116 rel.

(b) Words and phrases---

----"Decree"----Meaning---"Decree" would refer to judicial determination of a matter in controversy and such determination could not be done without application of mind in accordance with evidence and law on the subject.

Hafiz Arafat Ahmad Chaudhary and Kashifa Niaz for Petitioners.

Raja Rizwan Abbasi for Respondents.

Date of hearing: 23rd October, 2014.

2015 C L C 397

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Dr. Rana MUHAMMAD AKHLAQ----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others----Respondents

Writ Petition No.3476 of 2013, heard on 9th April, 2014.

(a) Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Ordinance (XLIX of 1979)---

----S. 3---Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Rules, 1980, R.5---Export Control (Animal) Order, 2004, Cl.2.53---Constitution of Pakistan, Art.199---Constitutional petition---Import of sheep---Health of animals---Determination---Plea raised by petitioners was that consignment of sheep imported from Australia was wrongly declared to be violative of food security and livestock---Validity---No documentary evidence was available on record to show that consignment in question was rejected by Bahrain authorities due to some disease in the sheep as in that case "World Alert" would have been issued by Bahrain authorities as per practice prevailed in international animal trade so that no further trade in such animals from that geographical area be carried out---Not a single document of Bahrain government was available which could prove that said government rejected the sheep due to infected by some disease except speculated media reports which were only based on hearsay---High Court declared the whole process of culling of sheep as unlawful---Respondent had been continuously harassed by officials of Provincial Government through different tactics not to pursue constitutional petition before the Sindh High Court which resulted into withdrawal of the same by the respondent just one day before announcement of order by Division Bench of High Court of Sindh High Court---High Court directed the Provincial Government to take up matter for initiating legal action against officials responsible for the same as per service and criminal laws---Petition was allowed in circumstances.

PLD 2010 SC 1; PLD 2010 SC 265; 1998 SCMR 1863; 1994 SCMR 2244; PLD 1999 SC 1126; PLD 1997 SC 563; 2013 SCMR 1752 and Muhammad Yasin v. Federation of Pakistan PLD 2011 SC 132 ref.

(b) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 6---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Petitioner assailed appointment of respondent as Animal Husbandry Commissioner in Basic Scale-20 by Provincial Government---Validity---Respondent was officer of Basic Scale-19 and he could not be allowed to hold post of Basic Scale 20 by Secretary of Ministry who was not competent authority---Competent Authority, under R.6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 for appointment against post of Basic Scale 20, was the Prime Minister---If post in question was to be looked after through acting/current charge, the same procedure was also provided under R.8(b)(4) and (5) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---High Court declared that respondent did not hold post in question for such period in prescribed manner---High Court declared the respondent as usurper and directed to refund salaries and other monetary benefits drawn by him in such behalf---Petition was allowed accordingly.

Abdur Rehman Siddiqui, Advocate Supreme Court and Ch. Asghar Ali for Petitioner.

Zulfiqar Ahmad Bhutta, for Respondent No.4.

Khawaja Azhar Rasheed and Liaqat Ali Qasim for Respondent No.5.

Adnan H. Memon for Respondent No.6.

Fazal-ur-Rehman Khan Niazi, D.A.-G.

Haseeb Muhammad Ch., Standing Counsel for Respondents Nos.1 to 3).

Respondents Nos.4 and 9 in person.

Date of hearing: 9th April, 2014.

2015 C L C 577

[Islamabad]

Before Athar Minallah, J

Dr. MUMTAZ AHMED and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petitions Nos.3061 and 2156 of 2014, decided on 16th January, 2015.

(a) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Preamble---Object and purpose of Pakistan Medical and Dental Council Ordinance, 1962---Said Ordinance regulates medical profession to promote public good---Object of regulation by the Council is to protect and safeguard those who repose and rely on knowledge and skill of medical practitioners, thereby placing their lives in their hands---Public good is of paramount consideration while interpreting provisions of Pakistan Medical and Dental Council Ordinance, 1962.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 15---National Examination Board (NEB) examinations---Object, purpose and scope---NEB examinations are prescribed to determine professional competence or otherwise of a Pakistani citizen holding basic medical qualifications from a foreign medical institution---Legislative intent is to ensure that a person holding medical qualifications from a foreign institution registered under Pakistan Medical and Dental Council Ordinance, 1962, must possess sufficient knowledge and skill to the satisfaction of the Council.

(c) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 15---Foreign qualified person, registration of---Pre-requisites---Holding a qualification from medical institution outside Pakistan, qualifying NEB examination so that the Council is satisfied that the person possesses sufficient 'knowledge and skill' and issuance of notification by Federal Government are mandatory pre-requisites to be registered under Pakistan Medical and Dental Council Ordinance, 1962.

(d) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---National Examination Board (NEB) examinations---Retrospective effect of amendment---Petitioners completed their studies in the field of medicine from Cuba but PMDC refused to register them as medical practitioners unless they had passed NEB examination---Plea raised by petitioners was that condition to appear before NEB examination was introduced by amendment in law and the same could not have retrospective operation in case of petitioners---Validity---At the time when amendments came into effect through Amendment Act, petitioners had not acquired and did not hold or possess qualifications granted by foreign medical institutions---Merely on the basis of enrolment or admission, no right had accrued to petitioners---High Court declined to interfere in decision made by PMDC whereby petitioners were to take examination held by NEB---Petition was dismissed in circumstances.

PLD 2010 SC 1089 and Witherell v Weimer, 421 N.E.2d 869 ref.

(e) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Preamble---Higher Education Commission Ordinance (LIII of 2002), Preamble---Special statutes---Overriding effect---Plea raised by petitioners was that Higher Education Commission Ordinance, 2002, was later in time, therefore, it had overriding effect on Pakistan Medical and Dental Council Ordinance, 1962---Validity---Object and purpose of the two statutes are distinct and separate having no nexus with each other---Both are special laws dealing with different subjects altogether, therefore, none had overriding effect.

(f) Estoppel---

----Promissory estoppel---Scope---Promissory estoppel is an equitable doctrine with the object of pre-empting suffering of any loss arising out of a promise made and is invoked so as to prevent violation of and to safeguard rights accrued pursuant to such promise---Essentially promise be made by a person competent to represent the Authority on behalf of which a promise is being made and the person to whom representation has been made changes his position to his detriment takes a decisive step and enters into a binding contract or incurs a liability.

Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Dr. Muhammad Munir-Ul-Haq and others v. Dr. Muhammad Latif Chaudhry and others 1992 SCMR 2135; West Punjab Government v. Messers Pindi Jhelum Valley Transport Ltd. Rawalpindi and others PLD 1960 SC 88; Naseer Ahmed and another v. Asghar Ali 1992 SCMR 2300; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others 2008 SCMR 1702; Syed Muhammad Hussain Shah v. Abdul Qayyum and others 2011 SCMR 743; Mrs. Zohra Begum v. Pakistan Burmah Shell 1988 SCMR 756; Ikram Bus Service and others v. Board of Revenue, West Pakistan PLD 1963 SC 564; Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Pakistan through Ministry of Finance, Economic Affairs and others v. Fecto Belarus Tractors Limited PLD 2002 SC 208; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404 rel.

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

----Art. 114---Estoppel against statute---Scope---No estoppel against a statute.

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

----S. 21---Locus poenitentiae---Principle---Once an order has taken effect and in pursuance thereof certain rights have been created in favour of a person, then such order cannot be withdrawn or rescinded to the detriment of rights created---Principle of locus poenitentiae can only be invoked in respect of order which is legal and not in any respect an order which is contrary to and in contravention of any provision of law or rules made thereunder---Principle of locus poenitentiae is applicable only in respect of order passed by Authority which was competent and in accordance with law.

Muhammad Nadeem Arif and others v Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408; Executive District Officer (Edu). Rawalpindi v Mst. Rizwana Kausar and 4 others 2011 SCMR 1581; Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

Raja Saif-ur-Rehman for Petitioner.

Adnan Saboor Rahila for Petitioner (in W.P. No.2156 of 2014).

Malik Qamar Afzal for Respondent No.4.

Malik Faisal Rafiq, Dy.A.-G.

Date of hearing: 16th December, 2014.

2015 C L C 734

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

C.D.A. and others----Appellants

versus

R.M. GULISTAN ENGINEERS AND CONTRACTORS (PVT.) LTD.----Respondent

Intra-Court Appeal No.1 of 2013, heard on 22nd January, 2015

(a) Capital Development Authority (Abatement of Arbitration Proceedings) Act (XXVII of 1975)---

----S. 3---Arbitration Act (X of 1940), Ss. 8 & 20---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Abatement of proceedings before arbitrator---Scope---Sole arbitrator was appointed with the consent of both the parties---Capital Development Authority (Abatement of Arbitration Proceedings) Act, 1975 was applicable to the contracts/arbitration proceedings entered into by Capital Development Authority prior to the passing of the Act---Abatement of proceedings before arbitrators under S. 3 of Capital Development Authority (Abatement of Arbitration Proceedings) Act, 1975 would pertain to the contracts and proceedings entered into prior to the passing of the Act---Such prohibition or abatement was with regard to the contracts entered in the past and not for future contracts or arbitration proceedings---Capital Development Authority (Abatement of Arbitration Proceedings) Act, 1975 had no applicability to the agreements executed after the passing of the Act---Intra-court appeal was dismissed in circumstances.

Asif Saigol etc. v. F.O.P. PLD 2002 Lah. 416; Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 and Capital Development Authority and others v. Muhammad Ahsan 2009 MLD 451 rel.

(b) Interpretation of statutes---

----Preamble of a statute---Scope---Preamble of an Act could not be considered as part of statute, however, same would be an important instrument for interpretation of the statute.

House of Lords in Att.-Gen. v. H.R.H. Prince Ernest Augustus of Hanover 1957 A.C. 436 rel.

Raja Adnan Aslam for Appellant.

Ch. Mushtaq Ahmed Khan for Respondent.

Date of hearing: 22nd January, 2015.

2015 C L C 779

[Islamabad]

Before Shaukat Aziz Siddiqui, J

SILVER OAKS SCHOOL through Special Attorney----Petitioner

versus

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

Writ Petition No.2372 of 2012, decided on 28th January, 2015.

Islamabad Land Disposal Regulations, 2005---

----Rgln. 7(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Cancellation of allotment---Establishment of educational institution---Grievance of petitioner was that Capital Development Authority allotted plot in question for establishing educational institution but subsequently when petitioner had started construction the allotment was cancelled---Validity---Capital Development Authority Board approved 30% quota for educational institutions from outside Islamabad and remaining 70% for schools running in the Capital Territory---No other document was available with the Authority to establish that the Board had not approved policy to allot 30% of plots to educational institutions not established in Islamabad---When Capital Development Authority itself received application of petitioner, scrutinized it, entertained it and approved it by allotting plot in question to petitioner to establish school, received huge amounts from petitioner, put petitioner in possession of disputed plot, issued possession certificate to petitioner and approved its building plan, then the Authority could not assert that some other policy was formulated---High Court declared the order of cancelling allotment and return of pay orders to petitioner to be null and void and set aside cancellation order---Petition was allowed in circumstances.

Babar Sattar for Petitioner.

Muhammad Nazir Jawad for Respondents.

Date of hearing: 21st May, 2014.

2015 C L C 973

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

Mst. ASHRAM BIBI----Appellant

versus

MUSA KHAN and others----Respondents

Regular First Appeal No.3 of 1987, heard on 11th March, 2015.

Benami Transaction---

----Essential ingredients---Essential considerations for deciding question as to whether a transaction was in the nature of a benami transaction---Scope---Any person claiming a benami transaction had to prove four elements which were; firstly, the source of income, secondly from whose custody the original title deed and other documents came in evidence, thirdly, that who was in possession of the suit property; and fourthly the motive behind the alleged benami transaction---Party who raised plea of benami transaction was duty bound to prove such plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness and the court was not required to decide such plea on basis of suspicions, however strong such suspicions may be---Court was to examine as to who had supplied the funds for a property in dispute and if it was proved that purchase money was from some person other than the person in whose favour the sale was made, then such circumstance, prima facie, would be strong evidence of the benami nature of a transaction---Character of a transaction was to be ascertained by determining the intentions of the parties at the relevant time which were to be gathered from all surrounding circumstances, that were; the relationship of the parties, the motive underlying the transaction and any other subsequent conduct---Possession of property and custody of the title deed was also an essential consideration---Transaction could not be termed benami simply for the reason that one person happened to make payment for or on behalf of another---Challenge to a transaction was not bona fide when a husband and wife were amicably living, and the transaction was accepted as valid, but subsequently when the relationship strained, title was claimed exclusively by one party.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Abdul Majeed v. Amir Muhammad 2005 SCMR 577; Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 and Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 rel.

Hafiz Ali Asghar and Safeer Khadim for Appellant.

Kashif Malik for Respondents.

Date of hearing: 11th March, 2015.

2015 C L C 990

[Islamabad]

Before Muhammad Anwar Khan Kasi, CJ

SARDAR MUHAMMAD JAHANGIR----Petitioner

versus

JUDGE FAMILY COURT and 2 others----Respondents

Writ Petition No.3049 of 2014, decided on 3rd February, 2015.

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

----S. 5, Sched. & S.7(3)(2)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Additional evidence, production of---Expression "parties"---Scope---Defendant-husband filed an application for submission of additional documents before the Family Court which was dismissed---Validity---Family Court had not recorded observation with regard to relevance of proposed additional evidence upon the matter in controversy---Additional evidence not given in the list along with written statement could be allowed to be taken by the Family Court---Evidence at a belated stage could be taken---Section 7(2) of West Pakistan Family Courts Act, 1964 could not be confined to plaints only---Both plaintiff and defendant could be allowed to produce evidence beyond the list appended with the pleadings---Impugned order was not a valid decision which was set aside and matter was remanded to the Family Court to decide application afresh---Constitutional petition was accepted in circumstances.

Malik Furkan Ahmad v. Judge Family Court Lahore 2003 MLD 1641; Haibat Nawaz Khan v. Mst. Najma Bibi alias Najma Parveen and others 2006 CLC 554; Mst. Bakht-e-Rawaida v. Ghulam Habib and others PLD 1992 Kar. 46; Khalid Akhtar v. Mst. Robina and others 1991 MLD 2349; Lt. Col. Mohsin Shah v. Mst. Qaseema Wahid and others 1995 MLD 1032; Malik Irfan Ahmed Gheba v. Zubi Irfan and others 2004 MLD 635; Pakistan Defence Officers Housing Authority, Karachi v. Shamim Khan and others PLD 2005 SC 792 and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778 ref.

Mst. Yasmin v. Ghulam Hussain 2000 YLR 1905 rel.

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

----S. 7(2)---Expression "parties"---Scope---Section 7(2) of West Pakistan Family Courts Act, 1964 would apply equally to the plaintiff and defendant.

(c) Constitution of Pakistan---

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.--- Constitutional jurisdiction--- Scope--- Family suit---Interlocutory order---Interlocutory order could be examined in constitutional jurisdiction where no alternate remedy was available.

(d) Constitution of Pakistan---

----Art. 199---Writ of certiorari, issuance of---Scope---High Court could issue writ of certiorari in all cases of jurisdictional error or illegality.

Ms. Robina Shah, Advocate Supreme Court for Petitioner.

Ms. Jamila J. Aslam, Advocate Supreme Court for Respondents.

2015 C L C 1066

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION (PIDC) and another----Appellants

versus

M. IQBAL, Sole Proprietor of Messrs PEMSECO and 3 others----Respondents

Regular First Appeal No.148 of 2001, decided on 28th January, 2015.

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

----O. II, R. 2 & S.11---Suit to include the whole claim---Res judicata, principle of---Applicability---Suit for permanent injunction and damages---Contention of defendant was that the plaintiff had earlier filed a suit containing the same prayer, therefore the same was liable to be dismissed under provisions of O.II, R.2, C.P.C.---Held, that suit was filed primarily for return of guarantees/securities tendered by the plaintiffs and the fact that the plaintiff had earlier filed a suit for damages and injunction, containing in essence the same prayer against the defendant; therefore bar provided under O.II, R.2, C.P.C. was applicable---Where O.II, R.2, C.P.C. was attracted, the suit of the plaintiff was to be dismissed on such score alone---Suit was rightly dismissed by Trial Court while applying O.II, R.2, C.P.C.---Appeal was dismissed, in circumstances.

2011 SCMR 222; 2014 YLR 1620; 2014 YLR 2016 and 2014 MLD 1417 rel.

(b) Administration of Justice---

----No one had a vested right in procedure, and procedural law operated retrospectively meaning thereby that all pending suits which came within jurisdiction of any subsequent forum created under the same subject law needed to be transferred to such Court/ Tribunal.

PLD 1996 SC 187; 2006 PTD 330 and 2011 SCMR 1254 rel.

Barrister Afan Khan for Appellants.

Abdur Rashid Awan for Respondents.

2015 C L C 1273

[Islamabad]

Before Athar Minallah, J

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others----Appellants

versus

Messrs AALME ENGINEERS (PVT.) LTD.----Respondent

R.S.As.Nos.3 and 7 to 9 of 2008, decided on 5th May, 2015.

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

----O. VII, R.2 & Ss.34. 100 & 101---Suit for recovery of money---Interest on delayed payment---Scope---Second appeal challenging concurrent findings--- Maintainability--- Scope--- Plaintiff accepted tenders invited by defendants and carried out work under the same, but payments made by the defendants were not as claimed by plaintiff---Plaintiff filed suit for recovery which the trial court decreed as prayed for---Appellate court upheld judgment and decree of trial court except setting aside the same regarding award of annual interest---Contention raised by plaintiff was that appellate court had misinterpreted the law by setting aside the award of fifteen per cent per annum as interest for delayed payment---Validity---Appellate court assumed that since the interest was not provided in agreement between the parties, the same could not be allowed, and excluded the provision of S.34, C.P.C. from consideration---Plaintiffs having established their case, were entitled to their determined claims along with interest---Delay in payment of determined claims attracted provisions of S.34, C.P.C.---Plaintiff was entitled to interest for period of delay in payment of its claims---Defendants would be liable to pay the decreed claims with interest from date of filing of suit to date of satisfaction of the decree according to notified bank rate---Present appeal had no merit within the parameters provided under S.100 read with S.101, C.P.C., so as to require interference with concurrent findings of courts below---Concurrent findings of courts below on question of fact were not found to suffer from any legal infirmity, and the same were well-reasoned and appreciated evidence---High Court accepted plaintiffs' objections to the extent of award of interest and dismissed appeal.

Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Muhammad Amir through L.Rs. v. Muhammad Sher and others 2006 SCMR 185 and Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 rel.

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

----S. 100--- Second appeal--- Concurrent findings--- Concurrent findings, howsoever erroneous would not be interfered with under S.100, C.P.C., unless lower courts have misread the evidence on record, or ignored material piece of evidence through perverse appreciation of evidence.

Amjad Sharif Qazi and others v. Salimullah Faridi PLD 2006 SC 777 rel.

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

----S. 100---Second appeal---Scope---Reappraisal of evidence on record by appellate court was not permissible under S.100, C.P.C.

Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 rel.

(d) Administration of justice---

----State as a litigant---State could not be extended any preferential treatment, as it stood on the same footing as any other litigant.

Hasnain Ibrahim Kazmi, Dy. Attorney-General for Appellant.

Raja Abdul Qayyum and Daniyal Ijaz Chadhar for Respondents.

Date of hearing: 8th April, 2015.

2015 C L C 1290

[Islamabad]

Before Athar Minallah, J

AKRAM RASHID----Petitioner

versus

HAMID ALI KHAN----Respondent

C.R.No.80 of 2010, decided on 5th May, 2015.

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

----Ss. 42 & 54---Limitation Act (IX of 1908), Arts.164 & 181---Civil Procedure Code (V of 1908), O.IX, R.13---Suit for declaration, permanent injunction and damages---Ex parte decree, setting aside of---Limitation---Ex parte decree was passed by Trial Court on 15-1-2008, against defendant, whereas application to set aside the decree was filed on 30-5-2008---Trial Court as well as Lower Appellate Court declined to set aside ex parte decree---Validity---Once defendant had participated in proceedings and then absented himself, provisions of Art.164 of Limitation Act, 1908, were attracted, which provided a period of thirty days---In case of delay, defendant was required to explain and give reasons for each day beyond prescribed time of limitation---Application for condoning the delay was neither filed, nor was reason for delay sufficient or satisfactory---High Court declined to interfere in concurrent findings of fact by two Courts below---Revision was dismissed in circumstances.

Atta ur Rehman Baig and others v. Barey Khan PLD 1998 Pesh. 43; Abrar Hussain and others v. Saeeda Fatima and others 2013 MLD 476; Abdul Hameed v. Muhammad Giyas Sajid 2012 MLD 1736; Fazal Ahmed and others v. Naeem Akhtar and others 1992 MLD 251; Khursheed Alam v. Ghulam Nabi and others 2013 YLR 777 and Habibullah v. Mehar and others 2014 YLR 128 ref.

Secretary Education Department and others v. Asfandiar Khan 2008 SCMR 287; Iftikhar Ahmad v. Mst. Jehan Ara and 3 others 2007 SCMR 449; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Honda Atlas Cars, Pakistan Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609; Muhammad Saleem and others v. Mukhtar Ahmad 1996 SCMR 596; Alam Ali Syed v. United Bank Limited, Lahore 1995 SCMR 936 and Dr. Muhammad Shahid Mian and another v. Faiz ur Rehman Faizi PLD 2011 SC 676 rel.

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

----S. 3---Limitation---Object and scope---Delay defeats equity and equity leans in favour of vigilant litigant---Law of limitation is not considered a mere formality and is required to be observed as being of mandatory nature---Such principle rest on the foundation that lapse of time creates rights in favour of other party and, therefore, burdening the party which fails to act within the stipulated time, to demonstrate sufficient and satisfactory cause/reason for delay regarding each day---Any person may have an enforceable right but if he fails to enforce such right within time stipulated by law, then such right becomes unenforceable.

State Bank of Pakistan through Governor v. Imtiaz Ali Khan 2012 SCMR 280; Ghulam Sarwar v. Amir Hussain 2004 SCMR 944; Lahore Development Authority v. Mst. Sharifan Bibi PLD 2010 SC 705 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 rel.

M. Kowkab Iqbal for Petitioner.

Mardan Ali Jurral for Respondent.

Date of hearing: 27th February, 2015.

2015 C L C 1366

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

SHAHIDA SULTAN----Appellant

versus

Hafiz MUHAMMAD ILYAS and others----Respondents

Regular First Appeal No.65 of 2004 and Civil Revision No.544 of 2005, decided on 23rd April, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Registration Act (XVI of 1908) Ss.17 & 49---Suit for declaration and injunction---Gift, proof of---Principles---Gift deed, registration of---Scope---Non-production of marginal witnesses of gift deed---Effect---Oral gift under Islamic Law---Essentials---Gift of house occupied by tenant---Donor, had filed another suit for recovery of possession of suit property against tenant---Both suits were consolidated---Plaintiff produced witnesses, gift deed, certificate of stamp vendor, allotment letter by Development Authority and Lease Agreement in support of her claim---Defendants produced Bank statement, summon analysis report, transfer letter, general power of attorney, receipts of rent, death certificate of donor---Trial court decreed both suits by declaring plaintiff to be owner and possession was ordered to be given to plaintiff---Appeals against were also dismissed---Defendants filed regular first appeal on grounds that while filing suit for possession donor alleged his ownership; rent was received by donor till his death; witnesses produced by plaintiff were related to her and that gift deed was required to be registered and same could not be regarded as valid, if it had not been registered---Plaintiff claimed that there was a valid gift in her favour and document was not a gift deed but a memorandum of gift, that would not require registration---Plaintiff further averred that witnesses produced by her categorically deposed about the fact of gift made and possession transferred---Plaintiff also submitted that under Islamic law when two witnesses had deposed about transaction of gift it was a valid gift---Validity---Under Islamic law oral gift is permissible and has three elements to it namely declaration of gift by donor, acceptance of gift by donee and transfer of possession---Oral gift was not required to be registered under law---Gift deed relied upon by plaintiff as a document witnessing transfer of property was of no value as it was required to be registered and consequence of its non-registration was that it had no legal effect---Marginal witnesses of gift deed had not entered in witness box in order to prove document, therefore, the gift deed had no evidentiary value and could not be relied upon even if it was to be taken as memorandum of gift and not a gift deed---Beneficiary of transaction was obliged to prove the same---Burden of proof where an oral gift was alleged was heavy and required cogent evidence to establish that same was made by donor in favour of donee---Satisfactory evidence had to be brought on record to prove transfer of physical or constructive possession and gift transaction would be a nullity when evidence showed that no gift was made---One witness deposed about receipt of rent by plaintiff but other witness was silent about transfer of possession---All persons alleged to have been present at time of gift were not produced as witness---Subsequent dealing of suit property by donor cast doubt about factum of gift as two lease agreements had been executed by donor subsequent to alleged gift---No intimation was made to the Authority to mutate or transfer suit property in favour of plaintiff as it was mentioned in agreement between donor and the Development Authority that property could only be transferred by way of gift with previous consent of the Authority---Where subject matter of a gift was a house in occupation of tenant it could not be subject matter of a gift unless tenant had agreed to pay rent to donee---Appeal was allowed in circumstances.

Amjad Ikram v. Asiya Kausar 2015 SCMR 1; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Liaqat Ali v. Province of Punjab and others 2005 YLR 2529; Syed Ali Abbas v. Province of Punjab 2005 YLR 1342; Noor Muhammad and others v. Azmat-e-Bibi 2012 SCMR 1373 and Rab Nawaz v. Ghulam Rasool 2014 SCMR 1181 rel.

Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 distinguished.

Mohsin Akhtar Kiyani for Appellant.

Sher Afzal Khan and Zulfiqar Ali Abbasi for Respondents.

Date of hearing:26th February, 2015.

2015 C L C 1383

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Dr. ARIF HAYAT----Petitioner

versus

SHER MUHAMMAD and 8 others----Respondents

Civil Revision No.349 of 2014, decided on 2nd April, 2015.

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

----S. 17---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), S.151---Suit for specific performance of agreement to sell---Petition for ejectment of tenant---Consolidation of eviction petition and civil suit---Application for consolidation of civil suit with eviction petition was dismissed---Validity---Apprehension of conflict findings existed in the cases pending between the parties on similar issues---Matters were at preliminary stage and same could be decided together by consolidation---No bar had been provided in relevant laws to proceed an eviction application by adopting procedure laid down under Civil Procedure Code, 1908---Civil court might not act as Rent Controller while proceeding with such a case---Trial in the eviction application was a sort of inquiry affording the parties an opportunity of hearing---Other procedure laid down in Islamabad Rent Restriction Ordinance, 2001 was summoning and enforcing the attendance of the witnesses and examining them on oath---Compelling the discovery and production of documents and other material evidence or issuing a commission for the examination of witnesses were powers already exercised by the civil court---If any other power was exercised while deciding eviction application for which no bar was provided by law then it would not make Islamabad Rent Restriction Ordinance, 2001 redundant---Scope of such law was not deemed to be inadequate if civil suit was tried together with the eviction application---Impugned order passed by the Trial Court was not tenable under the law which was set aside---Application for consolidation of cases was accepted---Trial Court was directed to proceed with all the cases after consolidation of cases and commence proceedings from the stage where the same were left---Revision was accepted in circumstances.

1995 MLD 265; PLD 2012 Lah. 490 and PLD 1999 SC 1101 distinguished.

(b) Administration of justice---

----Law had developed to root out the miseries and not to increase the same.

Zulfiqar Ali Abbasi for Petitioner.

Syed Aqeel Abbas Kazmi for Respondents Nos.1 to 8.

Sardar Mehtab Ahmed Khan for Respondent No.9.

2015 C L C 1400

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

NATIONAL HIGHWAY AUTHORITY through Chairman----Appellant

versus

Messrs HUSNAIN COTEX LIMITED through Director and another----Respondents

FAO No.14 of 2014, heard on 25th March, 2015.

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

----S. 5---Appeal---Condonation of delay---Sufficient cause---Scope---Court might condone delay if sufficient cause was shown for not filing appeal in time---Application for condonation of delay, in the present case, did not specify as to whether appellant was diligent in filing the case before Supreme Court and it was done so under a bona fide mistake---No direction had been issued by the Supreme Court to file appeal before High Court---No sufficient cause existed which prevented the appellant in filing appeal within time---Case for condonation of delay had not been made out in circumstances---Application for condonation of delay was dismissed with the result that appeal was dismissed being barred by limitation.

Haji Abdul Wahid v. Syed Siraj-ud-Din 1998 SCMR 2296; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and Ayub Ali Rana v. Dr. Carlite Pune PLD 2002 SC 630 ref.

Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Syed Sibtain Raza Naqvi v. Hydrocarbon Development 2012 SCMR 377; Masood Ahmed v. UBL 1992 SCMR 424; M/s Nida-e-Millat v. Commissioner Income Tax 2008 SCMR 284 and Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560 rel.

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

----S. 14---Exclusion of time of proceeding bona fide in court without jurisdiction---Scope---Section 14 of Limitation Act, 1908 was not applicable in case of appeal and was attracted in the case of suits.

Ahmed Ata-ur-Rehman for Petitioner.

Mian Muhammad Athar for Respondents.

Date of hearing: 25th March, 2015.

2015 C L C 1504

[Islamabad]

Before Muhammad Anwar Khan Kasi, CJ

OMV ENERGY----Plaintiff

versus

OCEAN PAKISTAN and others----Defendants

C.S.No.249 of 2011 and C.M. Nos. 410 of 2013 and 90 of 2014, decided on 30th June, 2015.

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

----S. 2(c)---Application for return of arbitration petition on ground of want of pecuniary jurisdiction of High Court---Jurisdiction of court is to be dealt with under S.2(c) of Arbitration Act, 1940, wherein court has been defined as "civil court" having jurisdiction to decide questions forming subject-matter of reference---Since value of dispute is admittedly above one hundred million rupees, High Court retains jurisdiction to adjudicate upon present application---Application for return of arbitration petition was dismissed in circumstance.

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

----O. VII, R. 11---Arbitration Act (X of 1940), S.20---Rejection of arbitration petition---Respondent filed application for rejection of arbitration petition under O.VII, R.11, C.P.C. on ground that petition was not maintainable as plaintiff had no locus standi to file the application---Respondent contended that S.20 of Arbitration Act, 1940 applied to only those persons who were parties to arbitration agreement and a difference amongst them had arisen, while such position was not present in the case; that plaintiff was wrongly assuming himself to be party, and that unless legal status of plaintiff was decided, arbitration petition could not be allowed to proceed under doctrine of privity---Plaintiff took plea that respondent had not agitated the said grounds in his reply to arbitration petition---Validity---Dispute as to legal status of petitioner, which was pending before another court, had not been decided yet, and the same could not be considered as adverse element to rights of petitioner---Scope of jurisdiction under O.VII, R.11, C.P.C. was limited to pleadings and documents annexed in therewith---Objection raised in the present application had not been taken in reply to main petition---Disputes beyond pleadings could not be employed to reject arbitration petition under O.VII, R.11, C.P.C., specifically where case was at final stage and disputed question of facts with regard to validity of arbitration agreement fell within jurisdiction of arbitrator---Application was dismissed in circumstances.

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

----O. VII, R. 11---Rejection of plaint---Scope of jurisdiction under O.VII, R.11, C.P.C. is limited to pleadings and documents annexed therewith.

M.A. Jalil v. Group Capt. (R) Salahuddin Khan 1983 CLC 1685; Lithusanian Airlines v. Bhoja Airlines 2004 CLC 544; Lahore Stock Exchange v. Fredriick White Group Pakistan Ltd. PLD 1990 SC 48; S.M. Sham Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Dost Muhammad v. Khair Muhammad PLD 2006 Lah. 727; Yasmeen Qureshi v. Tariq Qureshi PLD 2006 Lah. 311; Farooq Ahmad v. Privatization Commission 2006 CLD 1; Rashid Ahmad v. Federation of Pakistan 1998 SCMR 405; Hidayat Ullah Khan v. Yaqoob Khan Marwat 2006 YLR 2236 and Abdul Rehman v. Sher Zaman 2004 CLC 1340 rel.

Barrister Misbah-ul-Mustafa for Plaintiff.

Naeem Bukhari, ASC for Respondent No.1.

Jawad Hassan for Respondent No.2.

Date of hearing: 9th June, 2015.

2015 C L C 1568

[Islamabad]

Before Athar Minallah, J

Mian MUHAMMAD AJMAL----Petitioner

versus

Syed NAZAR HUSSAIN SHAH BUKHARI and others----Respondents

C.R. No.1192 of 2010, decided on 17th June, 2015.

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

----Ss. 47, 152 & 2(2)---Compromise decree---Execution petition---Objection application---Scope---Executing Court could not extend its jurisdiction to go behind the decree and question its correctness---Impugned decree was unambiguously an expression of the adjudication which had conclusively determined the rights of the parties in the suit---Objection petition had raised matters which were neither expressed in the decree nor could be construed as part thereof---Executing Court could neither modify nor take into consideration documents or the agreement which was not reflected or incorporated in the decree---Petitioner had not exercised his right to assail the decree by preferring an appeal---Both the Trial Court and Appellate Court had correctly appreciated the facts and law in the present case---Findings recorded by the courts below were in accordance with law and well reasoned---Revision was dismissed in circumstances.

Mst. Kishwar Naseem v. Hazara Hill Tract and others PLD 2005 Pesh. 136; Mahram Khan v. Fateh Khan and 3 others 2003 CLC 1434; Miss Kiran Arif Mian v. Miss Kinza Khalid and another PLD 2008 Islamabad 11; Habib Ullah v. The State 2005 MLD 558; Mst. Bashiran v. Muhammad Sharif and 9 others 1988 CLC 2236; Ali Rehman and others v. Haji Muhammad Suleman and others 1990 CLC 11; Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481; Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Mazhar ud Din Siddique and another v. M/s. Industrial Development Bank of Pakistan 2014 CLD 998; M/s Habib Bank Limited v. Banking Court No.11 and 2 others 2012 CLD 218; Mst. Yasmeen v. National Insurance Corporation and others 2004 CLC 979; Precision Engineering Ltd. and others v. The Grays Leasing Ltd. PLD 2000 Lah. 290; Asif Latif v. Additional District and Sessions Judge, Mian Channu and 2 others 2005 MLD 122; Azad Government of the State of Jammu and Kashmir through its Chief Secretary v. Brig. (Retd.) Muhammad Aslam Khan 1994 MLD 1825; Krishna Raj Trading Corporation v. Ram Saran Dass and Brothers AIR 1962 All. 374; Robert Hercules Skinner v. R.M. Skinner and others AIR 1937 Lah. 537 and Bhaskar Dattatraya Subnis v. Nilkanthdattatraya Subnis AIR 1938 Nagpur 265 ref.

Mst. Naseem Akhtar and another v. Shalimar General Insurance, Company Limited and 2 others 1994 SCMR 22; Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265; Mst. Ashraf Bibi v. Barkat Ali PLD 1956 Lah. 27; Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another 1972 SCMR 237; Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR 22; Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh Revenue Department Sindh Secretariat and others PLD 2001 SC 131; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Rehmat Wazir and others v. Sher Afzal and others 2005 SCMR 668 and Muhammad Ali v. Zakir Hussain PLD 2005 Lah. 331 rel.

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

----S. 2(2)---"Decree"---Meaning---Decree was an expression of conclusively determining the matters placed before the trial court for adjudication.

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

----S. 115---Revision---Scope---Section 115, C.P.C. would apply only to the cases in which no appeal would lie.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Umar Dad Khan and another v. Tila Muhammad and 14 others PLD 1970 SC 288; Mai Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443; Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Suleman v. Mst. Zeenat Jan and 2 others PLD 2003 SC 362; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Asmatullah v. Amanat Ullah through Legal Representative PLD 2008 SC 155; Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Administrator, Thal Development through EACO Bhakhar and others v. Ali Muhammad 2012 SCMR 730; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 and Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif PLD 2015 SC 137 rel.

Mehboob Alam for Petitioner.

Raja Abdul Qayyum and Imran Hassan for Respondents.

Date of hearing: 13th March, 2015.

2015 C L C 1600

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Raja GHULAM FARID----Petitioner

versus

CHIEF COMMISSIONER, ISLAMABAD and 7 others----Respondents

W.P. No.2567 of 2014, heard on 17th September, 2015.

Land Acquisition Act (I of 1894)---

----S. 6---Specific Relief Act(I of 1877), Ss.42 & 52---Constitution of Pakistan, Arts.23 & 24---Constitutional petition---Acquisition of land of family graveyard---Permissibility---Fundamental Rights---Violation---Public welfare, consideration of---Petitioner contended that he had century old family graveyard on the subject land, which authorities were acquiring in violation of Fundamental Rights---Petitioner had also filed suit for declaration and permanent injunction against authorities to refrain them from demolishing or changing nature of said graveyard---Authorities took plea that they were ready to shift said graves to another land in accordance with all religious requirements---Validity---Good of public at large was more important---High Court observed that Fundamental Rights conferred on all persons and every religious denomination under Constitution were not absolute, and exercise of same must yield to maintenance of public order---Shifting of graves to another place was in large interest of society for purpose of maintaining public order--- Constitutional petition was not maintainable---Authorities were directed to abide by their undertaking as to shifting of graves to another place and also to provide land for the graves measuring equal to area of acquired land---Constitutional petition was dismissed in circumstances.

Chowdhury Tanbir Ahmad Siddiky v. The Province of East Pakistan and others PLD 1968 SC 185; Raja Ali Shan v. Messrs Essem Hotel Ltd. and others 2007 SCMR 741 and Muhammad Naeem and 2 others v. Land Acquisition Collector, Board of Revenue Punjab, Lahore and 5 others 2010 CLC 7 rel.

Raja Muhammad Shakeel for Petitioner.

Shahid Mehmood Abbasi, A.A.-G. (Punjab).

Kashif Ali Malik for Respondent R.D.A.

Raja Adnan Aslam, Hafiz Hifz-ur-Rehman Syed, Atta Ullah Hakim Kundi Legal Advisors, C.D.A.

Waseem Ahmed Khan Member (P&D) CDA.

Shahid Sohail Member (Eng.) C.D.A.

Ijaz Ahmed Director (Urban Properties) C.D.A.

Dates of hearing: 16th and 17th September, 2014.

2015 C L C 1667

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

IQBAL MUHAMMAD KHAN----Appellant

versus

ABDUL AZIZ----Respondent

R.F.As. Nos.67, 68, 148 and C.M. 373 of 2003, decided on 4th June, 2015.

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

----Ss. 12 & 52---Qanun-e-Shahadat (10 of 1984), Art.79---Specific performance of agreement under loan agreement---Principles---Plaintiff filed suit for specific performance and permanent injunction on basis of loan agreement claiming that under said agreement plaintiff was entitled to have suit property transferred in his name as defendant had failed to repay loan---Suit was dismissed by trial court holding the agreement not specifically enforceable as defendant was only liable to return amount which he had borrowed from plaintiff---Validity---As decided by trial court, agreement between parties could be treated as a loan agreement whereby defendant had obtained a sum from plaintiff, which he had to return double the amount in case of failure to return the amount within due date---Execution of agreement was not denied by parties and the same had also been proved in terms of Art.79 of Qanun-e-Shahadat, 1984---Appeal was dismissed, in circumstance.

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

----S. 8---Right to mesne profits---Principles---Plaintiff filed suit for possession claiming that defendant being his tenant in part of suit property had illegally occupied the remaining part thereof after the same was vacated by other tenant and he was entitled to mesne profits double the amount of rent along with possession of suit property---Trial court decreed the suit but without awarding any mesne profit---Validity---Defendant was liable to pay mesne profits at double the amount of rent for period he had continued to occupy suit property willfully and contumaciously after lawful determination of his tenancy---Defendant was entitled to mesne profit at rate of double the amount of rent from date of expiry of lease till delivery of physical possession of suit property---Impugned judgment and decree was modified---Appeal was accepted in circumstances.

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

----S. 41---Transfer by ostensible owner---Benami transaction---Burden of proof---Plaintiff who had alleged benami, was under burden to prove the same.

Muhammad Iqbal v. Muhammad Zubair and 2 others 2012 YLR 2246; Dawood Hercules Chemicals Limited v. Water and Power Development Authority 1991 CLC Note 269; Malik Naveed Ahmed v. Mrs Nasren Hameed 2005 SCMR 357 and Rahim Dad and 3 others v. Abdul Karim and 3 others 1992 MLD 2111 rel.

Muhammad Ilyas Sheikh and Abdul Rashid Awan for Appellants (in their respective appeals).

Mian Abdul Razzaq, Abdul Rashid Awan and Muhammad Ilyas Sheikh for Respondents (in their respective appeals).

Date of hearing: 9th April, 2015.

2015 C L C 1747

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD IMRAN HAFEEZ----Petitioner

versus

NAVEED ALI----Respondent

Civil Revision No.130 of 2015, decided on 15th May, 2015.

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

----O. XXXVII, Rr. 2 & 3---Institution of summary suit for recovery on the basis of negotiable instruments---Application for leave to defend, filing of---Requirement---Defendant had to obtain leave to defend by making an application supported by an affidavit in such a suit---Application for leave to defend filed by the defendant was incompetent as no affidavit was filed with the same---Filing of an affidavit could not be regarded as a mere technicality---High Court could intervene with regard to the orders passed by the courts below where material irregularity had been committed in exercise of jurisdiction---Trial Court, in granting conditional leave to defend to the defendant, had exercised its jurisdiction with material irregularity as application filed by him was not maintainable---Impugned order passed by the Trial Court was set aside and application for leave to defend was dismissed---Trial Court was directed to proceed further with the suit in accordance with law---Revision was accepted in circumstances.

Malik Zafar Iqbal v. M/s APCO through Managing Partner APCO 1998 CLC 1133 and Raja Zahid Hussain v. Director-General National Housing Authority 2005 YLR 1521 ref.

Mirza Irfan v. Muhammad Yaqoob 2011 MLD 1024 and Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could intervene with regard to the orders passed by the courts below where material irregularity had been committed in exercise of jurisdiction.

Mian Tahir Iqbal for Petitioner.

Abdul Ghafoor Qamar for Respondent.

Date of decision: 15th May, 2015.

2015 C L C 1797

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

FEDERATION OF PAKISTAN and another----Appellants

Versus

SAEED AHMED KHAN and others----Respondents

Intra-Court Appeal No.156 of 2015, decided on 13th April, 2015.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3---General Clauses Act (X of 1897), S.24-A---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Chairman Oil and Gas Regulatory Authority----Forced leave---Federal Government, jurisdiction of---Federal Government issued a notification sending Chairman OGRA, on forced leave---Single Judge of High Court, in exercise of constitutional jurisdiction, set aside the notification, declaring same to be without lawful authority---Validity---If Federal Government wished to send the Chairman on forced leave or suspend the incumbent, the same procedure was to be adopted i.e. application to such effect had to be moved to Federal Public Service Commission and only on its recommendation Federal Government could exercise the power---Order of suspension of forced leave was interim in nature, therefore, there was no requirement for any inquiry to be held in such behalf---Federal Public Service Commission while recommending suspension or declining the same had to give reasons for its opinion as provided in S.24-A of General Clauses Act, 1897---Oil and Gas Regulatory Authority was an independent body and was a regulator, therefore, sanctity of its independence had to be kept in view---No provision existed for appointing any person on acting or current charge basis except as provided in S.3(13) of Oil and Gas Regulatory Authority Ordinance, 2002---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Bhup Narayan Jha v. State of Bihar and others (1985 ILLJ 49 Patna) and Prof. Ram Avtar Yadav v. Union of India and another (W.P.(C) No.2075/2010; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 and Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others PLD 2007 SC 578 ref.

Afnan Karim Kundi, Additional Attorney-General and Jehangir Khan Jadoon Standing Counsel for Appellants.

Babar Sattar and M. Nazir Malik, Director (Law) M/o P&NR for Respondents.

Date of hearing: 13th April, 2015.

2015 C L C 1

[Sindh]

Before Munib Akhtar, J

PAK TURK ENTERPRISES (PVT.) LTD.----Applicant

Versus

TURK HAVA YOLLARI (TURKISH AIRLINES INC.)----Respondent

C.M.A. No.13528 of 2012 in Suit No.1599 of 2012, decided on 11th June, 2013.

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

----O. VII, R. 11 & O. XXIX, R. 1---Sindh Chief Court Rules (O.S.), R.196---Suit by company through its officer---Non-filing with plaint the resolution of plaintiff company's Board of Directors authorizing such officer to institute suit---Defendant's application under O.VII, R.11, C.P.C. seeking rejection of plaint for suit not having been filed through a duly authorized person---Validity---Plaint found mention that suit had been filed by duly authorised person being conversant with facts of case---Every fact stated in plaint would be taken as true and correct for consideration of plaint---Rule of "indoor management" would apply to the present case, wherein defendant was a third party---Memorandum and Articles of Association of plaintiff Company would require examination, whereas production of Board's resolution would not be essential, which might be produced by way of abundant caution---Defendant's objection was not based on non-production of Articles of Association, which being a public document might be produced at any time for examination and consideration by court---Plaintiff could not be penalized for non-production of Board's resolution along with plaint---Plaint could not be rejected on basis of such objection of defendant for having factual element and also while assuming averments made in plaint to be true and correct---High Court dismissed such application in circumstances.

Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685; Ifthikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550; National Insurance Corporation and others v. Pakistan National Shipping Corporation and others 2006 CLD 85; Dumez Borie v. International Forwarders Ltd. NLR 1983 UC 184; Abdul Rahim and others v. United Bank Ltd. PLD 1997 Kar. 62; Standard Hotels (Pvt.) Ltd. v. Rio Centre and others 1994 CLC 2413; Dr. S.M. Rab v. National Refinery Ltd. and another PLD 2005 Kar. 478; Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381; National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260; Taurus Securities Ltd. v. Arif Saigol and others 2002 CLD 1665; Gulf Air v. Shakil Air Express (Pvt.) Ltd. PLD 2003 Kar. 156; Investment Corporation of Pakistan v. Ajax Industries 2004 CLD 1733; Razo (Pvt.) Ltd. v. Director, Karachi Region Employees Old Age Benefit Institution 2005 CLD 1208 and Central Bank of India Ltd. v. Taj ud Din Abdur Rauf and others 1992 SCMR 846 ref.

Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 rel.

Habib Bank Ltd. v. Zelins Ltd. and another 2000 SCMR 472 distinguished.

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

----O. VII, R. 11---Rejection of plaint---Material essential to be considered by court---Scope---Every fact stated in plaint would be taken as true and correct while considering plaint.

(c) Constitution of Pakistan---

----Art. 201---Judgment of Division Bench of High Court, binding effect of---Scope---Normally not only a Single Bench, but even Division Bench would be bound by a judgment of an earlier Division Bench of same High Court---Judgment of Division Bench, if "manifestly inconsistent" with previous decision of Supreme Court on account of having misunderstood or misapplied same, would not be binding on Single Bench of High Court, which would be bound by such judgment of Supreme Court in circumstances---Principles.

Young v. Bristol Aeroplane Co. Ltd. [1944] 2 All ER 293; Holden v. Crown Prosecution Service [1990] 1 All ER 368; Sinclair Jones v. Kay [1988] 2 All ER 611; Myers v. Elman [1939] 4 All ER 484 and Rickards v. Rickards [1989] 3 All ER 193 rel.

M. Farogh Naseem and Jamshed Malik for Applicant.

Khalid Latif and Saif Malik along with Arshad Warsi for Respondent.

Dates of hearing: 11th, 25th March, 13th and 27th May, 2013.

2015 C L C 54

[Sindh]

Before Shahnawaz Tariq, J

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

Versus

MUHAMMAD ALAM and 3 others----Respondents

C.M.A. No.303 of 2013 and C.M.A. No.3226 of 2014 in Civil Revision Application No.216 of 2011, decided on 12th August, 2014.

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

----O. XLI, R. 27---Specific Relief Act (I of 1877), S.42---Suit for declaration---Production of additional evidence in Appellate Court---Scope---Suit was dismissed against which an appeal was filed wherein an application for additional evidence was moved---Appellate Court decided the appeal without disposing of said application---Validity---No application for additional evidence having been moved before the Trial Court, same would not debar the filing of the said application before the Appellate Court if proposed additional evidence was indispensable to determine the rights of the parties---Factum of any delay in such regard would not impose embargo upon application for invoking jurisdiction of court to meet the ends of justice---Application for permission to adduce additional evidence was filed but same was neither decided prior to passing of impugned judgment by the Appellate Court nor it was touched in the said judgment---Pendency of application for additional evidence was fatal to the findings of Appellate Court---Appellate Court while deciding an appeal had committed illegality as application for additional evidence remained undecided---Impugned judgment was set aside and case was transmitted back to the Appellate Court for decision afresh after providing opportunity to the parties to argue application for production of additional evidence---Revision was accepted in circumstances.

Muhammad Azam v. Muhammad Abdullah through legal heirs 2009 SCMR 326; 2009 SCMR 221, 2000 CLC 1272 and 2010 CLC 112 ref.

Muhammad Azam v. Muhammad Abdullah through legal heirs 2009 SCMR 326; Mohabbat v. Asad Ullah Khan and others, PLD 1989 SC 112 and Ghulam Muhammad and another v. Muhammad Aslam and others, PLD 1993 SC 336 rel.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Object---Wisdom of provisions of O.XLI, R.27, C.P.C. was to provide an adequate opportunity to the parties to adduce additional evidence by producing necessary documents or witnesses which were either not available or could not be produced due to unavoidable circumstances but such production of documents or witnesses was necessary to decide the controversy to meet the ends of justice.

Muhammad Arshad Mughal for Applicants.

Nasir Rizwan Khan for Respondent No.1.

Date of hearing: 5th August, 2014.

2015 C L C 75

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MOHARAM----Petitioner

Versus

MUHAMMAD MOOSA and 4 others----Respondents

C.M.As. Nos.95 of 2013, 100, 75 and 47 of 2009 in Civil Revision No.60 of 1989, decided on 18th August, 2014.

Civil Procedure Code (V of 1908)---

----Ss. 151, 115 & O.XXXII---Specific Relief Act (I of 1877), S.42---Suit for declaration---Revision, restoration of---Limitation---Dismissal of revision due to non-existence of legal heirs---Scope---Revision was dismissed due to the statement of counsel of applicant that he had no legal heirs---Contention of applicants (legal heirs) was that they were minors at the time of passing of impugned order---Validity---Minor could institute proceedings through next friend acting on his behalf during his minority---Applicant was major at the time of passing of impugned order but he neither challenged nor enquired about the proceedings instituted by his uncle after his death---Applicants could not explain the delay of 8 years in filing the present application to recall the impugned order---Present application was time barred---No specific provision existed in Civil Procedure Code, 1908 for dismissal of revision for non-prosecution but court had inherent powers for the same---No illegality, perversity or lack of jurisdiction had been pointed out in the impugned order---Impugned order was passed with the consent of counsel for the applicant which had attained finality---Person could not claim the grant of land by the Government as a matter of right which could be granted only after a prescribed procedure---Dispute between the parties stood extinguished with the death of applicant as he at the time of his death was not holding any title over the land in question which could be contested or inherited by the present applicants making them eligible to file the present application---Present applicants (legal heirs) in their own independent capacity could approach the revenue authorities for grant of land---Application for recalling of order for dismissal of revision for non-prosecution was dismissed in circumstances.

Ajmal Khan v. Secretary to Government of Punjab Housing and Physical Planning Department and others 1986 PLC (C.S.) 423; M. Ikramul Haq v. Federation of Pakistan through Secretary, Establishment Division, Rawalpindi and another 1989 PLC (C.S.) 890; Umar Khan v. Nasim Raza and others 1990 MLD 1062, Muhammad Afzal and another v. Muhammad Amin and 6 others 1999 YLR 2593; Sabir Ali and others v. Ch. Shahbaz Khan 1986 MLD 865; Muhammad Shafiq and another v. Maqsood Ahmed and 2 others 2002 CLC 1372; Federation of Pakistan v. Metropolitan Steel Corporation 2002 PTD 87; Mst.Rabia Bibi and others v Ghulam Rasool and others 2004 SCMR 394; Tolomal and 6 others v. Deputy Commissioner and Additional Settlement Commissioner, Khairpur and 3 others PLD 1972 Kar. 116; Shahbaz Aslam v Zaman Khan and another 1998 CLC 393; Shamsun Nissa and another v. The Karachi Road Transport Corporation and others PLD 1975 Kar. 914; Atta Muhammad and another v. Mst.Elahi Khanum 2004 CLC 262; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Muhammad Sadiq v. Mst.Bashir and 9 others PLD 2000 SC 820; Amanullah Soomro v. P.I.A. through Managing Director/ Chairman and another 2011 SCMR 1341; Mrs. Rehmat Jehan v Government of Punjab through Chief Secretary and others 2011 SCMR 1344; Aquil Lotia v Daily Ausaf, Karachi through Chief Editor and another PLD 2007 Kar. 594; Mst.Hajran Bibi and others v. Abdul Ghani 2002 SCMR 1405; Abdul Hussain v. Tariq Casting Proprietorship and another 2010 YLR 2683; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560 ref.

Ajmal Khan v. Secretary to Government of Punjab Housing and Physical Planning Department and others 1986 PLC (C.S.) 423; M. Ikramul Haq v. Federation of Pakistan through Secretary, Establishment Division, Rawalpindi and another 1989 PLC (C.S.) 890; Umar Khan v. Nasim Raza and others 1990 MLD 1062, Muhammad Afzal and another v. Muhammad Amin and 6 others 1999 YLR 2593; Sabir Ali and others v. Ch. Shahbaz Khan 1986 MLD 865; Muhammad Shafiq and another v. Maqsood Ahmed and 2 others 2002 CLC 1372; Federation of Pakistan v. Metropolitan Steel Corporation 2002 PTD 87; Mst.Rabia Bibi and others v. Ghulam Rasool and others 2004 SCMR 394; Tolomal and 6 others v. Deputy Commissioner and Additional Settlement Commissioner, Khairpur and 3 others PLD 1972 Kar. 116; Shahbaz Aslam v. Zaman Khan and another 1998 CLC 393; Shamsun Nissa and another v. The Karachi Road Transport Corporation and others PLD 1975 Kar. 914; Atta Muhammad and another v. Mst.Elahi Khanum 2004 CLC 262; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 and Muhammad Sadiq v. Mst.Bashir and 9 others PLD 2000 SC 820 distinguished.

Kanaya Lal Nihal for Applicant.

Rashid Khan Durrain for Respondent No.1

2015 C L C 103

[Sindh]

Before Farooq Ali Channa, J

Messrs SYMPHONY (PVT.) LTD.----Petitioner

Versus

Haji FAZAL KARIM and others----Respondents

Constitutional Petition No.S-108 of 2006, decided on 12th March, 2013.

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

----S. 15---Ejectment petition---Scope---Fraud in sale transaction challenging legal status of registered sale deed, could not be resolved in rent proceedings which could only be probed in civil suit.

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

----S. 15---Ejectment petition---Relationship of landlord and tenant---Title of ownership was disputed by parties claiming each of them to be owner of demised premises---Rent Controller was to direct the parties to get their title cleared from civil court.

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

----S. 15---Ejectment petition---Landlord had acquired right of ownership in the property through sale-deed which was neither cancelled nor was out of field---Landlord could claim to have stepped into the shoes of previous owner---Landlord was entitled to recover rent from the tenant of the building which was subject-matter of the sale.

Qasim and another v. S. Rahim Shah 1990 SCMR 647 ref.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Concurrent findings---Scope---Concurrent findings of both the courts below did not suffer from any illegality or misreading of evidence---High Court refused to interfere and constitutional petition was dismissed.

Abdul Qadir Khan for Petitioner.

Khawaja Naveed Ahmed for Respondent No.1.

Date of hearing: 7th March, 2013.

2015 C L C 116

[Sindh]

Before Aftab Ahmad Gorar, J

FAZLUR REHMAN----Petitioner

Versus

Mst. SHAZIA BIBI and 2 others----Respondents

Constitutional Petition No.S-1124 of 2010, decided on 19th April, 2013.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors---Paramount consideration---Welfare of minor---Mother filed application for custody of minors---Application was accepted to the extent of minor girls concurrently---Validity---Paramount consideration regarding custody of minors was their welfare---None was the substitute of real mother for the minor children---Inability to maintain children was no ground for depriving mother of custody of her children---Father had alleged that mother possessed immoral character and had illicit relations with some one but had failed to state as to with whom mother had illicit relations---Female minors had not attained puberty whereas the male children had crossed the age of 7 years---Father, after divorcing the mother had contracted second marriage who was also divorced and thereafter he contracted third marriage---Step-mother could not be in a better position to maintain and take care of the minors like a real mother---Constitutional petition was dismissed.

1978 SCMR 299; 1980 CLC 1802 and 1989 SCMR 1277 rel.

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

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of facts given by two courts below could not be interfered with by High Court in exercise of its constitutional jurisdiction---Constitutional jurisdiction of High Court was discretionary meant to foster justice and to remedy the wrong.

Mst. Farhat Jabeen's case 2011 SCMR 1073 rel.

Janan Khan Khattak for Petitioner.

Munsif Jan for Respondent No.1.

Date of hearing: 2nd April, 2013.

2015 C L C 141

[Sindh]

Before Nadeem Akhtar, J

NAIMATULLAH KHAN through L.Rs.----Applicant

Versus

ASHFAQ AHMED and 9 others----Respondents

C.M.As. Nos.228 and 444 of 2010 in Civil Revision Application No.109 of 2008, decided on 21st March, 2013.

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

----S. 115(1), Second proviso---Limitation Act (IX of 1908), S.12(2)---Revision petition against judgment and decree passed by First Appellate Court---Limitation, computation of---Scope---Judgment in first appeal without decree would not be complete or executable---Word "decision" as used in second proviso to S.115(1), C.P.C. being combination of judgment and decree as any of them singly could not be treated as a decision---Limitation of 90 days provided for filing revision petition would start running and would be computed from date of impugned decree following judgment---Benefit of S.12(2) of Limitation Act, 1908 would be available to revision petition---While computing limitation for filing revision, time consumed in obtaining certified copies would be excludable under S.12(2) of Limitation Act, 1908, if application for such copies was made at the time when right to revision subsisted---Principles.

Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 542; Hafiz Ali Ahmed through legal heirs v. Muhammad Abad and others PLD 1999 Kar. 354; Muhammad Islam v. Amir Sher Bahadur, 2004 MLD 1029; Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546; Muhammad Mian v. Syed Shamimullah and 2 others 1995 SCMR 69; Haji Ibrar Hussain and another v. Abdur Rashid and 9 others 1990 MLD 1482 and Mst. Baggi v. Mst. Jan Begum and 7 others 1985 CLC 1573 ref.

Muhammad Siddique and others v. Muhammad Bux and others 2003 MLD 542; Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Province of Punjab through Collector Toba Tek Singh and others v. Muhammad Farooq and others 2012 SCMR 1942=PLD 2010 SC 582; and Mst. Banori v. Jilani through legal heirs and others PLD 2010 SC 1186 and Aswini Kumar Kodalia and another v. Hari Gopal Chakravarty PLD 1952 Dacca 398 rel.

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

----S. 115---Revision petition barred by limitation---Jurisdiction of High Court to entertain such petition---Scope---High Court in exercise of its inherent and supervisory jurisdiction could entertain such petition suo motu---Illustration.

Aswini Kumar Kodalia and another v. Hari Gopal Chakravarty PLD 1952 Dacca 398 rel.

Shamsuddin Memon for Applicant.

Muhammad Umer Daudi for Respondents Nos.1 to 10.

Respondent No.11: Called absent.

Muhammad Azeem Panhwar State Counsel for Respondents Nos.12 to 14.

Date of hearing: 11th March, 2013.

2015 C L C 153

[Sindh]

Before Amer Raza Naqvi, J

AMEL KHAN KASI----Petitioner

Versus

NOREEN KAUSAR and another----Respondents

Constitutional Petition No.880 of 2014, decided on 11th July, 2014.

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

----S. 10(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Khula---Reconciliation, failure of---Payment of dower---Determination---Trial Court passed preliminary decree and granted Khula to wife and framed issues pertaining to payment of dower amount by husband to wife---Validity---Contents of Nikahnama showed that dower amount was supposed to be paid on demand but nothing had been mentioned that anything was paid at the time of marriage and execution of Nikahnama---Family Court was required under S.10(4) of West Pakistan Family Courts Act, 1964, to pass decree of dissolution of marriage forthwith and also to restore husband Haq Mehr (dower) paid in consideration of marriage 'at the time of marriage', if reconciliation failed---Family Court had no option except to pass preliminary decree when reconciliation had failed, particularly when wife made clear statement that she was not willing to continue marriage and union had become hateful---No party could be compelled to live with the other even if there were compatibility issues only---Husband himself stated in written statement that decree of Khula could be passed forthwith subject to payment of dower amount---High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by Family Court---Petition was dismissed in circumstances.

2006 PLD Kar.272 and 2013 CLC 450 ref.

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

----S. 10(4)---Khula---Dower on demand---Presumption---When dower was fixed as on demand unless contrary was proved by husband, presumption would be that such dower was not paid.

Taimur Mirza for Petitioner.

Ch. Khalid Raheem Arain for Respondent No.1.

Date of hearing: 11th July, 2014.

2015 C L C 180

[Sindh]

Before Amer Raza Naqvi, J

MUHAMMAD ASIF KHAN----Applicant

Versus

Mst. ZUBAIDA KHANUM and 4 others----Respondents

Civil Miscellaneous Nos.4800 and 243 of 2014 in Civil Suit No.309 of 2006, decided on 11th September, 2014.

Specific Relief Act (I of 1877)---

----Ss. 12, 9 & 54---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXXIX Rr.1, 2---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) Ss.19 & 15---Suit for specific performance of contract to sell immovable property; for possession and mandatory and permanent injunction---Impleading of decree-holder bank (in a separate banking suit) pertaining to the same property, as necessary party---Plaintiff inter alia sought direction to restrain proceedings for execution of decree pending before Banking Court in a separate suit but pertaining to the same property which was mortgaged in favour of the bank---Contention of plaintiff was that he had purchased the property in question from the defendants and was partially in possession of the same; and in case proceedings for execution of decree before Banking Court were not stayed and mortgaged property was sold; he would suffer irreparable loss---Held, that plaintiff did not implead the decree-holder bank as defendant in the suit when the suit was filed and there was no grievance mentioned against the now-proposed defendant (the bank) by the plaintiff---Admittedly, the property stood mortgaged in favour of the bank prior to execution of alleged agreement to sell the property---Record revealed that said agreement was executed during pendency of the banking suit filed by the bank---High Court observed that in such circumstances, applications to restrain execution proceedings before the Banking Court or to implead the decree-holder bank as defendant, could not be accepted, and were dismissed, accordingly.

S. Amjad Hussain for Applicant.

S. Danish Ghazi for Intervener.

2015 C L C 214

[Sindh]

Before Sadiq Hussain Bhatti, J

MUSARRATULLAH SIDDIQUI----Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI through Nazim-e-Ala and another----Defendants

Suit No.1464 of 2005, decided on 24th September, 2013.

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

----Art. 117---Fact asserted by defendant in affidavit-in-evidence not denied by plaintiff for want of knowledge---Effect---Such fact would stand proved---Illustration.

(b) Karachi Development Authority Order, (5 of 1957)---

----Preamble---Amenity plot---Amenity plot could not be allotted/leased for commercial purposes.

Mst. Sakina Bibi and others v. Government of Pakistan and others PLD 2008 FSC 17; Shahzad Ali v. City District Government and another 2008 MLD 782; Haji Noor Muhammad and others v. Karachi Development Authority and others PLD 1975 Kar. 373 and Muhammad Khawaja Hassan v. Karachi Development Authority 1991 CLC 436 ref.

Chaudhry Muhammad Iqbal for Plaintiff.

Iftikharul Hassan for CDGK.

Ms. Naheed Naz for the State.

Date of hearing: 11th September, 2013.

2015 C L C 238

[Sindh]

Before Aqeel Ahmed Abbasi, J

JEHANGIR R. KAKALIA through L.Rs.----Petitioner

Versus

VIIth ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and another----Respondents

Constitutional Petition No.S-812 of 2010, decided on 20th June, 2013.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Contention of landlord was that premises was required for personal bona fide need whereas tenant contended that previous ejectment petition on the similar ground was dismissed---Ejectment petition was dismissed by the Rent Controller but same was accepted by the Appellate Court---Validity---Landlord-Bank had given the details of all the locations as well as non-availability of vacant space for establishing its record room---Premises was required for personal/official need in good-faith and same had not been disputed---Nothing had been brought on record to show that requirement of the landlord-Bank to establish record room was not genuine---Previous ejectment petition of the landlord-Bank was dismissed by the Supreme Court as claim of the Bank was vague in nature in the said proceedings---Landlord had specifically mentioned the purpose of personal requirement in the present case---Landlord could not be denied his right to choose suitable accommodation which might be required for personal bona fide need---Tenant could not raise any objection relating to sufficiency or suitability of accommodation by the landlord except that requirement of personal need was based on mala fides---Landlord could not be deprived indefinitely from getting the fruits and enjoying the possession of a premises owned by him---Impugned judgment did not suffer from any illegality, non-reading or misreading of evidence and did not require any interference by the High Court in its constitutional jurisdiction---Constitutional petition was dismissed.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117; Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366; Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152; Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Muhammad Latif v. District Judge Karachi (South) and others reported as 2009 YLR 2234 and Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 rel.

R.F. Virjee for Petitioner.

Abrar Hassan for Respondents.

2015 C L C 260

[Sindh]

Before Irfan Saadat Khan, J

Mst. SAMINA NAZ and 2 others----Applicants

Versus

BABY DUA SAEED alias HIBA through her Mother and Natural Guardian and 3 others----Respondents

Miscellaneous Appeal No.13 of 2013, decided on 16th September, 2013.

Succession Act (XXXIX of 1925)---

----S. 299---Federal Employees Benevolent Fund and Group Insurance Act (II of 1969), S.2 (5)---Civil Procedure Code (V of 1908), S.151---Salary---Succession---Mother of deceased, right of---Deceased was police constable who died during an operation---Trial Court issued succession certificate and included mother of deceased in the list of legal heirs---Applicants were minor sons of deceased who through their mother assailed entitlement of their grandmother in distribution of salary of deceased---Validity---Parents of deceased, under S.2(5) of Federal Employees Benevolent Fund and Group Insurance Act, 1969, included under the definition of term "family"---Where term "legal heir" or "parents" was used, the same fell within the definition of term of "family" and they were entitled to receive Tarka left by deceased---Mother of deceased was legal heir and family member of deceased, who was wholly dependent upon him and was entitled to have share in salary of deceased as per Sharia according to her sect---High Court declined to interfere in order passed by Trial Court as it did not suffer from any legal infirmity---Application was dismissed in circumstances.

Mst. Rukia and another v. Ghulam Shah and another PLD 1994 Pesh. 1; Mst. Sabra Begum and another v. Mst. Iffat Shafique and 2 others 2006 YLR 2678; Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Mst. Hussan Jamala and another v. Government of Khyber Pukhtunkhwa PLD 2013 Pesh. 1 ref.

Samsam Ali Raza for Appellant.

Saad Bin Ather for Respondent No.1.

Shoaib Ali Khan for Respondent No.2.

Date of hearing: 9th September, 2013.

2015 C L C 293

[Sindh]

Before Abdul Maalik Gaddi, J

Mst. FEROZ JAN through L.Rs.----Petitioner

Versus

IIND ADDITIONAL DISTRICT JUDGE (SOUTH), KARACHI and 2 others----Respondents

Constitutional Petition No.S-889 of 2009, decided on 27th February, 2014.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Landlady filed eviction petition on the grounds of default in payment of rent, unauthorized addition and alteration in the demised premises by the tenant and bona fide personal need of her sons---Scope---Contention of tenant was that neither landlady nor her sons appeared as witnesses in the court in support of her assertions that premises was required by her for her sons---Ejectment petition was accepted concurrently on the ground that demised premises was required by the landlady for her sons---Validity---Person for whose benefit the demised premises was required to be vacated was not necessary to be produced in support of eviction petition---Attorney of landlady had affirmed the requirement of disputed shop in his affidavit-in-evidence and same had not been rebutted by the tenant in cross-examination---Ejectment petition and affidavit-in-evidence on oath were consistent with each other with regard to requirement of demised premises for personal use of landlady's sons---Statement on oath of attorney of landlady on the ground of personal need had not been rebutted and same was sufficient to prove the plea of landlady---Sufficient evidence was on record to prove the requirement of demised premises for the sons of landlady---Constitutional petition was dismissed in circumstances and tenant was granted sixty days time for vacation of premises in question subject to regular payment of rent.

Naeem Ahmed v. Mrs. Mariam 2000 MLD 442; Mst. Shamim Akhtar v. Zakaria Yousuf and others 1998 CLC 410; A&B Oil Industries Ltd. v. Abbas 1993 CLC 1815; Abdul Rehman, and others v. Pakistan State Oil Company Ltd. and others 1997 CLC 1085; Noor Ali v. Saleem 1997 AC 50; Mehboob Alam v. Miss Tehseen Shafqat Khan and others PLD 2001 Kar.238; M. Muhammad Sharif v. M.S. Sultan 1981 SCMR 844; Dilshad Muhammad v. Mst. Zuhaida Begum 1981 SCMR 895 and Sheikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307 ref.

Arshad Umar and another v. Begum Nazrul Askari PLD 1985 SC 38 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1157 rel.

Naeem Ahmed v. Mrs. Mariam 2000 MLD 442; Mst. Shamim Akhtar v. Zakaria Yousuf and others 1998 CLC 410; A&B Oil Industries Ltd. v. Abbas 1993 CLC 1815; Abdul Rehman, and others v. Pakistan State Oil Company Ltd. and others 1997 CLC 1085; Noor Ali v. Saleem 1996 MLD 71 and Mehboob Alam v. Miss Tehseen Shafqat Khan and others PLD 2001 Kar.238 distinguished.

Ahmed Zamir Khan for Petitioner.

Nemo for Respondents Nos.1 and 2.

Muhammad Ishaque Memon for Respondent No.3.

Date of hearing: 25th February, 2014.

2015 C L C 303

[Sindh]

Before Nadeem Akhtar, J

ALI NAWAZ----Plaintiff

Versus

NATIONAL BANK OF PAKISTAN through President and 6 others----Defendants

Suit No.385 of 2003, decided on 8th April, 2014.

Civil Procedure Code (V of 1908)---

----O.VII, R.11, Ss. 19, 20 & 16---Application for rejection of plaint---Suit for compensation and damages against bank for inter alia malicious prosecution and compensation for misappropriation of stocks---Territorial jurisdiction of Trial Court---Contention of the applicant/defendant was inter alia that the immovable property mortgaged by plaintiff was situated at place "L", and suit for recovery filed by the defendant against plaintiff was pending at Banking Court at place "L", therefore, the court in the present case lacked territorial and pecuniary jurisdiction over the case---Held, that plaintiff had not prayed for any relief in respect of immovable property situated at place "L", that was mortgaged by him and had not sought its recovery, redemption or determination of his rights thereto or for compensation for wrong to said property---Section 16, C.P.C. provided that suits that sought any of the above reliefs should be instituted in the court within local limits of whose jurisdiction the property was situated---Averments contained in the plaint clearly showed that suit was for compensation and damages for alleged malicious prosecution and for tortious acts allegedly committed by defendants and therefore S.16, C.P.C. did not apply to the present case---Under S.19 of C.P.C., if wrong was done within local limits of jurisdiction of one court and defendant resided or carried on business or personally worked for gain, within local limits of another court, suit may be instituted at the option of plaintiff in either of said courts and S.20, C.P.C. also provided that suit shall be instituted in a court within whose limits the defendant at the time of commencement of suit, resided or carried out business or where the cause of action partly or wholly arose---By virtue of Ss.19 & 20, C.P.C., therefore, the court had territorial jurisdiction to adjudicate upon the present suit--- Present suit not being a banking matter, could not be transferred to Banking Court at place "L"---Application for rejection of plaint, was dismissed in circumstances.

Zahir Hussain Chishti for Plaintiff.

Muhammad Imtiaz Agha for Respondent No.1.

Date of hearing: 28th October, 2013.

2015 C L C 310

[Sindh]

Before Abdul Rasool Memon, J

Messrs ATIF ALI and another----Petitioners

Versus

Mst. NOOR JAHAN through Attorney and 2 others----Respondents

Constitutional Petition No.S-866 of 2010, decided on 29th April, 2013.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenants---Default in payment of rent---Scope---Contention of tenants was that landlady refused to accept the rent and even they sent the same through money order but same was also refused by her---Ejectment petition was accepted concurrently---Validity---Name of the person to whom money order was sent was not mentioned on the reverse of coupon of the same---No amount was mentioned on the coupon and same also did not show endorsement of postman for refusal of landlady---Tenant was bound to produce postman or any other person in evidence to prove the tender by money order that landlady had refused to accept the rent---In the absence of such evidence it could not be said that landlady had refused to accept the money order---Mere filing of receipt of remittance of money order could not be treated as authentic document---Tenant deposited rent with the Rent Controller without offering the same to the landlady, in circumstances, which would be treated as default in payment of rent on his part---Findings of the courts below did not suffer from any illegality or irregularity---Constitutional petition in such matters not to be entertained until and unless there was jurisdictional error committed by the courts below or exercise of jurisdiction was perverse or was in arbitrary manner and was based on ignorance of the material available on record or violation of any provision of law---Constitutional petition was dismissed.

Muhammad Zaman v. Yaseen 1986 CLC 1282; Amin Master (Aminuddin) v. Abdul Rashid 1986 CLC 1551 and Habib Ahmed v. Liaquat Hussain PLD 1985 Kar. 741 distinguished.

Muhammad Suleman v. Messrs Alvi Brothers 1991 CLC 1068; Muhammad Asif v. Shaikh Israr 2006 SCMR 1872 and Shakeel Ahmed's case 2010 SCMR 1925 rel.

(b) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Ejectment petition--- Constitutional jurisdiction of High Court---Scope---Constitutional petition in such matters not to be entertained until and unless there was jurisdictional error committed by the courts below or exercise of jurisdiction was perverse or was in arbitrary manner and was based on ignorance of the material available on record or violation of any provision of law.

Shabeel Ahmed's case 2010 SCMR 1925 rel.

Muhammad Yaseen Azad for Petitioners.

Mirza Sarfaraz Ahmed for Respondents.

Date of hearing: 5th April, 2013.

2015 C L C 318

[Sindh]

Before Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

FAKHURL ARFIN and 2 others----Petitioners

Versus

FEDEERATION OF PAKISTAN through Secretary, Ministry of Works and 9 others----Respondents

Constitutional Petition No.D-139 and Miscellaneous Nos.4339 and 531 of 2013, decided on 13th August, 2013.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability---Commercialization of residential area by Authority---Status quo ante position, restoring of---Principle---Correcting of mistakes---Residential area of petitioner was declared as commercial but authorities during pendency of petition before High Court, corrected their mistake and de-notified the area---Validity---Aggrieved person had approached High Court for correction of action of public functionary and such public functionary upon realizing his mistake and after giving a hearing to person who would have a grievance against such corrective measure, rectified his mistake---No bar could be imposed on public functionary on correcting its action during pendency of proceeding in which such action was assailed, as it would neither defeat the right of person who had approached the Court nor would amount to pre-empting pending proceedings---Such correction would be an assistance to Court by saving its time of scrutinizing such action which could not be sustained---Purpose of prohibiting commercialization on road having less than 100 feet of width was that such roads were not able to take load/influx of traffic, which would flow upon such commercialization---Such intent could not be defeated by asking builders to raise construction leaving 20 feet space, as such area of 20 feet would still remain the property of builders and could be used for their own purpose and would not become part of thoroughfare---Approach of Commercialization Committee was unprofessional and could not sustain legal scrutiny, therefore, such permission was rightly withdrawn---Action of authority withdrawing its "No Objection Certificate "for conversion of land was neither mala fide nor to defeat process of High Court---Ambit of status quo order in the context of prayer made in application on which it was directed did not forbid or restrict the authority from withdrawing "No Objection Certificate" for conversion---Respondent had no case on merits, therefore, question of restoring status quo ante did not arise---Petition was dismissed in circumstances.

Civil Aviation Authority v. Noor Muhammad PLD 1988 Kar. 401 ref.

(b) Words and phrases--

----"Status quo"---Connotation---Term "status quo" means the state of events existing during the period immediately before injunction application was filed.

Abdur Rahman for Petitioner.

Dilawar Hussain, Standing Counsel for Respondent No.1.

Syed Sultan Ahmed for Respondent No.2.

Chaudhry Muhammad Rafique Rajori, A.A.-G. for Respondent No.3.

Ms. Afsheen Aman for Respondent No.4.

Mushtaq A. Memon for Respondent No.10 along with Ishtiaq A. Memon and Shahid Ali Ansari.

Date of hearing: 13th August, 2013.

2015 C L C 334

[Sindh]

Before Aftab Ahmed Gorar, J

Rana NAZIR AHMED----Applicant

Versus

Mst. AZRA UZMA and 5 others----Respondents

Civil Revision Application No.70 of 2012, decided on 6th May, 2013.

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

----Ss. 20 & 21---Suit for return of money and machinery---Plaintiff filed suit at place "K" alleging such money and machinery to have been handed over to defendant as partner of her deceased husband in a firm having offices at places "M" & "K"---Territorial jurisdiction of Court at place "K" to entertain such suit---Scope---Plaintiff had pleaded that her husband due to ill health had shifted from place "M" to place "K" and established there another office; and that eight cheques had been issued to defendant at place "K"---Residential house of defendant was located at place "K" and his same address found mention in his CNIC and title of plaint---Shifting of defendant to place "K" in year 1980 was admitted by him---Defendant had not denied factum of receipt of such cheques at place "K"---Court at place "K" was to have territorial jurisdiction to entertain the suit, in circumstances.

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

----O. VI, Rr. 1 & 17---Amendment of plaint, application for---Plaintiff in plaint initially alleged that defendant was partner in firm of her deceased husband---Plaintiff's application for incorporating in the plaint that defendant was employee of her deceased husband---Order of Trial Court allowing such application---Failure of defendant to challenge such order---Held: defendant had acknowledged and admitted to be employee of plaintiff's husband.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Such jurisdiction for being very limited could be exercised only when court below had either exceeded its jurisdiction or declined to exercise same or acted in an illegal manner.

2001 SCMR 789 and PLD 1994 SC 291 rel.

Ghulam Ghous for Applicant.

Shoaib Ali Khan for Respondents Nos.1 to 6.

Date of hearing: 30th April, 2013.

2015 C L C 357

[Sindh]

Before Aftab Ahmed Gorar, J

IDARA-E-TAHAFFUZ AMN-O-IKHLAQ-E-AAMAA through President and 4 others----Applicants

Versus

TRUSTEE OF JAMIA MASJID HAFT-E-SULTAN TRUST through President----Respondent

Civil Revision Application No.142 of 2000, decided on 14th December, 2012.

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

----S. 115 & O.XLI, R.1---Revision application---Failure to annex certified copy of decree with the revision application---Effect---Respondents had contended that revision application filed by the applicants was liable to be dismissed as no "certified copy of decree" had been annexed with the revision application as required under O.XLI, R.1, C.P.C.---Validity---Contention was devoid of force, for the reason that such requirement was for filing an appeal and not revision---Section 115, C.P.C. only required for furnishing copies of pleadings, documents and order of subordinate court, and there was no mention of copy of decree therein.

2006 YLR 2613 ref.

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

----S. 115---Specific Relief Act (I of 1877), Ss.42 & 54---Revision---Plaintiff in a suit for injunction had sought declarations to the effect that Board of Trustees of the plaintiff, was always and legally entitled to run, manage and control the 'Masjid' and its attached shops etc., and that defendants had no locus standi over the management, administration and control of the Masjid; that the Trust formed by the defendants, did not confer any right and title on defendants in the administration and management of the Masjid and that direction be issued to the defendants to hand over the administration and management of the Mosque to the plaintiff---Trial Court had decreed the suit elaborately discussing each and every aspect of the case, and assigning cogent reasons for decreeing the suit---Appellate Court below also after examining all points raised in the appeal, dismissed appeal filed against judgment and decree passed by the Trial Court, by passing a well-reasoned judgment---Concurrent judgments of courts below, did not suffer from any misreading or non-reading of evidence---No material irregularity or jurisdictional defect had been pointed out in concurrent findings of two courts below---Revision application, against concurrent judgments of courts below, filed by incompetent persons being not maintainable, was dismissed, in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Such jurisdiction of High Court had very limited scope; and it could be exercised only in those cases where subordinate court had exceeded its jurisdiction; or had declined to exercise jurisdiction; or had acted in exercise of its jurisdiction in a manner contrary to law; or in a manner not warranted by law.

2001 SCMR 789 and 2006 CLC 311 rel.

Syed Ansar Hussain for Applicants.

Khawaja Shamsul Islam for Respondents.

Date of hearing: 28th November, 2012.

2015 C L C 374

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

Qazi ASGHAR ALI----Petitioner

Versus

SUPERINTENDENT OF POLICE (INVESTIGATION), LARKANA and 4 others----Respondents

Constitutional Petition No.D541 of 2011, decided on 3rd April, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Recovery of dues---Enforcement of contractual obligation---Alternate remedy---Scope---Petitioner's claim was partially admitted by the authorities---Alternate remedy of suit was not in line with principles of equity and good conscious for simple reason that it would not be legally justified to force the petitioner to file a suit for recovery of dues which otherwise were admitted---Liability to make payment, being admitted it had become a "legal right" which was enforceable under the law, therefore, dismissal of the constitutional petition on sole technical ground would not be within the spirit of law, which was meant to rescue the rights of individuals and not to technically knock them out---Contractual obligation could not be enforced in constitutional jurisdiction, and it was not proper to use the sword of technicality for alternate remedy of filing a suit for recovery of amount after about four years in presence of admission of authorities regarding the claim of the petitioner---Authorities were directed to clear the admitted claim only and for the remaining disputed amount and interest thereupon, the petitioner was directed to approach the Civil Court for redressal of his grievance---Constitutional petition was allowed in the said terms.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Dismissal of the constitutional petition on sole technical ground would not be within the spirit of law, which was meant to rescue the rights of individuals and not to technically knock them out---Technicalities could not be used as a sword for alternate remedy after about four years when there was admission of Authorities regarding the claim of litigant.

Safdar Ali G. Bhutto for Petitioner.

Abdul Hamid Bhurgri, Addl. A.-G. for Respondents.

2015 C L C 468

[Sindh]

Before Nazar Akbar, J

Malak ZAHOOR-UL-HAQ through Special Attorney----Petitioner

Versus

IIND ADDITIONAL JUDGE, SANGHAR and 2 others----Respondents

Constitutional Petition No.S-337 and M.A. No.5693 of 2013, decided on 26th September, 2014.

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

----S. 152--- Constitution of Pakistan, Art.199--- Constitutional petition---Correction in judgment--- Scope--- Ejectment order correction of---Reasonable period---Scope---Appellate Court while maintaining the judgment of Rent Controller directed the tenant to vacate the premises within a period of three months from the date of judgment but instead of "Three months" "three years" was typed in the judgment---Landlord moved an application for correction of mistake appearing in the judgment of Appellate Court which was accepted and correction was made as three "months" instead of "years"---Validity---Tenant could not satisfy as to how the Appellate Court could grant three years time to him while dismissing appeal which remained pending for almost two years and six months---If such was not a typographical mistake, same was against the fair play and equity which needed to be demonstrated by the court while exercising discretion available with the Rent Controller/Appellate Authority to grant a reasonable time for vacating the premises---If Appellate Authority were allowed to grant such unusual long period of time not by mistake but by conscious judicial mind to vacate the premises on dismissal of appeal of tenant then the effect of dismissal of appeal would be nullified---Rent Controller or Appellate Court could not specify an unreasonable period for vacating the premises to a tenant---Reasonable period could be few months keeping in view the circumstances of tenant and nature of tenement and any period beyond few months could only be granted by consent of the landlord---Period of three years was accidental slip or typographical error in the Appellate Court's order---Appellate Court had lawfully corrected the same and no right had accrued to the tenant---Tenant was directed to vacate the premises within specified period---Constitutional petition was dismissed in circumstances.

Nizam-ud-Din v. Ch. Muhammad Saeed and others 1987 CLC 1682; Jehanzeb Aziz Dar v. Messrs Maersk Line and others PLD 2000 Kar. 258; Muhammad Yakoob v. Baqar and 2 others 1998 CLC 456; Khawaja Imran Ahmed v. Noor Ahmad and another 1992 SCMR 1152; Khawaja Muhammad Razzak v. Dr. Sultan Mehmood Ghori and another 2007 SCMR 1866 and Muhammad Iqbal v. Sultan Akbar and 2 others 1994 SCMR 16 ref.

Nizam-ud-Din v. Ch. Muhammad Saeed and others 1987 CLC 1682; Jehanzeb Aziz Dar v. Messrs Maersk Line and others PLD 2000 Kar. 258; Muhammad Yakoob v. Baqar and 2 others 1998 CLC 456 and Khawaja Imran Ahmed v. Noor Ahmad and another 1992 SCMR 1152 distinguished.

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

----Ss. 14 & 15---Ejectment of tenant---Time for giving vacant possession to landlord---Reasonable period---Scope.

Muhammad Sachal Awan for Petitioner.

Zahid Hussain Channa for Respondent No.3.

Date of hearing: 23rd September, 2014.

2015 C L C 478

[Sindh]

Before Munib Akhtar, J

CRESCENT STEEL AND ALLIED PRODUCT LTD.----Plaintiff

Versus

SUI SOUTHERN GAS CO. LIMITED----Defendant

C.M. No.7151 of 2013 in Suit No.754 of 2013, decided on 10th April, 2014.

Public Procurement Rules, 2004---

----R. 26---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Plaintiff-Company, manufacturer of pipes was the lowest bidder in tender invited by defendant, a gas company---Grievance of plaintiff-Company was that defendant-company could not revoke its bid and relied upon R.26 of Public Procurement Rules, 2004---Validity---Private entity calling for bids under a tender for its own purposes had a right to cancel the tender without assigning any reason or even without having one---Such option was not open to public sector entity which was a procuring agency within the meaning of Public Procurement Regulatory Authority Ordinance, 2002---All public sector actions must be taken for a valid legally defensible reason---Concerned entity or authority must have a lawful reason for action that it had taken (or refused to take, as the case might be) even if it might be able to assert a right not to make that reason public(i.e. to 'assign' it), the fundamental obligation of having lawful reason was not thereby annulled---Court, in appropriate circumstances could insist that reason be given, i.e. disclosed, so that it could satisfy itself as to the lawfulness of the same---Pipes were lying with plaintiff and it was best placed being the lowest bidder in terms of the tender to coat the pipes---Plaintiff had to bear substantial inconvenience, both physical arid financial of keeping pipes at its factory for a long period entirely as a result of defendant's inaction and it had significantly interfered with plaintiff's other business operations---Balance of convenience was in favour of plaintiff and against defendant company---Plaintiff would suffer irreparable loss and injury if the contract for coating pipes was awarded to some other party---High Court granted interim injunction as all ingredients for interim relief were in place---Application was allowed in circumstances.

Ch. Atif Rafiq for Plaintiff.

Asim Iqbal for Defendant.

Dates of hearing: 7th November and 4th December, 2013.

2015 C L C 493

[Sindh]

Before Salahuddin Panhwar, J

FEROZ ALI GABA----Plaintiff

Versus

FISHERMEN'S COOPERATIVE SOCIETY LIMITED and 2 others----Respondents

Suit Nos.258 and 641 of 2014, decided on 11th September, 2014.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Temporary injunction, grant of---Ingredients---Plaintiff had acquired rights, interests and claims under the lease agreement---Injunction could not be granted where a party claiming the same had failed in establishing co-existence of three ingredients i.e. prima facie case: balance of inconvenience and irreparable loss/ injury---Plaintiff had to establish co-existence of all the ingredients through pleadings, document attached therewith and affidavit---Court through discretionary powers under O.XXXIX, Rr.1 & 2, C.P.C. was bound to protect legal rights, their infringements and mala fide exercise of jurisdiction by an authority, but such discretion by the court should be used for justice, equity and fair play and not in aid of a prima facie illegality or improper relief---Plaintiff was bound by the terms and conditions of lease deed but in the present case he had not complied with such terms and conditions---Plaintiff had no prima facie case in his favour---Authority was competent to resort to the procedure to cancel license or lease in event of any breach of license or terms thereof--Issuance of notice by the Authority to its lessee could not be said to be illegal or beyond jurisdiction but at the most, procedure could be challenged---License of plaintiff had not been cancelled but he had been served with notice for the same---Issuance of notice for cancellation of license could not be termed as cancellation which could give a right to the aggrieved to resort to available remedy---Plea of irreparable loss/injury was also not available with the plaintiff when he had sought a relief of damages---Plea of huge investment was not sufficient to keep authority away from its right in the event of breach of terms of agreement/lease---Application for grant of temporary injunction was dismissed in circumstances.

Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092 and Marghub Siddiqui v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 rel.

(b) Words and phrases---

----"Prima facie case"---Meaning---"Prima facie case" was existence of legal right which should appear to a prudent mind with a probability of success at the end of the day.

(c)Words and phrases---

----"Balance of inconvenience"--- Meaning--- "Balance of inconvenience" was existence of circumstances through which plaintiff had to establish that his inconvenience would be greater than that of opposite party if injunction was not granted.

(d) Words and phrases---

----"Irreparable loss/injury"---Meaning---"Irreparable loss/injury" was such injury which could not be adequately compensated.

Sattar Muhammad Awan for Plaintiff (in Suits Nos.258 and 641 of 2014).

Kh. Naveed Ahmed for Defendants Nos.1 and 3 (in Suit No.258 of 2014).

Ghulam Muhammad for Defendant No.2 (in Suit No.258 of 2014) and for Defendants Nos.1 and 2 (in Suit No.641 of 2014).

Date of hearing: 25th August, 2014.

2015 C L C 514

[Sindh]

Before Nadeem Akhtar and Sadiq Hussain Bhatti, JJ

CIVIL AVIATION AUTHORITY and others----Appellants

Versus

PROVIDENCE AVIATION SERVICES (PVT.) LTD. through Chief Executive----Respondent

High Court Appeal No.131 of 2000, decided on 26th August, 2014.

Contempt of Court Act (LXIV of 1976)---

----S. 7---Proceedings for contempt of court---Procedure---Contemnors were punished by imposing fine of Rs.5,000 against each of them for committing contempt of court order---Contention of contemnors was that neither show-cause notice was issued nor charge was framed and they were punished without proper trial---Validity---Neither show-cause notice was issued to the contemnors before passing of impugned order of punishment/conviction nor any charge was framed against them---No formal trial was conducted in the present case---Notice for contempt of court should have been issued to the contemnors and after considering the pleas raised by them in their reply to such notice a decision ought to have taken by application of judicial mind to the facts and circumstances of the case along with the material brought on record---Procedure laid down under S.7 of Contempt of Court Act, 1976 had to be followed by issuing a formal show-cause notice containing charge-sheet in clear terms to the contemnors and inquiry should have been made in the matter ---Impugned order of conviction and sentence of contemnors was not maintainable---Order was set aside and Nazir was directed to return the amount of fine to the contemnors after proper verification and identification.

Muhammad Sadiq Leghari, Registrar High Court of Sindh: In re PLD 2002 SC 1033; English Biscuits Manufacturers (Private) Limited (EBM) and 6 others v. Associated Biscuits International Limited through Attorney 2005 CLD 430 and Messrs Yousuf Sons and another v. Muhammad Khalid and others PLD 2005 Kar. 316 ref.

Messrs Yousuf Sons and another v. Muhammad Khalid and others PLD 2005 Kar. 316 distinguished.

Muhammad Sadiq Leghari, Registrar High Court of Sindh: In re PLD 2002 SC 1033; and Raja Talat Mahmood v. Ismat Ehtishamul Haq 1999 SCMR 2215 rel.

Zahid F. Ebrahim for Appellants.

Younus Saeed for Respondent.

Date of hearing: 26th August, 2014.

2015 C L C 530

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ANWAR----Applicant

Versus

MUHAMMAD HANIF and 4 others----Respondents

Civil Revision Application No.279 of 2010, decided on 26th June, 2014.

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

----S. 92 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Trust property---Consent of Advocate General---Rejection of plaint---Scope---Defendants moved an application for rejection of plaint on the ground that suit was barred under S.92, C.P.C. as plaintiff had not obtained permission from Advocate General---Application for rejection of plaint was accepted concurrently---Validity---Suit with regard to trust property could be brought either by Advocate General himself or by two or more persons having an interest in the trust after having written consent of Advocate General---Requirement with regard to two or more persons and condition to obtain consent in writing of Advocate General had not been fulfilled in the present case---Plaintiff had no locus standi to institute the present suit---Incomplete suit should not be allowed to further encumber legal proceedings---Stillborn suit must be buried at inception of the same---No flaw had been pointed out in the impugned judgment/order passed by the courts below---Revision was dismissed in limine.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 and S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was limited and same could be exercised only in cases where courts below had exceeded their jurisdiction or had declined to exercise jurisdiction or had acted in exercise of jurisdiction in a manner contrary to law or in a manner not warranted by law.

Ms. Sami Ahsan for Applicant.

Muhammad Hanif Sama and Ms. Samina Iqbal for Respondents Nos.1 to 6.

Sharfuddin Mangi for the State.

Date of hearing: 22nd April, 2014.

2015 C L C 557

[Sindh]

Before Amer Raza Naqvi, J

Ms. GEETI MAHYAR DHATIGARA----Petitioner

Versus

MAHYAR MEHRWAN DHATIGARA----Respondent

Divorce Petition No.1 of 2014, decided on 5th September, 2014.

Parsi Marriage and Divorce Act (III of 1936)---

----Ss. 32 & 43---Parsi/Zoroastrian divorce---Suit for dissolution of marriage---Grounds for divorce---In-camera proceedings under S.43 of the Parsi Marriage and Divorce Act, 1936---Consent of parties to dissolve marriage---Role/opinion of delegates---Plaintiff/wife sought grant of dissolution of marriage inter alia on the ground that wife felt there was no compatibility between the parties and that she and the husband were not living together since more than three years, which fact in itself was sufficient for grant of dissolution of marriage under S.32 of the Parsi Marriage and Divorce Act, 1936---Husband/ defendant; before the High Court, inter alia, stated that he had no objection to the grant of the petition for dissolution of marriage---Held, that in the present case, requirements of the Parsi Marriage and Divorce Act, 1936 appeared to have been complied with and the delegates present in Court were also of the opinion that parties should not be compelled to remain in an union of marriage against their will---Proceedings were held in-camera (chambers) as required under S.43 of the Parsi Marriage and Divorce Act, 1936 in presence of the parties, counsel and delegates---Suit for dissolution for marriage was allowed, and marriage between the parties was dissolved, in circumstances.

Saadat Yar Khan for Petitioner along with Petitioner.

Respondent in Person.

Shorab Patel, Rowena Hansatia, Farida Dastoor, Percy Gazdar and Savak Mistry, Delegates.

Date of hearing: 5th September, 2014.

2015 C L C 570

[Sindh]

Before Aftab Ahmed Gorar, J

KHALID----Petitioner

Versus

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

Constitutional Petition No.882 of 2013, decided on 11th June, 2014.

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

----Ss. 10, 13 & 21---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Wilful default by tenant in payment of rent---Payment of rent---Tenant's obligation---Modes of payment---Burden of proof of payment---Once landlord stated on oath that tenant had defaulted in payment of rent, burden of proof shifted to tenant to rebut the assertion---Tenant was under obligation to offer rent to landlord and only in case of refusal of landlord to accept the same, tenant could resort to other modes of payment of rent i.e., remittance through money order or depositing the same in court---Tenant had to prove that he had offered rent to landlord and that landlord had refused or avoided to accept the same---Tenant failed to establish that he had fulfilled the requirements of law---Tenant used to pay rent in lump sum for period of 6 months and 20 months, that is, after committing default which was not permissible under the law---Merely because no one came to collect the rent on behalf of landlord, tenant could not be absolved of the responsibility to pay rent on time---Omission to enforce one's legal right strictly could not give rise to inference that the right had been abandoned---Condonation of tenant's lapses by landlord could not be interpreted a licence to tenant to adopt such practice/lapses as a perpetual arrangement---Under S.27 of the General Clauses Act, prepaid envelope sent by registered post on correct address would be deemed to have been served unless proved otherwise---Tenant admitted that address on legal notice sent by landlord was correct; legal notice would be deemed to have been served upon tenant---Extraordinary jurisdiction of High Court under Art.199 of the Constitution, aimed at preventing abuse of process of law, such jurisdiction could not be exercised by High Court to interfere with the discretionary orders of the subordinate courts made under powers conferred on such courts by special statutes---Conferment of only one right of appeal under S.21 of the Sindh Rented Premises Ordinance, 1979 showed that legislature intended to shorten the span of litigation in such cases---Interference by High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution, in judicial orders passed by Tribunal of competent jurisdiction merely on the ground that another view of the matter was possible would defeat the object of (special) statute by prolonging litigation---Jurisdiction of High Court under Art.199 of the Constitution, could not be invoked in routine cases as an additional remedy to hamper the findings of fact---Constitutional petition was dismissed.

Muhammad Saleh v. Muhammad Shafi 1998 SCMR 33; 1986 CLC 393 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 rel.

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

----S. 27---Presumption of service (of notice)---Under S.27 of the General Clauses Act, 1897, prepaid envelope sent by registered post on correct address would be deemed to have been served unless proved otherwise.

AIR 2005 SC 109 rel.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Object and scope---Extraordinary jurisdiction of High Court under Art.199 of the Constitution, aimed at preventing the abuse of process of law, such jurisdiction could not be exercised by High Court to interfere with the discretionary orders of subordinate courts made under powers conferred on such courts under special statutes---Jurisdiction of High Court under Art.199 of the Constitution, could not be invoked in routine case as an additional remedy to hamper the findings of fact.

Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others PLD 2005 Kar. 554 rel.

Mehmood Habibullah for Petitioner.

Ms. Rubab Sher Ali for Respondent No.3.

Date of hearing: 29th May, 2014.

2015 C L C 594

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD JAMEEL through L.Rs.----Plaintiffs

Versus

Syeda SAKINA RAIZ and others----Defendants

Suit No.971 of 2013, decided on 9th September, 2014.

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

----O. VII, R. 11, O. XXIII, R. 3 & S.12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Compromise---Order on the basis of compromise---Plaint, rejection of---Scope---Contention of defendant was that subject matter of the suit had already been decided in an earlier round of litigation and present suit was not maintainable---Validity---Plaintiffs were seeking declaration with regard to compromise order passed in earlier suit on the grounds of fraud, misrepresentation and concealment of facts---Provisions of S.12(2), C.P.C. would come into play when one had sought any declaration through a separate suit with regard to judgment, decree or order of a competent court on any of the grounds i.e. fraud, misrepresentation or want of jurisdiction---Compromise was always arrived at between the parties on their own terms and conditions and same had to be legal and competent if consideration thereof was within competence of such parties---Parties entering into compromise could legally settle consideration for such compromise which consideration was not necessarily to be confined to the pleadings but should be within competence of parties---Compromise (agreement) could legally bind the signatories and their successors only and not the others---Mere change in relief would not be sufficient to hold a subsequent suit maintainable, as a relinquished right could not be raised subsequently---Plaintiffs had raised their present claim on the basis of same set of facts with addition to reference of earlier litigation which could not be a fresh ground---Lis between the parties stood finally decided when the parties had agreed for disposal of all their claims---Parties would not be entitled to re-agitate the adjusted claim through a separate suit till the time the compromise order/decree was holding the field---If there was any question of fraud, misrepresentation or want of jurisdiction then available remedy was not a suit but through the course of S.12(2), C.P.C.---Plaint was barred by law which was rejected in circumstances.

PLD 1991 SC 731; PLD 1995 Pesh. 18; 2003 SCMR 604; 1990 SCMR 751; PLD 1983 SC 344; 2002 SCMR 300; 1991 SCMR 1725; 1990 SCMR 143; PLD 2010 Lah. 418; 1992 MLD 1879 and 1997 CLC 636 ref.

Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. PLD 1968 Kar. 115; Ghulam Muhammad v. Zubaida Begum 1984 CLC 874; Noorudddin Hussain v. Diamond Vacuum Bottle Manufacturing Co. Ltd. Karachi PLD 1981 Kar. 720; Anjuman Masjid New Town v. Muhammad Shahid Zaki and 12 others PLD 2011 Kar. 550; John Paul v. Irshad Ali and others PLD 1997 Kar. 267 and Muhammad Shafi and 3 others v. Muhammad Yousaf and another 1995 CLC 481 rel.

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

----S. 12(2)---Scope and applicability of S.12(2), C.P.C.---Provision of S.12(2), C.P.C. would come into play when party had sought, through a separate suit with regard to judgment, decree or order of a competent court on any of the grounds i.e. fraud, misrepresentation or want of jurisdiction.

Iftikhar Hussain for Plaintiffs.

Faiz H. Shah & Co. for Defendants Nos.1 and 2.

Date of hearing: 29th August, 2014.

2015 C L C 610

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

AMIR ALI----Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI (CDGK) (KDA Wing) through City Nazim and 3 others----Respondents

Constitutional Petition No.D-464 of 2005, decided on 16th October, 2014.

Disposal of Lands and Estates Regulations, 1965---

----Regln. 23---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Invocation of---"Aggrieved person"---Allotment of plot by Development Authority---Vested right---Contention of petitioner was that since plots of both the petitioner and respondent were adjacent to a strip of land, hence both the parties were on equal footing and had equal right of allotment, that Development Authority was bound to give a prior notice and an opportunity of hearing to the petitioner before disposing of disputed plots by allotment and said allotment was not approved and made by the Allotment Committee---Validity---Development Authority could make allotment of land to the allottee of adjacent plots on his making an application to the said Authority if said land could not be used as an independent plot or for any other public purpose---Respondent was owner of the plot adjacent to the disputed plots and he had applied for allotment to the Development Authority---No irregularity or illegality in the impugned allotment of disputed plots was found---Development Authority had full powers and authority to allot the disputed plots vested in or belonging to it at fixed rate or by auction or on rental basis and for matters connected therewith---No application of petitioner was pending before Development Authority for allotment of disputed plots when lease was executed and registered in favour of respondent---Disputed plots were not available when application for allotment was made by the petitioner---Petitioner had not acquired any vested or other rights in the disputed plots and was not entitled to assert any claim, right or interest in the disputed plots as a matter of right and he could not be deemed to be an aggrieved person for invoking the constitutional jurisdiction---Petitioner had no locus standi to question the authority of officer who had executed the lease on behalf of Development Authority when Authority itself had ratified the said officer's authority---Constitutional petition was not maintainable which was dismissed in circumstances.

Mst. Nishat Mushtaq v. Karachi Development Authority and others 2004 YILR 1811 distinguished.

Imran Ahmed for Petitioner.

Syed Sultan Ahmed for Respondents Nos.1 and 3.

Abdul Khalil for Respondent No.2.

Rao Sarfaraz Ahmed for Respondent No.4.

Dates of hearing: 14th and 16th October, 2014.

2015 C L C 653

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

MUHAMMAD DAUD and 4 others----Petitioners

Versus

MUHAMMAD FAROOQUE and 4 others----Respondents

Constitutional Petition No.D-3141 and C.M.A. No.15642 of 2011, decided on 9th September, 2014.

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

----O. XX, Rr. 12, 13 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan, Art.199---Constitutional petition---Shariah advise/Fatwa---Scope---Plaintiffs filed suit for partition while the defendant instituted suit for declaration which were consolidated---Both the parties agreed to settle their dispute out of court and Nekmard/Arbitrator was appointed who issued his 'Shariah advise/Fatwa'---Suit of defendant was dismissed for non-payment of court fee and a consent preliminary decree was passed in the other suit---Contention of defendant was that report of Nekmard/Arbitrator should be treated as award and same should be made a rule of court whereas plaintiff contended that suit had been dismissed and there was no award---Trial Court found that no award was in field and report filed in the suit of defendant had no legal validity---Appellate Court made the said award as rule of the court---Validity---Matter, in the present case, was referred to the arbitrator to resolve the dispute between the parties---No term of reference nor any specific time was framed---Arbitrator had not followed any of the procedure prescribed under Arbitration Act, 1940---No issues were determined nor evidence was led---Shariah advise/Fatwa could not be termed as award---No effort was made to make award a rule of the court by the Trial Court---Suit of defendant had been dismissed wherein said award/report was submitted and no appeal was preferred---Consent preliminary decree had been passed in the suit of plaintiff against which no appeal had been filed and said decree had attained finality---Shariah advise/Fatwa could not be relied upon unless its author/signatory was produced in the court and was subjected to cross examination and entire circumstances were brought into his knowledge---Defendant had not raised any objection when suit property was mutated in the names of both the parties---Preliminary decree was nothing but same was an order to distribute the subject property amongst the legal heirs of the deceased---Impugned order was not based on sound legal reasoning and was based upon misreading of record---Impugned order passed by the Appellate Court was set aside---Constitutional petition was disposed of in circumstances.

Niaz Ahmed v. The State 2009 MLD 616 rel.

(b) Islamic jurisprudence---

---Fatwa---Reliance upon---Scope---Fatwa could not be relied upon unless its author/signatory was produced in the Court and was subjected to cross-examination and entire circumstances were brought into his knowledge.

Manoj Kumar Tejwani for Petitioners.

Muhammad Suleman son of Respondent No.1 present.

Agha Ather Hussain, Asstt. A.-G.

2015 C L C 663

[Sindh]

Before Zafar Ahmed Rajput, J

ABDUL FAROOQUE and another----Petitioners

Versus

MAQSOOD AHMED and another----Respondents

Constitutional Petition No.S-787 M.As. Nos.11220, 11131 and 11132 of 2014, decided on 27th October, 2014.

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

----Ss. 15, 16 & 21---Constitution of Pakistan, Art.199---Constitutional petition--- Maintainability--- Ejectment of tenant--- Tentative rent, fixation of---Interlocutory/interim order---Appeal---Scope--Landlord moved an application for recovery of arrears of rent in eviction petition which was accepted and tentative rent order was passed---Contention of tenants was that Rent Controller without framing and deciding a preliminary issue with regard to the existence of relationship of landlord and tenant had passed tentative rent order illegally and without jurisdiction---Validity---No affidavit/objection raising the ground of non-existence of relationship of landlord and tenant between the parties was filed by the tenants---Impugned tentative rent order was interlocutory/interim in nature and same was not appealable---Appeal had been provided against the final order of Rent Controller---Tenants would have opportunity to file appeal if final order was passed against them and they could raise the objection with regard to non-existence of relationship of landlord and tenant between the parties---Constitutional petition was not maintainable against an interlocutory/interim order of Rent Controller---Constitutional petition was dismissed in limine.

Muhammad Danish Rafiq v. Mst. Nafisa Siddiqui and another 2009 MLD 144 ref.

Muhammad Danish Rafiq v. Mst. Nafisa Siddiqui and another 2009 MLD 144 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Interim order of Rent Controller--- Constitutional petition---Maintainability---Constitutional petition was not maintainable against an interlocutory/interim order of Rent Controller.

Mst. Seema Begum v. Muhammad Ishaq and other PLD 2009 SC 45 rel.

Aamir Ali Memon for Petitioners.

Nemo for Respondents.

Date of hearing: 27th October, 2014.

2015 C L C 672

[Sindh]

Before Syed Saeeduddin Nasir, J

Mst. SHAHNAZ alias JAHAN ARA----Plaintiff

Versus

Syed AHTISHAM ALI SHAH and 5 others----Defendants

Suit No.483 of 2009, C.M.As. 1794 of 2009, 2167 of 2010, 11121 of 2014, heard on 31st October, 2014.

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

----O. XX, R. 13, O. IX, Rr. 3, 4 & 8 & O. VII, R. 11---Administration suit---Plaint, rejection of---Contention of defendant was that earlier suit on same cause of action and seeking same relief was dismissed and present suit was barred under O.IX, R.9, C.P.C. as well as on the principle of res judicata---Validity---Earlier suit was dismissed under O.IX, R.3, C.P.C. but not under O.IX, R.8, C.P.C. as neither the defendant nor the plaintiff were present before the court---Plaintiff could bring fresh suit under O.IX, R.4, C.P.C.---Right to file suit for administration of property left by the deceased did not extinguish by afflux of time---Application for rejection of plaint was dismissed in circumstances.

1987 SCMR 527; 1996 CLC 1273; 2005 SCMR 1447 and AIR 1928 Mad. 760 ref.

AIR 1928 Mad. 760 and Yousuf Abbas and others v. Mst. Ismat Mustafa PLD 1968 Kar. 480 rel.

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

----O. XX, R. 13---Administration suit---Territorial jurisdiction---Scope---Court had jurisdiction to administer the estate left behind by the deceased in an administration suit which was situated beyond the jurisdiction of court.

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

----O. XX, R. 13---Administration suit---Limitation---Right to file suit for administration of property left by the deceased did not extinguish by afflux of time.

Shehenshah Hussain along with Syed Arshad Ali for Plaintiff.

Muhammad Anwer Tariq for Defendants Nos.1 to 4.

2015 C L C 708

[Sindh]

Before Nazar Akbar, J

Agha Syed MUSHTAQUE ALI SHAH----Applicant

Versus

Mst. BIBI GUL JAN and 8 others----Respondents

Civil Revision Application No.293 of 2011, decided on 15th October, 2014.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), Ss. 3, 4, 9 & 25---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Gift---Donor, responsibility of---Plaint, rejection of---Scope---Plaint was rejected being barred by time---Validity---Donor was bound to appear before the Revenue Officer and be identified by two persons and affixed his signature on the register of mutations---Donor did not appear before Revenue Authority to get the gifted property transferred in the name of plaintiff---Neither any date nor time of having lost the gift deed had been mentioned in the plaint---Law of limitation did not envisage that the period of limitation would stop if the document giving a right to sue was misplaced till the same was re-discovered by the party concerned---Once time had begun to run no subsequent disability or inability to sue would stop it---Plaintiff could not bring his suit within time and court could not ignore the same under S.3 of Limitation Act, 1908---Plaintiff had failed to make a case of cause of action against the defendants---Suit being barred by time, both the courts below had rightly rejected the plaint---Revision was dismissed in circumstances.

Shaad Muhammad Khan v. Government of N.-W.F.P. PLD 2011 Pesh. 172; Wali and others v. Akbar and others 1995 SCMR 284; Muhammad Sharif v. Inayatullah 1996 SCMR 145; Rahman v. Yara 2004 SCMR 1502; Tariq Mehmood v. Najam-uddin 1999 SCMR 2396; Mst. Zareefan v. Mst. Rehmati 1987 SCMR 66; Abdul Rashid Velmi v. Habib-ur-Rehman and 4 others 1995 MLD 397 and Hakim Khan v. Aurangzeb and another 1979 SCMR 625 ref.

Shaad Muhammad Khan v. Government of N.-W.F.P. PLD 2011 Pesh. 172; Wali and others v. Akbar and others 1995 SCMR 284; Muhammad Sharif v. Inayatullah 1996 SCMR 145; Rahman v. Yara 2004 SCMR 1502; Tariq Mehmood v. Najam-uddin 1999 SCMR 2396 and Mst. Zareefan v. Mst. Rehmati 1987 SCMR 66 distinguished.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 198 SC 153 and Siraj Din and others v. Mst. Khurshid Begum and others 2007 SCMR 1792 rel.

(b) Gift---

----Mutation---Duty of donor---Donor was bound to appear before the Revenue Officer and be identified by two persons and affixed his signature on the Register of mutations.

M. Aqil Awan for Applicant.

Irfan Ahmed Qureshi for Respondents Nos.1 and 2.

Sultan Ahmed Khan for Respondent No.3.

Ashfaq Nabi Qazi Asstt. A.-G. for Respondents Nos.4 to 9.

Date of hearing: 19th August, 2014.

2015 C L C 738

[Sindh]

Before Mrs. Ashraf Jahan, J

Mst. MEHRUNNISA----Petitioner

versus

Syed MUHAMMAD ZOHA----Respondent

S.M.A. No.45, C.M.As. Nos.1185 and 770 of 2014, decided on 19th January, 2015.

Succession Act (XXXIX of 1925)---

----S. 372---Petition for grant of succession certificate---Issueless widow---Petitioner was the only surviving legal heir of deceased as at the time of death, the deceased was issueless and his parents had also expired during his lifetime---Despite publication of notice no other person had come forward to claim himself to be legal heir of deceased in any capacity or to object grant of succession certificate in favour of petitioner---Effect---Petitioner would inherit from the estate of deceased 1/4th of the estate as sharer and the remaining 3/4th would revert to her on the doctrine of return (Radd)---High Court issued succession certificate exclusively in the name of petitioner as the sole legal heir of deceased---Petitioner was an old lady with unstable mental condition, therefore, High Court appointed nephew of petitioner and Nazir of Court as joint guardians of petitioner---Application was allowed in circumstances.

Section 66 of Mohammadan Law by D.F. Mulla ref.

Farooq H. Abbasi and Naved Ahmed Khan for Petitioner.

Ms. Yasmin Sultana, State Counsel.

Date of hearing: 22nd December, 2014.

2015 C L C 746

[Sindh]

Before Syed Saeed Uddin Nasir, J

Syed ZAINUDDIN----Plaintiff

versus

SHAH and 4 others----Defendants

Suit No.1195 of 2007, heard on 17th October, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Neither defendant nor his counsel appeared for cross-examination of the plaintiff or his witnesses---Several chances were afforded to the defendant but he did not appear and evidence of plaintiff remained unrebutted---Defendant had failed to lead evidence and his written statement should be discarded---Defendant's pleadings in written statement could not be looked into as he did not lead evidence---Suit of plaintiff was decreed in circumstances.

Faqir Muhammad v. Abdul Momin PLD 2003 SC 594 and Muhammad Bashir v. Iftikhar Ali PLD 2004 SC 465 rel.

Iftikhar Javed Qazi for Plaintiff.

Khalid Hussain Shaikh for Defendant No.5.

Date of hearing: 17th October, 2014.

2015 C L C 772

[Sindh]

Before Syed Saeeduddin Nasir, J

DEFENCE HOUSING AUTHORITY----Plaintiff

versus

CREEK MARINA (PVT.) LIMITED (PAKISTAN) and 4 others----Defendants

Suit No.525 of 2011, C.M.As. Nos.12763 of 2013 and 6229 of 2014, decided on 13th November, 2014.

Civil Procedure Code (V of 1908)---

----O. I, R. 10 & O. XX, R. 16---Suit for rendition of account---Application for impleadment as a party---Scope---Huge investment of applicants were involved in the present case and they should be impleaded as a party to the suit---Interest of applicants would be protected and safeguarded if they were impleaded as a party to the present suit and same would not adversely affect the interest of any other party to the suit---Application for impleadment as a party was accepted and plaintiff was directed to file amended title and amended plaint within a specified period.

Khalid Mehmood Siddiqui for Plaintiff.

Ovais Ali Shah for Defendants Nos.1 to 4.

Ms. Parveen Javed for Defendant No.2.

Sattar Awan for Defendant No.5.

Ms. Navin S. Merchant for Intervenors.

Abdul Rahman, Advocate.

Dates of hearing: 7th and 13th November, 2014.

2015 C L C 790

[Sindh]

Before Nazar Akbar, J

SHAH MUHAMMAD----Plaintiff

versus

EXPORT PROCESSING ZONES AUTHORITY----Defendant

Suit No.1222 of 2008 and C.M.A. No.3278 of 2014, decided on 17th October, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), S. 3---Export Processing Zones Authority Ordinance (IV of 1980), S. 24---Suit for declaration---Plaint, rejection of---Scope---Contention of defendant was that plaint did not disclose cause of action and plaintiff had no locus standi to institute the present suit---Validity---Existence of "cause of action" to raise the "dispute" before a legal forum could not be denied when parties through their pleadings had directly or indirectly confirmed that they had a dispute between them---Contract between the parties with the title of "general agreement" was on record---Defendant had right to invoke arbitration clause under the said agreement---Dispute between the parties could not be decided without recording of evidence---Section 24 of Export Processing Zones Authority Ordinance, 1980 did not bar jurisdiction of civil court in deciding dispute with regard to declaration of right acquired under general agreement and lease deed---Question of point of time or computation of period of limitation to take the benefit of S.3 of Limitation Act, 1908 did not arise as long as the "cause of action" continued---Application for rejection of plaint was dismissed in circumstances.

PLD 1965 SC 83 and NLR 1989 (Civil) 78 distinguished.

Ms. Amber Lakhani for Plaintiff.

Khadim Hussain for Defendant.

Date of hearing: 1st October, 2014.

2015 C L C 844

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD JUNAID PASHA----Plaintiff

versus

FAISAL SALEEM and 2 others----Defendants

Civil Suit No.57 of 2011, decided on 28th May, 2014.

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

----S.118---Civil Procedure Code (V of 1908), O.XXXVII, R.2---Negotiable instrument---Presumptions---Filing of ordinary recovery suit---Effect---Plaintiff filed ordinary suit for recovery of amount on the basis of bank cheques issued by defendants in his favour---Validity---Filing of ordinary suit based on negotiable instrument in no manner deprived plaintiff of the benefits of statutory presumptions attached to negotiable instrument under S.118 of Negotiable Instruments Act, 1881---All cheques and pay orders i.e. loan amount, were debited/shown in statements of accounts---Loan amount was not only acknowledged by issuing five cheques but also acknowledged the same in writing on stamp papers, which were not only signed and executed by defendants but also attested by Notary Public and Justice of Peace---Averments made in plaint, affidavit-in-ex-parte proof and documents produced by plaintiff in his deposition had gone un-rebutted/un-challenged and plaintiff had fully succeeded to establish his claim against defendants---Suit was decreed in circumstances.

Muhammad Sabir v. Khalil-ur-Rehman 2002 CLD 1545; Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111; Muhammad Nazir Khan v. Muhammad Ameer 2012 CLC 644 and Malik Umar Aslam v. Sumaira Malik and another PLD 2007 SC 362 ref.

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

(b) Administration of justice---

----Civil and criminal proceedings---Stopping of civil proceedings---Principle---Civil case cannot be halted to proceed on its merits merely because some criminal proceedings relating to same transaction are pending---Such pendency of cases is not a bar to maintainability of civil proceedings---Both the cases can proceed concurrently because conviction for criminal offence is different matter as far as civil liability is concerned---Spirit and purpose of criminal proceedings is to punish offender for commission of crime, while the purpose behind civil proceedings is to enforce civil rights---Both proceedings in law can co-exist and proceed simultaneously.

Seema Fareed and others v. The State and another 2008 SCMR 839 and Muhammad Saleem and 2 others v. Khuda Bux and 4 others 2013 MLD 266 rel.

(c) West Pakistan Money Lenders Ordinance (XXIV of 1960)---

----S. 3---Money lending business---Determination---Investments of savings, do not necessarily, amount to money lending business, if such investments are few and often made to relatives or friends---If such investments by way of advancing loan are frequently made in the shape of regular money lending business coupled with gain also then, such advancing of loan constitutes engagement in money lending business and consequently prohibited.

Muhammad Asim Tiwana v. Syed Shaukat Hussain Rizvi and 6 others 1999 CLC 1177 rel.

Muhammad Saleem Ibrahim for Plaintiff.

Nemo for Respondents.

Date of hearing: 16th May, 2014.

2015 C L C 877

[Sindh]

Before Aziz-ur-Rehman, J

ASIF MOWJEE----Applicant

versus

ZAHEER ABBAS and others----Respondents

Judicial Miscellaneous No.31 along with Suit No.17 of 2012, decided on 13th March, 2014.

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

----S. 12(2) & O.XXIII, R.3---Qanun-e-Shahadat, (10 of 1984), Art.113---Setting aside of decree---Plea of fraud, or misrepresentation---Consent/compromise decree--- Scope--- Applicant sought to set aside consent/comprise decree in a suit---Contention of applicant was inter alia that "written statement", "applications" and "vakalatnama" of applicant's counsel were obtained by the plaintiffs by putting him and his family under extreme duress and eminent threat or fear---Held, that provisions of S.12(2), C.P.C. could only be pressed into service where any "fraud" or "misrepresentation" was played upon the court during "proceedings", and not otherwise ---Application under S.12(2), C.P.C., in the present case, was framed and filed in a way that no fraud or misrepresentation had even been alleged ---Grounds alleged by the applicant were alien to S.12(2), C.P.C. and were not requisite grounds for assailing decree under S.12(2), C.P.C.---"Fraud" or "misrepresentation" was not only to be alleged, but also were to be proved---All averments /assertions made in the plaint had been admitted by the applicant in his "written statement", and such admissions were binding upon the applicant in view of Art.113 of the Qanun-e-Shahadat, 1984---Respondents had filed counter affidavits to the application under S.12(2), C.P.C. which had gone unchallenged/uncontroverted---All documents including the "vakalatnama" was signed by the applicant, and as such the consent decree passed was not the result of any fraud or misrepresentation particularly when the counsel as per the "vakalatnama" was authorized to compromise the suit---Impugned consent order and decree were not open to interference---Application under S.12(2), C.P.C. was dismissed, in circumstances.

Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi 2002 SCMR 1761; Wazir Hussain v. Abdul Rehman through legal heirs and another 2002 YLR 1600; Land Acquisition Collector Tarbella Dam Resettlement Organization, WAPDA, Ghazi and 2 others v. Hikmat Khan and another 1996 MLD 1587; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782 and Muhammad Nawaz Khan v. M. Khan and 2 others 2002 SCMR 2003 ref.

Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Dr. Ansar Hassan Rizvi v. Syed Mazahar Hussain Zaidi 1971 SCMR 634; AIR 1930 PC 158 and Mobile Eye Service of Pakistan Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 rel.

(b) Administration of Justice---

----Conflicting/contradictory pleas---When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, such act by itself leads to the presumption that the person did not have a genuine cause of action---Conflicting stands amount to destroying ones own cause of action, and therefore the entire foundation of plaintiff claim was to be treated as false.

Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Ltd. and 5 others 2006 CLC 342 rel.

Muhammad Jamshed Malik along with Abdul Qayoom Abbasi for Applicant.

S. Ali Bin Adam Jafri for Respondent No.1.

Khalid Mehmood Shah along with Ghulam Murtaza Malik of Liaquat Merchant Associates for Respondent No.2.

Date of hearing: 26th February, 2014.

2015 C L C 916

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs SAUDI ARABIAN AIRLINES----Applicant

versus

Messrs INTERNATIONAL MARKETING CORPORATION and others----Respondents

Execution Application No.49 of 2009, Suit No.1101 of 2000, C.M.As. Nos.309 and 325 of 2013, decided on 22nd September, 2014.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 22 & 66---Execution petition---Sale of attached property---Objections---Notice to Judgment-debtor to settle terms of sale---Necessity---Deposit of decretal amount, application for---Constructive res judicata, principle of---Applicability---Contention of judgment-debtor was that neither notice for sale proclamation nor for settling terms of sale were issued---Validity---No notice under O.XXI, R.66, C.P.C. was issued to the judgment-debtor nor such application had been preferred---Decree-holder was bound to apply for a notice under O.XXI, R.66, C.P.C. so that judgment debtor had an opportunity of raising objection to the sale, if any, or assist in settling terms to sale--- Judgment-debtor was entitled for notice to settle terms of sale proclamation---Judgment-debtor would lose right to object the execution petition after his service through public notice---Service of earlier notice would not take away the right of judgment-debtor to claim notice when property was put to auction---Sale could not be considered to be a valid sale in absence of notice under O.XXI, R.66, C.P.C.---When the judgment-debtor, in response to the notice, failed to appear, he was precluded by the rule of constructive res judicata from raising such objection at a later time and not by virtue of notice under O.XXI, R.66, C.P.C.---Non-compliance to the provisions of O.XXI, R.66, C.P.C. might vitiate the sale on account of material irregularity---Application for deposit of decretal amount was accepted in circumstances.

Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi 2013 SCMR 1419; National Bank of Pakistan v. SAF Textile Mills Ltd. PLD 2014 SC 283; Messrs Ripple Jewellers (Pvt.) Ltd. v. First Women Bank, 2003 CLD 1318; Khursheed Begum v. Inam-ur-Rehman Khan PLD 2009 Lah. 552; Muhammad Hassan v. Muslim Commercial Bank Ltd., 2003 CLD 1693; Liaquat Ali v. Bashiran Bibi 2005 CLC 11 and Ali Match Industries Ltd. v. Industrial Department Bank of Pakistan 1999 MLD 2127 rel.

Muhammad Amin for Decree holder.

Mrs. Sofia Saeed for Judgment debtor.

Mohsin Shahwani for Bidder/Auction purchaser.

Date of hearing: 18th April, 2014.

2015 C L C 1061

[Sindh]

Before Nazar Akbar, J

MUHAMMAD ASHRAF and another----Applicants

versus

DILSHAD ALI and 3 others----Respondents

C.M.As. Nos.3541 of 2009 and 945 of 2013 in Suit No.217 of 2009, decided on 10th December, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for specific performance of contract---Stranger to the contract---Impleadment of party---Scope---Intervener could not be a proper or necessary party in the suit for specific performance of contract as he had no privity to the contract sought to be enforced---No justification existed to implead interveners as defendant in a suit for specific performance of contract---Only contracting parties were supposed to be before the court in the suit for specific performance of contract---Stranger could not be impleaded as party in such suit.

Yawar Farooqui for Applicants.

Nemo for Defendants.

Neel Keshov for Applicant(s)/Intervenor(s).

Date of hearing: 3rd December, 2014.

2015 C L C 1071

[Sindh]

Before Nazar Akbar, J

HUMMA EJAZ----Plaintiff

versus

Ms. FOZIA JABEEN through Attorney----Defendant

Civil Suit No.1666 of 2012, decided on 16th December, 2014.

Civil Procedure Code (V of 1908)---

----O. V, R.15---Registration Act (XVI of 1908), S.17--- Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Owner of property an illiterate lady---Agreement to sell through attorney---Power of attorney, non-registration of---Effect---Summons, service of---Scope---Service of summons on maid of defendant in a suit was not proper service---Plaintiff had failed to place on record any registered power of attorney---Seller's (owners) title document should be registered for the purpose of alienation of immovable property---If immovable property was sold through power of attorney then same should have been registered and without the same attorney could not be deemed to have been duly authorized to sell the property---General power of attorney, in the present case, was not a registered document, therefore, agreement of sale through attorney (of actual owner) on the basis of said power of attorney was not enforceable in law---Court had to be even more careful in a case of an immovable property of an illiterate woman---Suit was dismissed in circumstances.

Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377 rel.

Nemo Present.

Date of hearing: 16th December, 2014.

2015 C L C 1074

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

ABID ALI----Petitioner

versus

Messrs BAZAR-E-FAISAL BUILDIERS AND DEVELOPERS through Azam Hussain and 2 others----Respondents

Constitutional Petition No.D-1198 of 2010, decided on 23rd January, 2015.

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

----S. 9---Partnership Act (IX of 1932), S. 69---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for restoration of possession---Fundamentals to be proved---When a person was dispossessed of immovable property without his consent and otherwise than due course of law, suit under S.9 of Specific Relief Act, 1877 could be filed---Controversy, in the present case, was not with regard to the right arising from a contract to be enforced by the plaintiff through the suit against the defendant---Plaintiff had come to the court against wrong defendant who had allegedly dispossessed him from the suit property---Court under S.9 of Specific Relief Act, 1877 could decide only the claim of possession and was not required to decide title, right or legal character of claimant of the property---Fundamentals to be proved by the plaintiff in order to succeed in such suit would be his possession on immovable property and he was dispossessed from the property without his consent and such dispossession was otherwise than due course of law---Question of title was ancillary to the proceedings under S.9 of Specific Relief Act, 1877 which could not be looked into for restoring the possession---Version of defendant was not supported by any evidence---Defendant had failed to justify his possession on the suit property---Findings of both the courts below were in accordance with the evidence on record---No prejudice had been caused to the defendant---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---No gross violation of law or misreading or non-reading of evidence was on record---Constitutional petition was dismissed, in circumstances.

PLD 1968 Kar. 196; 1986 CLC 242; 1994 MLD 274 and PLD 1987 Kar. 180 ref.

Abdul Rehman v. Parvez Ahmed Butt and 2 others 1983 CLC 1740 rel.

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

----S. 9---Suit for restoration of possession---Object---Object of provision of S.9 of Specific Relief Act, 1877 was to accord a right to the person to promptly have his possession of immovable property taken back in the face of his dispossession without his consent and otherwise than due course of law---Object of S.9 of Specific Relief Act, 1877 was to discourage people from forcibly occupying the immovable property by taking law in their hands and further to safeguard the possession of a person to the immovable property irrespective of his title---Said provision of law would provide for undoing the wrong with simple, effective and effectual remedy available to the party wronged without a lengthy hassle.

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

----S. 9---Suit for restoration of possession---Requirements---Fundamentals to be proved by the plaintiff in order to succeed in a suit for restoration of possession would be his possession on immovable property and that he was dispossessed from the property without his consent and such dispossession was otherwise than due course of law.

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

----S. 9---Suit for restoration of possession---Limitation---Limitation for a suit for restoration of possession was six months from the day when dispossession took place.

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

----S. 69---Non-registration of firm---Effect---Impediment envisaged under S.69 of Partnership Act, 1932 would be attracted only when a right arising out of a contract was to be enforced against either the firm or any past or present member of the same or against any third party.

Abdul Rehman v. Parvez Ahmed Butt and 2 others 1983 CLC 1740 rel.

(f) Estoppel---

----Person was estopped to say a thing at a particular point of time which had been acted upon and then deny it subsequently.

(g) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court has limited jurisdiction to examine the factual controversy between the parties.

Muhammad Sadiq Hidayatullah for Petitioner.

Mahmood Ahmed Khan for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 25th November, 2014.

2015 C L C 1090

[Sindh]

Before Nazar Akbar, J

CLIFTON BLOCK-7 RESIDENTS' ASSOCATION through V.P. Amir and 6 others----Plaintiffs

versus

ZUBAIR AHMED and 5 others----Defendants

Suit No.939 and C.M.A. No.8902 of 2010, decided on 4th December, 2014.

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

----Ss. 42 & 54---Constitution of Pakistan, Arts.23, 189 & 201---Civil Procedure Code (V of 1908), S.11, Expln.VI & O.VII, R.11---Suit for declaration and injunction---Res judicata, principle of---Rejection of plaint---Public importance issue---Plaintiffs were residents of road in question and they assailed commercialization of the road---Defendants sought rejection of plaint on the plea that commercialization of road in question had already been decided in earlier proceedings in presence of plaintiff's registered Association--- Validity--- Once registered Association of residents of the area was present before Court and 'issue' of public importance for and on behalf of residents was raised by them and the Court had decided the 'issue', the individual members or other residents of same locality were bound by the decision of Court on that particular 'issue' in which they were very much interested and they could not claim that such decision of the Court on the said 'issue' was not binding on them because they were not individually party to that judgment---Plaintiffs were no other than the community of residents of same locality and the issue re-agitated by them through the suit had already stood answered by Division Bench of High Court, therefore, earlier judgment was binding on them in terms of Expln.VI to S.11, C.P.C.---Plaintiffs abused process of Court in denying defendants to freely exercise their fundamental right to acquire, hold and 'dispose of property' guaranteed to them by Art.23 of the Constitution---Plaintiffs attempted to persuade the Court to pass orders against mandate of Arts.189 & 201 of the Constitution---Suit was dismissed with costs in circumstances.

2014 CLD 222; Irfan and 7 others v. Karachi Building Control Authority and 5 others 2005 CLC 694; Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan (Now Province of Punjab) through Collector, Bahawalpur 1971 SCMR 447; Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 and Ardeshir Cowasjee and 7 others v. Karachi Building Control Authority (KBCA) through Chief Controller of Buildings, Karachi and 3 others PLD 2006 Kar. 63 ref.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 rel.

(b) Constitution of Pakistan---

----Art. 201---Judgment by High Court---Binding effect---Scope---Merely because plaintiffs had taken a separate ground which was not raised before a Division Bench of High Court while declaring that commercialization of road in question as lawful, was not enough to go against earlier judgment of Division Bench of High Court by ignoring Art.189 of the Constitution---Division Bench of High Court of same High Court had status of law pronounced by Court and had binding effect on all Courts subordinate to it including Single Bench of High Court.

University of Health Sciences and others v. Mumtaz Ahmed and another 2010 SCMR 767 and Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 rel.

Ch. Atif for Plaintiffs.

Murtaza Wahab for Defendants Nos.1 and 2.

Date of hearing: 9th October, 2014.

2015 C L C 1104

[Sindh]

Before Syed Saeeduddin Nasir, J

Messrs EFU GENERAL INSURANCE LIMTED, KARACHI----Plaintiff

versus

Messrs NINA INDUSTRIES LIMITED, KARACHI----Defendant

Suit No.641 of 2011, decided on 31st January, 2015.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of cheque---Application for leave to defend the suit---Plaintiff insurance company sought recovery of money on the basis of dishonoured cheques issued by the defendant---Defendant sought leave to defend the suit on the plea that suit was not validly filed and cheques were handed over to plaintiff company by banks who were keeping those cheques---Validity---Burden to show that suit was filed by authorized person was upon plaintiff and the plaintiff had successfully discharged that burden by producing power of attorney executed by Managing Director/Chief Executive Officer of plaintiff company---If there was no defect in institution of proceedings, the suit was maintainable and power of attorney stated that by virtue of whatever was contemplated by Articles of Association of plaintiff company, the Chief Executive Officer was empowered to appoint sub-attorney to file suit---Defendant failed to make out a case for grant of leave to defend the suit as defendant had not been able to raise any plausible defence, triable issue and/or substantial question of law or fact for the grant of the same---In summary suit, on promissory notes and cheques when defence sought to be set up was fake, without any material to support and just bald allegations without any substance, both on legal and factual planes, the leave was to be refused outright---When issues raised by defendant in leave to defend application were illusory, the leave should not be granted and should be refused---High Court declined to grant leave to defend the suit---Suit was decreed in circumstances.

Saeed Abbas v. Agar International (Pvt.) Ltd. 2011 CLD 1757; M. Muhammad Shafi & Co. v. A. Rahman Enterprises 2010 CLD 920; Zubair Ahmed v. Shahid Mirza 2004 SCMR 1747; Muhammad Saleem v. Waqar Akhtar 2011 CLC 172; Habib Bank Ltd. v. Al-Meezan International Ltd. 1985 CLC 3023; Mirza Irfan v. Muhammad Yaqoob 2011 MLD 1024; Industrial Mining Enterprises v. Industrial Mineral Corporation Ltd. 1985 MLD 181; Tahir Mehmood Shaikh v. Prism Communication Ltd. 1993 MLD 637; Seven Seas Services Limited v. World Marine Services Ltd. 1985 MLD 916; National Security Insurance Co. Ltd. v. Ghulam Hussain Haidayatullah Textile Mills Ltd. 1988 MLD 316; S.M. Abdullah Sons v. Crescent Star Insurance Co. Ltd. 1993 MLD 1239; Crescent Star Insurance Co. Ltd. v. S.M. Abdullah and Sons 1980 CLC 1919; United Bank Ltd. v. Pak. Leather Grafts Ltd. 2010 CLD 701; Khan Iftikhar Ahmed Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1959 SC (Pak) 258; National Bank of Pakistan v. Anwargaib White Cement Ltd. 2007 CLC 657; Ciba-Geigy (Pak) Ltd. v. Muhammad Safdar 1993 MLD 997; American Insurance Company (Pakistan) Ltd. v. Commissioner, Sindh Employees, Social Security Institution 2010 PLC (C.S.)1150; Balooch Akbar Khan v. Muhammad Hussain 2004 CLC 356 and Qamran Construction (Pvt.) Ltd. v. Saleemullah 2008 CLD 239 ref.

Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163 and Muhammad Anwar v. Hoechst Pharmaceutical PAU (Pvt.) Ltd. 1989 MLD 171 rel.

Naeem Ahmed for Plaintiff.

Mujahid Bhatti for Defendant.

Date of hearing: 27th November, 2014.

2015 C L C 1116

[Sindh]

Before Nazar Akbar, J

Raja REHMAT KHAN----Plaintiff

versus

MUHAMMAD AAMIR TASTEE and 2 others----Defendants

Suit No.828 of 2009 and C.M.A. No.14160 of 2013, decided on 12th January, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Specific Relief Act (I of 1877), S.9---Suit for possession of immovable property owned by government and leased to private persons---Impleadment of Government as a party---Scope---Government could not be impleaded as a party in a suit for possession filed under S.9 of Specific Relief Act, 1877---Application for impleadment of party was dismissed in circumstances.

Badar Alam for Plaintiff.

K.B. Bhutto for Defendant No.3.

Date of hearing: 28th October, 2014.

2015 C L C 1118

[Sindh]

Before Syed Saeeduddin Nasir, J

JAAM AZHAR ALI----Petitioner

versus

FAMILY JUDGE NO.V, HYDERABAD and 2 others----Respondents

C.P.No.S-553 of 2014, decided on 29th August, 2014.

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

----S. 12---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minors---Father meeting minors on court premises on orders of Guardian Judge---Constitutional jurisdiction of High Court to interfere in such matter---Scope---Father claimed that mother had violated order of Guardian Judge by not letting him meet the minors (aged 12 and 13 years respectively), and consequently filed present Constitutional petition before the High Court to take action against the mother---Held, that present case was purely within the jurisdiction of the Guardian Judge, and the High Court had no jurisdiction except for procuring recovery of minors through the police---Mother along with minors was present before the Court, and the minors pleaded to the court that they did not want to meet their father inasmuch as he tortured and abused them as well as their mother---For getting custody of minors the appropriate legal course open to the father was under the provisions of the Guardians and Wards Act, 1890---Father had voluntarily stopped meeting the minors by making a statement before the Guardian Judge that he was withdrawing from the court meetings as his daughter had attained age of majority, and he did not want her to come to court---Minors had been produced before the Court, and they did not want to have any connections with their father, therefore, present Constitutional petition did not have any merits---Constitutional petition was dismissed accordingly.

Petitioner in person.

Behzad Ali Umrani for Respondent No.3 along with Respondent No.3 and minors in person.

Date of hearing: 29th August , 2014.

2015 C L C 1124

[Sindh]

Before Nazar Akbar, J

Mst. PARVEEN JAMAL HASSAN----Plaintiff

versus

MUSHTAQ-UR-REHMAN and 3 others----Defendants

Suit No.1047 of 2011, decided on 12th February, 2015.

Succession Act (XXXIX of 1925)---

----Ss. 284, 278 & 372---Sindh Chief Court Rules (O.S.), R.413---Grant of Letter of Administration in respect of immovable property of deceased---Caveats against grant of Letter of Administration---Alleged oral gift---Succession petition was supported with "no objection" affidavits of three legal heirs, however, one remaining legal heir filed caveat under S.284 of the Succession Act, 1925 contending that deceased had orally gifted suit property solely to him---High Court converted petition into a suit as per R.413 of the Sindh Chief Court Rules (O.S.) and held that burden of proving the said oral gift was on the caveator, however, he failed to appear as a witness to prove his claim of oral gift of the property in dispute and also failed to cast doubt on evidence led by the petitioner and her witnesses in support of her claim of seeking Letter of Administration of the property of the deceased---Caveator had not disputed relationship of the petitioner and other legal heirs with the deceased and had failed to prove the alleged gift and did not produce any witnesses to confirm the contents of declaration of the said oral gift---Caveat filed by the caveator/objector was dismissed and High Court directed that Letter of Administration be issued to the petitioner in accordance with the Rules---Petition was allowed, accordingly.

Mumtaz Ali Khan Deshmuk for Plaintiff.

Muhammad Junaid Aziz for Defendant No.1 (absent).

Zia-ur-Rehman for Defendant No.2 (absent).

Muhammad Qaiser Qureshi for Defendant No.3 (absent).

Zareen Ishaque Defendant No.4 (absent).

Date of hearing: 12th February, 2015.

2015 C L C 1135

[Sindh]

Before Aftab Ahmed Gorar, J

ZAHID YOUNUS son of Muhammad Younus: In the matter of Mrs. Khair un Nisa Widow of Muhammad Younus Habib

S.M.A. No.37 of 2015, decided on 14th May, 2015.

Succession Act (XXXIX of 1925)---

----Ss. 278, 291, 373 & 375---Sindh Chief Court Rules, (O.S.), R.400---Petition for grant of Letter of Administration in respect of immovable property belonging to deceased---Application for exemption from furnishing surety/security---Petitioner, along with petition filed under S.278 of Succession Act, 1925 for issuance of Letter of Administration in respect of immovable property belonging to the deceased, had filed application under S.375 of Succession Act, 1925, read with R.400 of the Sindh Chief Court Rules (O.S.), with a prayer for exemption of the petitioner from furnishing the surety/security and that Letter of Administration could be issued on the execution of personal bond---Validity---Under provisions of S.291 of Succession Act, 1925, consequent upon the grant of Letter of Administration, it was incumbent upon the person in whose favour such Letter of Administration had been issued, to furnish a bond with one or more surety, or sureties for due collection and administration of the estate of the deceased---Where the court could not decide the right to the certificate without determining question of law, or fact which seemed to be too intricate and difficult for determination in summary proceedings, as contemplated in S.373(3) of Succession Act, 1925 and in a case when there were more applicants than one for a certificate and it appeared to the court that more than one of such applicants were interested in the estate of the deceased, court while granting a certificate to the petitioner, had no discretion to dispense with furnishing of security for grant of succession certificate---No discretionary power, was vested in the court to dispense with the condition of furnishing surety---Petitioner having sought Letter of Administration in respect of only the immovable properties, prayers in the application, could not be granted.

Kamran Mirza v. Moazzam Mirza PLD 2014 Sindh 500 and Muhammad Javed Akhtar reported in 1987 CLC 262 ref.

Muhammad Arif Shaikh for Petitioner.

Date of hearing: 14th May, 2015.

2015 C L C 1144

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

ABDUL ALEEM BUTT----Appellant

versus

Messrs BAHRIA FOUNDATION----Respondent

High Court Appeal No.354 of 2006, decided on 5th November, 2014.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of negotiable instrument---Promissory note---Scope---Conditional leave to defend the suit subject to furnishing surety was granted but same was not submitted and suit was decreed---Contention of defendant was that alleged promissory note was not a negotiable instrument but same was only a written document---Validity---Promissory note executed between the parties contained an unconditional undertaking on the part of defendant to pay on demand a sum of Rs.5.5 million to the plaintiff---Bare attestation of said document by two witnesses would not exclude the same from its status of being promissory note as no language appeared therein that payment was not payable to "order" or "bearer" which was prerequisite of a bond---Conditional leave to defend the claim was granted to the defendant and said order was not challenged by him and same had attained finality---Defendant having agreed to defend the suit conditionally, was estopped from raising any plea subsequently without first fulfilling the condition subject to which he was granted leave to defend the suit---Failure of defendant to comply the order with regard to furnishing of surety had left no option with the court but to decree the suit---Appeal was dismissed in circumstances.

AIR 1925 Patna l88; AIR 1962 Patna 325; PLD 1963 K 926; PLD 2007 Lahore 114; 2011 SCMR 1559; 1996 SCMR 1530; PLD 2005 SC 322; PLD 1987 K 76; 1991 CLC 164; AIR 1978 Madras 712; AIR 1968 Rangoon 45 and PLD 1995 SC 362 ref.

PLD 1995 SC 362; Farid Akhtar Hadi v. Muhammad Latif Ghazi and another 1988 CLC 2397; Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam 2014 SCMR 1562 and Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 882 rel.

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

----S. 2(5)---Bond---Scope---Bond was an instrument whereby a person would be bound to pay money to another person conditionally, however such obligation binding the person would become void on performance or non-performance of a specified act---Bond could be without any condition whereby a person would be bound to pay money to the other through a document attested by a witness but not payable to "order" or "bearer" and such bond could be an instrument committing a person to deliver agricultural produce to another---Test to find out whether a document was a bond or not, the whole document itself coupled with intent of the parties therein was to be examined---lf document spoke about a liability or a right in existence between the parties prior to the execution of such instrument then same would not be a bond---Document which had created obligation for the first time would be deemed to be a bond and prerequisite would be that same should not be payable to the "order" or "bearer".

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

----S. 4---Stamp Act (II of 1899), S.2(22)---Promissory note---Scope---Promissory note was a document in writing which should contain an unconditional undertaking or a promise to pay on demand or at the fixed or future time which was determinable a certain sum of money only and the payment should be to or to the order of a certain person or to the bearer of the instrument---Such document was required to be signed by its maker to make it a promissory note---Said document was always considered independent of other dealings between the parties---Question whether a document was promissory note or not could be determined by the words used therein---Promissory note could not be a bank-note or currency note---Where a document was executed encapsulating a promise by its maker to pay the money and so long as the words used themselves expressed a promise, the same would be construed to be a "promissory note".

Ch. Abdul Rashid for Appellant.

Muhammad Yaseen Azad for Respondent.

Date of hearing: 16th October, 2014.

2015 C L C 1154

[Sindh]

Before Nazar Akbar, J

MUHAMMAD MUZAMMIL AFZAL BHATTI----Plaintiff

versus

MUHAMMAD SHAHAB SAQIB and 2 others----Defendants

Suit No.2392 of 2014, decided on 2nd February, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Application for temporary injunction---Defendants had specifically denied the execution of any agreement or Iqrarnama which could be decided after recording of evidence---Burden to establish by positive evidence that such agreement had been entered into by and between the parties was on the plaintiff---Plaintiff had chosen a civil forum for redressal of his grievance through suit against the defendants---Defendants could not be restrained from taking a lawful course for redressal of their grievance---Civil and criminal proceedings were independent from each other---Criminal court could not defeat the plaintiff's right to pursue a civil remedy against the complainant---Plaintiff by filing a suit could not restrain the defendants from lodging the FIR if case was made out---Nobody was supposed to file/lodge a false case against anybody and if he had made the same then victim would be entitled to avail a remedy in criminal court for prosecuting the complainant---Plaintiff had no case to restrain the defendants from taking a legal course for redressal of their grievance---Application for grant of temporary injunction was dismissed in circumstances.

Zayyad Khan Abbasi for Plaintiff.

Shaikh Liaquat Hussain for Defendants.

Date of hearing: 13th January, 2015.

2015 C L C 1157

[Sindh]

Before Aziz-ur-Rehman, J

SARDAR AHMED ABBASI----Applicant

versus

MUHAMMAD ZAMAN ABBASI and 4 others----Respondents

Judicial Miscellaneous No.57 of 2010 in Suit No.1333 of 2007, decided on 23rd April, 2014.

(a) Constitution of Pakistan---

----Art. 10-A---Right to fair trial and due process of law---Scope---Provisions of Art.10-A of the Constitution mandate that 'civil rights' and 'obligations' be adjudicated upon through a 'fair trial' and 'due process' of law---'Fair trial' and 'due process' of law besides being fundamental right, not only cover 'substantive' but procedural 'due process' as well.

Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

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

----S. 12(2)---Application under S.12(2), C.P.C.---Procedure---Scope---Judgment, decree or order, setting aside of---Procedure---For determination of application under S.12(2), C.P.C., no procedure has been provided---Court is not under any obligation to frame issues, record evidence of parties or otherwise follow prescribed procedure as being necessary for a decision in suit---Keeping in view illegalities leveled in application under S.12(2), C.P.C., Court in its own discretion can adopt any mode of procedure for decision of application.

Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 and Zafarullah etc. v. Dost Muhammad and others PLD 1984 Lah. 396 rel.

(c) Fraud---

----Proof---Fraud vitiates the most solemn proceedings---Fraud cannot be proved directly, it has to be inferred from surrounding circumstances plus conduct of parties to proceedings.

Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221; Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134; Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 and Munir Ahmad Khan v. Sameeullah Khan 1986 CLC 2655 rel.

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

----S. 12(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Fraud and misrepresentation---Judgment and decree, setting aside of---Defendant sought setting aside of ex parte judgment and decree passed against him on the plea of fraud and misrepresentation---Validity---'Misrepresentation' and 'fraud' during proceedings was apparent from the record---Defendant and plaintiff were brothers and correct address of defendant was well in the knowledge of plaintiff---With a view to create confusion and to procure 'ex parte decree', native district of defendant was mixed up with another district and summons were got issued to him through District Judge of that another district instead of his native district---'Ex parte judgment and decree' were obtained by playing 'misrepresentation' and 'fraud' and the same were liable to be set aside---Any aggrieved person, without filing separate suit could challenge the same on the ground of 'fraud', 'misrepresentation' or 'want of jurisdiction' by simply filing application under S.12(2), C.P.C.---Requisite ingredients of S.12(2), C.P.C., had been fully established by applicant and application under S.12(2), C.P.C., was competent in law as well maintainable---High Court set aside ex parte judgment and decree passed in favour of plaintiff and against defendant---Application was allowed in circumstances.

Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166; Mehr Din through legal heirs v. Azizan and another 1994 SCMR 1110; Messrs Al-Ahmed (Pvt.) Ltd. v. Anjuman Falah-O-Behbood, Hazara Mughal Goth and others 2009 CLC 299; Muhammad Ramzan v. Muhammad Akbar Bhatti 2013 CLC 1561; Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through President and 2 others 2012 CLC 507; Gulfam and others v. Bibi Qudsia Begum and others 2003 CLC 1183; Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Hakimuddin v. Faiz Bux 2007 SCMR 874; Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others PLD 1975 Kar. 598; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 and Boman Abadan Irani and others v. Jehangir J. Mobed and others PLD 1967 Kar. 449 ref.

Qazi Khalid Ali and Qazi Asif Ali for Applicant.

Mustafa Lakhani for Respondent No.1.

Date of hearing: 1st April, 2014.

2015 C L C 1190

[Sindh]

Before Aftab Ahmed Gorar, J

Lt. Col. (R) MUHAMMAD YOUNUS----Applicant

versus

PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY and another----Respondents

Civil Revision Application No.157 of 2005, decided on 19th April, 2013.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Such jurisdiction having limited scope could be exercised only when subordinate court either exceeded its jurisdiction or refused to exercise same or exercised same in an illegal manner.

AIR 1941 Oudh 155; 1971 DLC 291; 2007 CLC 160; 2000 SCMR 431; PLD 1995 SC 472; 2000 SCMR 974; PLD 1970 SC 506; 1997 CLC 176; 1995 SCMR 266; PLD 1982 Lah. 132; 1996 CLC 1620; 1991 MLD 437 and PLD 1985 Lah. 112

2001 SCMR 789 and PLD 1994 SC 291 rel.

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

----O. I, R. 9---Misjoinder or non-joinder of necessary party in suit---Effect---Civil proceedings in a court of law could not be defeated due to such reason.

2009 SCMR1368 and 2004 CLC 782 rel.

Zafar Iqbal Dutt for Applicant.

Nazar Hussain Dhoon for Respondent No.1.

Adnan Iqbal for Respondent No.2.

Dates of hearing: 10th and 17th April, 2013.

2015 C L C 1209

[Sindh]

Before Syed Hasan Azhar Rizvi, J

IMRAN BUTT----Petitioner

versus

MEHREEN IMRAN and another----Respondents

Constitutional Petition No.S-650 and C.M.A. No.3286 of 2013, heard on 9th July, 2013.

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

----Ss. 12 & 25---Constitution of Pakistan, Art.199---Constitutional petition---Interim custody of minor---Welfare of minor---Father filed application for custody of minor girl wherein temporary custody during summer vacation was urged which was dismissed by the Family Court---Father was lawful guardian of his minor child and was ordinarily entitled to his custody provided such was for the welfare of the minor---Right of father to claim custody of minor was not an absolute right and he might disentitle himself to custody on account of his conduct---Custody of minor child, in the present case, was given to the applicant time and again but no complaint was available on record regarding misbehaviour or taken undue advantage of the court's orders---Father and mother both were working parents, therefore, had equal right to have temporary custody of minor---Applicant was depositing maintenance of the child regularly fixed by the Trial Court---Minor daughter was in her tender age and she required love and care of both the parents---Father was entitled to spend some time with her daughter at his house during summer vacations---Applicant had contracted second marriage, however his wife had filed her affidavit to the effect that she had love and affection for minor and would not cause harm to her---Father sought interim custody of minor during winter vacations which was granted but same was refused for summer vacations---Family Court, by refusing the temporary custody, misconstrued the application of father---Constitutional petition was allowed with certain modifications.

Haseeb Jamali for Petitioner.

Rizwan Ahmed Siddiqui for Respondent No.1.

Date of hearing: 9th July, 2013.

2015 C L C 1223

[Sindh]

Before Syed Saeeduddin Nasir, J

PAKISTAN RAILWAY EMPLOYEES' COOPERATIVE HOUSING SOCIETY LTD. through authorized member of the Managing Committee----Applicant

versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller and 9 others----Respondents

C.M.As. Nos.283, 156 of 2015, 4550, 4551, 9888 of 2011, 3034 of 2007, 8246 of 2008, 820, 9573 of 2009, 15695, 15696, 15836, 16083, to 16086, and 16442 to 16444, 114, 14510 of 2014 in Suit No.452 of 2007, decided on 25th February, 2015.

Civil Procedure Code (V of 1908)---

----Ss. 94 & 151, O.XXXIX, Rr.2(3), 7, O.XXXVIII, R.5 & O.XL, R.1---Attachment of property and appointment of receiver---Scope---Defendant was restrained to raise any construction or part-with possession of suit property through an injunctive order but he violated the order---Plaintiff applied to court for attachment of property and appointment of receiver under O.XXXIX, Rr.2(3), 7 and O.XL, R.1, C.P.C.---Held, in given circumstances, court could not attach property or appoint receiver under O.XXXVIII, R.5 or O.XL, R.1. C.P.C. but it was vested with powers to attach property, under O.XXXIX, R.7, C.P.C. in respect of which injunctive order had been passed.

Haji Muhammad Hussain and others v. Muhammad Abbas 2001 YLR 1767; Muhammad Aslam v. Mahmood Ali and another 1986 CLC 160; Pir Omar Khayyam v. Mrs. Ruby Hameedullah and others 2014 YLR 1654; Syed Munawar Hussain Shah v. Syed Nusrat Hussain and others 2014 CLC 945; Saeed ur Rehman v. Ehsanullah Khan Afridi and others PLD 2007 Kar. 527; Muhammad Aslam v. Mahmood Ali and another 1986 CLC 160; Asadullah Mirbahar and another v. Mrs. Ayesha Muzahir and others PLD 2011 Kar. 151; Sahibzada Ghulam Muhammad Khan v. Nawab Jahangir Khanji and others PLD 2011 Kar. 602; Mst. Salma Jawaid and others v. S.M. Arshad and others PLD 1983 Kar. 303; Smt. Vanibai and another v. Republic of Pakistan and others PLD 1970 Kar. 42; Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and others PLD 1975 Lah. 492; Mst. Ghulam Zainab and others v. Mst. Tahira Sultana and others PLD 1977 Lah. 830; Latif-ur-Rehman v. Haji Farmanullah PLD 2014 Pesh. 1; Mehtab Beg and others v. Chiragh Ali 1975 SCMR 54; Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Kar. 498; Salahuddin v. Rahim Bakhsh PLD 1992 Quetta 59; M/s H. Nizam Din and Sons Limited v. M.V. "Oroomee" and others PLD 1977 Kar. 722; M/s STFA C. & CO. v. Naeem Khan 2005 CLC 1270; Muhammad Ather Hafeez Khan v. M/s Ssangyong and Usmani JV PLD 2011 Kar. 605; Mrs. Rukhsana Yasmeen (Yahya) v. Naza Ali and others 2012 MLD 171 and Md. Anwarullah Mazumdar v. Tamina Bibi and others 1971 SCMR 94 ref.

Faisal Siddiqui for Applicant.

Ms. Sabah Siddiqui for Respondent No.1.

Ms. Atiqa Iram for Respondents Nos.2 and 3.

Mushtaq A. Memon for Defendant No.7.

Nadeem Memon, Mumtaz Hussain and Abdul Waheed for proposed Intervenors.

Date of hearing: 25th February, 2015.

2015 C L C 1241

[Sindh]

Before Amer Raza Naqvi, J

MUHAMMAD RAHMATULLAH through Attorney----Plaintiff

versus

SUB-REGISTRAR "T" DIVISION-II-A NOW SUB-REGISTRAR-I, CLIFTON TOWN, KARACHI and another----Defendants

Suit No.Nil of 2014, decided on 11th August, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration against dead person---Maintainability---Office objection---Office raised objection that suit against dead person was not maintainable---Validity---Gift, in the present case, had been completed through a registered document which had created a vested right in favour of legal heirs of deceased who had not been made party to the suit---Suit in the present form (against dead person) was not maintainable which was dismissed---High Court observed that plaintiff would be at liberty to file proper proceedings in accordance with law.

Muhammad Azam Khan for Plaintiff.

2015 C L C 1253

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD SANAWAR KHAN----Petitioner

versus

AKHTAR KHAN and 2 others----Respondents

Constitutional Petitions Nos.417 and 418 of 2010, decided on 25th September, 2014.

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

----Ss. 15 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Evidence recorded in one case copied in another case---Effect---Contention of landlord was that premises was required for his personal bona fide need and tenant had committed default in payment of rent and he had raised illegal construction in front of house in question---Eviction petition was dismissed concurrently---Validity---Evidence recorded in one case copied in verbatim in other case would not be fatal as landlord had not objected with regard to the mode of recording of evidence before the Trial Court---No such plea having been raised before the courts below and before third forum, such objection was not sustainable---Landlord had not been able to point out that he was prejudiced by the alleged mode for recording of evidence---Landlord had been non-suited on his own omission and he was not aggrieved by any procedural defect on the part of Rent Controller---Landlord had lost his first case before the Rent Controller on similar facts and circumstances and had failed to establish default in payment of rent on the part of tenant---Nothing was on record with regard to new cause of action accrued to the landlord for personal bona fide need of demised premises---No evidence had been brought on record with regard to additions and alternations in the demised premises---No notice was served on the tenant with regard to retirement of landlord---Landlord was in possession of second and third floor of the building which had no nexus with the demised premises---Provisions of S.14 of Sindh Rented Premises Ordinance, 1979 were not attracted to the present case---Findings recorded by the courts below were in accordance with the material on record---Constitutional petition was dismissed in circumstances.

Malik Aman v. Haji Muhammad Tufail PLD 1976 1446; Mst. Bibi Husan Bano v. Fazal Hussain PLD 2000 Kar. 119; Miss Afifa v. M.A. Saleem Khan and another 1984 CLC 1995; Muhammad Rafiq and others v. Khalid Rauf and others 1984 CLC 2135; Abdul Jabbar Khan v. Ismail through legal heirs 1998 CLC 1050; Syed Hassan Ali v. Muhammad Hanif PLD 1994 SC 716; Saleh Muhammad and another v. Allah Yar 1989 SCMR 540; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Mst. Noorunissa v. Qamurul Huda 1988 CLC 1833; Muhammad Latif v. District Judge, Karachi (South) 2009 YLR 2234; Mst. Jamila v. Muhammad Iqbal and 2 others 2013 MLD 52 and Muhammad Islam v. Saeed Ahmed Butt and 2 others 2013 CLC 280 ref.

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

----Ss. 15 & 14---Constitution of Pakistan, Art.199---Ejectment of tenant---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court in the matter of cases under Sindh Rented Premises Ordinance, 1979 was limited and confined only to ascertain whether Appellate Court had not flouted the provisions with regard to Constitution or failed to follow the law relating thereto.

Mazhar Hussain Shah through legal heirs v. Member Board of Revenue Punjab Lahore and others 2006 SCMR 959 rel.

Iftikhar Javaid Qazi for Petitioner.

Azizuddin Qureshi for Respondent No.1.

Ali Zardari, State Counsel.

Date of hearing: 6th August, 2014.

2015 C L C 1278

[Sindh]

Before Muhammad Shafi Siddiqui, J

NATIONAL BANK OF PAKISTAN and 5 others----Appellants

versus

SULTAN ALI LAKHANI----Respondent

Execution Application No.64 of 2013, decided on 5th March, 2015.

Civil Procedure Code (V of 1908) ---

----S. 47 & O. XXI, R. 23-A---Arbitration Act (X of 1940), S. 14---Application for making award as rule of court---Consent decree---Execution petition---Objections---Contention of decree holders was that objections to execution petition could not be considered unless judgment debtor had deposited the decretal amount or furnished security in lieu thereof---Validity---Validity of decree could only be challenged before the Executing Court if the same was void or had been passed by the court having no jurisdiction---Provisions of O.XXI, R.23-A, C.P.C. were mandatory and objections to the execution by a judgment debtor could not be considered unless judgment debtor had deposited the decretal amount or furnished security in lieu thereof---Executing Court could not go beyond the decree---Judgment debtor could not escape from his obligation under the decree---Requirement of notice and hearing were duly complied with at the time of trial---Executing Court could not be burdened with re-trial---Compromise decree was in fact a contract, breach of which might give rise to fresh cause of action to decree holder---Decree was neither void nor it had been passed by a Court having no jurisdiction---Objections to execution application taken by the judgment debtor were over-ruled, in circumstances.

Fakir Abdullah v. Government of Sindh PLD 2001 SC 131; Abdul Wahid v. Abdul Ghani PLD 1960 Kar. 990; Tauqir Ahmed Qureshi v. Additional District Judge Lahore PLD 2009 SC 760; Rasheed Ahmed v. Government of Punjab PLD 2005 SC 193; Riaz Hussain v. Muhammad Akbar 2003 SCMR 181; Mrs. Zia Farhat v. Presiding Officer, Special Court 1996 MLD 680; Muhammad Aslam Siddiqui v. Hasina Begum 1986 MLD 735; Alhamdi Begum v. National Bank of Pakistan PLD 1976 Kar. 723; Ch. Muhammad Nawaz v. Ch. Rehmat Ali 1994 SCMR 349; Shaikh Ateeq ur Rehman Sarwar v. Sajjad Hussain 2009 SCMR 684; Hamida Begum v Additional District Judge Lahore 1986 CLC 1697; Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; Muhammad Nadeem Arif v. I.G. Police Punjab 2011 SCMR 408; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; National Bank of Pakistan v. SAF Textile Mills PLD 2014 SC 283 and Abdul Rahim v. United Bank Limited PLD 1997 Karachi 62 distinguished.

Habib Bank Limited v. Parveen Qasim Jan 2014 SCMR 322; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 and Peer Dil v. Dad Muhammad 2009 SCMR 1268 rel.

Khalid Anwar along with Mustafa Ali and Jawwad Qureshi for decree-holders.

Rasheed A. Razvi along with Jamal Bukhari for judgment-debtor.

Dates of hearing: 19th, 24th, December, 2014, 12th, 22nd January and 6th February, 2015.

2015 C L C 1306

[Sindh]

Before Nazar Akbar, J

MEHMOOD ALI----Petitioner

versus

Mst. SAIMA KANWAL and another----Respondents

C.P. No.S-1150 of 2014 and C.M.A. No.2198 of 2015, decided on 24th April, 2015.

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

----Ss. 10, 12, 14(2)(b) & 17---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Suit for dissolution of marriage and recovery of dower---Appeal---Limitation---Condonation of delay---Pre-trial proceedings---Scope---Payment of dower amount---Stage of determination---Powers of Family Court---Scope---Petitioner/ wife filed suit against respondent/husband, in which Family Court, on failure of reconciliation in pre-trial stage, while granting Khula, also settled issue of payment of dower on oath taken by the wife that she had not received dower amount---Husband challenged order of Family Court to the extent of settlement as to payment of dower amount contending that the Court had no jurisdiction to settle the issue regarding payment of dower amount in pre-trial proceedings---Wife challenged maintainability of constitutional petition contending that dower amount settled between parties was rupees fifty thousand and after settlement of issue of dower amount by Family Court, the order regarding dower amount was to be challenged through appeal in terms of S.14(2)(b) of West Pakistan Family Courts Act, 1964---Validity---Powers of Family Court in terms of Ss.10(2) & 10(3) read with S.17 of West Pakistan Family Courts Act, 1964 were not limited to any particular stage of proceedings for settlement of any "ascertained issue" between the parties---Mere use of word "pre-trial" would not mean trial had not started---Court had jurisdiction to decide the issue of dower amount at pre-trial stage---Dower amount was admittedly rupees fifty thousand and husband in his written statement had specifically stated to have the same paid to the wife in shape of ornaments and claimed the same to be in her possession---Order as to dower amount was appealable in terms of S.14(2)(b) of West Pakistan Family Courts Act, 1964---Husband had challenged the impugned order through constitutional petition under bona fide belief that the order passed in pre-trial was in nature of preliminary decree and the same was not appealable---Constitutional petition had been filed within a period in which husband could have assailed the impugned order through appeal---Husband in approaching court through constitutional jurisdiction could not be termed mala fide---Court in such like situation, could convert petition into appeal or revision, or appeal into petition, subject to limitation---Constitutional petition was not maintainable---Husband was allowed to file appeal within fifteen days and time consumed in constitutional proceedings was condoned---Constitutional petition was disposed off accordingly.

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

----S. 17---Family Court---Procedure---Speedy disposal of disputes---Word "shall" used in every provision of West Pakistan Family Courts Act, 1964 gives a sense of urgency by doing away with the normal procedure of handling civil litigation---Law makers have emphasized on an early disposal of disputes between husband and wife---West Pakistan Family Courts Act, 1964 has been designed for speedy settlement of family disputes to save not only parties from delay in disposal of their issues but to control the damage to society which is natural on disintegration of families.

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

----Ss. 10 & 12----Pre-trial proceedings---Reconciliation between husband and wife---Object of West Pakistan Family Courts Act, 1964 is to make all efforts of compromise and speedily settle family disputes---Court after evidence under S.12 of West Pakistan Family Courts Act, 1964 and before passing judgment has to make one more effort for reconciliation as it is attempted at pre-trial stage---Emphasis on compromise both before trial and after trial reflects on the sensitivity of disputes between man and wife and its adverse effect on society.

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

----S. 14(2)(b)---Appeal---Limitation---Time spent on wrong forum---Condonation of delay---Order as to dower amount was appealable in terms of S.14(2)(b) of West Pakistan Family Courts Act, 1964---Husband had challenged the impugned order through constitutional petition under bona fide believe that the order passed by pre-trial proceedings was in nature of preliminary decree and the same was not appealable---Constitutional petition had been filed within a period in which husband could have assailed the impugned order through appeal---Husband in approaching the High Court through constitutional jurisdiction could not be termed mala fide---Court in such like situation, could convert petition into appeal or revision, or appeal into petition, subject to limitation.

Ms. Saira Shaikh for Petitioner.

Altaf Ahmed Shaikh for Respondent No.1.

Date of hearing: 24th April, 2015.

2015 C L C 1333

[Sindh]

Before Nazar Akbar, J

Mrs. BILQUIS MOHSIN BUTT and 3 others----Plaintiffs

versus

MUHAMMAD MAHMOOD BUTT and 15 others----Defendants

Suit No.703 of 2007, decided on 30th January, 2015.

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

----O. XX, R. 13---Administration suit---Limitation---Scope---Suit for administration was only a formality to determine the mode of distribution of the estate of the deceased amongst the legal heirs according to the Shariah---Court would act only as an administrator in such suit for a limited purpose---Plaintiff was required to satisfy the court in a suit for administration and partition, his status as legal heir of the deceased and proprietary rights of the deceased in the estate at the time of opening of succession---Question of limitation in case of joint family properties did not arise---In the present case, none of the properties mentioned in the schedule were part of the estate of the deceased---Plaintiff could not seek administration and partition of the disputed properties---Suit was dismissed in circumstances.

Pattoki Sugar Mills Limited through Chief Executive v. WAPDA through Chairman and 4 others 2007 CLD 659 and Anjum Rashid and others v. Shahzad and others 2007 CLC 1414 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----O. XX, R. 13---Administration suit---Limitation---Question of limitation in case of joint family properties did not arise.

(c) Company---

----Limited company was a juristic person and a legal entity separate from its share-holder and any change in the shareholding of a company did not mean change in the title of assets of the company or premises occupied thereby---Properties of a company could not be inherited by the legal heirs of one of its Directors or even ordinary shareholders of the company---Legal heirs of a deceased director or shareholder of a company could claim inheritance only to the extent of shareholding of the deceased Director or shareholder in the company and not in the assets of the company as estate of the deceased.

(d) Islamic law---

----Succession---Classes of legal heirs---Classes of legal heirs of deceased (in Sunni Hanfi Law of Succession) were sharer, residuaries and uterine (distant kindred).

(e) Islamic Law---

----Distribution of the estate of deceased---Procedure.

Muhammadan Law paras 61 and 63 quoted.

(f) Islamic law---

----Succession---Succession to the estate of a Muslim would open immediately, he had passed away and title would pass to the legal heirs automatically to the extent of their respective shares ordained by Shariah without any interference by the State functionaries.

(g) Islamic law---

---- Inheritance---Grand-children whose father or mother had survived their grand-father had no locus standi to claim inheritance in the estate of the deceased grand-father---Once father/mother of grand-children had died (true legal heirs of grand-father) they could file a suit for administration of the estate left by their deceased parents and if there was any undistributed property from the estate of their grand-father, continued to be in existence, they could include "share" of their deceased parents in the said estate of their own deceased father or mother but they could not reopen the issue of inheritance from the entire estate of their grand-parents---Grand-children could not claim as matter of their own right any share in the estate of their grand-father.

Narain Das C. Motiani for Plaintiffs.

Abdul Shakoor for Defendant No.3.

Mohsin Shahwani and Ms. Zulekha Sakhrani for Defendants Nos.2, 13 and 14.

Kashif Peracha for Defendants Nos.1, 8 to 12 and 15.

Rizwan Ahmed Siddiqui for Defendant No.16.

Date of hearing: 20th November, 2014.

2015 C L C 1395

[Sindh]

Before Nazar Akbar, J

DILAWAR HUSSAIN and 6 others----Decree-holder

versus

PROVINCE OF SINDH through Secretary, Revenue Department Karachi and 2 others----Judgment Debtors

Ex.No.31 of 2004 and C.M.A. No.407 of 2014, decided on 24th April, 2015.

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

----Ss. 4 & 28-A [omitted by Land Acquisition (Sindh Amendment) Act, (XVI of 2010), S.4]---General Clauses Act (X of 1897), S.6---Execution of decree---Repealed of a provision---Effect---Expression 'shall be deemed to have been omitted as if it so had never existed' occurring in the amending Act omitting S.28-A---Interpretation---Non-obstante clause---Effect---Decree holder filed application to withdraw decretal amount lying with Nazir of the Court---Judgment debtor raised objection that decretal amount included additional amount in view of S.28-A which stood repealed with effect from 12-7-2010---Judgment debtor contended that expression 'shall be deemed to been omitted as if it so had never existed' occurring in S.28-A of Land Acquisition, 1894 implied that no benefit was available to decree holder whose land had been required under S.4 of the Land Acquisition Act, 1894---Decree holder averred that amendment could not be made retrospectively to deprive anyone of lawful right accrued to him by operation of law or decree of court---Validity---Benefit available to decree holder would not be accounted from the date of notification of amendment---Payment of compensation under S.4 of Land Acquisition Act, 1894 read with S.28-A of the Act was time bound and kept multiplying by fifteen percent per annum---Provision of S.28-A of the Act was applicable in case of decree holder whose land had been acquired in 1960 and it could not be deemed to have been non-existent retrospectively---Legislature had not intended to take away effect of judgment and decree already passed otherwise it should have been specifically mentioned by use of non-obstante clause---Any enactment subsequent to judgment and decree extending benefit in favour of decree holder could not be read to nullify judgment unless such judgment and decree had been mentioned in enactment itself---Provisions contained in S.6 of General Clauses Act, 1897 protected the judgment and decree against any amendment.

Nazeer Ahmed and others v. Ghulam Mehdi and others PLD 1988 SC 824 rel.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 distinguished.

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

----S. 6---Scope---Repeal---Effect---Provisions contained in S.6, General Clauses Act, 1897 protected the judgment and decree against any amendment.

Yaseen Azad for Decree holders Nos.1 to 7.

Anwar Tariq for Judgment debtors Nos.1 to 3.

Date of hearing: 18th February, 2015.

2015 C L C 1418

[Sindh]

Before Hasan Feroz, J

PAKISTAN NATIONAL SHIPPING CORPORATION through Secretary----Applicant

versus

PIONEER STEEL MILLS LTD.----Respondent

Revision Application No.175 of 2010, decided on 19th December, 2014.

Civil Procedure Code (V of 1908)---

----O. XXIX, R 1, O. VI, R.17, & S. 11---Suit by a corporation for recovery of arrears of rent---Power of attorney by corporation---Scope---Suit was filed on strength of power of attorney in respect of another case filed earlier---Effect---Such defect was not curable once the said suit was disposed of---Such party could move application under O.VI, R.17, C.P.C. prior to disposal of suit---When suit had been disposed of, party could file a second suit subject to limitation---Provisions contained in O.II, R.2 read with S.11, C.P.C. will not come in the way of such party.

Habib Bank Limited v. M/S. ESS EMM ESS Corporation Pakistan Limited and 5 others 2005 CLD 854; Karim Dad Khushk v. UBL PLD 2010 Kar. 158 and Saeed Ahmed and 2 others v. Muhammad Shoaib Khan PLD 2014 Lah. 22 ref.

HBL v. M/s. ESS EMM ESS Corporation Pakistan Limited and 5 others 2005 CLC 854 and Karim Dad Khushk v. UBL PLD 2010 Kar. 158 distinguished.

Waqar Ahmed Khan Lodhi for Applicant.

Nemo for Respondent.

Date of hearing: 30th October, 2014.

2015 C L C 1451

[Sindh]

Before Nazar Akbar, J

ABDUL KARIM----Plaintiff

versus

BILAL ATIQ and 4 others----Defendants

Suit No.823 of 2008, decided on 15th April, 2015.

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

----O. VII, R. 2---Money suit---Plaintiff filed suit claiming his charge on the suit property---All the transactions with regard to the suit property by and on behalf of defendant were dubious, mala fide, illegal and contrary to law---Buyer could not have better title than the seller---Plaintiff was entitled of decree to the tune of amount as equivalent to market value of the property on the date of filing of suit---Suit was decreed with specific directions.

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

----S. 54---"Sale"---Scope---Mere sale agreement was not enough for transfer of title of immovable property---Transfer of title of immovable property must be through "registered instrument" and not merely by registered power of attorney to act on behalf of owner---"Sale" had to be proved independently by payment of full and final sale consideration---Sale would be incomplete until and unless a full and final sale consideration was paid and receipt thereof was issued separately by the seller.

Sarfraz Ahmed and 36 others v. Mst. Sakina Ahmed and 36 others PLD 1985 Journal 121 and Mst. Hussain and 5 others v. Mst. Channo Bi 1990 CLC 1591 rel.

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

----S. 3---Registration Act (XVI of 1908), S.17(b)---Transfer of Property Act (IV of 1882), S.54---Sale of immovable property through power of attorney---Requirements---Power of attorney was liable to be "duly stamped" with stamp duty to confer power to "sell" on attorney with whom seller had also entered into an agreement of sale---Amount of stamp duty on such power of attorney should be equal to the stamp duty required for registration of "conveyance deed".

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

----Preamble---Scope---Stamp Act, 1899 was purely fiscal statute and violation of the provisions of Stamp Act, 1899 would entail penal consequence---Compliance of the Act was must for protection of revenue.

Khawaja Muhammad Arif v. Mrs. Tahira Asif and others PLD 2006 SC 972 rel.

Plaintiff in person.

Nemo for Defendant No.1.

Ch. Abdur Rasheed for Defendant No.2.

Nemo for Defendants Nos.3 and 4.

Ch. Abdur Rasheed for Defendant No.5.

Date of hearing: 2nd January, 2015.

2015 C L C 1605

[Sindh]

Before Muhammad Ali Mazhar and Mrs. Ashraf Jahan, JJ

MUMTAZ OAD and 2 others----Petitioners

versus

SINDH PUBLIC SERVICE COMMISSION through Secretary and 2 others----Respondents

C.P. No.D-1009 of 2013, decided on 28th May, 2015.

(a) Constitution of Pakistan---

----Arts. 199, 260(3)(b), 36, 38 & 3---Notification No SORI (S&GAD)2-17/1994 dated 8-5-2010---Constitutional petition---Civil service---Public functionaries---Quota for minorities in the Government service, implementation of---Scope---Plea of petitioners was that quota reserved for the minorities had not been implemented by the Government---Validity---Quota of 5% for employment of minorities to all posts across the board in the Government Services had been reserved which might be filled by direct recruitment including the combined competitive examination in addition to the participation in the open merit---Administrative departments were advised to bring the instructions to the notice of all concerned for information and compliance while making further recruitment---Notification No SORI (S&GAD)2-17/1994 dated 8-5-2010 was also applicable to initial appointment in all attached departments, autonomous, semi-autonomous bodies and corporations controlled by the Government---Government had not taken care of reserved quota nor Public Service Commission had ensured its due implementation---No reserved quota was mentioned for its consumption in the advertisement which was a violation and contravention of the directives issued under the Notification---High Court observed that Government and Public Service Commission both were at fault and responsible for non-compliance---Quota reserved for minorities should have been followed and mentioned in the advertisement---Had the respondents mentioned the reserved quota in the public advertisement, petitioners would have applied on the basis of quota reserved for the minorities---Petitioners applied on open merits due to non-mentioning the quota and they failed in the interviews---Public functionaries were required to function in good faith, honestly and within precinct of their powers---Nobody should be penalized by inaction of public functionaries---Adequate provision should be made for the minorities to freely profess and practice their religion and develop their cultures---Legitimate interests of minorities and backward and deprived classes should be safeguarded---State should safeguard the legitimate rights and interest of the minorities including their due representation in the Federal and Provincial services---Minorities should be granted all the Fundamental Rights being citizens of the country---State should secure wellbeing of the people irrespective of sex, caste, creed or race by raising their standard of living---Good governance could not be achieved by exercising powers unreasonably or without application of mind---High Court disposed of constitutional petition in certain terms.

(b) Constitution of Pakistan---

----Art. 36---Protection of minorities---Scope---State should safeguard the legitimate rights and interest of the minorities including their due representation in the Federal and Provincial services.

(c) Constitution of Pakistan---

----Art. 3---Elimination of exploitation---Scope---State should ensure elimination of all forms of exploitations.

(d) Public functionaries---

----Public functionaries were required to function in good faith, honestly and within precinct of their powers.

(e) Administration of justice---

----Nobody should be penalized by inaction of public functionaries.

Ghulam Ali Abbasi for the Petitioners.

Sibtain Mehmood and Abdul Jalil Zubedi, AAG(s)

Syed Zakir All Shah, Special Secretary, Education Department, Government of Sindh.

Abdul Aziz, Assistant Director, Sindh Public Service Commission.

Date of hearing: 28th May, 2015.

2015 C L C 1664

[Sindh]

Before Nazar Akbar, J

ASADULLAH----Petitioner

versus

NOOR AHMED and 3 others----Respondents

C.P.No.S-613 of 2013, decided on 30th April, 2015.

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

----S. 16---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Relationship of landlord and tenant---Jurisdiction of Rent Controller---Question of fact raised in constitutional petition---Scope---Rent Controller passed order of ejectment of tenant on account of his failure to deposit arrears of rent and appeal against was also dismissed---Tenant assailed the order of Rent Controller and Appellate Court in constitutional jurisdiction on grounds that relationship of landlord and tenant was disputed and suit for specific performance of agreement to sell was pending; that delay in deposit of rent was on account of miscalculation and that it had been deposited immediately after passing of order of ejectment---Tenancy agreement between landlord and tenant was part of the record---Validity---Issue of ownership could not be settled in proceedings under Sindh Rented Premises Ordinance, 1979, nor filing or pendency of civil suit could be a bar in exercise of jurisdiction by Rent Controller---Controversy of delay in deposit of rent was purely a question of fact that could be reviewed by an Appellate Court but it could not be interfered with by High Court in constitutional jurisdiction---Unlike appellate forum provided under relevant statute, High Court, in exercise of constitutional jurisdiction, was neither competent to undertake exercise of re-appraising evidence in order to come to its own conclusion, nor findings of facts drawn by courts below could be substituted---Constitutional petition was dismissed.

Wazir Ali v. Rent Controller No.VIII (East), City Courts, Karachi and 3 others 2001 MLD 12; Messrs Roots School Network through Attorney v. Bashir Ahmed and 2 others 2010 CLC 466; Messrs S.M. Ayub and sons v. Abdul Jabbar Qureshi and another 2001 CLC 1486; Mst. Miskina Jan v. Rehmat Din 1992 SCMR 1149; Arshad Mahmood Siddiqui v. Muhammad Haroon 1984 CLC 1750; Anwar Ahmed v. Muhammad Sharif 1991 MLD 701; Mrs.Jumana Khursheed v. 1st A.D.J., Karachi East 2007 YLR 363; Hashim Khan v. Ghulam Nabi and 7 others 1973 SCMR 112 and Maqsood Ahmed Khawaja and another v. Asmat Begum 1985 CLC 1945 distinguished.

(b) Precedent---

----Judgment of High Court set aside by Supreme Court was no more a valid and binding judgment.

Hakim Ali Khan for Petitioner.

Shahzad Qammar Abbas for Respondents Nos.1 and 2.

VIIth Senior Civil Judge and Rent Controller, Karachi East.

IIIrd Additional District and Sessions Judge, Karachi East.

Date of hearing: 24th April, 2015.

2015 C L C 1695

[Sindh]

Before Salahuddin Panhwar, J

Mst. AZRA PARVEZ and 3 others----Plaintiffs

versus

Sheikh ASHFAQ HUSSAIN and 7 others----Defendants

Suit No.1022 of 2011, decided on 9th September, 2014.

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

----O. XXXIX, Rr. 1 & 2 & O. XX, R. 13---Administration suit---Grant of temporary injunction---Ingredients---Laches---Effect---Application for interim relief/interlocutory order was subservient to main relief claimed in the plaint---Such application should not only qualify its own criteria but same should not be beyond the scope of main relief---Order passed under O.XXXIX, Rr.1 & 2, C.P.C. would be prohibitory in its nature whereby one was prevented from doing what he was otherwise doing under some title---Party had to establish all three ingredients i. e. prima facie case; balance of convenience and apprehension of irreparable loss or legal injury to be in his favour for grant of injunction---All three ingredients should co-exist and if one of the ingredients was missing the application could not sustain---Question of limitation or laches was not significant in the matter of inheritance---Claiming a right or waiving thereof were different from each other which, being with regard to factual controversy, would require evidence---Properties in question were under the control and management of defendants---Balance of convenience was in favour of defendants---Plaintiffs had to establish their claim to the estate left by the deceased through evidence---Predecessor-in-interest of plaintiffs had not brought claim till date of filing of present suit---Plaintiffs had not approached the court promptly---Defendants would suffer an irreparable loss if temporary injunction was granted in favour of plaintiffs---Plaintiffs had failed to establish co-existence of all three ingredients in their favour---Application for temporary injunction was dismissed in circumstances.

PLD 2011 Kar. 83 ref.

Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092; Marghub Siddiqui v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 and ATCO Lab. (Pvt.) Limited v. Pfizer Limited and others 2002 CLD 120 rel.

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

----O. XX, R. 13---Administration suit---Scope---Administration suit was meant to determine as to what estate the deceased left at the time of his death; administration thereof; payment of debts and liability and partition of rest of estate between the heirs.

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

----O. XL, R. 1---Appointment of receiver---Words "just and convenient"---Scope---Discretionary relief---Appointment of receiver should be 'just and convenient' for the court and not for a party to a lis---Order for appointment of receiver was penal in nature whereby one person in possession was to be removed from control and possession of such property---Such discretionary power for appointment of receiver should be exercised where continuity of possession and control of property would result in wastage or dissipation of property resulting into irreparable loss/injury to a party seeking such appointment of receiver---No apprehension of wastage or dissipation of property was available in the present case---Application for appointment of receiver was dismissed in circumstances.

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

----O. XXXVIII, R. 8---Arrest and attachment before judgment---Scope---Provisions of O.XXXVIII, R.8, C.P.C. to be invoked where a party was likely to frustrate the order/decree of the court either by absconding away or removing his property from the ambit of power of court---Such provision was meant to protect future interest in the property---No such claim or allegation on behalf of plaintiffs was on record, in the present case---Claim of a party should be based on such facts and circumstances which could convince the court to believe that there was real danger with regard to removal of property from the ambit of court---Application for arrest and attachment of property before judgment could succeed only when there was an apprehension of irreparable loss and injury to the interest of party who was likely to acquire the property at the end of the day through judgment/decree of the court---Application for arrest and attachment of property before judgment was dismissed in circumstances.

(e) Words and phrases---

----"Interlocutory"---Meaning---"Interlocutory" was meant provisional; temporary; not final--- Something intervening between the commencement and the end of a suit which would decide some point or matter but was not a final decision of the whole controversy.

Black's Law Dictionary rel.

Mehmood Habibullah for Plaintiffs.

Faiz H. Shah and Company for Defendants Nos.1 to 4.

Date of hearing: 22nd August, 2014.

2015 C L C 1734

[Sindh]

Before Nadeem Akhtar and Aftab Ahmed Gorar, JJ

ASIF KUDIA and others----Appellants

versus

Messrs KASB BANK LIMITED and others----Respondents

First Appeals Nos.121 of 2010 and 3 of 2011, decided on 10th June, 2014.

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

----Ss. 9, 10 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of bank loan---Service of process---Proof---Ex parte order, setting aside of---Converting of proceedings---Suit filed by bank against defendant was decreed ex parte on the ground that process was issued according to all prescribed modes and he failed to appear before Banking Court---Validity---Summonses sent to defendant through courier service were returned with the remarks that defendant had shifted from address at which summonses were sent---Summonses to defendant were sent through ordinary registered post instead of sending the same through registered post acknowledgement due, due to which there was nothing on record to show that summonses were duly served upon him or he had refused to receive the same---Bailiff did not submit his report nor was there any report by him available on record to show that summonses had received by defendant or he refused to receive the same---No evidence was available on record to show refusal on the part of defendant, or non-service or proper service of summonses upon him---By not sending summonses through registered post acknowledgement due as specifically provided in S.9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, mandatory compliance was not made---By passing ex parte order against defendant, despite such non-compliance, Banking Court committed a grave illegality---Summonses were not issued in accordance with S.9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, defendant was not served and service upon him was never held good---Without first holding service good upon defendant, no further proceedings could be taken in suit nor any adverse order could be passed against him---Ex parte order passed against defendant was not sustainable and was liable to be struck down/set aside and application for leave to defend was within time---High Court converted appeals into Constitutional petitions, ex parte order passed by Banking Court against defendant was declared illegal and without jurisdiction and was set aside---High Court directed the Banking Court to decide application for leave to defend in accordance with law---Petition was allowed accordingly.

Mubarak Ali v. First Prudential Modaraba Civil Petition Nos.139-K of 2006 and 273-K of 2006 and Messrs Axleproducts Limited v. Messrs Allied Bank of Pakistan Ltd. Civil Petition No.19-K of 2009 rel.

Farzand Raza Naqvi and 5 others 2004 SCMR 400; Messrs Naeem Associates, through Proprietor and 6 others v. Allied Bank of Pakistan Limited through Branch Manager 2004 CLD 1672; Haji Muhammad Yaqoob Akhtar v. Habib Bank Ltd. and others 2009 CLD 1699; Monazam Bibi and 2 others v. Zarai Taraqiati Bank Ltd. through Branch Manager 2006 CLD 836; United Bank Limited v. Messrs Exim International and 7 others 2012 CLD 471; Fazal-e-Rabbi v. Judge Banking Court and 4 others 2010 CLD 972; Saleem Ahmed v. Zarai Taraqiati Bank Limited through Manager 2007 CLD 872; Messrs Liaqat Flour and General Mills through partners and 3 others v. Messrs Muslim Commercial Bank Ltd. 2007 CLD 188; Messrs Huffaz Seamlen Pipe Industries Ltd. and 2 others v. Messrs Security Leasing Corporation Ltd. 2002 SCMR 1419; Javaid Tanveer Mughal v. Agricultural Development Bank of Pakistan through Branch Manager and 3 others 2004 CLD 748; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; Muhammad Yusuf v. Mst. Kharian Bibi 1995 SCMR 784; Capital Development Authority, Islamabad through its Chairman 1994 SCMR 771; Muhammad Aslam (through his L.R.) v. Wazir Muhammad PLD 1985 SC 46; Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220; Messrs Mumtaz Traders and 3 others v. Messrs Habib Bank Limited and another 2009 CLD 169; Ms. Rahima Iqbal v. Banking Court No.II and 2 others 2008 CLD 338; Investment Corporation of Pakistan and 5 others v. Judge, Banking Court No.1, Multan and 9 others 2006 CLD 1161 and Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others 2013 CLD 981 ref.

Messrs Simnwa Polypropylene (Pvt.) Ltd. v. Messrs National Bank of Pakistan 2002 SCMR 476 and National Bank of Pakistan v. Messrs West Pakistan Tanks Terminal (Pvt.) Ltd. 2000 CLC 896 distinguished.

(b) Administration of justice---

----Wrong provision of law---Effect---If a wrong provision of law is mentioned in title of an application, the same can be ignored and application can be treated to have been filed under the relevant provision.

(c) Administration of justice---

----Moulding of relief---Correction of wrongs---Superior Courts have inherent and Constitutional powers to remedy and correct wrongs committed by subordinate Courts---High Court has vast powers in its inherent jurisdiction not only to mould relief but also to convert an appeal, Constitutional petition or Revision to any other remedy.

Syed Ghazanfar Hussain through Legal Heirs and others v. Nooruddin and others 2011 CLC 1303 and Mst. Mubarak Salman and others v. The State PLD 2006 Kar. 678 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Interlocutory orders---Principle---Constitutional jurisdiction of High Court cannot be invoked against every interlocutory order passed by a Court, nor can every appeal against such order be converted into Constitutional petition---Such discretion and inherent powers are to be exercised by High Court keeping in view the facts and circumstances of each case and particularly in cases where gross and blatant violation of any of the provisions of law is apparent in the order assailed, for which no remedy is available to aggrieved party or where order assailed has been passed by Court by exercising such jurisdiction which was not vested in it by law or where the Court fails to exercise of jurisdiction which was vested in it by law.

Messrs United Bank Limited through authorized attorneys v. Banking Court No.II and 2 others 2012 CLD 1556; Messrs Habib Bank Limited through authorized officers/attorneys v. Messrs Victor Electronic Appliances Industries (Pvt.) Ltd. and another 2011 CLD 1571 and Bank of Punjab v. International Ceramics Ltd. and 4 others PLD 2013 Lah. 487 rel.

Abbadul Hussnain for Appellants.

Muhammad Zubair Quraishy for Respondent No.1.

Respondents Nos.2 to 7 absent.

Dates of hearing: 24th September, 3rd December, 2013 and 29th May, 2014.

2015 C L C 1766

[Sindh]

Before Sadiq Hussain Bhatti, J

Messrs SHAHID HANIF POULTRY through Proprietor----Appellant

Versus

Messrs K&N's POULTRY FARMS through Managing Partner----Respondent

Second Appeal No.59 of 2012, decided on 28th April, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Partnership Act (IX of 1932), S.19---Suit for recovery of money---Limitation---Authorization to file suit by partnership firm---Filing of documents after expiry of time granted by court---Effect---Second appeal---Scope---Suit for recovery of money was filed by plaintiff that was decreed by Trial Court and appeal against was dismissed---Second appeal was filed against decisions of courts below on grounds that suit was time barred, there was no resolution of Board of plaintiff firm to file suit and that documents filed after expiry of time set for filing of documents could not be taken into consideration by Trial Court---Plaintiff contested second appeal on ground that suit was filed within time and no Board resolution was required under law by a partnership firm to file suit---Plaintiff contended that documents were filed within seven days of framing of issues---Validity---Defendant had admitted that last cheque was issued by him as part payment in respect of outstanding amount against him and such document in existence extended period of limitation before its expiry---Defendant had failed to support his claims with confidence inspiring evidence and show that courts below had not properly appreciated evidence, or not made substantial error and or decisions of courts were contrary to law---Second appeal was dismissed in circumstances.

Muhammad Manzoor v. National Bank of Pakistan 1986 SCMR 1366; Muhammad Yasin v. Muhammad Abdul Aziz PLD 1993 SC 395; Iftikhar Ahmed v. Shahzada Kabir Aftab 2004 CLC 46 and Rafiul Qadre Naqvi v. Safia Sultana 2009 SCMR 254 rel.

Abid Akram for Appellant.

Bashir Ahmed for Respondent.

2015 C L C 1786

[Sindh]

Before Irfan Saadat Khan, J

Mrs. MARYAM A. MUNIF----Appellant

Versus

Mrs. GHAZAL BUKHARI through Attorney----Respondent

F.R.A. No.4 of 2011, decided on 30th May, 2013.

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

----S. 17---Personal need of landlord---Good faith---Scope---Commercial building---If the landlord required the same in "good faith" for his own use and was not occupying any other property in the cantonment area or in any other locality in the vicinity, in which such building was situated for the purpose of his business and other such building was not suitable for his needs, he might file application before the Authority that the tenant occupying his property be evicted as he required the same in good faith for his own use and there was no other suitable building available for the purpose of his business---Key words of the provision were "good faith", "own use", and "not having any other such building suitable for his needs at that time"---While granting or rejecting the ejectment application the element of "good faith" would play pivotal role and no hard and fast rule or any yardstick could be applied but the facts and circumstances of each case spoke for itself---"Good faith" should be reasonable and would not be tainted to deprive the tenant to eject him from the property only on the wish and desire of the landlord---If the "good faith" and personal need was not proved and once such "good faith" was proved and statement given on oath had neither been shaken nor anything had been brought on record to contradict the same, such aspects were sufficient to allow the ejectment application but in the case where such parameters were not fulfilled then in the case of genuine need if the mala fide was apparent in such case no relief could be granted to the landlord.

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

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

----S. 17---Ejectment of tenant---Personal need of landlord---Good faith---Landlady moved ejectment application for eviction of the tenant on the ground of her personal bona fide need but the same was dismissed---Validity---Trial Court had come to the right conclusion that the landlady had failed to prove her claim of personal bona fide need in good faith which was the basic ingredient---Landlord had the prerogative to select amongst various properties held by him/her where he/she would like to start his/her business and same was not the job of the tenant to suggest as to which place was suitable for him/her---Prime responsibility of the landlord was to approach the court with clean hands and to prove from the averments his/her good faith but in the present case from pleading of the landlord, it had been observed that divergent and contradictory statements had been made by the landlady which put dent in her case---If landlady was in need of the premises for personal use, she would not have given contradictory statements about her financial condition i.e. she was facing financial problems and hardship and that she had to earn livelihood for herself and her family---Landlady had admitted in her cross-examination that she was earning substantial amount as rent from her other properties and that her husband and sons were having their own properties and independent sources of income---No case of interference was made out in the impugned judgment---Appeal was dismissed.

Jehan Khan v. Province of Sindh and others PLD 2003 Kar.691; Mushtaq Hussain and others v. Muhammad Inayat and others PLD 2012 Lah. 234; Nisar Ahmad Khan v. Noor Muhammad Khan and 6 others 1990 SCMR 544; Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. 1985 SCMR 1996; Habib Bank Ltd. v. Anis Ahmad and 7 others 2001 SCMR 981; Dr. Raja Javed Kayani v. Muhammad Iqbal 2000 CLC 2005; Anis Ahmed v. Habib Bank Ltd. 1997 MLD 1; Muhammad Yousuf v. Mrs. Noor Jehan Bi 2000 CLC 1252; Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz 1994 SCMR 355; Abdul Samad v. Rashk-e-Jehan and others 1999 SCMR 1353; Almas Khan v. Mrs. Bano PLD 2009 Kar. 268; Pakistan Institute of International Affairs v. Naveed Merchant and others 2012 SCMR 1498; Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398; Capt. PQ. Chemical Industries (Pvt.) Ltd. v. Mrs. Romana Amjad 2010 SCMR 837; Nelofar Soomar v. Mst. Shahida 2010 CLC 447; Yaqub Masih Jacob v. Mrs. Louisa De Souza 1992 SCMR 1799; Lt. Col. (R.) Muhammad Younis v. Ismat Mehdi 2013 CLC 562; Shakeel Ahmed and another v. Muhammad Tariq Farogh 2010 SCMR 1925; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070;Noorul Amin v. Sheeraz Sori and others 2008 MLD 1299; Yousuf Aziz and another v. Asim Saleem 2010 CLC 308; Muhammad Haleem Siddiqui and another v. Dr. Huma Khusro 1997 CLC 905; Mrs. Tahira Dilawar Ali Khan v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar.50; Mian Muhammad Lateef v. Mst. Nasima Warsi 2009 CLC 279; Muhammad Saleem v. Mrs. Sanjida Kidwai 2009 CLC 215; Suleman Ghazi v. Ghulam Hyder and another 1984 CLC 2213; Muhammad Zaman v. Hasb-un-Nisa and another 1991 SCMR 1307; Messrs Bombay Corporation v. Mst. Amna Begum 1986 CLC 1628; Muhammad Attique v. Shafait Ali Shaikh 2010 SCMR 1006; Messrs. F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Abdul Rahman v. PSO Company Ltd. and another PLD 2004 SC 921; Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1706; Sardar Muhammad Yaqoob v. Muhammad Saleem 2000 CLC 274; Major (R.) Ahasan-ul-Haque v. Muhammad Ejaz 2011 SCMR 487; Qamruddin v. Hakim Mehmood Khan 1988 SCMR 819; Ghulam Mustafa Bughio v. Additional Controller of Rents, Clifton and others 2006 SCMR 145; Ahmed v. Aisha Tariq 2011 CLC 538 and Aamir Wahid v. Mrs. Haleema Akhtar 2013 CLC 622 distinguished.

Muhammad Ilyas Khan Tanoli for Appellant.

Iftikhar Javed Qazi for Respondent.

2015 C L C 22

[Lahore]

Before Shujaat Ali Khan, J

NISHAT CHUNIAN LTD. and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petitions Nos.20363 of 2012, 847, 1221, 1441, 5265, 4903, 4816, 5166, 4418, 4892, 4652, 4948, 4983, 4979, 4904, 4736, 4759, 4595, 4573, 4571, 4597, 4572, 4498, 2906, 2904, 3518, 1320, 1442, 1316, 1317, 1328, 4034, 5306, 5308, 5305, 5317, 8288 of 2014, 20549, 20671, 20888, 22681, 24820, 23493, 23495, 23555, 23806, 23684, 23218, 23494, 23486, 23266, 23515, 21490, 21750, 23449, 23485, 23549, 23335, 23336, 23337, 23267, 23501, 23497, 24220, 24271, 26008, 25706, 25889, 25995, 26310, 26274, 26449, 26533, 26986, 28539, 28456, 28657, 28585, 28550, 28530, 28489, 28528, 28527, 28529, 27477, 27546, 28413, 28524, 28525, 28526, 28540, 28544, 28545, 28546, 28949, 29091, 29069, 29420, 28235, 28810, 29742, 28341, 29598, 29218, 30870, 30912, 30859, 31169 of 2012, 1412, 1355, 2779, 2780, 5730, 6609, 6608, 3423, 7829 of 2013, 4593, 5268, 5122, 5123, 4894, 10894, 17227, 6441, 6454, 6457, 5344, 6212, 6579, 6587, 6582, 5776, 6260, 6577, 5893, 23562, 22376, 19358, 24989, 24987, 22123, 17244, 14555, 5096, 13605, 13467, 13295, 9637, 9224, 9065, 6932, 7861, 7096, 7362, 7361, 7199, 7138, 6445, 6463, 6654, 6919, 6869, 5672 of 2014, 921/W, 24601, 6448 of 2014, 20455 of 2012 and 25972 of 2014, heard on 3rd October, 2014.

(a) Constitution of Pakistan---

----Arts. 189 & 199---Vires of a statute---Constitutional petition filed before the High Court challenging vires of a statute---Statute already declared as ultra vires the Constitution by the Supreme Court---High Court in such circumstances would be left with no option but to follow the dictum laid down by the Supreme Court in view of Art.189 of the Constitution.

(b) Gas Infrastructure Development Cess Act (XXI of 2011)---

----Preamble---Constitution of Pakistan, Arts.188 & 199---Supreme Court Rules, 1980, O.XX, R.1 ---Constitutional petition filed before the High Court challenging vires of Gas Infrastructure Development Cess Act, 2011---Gas Infrastructure Development Cess Act, 2011 already declared as ultra vires to the Constitution by the Supreme Court---Review petition already filed against judgment of the Supreme Court---Plea of respondent-Government that during pendency of review petition before the Supreme Court, propriety demanded that constitutional petition before the High Court should be kept pending---Validity---No injunctive order had been passed in the review petition before the Supreme Court---No embargo existed for the High Court to decide the present matter, especially in the light of O.XX of the Supreme Court Rules, 1980---Constitutional petition was allowed by the High Court in terms of the judgment of the Supreme Court under review, whereby Gas Infrastructure Development Cess Act, 2011 was declared as ultra vires to the Constitution.

Ashraf Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources Control Secretariat and 3 others 2013 PTD 1732 and Federation of Pakistan v. Durrani Ceramics and others Civil Appeal No.1540 of 2013 ref.

Mian Muhammad Hussain Chotiya for Petitioners (in W.Ps. Nos.20363, 20549, 20671, 20888, 24820, 23806, 23218, 21490, 26008, 26311, 28550, 28235 of 2012, 6608, 6609 of 2013, 4892, 4593, 17244 and 18654 of 2014).

Muhammad Ajmal Khan, Muhammad Farooq Sheikh and Sumera Khanum for Petitioners (in W.Ps. Nos.23493, 23494, 29598 of 2012 and 4894 of 2014).

Mustafa Kamal for Petitioners in (W.P. No.23555 of 2012).

Muhammad Azeem Daniyal for Petitioners (in W.P. No.20671 of 2012).

Mian Tariq Hussain for Petitioner (in W.P. No.28413 of 2012).

M.A. Hameed Awan for Petitioner (in W.P. No.23562 of 2014).

Rana Khalid Ishaq for Petitioners (in W.Ps. Nos.13295 and 22123 of 2014).

Mian Javed Iqbal Arain for Petitioner (in W.P. No.28810 of 2012).

Ghulam Farid Sanotra for Petitioner (in W.P. No.5096 of 2014).

Ch. Muhammad Idrees for Petitioner (in W.P. No.1355 of 2013).

Rana Muhammad Afzal for Petitioner (in W.P. No.23449 of 2014).

Waleed Khalid and Ghulam Mujtaba for Petitioner (in W.P. No.4983 of 2014).

Shahzad Atta Elahi for Petitioner (in W.P. No.4979 of 2014).

Mian Zafar Iqbal Kalanauri for Petitioner (in W.P. No.19358 of 2014).

Haris Azmat and Muhammad Ali Saleemi for Petitioners (in W.Ps. Nos.33672 of 2013, 4903, 4904, 5306, 5308, 5305, 5317, 6441, 6454, 6457, 6579, 6587, 6582, 5776, 6577, 9637, 7096, 7362, 7361, 8199, 6445, 6463, 6654, 6919 and 6448 of 2014).

Shehryar Kasuri for Petitioners (in W.Ps. Nos.20363, 20549, 23684, 23249 of 2012, 6869, 7211, 5893 and 4652 of 2014).

Syed Faisal Hussain Naqvi for Petitioners (in W.Ps. Nos.3518 and 6260 of 2014).

Fawad Malik Awan for Petitioner (in W.P. No.5730 of 2013).

M.A. Ghaffar ul Haq for Petitioner (in W.P. No.7861 of 2014).

Sardar Muhammad Ramzan for Petitioner (in W.P. Nos.4571, 4572 and 4573 of 2014).

Yasir Zaman and Malik Sohail Murshad for Petitioner (in W.P. No.5344 of 2014).

Muhammad Mohsin Virk for Petitioner (in W.P. No.4736 of 2014).

Shahid Karim and Mian Muhammad Zulqamain for Petitioner (in W.P. No.22681 of 2012).

Haroon Duggal and Waseeul Hasnain Naqvi for Petitioners (in W.Ps. Nos.2904 and 2906 of 2014).

Jabbar Qadir for Petitioner (in W.P. No.5166 of 2014).

Amir Raza Bhatti and Zia Ullah Ranjha for Petitioner (in W.P. No.22376 of 2014).

Imran Masood Khan for Petitioner (in W.P. No.25972 of 2014).

Mian Subah Sadiq for Petitioners (in W.Ps. Nos.26274, 28524, 28525, 28526, 28540, 28546, 29742 of 2012 and 1412 of 2013).

Azhar Mehmood Shah and Tahir Mehmood Mughal for Petitioners (in W.Ps. Nos.29091 of 2012 and 7829 of 2013).

Naseer Ahmad Bhutta, Additional Attorney General.

Muhammad Zikria Sheikh, Deputy Attorney General.

Kashif Harnid Siddiqui and Ch. Muhammad Amin Mayo for OGRA.

Rasaal Hassan Syed for SNGPL.

Tariq Bashir with Mr. Muhammad Nazir Malik, Director Law, Ministry of Petroleum and Natural Resources.

Asim Iqbal for SSGPL.

Asim Nazir for NTDC.

Date of hearing: 3rd October, 2014.

2015 C L C 65

[Lahore]

Before Mamoon Rashid Sheikh, J

JUNAID JAMSHED----Petitioner

Versus

UNIVERSITY OF HEALTH SICENCES and others----Respondents

Writ Petition No.25515 of 2014, heard on 3rd October, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Matters relating to educational institution--- Interference by High Court--- Scope---Educational institutions are the best judges of their rules and regulations---High Court in exercise of its Constitutional jurisdiction normally does not interfere in such like matters as its jurisdiction cannot be invoked for obtaining decisions on merits which functionaries alone are entitled to take under law---Jurisdiction of High Court under Art.199 of the Constitution is principally meant for correcting jurisdictional errors in orders and proceedings of tribunals and executive authorities.

Muhammad Abdullah Riaz v. U.H.S. and others PLD 2011 Lah. 555 and Sahiba Dost vs. Chairman Admissions Board/Vice-Chancellor U.H.S. and others PLD 2011 Lah. 605 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Mistake by authorities---Factual controversy---Impairing performance---Admission to medical college---Entrance test---Petitioner was candidate for admission to medical college and due to mistake of authorities incorrect examination center was mentioned in admission card and on the day of examination petitioner had to rush to proper examination center---Plea raised by petitioner was that if he had directly been intimated about proper center well in time before the date of Enterance Test his performance would have not been impaired---Contention of authorities was that university acted promptly on the date of Entrance Test and also allowed petitioner to take Entrance Test at correct examination center, even though he arrived there after cut off time---Validity---Controversy started at the point as to when the university was aware of the mistake, and if mistake was discovered well before date of entrance test then why it did not directly communicate to petitioner in view of the fact that his contact numbers and email address were available with the university---Questions that as to whether petitioner checked the newspapers or university's website to confirm the location of his examination center; whether the petitioner reached the examination center before and not after 9 a.m. (fixed time) on the date of Entrance Test; and that at what time correct information was communicated to petitioner were disputed questions of fact resolution whereof was not normally undertaken by High Court in exercise of Constitutional jurisdiction---University had decided to form a three member committee to probe into the matter so as to take steps to avoid such mistakes in future---No relief was decided to be given to petitioner by quoting prospectus but fact remained that university committed a mistake even though it could be taken to be an honest mistake albeit it had not been so pleaded---High Court, while using paternal jurisdiction referred the matter to Vice-Chancellor/Admission Board of the university for further consideration---Petition was disposed of accordingly.

Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir 1984 SCMR 433; Ayesha Fida v. Government of N-W.F.P. through Secretary, Home and Tribal Affairs Department at Civil Secretariat Peshawar and 7 others 2004 CLC 1160; Mst. Shazia Shafi v. University of Health Sciences and others 2011 MLD 894; Syeda Shakeela Batool v. Controller of Examinations, Baha-ud-Din Zakariya University and another 2004 YLR 1467; Farmanullah Khan v. Controller of Examination, Karachi University 2010 MLD 85; Dayyam Atta Tareen v. NUST and others 2011 CLC 211; Hafiz Husnain Raza Shah and 2 others v. Baha-ud-Din Zakariya University, Multan through Vice-Chancellor and 2 others 2011 MLD 741; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6; Maryam Izhar and another v. International Islamic University and others 2012 MLD 719 and Usman Tariq v. Punjab Public Service Commission and others 2013 PLC (C.S.) 1183 ref.

Khawaja Tariq Sohail for Petitioner.

Ch. Muhammad Atiq for Respondents.

Date of hearing: 3rd October, 2014.

2015 C L C 89

[Lahore]

Before Mamoon Rashid Sheikh, J

ABDUL GHANI----Petitioner

Versus

GHULAM ABBAS TAMANNA and others----Respondents

Writ Petition No.18359 and C.Ms. Nos.2, 3 of 2013, decided on 23rd October, 2013.

(a) Constitution of Pakistan---

---Art. 199--- Constitutional jurisdiction--- Scope--- Exercise of Constitutional jurisdiction of High Court is discretionary in nature and one who seeks equity must do equity.

Abdur Rashid v. Pakistan and others 1969 SCMR 141; Waheed Azmat Sheikh v. Chairman, Habib Bank Limited and 2 others 2002 CLC 929; Messrs Trade Lines through Managing Partner and others v. Bank of Punjab through General Manager and another 2002 CLD 1776; Lahore Development Authority through Director-General, LDA, Lahore v. Mst. Shamim Akhtar and another 2003 MLD 1543 and Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560 rel.

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

----S. 47---Executing Court---Jurisdiction---Executing Court cannot go beyond the decree.

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

----S. 8--- Civil Procedure Code (V of 1908), S.47---Constitution of Pakistan, Art.199---Constitutional petition---Execution of decree---Objection petition---Suit for recovery of immovable property was decreed by High Court in exercise of revisional jurisdiction in favour of plaintiff---Plea raised by petitioner was that objection petition was filed by him in furtherance of the order passed by Supreme Court and decree could only be executed through partition of land as it was part of joint Khata---Validity---Petitioner concealed material facts and did not raise such point as a ground in petition and it appeared as an afterthought---Petitioner was unable to point out any illegality or material irregularity having been committed by Courts below whilst passing order in question---Petitioner was also unable to point out any exercise of excess of jurisdiction by Courts below or to show that order in question was perverse---High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by Executing Court---Petition was dismissed in circumstances.

Ch. Imtiaz Ahmad Kamboh for Petitioner.

Mian Subah Sadiq Klasson for Respondent No.1.

2015 C L C 120

[Lahore]

Before Muhammad Kahlid Mehmood Khan, J

MUHAMMAD NAWAZ CHEEMA, ADVOCATE and another----Petitioners

Versus

Mian KHADIM HUSSAIN WATTO and another----Respondents

Writ Petitions Nos.17365 and 16367 of 2010, decided on 20th March, 2013.

Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Jurisdiction of High Court---Scope.

The petition of quo warranto empowers the Court to inquire from a person the authority of law under which he is holding the public office, and it is primarily inquisitorial and not adversarial proceedings as the relator need not be a person aggrieved, for the simple reason that a person who is holding a public office without any legal warrant, he is burden on public exchequer and is also usurping the right of eligible person, who is entitled for the office according to law, hence the writ of quo warranto can be moved by any person, who may not be an aggrieved party. The challenger only has to place the facts before the Court against the Public Office Holder, and it is upto the Court to examine the allegations of the petitioner against the Public Office Holder, the Court being the custodian of the rights of tax-payer is bound to safeguard the usurpation of public exchequer.

Election Commission of Pakistan v. Asif Iqbal and others PLD 1992 SC 342; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52; Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah. 49; Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102; Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66; Reference No.1 of 1988 made by the President of Pakistan PLD 1989 SC 75 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1054 ref.

Masood-ul-Hassan v. Khadim Hussain and another PLD 1963 SC 203; The University of Mysore and another v. C.D. Govinda Rao and another AIR 1965 SC 491 and Capt. (Retd.) Muhammad Naseem Hijazi v Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720 rel.

Petitioner No.1 in Person.

Petitioner No.2 in Person.

Salman Mansoor for Petitioner (in Writ Petition No.16367 of 2010).

Dr. Khalid Ranjha and Fawwad Malik for Respondents.

Asif Afzal Bhatti for University of the Punjab.

Date of hearing: 28th February, 2013.

2015 C L C 138

[Lahore]

Before Rauf Ahmad Sheikh, J

AMJAD HUSSAIN----Petitioner

Versus

Mst. JAMILA YASMEEN and 2 others----Respondents

Writ Petition No.36 of 2010, decided on 13th March, 2013.

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

----Ss. 7 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Notice of divorce---Certificate for payment of maintenance by the husband to the wife---Condition of payment of compensation for divorce by husband imposed by the Arbitration Council---Legality---Petitioner-husband divorced respondent-wife and sent a notice to the Chairman Arbitration Council but did not join proceedings of reconciliation before the Arbitration Council---Claim of the wife for past maintenance, medical charges, maintenance for the period of Iddat and compensation for divorce was accepted by the Arbitration Council---Husband filed revision petition before the Deputy District Officer (Revenue)/Collector which was dismissed---Validity---No restriction existed on the powers of the Arbitration Council to issue certificate for past maintenance, however, such restriction was imposed on the powers of the Magistrate under S.488, Cr.P.C.---Expenditures borne on delivery of the child were to be paid by the husband as he was bound to maintain the wife adequately, which included the medical charges---Award of compensation due to divorce pronounced was not within the jurisdiction of the Arbitration Council---Condition that in case of pronouncement of divorce, the petitioner-husband would pay compensation was stringent, harsh and against the public policy---Husband and wife were supposed to live within the limits of God and they must pay respect to each other and must lead a harmonious life and if same became impossible then they might separate from each other in a respectful way---Said condition might force husband and wife to live with hatred, ill-will and grouse nourished in their hearts against each other, which finally led to many social complications---Impugned order to the extent of compensation was not sustainable in the eyes of law---Factual controversy could not be resolved in exercise of Constitutional jurisdiction by High Court---Constitutional petition was partly accepted.

Muhammad Nawaz, v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302 rel.

Malik Sajjad Haider Awan for Petitioner.

Respondent No.1 in Person.

2015 C L C 157

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

KARAMDAD----Petitioner

Versus

MANZOOR AHMAD and 2 others----Respondents

Civil Revision No.523 of 2012, decided on 26th May, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for specific performance of contract---Oral agreement---Plaintiff had not disclosed the name of witnesses in the plaint before whom the alleged oral sale was struck between the parties---Even no period for completion of agreement to sell had been mentioned by the plaintiff in his plaint---Oral agreement to sell was permissible in law but same had to be proved through credible and un-impeachable evidence---Contradiction with regard to alleged witnesses of bargain of sale was on record---Plaintiff had failed to prove that possession of suit property was handed over to him as a result of agreement to sell---No sale consideration was ever paid to the defendant at the time of alleged transaction of sale---Plaintiff had failed to prove his case by pleading relevant details with regard to name of witnesses and period fixed for completion of agreement to sell---Both the courts below had committed material illegality and decreed the suit on the basis of surmises and conjectures---Suit filed by the plaintiff had wrongly been decreed by the courts below---Impugned judgments and decrees were the result of misreading and non-reading of evidence which could not sustain in the eye of law---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed with costs---Revision was accepted in circumstances.

2013 SCMR 1300; 2008 CLC 418; 1987 CLC 2307; 2010 CLC 734 and 2012 YLR 521 rel.

Sh. Naveed Shehryar, Muhammad Yasin Hatif and Humaira Bashir Chaudhary for Petitioner.

Ehsan Qadir Sial for Respondents.

2015 C L C 166

[Lahore]

Before Amin-ud-Din Khan, J

GHULAM MURTAZA and others----Petitioners

Versus

Mst. BIVI and others----Respondents

Civil Revision No.444 of 2011, decided on 21st November, 2013.

Punjab Pre-emption Act (I of 1913)---

----Ss. 21 & 30---Pre-emption, right of---Limitation---Contention of defendants was that statements of witnesses of both the parties had been recorded on solemn affirmation but not on oath---Suit was decreed concurrently--Validity---When no prejudice had been highlighted by recording statements of witnesses of both the parties on solemn affirmation, then deviation from Oaths Act, 1873 could not be pressed---Non-appearance of plaintiff at the time of affirmative evidence and reserving his right to appear in affirmative as well as rebuttal evidence after recording of evidence of defendant was fatal---Statement of plaintiff recorded after the statement of defendants, reserved at the time of affirmative evidence, was not fatal in the present case---Concurrent findings of fact with regard to superior of plaintiff were recorded by the courts below---High Court could not interfere in the findings recorded on factual controversies between the parties---Plaintiff had proved her case pleaded by her---Limitation for filing pre-emption suit under Section 30 of Punjab Pre-emption Act, 1913 was one year from the date of attestation of mutation---Day of attestation of mutation was excluded from counting the period of one year---Mutation was attested on 6-11-1973 and suit was filed on 6-11-1974 which was within time---Revision was not maintainable which was dismissed in circumstances.

Shamsher Ali v. Mst. Qaim Khatoon alias Irshad Bibi and others PLD 1997 SC 559 and Muhammad Aslam and others v. The State 1999 SCMR 845 rel.

Muhammad Shehzad Shaukat for Petitioners.

Sheikh Naveed Shehryar for Respondent No.1.

Date of hearing: 21st November, 2013.

2015 C L C 183

[Lahore]

Before Amin-ud-Din Khan and M. Sohail Iqbal Bhatti, JJ

Haji ZAHID SAEED and another----Appellants

Versus

Messrs ASIF BROTHERS and 3 others----Respondents

First Appeals from Order Nos.47 and 102 of 2010, heard on 23rd October, 2014.

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

----O. XXI, Rr. 66, 90,67, 68 & 89---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree---Sale/auction of property---Non-mentioning of "reserve price"---Issuing of proclamation---Setting aside of auction/sale on ground of material irregularity and fraud---Non-compliance of provisions of mandatory O.XXI, Rr.66, 67 & 68 of C.P.C.---Effect---Scrutiny of process of auction by the Executing Court; inherent jurisdiction of---Process of sale of properties in execution proceedings was assailed by judgment-debtor on grounds of collusion between auction purchaser and court auctioneers as well as material and procedural irregularities---Held, that properties were situated at place "J" whereas publication of public notice under O.XXI, C.P.C. was made in newspapers at place "F"; and there was no mention of reserve price in pro forma allegedly submitted for schedule of auction---Order sheet did not show that the said schedule of auction had been incorporated in the order of the Executing Court---Although reserve price was mentioned in the publication, the same was done so without any authority and without fixation of the same by the Executing Court and mentioning of reserve price in the publication had no value as the same had not been mentioned in pro forma (schedule of auction)---High Court observed that even where the sale was conducted by the Court; a reserve price was essential and absence thereof may be fatal and it stood established that no reserve price was fixed by the Executing Court in the present case and proclamation issued under O.XXI, R.66, C.P.C. did not comply with the requirement of the law---Executing Court, in the present case, was not only having jurisdiction under O.XXI, R.89, C.P.C.; but also under S.19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as an inherent jurisdiction to scrutinize the process of sale of properties through auction and to unearth fraud and save any party against whom fraud had been committed---No place of auction had been mentioned and proceedings were conducted by the Executing Court and the court auctioneers in a manner that necessitated the consideration of the element of fraud in said proceedings---High court further observed that when any fraud was visible in auction proceedings, the Executing Court had suo motu powers in relation to the same---Auction proceedings, in circumstances, were not transparent from the first day, and illegalities were committed by the Executing Court as well as court auctioneers---Sale confirmed in favour of the auction-purchaser, was set aside---Appeal was allowed, in circumstances.

Messrs Asif Brothers, Jhang Saddar through Sole Proprietor and another v. Muslim Commercial Bank Limited through Manager and 3 others 2005 CLD 236; Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706; National Bank of Pakistan and 117 others v. SAF Textile Mills Limited and others PLD 2014 SC 283; Rana Muhammad Naseeb Khan v. Zarai Tarukiyati Bank of Pakistan and 2 others 2007 CLD 466; Messrs National Electric Company of Pakistan v. Allied Bank of Pakistan Limited and 2 others 1996 CLC 192 and Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No. 2, Karachi and others 2013 SCMR 1419 rel.

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

----Arts. 181 & 166---Civil Procedure Code (V of 1908) O.XXI, Rr. 90, 66, 67 & 68---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) S.19(4)---Execution of decree---Auction/sale of property---Fraud ----Application to set aside auction on ground of fraud and irregularity---Limitation---When sale/auction appeared to be outcome of collusion between court auctioneers, and auction-purchaser and mandatory provisions of O.XXI, Rr.66, 67 & 68, C.P.C. and S.19(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were not complied with; in such circumstances Art.181 of the Sched. to the Limitation Act, 1908 was attracted instead of Art.166 of the same---When sale in execution was inoperative and void; an application by the judgment-debtor to have such sale declared void and for appropriate relief, was governed by Art.181 and not Art.161 of the Sched. to the Limitation Act, 1908.

National Bank of Pakistan and 117 others v. SAF Textile Mills Limited and others PLD 2014 SC 283; Mst. Manzoor Jahan Begum and others v. Haji Hussain Bakhsh PLD 1966 SC 375; Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Messrs National Electric Company of Pakistan v. Allied Bank of Pakistan Limited and 2 others 1996 CLC 192; Merla Ramanna v. Nallapa Raju and others AIR 1956 AIR 87 (sic); Mst. Zainab Bibi v. Allied Bank of Pakistan Limited and others 2003 YLR 3274 and Rana Muhammad Naseeb Khan v. Zarai Tarukiyati Bank of Pakistan and 2 others 2007 CLD 466 rel.

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

----O. XXI, Rr.90 & 89---Application of judgment-debtor under O.XXI, R.90, C.P.C. inrelation to objections on auction of property, was withdrawn---Contention of the auction-purchasers was that since said application was withdrawn, the judgment-debtor on appeal had no right to challenge the auction on grounds of defects in procedure adopted by Executing Court---Held, that when the High Court was of the view that auction proceedings conducted by an Executing Court as well as the court auctioneers were not in accordance with the provisions of the law; and could be said to be fraudulent; the court could not shut its eyes on basis of technicalities and could look into the matter and the same powers were also available to the Executing Court.

Naveed Shahryar Sheikh, Miss Fatima Malik, Miss Humaira Bashir Chaudhary and Bashir Ahmad Mirza for Appellants.

Tahir Mehmood Khokhar for Respondents Nos.1 and 2.

Ch. Mushtaq Ahmad Khan for the Bank.

Date of hearing: 23rd October, 2014.

2015 C L C 229

[Lahore]

Before Muhammad Tariq Abbasi, J

ABDUL GHAFOOR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.7814 of 2014, decided on 7th July, 2014.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 24 & 15---Constitution of Pakistan, Art. 199---Constitutional petition--- Ejectment of tenant---Default in payment of rent---Effect---Rent Tribunal directed the tenant to deposit monthly rent till 10th of each following month but same was not deposited and eviction petition was accepted---Validity---Rent Tribunal not only had power to pass an order for deposit of rent due within a specified time and continue to deposit the same in the bank account of landlord or in the Rent Tribunal till final order was passed but had also power to forthwith pass final order if tenant had failed to comply with such order---Leave to contest was granted to the tenant and he was directed to pay rent of the premises in the court till 10th of each following month---Tenant had failed to comply with such direction and he had not deposited any amount---Provision of S.24(4) of Punjab Rented Premises Act, 2009 was mandatory and tenant, in circumstances, had committed default in payment of rent---Rent Tribunal had no other option except to pass impugned judgment and accept the ejectment petition---No infirmity or defect had been pointed out in the judgments passed by the courts below---Constitutional petition was dismissed in circumstances.

Javed Masih and others v. Additional District Judge, Lahore and others 2010 SCMR 795; Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others 2010 SCMR 1071; Muhammad Naseer v. Sajid Hussain 2009 SCMR 784; Waheed Ullah v. Mst. Rehana Nasim and others 2004 SCMR 1568; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Muhammad Ashraf v. Qamar Sultana PLD 2003 SC 228; Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549 rel.

Ch. Muhammad Mehmood-ul-Hassan for Petitioner.

Qazi Atta Ullah for Respondents Nos.3 and 4.

Date of hearing: 7th July, 2014.

2015 C L C 276

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ABDUL RAZZAQ and others----Petitioners

Versus

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD and others ----Respondents

Writ Petition No.15627 of 2005, decided on 6th February, 2013.

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

----Ss. 2(d) & 10---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of evacuee trust property by Settlement authorities---Contention of petitioners was that suit property was transferred to their predecessor-in-interest but the said transfer was cancelled by the Chairman Evacuee Trust Property Board being an evacuee trust property---Validity---No trust deed relating to the property in question was available on record nor it was proved that the character of suit property was ever of a trust---Property was transferred to the predecessor-in-interest of petitioners against his verified claim---No allegation was on record against the predecessor-in-interest of the petitioners that the allotment was fraudulent; only objection was that the property was not the part of compensation pool and the settlement authorities were not authorized to allot the land to petitioner's predecessor-in-interest---Settlement Department had transferred the suit-land to the predecessor-in-interest of the petitioners against the consideration of his verified claim which was saved under S.10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Constitutional petition was allowed and transfer in favour of predecessor-in-interest of the petitioners was restored.

Pandit Parma Nand v. Nihal Chand and another 25 AIR 1938 PC 195; Baba Kartar Singh Bedi v. Dayal Das and others 26 AIR 1939 PC 201; Puj Maya Rishi and others v. L. Ram Chand and others AIR (33) 1946 Lah. 31; Shiromani Gurdwara Parbandhak Committee and others v. Haricharan Singh AIR 1934 Lah. 1 and Khalid Mahmood and others v. Ch. Ghulam Muhammad 1982 SCMR 557 rel.

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

----S. 17---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Remedy of revision was available but the same was not adequate---Constitutional petition was maintainable.

(c) Hindu law---

----Guru and Chela---Property of Guru devolved upon Chela in his life time and in case the Guru had not nominated his son as Guru in his life time, the property would devolve upon the existing chela of the Guru.

Shaukat Ali Mehar for Petitioners.

Naseem Ahmed Khan and Mian Abdul Sattar for Respondents.

Date of hearing: 6th February, 2013.

2015 C L C 285

[Lahore]

Before Atir Mahmood, J

MUHAMMAD IMRAN YOUNAS and 3 others----Petitioners

Versus

DISTRICT COLLECTOR (RING ROAD), LAHORE and 2 others----Respondents

Writ Petition No.283 of 2010, heard on 16th April, 2013.

Land Acquisition Act (I of 1894)---

---- Ss.4, 5-A, 17(4) & 17(6)---Constitution of Pakistan, Arts.199, 23 & 24---Constitutional petition---Notification for acquisition of land---Land of petitioners and others was acquired for construction of interchange and notification under S.4 of the Land Acquisition Act, 1894 was issued---Award was made and compensation was paid to all those whose land was acquired for construction of Interchange---Urgency was declared and notification was issued under Ss.17(4) & 17(6) of the Land Acquisition Act, 1894 but the land of the petitioners was not included in the said notification---Fresh notification was issued under S.4 of the Land Acquisition Act, 1894 for acquiring the land of the petitioners---Contention of the petitioners was that the interchange stood completed and their land was being acquired for horticulture purposes only and not for construction of Interchange---Validity---Competent authority might acquire the land in public interest as and when needed---Authorities were well within the law and presumption of correctness was attached to their act, until and unless there was some malice on their part which could not be established by the petitioners---Mere raising allegation of malice or mala fide was nothing until and unless same was proved through cogent evidence---Petitioners had remedy available to them before the Collector under S.5-A of the Land Acquisition Act, 1894 in the shape of raising objections---Property of the petitioners had been acquired in accordance with law and they had not denied receipt of compensation under award and petitions for enhancement of compensation were also pending decision before the Collector---No illegality was committed by the Authorities while issuing notification under S.4 of the Land Acquisition Act, 1894---Constitutional petition was dismissed.

Sub. (Retd.) Muhammad Ashraf v. District Collector Jhelum and others PLD 2002 SC 706 rel.

Ch. Zafar Iqbal for Petitioners.

Rizwan Mushtaq for Respondents.

Date of hearing: 16th April, 2013.

2015 C L C 307

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD MAHMOOD SAEED and others----Petitioners

Versus

MEHDI HASSAN SHAH and others----Respondents

Civil Miscellaneous Nos.276-C, 278-C and 279-C of 2011 in Civil Revision No.196 of 1992, decided on 26th November, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 115, O. VIII, R. 13 & O.XXII R. 4 ----Limitation Act (IX of 1908) Art.181---Civil Revision---Death of party to civil revision---Power of revisional court to decide civil revision if party or parties do not appear on date fixed for hearing---Scope---Applicants were legal representatives of a party to a civil revision and contended that said party was now deceased and his legal representatives were not in knowledge of the judgment deciding said revision petition---Applicants moved application under S.12(2), C.P.C. to set aside said judgment on grounds of fraud---Contention of the applicants was that delay in filing of application under S.12(2), C.P.C. ought to be condoned---Validity---Counsel for the deceased did not submit any affidavit to show that he had no knowledge about fixation for hearing of the revision application---Court had power to decide a revision application under S.115 of C.P.C. even if the parties did not appear on the date when it was fixed---Under O.XXII, R.4, C.P.C. proceedings did not abate on demise of one of the defendants or the sole defendants and it was duty of one of the legal representatives under O.VIII, R.13, C.P.C. to give intimation to the court about demise of a party and to provide a list of legal representatives---No such effort was made by the applicants and they could not be allowed to say that they were condemned unheard---Application under S.12(2), C.P.C. fell under Art.181 of the Limitation Act, 1908 under which a period of three years limitation was provided and the present application was filed after more than five years---Applicants had been appearing in partition proceedings for suit property and were therefore in knowledge of the impugned judgment---No ground therefore existed to condone delay---Application under S.12(2), C.P.C. was dismissed, in circumstances.

Ch. Abdul Ghani for Petitioners.

Sagheer Ahmad Bhatti for Respondent.

2015 C L C 316

[Lahore]

Before Mehmood Maqbool Bajwa, J

JAMSHED IQBAL BUTT and another----Appellants

Versus

Mst. BUSHRA TUFAIL----Respondent

First Appeal from the Order No.484 of 2012, decided on 21st March, 2013.

Civil Procedure Code (V of 1908)---

----O. IX, R. 4---Specific Relief Act (I of 1877), S.42---Suit, restoration of---Suit fixed for submission of arguments on the miscellaneous application---Not "fixed" for "hearing"---Due to non-appearance of plaintiff on said date, at the most miscellaneous application upon which arguments were required to be submitted could have been dismissed---Since the date was not "fixed for hearing" of the suit, therefore, order of dismissal of the suit for non-prosecution was legally not sustainable---Dismissal of suit having been ordered on the date "not" fixed for "hearing", question of limitation became irrelevant.

Mst. Suraya Parveen v. Mst. Rukhsana Hanif and others 2012 SCMR 656 rel.

Masood Sadiq for Appellants.

Imran Muhammad Sarwar and Muhammad Safdar Shaheen for Respondent.

2015 C L C 329

[Lahore]

Before Ijaz ul Ahsan, J

Pir MUHAMMAD SHAH KHAGGA----Petitioner

Versus

DISTRICT RETURNING OFFICER NA-164, PAKPATTAN and 3 others----Respondents

Writ Petition No.12302 of 2013, decided on 20th May, 2013.

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

----Ss. 39 & 103---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Recounting---Narrow margin, plea of---Ballot papers examination of---Petitioner sought recounting on the plea of narrow margin of votes but Returning Officer dismissed the application---Plea raised by petitioner was that Returning Officer without examining ballot papers excluded from count consolidated the result---Validity---Allegations made in application before Returning Officer as well as Election Commission were of general nature and no specific allegation was made relating to any illegal act on the part of rival candidate, polling staff or Returning Officer, which could have necessitated the recount---Provisions of S.39(3) of Representation of the People Act, 1976, had not been complied with, was not raised at the earliest stage and the same could not be raised at such belated stage and before High Court exercising extraordinary Constitutional jurisdiction---Election Tribunal was procedurally equipped to conduct factual inquiries and a trial could be conducted to resolve all disputed questions of law and facts and such exercise could not be undertaken by High Court---High Court in exercise of powers under Art.199 of the Constitution, declined to interfere in the matter---Petition was dismissed in circumstances.

Haji Abdul Rehman Khan v. Returning Officer and 6 others 1997 CLC 1123; Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others PLD 2007 Lah. 141; Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Zulfiqar Ali v. Election Tribunal/Civil Judge Ist Class Khanpur and 5 others 2000 MLD 746; Muhammad Ahmad Siddiqui v. Zamir Ahmad Tunio and 20 others 2003 CLC 1224; Muhammad Shabbir Abu Talib v. Dr. Abdul Aziz Bantwa and 18 others 2003 YLR 3039; Sadeed ur Rehman v. Election Commission of Pakistan, Islamabad and 12 others PLD 2009 Pesh. 54 and Moulana Ata ur Rehman's case PLD 2008 SC 663 ref.

Malik Nausher Khan Langerial v. Khalid Mahmood Chohan and others 2004 CLC 1249; Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad through Secretary and others PLD 2010 SC 34 and Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52 rel.

Abid Saqi for Petitioner.

Muhammad Shahzad Shaukat for Respondent No.3.

Nasir Javed Ghumman, Standing Counsel along with Rana Muhammad Aslam Khan, Deputy Director, ECP for Respondents.

2015 C L C 339

[Lahore]

Before Zafarullah Khan Khakwani, J

Haji IMDAD HUSSAIN----Petitioner

Versus

Rana SHAUKAT MAHMOOD and others----Respondents

Civil Revisions Nos.532 to 556 of 2007 and 362 to 372 of 2009, decided on 15th December, 2014.

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

----Ss. 10 & 13 ----Court Fees Act (VII of 1870), Ss.7 & 1 ---Civil Procedure Code (V of 1908), O.VII, R.1---Suit for damages on account of defamation---Plaintiffs impugned order of Trial Court whereby they were directed to affix court-fee with their plaint---Contention of plaintiffs was that no court-fee was to be levied on suits initiated under the Defamation Ordinance 2002: and that the same did not fall within the category of suits described in S.7 of the Court Fees Act, 1870---Held, that S.10 of the Defamation Ordinance, 2002 provided that provisions of the Civil Procedure Code, 1908 were to mutatis mutandis apply to proceedings under the Defamation Ordinance, 2002; and under the said Ordinance, both civil and criminal proceedings could be initiated---Civil proceedings under the Defamation Ordinance, 2002 were to be initiated by presentation of a plaint, and under O.VII, R.1, C.P.C., the plaint was to contain, inter alia, a statement of value of the subject matter of the suit as well as the court-fee; therefore provisions of the Court Fees Act, 1870 were applicable to proceedings under the Defamation Ordinance, 2002---Court Fees Act, 1870 was a special law and unless its operation was expressly barred, it shall remain applicable to all civil cases---High Court observed that the court-fee on a suit for damages under the Defamation Ordinance, 2002 was to be governed by S.7 of the Court Fees Act, 1870 as the same had not been specifically or even impliedly barred---Under S.7(i) of the Court Fees Act, 1870; the court-fee was, to be levied according to the amount claimed and a suit under the Defamation Ordinance, 2002 was a suit for money on account of damages and for compensation, therefore the court-fee was to be levied according to the amount claimed---Trial Court was therefore under a statutory obligation to direct the plaintiffs to affix required court-fee on the plaint; and therefore no illegality existed in the impugned orders---Revision was dismissed, in circumstances.

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

----Ss. 7 & 1---Nature and scope of the Court Fees Act, 1870---Court Fees Act, 1870 was a special law and unless its operation was expressly barred, it shall remain applicable to all civil cases.

Ch. Asad Masood Khan for Petitioner.

Nemo for Respondent No.1.

Ms. Shahida Tanveer for Respondents Nos.2 and 3.

Date of hearing: 15th December, 2014.

2015 C L C 366

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD YOUNAS----Petitioner

Versus

MEMBER BOARD OR EVENUE, PUNJAB, LAHORE and 4 others----Respondents

Writ Petition No.1099 of 2013, decided on 27th June, 2014.

(a) Conditional order---

----Time limit, absence of---Fulfilment of condition---Principle---When Court / authority passes conditional order but does not mention about time for fulfilment of such condition or penal consequences for non-fulfilment of that condition, person in whose favour order is passed cannot be penalized for belated fulfilment of such condition.

Muhammad Nazir v. Qaiser Ali Khan 2003 SCMR 436 ref.

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

----S. 30---Constitution of Pakistan, Art.199---Constitutional petition---Resumption of land---Procedure---Allotment of land in question was cancelled as it fell within prohibited zone and alternate land was allotted to predecessor-in-interest of respondent---Revenue authorities cancelled alternate allotment and Board of Revenue in exercise of revisional jurisdiction restored lease subject to deposit of penalty of Rs.10000/- but respondent did not pay amount of penalty, therefore, revenue authorities auctioned the land---Auction of land was confirmed in favour of petitioner, who had deposited 1/4th of bid money but appellate authority allowed appeal and lease was resumed in favour of respondent---Petitioner contended that respondent was not in cultivating possession of land in question, therefore, it was rightly auctioned by revenue authorities as respondent failed to comply with condition imposed by Board of Revenue---Validity---If respondent or other legal heirs of original lessee did not deposit amount within reasonable time, District Collector could have put up the matter before Board of Revenue for seeking permission for resumption of land after recalling of order regarding restoration of lease in favour of respondent but instead of doing so, he proceeded to put land in question to auction---Order passed by District Collector was not challenged by anybody before any higher forum, however such order which was passed without prior approval of Board of Revenue could not be given legal sanctity---Action of District Collector to put land in question to auction was rightly set at naught by appellate authority---If respondent was not in cultivating possession of land in question, District Collector was fully authorized to take steps for cancellation of lease in his favour and then to resume the same in favour of State but no steps were taken by District Collector, thus his action was not covered under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912---Act of District Collector to put land in question to auction without adopting proper procedure and without caring for orders passed by Board of Revenue restoring lease in favour of respondent---Petition was dismissed in circumstances.

Muhammad Afzal v. Muhammad Ayub 2003 SCMR 961; Mst. Shahida Khanum v. Province of Sindh 2008 MLD 293; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Abdul Khaliq and 8 others v. Assistant Collector/Notified Officer Bhakkar and 11 others PD 2004 Lahore 521; Sigallo Asia v. Akbar Enterprises Pvt. Ltd. 2001 CLC 660; Muhammad Afzal v. Muhammad Ayub 2003 SCMR 961; Ms. Shahida Khanam v. Province of Sindh 2008 MLD 993; Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208; Khizar Hayat v. Municipal Corporation Fsd. 2000 CLC 1374; Fazal Din v. Rehabilitation Commissioner 1987 CLC 1053; Wajid and 2 others v. Mir Muhammad Baloch PLD 1982 Quetta 41; Muhammad Younas Khan v. Government of N.-W.F.P. 1993 SCMR 618; Mst. Athar Jabin v. Deputy Settlement Commissioner Circle III, Lahore PLD 1993 Lah. 842; Muhammad Nazir v. Qaiser Ali Khan 2003 SCMR 436 and Citibank v. Shahanshah Hussain (2009 CLD 1564 distinguished.

(c) Remand---

----Remand of proceedings---Principle---When matter can be decided on the basis of available record, it is not proper to remand the matter to lower forum as it would also be an exercise in futility in addition to being a source of inconvenience and hardship for litigants.

Messrs United Woolen Mills Workers Union v. United Woolen Mills Ltd. 2010 SCMR 1475; Arshad Amin v. Messrs Swiss Bakery and others 1993 SCMR 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC 1029 rel.

(d) Administration of justice---

----Erroneous order, setting aside of---Principle---Even an erroneous order cannot be brushed aside without challenging the same before appropriate forum.

Sarosh Haider v. Muhammad Javed Chundrigar and others PLD 2014 SC 338 and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 rel.

Ch. Muhammad Amin Javed for Petitioner.

Rana Shamshad Ahmad Khan, Asstt. Advocate-General.

Mian Shah Abbas, for the Respondents.

2015 C L C 378

[Lahore]

Before Ijaz ul Ahsan and Abid Aziz Sheikh, JJ

Mst. ALIA MEHBOOB----Petitioner

Versus

UNIVERSITY OF SARGODHA through Vice-Chancellor and 6 others----Respondents

Writ Petitions Nos.3011, 1705, 3549 and 1243 of 2014, decided on 19th June, 2014.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Educational institution---Admission to medical college---Non-confirmation of seats---Petitioners were given provisional admission in respondent Medical College against seats reserved for children of expatriate Pakistanis---Grievance of petitioners was that their admission was cancelled as Higher Education Commission did not confirm their seats---Validity---Students were not at fault and admissions in question were granted by the Medical College in violation of rules of which they were aware and had made an effort to rectify the wrong by approaching Higher Education Commission seeking regularization of admission of students---Medical colleges/universities could not grant direct admission and that such admissions if granted were not recognized by Higher Education Commission or University of Health and Sciences---Only channel for such admission was to apply through Higher Education Commission and the Commission being regulator should be vigilant and strict---High Court directed Higher Education Commission to take prompt action against medical and dental colleges which had granted such illegal and unlawful admissions---High Court directed respondent Medical College to refund entire fee along with hostel charges recovered from petitioners, who would be at liberty to file fresh application as and when the same were invited by Higher Education Commission for admission to next academic session for seats reserved for foreign students under self-finance scheme---High Court directed Higher Education Commission to process such application, if received, in accordance with law---High Court declined to interfere in order cancelling admission of petitioners---Petition was dismissed in circumstances.

Ch. Shahid Iqbal for Petitioner.

Mian Shahid Nazeer for Respondent.

Date of hearing: 19th June, 2014.

2015 C L C 439

[Lahore]

Before Syed Mansoor Ali Shah and Mrs. Ayesha A. Malik, JJ

AMEER NAWAZ KHAN NIAZI and another----Appellants

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and another----Respondents

Intra-Court Appeal No.930 of 2014 in Writ Petition No.24298 of 2014, Writ Petitions Nos.26546, 29835, 29599, 26350, 26540, 28693, 25509 and 22756 of 2014 decided on 19th November, 2014.

Show-cause notice---

----Issuance of show-cause notice---Essentials---Notice cannot be vague and unspecific, but must clearly lay out the accusation levelled against the person concerned, notice was not sustainable in law as the same did not provide an opportunity for the person to defend themselves.

Noor Ahmed v. Province of East Pakistan and others PLD 1962 Dacca 5331; Noor Ahmed v. Province of East Pakistan and others PLD 1964 Dacca 546 Lakhu Sarkar v. Government of East Pakistan and others PLD 1964 Dacca 217; Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others 2001 SCMR 838 rel.

Malik Noor Muhammad Awan for the Appellants/petitioner (in I.C.A. No.930 of 2014 and W.P. No.26546 of 2014).

Safdar Khan Magsi, vice Malik Abdus Sattar Chughtai for Petitioner (in W.P. No.22756 of 2014).

Syed Iqbal Hussain Shah Gillani for Petitioner (in W.P. No.26350 of 2014).

Bashir Ahmad Mirza vice Sh. Naveed Shehryar for the Petitioner (in Writ Petitions Nos.25509 of 2014 and 26540 of 2014).

Ch. Haroon-ur-Rashid Gujjar for Petitioner (in Writ Petitions Nos.29599 of 2014 and 29835 of 2014).

Muhammad Akbar Hayat Awan and Muhammad Irshad Ch. for Petitioner (in W.P. No.28693 of 2014).

Ms. Hina Hafeezullah Ishaq, Asstt. A.-G., Punjab.

Saif Ahmad Bhatti, Law Officer, Board of Revenue, Punjab, Lahore.

Aamir Iqbal Tehsildar Kalur Kot.

2015 C L C 447

[Lahore]

Before Shahid Jamil Khan, J

ILTAF HUSSAIN----Petitioner

Versus

ZAFAR IQBAL and others----Respondents

Writ Petition No.1597 of 2014, decided on 3rd June, 2014.

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

----S. 75 & O. XXVI, Rr. 9 & 10---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration---Local commission, appointment of---Scope---Appointment of local commission to make local investigation could only be made if court had deemed the same as requisite or proper---Mutations challenged in the suit were attested in exchange of properties---Property of plaintiffs was placed at a valuable area whereas nobody knew about the location of property which had been mutated in exchange---Appointment of local commission was proper to decide the lis as without spot inspection exact location of both the properties exchanged inter se could not be proved before the court---Dismissal of earlier application for appointment of local commission, delay in concluding the suit or recording of evidence of parties could not be a ground to reject the application for appointment of local commission when local investigation/inspection was necessary in the opinion of court---Appointment of local commission was discretion of the court which had to be exercised in backdrop of the facts of a particular case---Such discretion could not be interfered through constitutional jurisdiction unless same was exercised in perverse or capricious manner---No defect in exercise of jurisdiction/discretion by the Appellate Court was found which had discussed the merits in detail---Constitutional petition was dismissed in limine.

Dr. Tahir Mahmood Awan v. Tariq Mahmood and another 2006 MLD 1457 and Jalal Khan and 10 others v. Khandoo Malik and 24 others 2003 SCMR 1351 ref.

Dr. Tahir Mahmood Awan v. Tariq Mahmood and another 2006 MLD 1457 and Jalal Khan and 10 others v. Khandoo Malik and 24 others 2003 SCMR 1351 distinguished.

Rehman Dad and another v. Major Raja Sajawal Khan and others 1976 SCMR 350 rel.

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

----S. 75 & O. XXVI, Rr. 9, 10---Local commission, appointment of---Object---Purpose of appointing a commissioner for local investigation was to obtain clear view of evidence through spot inspection for arriving at a just decision.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Discretion exercised by the courts below could not be interfered through constitutional jurisdiction unless same was exercised in perverse or capricious manner.

Amjad Bashir Mirza for Petitioner.

2015 C L C 457

[Lahore]

Before Zafarullah Khan Khakwani, J

UMER WADDA----Appellant

Versus

MUNIR AHMAD----Respondent

Regular First Appeal No.13 of 2011, decided on 9th October, 2014.

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

----S. 2 (5)---"Bond"---Defined---Bond is an instrument which can be divided into two parts, i.e. obligation and condition---In the first part the obligor binds himself to pay a sum of money and in the second, terms of agreement are set forth with condition that on performance or non-performance of any specific act, bond would be void---Bond is merely a form of contract under which a person binds himself to pay money either in present or at some future time conditionally---Bond must be attested by a witness and should not be payable to order or bearer.

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

----S. 4---Civil Procedure Code (V of 1908), O.XXXVII, R. 2---Suit for recovery of money on the basis of negotiable instrument---"Pro note" or "bond"---Proof---Suit filed by plaintiff on the basis of pro note was decreed by Trial Court in favour of plaintiff and against defendant---Plea raised by defendant was that document relied upon by Trial Court carried signatures of marginal witnesses, therefore, it was not "pro note" and was a "bond"---Validity---To determine nature of an instrument whether there was a promise to pay, the best was to see what was intention of parties and what was instrument in common acceptance of person among whom it was used---How the instrument was described by parties themselves was just one of the elements to be considered and nothing more---In order to amount to a promissory note, an instrument must simply contain a promise to pay and nothing else---Evidence produced by plaintiff was confidence inspiring and trust worthy as against evidence produced by defendant---Plaintiff had fully proved that defendant was responsible to pay Rs.100,000 to plaintiff under pro note and Trial Court had rightly answered issues in favour of plaintiff---High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Abdul Rauf v. Farooq Ahmad and another PLD 2007 Lah. 114; Abdul Hameed v. Muhammad Afzal Atif PLJ 2012 Lahore 500; Ram Narayan v. Bhagat and another v. Ram Chandra Singh and others AIR 1962 Patna 325 and Muhammad Ashraf v. Muhammad Boota C.A. 1784 of 2009 ref.

Gulzar Ahmad Khan Durrani for Appellant.

Muhammad Israr for Respondent.

Date of hearing: 9th October, 2014.

2015 C L C 463

[Lahore]

Before Shezada Mazhar, J

MUHAMMAD ARSHAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

Writ Petition No.7376 of 2008, decided on 21st October, 2014.

Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976)---

----Ss. 3, 5 & 8-A---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Contention of husband was that dowry articles had been returned to the wife---Validity---No evidence was produced to prove receipt of dowry articles by wife or her relatives---Both the courts below had discussed the evidence produced by the husband minutely and had reached to a right conclusion---Husband had failed to substantiate the delivery of dowry articles to the wife---No restriction existed for the parents to give dowry or bridal gifts for more than Rs.5000---If parents had given dowry articles for more than the said amount then same would remain the property of the bride and husband could not usurp the same on the ground that same had been given in violation of S.3(1) of Dowry and Bridal Gifts (Restriction) Act, 1976---Provisions of said Act would become redundant once the parents of the bride had given dowry articles for more than the amount mentioned in S.3(1) of Dowry and Bridal Gifts (Restriction) Act, 1976---Dowry and bridal gifts given to the bride should remain her property---No complaint had been made by the husband to the relevant authority under S.8-A of Dowry and Bridal Gifts (Restriction) Act, 1976---Impugned judgments and decrees passed by the courts below were in accordance with law---Constitutional petition was dismissed in circumstances.

Muhammad Tazeeel v. Mst. Khair un Nisa 1995 SCMR 885 and Masud Sarwar v. Farah Deeba 1988 CLC 1546 rel.

Allah Bakhsh Gondal for Petitioner.

Muhammad Arif Gondal for Respondent No.3.

Date of hearing: 14th October, 2014.

2015 C L C 473

[Lahore]

Before Amin-ud-Din Khan, J

IRFAN JAVAID----Petitioner

Versus

Mst. SURRAYA SULTANA and 2 others----Respondents

Writ Petition No.4677 of 2007, heard on 15th May, 2013.

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

----Ss. 9 & 42---Suit for possession under S.9 of Specific Relief Act, 1877 and suit for declaration under S.42 thereof, consolidation of---Scope---Such suits could not be consolidated, rather decision thereof separately would be legal.

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

----S. 9---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan, Art.199---Judgment and decree passed in suit under S.9 of Specific Relief Act, 1877---Interference in such judgment and decree in revisional jurisdiction or constitutional jurisdiction of High Court---Scope stated.

In the judgment and decree passed in a suit under section 9 the Specific Relief Act, except in exceptional circumstances, no such interference should be justified merely on the ground that finding on question of fact was not based on adequate evidence or was erroneous, otherwise it would be against the spirit of section 9 of the Act and in effect would convert the revision petition into an appeal, which law expressly disallows.

When in the cases arising under section 9 of the Specific Relief Act, the revisional jurisdiction can rarely be exercised in exceptional circumstances; therefore, no question of exercise of jurisdiction under Article 199 of the Constitution occurs.

Late Mst. Majeedan (through her legal heirs) and another v. Late Muhammad Naseem (through his legal heirs) and another 2001 SCMR 345 rel.

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

----S. 9---Suit for possession---Essential requirements---Dispossession of plaintiff must be within six months of date of suit---Constructive possession of plaintiff coupled with title would also be sufficient for bringing into operation S.9 of Specific Relief Act, 1877.

Ghulam and another v. Sheodin Ram and others AIR 1918 Nagpur 105; Malik Nasim Ahmad v. Malik Rasool Bakhsh and another PLD 1973 Lah. 655; Riaz and another v. Razi Muhammad PLD 1979 Kar. 227; Isa Khan and 23 others v. Barkatullah and 9 others PLD 1989 Pesh. 67; Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD 1993 Pesh. 81 and Amir Hussain Khokhar v. Mst. Nargis Khatoon 1996 CLC 1588 rel.

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

----S. 42---Khasra Girdawari of plot in Residential Housing Scheme---Evidentiary value---Such Khasra Girdawari would have no legal value as Revenue Staff was not legally required to conduct Girdawari of Housing Scheme.

Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others 1990 CLC 1617; Late Mst. Majeedan (through her legal heirs) and another v. Late Muhammad Naseem (through his legal heirs) and another 2001 SCMR 345 and Canal view Cooperative Housing Society v. Javed Iqbal and another PLD 2004 SC 20 rel.

Malik Noor Muhammad Awan for Petitioner.

Sh. Naveed Sheharyar for Respondent No.1.

Date of hearing: 15th May, 2013.

2015 C L C 488

[Lahore]

Before Rauf Ahmad Sheikh, J

SHAMSHER ALI and another----Petitioners

Versus

ALLAH BAKHSH----Respondent

Civil Revision No.1633 of 2010, heard on 24th May, 2013.

(a) Specific Relief Act (I of I877)---

----S. 8---Transfer of Property Act (IV of 1882), S.53-A---Arbitration Act (X of 1940), Ss.2(b) & 14---Suit for possession by vendor---Vendee-defendant's plea that his possession over suit property for being in part performance of sale agreement was protected under law---Reference of such matter to Referee by Court---Statement of Referee to the effect that vendee for having paid earnest money was entitled to execution of sale deed on payment of balance sale price---Validity---Referee would be supposed to make statement as to matter referred to him or furnish information as required in pursuance of statements of parties---Statement of Referee would amount to admission of concerned party to extent of information furnished by him---Referee could not decide matter as Arbitrator under S.14 of Arbitration Act, 1940 and his statement would not amount to award within meaning of S.2(b) thereof---Referee was supposed to furnish information about factual position qua suit agreement---No suit for specific performance of agreement was pending between parties, thus, Referee had exceeded terms of reference by observing that vendee was entitled to transfer of property on payment of balance sale price---Vendee was not entitled to decree for specific performance in terms of such statement of Referee.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292 rel.

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

----Ss. 2(b) & 14---Statement of Referee in Court regarding matter referred to him---Evidentiary value stated.

The statement of the Referee amounts to admission of the concerned party to the extent of information furnished by such person, but he is only supposed to make the statement as to the matter referred to him or to furnish information as required in pursuance of the statement of the parties. He cannot decide the matter as is done by an Arbitrator under section 14 of the Arbitration Act, 1940. His statement does not amount to award within the meaning of section 2(b) of the Act. [p. 491] A

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292 rel.

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

----S. 53-A---Limitation Act (IX of 1908), Art.113---Vendee's possession over property in part performance of sale agreement---Vendee's right to enjoy benefit of S.53-A of Transfer of Property Act, 1882---Limitation---Vendee without making full payment or acquiring title would not be entitled to keep for ever possession of property---Vendee might enjoy protection of S.53-A of Transfer of Property Act, 1882, if he either performed his part or agreement or was taking positive steps before expiry of period of limitation provided under law.

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

----Ss. 8 & 12---Transfer of Property Act (IV of 1882), S.53-A---Limitation Act (IX of 1908), Art. 113---Suit for possession by vendor---Vendee-defendant's plea that his possession over suit property for being in part performance of sale agreement was protected under law---Sale agreement was executed on 13-6-1995 and date fixed for its performance was 13-6-1996, which was later on extended till 30-1-1997---Vendor filed suit for possession on 23-5-1997, which was the date on which he refused to perform specific performance of agreement---Vendee did not take any step towards enforcement of his right under agreement within three years provided under Art.113 of Limitation Act, 1908, but filed suit for its specific performance on 17-3-2007---Validity---Suit for specific performance of contract could be filed within three years either of the date fixed therein and in absence of any such date, from refusal on part of promisor to perform his part of contract---Vendee was not entitled to retain possession of suit property on basis of such plea---Vendor's suit was decreed in circumstances.

Khalid Ikram Khatana for Petitioners.

Jahangir Akhtar Jhoja for Respondent.

Date of hearing: 24th May, 2013.

2015 C L C 510

[Lahore]

Before Arshad Mahmood Tabassum, J

MUHAMMAD HASHIM----Appellant

Versus

MUHAMMAD MEVA----Respondent

Regular First Appeal No.175 of 2011, heard on 24th June, 2014.

Civil Procedure Code (V of 1908)---

----S. 148 & O. XXXVII, Rr. 2, 3---High Court (Lahore) Rules and Orders, Volume V, Ch. 1-E, R. 2---Summary suit on negotiable instruments---Enlargement of time-Scope---Leave to appear and defend the suit was granted subject to furnishing a surety bond within a specified time---Defendant could not submit surety bond as directed by the Trial Court and his application for extension in time for submission of the same was dismissed and suit was decreed---Validity---Court had discretion to enlarge time when any period was fixed or granted for doing of any act---Such discretion had to be exercised judiciously and in the light of circumstances of each case---Defendant had failed to justify the circumstances which prevented him from submitting surety bond in time and which necessitated extension in time for such purpose---Where an assertion was contrary to or outside the record or same was not supported by evidence on record then such assertion should be supported by an affidavit---Application for extension in time for submitting surety bond was not accompanied by an affidavit in support of facts stated therein---Defendant had requested for extension in time for furnishing surety bond in a casual manner which was refused by the Trial Court---Defendant had not denied the execution of pro note and his signature thereon in his application for leave to appear and defend the suit---Trial Court had decreed the suit after proper application of mind---Appeal was dismissed in circumstances.

Gulzar v. Bashir Akhtar and 2 others 2004 CLC 1518 ref.

Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659 rel.

Syed Jawad Hussain Jafari for Appellant.

Malik Ali Muhammad Dhol for Respondent.

Date of hearing: 24th June, 2014.

2015 C L C 519

[Lahore]

Before Muhammad Khalid Mehmood Khan and Ibad-ur-Rehman Lodhi, JJ

Ch. ABDULLAH YOUSAF----Petitioner

Versus

ELECTION TRIBUNAL, PUNJAB and 6 others----Respondents

Writ Petition No.8455 of 2012, decided on 24th October, 2012.

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

----Ss. 56, 62, 65 & 67---Notification No.F.1(7)/85-Cord, dated 16-3-1985---Constitution of Pakistan, Art.199---Constitutional petition---Election dispute--- Witnesses, categories of---Dispute was with regard to summoning of witnesses by election petitioners---Plea raised by returned candidate was that evidence of only that witness could be recorded whose affidavit was annexed with election---Validity---In the present case, there were only two categories of witnesses, one private and the other were official witnesses---Private witnesses were those who at the time of filing of election petition were in control and access of election petitioner and who intended to depose on factual aspect of disputes raised in election petition---Official witnesses included persons, who at the time of election petition, were not in direct control and access of election petitioner but at the time of recording of evidence, their appearance as witness deemed to be necessary, in order to prove some record maintained in their respective organizations, and were to be summoned through process of law, to appear as witness---Requirement of providing affidavits of witnesses was mandatory with regard to private witnesses, whereas with regard to official witnesses, only requirement to be fulfilled by election petitioner was to file a list of such official witnesses with election petition justifying their production and also mention document, if any, which were required to be proved through such witnesses---Election Tribunal was equipped with powers to summon any witness even if in the list of witnesses, his name was not included, if such witness was required by Election Tribunal and his evidence was considered to be material for the purposes of arriving at just decision---Election Tribunal was justified in holding that Chief Editor of a newspaper was a competent witness, whose statement was to be recorded as an official witness and also that petition filed against interim decision given by Election Tribunal was not entertainable and maintainable in Constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Laskhari Khan Raisani and 11 others 1998 SCMR 1597; Sh. Rashid Ahmad v. The Election Tribunal comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court, Lahore and another PLD 1993 SC 791 and Dr. Sheela B. Charles v. Election Tribunal and another 1995 CLC 344 ref.

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

----S. 67(1A)---Election petition---Duration of trial---Expeditious decision of election petitions is the intention of law and for that purpose, Election Tribunal has been empowered to avoid technicalities.

Dr. Khalid Ranjha for Petitioner.

S.M. Masud and Moiz Tariq for Respondent No.3.

Date of hearing: 16th October, 2012.

2015 C L C 536

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

FAZAL DIN through Legal Heirs and others----Petitioners

Versus

Mir MUHAMMAD JAN and another----Respondents

Civil Revision No.476-D of 2013, heard on 5th November, 2013.

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

----O. VII, R. 11 & S.141---Suit for possession through partition---Rejection of plaint---Scope---Contention of defendants was that plaint did not disclose cause of action---Application for rejection of plaint was accepted concurrently---Validity---Only contents of plaint were to be considered while invoking provisions of O.VII, Rule 11, C.P.C. wherein cause of action was disclosed---Plaintiffs had a right to have a fair trial by producing evidence and to have a judicial opinion of the court on merits of case---Court had to presume that averments made in the plaint were true---Power to reject plaint under O.VII, R.11, C.P.C. must be exercised only in a clear case wherein court had concluded that even if the averments of plaint were proved the plaintiffs would not be entitled to any relief---Averments of plaint had disclosed cause of action and Trial Court was not justified to reject the plaint---Assertions made in the written statement or documents annexed with the same were to be ignored while deciding application under O.VII, R.11, C.P.C.---Pleadings of parties could not be considered as evidence when its maker was not examined in its support and cross-examined by his opponent---Provisions of S.141, C.P.C. would not attract to such applications---Requirement of recording evidence on question of fact could not be bye-passed to justify invoking the provisions of O.VII, R.11, C.P.C.---Trial Court should record evidence and decide preliminary as well as factual issues through its judgment---Provisions of O.VII, R.11, C.P.C. could not be invoked in case of controversial questions of fact or law---Proper course in such cases was to decide all the objections after recording evidence of parties---Vendee in joint holdings was sharer in the same---Both the courts below had failed to exercise their jurisdiction so vested to them and had acted in excess of their jurisdiction illegally and with material irregularity---Judgments and decrees passed by both the courts below were set aside---Revision was accepted in circumstances.

Abdul Waheed v. Mst. Ramzanu and others 2006 SCMR 489; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335; Egypt Air v. Sarfraz Ahmad Tarar 2003 CLC 1425; Muhammad Muzaffar Khan v. Muhammad Yusaf Khan PLD 1959 SC Pak. 9 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

(b) Words and Phrases---

----"Cause of action"---Meaning---Cause of action was bundle of facts which if traversed, a suitor claiming relief was required to prove for obtaining judgment.

Rafaqat Hussain Shah for Petitioners.

Mujeeb-ur-Rehman Kiani for Respondents.

Date of hearing: 5th November, 2013.

2015 C L C 543

[Lahore]

Before Shoaib Saeed, J

KHIZER HAYAT----Petitioner

Versus

MANSOOR HAYAT and 4 others----Respondents

Writ Petition No.18 of 2014, decided on 2nd June, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Enhancement of maintenance allowance---Wife moved petition for enhancement of maintenance allowance which was dismissed by the Family Court but same was enhanced by the Appellate Court from Rs.1,500 per month per child to Rs.4,000 per month per child together with 10% annual increase from the date of filing of the petition---Contention of husband was that no provision existed for annual increase in the maintenance allowance and judgment of Appellate Court was beyond jurisdiction---Validity---Husband had proceeded abroad and he was drawing salary accordingly---Prices of basic essentials of life as well as school fees had undergone change after lapse of four years from earlier fixation of maintenance allowance---Father was sole responsible for requirements/expenses of children---Maintenance allowance had rightly been enhanced keeping in view the financial condition and status of respondent-father---Imposition of annual increase in the maintenance allowance could be looked into provided evidence was led to such effect in the form of financial statistics/statistical data---Annual increase in the maintenance allowance had been awarded without any factual basis, criteria or justifiable reasons---Impugned order to the extent of annual increase in the maintenance allowance was arbitrary, illegal and whimsical---Judgment and decree passed by the Appellate Court to the extent of annual increase in the maintenance allowance was set aside and decree was modified accordingly, however enhancement of monthly maintenance allowance was upheld---Constitutional petition was disposed of accordingly.

Raja Muhammad Fiaz for Petitioner.

Malik Fateh Khan for Respondents.

2015 C L C 549

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. AKBAR JAN through L.Rs. and 9 others----Petitioners

Versus

Mst. KALSOOM BIBI and 6 others----Respondents

Civil Revision No.1407 of 2013, heard on 20th November, 2013.

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

----Ss. 42 & 39---Transfer of Property Act (IV of 1882), S. 54---Qanun-e-Shahadat (10 of 1984), Arts.17, 79 & 129(g)---Constitution of Pakistan, Art.4---Suit for declaration and cancellation of registered sale deed---Production of certified copy of document instead of original one---Secondary evidence. production of---Condition---Plaintiffs filed suit for declaration whereas defendants filed suit for cancellation of registered sale deed---Contention of plaintiffs was that they were owners of suit house and gift deed in favour of defendants was void and illegal---Both the suits were consolidated and suit of plaintiffs was decreed whereas that of defendants was dismissed concurrently---Validity---Whenever a party had claimed on the basis of sale deed then onus to prove validity of the same would shift on the person in whose favour such sale took place---Onus to prove the registered sale deed would shift to the vendee/beneficiary if execution of same was denied by the executant/vendor or his legal heirs----Beneficiary/vendee of sale deed was bound to prove the bargain and payment of money with regard to property by producing sufficient evidence---Presumption of truth attached to registered document was always rebuttable when the execution of same was denied---Registration of sale deed would not operate to pass the title to the vendee---Registration of deed was an event which would take place after the parties had already settled the transaction at some prior point of time at a particular place in presence of some witnesses and after having completed that transfer of sale they would proceed to reduce the same into writing and in the shape of registered deed thereof---Bargain between the vendor and vendee had not been proved through evidence in the present case---Sale deed was executed without the attestation of any marginal witnesses and said defect was sufficient to declare the disputed sale deed against the law---Any document/instrument which would create right had to be reduced into writing in presence of at least two witnesses---Mandate of Arts.17 & 79 of Qanun-e-Shahadat, 1984 had been violated when said sale deed was drafted---Plaintiffs had failed to produce the Scribe, Sub-Registrar and Stamp Vendor before the Trial Court to prove the contents and execution of said document---Said witnesses were available to the plaintiffs but they had withheld the best evidence and inference would be against them that if witnesses were produced, then they would not support their version---Plaintiffs did not produce the original sale deed before the Trial Court and had tendered the attested copy of the same without seeking permission for leading secondary evidence---Evidentiary value of certified copy of sale deed without seeking prior permission from the court would lose its importance and such copy would not be sufficient to prove the same---Both the courts below had failed to realize that the document produced on record was a certified copy and had been tendered in evidence without seeking prior permission from the court---No presumption of correctness could be attached to the certified copy of sale deed and said copy produced on the record was not admissible in evidence as condition precedent to the admission of secondary evidence had not been fulfilled---Onus was on the defendants to prove that a valid sale deed had been executed and even the admission of vendor of affixing thumb-impressions on the documents was not a proof of its execution and contents as documents purporting to create a right must be proved to have been actually executed by the persons who allegedly had executed the same, through production of evidence---Defendants had failed to prove the disputed sale deed---No bar existed on the High Court with regard to interference in revisional orders---Both the courts below had failed to analyze the facts and law in the present case and had committed irregularity and illegality while passing the impugned judgments and decrees--Impugned judgments and decrees were the result of misreading and non-reading of evidence available on record---Disputed sale deed had not been proved by producing witnesses, scribe, stamp vendor and Sub-Registrar---Both the courts below had failed to exercise jurisdiction vested to them properly---Impugned judgments and decrees passed by both the courts below were set aside and suit filed by the plaintiffs was dismissed whereas that of defendants was decreed---Revision was accepted in circumstances.

Al-Qur'an Verse No.282 of Sura Al-Baqra and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

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

----S. 54---"Sale"---Ingredients---Ingredients of "sale" were the parties, the subject matter, the transfer of conveyance and price or consideration.

Shahzad Mahmood Butt for Petitioners.

Zahid Aslam Malik for Respondents.

Dates of hearing: 18th and 20th November, 2013.

2015 C L C 566

[Lahore]

Before Amin ud Din Khan, J

NASEER AHMAD----Petitioner

Versus

MUHAMMAD KHAN----Respondent

Civil Revision No.2708 of 2002, heard on 29th May, 2013.

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

----S. 42---Suit for declaration---Lunatic---Suit filed through next friend---Plaintiff challenged transfer of his property through registered sale-deed by his brother as attorney---Plaintiff claimed that he was lunatic at the time of execution of alleged power of attorney on the basis of which the transfer of property through sale deed was made and as such the same was invalid---Trial Court decreed the suit in favour of the plaintiff, which was set aside by Appellate Court---Tenant of the suit property filed suit for pre-emption which was decreed in his favour, thereafter the plaintiff filed present suit---Attorney and vendees were deleted from the array of defendants before the Trial Court---Validity---Attorney and vendees had been deleted from the array of defendants which meant that the power of attorney as well as sale deed in favour of vendees had been impliedly admitted---If power of attorney and sale deed in favour of vendee was not admitted then without impleading them as party no decree could have been passed by the Trial Court---Findings recorded by the Trial Court were not sustainable---Appellate Court had rightly reversed the same---Revision petition was dismissed.

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

----S. 42---Lunacy Act (IV of 1912), S.62---Suit for declaration---Lunatic---Suit was filed through wife being next friend of lunatic---Maintainability of suit filed on behalf of lunatic ---Requirements---Declaration of lunacy and inquiry was required, which was to be conducted by the District Court but no such procedure had been adopted before filing the suit---Without adopting the procedure the suit filed by the next friend who was wife of the plaintiff showing him lunatic was not permissible---Failure to follow special procedure as provided for declaration of lunacy rendered the suit incompetent.

Hafiz Khalil Ahmad for Petitioner.

Sheikh Naveed Shahryar for Respondent.

Date of hearing: 29th May, 2013.

2015 C L C 606

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

KAUSAR FIRDOUS and others----Appellants

Versus

Mian M. ZIA----Respondent

Second Appeal from Order No.33 of 2012, decided on 17th October, 2014.

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

----O. I, R. 10---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13 & 15---Ejectment petition---Impleadment as a party---Scope---Appellants moved an application for seeking their impleadment as party which was dismissed concurrently---Contention of applicants was that they were co-owners in the demised premises---Validity---Applicants seeking impleadment as party in ejectment proceedings were not party within the contemplation of S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959---Title of respondent over the demised premises was quite clear---If applicants had some family dispute, merely on the basis of the dispute respondent should not be made to suffer---Nothing was on record to suggest that ejectment proceedings were collusively instituted just to harm the interest of applicants---Simple ejectment case for eviction of tenant would be converted into intricate question of title if applicants were allowed to be impleaded and to contest the ejectment petition---Presence of applicants before the Rent Controller was not necessary for a final and effectual decision in the ejectment case---Effective order could be passed in the absence of applicants---Application for impleadment as a party was rightly dismissed by the courts below---Appeal was dismissed in circumstances and Rent Controller was directed to decide the matter within a specified period.

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

---Ss. 15 & 13---Eviction petition---Interim order---Appeal---Competency---Appeal against interim order of Rent Controller was not competent.

Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52 rel.

(c) Words and phrases---

----'Party'---Word "party" would refer to those by or against whom a legal suit was brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons: all others who might be affected by the suit, indirectly or consequently were persons interested but not parties.

Black's Law Dictionary rel.

Sh. M. Waheed-I for Appellants.

Ch. Abdul Hafeez for Respondent.

2015 C L C 632

[Lahore]

Before M. Sohail Iqbal Bhatti, J

AMIR SHAHZAD----Petitioner

Versus

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

Writ Petition No.9462 of 2014, decided on 9th July, 2014.

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

----S. 5, Sched. & S.17---Qanun-e-Shahadat (10 of 1984), Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Family Court could follow any procedure to regulate its proceedings unless a clear prohibition was found in the law---Mere fact that party had not formally proved a document was of no legal consequence---Evidence adduced before the Family Court could not be evaluated and appraised in a manner as was appreciated in the cases presented under Civil Procedure Code, 1908---Wife produced list of dowry articles which had been rightly relied upon by the Family Court while excluding the gold ornaments---Solitary statement of wife was sufficient to prove the claim of dowry articles---Wife was not required to prove the case in terms of requirements of Qanun-e-Shahadat, 1984 while making the claim for dowry articles---West Pakistan Family Courts Act, 1964 was a special law and provisions of Qanun-e-Shahadat, 1984 had been excluded---Appeal filed by the husband before the Appellate Court was barred by time---Constitutional petition was dismissed in circumstances.

Mst. Shakeela Bibi v. Muhammad Israr and of others 2012 MLD 756 rel.

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

----S. 14---West Pakistan Family Courts Rules, 1965, R.22---Appeal---Limitation---Appeal under S.14 of West Pakistan Family Courts Act, 1964 should be preferred within 30 days of passing of decree or a decision excluding the time consumed for obtaining the copies however Appellate Court, for sufficient cause, could extend such period.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Preamble---Civil Procedure Code (V of 1908), Preamble---Applicability---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were not applicable in stricto sensu to the proceedings before the Family Court and family Court had to regulate its own proceedings in accordance with West Pakistan Family Courts Act, 1964.

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

---Preamble---Object---Purpose for enacting the West Pakistan Family Courts Act, 1964 was to advance justice and to avoid technicalities which were hindrance in providing ultimate justice to the parties---West Pakistan Family Courts Act, 1964 had been promulgated for expeditious settlement and disposal of disputes with regard to marriage and other family affairs and special procedure had been provided to achieve such object.

(e) Constitution of Pakistan---

---Art. 199--- Constitutional jurisdiction--- Scope--- Constitutional jurisdiction could not be invoked unless order of the court below was illegal, perverse or defective in terms of exercise of jurisdiction---Fact that through an evidence a different conclusion was possible was no ground for invocation of constitutional jurisdiction---High Court not to interfere with the concurrent findings of fact recorded by the courts below while exercising constitutional jurisdiction.

M. Usman Tariq Butt for Petitioner.

2015 C L C 641

[Lahore]

Before Shams Mehmood Mirza, J

MUHAMMAD ABAID ULLAH----Petitioner

Versus

ATEEQ-UR-REHMAN and 8 others----Respondents

Civil Revision No.288 of 2010, decided on 5th June, 2014.

Negotiable Instruments Act (XXVI of 1881)---

----Ss. 29 & 29-A---Civil Procedure Code (V of 1908), O. VII, R. 10 & O.XXXVII, Rr.2, 3---Summary suit against the legal heir of executant of negotiable instrument---Maintainability---Plaintiff filed suit for recovery of money on the basis of cheque whose maker died before encashment of the same---Suit was dismissed by the Trial Court---Validity---Maker of cheque had died before the same could be presented for encashment---Said cheque had ceased to have any effect as a "bill of exchange" on the death of its maker---Summary suit could only be filed against the executants of bill of exchange, hundies or promissory notes and not otherwise---Party who was not a drawer or maker of a cheque/bill of exchange was not liable thereon and he could not be sued under O.XXXVII, Rr.2 & 3, C.P.C.---Legal representatives of deceased must sign the instruments in order to make them liable thereunder---Defendants had not signed the disputed cheque, they were not liable to the plaintiff against the cheque issued by their predecessor---Present suit was not maintainable---Trial Court was directed to return the plaint---Revision was dismissed in circumstances.

Muhammad Ashraf and another v. Nadeem Shahid and another 1998 SCMR 804 and Tanveer Mehboob and another v. Haroon and others 2003 SCMR 480 ref.

Ch. Shakeel Ahmad Sindhu for Petitioner.

2015 C L C 657

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

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

Versus

ALTAF HUSSAIN SHAH through L.Rs. and others----Respondents

Civil Revision No.2636 of 2000, heard on 8th September, 2014.

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

----S. 8---Suit for possession of immovable property---Limitation---Contention of plaintiff was that sale deed attested in favour of defendants was illegal, void and ineffective against his rights---Suit was decreed concurrently---Validity---Document alleged to have been procured by fraud and foul-play could be agitated at any time as any fresh entry in the revenue record would give a fresh cause of action---Present suit was therefore within time---Statement of witness could not be considered in isolation rather accumulative effect of the whole statement was to be considered by the court---Party could not be penalized for slip of tongue imprudent/utterance---Court had to visualize and evaluate the veracity, capacity and mental level of witness and should not test and expect from a layman to improve, compose, extempore answers who was not used to face tricky, abrupt and intricate questions---Court should concentrate on theme, pith and substance of a statement and not to chalk out a selective piece of evidence---Impugned sale deed was got attested by practising fraud---Neither original sale deed was produced by the beneficiaries nor any attested or photocopy of the same was produced in secondary evidence---Oral assertions with regard to sale deed could not be taken into consideration as said document was not put to the witnesses during the trial---Beneficiaries of sale deed had failed to produce deed-writer who scribed the impugned sale deed as well as revenue officer who endorsed registration of the same---Best evidence had been withheld by the defendants---Portion of examination-in-chief which was not subjected to cross-examination would be deemed to have been admitted---Appellate Court had rightly dismissed appeal on valid reasons---No misreading or non-reading of evidence or any jurisdictional defect was pointed out in passing the impugned judgments and decrees---Revision was dismissed in circumstances.

Mrs. Shamim Akhtar and others v. Mrs. Sultana Mazhar Baqai and 5 others 2003 CLC 1521; Wahid Bakhsh and another through Legal Heirs v. Ghulam Muhammad through Legal Heirs PLD 1990 Lah. 193 and Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 ref.

Mrs. Shamim Akhtar and others v. Mrs. Sultana Mazhar Baqai and 5 others 2003 CLC 1521; Wahid Bakhsh and another through Legal Heirs v. Ghulam Muhammad through Legal Heirs PLD 1990 Lah. 193 and Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 distinguished.

Ali Bahadur v. Muhammad Ishaq 2013 YLR 2555; Haji Din Muhammad through Legal Heirs v. Mt. Hajra Bibi and others PLD 2002 Pesh. 21; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385 and Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 rel.

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

----S. 115---Revisional jurisdiction---Scope---Scope of revisional jurisdiction was narrower to correct the error of law if found to have been committed by the court below in discharge of judicial functions.

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

----Arts. 132 & 133---Recording of statement of witness---Duty of Court---Statement of witness could not be considered in isolation rather accumulative effect of the whole statement was to be considered by the court---Party could not be penalized for slip of tongue imprudent/ utterance---Court had to visualize and evaluate the veracity, capacity and mental level of witness and should not test and expect from a layman to improve, compose, extempore answers who was not used to face tricky, abrupt and intricate questions---Court should concentrate on theme, pith and substance of a statement and not to chalk out a selective piece of evidence.

Taki Ahmed Khan for Petitioners.

Khalid Aseer Chaudhary or Respondents.

Date of hearing: 8th September, 2014.

2015 C L C 667

[Lahore]

Before Atir Mahmood, J

SAIMA PERVEEN and 2 others----Petitioners

Versus

NAEEM AHMAD NASIR and 3 others----Respondents

Writ Petition No.13054 of 2012, decided on 30th May, 2014.

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

----S. 5, Sched. & S.13---Constitution of Pakistan, Art.199---Constitutional petition--- Maintenance allowance--- Execution proceedings---Order of attachment of property of husband by Family Court---Subsequent agreement to sell regarding the property attached by the Family Court in the execution proceedings of a decree for recovery of maintenance allowance---Effect---Plaintiff (wife) filed suit for recovery of maintenance allowance for herself and for minors---Trial Court decreed the suit---Plaintiffs being dissatisfied preferred appeal and the appellate court awarded maintenance to minors @ Rs.25,00 per month from the date of institution of suit with an increase of 25% after every three years and @ Rs.15,00 per month to plaintiff (wife) from the date of institution of suit till she was divorced---Plaintiff (wife) after dismissal of constitutional petition of defendant (husband) against the judgment and decree of the appellate court filed an application for restraining respondent (husband) from alienating his share in the property, which was accepted by the executing court---Defendant (judgment debtor) did not appear to execute the decree, therefore, the property in question was attached---Respondent (objector) filed objection petition for setting aside order of attachment of the property on the strength of decree having been passed by the appellate court for specific performance of agreement to sell--- Contention of the wife was that the respondent (objector) was brother-in-law of the respondent (husband) and they in connivance with each other had tried to frustrate the object of decree passed by the Family Court in favour of the wife and minors on the basis of a subsequent agreement to sell the property in dispute and decree passed by the appellate court in favour of the respondent (objector)---Pleas of the respondent (objector) were that he being the decree holder was entitled to have the fruits of said decree; that the property in question could not be attached in the execution proceedings for recovery of maintenance allowance passed in favour of the wife and minors---Validity---Agreement to sell dated 8-8-2007 was executed by husband in favour of respondent; suit for specific performance was filed on 3-1-2008, which was dismissed by the civil court, however, the appeal filed by respondent was accepted vide ex parte judgment and decree dated 28-12-2008---Agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of respondent (objector) were all subsequent events to the decree of maintenance allowance passed in favour of the wife and minors; respondents (husband and objector) being close relatives in connivance with each other had tried to frustrate the decree of maintenance allowance passed in favour of the wife and minors---Any agreement to sell executed by the respondent (husband) regarding his property after the decree passed against him was illegal and unlawful and did not create any right in favour of the subsequent purchaser (objector)---Sale-deed executed by husband was result of fraud and connivance which could not be allowed to be made a tool to frustrate the judgment and decree of maintenance allowance passed in favour of the wife and minors---Appellate Court had failed to apply its judicial mind while passing the judgment and decree---Constitutional petition was allowed in circumstances.

Muhammad Sadiq v. Dr. Sabira Sultana 2002 SCMR 1950 rel.

Ch. Muhammad Imran Bhatti for Petitioners.

Respondents proceeded against ex parte on 13-3-2014.

Date of hearing: 22nd April, 2014.

2015 C L C 680

[Lahore]

Before Mrs. Ayesha A. Malik, J

SHAHIDA ILAHI----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petitions Nos.6990 and 9234 of 2011, decided on 11th July, 2014.

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----Ss. 25(2)(s), 26 & 42---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.3 & 4---Constitution of Pakistan, Art.199---Constitutional petition---Sale of Evacuee property by Custodian---Grievance of petitioner was that her mother was lawful owner of property in question and authorities had illegally dispossessed her and demolished structure built over it---Contention of authorities that property in question was part of compensation pool and therefore, Custodian had no right to sell the property---Validity---Custodian obtained permission on 18-2-1959, to transfer property in question to mother of petitioner and thereafter received consideration for the property---Deed of conveyance was executed on 12-12-1959 in favour of mother of petitioner finalizing transfer of ownership rights in her favour---Valid and legal transfer of proprietary rights in the property was made by Custodian in favour of mother of petitioner---Contention of authorities that property in question was part of compensation pool and therefore, Custodian had no right to sell the property was not substantiated by any document---Authorities failed to show any notification on the basis of which property in question was acquired by Federal Government under Ss.3 & 4 of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Merely based on any entry in revenue record, authorities could not claim to be owner of property in question---Authorities had taken illegal possession of petitioner's property under the garb of its anti-encroachment drive---Provincial Government acted without considering rights of ownership and possession, due process and principles of natural justice---Government with the help of its officers forcibly took possession of property from petitioner without any consideration of law through show of force which was unjustified and without sanction of law---High Court directed the authorities to hand over possession of property in question to petitioner---Petition was allowed in circumstances.

Mrs. Sultana Ahmed v. Sindh Industrial Trading Estate Ltd. through Managing Director and 2 others 2003 YLR 1760; Mst. Fazeelat Tahira v. Aftab Ahmad etc. 2000 UC 91; Ussama Tariq v. Administrator (Residual Properties)/Additional Commissioner (Revenue), Lahore Division, Lahore and 3 others 2003 SCMR 616; Mst. Badshah Begum and others v. The Additional Commissioner (R) Lahore Division and others 2003 SCMR 629; Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCMR 228; Aitzaz Ahsan and 2 others v. Municipal Committee, Gujrat 1994 CLC 255; Ijaz Ahmad and others v. The State and others PLD 2001 Lah. 94; Mussarrat Afza v. Shaukat Iqbal, Deputy Commissioner, District Mandi Bahauddin and 4 others 1998 CLC 733; Muhammad Aslam v. Assistant Commissioner/Collector, Khanpur, District Rahim Yar Khan and 4 others 1998 CLC 1596; 'Muhammad Aslam v. Station House Officer and others 1993 MLD 152; Sher Muhammad and others v. Azmat Ali PLD 1968 Lah. 1171; Mehra v. Zahur Ahmad PLD 1971 Lah. 834; Maj. Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC 451 and Talib Hussain v. Secretary, Evacuee Property and 7 others 1986 CLC 2536 ref.

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

----S. 45---Mutation---Status---Mutation simply records ownership but it is not a title document in itself and is for fiscal purposes---No one can claim ownership on the basis of mutation.

Uzair Karamat Bhandari for Petitioner (in W.P. No.6990 of 2011).

Rashid Mehmood Gill and Barrister Qadir Shah for Petitioners (in W.P. No.9324 of 2011).

Syed Nayyar Abbas Rizvi, Addl. A.-G., Mehmood A. Sheikh and Ghazanfar Khalid Saeed for Respondent Settlement Department.

Iftikhar Ahmad Mian for T.M.A.

Uzair Karamat Bhandri for Pro forma Respondents Nos.6 to 12 (in W.P. No.9234 of 2011).

Date of hearing: 28th April, 2014.

2015 C L C 696

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL RAZZAQ through L.Rs.----Petitioner

Versus

NISAR ALI through L.Rs. and others----Respondents

Civil Revision No.841 of 1998, heard on 3rd June, 2013.

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

----S. 42---Suit for declaration---Plaintiff filed suit seeking declaration to the effect that he was owner of the plot in question and deceased was a benamidar---Another suit was filed on behalf of legal heirs of the deceased and both were dismissed by the Trial Court but suit of legal heirs of the deceased was decreed and that of plaintiff was dismissed by the Appellate Court---Validity---Plaintiff accepted the decree granted by the first Appellate Court declaring the deceased original and complete owner of suit property---When said judgment and decree had been accepted by the plaintiff then he was debarred to challenge the decree against him passed in the appeal and without challenging the judgment and decree passed in favour of legal heirs of the deceased, the plaintiff could not challenge the concurrent findings---Pleadings of the plaintiff were self-destructive---Plaintiff had failed to prove his case---Revision was dismissed.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Malik Muhammad Zubair and 2 others v. Malik Muhammad Anwar and 2 others PLD 2004 Lahore 515; Rafiq Rahim v. Mrs. Shahida and others 2002 YLR 4002; Court of Wards in Sindh and others v. Mian Bux PLD 1959 (W.P.) Kar. 121 and Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 distinguished.

(b) Benami transaction---

----Ingredients---Ingredients to prove the 'benami' transaction were the possession, the source of payment of money, the possession of original document and the reason for 'Benami'.

Syed Ijaz Qutab for Petitioner.

Muhammad Qamar-uz-Zaman for Respondents Nos.1 to 7.

Respondents Nos.8 to 10 Ex parte.

Date of hearing: 3rd June, 2013.

2015 C L C 706

[Lahore]

Before Abdus Sattar Asghar, J

ZILL-E-HUMA----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petition No.29820 of 2014, decided on 11th November, 2014.

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

----Ss. 25-A, 4 & 5, Sched.---Guardians and Wards Act (VIII of 1890), Ss. 25 & 4-A---Lahore High Court Letter No.1933/MIT/HC/REF/2/87, dated 28-1-1987---Lahore High Court Letter No.1922/JOB-II(I)/XVB.9, dated 6-2-2001---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance for children---Application for custody of minor children---Transfer of family case before Guardian Court---Effect---District Judge transferred suit for recovery of maintenance allowance by wife before Guardian Court where an application for custody of minor by husband was already pending, for its consolidated hearing and decision with the said application---Validity---Section 5 of West Pakistan Family Courts Act, 1964 conferred exclusive jurisdiction upon the Family Court with regard to the matters which would fall within the ambit of the Schedule attached thereto---Matters with regard to maintenance and guardianship would fall within the purview of the said Schedule---Under S.4 of West Pakistan Family Courts Act, 1964 a Civil Judge could be appointed as a Judge of Family Court---District Judge could also empower any Civil Judge of First Class in the District to dispose of any proceedings transferred to him under Guardians and Wards Act, 1890---Civil Judge while exercising powers as a Guardian Judge could also hear the family cases---No jurisdictional error, factual or legal infirmity was pointed out in the impugned order passed by the District Judge---Constitutional petition was dismissed in limine.

Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 distinguished.

Ms. Rabbyia Bajwa for Petitioner.

2015 C L C 719

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ASGHAR and others----Petitioners

versus

HAKAM BIBI through L.Rs. and others----Respondents

Civil Revision No.3342 of 2014, decided on 28th October, 2014.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation---Oral gift in favour of nephew---Ingredients of valid gift---Factum of valid gift---Scope---Contention of plaintiff was that she was owner in possession of suit land and impugned gift in favour of her nephew was based on fraud, forgery and was ineffective against her rights---Suit was decreed concurrently---Validity---No time, date or place with regard to offer of gift, its acceptance or delivery of possession was mentioned in the written statement or in the testimony of witnesses of defendants---Even no date of offer of gift, its acceptance or delivery of possession by the donor to the donee had been mentioned in the Rapt Roznamcha Waqiati---Defendants being beneficiaries of alleged gift were bound to establish ingredients of a valid gift---Defendants had also failed to mention in the written statement the name of any person/witness before whom donor had orally gifted out property in favour of donee before reporting factum of oral gift to the patwari halqa---Witnesses of Roznamcha Waqiati had not uttered even a single word with regard to already completion of factum of gift before reporting the said event to the patwari halqa---Defendants had failed to adduce any reliable ocular or documentary evidence to establish a valid oral gift by the donor in favour of donee before reporting the alleged factum of gift to the patwari halqa---Rapt Roznamcha Waqiati could not be termed as sufficient evidence to establish the impugned factum of a valid gift---Part Sarkar of impugned mutation was not available in the revenue record---Donees had produced only a photo copy of Part Sarkar which did not contain the thumb-impressions of donor or Pattidar or Lumberdar concerned---Revenue officer who allegedly attested the impugned mutation was not examined---Defendants were required to get the thumb impressions of donor and her son verified with their admitted thumb impressions---Alleged donor was an old illiterate lady having two sons at the time of alleged gift---Nothing was on record as to what services had been rendered to the donee by the donor to gift out her agricultural land in favour of her nephew instead of her sons---No reason was available on record for making gift by the donor in favour of her nephew while bypassing her sons against whom there was no complaint---No confidence inspiring evidence was produced by the donee to substantiate the factum of any valid oral gift---Part of a joint khata was not capable of actual physical possession---Subject matter of impugned gift of land was a part of a joint khata owned by the donor along with her nephew---Donor would be deemed in joint possession of disputed land in absence of proof of a valid gift in favour of nephew---Mere non-participation in the profits would not constitute ouster of a co-sharer---Co-sharer was not required to institute a declaratory suit within six years---No limitation would run against the co-sharer to enforce his rights in accordance with law---Revision was dismissed in circumstances.

Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121; Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41; Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs PLD 2011 SC 657; Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 and Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others PLD (sic) SC 167 distinguished.

Muhammadan Law by D.F. Mullah; Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Muhammad Latif v. Ghulam Hussain and others 2005 SCMR 1344 rel.

(b) Islamic Law---

----Gift---Ingredients---Ingredients of gift were declaration of gift by donor, acceptance of gift, express or implied, by or on behalf of donee and delivery of possession of subject of gift by the donor to the donee.

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

----S. 115---Revision---Scope---Concurrent findings of fact and law in absence of any jurisdictional error or material irregularity could not be interfered with in exercise of revisional jurisdiction.

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Parties to an appeal were not entitled to produce additional evidence whether oral or documentary in the appellate court except when the court from whose decree the appeal was preferred had refused to admit evidence which ought to have been admitted or appellate court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial reason---Defendants had not lodged any application for additional evidence before the Trial Court or before the lower Appellate Court in first round of litigation---Proposed documents were not necessary to resolve the real matter in controversy between the parties---Appellate Court had rightly refused the application for additional evidence through a well reasoned order.

Ch. Muhammad Yaqoob Sindhoo for Petitioner.

2015 C L C 761

[Lahore]

Before Shahid Jamil Khan, J

KHALID IBRAHIM through L.Rs. and others----Petitioners

versus

Chaudhry MAZHAR HUSSAIN and others----Respondents

Civil Revision No.661 of 2014, decided on 25th June, 2014.

Civil Procedure Code (V of 1908) ---

----O. XLI, R. 27 & O. XIII, R. 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Additional evidence, production of---Requirements---Condition---Good cause---Words "in the Appellate Court" mentioned in O.XLI, R.27, C.P.C.---Scope---Remand of case---Scope---Suit was dismissed against which an appeal was filed wherein an application for additional evidence was moved---Appellate Court accepted application for production of additional evidence and remanded the case for decision afresh with the direction to the Trial Court to allow the defendant to produce the documentary evidence---Validity---Production of additional evidence had been discouraged as a rule and permission for its production was an exception---Permission for production of additional evidence could be granted only on showing good cause for its non-production to the satisfaction of court---Trial Court was required to satisfy itself on good cause as to why production of documentary evidence was prevented earlier---Appellate Court was required to record reasons for admission of application for production of additional evidence subject to fulfillment of conditions mentioned in O.XLI, R.27, C.P.C.---Appellate Court was bound to decide the case itself if permission for additional evidence had been granted by the said court---Appeal was a continuation of proceedings and if any error, misreading or non-reading was found by the Appellate Court then said court was required to correct the same in the appellate proceedings---Appellate Court was not justified to remand the case after accepting application for production of additional document---Impugned judgment passed by the Appellate Court was set aside---Application for production of additional evidence should be deemed to be pending before the Appellate Court which should be decided by the said court afresh---Revision was accepted in circumstances.

Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another PLD 2008 SC 564 rel.

Jawad Mehboob Awan for Petitioners.

Kamran Ali for Respondent No.1.

2015 C L C 776

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMAD YASMIN----Petitioner

versus

Mst. NAHEED BANO and others----Respondents

Writ Petition No.21407 of 2014, decided on 22nd October, 2014.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 21(b) & 31---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Ex parte eviction order, setting aside of---Appeal---Limitation---Court-fee, affixation of---Ex parte eviction order was passed against which appeal was filed which was dismissed due to non-deposit of court fee---Validity---Notices were sent for service of tenant at the same address which was given by him in the constitutional petition but he did not receive the same---Notice was also pasted at the door of house of tenant and publication in the newspaper was also made but he did not appear before the Rent Tribunal---Tenant had wilfully avoided service of notice and ex parte eviction order was passed---Tenant had remedy to get the ex parte order set aside within 10 days from the date of knowledge but he did not avail the said remedy and filed appeal which was barred by limitation---No explanation was furnished for filing a delayed appeal---Rent Tribunal could execute an order passed by it or by the Appellate Court under Punjab Rented Premises Act, 2009 as a decree of a civil court and for such purpose he might exercise any or all the powers of a civil court---"Final order" passed by the Rent Tribunal had the force of a "decree of civil court"---Tenant was required to affix ad valorem court fee i. e. 7.5% of the annual rental value of demised premises on appeal filed by him---No illegality had been committed by the Appellate Court while dismissing the appeal for non-deposit of requisite court fee---Constitutional petition was dismissed in circumstances.

Khan Ghulam Hasan Khan v. Dr. Rashid Ahmed PLD 1967 Kar. 35; Muhammad Saloob Qureshi v. Muhammad Bashir and another PLD 1986 Lah. 14 and Dr. Khalid Karim v. Additional District Judge, Rawalpindi PLD 1991 Lah. 1 rel.

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

----Ss. 15 & 17---Appeal---Court fee, affixation of---Scope---Court fee was payable on filing appeal as the final order passed in an ejectment petition had the force of a decree of civil court.

Khan Ghulam Hasan Khan v. Dr. Rashid Ahmed PLD 1967 Kar. 35; Muhammad Saloob Qureshi v. Muhammad Bashir and another PLD 1986 Lah. 14 and Dr. Khalid Karim v. Additional District Judge, Rawalpindi PLD 1991 Lah. 1 rel.

Tahir Pervaiz Malik and Azhar Abbas Gujjar for Petitioner.

2015 C L C 801

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

FIDA MUHAMMAD----Petitioner

versus

PROVINCE OF PUNJAB through Collector, Muzaffargarh and 4 others----Respondents

Civil Miscellaneous No.898-C of 2011 in Civil Revision No.535-D of 1999 and Civil Miscellaneous 108-C of 2011 in Civil Revision No.536-D of 1999, decided on 10th December, 2012.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XLI. R. 27---Revisional jurisdiction---Scope---Production of additional evidence in revision application filed under S.115, C.P.C.---Scope---Provisions of O.XLI, R.27, C.P.C. were strictly applicable to proceedings carried out in appeals against original decrees---Section 115, C.P.C. was a complete code which provided no mechanism to enable any party in a revision application to pray for production of additional evidence---Revisional Court could revise and correct orders passed by subordinate courts, but could not correct the errors made by the parties to the case---Appellate Court, if, in the exercise of jurisdiction vested in it under O.XLI, R.27, C.P.C. acts illegally or with material irregularity, and if on such account of the same factual error was committed, only then in revisional jurisdiction, additional evidence could be admitted in a fit and proper case for clarification if the same was essential for a just decision---Exercise of suo motu powers under S.115, C.P.C. was always to be based on some reasoned order upon which some extraordinary direction could be issued.

Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336 and Ghulam Muhammad v. Mian Muhammad and another 2007 SCMR 231 ref.

Ghulam Muhammad's case PLD 1993 SC 336; Mohabbat v. Asadullah Khan and others PLD 1989 SC 112 and Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 rel.

Malik Muhammad Rafique Rajwana for Petitioner.

Muhammad Aurangzeb Khan, Asstt. A.-G. for Respondents.

2015 C L C 808

[Lahore]

Before Shezada Mazhar, J

BABAR SHAHZADA----Petitioner

versus

BASHARATAN BIBI and another----Respondents

Writ Petition No.17271 of 2009, heard on 17th September, 2014.

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

----S. 5, Sched & S.10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on the basis of Khula---Suit for recovery of gold ornaments by husband given at the time of marriage---Scope---Husband's suit for recovery of gold ornaments was decreed by the Family Court but Appellate Court returned the plaint for presenting the same before civil court---Validity---Husband filed suit for recovery of gold ornaments which were given to the wife-defendant as part of dower---Said dower had been mentioned in the Nikah Nama---Suit for dissolution of marriage on ground of Khula filed by the wife-defendant was decreed under S.10(4) of West Pakistan Family Courts Act, 1964---Wife-defendant was required to return Haq Mehr to the husband-plaintiff which she had received at the time of Nikah---Issues which had arisen between the parties to a marriage and all matters which would fall under the Schedule of West Pakistan Family Courts Act, 1964 could be adjudicated upon by the Family Court---West Pakistan Family Courts Act, 1964 did not restrict that only claim of dower filed by the wife could be entertained by the Family Court---Present suit was rightly filed before the Family Court and was rightly adjudicated upon by the said court---Appellate Court was wrong to hold that husband could not file suit for return of gold ornaments before the Family Court---Impugned judgment and decree passed by the Appellate Court were set aside---Appeal filed before the Appellate Court was to be deemed to be pending which should be decided within a specified period---Constitutional petition was accepted in circumstances.

Mst. Ishrat Bano v. Noor Hussain and 2 others 2010 YLR 2452 and Samina Akhtar v. Irfan Farooq and 2 others PLD 2011 Lah. 593 ref.

Samina Akhtar v. Irfan Farooq and 2 others PLD 2011 Lah. 593; Major Muhammad Khalid Karim v. Mst. Saadia Yaqoob and others PLD 2012 SC 66 and Muhammad Yousaf and another v. Nighat Fayyaz 1985 CLC 2609 rel.

Ch. Ijaz Akbar for Petitioner.

Nemo for Respondents.

Date of hearing: 17th September, 2014.

2015 C L C 822

[Lahore]

Before Abdus Sattar Asghar, J

SADAR ABBAS----Petitioner

versus

PROVINCE OF PUNJAB and others----Respondents

Civil Revision No.267 of 2005, decided on 22nd January, 2014.

(a) Islamic law---

----Gift---Disentitling legal heirs---Effect---Concurrent findings of fact by two courts below---Plaintiff claimed to be owner in possession of suit land on the basis of gift executed in his favour by his father and sought direction to revenue authorities for excluding names of defendants, who were his step sisters---Both the Courts below concurrently dismissed suit and appeal filed by plaintiff---Validity---Alleged oral gift by predecessor-in-interest of parties in favour of plaintiff was an attempt to deprive his real daughters from their expected legal share in his inheritance---Ill-will of predecessor-in-interest of parties was reflected in contents of agreement wherein it was scribed that he had no male or female descendent (word female later on was struck off) except plaintiff as real son---Even in opening statement of testimony of predecessor-in-interest of parties, it was stated that he did not intend to give even a single Marla from suit land to any one except plaintiff---Object of alleged oral gift was to exclude daughters from heirship---Predecessor-in-interest of parties was suffering from prolonged ailment, although there was no direct or strong evidence to the effect that he was mentally disordered person yet it was on record that his son-in-law used to take him to mental hospital for treatment of his mental faculties---Predecessor-in-interest of parties admitted that he had been on bed for last about 8-9 years, however declined to disclose nature of ailment---Even in contents of alleged agreement predecessor-in-interest of parties referred to his constant ailment as well as uncertainty of life---Predecessor-in-interest of parties had no independent advice at the time of alleged oral gift in favour of plaintiff to disinherit his four daughters---Alleged transaction of oral gift in favour of plaintiff were sham and void---No gift could be created or pleaded if sole object for creation whereof was to deprive heirs to inherit property as per their shares contemplated by the Holy Quran.

Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi PLD 1990 SC 1; Mukhtar Ahmad v. Mst.Rasheeda Bibi and another 2003 SCMR 1664; Raja Muhammad Yasin v. Zaitoon Begum and others 1993 CLC 2448; Sardar Ahmed Khan and others v. Mst.Zamroot Jan PLD 1950 Pesh. 45 and Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC 309 rel.

Ghulamullah Shah and 5 others v. Officer on Special Duty, Federal Land Commission and 2 others PLD 1980 Kar. 122; Samo and 5 others v. The Officer on Special Duty, Federal Land Commission, Rawalpindi and 4 others 1981 CLC 1308 and Chief Land Commissioner and another v. Maula Dad and others 1978 SCMR 264 distinguished.

(b) Islamic law---

----Gift---Bona fide intention---Scope---Mere declaration of gift by father in favour of his minor child does not fulfil essentials of a valid gift unless a bona fide intention to give is established on record.

S.M. Tayyab for Petitioner.

Allah Bakhsh Gondal for Respondents.

Date of hearing: 3rd December, 2013.

2015 C L C 837

[Lahore]

Before Shah Khawar, J

Chaudhry ASIF ALI----Petitioner

versus

JOINT CENSUS COMMISSIONER, STATISTICS DIVISON, PAKISTAN BUREAU OF STATISTICS, POPULATION CENSUS ORGANIZATION WING, ISLAMABAD and 7 others----Respondents

Writ Petition No.2370 of 2013, decided on 1st September, 2014.

(a) Constitution of Pakistan---

----Art. 199---Delimitation of Constituencies Act (XXXIV OF 1974), S.8--- Constitutional petition--- Maintainability--- Joint Census Commissioner, office of---Scope---Erroneous inclusion of census blocks in a Union Council---Filing of Constitutional petition before the High Court challenging such inclusion---Non-impleadment of Federal or Provincial Government---Effect---Joint Census Commissioner, was alleged to have erroneously included additional census blocks in a Union Council---Joint Census Commissioner did not form part of Federal or Provincial Governments and was a legal person for all intents and purposes---Petitioner had not prayed for any relief against the Federal or Provincial Government---Constitutional petition was held to be maintainable in such circumstances.

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

----Ss. 8 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Delimitation of constituencies---Controversy regarding inclusion of certain census blocks by the Joint Census Commissioner in a constituency and union council of a different city---Election Commission, powers of---Scope---Election Commission of Pakistan had to delimit, reconstitute, alter or modify the final list of constituencies---Present controversy could only be set at naught by way of referring the matter to the Election Commission, which after holding hearing and associating all the stakeholders was competent to pass an order---Joint meeting was held between the District Administrations of the two cities and the Joint Census Commissioner, and on the basis of said meeting, a joint visit was made and recommendations were made by the revenue field staff---High Court directed the Joint Census Commissioner to send said recommendations to the Election Commission, which may decide the present controversy after associating all stake holders and shall pass an order in consonance with the Delimitation of Constituencies Act, 1974---Constitutional petition was disposed of accordingly.

S.A. Mahmood Khan Sadozai for Petitioner.

Tanvir Iqbal Khan for Respondents.

Shahid Mahmood Abbasi, A.A.-G., Malik Tariq Mahmood Awan, Standing Counsel for Federal Government.

Date of hearing: 12th August, 2014.

2015 C L C 859

[Lahore]

Before Shezada Mazhar, J

Mst. KHADIJA SHAHEEN ALI----Petitioner

versus

DISTRICT COORDINATION OFFICER, RAJAN PUR and another----Respondents

Writ Petition No.1672 of 2014, decided on 26th August, 2014.

(a) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Constitution of Pakistan, Art.199---Constitutional petition---Domicile certificate, grant of---Criteria---"Domicile" and "residence"---Difference---Petitioner filed an application for the grant of certificate of domicile of district "Y" which was rejected by the District Co-ordination Officer---Contentions of petitioner were that she had been condemned unheard as impugned order was passed on the basis of report of Political Assistant that petitioner was not a permanent resident of district "Y", and that mother and father of petitioner were holding domicile of district "Y" and petitioner was entitled for the grant of the same of the said district---Validity---Person might have more than one places of residence but could have only one place of domicile---Place of domicile of a person would signify a place where he always had an intention to return---Person might be entitled for grant of certificate of domicile at place "A" being his permanent abode if he had a residence over there and a permanent intention to reside over there notwithstanding his temporary residence---If person had moved from place "A" and had no intention to reside there permanently then he was not entitled to grant certificate of domicile for such place---No such intention had been proved, in the present case, as the land owned by the parents of petitioner was an open land---No construction whatsoever had been made on the said land owned by the parents of petitioner to show that petitioner and her parents had intention to reside there permanently---Father of petitioner had retired from government service and was not residing at district "Y" but residing in district "Z"---Brother and sister of petitioner had obtained domicile certificate from district "Z" and both were residing at the place of domicile since birth---Parents of petitioner had managed to obtain the certificate of domicile of district "Y" during their posting---Petitioner had concealed the fact that her brother and sister had obtained certificate of domicile from district "Y"---Petitioner was not permanently residing in district "Y" and she and her parents had no intention to permanently reside in the said district---Mere ownership of certain piece of land in district "Y" by the parents of petitioner did not create a right in favour of petitioner to obtain a domicile certificate of said district nor same would establish her permanent residence there---Petitioner had failed to produce a single proof of her permanent residence in district "Y"---Petitioner had sought domicile of district "Y" only for the purpose of getting benefits meant for the people of backward area---Impugned order had been passed in accordance with law---Constitutional petition was dismissed in circumstances.

Miss Saima Bukhari and another v. District Coordination Officer Rajanpur and 3 others 2006 MLD 986 and Muhammad Yar Khan v. Deputy Commissioner cum Political Agent, Loralai and another 1980 SCMR 456 ref.

Muhammad Khalil and another v. Executive District Officer, Revenue, Pishin another PLD 2011 Quetta 21; Ahmad Hassan v. Abdullah and 5 others PLD 1992 Pesh. 1; Chaudhry Noor Muhammad v. Province of West Pakistan and another PLD 1971 Lah. 367; Mst. Saleha Ibtisam v. Chairman, Admission Committee, Pakistan King Edward Medical College Lahore and 5 others 1995 CLC 259; Syed Haider Shah v. Mukhtar Hussain Shah and others PLD 1963 (W.P.) Lah. 548 and Miss Dur-e-Sameen and another v. Selection Committee through Chairman, Balochistan Public Semite Commission Quetta (1997 SCMR 270 rel.

(b) Words and phrases---

----"Domicile"---Meaning.

Law of Domicile by A.V. Dicey, B.C.L. and Dr. Phillimore rel.

Muhammad Usman Sharif Khosa for Petitioner.

Rana Muhammad Hussain, A.A.-G. with Abdul Rashid Qureshi, Head Clerk, D.C. Office Rajanpur.

Date of hearing: 6th August, 2014.

2015 C L C 907

[Lahore]

Before Mrs. Ayesha A. Malik, J

Miss ASMA JAVAID and another----Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary, Health Department and 2 others----Respondents

Writ Petition No.28142 of 2014, heard on 29th October, 2014.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Educational institution---Admission policy---Quota system---Petitioners assailed policy of Pakistan Medical and Dental Council (PM&DC) regarding admission to medical colleges fixing number of seats for male and female students at 50% each---Validity---Pakistan Medical and Dental Council compromised on merit for entry into medical and dental profession impacting overall merit of the profession---Policy of the Council accepted male candidates with a lesser merit with no guarantee that other 50% would continue in the profession---Policy, in question, also prevented 12% high merit candidates from pursuing a medical education simply on the basis of their gender---Policy of PM&DC, in fact, did not ensure that the best of the candidates would enter into medical profession to produce the best doctors and dentists but instead allowed candidate who previously could not possibly have entered into medical and dental college to study medicine and become doctor or dentist---Entry, into medical and dental colleges, was very competitive and as per study produced before High Court, 62% of candidates who succeed into medical and dental colleges were females---High Court, in exercise of Constitutional jurisdiction, declared policy of fixation of quota to be unconstitutional, against Art.25 of the Constitution---Petition was allowed, in circumstances.

Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295 fol.

Miss Farhat Jaleel and others v. Province of Sindh and others PLD 1990 Kar. 342 and Nazar Elahi v. Government of Punjab and others 2013 CLC 1457 ref.

Malik Ghulam Rasul for Petitioners.

Ch. Muhammad Umar and Mian Haris Yasin for Respondent No.3 PM&DC.

Imran Muhammad Sarwar for Respondent No.2 University of Health Sciences.

Mrs. Samia Khalid, A.A.-G. along with Aamir Rasheed, Law Officer, Health Department and Syed Usman Munir Bukhari, S.O. (ME), Health Department.

Date of hearing: 29th October, 2014.

2015 C L C 934

[Lahore]

Before Muhammad Khalid Mehmood Khan and Abdus Sattar Asghar, JJ

WAPDA FIRST SUKUK COMPANY through Director/Company Secretary and another----Appellants

versus

NATIONAL FERTILIZER CORPORATION OF PAKISTAN (PVT.) LTD. through Chief Executive and 4 others----Respondents

Regular First Appeal No.779 of 2010, decided on 17th February, 2015.

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

----S. 88, O. XXXV, Rr. 1, 2 & 5---Suit of interpleader---Scope---Plaintiff company issued SKUK certificates and defendant purchased 72 certificates---Plaintiff asserted that said certificates were sold to another company---Interpleader suit filed by plaintiff was rejected by Trial Court on the ground that same was not maintainable---Validity---Interpleader suit was instituted for the purpose of obtaining a decision from Court as to the person to whom payment or delivery would be made and from whom indemnity for himself was to be obtained---Main issue to be decided by Court in interpleader suit with respect to a debt, sum of money or other property, movable or immovable was to whom payment or delivery was to be made---No Court of competent jurisdiction had declared that transfer of 72 certificates in favour of another company were on the basis of genuine certificates and holders of said certificates had purchased the genuine certificates---Till declaration of genuineness of disputed certificates by competent Court of jurisdiction both the parties would enjoy status of adversaries of each other---Competent Court of law was yet to opine about the role of defendant it refused to stop sale and purchase of disputed certificates on the request of plaintiff even on coming to know that fraud had been alleged by plaintiff regarding certificates in the name of defendant---High Court set aside judgment and decree passed by Trial Court as it failed to appreciate true facts and law of the case---Suit was maintainable before Trial Court and it was wrongly rejected---Appeal was allowed in circumstances.

Bolan Beverages (Pvt.) Limited v. PEPSICO. INC and 4 others PLD 2004 SC 860; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Hashim Khan v. National Bank of Pakistan, Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta PLD 2001 SC 325; N.M.N. Duraishwami Chettiar v. The Dindigul Urban Co-operative Bank Ltd. and another AIR 1957 Madras 745; Bombay, Baroda and Central India Railway Company v. Jacob Elias Sassoon and others ILR 1893 Bombay Series 231; Chhaganlal Himatlal and others v. B.B. and C.I. Railway AIR 1915 Bombay 28; The Secretary of State against Mir Muhammad Hussain and others 1 Madras HCR 360 (DB); Norse International Limited v. Group Five International Limited Civil Cause 2309 of 1995; G. Hari Karmarker v. J.A. Robin and others AIR 1927 Rangoon 91; Messrs Pakistan Oil Mills (Pvt.) Ltd v. Messrs Peter Shipping Co. Ltd. and others 2005 MLD 1745; Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413; WAPDA and another v. Messrs Ghulam Rasool and Co. (Pvt.) Ltd. through Managing Director 2005 MLD 1165; Messrs Farooq and Co. v. Federation of Pakistan and 3 others 1996 CLC 2030; Pakistan Paper Corporation Ltd. v. National Trading Company (N.T.C.) Ltd. 1983 CLC 1695; Mariyala Sambayya v. Narala Bala Subba Reddi and another AIR 1952 Madras 564; Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413; Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62; Dr. S.M. Rab v. National Refinery Ltd. PLD 2005 Kar. 478; Citi Bank N.A., A Banking Company through Attorney v. Riaz Ahmed 2000 CLC 847; Patorni v Campbell (1843) EngR 11721; Farr v. Ward (1837) EngR 96; Sablichich v. Russell 1866 Equity Cases 441; Crawford v. Fisher (1842) EngR 410; Ann Dalton v. The Midland Railway Company (1852) EngR 721; Farmers Irrigating Ditch Reservoir Company v. Kane 845 F2d 229; Great American Insurance Co. v. Bank of Believue 366 F.2d 289; Eastern Holding Establishment v. Singer and Friedlander Ltd. (1967) 2 All. ER 1192; Sambayya v. Subba Reddi AIR 1952 Madras 564; Tucker v. Morris (1832) EngR 307; Bolan Beverages (Pvt.) Limited v. PEPSICO. INC and 4 others PLD 2004 SC 860; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Chhaganlal Himatlal and others v. B.B. and C.I Railway AIR 1915 Bombay 28 and Inuganti Sobhanadrirao and another v. Muthangi Jaggayya and others AIR 1966 Andhra Pradesh 92 (V 53 C 31 ref.

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

----S. 88---Interpleader suit---Maintainability---Where plaintiff colludes with one of the claimants or has taken indemnity from one of the claimants or has entered into an agreement with one of them to receive less than what is actually payable, an interpleader suit has to be dismissed.

Ms. Ayesha Hamid for Appellants

Asad Javed and Sikandar Abbas Jaija for Respondent No.1.

Uzair Karamat Bhandari for Respondent No.2.

Muhammad Raza Qureshi and Hassan Naveed for Respondent No.4.

Jahanzeb Awan for Respondent No.5.

Date of hearing: 1st December, 2014.

2015 C L C 945

[Lahore]

Before Shahid Karim, J

Messrs RASHEED CNG STATION through Proprietor----Petitioner

versus

FEDERATION OF PAKISTAN and 6 others----Respondents

Writ Petition No.11993 of 2014, decided on 15th December, 2014.

(a) Gas (Theft Control and Recovery) Ordinance (II of 2014)---

----Ss, 3, 4, 5 & 6---Constitution of Pakistan, Arts.89(2) & 199---Constitutional petition---Promulgation and expiry of Ordinance---Consequences when an Ordinance lapses and is not renewed---Question before the High Court was whether the Gas (Theft Control and Recovery) Ordinance, 2014, after expiry of the one hundred and twenty days' period since it was last extended, was still a valid law and whether proceedings could be initiated or continued under the said Ordinance---Held, that the Gas (Theft Control and Recovery) Ordinance, 2014 was last extended by a Resolution of the National Assembly on 14-5-2014, and after expiry of the one hundred and twenty days' period on 23-9-2014; it stood repealed in terms of Art.89 of the Constitution---Ordinance by its very nature was a temporary statute and a temporary statute, as distinguished from a permanent statute, remained in force for a limited period of time and after expiry of which, it ceases to operate without repeal---Power to make and promulgate an Ordinance was a legislative and not an executive power---Gas (Theft Control and Recovery) Ordinance, 2014 stood repealed at the expiration of the one hundred and twenty days from its promulgation and had not been extended by either the Senate or the National Assembly for a further period by a resolution, therefore indubitably it lost its validity on the expiration of that period as it had not been made an Act of the Parliament within the said period---High Court observed that no proceedings could be commenced or continued in the Gas Utility Courts set up by the Gas (Theft Control and Recovery) Ordinance, 2014 as the law which was the provenance of their powers did not hold field anymore and any proceedings initiated, commenced or continued under the Gas (Theft Control and Recovery) Ordinance, 2014 would be without lawful authority and ultra vires---All cases pending with the Gas Utility Court shall stand transferred to ordinary courts of plenary jurisdiction to be adjudicated upon their respective merits and proceedings be continued from the stage which they had reached before the Gas Utility Courts and cases be tried and continued under the relevant law relating to such matters---Constitutional petition was disposed of, accordingly.

Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mobashir Hassan and others PLD 2012 SC 106 and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 rel.

(b) Constitution of Pakistan---

----Art. 89---Nature of an Ordinance---Ordinance by its very nature was a temporary statute and a temporary statute was to be distinguished from a permanent statute---Ordinance remained in force for a limited period of time and ceased to operate without repeal after expiry of such period---Power to make and promulgate an Ordinance was a legislative and not an executive power---Illustrative case-law examined.

Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mobashir Hassan and others PLD 2012 SC 106 and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 rel.

Fahad Ikram, Mian M. Hussain Chotya, M. Salman Masood, Nadeem ud Din Malik, M. Ahsan Asghar Ch., Ch. M. Shakeel, Arshad Mehmood, M. Riaz Ch., Ch. Waseem Ahmad Gujjar, M. Shahbaz Rana, Jahanzaib Khan, Asad Ali Bajwa, Abdul Razzaq, Hussain Ibrahim M., M. Mohsin Virk, Miss. Sumaira Khanum, Maj.(R) Aftab Ahmad, Ms. Ruhi Saleha, Miss. Huma Khurram Sheikh, Asif Bashir Mirza, Sarfraz Ahamd Qureshi, Mian Mushtaq Ahmad-1, M. Baleegh uz Zaman Chaudhry, Kh. Waseem Abbas, Imran Humayun Cheema, Rao Zaigham Ali, Aish Bahadur Rana, Mian Muhammad Rauf, Sajjad Ahmad-1, Malik Muhammad Imtiaz Mahal, Muhammad Irfan ul Haq, Safdar Hayat Bhatti, Ashfaq Ahmad Tabassum, Irfan Mehmood Ranjha, Abdul Sattar Chaudhry, M. Mansoor Humayun, Shahid Hanif, Mian Mahmood Rashid, M.Ajmal Khan-1, Ch. Mehboob ul Hassan, Zafar Iqbal Chohan, Ch. Sarfraz Ali Dayal, Tariq Bashir, Syed Muhammad Shah, Mr.Ghulam Farid Sanotra, Saeed Ahmad Rana, Tahir Amin Chaudhry, Waheed Ashraf Bhatti, Major (R) Aftab Ahmad Khan, Khalid Hashmi, Muhammad Sharif, Umer Riaz, Mian Bilal Bashir, Raja Tasawer Iqbal, Ms. Ammara Liaqat Bhatti, Muhammad Ashan Asghar Ch., Muhammad Yasir Hussain, Muzaffar Aziz Khan, Zulfiqar A. Sheikh, Shahid Ismail, Ms. Sabiha Ali Chughtai, Munawar us Salam, Nadeem ud Din Malik, Barrister Ahmed Pervaiz and Ch. Akbar Ali Shad for Petitioners.

Amir Rehman and Muhammad Mehmood Khan, D.A.-G. for Pakistan. Umer Sharif for respondent-SNGPL. Aurangzeb Mirza for Respondent-FESCO. Amanat Ali Imran Raza Chadhar for SNGPL (Sheikhupura Range). Rasaal H. Syed Barrister Haroon Dugal for Respondent OGRA and Rana Zia ul Islam Manj for Respondents.

Date of hearing: 4th December, 2014.

2015 C L C 969

[Lahore]

Before Shujaat Ali Khan, J

Haji MUHAMMAD AKRAM and others----Petitioners

versus

PRESIDENT OF LDA and others----Respondents

Writ Petition No.18979 of 2011, decided on 31st March, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Land Acquisition Act (I of 1894), S.18---Constitution of Pakistan, Art. 199---Constitutional petition---Administration of justice---Non-production of evidence despite numerous opportunities---Closing of evidence---Petitioner impugned order of the Tribunal whereby petitioners' right to produce evidence was closed---Contention of the petitioner was inter alia that law favoured adjudication on merits rather than penalizing a party on basis of technicalities---Held, that any penal action, if taken, against any party while pressing into service the provisions of O.XVII, R.3, C.P.C. in routine, the same may be considered a mere technicality; but where an adverse order had been passed against a party when it failed to comply with the order of the Court despite being given a number of opportunities, the same could not be considered a mere technicality---Evidence of the petitioner, in the present case, was not closed in a causal manner, rather it was done so after affording all possible opportunities to the petitioner to produce evidence---Impugned order did not therefore, suffer from any illegality---Constitutional petition was dismissed, in circumstances.

Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali 2014 SCMR 637 rel.

Ch. Shaukat Ali Saqib for Petitioners.

Waqar A. Sheikh and Ahmad Ali Ranjha for Respondents.

2015 C L C 978

[Lahore]

Before Mrs. Ayesha A. Malik, J

NAYYER KHAN----Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence, Rawalpindi Cantt. and others----Respondents

Writ Petition No.5000 of 2014, decided on 17th July, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---"Aggrieved person"---Scope---To satisfy the requirements of an "aggrieved person" in public interest litigation under Art.199 of the Constitution, the petitioner needed to disclose a personal interest in the performance of legal duty owed to him which if not performed would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.

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

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Locus standi---Scope---To establish locus standi in the context of public interest litigation, the petitioner would have to show that he belonged to class of affected persons who were unable to access the Court for the protection of their rights.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Locus standi of petitioner---Aggrieved person having "sufficient interest"---"Sufficient interest"---Meaning---Sufficient interest meant any legal interest which could include civic, environmental, cultural interests etc.---Gravity of the issue should be taken into consideration, such that more serious the issue at stake the less significance would be attached to arguments based on the petitioner's alleged lack of standing.

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

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---"Aggrieved person" having "sufficient interest"---Scope---No right or interest of petitioner infringed---No harm or wrong caused to the public at large---Effect---Construction of shopping mall on Government land managed by military authorities---Federal Government had given the land in question to military authorities, who in turn leased it out to the respondent-company for construction of a shopping mall---Plea of petitioner that the long term lease agreement in favour of company tantamount to sale of Government land that major portion of lease amount was going to the concerned management of military authorities and a meager amount of the same was going to the Federal Government, and it was the respondent-company which was making huge profits at the expense of the Government---Validity---Present case was not a case of public money or public resource---Federal Government, which was the owner of the land, handed over the same to the military authorities to use as they deemed appropriate---Land in question was never allocated for any public purpose or for any public use, but was given to the military authorities---Military authorities through the concerned management had been managing the property where different commercial activities had been undertaken and existed even today---In fact the public at large had benefited from such commercial activities and there had been no objection to any of the commercial activities or its management by the petitioner---Long term lease in favour of the company developing the shopping mall was not a sale ---Federal Government had no objection to the shopping mall being constructed on the land and also to the Project Agreement or the Lease Agreement---Hence no right or interest of the petitioner or the public at large was involved or had been infringed---Public had not been denied access to the land and no harm or wrong was being caused to the public at large by the construction of the shopping mall---Petitioner was not an 'aggrieved party' and had no 'sufficient interest' because the Federal Government owed no duty to the petitioner on present issue nor was there any obligation on the Federal Government under any law that it had to receive all the rental/lease income from its property---Federal Government had the discretion to decide what portion of the lease amount it wanted to retain---Hence the petitioner could not claim a right or interest that he was not entitled to---Larger public interest was not adversely affected---Under the circumstances, the petitioner had failed to establish that he was an aggrieved person for the purpose of public interest litigation---Constitutional petition was dismissed accordingly.

(e) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Laches--- Bona fides of petitioner---Public interest litigation---Agreement for construction of shopping mall with a company on Government land managed by military authorities---Delay of seven years in challenging legality of such agreement---Effect---Period of seven years had gone by since the signing of the agreement for construction of shopping mall, but during such period the petitioner did nothing---Construction of the shopping mall was now almost complete---Delay of seven years to bring the case to the Court without any explanation for the delay made the question of laches relevant as it was directly related to the public interest pleaded by the petitioner---Question of laches was thus relevant because it did go to the bona fides of the petitioner---Land around the shopping mall had been used and managed by the concerned management of military authorities for a very long time, but the petitioner at no point objected to or questioned the use of land by the management---Entire area, where the shopping mall was located was busy with different commercial activities, which had been going on for a long time and the petitioner had never objected to the manner in which the land was allowed to be used---Constitutional petition did not involve any bona fide public interest and was hit by laches---Constitutional petition was dismissed accordingly.

Saad Rasool, Ms. Anum Azhar, Haseeb Ahsan Javed, Dadwar Sharif Malik, Arizaz A. Chaudhary and Waqar Asghar for Petitioner.

Nasar Ahmad, D.A.-G. and Syed Mehmood-ul-Hassan Gillani, Standing Counsel for Respondent No.1.

Syed Shahab Qutab, Sameer Khosa, Mian Tariq Hassan and Ali Zahid Rahim for Respondents Nos.5, 11 and 13.

Tehseen Butt for Respondents Nos.7-10.

Hasham Hayat Wathar for Respondent No.14.

Date of hearing: 4th July, 2014.

2015 C L C 987

[Lahore]

Before Shahid Waheed, J

PROVINCE OF PUNJAB and others----Petitioners

versus

ABDUL RASHID----Respondent

Civil Revision No.1621 of 2005, heard on 14th April, 2015.

Civil Procedure Code (V of 1908)---

----S. 47 & O. XXI, Rr. 23-A, 24----Constitution of Pakistan, Art.10-A---Execution of decrees--- Question to be determined by Executing Court---Scope---Procedure for execution of decree---Objection to execution---Adjudication and disposal of objections by Executing Court---Scope---Decree-holder filed second execution petition before Executing Court and objection of judgment-debtor against the same was dismissed by Executing Court---Contention of judgment debtor was inter alia that decree-holder sought execution beyond the decree and the second execution petition was not competent---Held, that question with regard to maintainability of a second execution petition; applicability of the principle of res judicata and power of Executing Court to go beyond the decree were substantial questions of law and fact and could not therefore be decided in a summary manner---Executing Court was required to frame issues and thereafter decide the said questions in accordance with law---Non-framing of issues and not affording of opportunity to lead evidence in the given facts and circumstances was not only a violation of the principles of natural justice but also that of Art.10-A of the Constitution which guaranteed "fair trial" for determination of rights---High Court remanded the matter to Executing Court for fresh decision on the matter in accordance with law---Appeal was allowed, accordingly.

Muhammad Arif Raja, Addl. A.-G.

Nemo for Respondents Nos.1 and 2.

Muhammad Mudassar Bodla for Respondents Nos.3 and 4.

Date of hearing: 14th April, 2015.

2015 C L C 994

[Lahore]

Before Muhammad Khalid Mehmood Khan and Abdus Sattar Asghar, JJ

FAKHAR-UD-DIN through L.Rs.----Appellants

versus

MUHAMMAD IQBAL and others----Respondents

Regular First Appeal No.917 of 2011, decided on 4th December, 2014.

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

----S. 42---Transfer of Property Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of 1984), Art.103---Registration Act (XVI of 1908), S.60---Suit for declaration---Sale-deed---Expression 'in exchange of a price'--- Sale--- Ingredients--- Vendor an old and sick person alleging fraud or deceit--- Undue influence--- Effect--- No consideration amount was paid by the vendees to the vendor---Sale-deed was invalid for want of consideration and same was result of deceit and undue influence practised on the vendor---Possession of suit land was never delivered to the vendees by the vendor---If any of the ingredients of sale was missing, transaction would not fall within the definition of "sale"---Expression 'in exchange for a price' used in S.54 of Transfer of Property Act, 1882 was very significant---Price was an essential ingredient in a sale and no transaction of sale could be said to be completed in the eye of law unless price was fixed or paid or part paid and part promised---Any fact might be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law---False acknowledgment of receipt of price by a recital in a deed did not estop the seller from giving evidence as against the buyer that he had not received payment---Where a sale was effected through registered sale-deed wherein amount of consideration was mentioned, same could not be construed to be a "sale without consideration"---Party who had acknowledged the receipt of consideration in the sale-deed could show that he did not receive the same---Where vendor had admitted that he had executed sale-deed but alleged that same was under influence and without consideration, evidence to prove the same would be admissible---Rule of extrinsic evidence did not apply in such cases rather evidence to show the true nature of transaction was admissible---Vendor, in the present case, was suffering from high blood pressure and cardiac diseases and he was not having any independent advice at the time of alleged transaction of sale-deed---When there was allegation of fraud or deceit by an old man who had no independent advice and had been deprived of his valuable property by a document, onus would automatically shift upon the beneficiary to prove its contents---Court was not divested of powers to scrutinize the reasons and justifications for the impugned transaction of sale---Element of undue influence was not restricted to an illiterate Parda Nasheen lady rather it could prevail even on men in the particular circumstances of a case---Sale-deed in favour of defendants was got executed without consideration and under undue influence---Presumption of correctness was attached to the certificate endorsed on the sale-deed by the Registration Officer only for the purpose of proving that document had been duly registered---Presumption of correctness with regard to receipt of consideration by the vendor could only arise out of the admission made by him/her which could be contradicted by independent evidence---Vendees had failed to establish the payment of consideration amount and valid acknowledgement of its receipt in the sale-deed---Impugned sale was a sham and void transaction as not proved in accordance with law---Issues in civil cases had to be resolved on preponderance of evidence---Trial Court had failed to appreciate the evidence in its true perspective---Impugned judgment and decree passed by the Trial Court were based on misreading and non-reading of evidence, against law and fact, untenable and were liable to be set aside---Judgment and decree were set aside and suit was decreed---Appeal was accepted in circumstances.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Shah Lal Chand v. Indarjit (1900) 22 All. 370; Qazi Altaf Hussain v. Ishfaq Hussain 1986 SCMR 1427; Wahid Bakhsh v. Muhammad Shafi PLD 1976 Lah. 1069; Dharm Singh v. Kirpal Singh and others AIR 1923 Lahore 31(2) and Parshotam Das v. Yar Ali AIR 1928 Oudh 439 rel.

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

----S. 54---"Sale"---Ingredients.

A valid sale transaction is constituted when the following essential elements are provided by the vendee:---

(i) The valid sale agreement;

(ii) The parties to the sale transaction;

(iii) The sale consideration fixed and paid; and

(iv) The subject matter of the sale transaction.

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

----S. 54---"Sale"---Meaning---Sale was a transfer of ownership in exchange for a price paid or promised or part paid and part promised.

Malik Noor Muhammad Awan for Appellants.

Ch. Irshad Ullah Chatha for Respondents.

Date of hearing: 4th December, 2014.

2015 C L C 1009

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Syed IRFAN ALI SHAH----Appellant

versus

MUHAMMAD IMRAN----Respondent

Second Appeal from Order No.15 of 2012, decided on 20th October, 2014.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Eviction petition---Personal bona fide need of landlord---Non-framing of issues---Effect---Breach of terms of rent deed by tenant---Contention of tenant was that neither any issue was framed with regard to personal bona fide need nor parties had adduced evidence on such ground---Ejectment petition was accepted concurrently---Validity---Landlord in his eviction petition besides raising other grounds had took up a ground of personal bonafide need which had been reiterated in the evidence produced by him---Tenant was abreast of such ground and he also tried unsuccessfully to rebut the same by producing evidence---Tenant had never objected to non-framing of proper issues throughout the proceedings---Non-framing of an issue on bonafide personal need was not fatal to the landlord's case as both the parties had adduced evidence in accordance with their pleadings---Provisions of Civil Procedure Code, 1908 were not stricto sensu applicable in rent matters---No illegality or jurisdictional defect was committed by the courts below while passing eviction order on the ground of personal bona fide need---Non-framing of proper issue was a technical flaw which if not agitated at relevant time could be overruled for advancement of justice---Parties could not be put to another round of litigation when sufficient material was available on record to decide the matter on merit---Both the courts below were justified in arriving at a conclusion that landlord required the demised premises for his personal bona fide need in good faith---Landlord had choice to point out which particular property was required for his personal bona fide need---Tenant had breached the terms and conditions of rent deed---No misreading and non-reading of evidence was pointed out in the impugned orders/judgments---Second appeal was dismissed with costs in circumstances.

Muhammad Farooq v. Abdul Waheed Siddiqui 2014 SCMR 630 and Asmat Ullah Butt v. Kamran Javaid and 2 others 2008 CLC 136 rel.

Kh. Muhammad Ashraf Jan for Appellant.

Rana Farman Ali Sabir for Respondent.

2015 C L C 1021

[Lahore]

Before Zafarullah Khan Khakwani, J

MUHAMMAD ADNAN----Appellant

versus

DISTRICT AND SESSIONS JUDGE and others----Respondents

First Appeal from Order No.56 of 2013/BWP, decided on 10th October, 2014.

(a) Punjab Consumer Protection Act (II of 2005)---

----Preamble---Object and purpose of Punjab Consumer Protection Act, 2005---Legislature has promulgated Punjab Consumer Protection Act, 2005 in order to safeguard the interest of a consumer and to settle disputes between consumer and manufacturer of products or provider of services.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 28---Punjab Consumer Protection Rules, 2009, Rr.13, 14(5) & (6)---Limitation Act (IX of 1908), Art. 181---Suit for consumer protection---Ex parte order, setting aside of---Limitation---Defendant was service provider who was proceeded ex parte and Trial Court declined to set aside the order on the plea that it was barred by limitation---Validity---Trial Court passed ex parte order under R.14(5) of Punjab Consumer Protection Rules, 2009---Provisions of Civil Procedure Code, 1908, were not applicable to the proceedings of Trial Court stricto sensu, but R.14(6) of Punjab Consumer Protection Rules, 2009 empowered Trial Court to recall/set aside ex parte order and for such purpose it could exercise powers of "Civil Court" under Civil Procedure Code, 1908---For setting aside ex parte order of Trial Court provisions of Civil Procedure Code, 1908, were not applicable---Limitation to apply for withdrawal of ex parte order was covered under Art.181 of Limitation Act, 1908---High Court set aside ex parte order passed by Trial Court as the same was misconceived and not tenable in the eyes of law---High Court accepted application of defendant for setting aside ex parte order, as the same was not barred by limitation and case was remanded to Trial Court for decision afresh---Appeal was allowed accordingly.

Muhammad Tayyab Zameer Khan and Junaid Aslam Mison for Appellant.

Abdul Ghaffar Chughtai for Respondent No.2.

2015 C L C 1030

[Lahore]

Before Shahid Karim, J

PETRO OIL (PVT.) LIMITED through Chief Executive----Petitioner

versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Petroleum and Natural Resources and 2 others----Respondents

Writ Petition No.22981 of 2011, decided on 6th January, 2015.

(a) Interpretation of Constitution---

----Policies framed by government---Principle---Constitution is an organic whole and has to be construed in the context of overall scheme of the Constitution---Balance has to be struck on the basis of separation of powers---Due deference has to be shown to policies framed by government.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; M.P. Oil Extraction and another v. State of M.P. and others (1997) 7 SCC 592; Premium Granites and another v. State of Tamil Nado and others (1994) 1 SCR 579; Narmada Bachao Andolan and others v. Union of India and others AIR 2000 SC 3751 and Dossani Travels (Pvt.) Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

(b) Petroleum Products Marketing Licence Policy---

----Paras I & VI(a)---Constitution of Pakistan, Art.199---Constitutional petition--- Term 'affiliated'--- Principle of reading down---Applicability---Petitioner was Oil Marketing Company (OMC) and was aggrieved of the policy framed by Federal Government for issuance of licence for establishing OMC---Validity---Term 'affiliated' mentioned in para I of Petroleum Products Marketing Licence Policy should be taken to mean that company applying for licenc-e should commence and operate its business on the basis of its own facilities, infrastructure etc.---Oil and Gas Regulatory Authority (OGRA) could analyze application and to satisfy itself on such matters---If a company was investing Rs.500 million or more, facilities and structures could not be in air and had to be on the ground in full view---OGRA had means and skill to determine whether such facilities existed independently or not---Such determination should be made on objective criteria and a check list could be developed for the purpose---Purpose seemed to be for applying company to stand on its merit without reference to any other company---High Court by applying the rule of reading down, held that 'relatives' of sponsors/directors found in para VI(a) of Petroleum Products Marketing License Policy, should be read as only referring to spouse and dependents of those sponsors/ directors---Such was fair and pragmatic manner in which para VI(a) of Petroleum Products Marketing License Policy, could be read---Petition was allowed accordingly.

Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 KB 223; Abid Mehmood v. Capital Development Authority through Chairman and another PLD 2012 Islamabad 27; Delhi Transport Corporation v. D.TC Mazdoor Congress and others AIR 1991 SC 101; Calcutta Gujarati Education Society and another v. Calcutta Municipal Corporation and others AIR 2003 SC 4278; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 582; Indus Jute Mills Ltd. through Chief Executive v. Federation of Pakistan through Secretary Finance, Islamabad and 3 others 2009 PTD 1473 and Lone Cold Storage, Lahore v. Revenue Officers, Lahore Electric Power Co. and others 2010 PTD 2502 ref.

(c) Discretion---

----Principle---Discretion has to be structured and cannot be unfettered.

Muhammad Shahid Baig for Petitioner.

Shaukat Umar Pirzada and Nasar Ahmad Dy. A.-G. for Pakistan.

Date of hearing: 5th January, 2015.

2015 C L C 1048

[Lahore]

Before Mirza Viqas Rauf, J

RIZWAN SARWAR----Petitioner

versus

SADIA MAJEED and 4 others----Respondents

Writ Petition No.6944 of 2012, heard on 22nd January, 2015.

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

----S. 5, Sched.----Constitution of Pakistan, Art.199---Constitutional petition---Maintenance, quantum of--Annual increase in maintenance of minors, basis of---Financial status of father---Consolidated suits for restitution of conjugal rights and maintenance---Trial Court decreed the suit for restitution of conjugal rights subject to provision of separate accommodation to wife---Suit for maintenance was also decreed awarding maintenance to wife at the rate of Rs.3,000 per month till rejoining her husband or completion of Iddat period in case of divorce and to minors at the rate of Rs.7,000 per month each with an annual increase of 25%---Petitioner/husband appealed against both the decrees on the grounds that wife was not entitled to any maintenance in view of the decree for restitution of conjugal rights, whereas the rate of maintenance fixed for both minors was exorbitant---Appellate court upheld both decrees agreeing with the findings of the Trial Court---Validity---Trial Court had fixed the maintenance keeping in view the financial status of father and evidence available on record---Impugned judgments passed by both the courts below were the result of proper appraisal of evidence, except the annual increase in maintenance of minors at the rate of 25% per annum which was not supported by any reasoning as both the courts below had failed to give any justification for the increase---High Court partly allowed the petition reducing the annual increase in the maintenance allowance of minors of 25% to 5% per annum and upheld the rest of the judgment and decrees of both the courts below.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760; Muhammad Younas v. Additional District Judge Pasrur and 2 others PLD 2011 Lah. 493 and Rana Muhammad Ashraf v. Tanveer Kausar and others 2011 CLC 1999 rel.

(b) Constitution of Pakistan---

----Art. 199----Scope---Constitutional jurisdiction against concurrent findings---High Court exercises restraint while interfering with the concurrent findings of courts below---Constitutional jurisdiction cannot be exercised only for substituting the view already taken by the courts below after appraising the evidence, unless some illegality or misreading is pointed out in judgments of the courts below.

Shaigan Ijaz for Petitioner.

Malik Ali Gohar for Respondents Nos.1 to 3.

Date of hearing: 22nd January, 2015.

2015 C L C 1121

[Lahore]

Before Shezada Mazhar, J

IMTIAZ AHMAD----Appellant

versus

MUHAMMAD SHOAIB SHAH and 3 others----Respondents

F.A.O. No.43 of 2013, decided on 9th September, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Transfer of Property Act (IV of 1882), S.52---Constitution of Pakistan, Arts.23 & 24---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Lis pendens, principles of--- Applicability--- Grant of temporary injunction---Ingredients---Principles for grant or refusal of temporary injunction were, prima facie arguable case, balance of convenience and irreparable loss---If any of the three basic requirements were missing, then litigant was not entitled for grant of temporary injunction---Trial Court had passed the impugned order on the basis of endorsement and had restrained the defendant from alienating the suit property---When the agreement was to be proved, then court could not grant interim relief on the basis of endorsement on the said agreement---Whether the endorsement was legally/validly made would be determined after recording of evidence---No prima facie case was made out and there was no question of irreparable loss---Defendant was owner of disputed property and he was entitled to enjoy and deal with the same and his said right could not be curtailed/interfered with lightly---Anxiety of plaintiffs was secured under the rule of lis pendens---Part payment of the consideration amount on the basis of impugned order could not be used to curtail the rights granted under Arts.23 and 24 of the Constitution---Appeal was accepted and impugned order was set aside.

Rana Muhammad Naeem Khan for Appellant.

Imtiaz Hussain Khan Balouch for Respondents Nos.1 to 3.

2015 C L C 1127

[Lahore]

Before Ali Akbar Qureshi, J

RASHEED AHMAD KHAN and 7 others----Petitioners

versus

MUHAMMAD ASHRAF through his real mother and others----Respondents

C.R. No.477-D of 1996, heard on 16th January, 2015.

(a) Islamic Law---

----Inheritance---Custom/Riwaj excluding daughter from inheritance, validity of---Daughter inherited property from father but her name was not entered in mutation due to alleged custom whereunder daughter was not entitled to inherit from legacy of her father---Daughter died issueless and legal heirs of her husband filed suit for declaration to correct said inheritance mutation---Trial court decreed the suit, but appellate court set aside the same---Respondents contended that the daughter being aware of entries in revenue record had relinquished her right in legacy of her father---Validity---Predecessor of petitioners, being one of the legal heirs, could not be deprived from her right on ground of alleged custom---Respondents could not produce any evidence pertaining to the custom/Riwaj and the same was not sustainable in law---Impugned judgment was not sustainable being violative of law---High Court set aside judgment and decree of appellate court and affirmed that of trial court.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----S. 11, O. II, R. 2 & O. XVII, R. 3----Constructive res judicata, applicability of---Frame of suit---Relinquishment of claim---Dismissal in default---Appellate court non-suited petitioners on the ground that petitioner had earlier filed a suit regarding residential property left by predecessor-in-interest of parties in which they had not included agricultural property which was subject matter of present suit; and petitioners had relinquished their right to the extent of said agricultural property under S.11 and O.II, R.2, C.P.C. and the same could not be agitated in the present suit---Pleas raised by petitioners were that the earlier suit had not been decided on merits and dismissed under O.XVII, R.3, C.P.C., and in said suit parties had sought partition of the residential property on basis of family settlement, but in the present suit petitioners had challenged entries of inheritance mutation in revenue record---Validity---When earlier suit was filed, predecessor-in-interest of petitioners was not owner of agricultural land for purpose of any further transaction and he became owner thereof by operation of law and was not entitled to make the agricultural land subject matter of the earlier suit unless revenue entries were corrected---Claim of petitioners in earlier suit was entirely different---Findings of appellate court were contrary to record and law and the same were not sustainable in law---Appellate court had wrongly held that principle of res judicata was applicable---In case of any dispute regarding residential property, jurisdiction was vested with civil court, whereas in case of agricultural land, parties approach the Revenue Courts/authorities, and the ground of relinquishment of claim had no force.

Muhammad Tahir v. Abdul Latif and 5 others 1990 SCMR 751; Mst. Nazima Begum and others v. Mst. Hasina Begum and others 1991 SCMR 177; Dilawar Khan and others v. Ghulam Nabi and others 1991 SCMR 398; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Rafique Ahmad v. Mst. Tafseela and others 1992 CLC 1401; Chiragh v. Abdul and others PLD 1999 Lah. 340; Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450 and Nazeer Ahmad and 9 others v. Naseer Ahmad 2011 YLR 121 rel.

Muhammad Ashraf Qureshi for Petitioners.

Mian Muhammad Jamal for Respondents.

Date of hearing: 16th January, 2015.

2015 C L C 1141

[Lahore]

Before Shah Khawar, J

DILDAR ALI----Petitioner

versus

D.C.O. CHINIOT and others----Respondents

Writ Petition No.20133 of 2014, decided on 11th July, 2014.

(a) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---State functionaries, duty of---Carrying out any lawful business and trade was the Fundamental Right of an individual under Art.18 of the Constitution---While discharging official functions, efforts should be made by State functionaries to ensure that no one was denied the right to earn his livelihood because of unfair or discriminatory act on their part.

Shaukat Ali v. Government of Pakistan, and others PLD 1997 SC 342 ref.

(b) Constitution of Pakistan---

----Pt. II, Ch. 1 [Arts.8 to 28]---Fundamental Rights, curtailment of---Law and order situation---State functionaries/Executive, duty of---Denial of any of the fundamental rights of the citizens could not be allowed due to fanciful and arbitrary ideas and presumptions of the State functionaries---No action of the Executive could prevail which may deny any of the Fundamental Rights of individuals on the pretext that the same may cause security problems and law and order situation.

(c) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---Holding of circus and shows---Denial of permission by competent authority---Law and order situation---Petitioner's company applied before the District Coordination Officer/competent authority seeking permission for holding circus and shows---Local police made a report in favour of holding the circus and shows, however the District Coordination Officer refused to give permission for the same due to security reasons---Legality---No action of the Executive could prevail which may deny any of the Fundamental Rights of individuals on the pretext that the same may cause security problems and law and order situation---Accepting notion of District Coordination Officer would mean that people must stay at home and should not carry out any activity in the wake of terrorism and ongoing military action in the country---High Court directed the District Coordination Officer to facilitate the petitioner in holding circus and shows according to schedule, and to convene a meeting with the petitioner and the District Police Officer to provide appropriate security measures for holding of circus shows---Constitutional petition was allowed accordingly.

Ch. Muhammad Akram Khan for Petitioner.

Muhammad Nasir Chauhan, A.A.-G.

2015 C L C 1187

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD TAUFEEQ----Petitioner

versus

MUHAMMAD NAWAZ and 2 others----Respondents

Writ Petition No.150 of 2013, decided on 12th February, 2013.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 7---Default---Subsequent payment or deposit of arrears of rent does not wipe off default once committed.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 7---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Oral tenancy---Scope---Default in payment of rent---No written tenancy existed and tenant defaulted in payment of arrears of rent---Effect---In absence of written agreement as to period, the tenancy would be deemed to be on month to month basis terminable on one month's notice by either party---After filing of execution petition of order enhancing rent, it was deemed that notice to terminate tenancy was served---Tenant did not deposit rent at enhanced rate and as such was defaulter---Tenancy also stood terminated with expiry of its period, which was on month to month basis---High Court declined to interfere in the order passed by Rent Tribunal---Petition was dismissed in circumstances.

Muhammad Amir Butt for Petitioner.

2015 C L C 1196

[Lahore]

Before Amin-ud-Din Khan, J

ASHIQ HUSSAIN and others----Petitioners

versus

PROVINCE OF PUNJAB through Collector, District Bhakkar and 38 others----Respondents

Civil Revision No.21 of 2004, heard on 28th May, 2013.

(a) Land Reforms Act (II of 1977)---

----S. 3---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), S.42---Suit for declaration---Decree declaring plaintiff's title in joint holding on basis of right of inheritance to extent of 400 kanals and that of defendant to extent of 200 kanals---Implementation of such decree in revenue record by Revenue staff against specific khasra number instead of shares in joint holding---Resumption of plaintiff's land by Land Commission due to finding mention same in Declaration Form filed by defendant under Land Reforms Act, 1977---Validity---Plaintiff's joint ownership in suit land existed prior to passing of such declaratory decree on 25-7-1974 i.e. long before promulgation of Land Reforms Act, 1977---Such decree had declared shares in joint property, but revenue authorities had malafidely sanctioned mutation against its spirit---Land Commission had no jurisdiction to scrutinize or ignore such decree having declared plaintiff's right of joint ownership in suit land---Civil Court would have no jurisdiction, if order made by Land Commission was under Land Reforms Act, 1977, but otherwise---Impugned order passed by Land Commission was without jurisdiction, thus, Civil Court had jurisdiction to entertain suit thereagainst---Suit was decreed in circumstances.

YARA and 9 others v. Member, Federal Land Commission and 10 others 2003 SCMR 948; Haji Ali Bux Khan and 3 others v. The Chief Land Commissioner, West Pakistan, Lahore and 2 others 1974 SCMR 98; Muhammad Yousaf through his L.Rs and others v. Noor Din and others 1993 MLD 763 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 ref.

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

----S. 9---Suit challenging validity of an order passed by an authority---Jurisdiction of Civil Court to entertain such suit---Scope stated.

For determining the jurisdiction of civil court, which otherwise have a plenary jurisdiction under section 9 of the C.P.C., the basic test is whether the action taken or order passed by the authorities in which the provision of bar of jurisdiction is available. If the order has been passed with the jurisdiction under the statute, then certainly the civil court has no jurisdiction to entertain a suit against the order which has been with jurisdiction, and if the order is beyond jurisdiction or scope of the authority vested by the statute, then certainly the civil court has jurisdiction to entertain a suit against such-like order.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXI, Rr.10 & 11---Declaratory decree---Not executable, but implementable in record, if necessary---Principles.

A declaratory decree declares a pre-existing right, it does not create or confer a new right, therefore, a declaratory decree is not executable, but is implementable in the record, if necessary.

Amir Muhammad Joya Malik for Petitioners.

Malik Noor Muhammad Awan for Respondents Nos.2 to 9.

Rai Ashfaq Ahmad Kharal, A.A.-G.

Date of hearing: 28th May, 2013.

2015 C L C 1204

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

ASLAM ALI SHAH----Appellant

versus

MUHAMMAD AZAM----Respondent

S.A.O. No.112 of 2010, decided on 25th July, 2013.

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

----S. 13---Ejectment of tenant---Landlord filed eviction petition on the grounds of violation of the terms of rent deed, subletting and personal need for his "brother"---Petition was accepted concurrently---Validity---Brother could not be included in the list of children---No issue on the point of subletting was framed---Personal need for the brother of the landlord was not recognized as a valid ground for eviction of tenant---Proof with regard to settlement or agreement in-between the tenant and sub-tenant as to the period of sub-tenancy and the rate of rent for such period was required to establish subletting---Landlord had failed to justify the allegation of subletting by placing any cogent evidence on record---Violation of the terms and conditions of the rent agreement had nowhere been provided in the West Pakistan Urban Rent Restriction Ordinance, 1959 as a ground seeking eviction by the landlord---Both the courts below had erred in law by holding that in violation of the terms and conditions of the rent agreement, the tenant was guilty of subletting of rented premises---Eviction order was not sustainable---Impugned order and judgment passed by the courts below were set aside and ejectment petition was dismissed---Appeal was allowed in circumstances.

(b) Words and phrases---

----"Sub-lease"---Meaning.

Black's Law Dictionary Eighth Edition ref.

(c) Words and phrases---

----"Sub-lessee"---Meaning.

Black's Law Dictionary Eighth Edition ref.

(d) Words and phrases---

----"Let"---Meaning.

Black's Law Dictionary Eighth Edition ref.

Ahmed Awais Khurram for Appellant.

Raja Zulqarnain for Respondent.

Date of hearing: 23rd July, 2013.

2015 C L C 1216

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

HYUNDAI CORPORATION----Petitioner

versus

SUI NORTHERN GAS PIPELINES LIMITED and 3 others----Respondents

Civil Revision No.1874 of 2004, heard on 12th September, 2014.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Bank guarantee, encashment of---Grant of temporary injunction ---Scope---Bank guarantee was a special kind of contract depending upon the happening of a specific event and when it was discharged, the guarantee would vanish off---Bank guarantee was an independent contract between a party in whose favour the same was issued and the bank which issued the same---Encashment of bank guarantee could not be stopped or restrained by issuance of injunctive order---Obligations emanating from such guarantee were independent of the obligations bearing out of contract entered between the parties---Question of fact had to be proved after production of evidence---Plaintiff had failed to make out prima facie case for grant of temporary injunction---Encashment of bank guarantee had no relevance with the obligations arrived at between the parties through a contract which was independent containing its own terms and conditions---Suit for specific performance was to be filed by the plaintiff if he had a grouse against the fulfilment of conditions of contract on the part of defendants and suit for permanent injunction was not maintainable---Encashment of bank guarantee had nothing to do with the alleged dispute between the parties which must be decided independently on the obligations of parties imposed by the contract through its forms and conditions---Impugned order passed by the Appellate Court was in accordance with law---Trial Court was directed to decide the suit within a specified period---Revision was dismissed in circumstances.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 and Pakistan Petroleum Limited v. BBJ Pipe Industries (Pvt.) Ltd. and another 2005 MLD 1710 rel.

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

----S. 126---Bank guarantee---Encashment---Injuctive order against encashment---Scope---Bank guarantee being an independent contract between the party in whose favour the same was issued and the Bank which issued the same, its encashment could not be stopped or restrained by an injuctive order---Obligations emanating from Bank guarantee were independent of obligations bearing out of the contract entered upon by the parties.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 fol.

(c) Administration of justice---

----High Court observed that unless the proceedings before Courts below were stayed by any specific order, courts were bound to continue with the trial of the case irrespective of the pendency of the matter before High Court.

Ghulam Mujtaba for Petitioner.

Umar Sharif for Respondent No.1.

Rana Muhammad Saeed for Respondent No.4.

Date of hearing: 12th September, 2014.

JUDGMENNT

CH. MUHAMMAD MASOOD JAHANGIR, J.--- This petition is directed against the judgment dated 26-10-1999 passed by the learned Civil Judge, Lahore as well as judgment dated 12-5-2004 delivered by learned Additional District Judge, Lahore, whereby, the application for grant of temporary injunction filed by the plaintiff was dismissed.

1. The facts emanate from the case file are that the petitioner being plaintiff brought a suit for mandatory and permanent injunction against the respondents/defendants before the learned trial court on 19-10-1998. Along with the suit the petitioner also filed an application under Order XXXIX, rules 1 and 2 of C.P.C. for grant of injunctive order with the prayer that pending disposal of the main suit, defendants be restrained from encashing/making/receiving any payment against Bank guarantee dated 18-7-1996 in the sum of US Dollars. The suit as well as said application were contested by the defendants Nos.1 and 2 by filing their written statements as well as written replies. After hearing the parties, the learned trial court vide judgment and decree dated 26-10-1999 dismissed the application under Order XXXIX, rules 1 and 2 and also dismissed the suit while declaring the same to have become infructuous. Aggrieved, the petitioner/plaintiff preferred an appeal before the learned lower appellate court which was partially accepted to the extent that the judgment and decree dated 26-9-1999 vide which suit of the petitioner was dismissed was set aside and partially dismissed to the extent of dismissal of the stay application. Being dissatisfied the present revision petition has been moved.

2. Mr. Ghulam Mujtaba, Advocate has appeared on behalf of original learned counsel for the petitioner and made a request for an adjournment which has been opposed by the learned counsel for the respondent. The instant petition was filed 10 years ago against interlocutory order whereby the application for temporary injunction was dismissed and unfortunately could not be decided within such long period. No prior intimation was preferred on behalf of learned counsel for the petitioner for adjournment of the case and I am also not inclined to further adjourn this matter any further keeping in view; peculiar facts and circumstances thereof. So, I am left with no other option except to decide the same after hearing arguments of learned counsel for the respondent and perusal of the record.

3. The prayer clause of the plaint filed by the present petitioner is relevant, which is reproduced hereunder:---

"In view of the above submissions it is respectfully prayed that this honorable Court be pleased to pass a decree in favour of the plaintiff against the defendants in the following terms:---

(a) Defendants Nos.1 and 2 may be permanently restrained from encashing Bank Guarantee No.LG 1417/1996/0844 dated 18-7-1996 in the sum of US Dollars 153,606.60 and Bank Guarantee No.LG 1417/1996/6923 dated 7-8-1996 in the amount of US Dollars 49,999.88 issued by defendant No.4, and the same may be ordered to be returned to the plaintiff: Furthermore, defendants Nos.1 and 2 may also be directed to pay the plaintiff all costs, charges and expenses which it may have to incur to keep the guarantees alive.

(b) Defendants Nos.1 and 2 be permanently restrained from receiving any payment against the aforesaid guarantees from defendant No.4.

(c) Defendant No.4 be permanently restrained from making any payment against the aforesaid guarantee.

(d) Defendants be permanently restrained from taking any action against the plaintiff for recovery of the disputed freight, charges through encashment of the performance guarantee or otherwise.

(e) Any other relief which this honorable Court may deem fit under the facts and circumstances of the case may also be allowed.

(f) Costs of the suit may also be granted."

1. Along with the said prayer embodied in the plaint the plaintiff also filed application under Order XXXIX, rules 1 and 2 of C.P.C. with the prayer already mentioned in the preceding para of this judgment.

2. Arguments heard and record perused.

3. It is a settled principle of law that a Bank Guarantee is an independent contract between a party in whose favour the same is issued and the bank who issued the same and its encashment cannot be stopped or restrained by issuance of injunctive order on the reasons that a dispute is pending inter se the parties to the main agreement. This view is fortified from the judgment delivered by the august Supreme Court of Pakistan reported as "Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd." (PLD 2003 Supreme Court 191) (at page 201) wherein it has been held as follows:---

(i) The performance of guarantee stands on the footing similar to an irrevocable letter of credit of Bank, which gives performance guarantee must honour guarantee according to its terms. It is not concerned in the least with the relations between the supplier has performed his contracted obligation or not, nor with question whether the supplier is in default or not. The Bank must pay according to its guarantee all demand if so stipulated without proof or conditions exception is when there is a clear fraud of which Bank has notice.

(ii) There is an absolute obligation upon the banker to comply with the terms and conditions as enumerated in the guarantee and to pay the amount stipulated therein irrespective of any disputes there may be between buyer and seller as whether goods are up to contract or not.

(iii) The bank guarantee should be enforced on its own terms and against the bank guarantee would not affect or prejudice the case of contractor, ultimately the dispute is referred to arbitration for the reason, once the terms and conditions of the guarantee were fulfilled, the bank's liability under the guarantee was absolute and it was wholly independent of the dispute proposed to be raised.

(iv) The contract of bank guarantee is an independent contract between the bank and the party concerned and is to be worked out independently of the arising out of the work agreement between the parties concerned to such agreement and, therefore, the extent of the dispute and claims or counter were matters extraneous to the consideration of the question of enforcement of bank and were to be investigated by the arbitrator.

(v) Where the bank had undertaken to pay the stipulated sum to respondent, at any time, without demur, reservation, recourse, contest or protest, and without reference to the contractor, no interim injunction restraining payment under guarantee could be granted.

(vi) The Bank guarantee is an autonomous contract and imposes an obligation on the bank to fulfill the terms and the payment on the bank becomes due on the happening of a contingency on the occurrence of which guarantee becomes enforceable.

(vii) When once bank guarantee is discharged, the obligation of the bank ends and there is no question of going behind such discharge bank guarantee. Courts should refrain from probing into the nature of the transactions between the bank and customer, which led to the furnishing of the bank guarantee.

(viii) In the absence of any special equities and the absence of any clear fraud, the bank must pay on demand, if so stipulated and whether the terms are such must have to found out from the performance guarantee as such.

(ix) The unqualified terms of guarantee could not be interfered with by irrespective of the existence of dispute.

1. In the above referred case the august Supreme Court of Pakistan refused to grant injunctive order for restraining the party from encashment of Bank guarantee. The above referred view has also been followed by this court in the judgment reported as "Pakistan Petroleum Limited v. BBJ Pipe Industries (Pvt.) Ltd. and another" (2005 MLD 1710), while holding that court should not interfere with the performance of a bond or bank guarantee on the touchstone that a bank guarantee was not concerned with the underlying contract between the parties to the contract as it is quite distinct from the underlying contract and gave rise to a separate cause of action.

2. A Bank Guarantee is a special kind of contract depending upon the happening of a specific event and when once it is discharged, the guarantee vanishes off. The obligations emanating from the said guarantee are independent of the obligations bearing out of contract specifically entered between the parties.

2015 C L C 1232

[Lahore]

Before Ch. Muhammad Iqbal, J

KOHINOOR TEXTILE MILLS LIMITED through Group Director Finance----Petitioner

versus

BOARD OF REVENUE, PUNJAB through Senior Member and another----Respondents

Writ Petition No.15279 of 2013, heard on 24th March, 2015.

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

----Ss. 41 & 43-A---Punjab Land Acquisition Rules, 1983, R.15---General Clauses Act (X of 1897), S.21---Restrictions on transfer of acquired land---Authority competent to permit transfer---Locus poenitentiae, principle of---Applicability---Petitioner company acquired land for extension of its textile mills and entered into agreement with Provincial Government under S.41 of Land Acquisition Act, 1894; conveyance deed was executed which contained restrictions as to obtaining previous sanction of Government for transfer of acquired land through sale, mortgage, gift, etc.---Petitioner company submitted application to Provincial Board of Revenue seeking permission to sell acquired land, which was rejected---Company moved another application on the same subject which was accepted by the Provincial Board of Revenue---Application was moved by the company before DCO on ground that Government of Punjab had already granted permission to sell the acquired land out of which petitioner company intended to use a piece of land, but Addl. District Collector disallowed the application and withdrew the permission as granted by Board of Revenue on the ground that High Court had dismissed constitutional petition on the subject filed by the petitioner---Contention raised by petitioner company was that after grant of permission to sell acquired land, vested rights had accrued in favour of petitioner company and the same could not be withdrawn on basis of amendment in Rules which had no retrospective effect---Revenue authorities had no power to withdraw the permission---Law officer opposed said contentions pleading that S.43-A of Land Acquisition Act, 1894 had imposed restrictions on company for selling acquired land and only Government had authority to grant said permission, whereas said permission had been granted by Secretary Board of Revenue without lawful authority, and R.15 of Punjab Land Acquisition Rules, 1983 had provided certain conditions for disposal of acquired land---Validity---Agreement under S.41 of Land Acquisition Act, 1894 provided that company would not sell, exchange or otherwise dispose of acquired land except with prior approval of Government---Conveyance deed also imposed condition that petitioner company would not transfer said land or any part thereof by sale, mortgage, gift or otherwise, except with previous sanction of Provincial Government under S.43-A of Land Acquisition Act, 1894 read with R.15 of Punjab Land Acquisition Rules, 1983---Additional Secretary Revenue Department, without lawful authority and without getting permission from Provincial Government under S.43-A of Land Acquisition Act, 1894, had granted permission to petitioner company to sell the land---Additional Secretary had no power to give permission on behalf of Provincial Government---Order granting permission to sell acquired land was nullity in eye of law and did not confer any right to petitioner company---Petitioner company had not availed the permission to sell the land which later turned out not to have been granted under law, and the same was rightly withdrawn in terms of S.21 of General Clauses Act, 1897 and on the basis of principle of locus poenitentiae.

Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

(b) Locus poenitentiae, principle of---

----Applicability---Principle of locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law to the effect that order once passed becomes irrevocable and past and closed transaction.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

Ahmad Pervaiz Malik for Petitioner.

Ms. Asima Hamid, Addl. A.-G. for Respondents.

Date of hearing: 24th March, 2015.

2015 C L C 1242

[Lahore]

Before Shams Mehmood Mirza, J

Ch. AKHTAR HUSSAIN----Petitioner

versus

DISTRICT COORDINATION OFFICER and another----Respondents

Writ Petition No.5392 of 2007, decided on 27th May, 2014.

National Highway Authority Act (XI of 1991)---

----S. II(J)---Petroleum Rules, 1937, R.115 (10)---National Highway Authority and Stratagic Road Controls Rules, 1998 [as amended in 2002], Rr.3, 6, 11 & 12---Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, 2002, Chapter IV, Regulation 1---Installation of CNG Station (Using Right of Way on the Road under Control of National Highway Authority)---Requirement of NOC from National Highway Authority---Scope---Under Rr.3, 6, 11 & 12 of the National Highway and Strategic Roads Control Rules, 1998 (as amended in 2002), any person desirous of, inter alia, carrying out commercial activity had to obtain the consent in writing of the National Highway Authority---Petitioner's CNG filling station used the approaches from the Road under the control and supervision of National Highway Authority and was, therefore, amenable to all restrictions, consents, authorizations, Regulatory Framework and Standard Operating Procedures of National Highway Authority as prescribed by National Highway Authority Act, 1991 and the Rules framed thereunder.

Muhammad Hassan Bilal Buzdar for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents Nos.1 and 2.

Muhammad Javed Saeed Pirzada, A.A.-G.

2015 C L C 1260

[Lahore]

Before Atir Mahmood, J

Mst. BAKHAT BIBI----Petitioner

versus

BAHADUR ALI and others----Respondents

Writ Petition No.1479 of 2013, decided on 13th August, 2014.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minor---Welfare of minor---Statement of minor---Scope---Mother filed an application for custody of minor daughter staying with the father while father moved an application for custody of minor daughter staying with the mother---Both the applications for custody of minor daughters were dismissed concurrently---Validity---Guardian Court had emphasized upon the statement of minor daughter who was 11 years of age---Both the courts below had committed illegalities while relying upon the statement of minor daughter which was recorded on oath---Guardian Court was not competent to record the statement of a minor on oath who was not a witness and in a position to appreciate the legal implications---Minor was neither a witness nor she could be cross-examined by the other party---Minor daughter was mentally poisoned against her mother---Poisoning the mind of minor against her mother or father was itself a disqualification to retain the custody of minor---No one could be a better guardian and custodian of a minor than the real mother---Financial status of father did not give him any preference over the mother---Father was sole responsible to cater the needs of his children irrespective of their place of residence or custody---Togetherness of minor children could not be bifurcated and their welfare had to be taken into consideration---Impugned judgments passed by the courts below were suffering from misreading and non-reading of evidence---Both the courts below had committed the miscarriage of justice---Impugned judgments passed by the courts below were not sustainable in the eye of law which were set aside and application for custody of minor daughter moved by the mother was accepted---Father was directed to handover the custody of minor daughter to the mother and Guardian Court was directed to arrange fortnightly schedule of meeting of minor daughter with her father---Constitutional petition was accepted in circumstances.

Tahira Bibi v. Muhammad Saeed and another 2009 MLD 33 and Muhammad Ashraf v. Mst. Farzana Bibi 1997 MLD 520 ref.

Muhammad Ashraf v. Mst. Farzana Bibi 1997 MLD 520 and Mst. Nazli v. Muhammad Ilyas and another 2010 MLD 477 rel.

Sarfraz Ahmed Cheema for Petitioner.

Luqman Ayub for Respondent No.1.

Date of hearing: 7th May, 2014.

2015 C L C 1267

[Lahore]

Before Ijaz ul Ahsan and Shujaat Ali Khan, JJ

MUNICIPAL CORPORATION, FAISALABAD----Appellant

versus

PROVINCE OF PUNJAB and others----Respondents

ICA No.356 of 2003, decided on 30th March, 2015.

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

----S. 54---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Transfer of property---Consideration amount, payment of---Proof---Grievance of Municipal Corporation was that authorities did not transfer land in question despite partial payment was made---Validity---For a valid transaction, payment of amount of consideration was one of the important ingredients in terms of S.54 of Transfer of Property Act, 1882, and in case the same was not paid, the transaction carried no weight in the eye of law---Neither anything was deposited by appellant towards part payment of consideration amount nor appellant was interested to continue with the sale---No step was taken towards completion of sale by appellant, thus Municipal Corporation (appellant) had no locus standi to file Constitutional petition before High Court---If there was a dispute regarding payment of partial amount by appellant, the same could not be decided by High Court in exercise of jurisdiction vested under Art.199 of the Constitution, rather for such purpose aggrieved party was to approach court of competent jurisdiction---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Muhammad Yaqub and 13 others v. The Municipal Committee, Lyallpur PLD 1971 Lah. 664 and Mirza Sardar Muhammad and others v. Pakistan and others 1970 Law Notes 736 ref.

Ghulam Mustafa through L.Rs. and others v. Muhammad Yahya and others 2013 SCMR 684; Anwar Sajid v. Abdul Rashid Khan and another 2011 SCMR 958 and SAEE by Legal Heirs and 2 others v. Mst. Sultan Bibi by Legal Heirs and 14 others 2003 SCMR 810 rel.

Ch. Ali Muhammad for Appellant.

Muhammad Azeem Malik, Addl. Advocte-General for Respondents.

Date of hearing: 30th March, 2015.

2015 C L C 1295

[Lahore]

Before Atir Mahmood, J

IDREES AHMED AFTAB----Petitioner

versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.7639 of 2014, decided on 6th November, 2014.

National Electric Power Regulatory Authority Licencing (Generation) Rules, 2000---

----R. 3---Punjab Power Generation Policy, 2006 (as revised in 2009), Paras. 9 & 23(b)---Constitution of Pakistan, Art.199---Constitutional petition---Power generation projects---Letter of Interest, issuance of---Grievance of petitioner was that provincial government had issued Letter of Interest in favour of respondent company without any process of selection or competitive bidding and were inclined to lease out a piece of land to respondent for installation of Solar Power Plant (900 MW)---Plea raised by authorities was that petitioner had no locus standi to file petition---Validity---Power generation projects were divided under Punjab Power Generation Policy, 2006 (as revised in year 2009) in two types, i.e. the projects for which feasibility study had already been conducted and projects for which feasibility study was not done and provided for different modes for both types of project; in former type of projects, policy was very much clear that bids would be solicited but in latter type, i.e. raw sites, policy did not ask for calling for bids rather it unambiguously stated that government would initiate feasibility study work on raw sites for exploiting available hydel, oil, gas, coal, bagasse, solar and wind potential---Grievance raised by petitioner was pre-mature and at such stage petitioner had no personal grievance and he could neither be considered as an aggrieved person nor had any cause of action to file petition--- If feasibility study conducted by respondent was accepted by panel of experts of provincial government and respondent would apply to NEPRA for grant of generation licence and for fixation of tariff, then at that stage petitioner would be at liberty to raise his grievance before Authority which would be dealt with by Authority in accordance with law--- Petition was dismissed in circumstances.

Ms. Shehla Raza and others v. WAPDA PLD 1994 SC 693; Dr. Akhtar Hussain and others v. Federation of Pakistan and others 2012 SCMR 455; Dr. Imran Khatak and another v. Ms. Sofia Waqar, P.S. to Chief Justice and others 2014 SCMR 122; Suo Motu Case No.18/2010 2014 SCMR 585; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; PLD 2008 SC 673 and Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219 ref.

Jawad Hassan for Petitioner.

Khawaja Haris Ahmed, Syed Nayyar Abbas Rizvi, Addl. A.-G. and Muhammad Tahir Saeed Ramay, Asstt. A.-G. for Respondents Nos.1 to 4.

Ms. Afifa Jabeen for Respondent No.2.

Najam Ahmad Shah for Respondent No.3.

Ms. Samiya Awais for Respondent No.4.

Feisal Hussain Naqvi for Respondent No.7.

Date of hearing: 6th November, 2014.

2015 C L C 1320

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD QAYYUM through L.Rs. and 6 others----Petitioners

versus

HAQ NAWAZ DOGAR through Dr. Ali Naqi and another----Respondents

Civil Revision No.2994 of 2004, heard on 13th April, 2015.

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

----O. XXXII, R.4, Ss.12(2) & 114---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Appointment of officer of court as guardian ad litem of minors---Guardian ad litem---Status and duties---Negligence of guardian ad litem---Requirement of proof---Petitioners (minors) filed application under Ss.12(2) & 114. C.P.C. for setting aside ex parte decree claiming that guardian ad litem appointed by trial court had failed to perform his duties and the decree was obtained by practising fraud with the court, and the trial court, after hearing parties, dismissed the suit in a summary manner---Contentions raised by minors were that appointment of guardian ad litem was against law as petitioner/mother of minors was alive and trial court did not ask the mother for the same, and that guardian ad litem/Reader of the court failed to defend minors in suit for specific performance of agreement by not cross-examining the two witnesses---Respondents took plea that court had issued notices to mother of minors but she failed to appear and the court was bound to appoint guardian ad litem under O.XXXII, R.4, C.P.C. where there was no relative or suitable person was available, and that the present applications under S.12(2) read with S.114, C.P.C. were not maintainable as minors were bound to file appeal---Validity---Record did not show that trial court had made serious effort for procuring personal attendance of minors' mother---Guardian ad litem had failed to cross-examine two witnesses who had deposed against minors' interest---Guardian ad litem was under a duty not to act against minors' interest and if decree was passed due to negligence of guardian ad litem, minors were not bound by the same---Petitioners (minors) had right to file appeal against ex parte judgment and decree, but where judgment debtors claimed that decree was the outcome of fraud, application under S.12(2), C.P.C. was maintainable---In case of negligence of guardian ad litem, negligence was not necessary to be proved---Guardian ad litem was trustee of rights of minors---Guardian ad litem having failed to look after or safeguard rights of minors, minors should have been permitted to defend their case through their mother---Trial court was not justified in dismissing application on behalf of minors---High Court accepted application under S.12(2), C.P.C., set aside judgment and decree of trial court and remanded case to trial court for decision afresh---Revision petition was accepted in circumstances.

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

----O. XXXII, R. 4----Guardian ad litem---Status and duties---Negligence of guardian ad litem---Requirements of proof---Guardian ad litem is trustee of rights of minors---Guardian ad litem is under a duty not to act against minors' interest and if decree is passed due to negligence of guardian ad litem, the minors are not bound by the same---In case of negligence of guardian ad litem, proof of negligence was not necessary to be proved.

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

----O. XXXII, R.4---Suit by or against minors by guardian ad litem---Representation of minors in suit through mother---Scope---Minors should have been permitted to defend their case through mother if the guardian ad litem had failed to look after or safeguard the interest of minors.

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

----Ss. 12(2) & 96----Application under S.12(2), C.P.C. against ex parte decree on ground of fraud---Maintainability---Petitioners though had right to file appeal against ex parte judgment and decree, but where judgment debtors claimed that decree was the outcome of fraud, application under S.12(2), C.P.C. was maintainable.

Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300; Dost Muhammad (deceased) through L.Rs. v. Muhammad Yousaf and others 2008 SCMR 1339; Muhammad Saleem Qureshi v. Vth Additional District and Sessions Judge, Karachi East and 2 others 2014 MLD 405; Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Amjad Ikram v. Mst. Asiya Kasuar and 2 others 2015 SCMR 1; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Bhagat Ram v. Buta Singh and another AIR 1935 Lahore 349 and Kale Khan v. Masud Husain AIR 1941 Oudh 223 rel.

Malik Amjad Pervaiz for Petitioner.

Nisar Ahmad Baryar and Iftikhar Ahmad Mian for Respondents.

Date of hearing: 13th April, 2015.

2015 C L C 1331

[Lahore]

Before Abdus Sattar Asghar, J

IFTIKHAR AHMAD KHAN----Petitioner

versus

MUHAMMAD QAYYUM and others----Respondents

Writ Petition No.16912 of 2013, decided on 3rd July, 2013.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Application for eviction of tenant---Impleadment of party---Ejectment petition was accepted and appeal was filed wherein an application for impleadment as a party was moved which was dismissed---Validity---Suit for declaration was pending adjudication and dispute of title of the property had yet to be resolved by the court of competent jurisdiction---Applicant intended to join the proceedings in the appeal not as a co-sharer with the landlords rather on the basis of having separate title---Forum of Additional District Judge was not available to the applicant to assert his ownership or title---Appellate Court had rightly dismissed the application and impugned order did not suffer from any misreading or non-reading of the material available on the record---Applicant had no case to invoke the constitutional jurisdiction in the absence of any perversity, jurisdictional error, factual or legal infirmity or procedural irregularity in the impugned order---Constitutional petition was dismissed in limine.

Raza Hussain v. District Judge, Vehari and others 1986 SCMR 1267 and Nawabuddin v. Qamar Oil Mills through its Proprietor represented by his Legal Heirs and others 1989 SCMR 205 rel.

Waseem Ibne Saeed for Petitioner.

2015 C L C 1347

[Lahore]

Before Arshad Mahmood Tabassum, J

SAJJAD HUSSAIN alias ALLAH DITTA KHAN----Petitioner

versus

JUDGE FAMILY COURT, MAILSI and another ----Respondents

Writ Petition No.4487 of 2007, heard on 4th June, 2014.

Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2---Muslim Family Laws Ordinance (VIII of 1961), S.6---Constitution of Pakistan, Art.199---Constitutional petition---Laches, principle of---Applicability---Ground for dissolution of marriage being cruelty, non-provision of maintenance and second marriage by husband---Second marriage by husband---Requirements---Return of benefits received by wife---Scope---Contention of the wife was that husband had contracted second marriage without her consent---Suit was decreed by the Trial Court---Validity---Not only permission of first wife was required for contracting second marriage but permission of Arbitration Council in writing was also required---Husband had contracted second marriage during subsistence of his first marriage without obtaining any permission from his wife or from the union council---Wife had not claimed decree for dissolution of marriage on the basis of khula but she had claimed for dissolution of marriage on the grounds of cruelty, non-provision of maintenance and contracting of second marriage without her permission---Contracting second marriage without prior permission in writing from Arbitration Council was prohibited---Contracting second marriage alone was sufficient for wife to justify seeking decree for dissolution of marriage---No occasion existed for the Family Court to grant decree for dissolution of marriage on the basis of khula when wife had proved that husband had contracted second marriage without her permission and she had not claimed for dissolution of marriage on the basis of khula---Family Court had rightly granted decree for dissolution of marriage on the grounds urged in the plaint---When decree for dissolution of marriage had been passed on any of the grounds enumerated in S.2 of Dissolution of Muslim Marriages Act, 1939 then wife was not required to return the benefits to the husband which she had received due to her marriage with him---Land which was given to the wife by way of gift was not in lieu of dower---Family Court had properly appreciated the evidence produced by the parties---Constitutional petition was liable to be dismissed as same suffered from laches---Constitutional petition was dismissed in circumstances.

Mirza Maqbool Elahi through legal heirs and 8 others v. Capital Development Authority Islamabad and 3 others 1998 SCMR 1074 and Shamas Din v. Aman Ullah and 3 others PLD 1987 Lah. 471 rel.

Rao Muhammad Shafique Alam and Syed Tajammal Hussain Bokhari for Petitioner.

Muhammad Ramzan Khalid Joiya for Respondent No.2.

Date of hearing: 4th June, 2014.

2015 C L C 1378

[Lahore]

Before Ali Akbar Qureshi, J

Messrs COLONY TEXTILE MILLS LIMITED through Chief Executive----Appellant

versus

WATER AND POWER DEVELOPMENT AUTHORITY (Defunct MESCO) through Chairman----Respondent

R.S.A. No.15 of 2003, heard on 13th April, 2015.

(a) Jurisdiction---

----Primary duty of court that it should first assume jurisdiction before proceeding further with the case.

(b) Administration of justice---

----Good faith, due diligence, utmost care and caution were mix questions of facts and law and could only be decided by recording of evidence.

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

----S. 14---Civil Procedure Code (V of 1908), O. VII, R. 10---Limitation---Exclusion of time of proceedings---Bona fide consumption of time in court having no jurisdiction could only be proved through actions---Filing of plaint before a court of competent jurisdiction would be continuity of previous suit.

Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144; Princess Zohra Bakhte v. Shaukat Ali Khan and another 1988 CLC 332; Trustees of the Port of Karachi v. Messrs Fatima Sugar Mills Ltd. and 2 others PLD 2011 Kar. 426 and Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 ref. and rel.

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

----S. 115---Revision---Scope---If concurrent findings were result of misreading and non-reading of evidence or jurisdictional defect, same can be corrected while exercising revisional jurisdiction.

Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others 2014 SCMR 914 rel.

Muhammad Waseem Shahab for Appellant.

Amir Aziz Qazi for Respondent.

Date of hearing: 13th April, 2015.

2015 C L C 1387

[Lahore]

Before Khalid Mahmood Malik, J

WAHID BAKHSH and others----Petitioners

versus

AMEER BAKHSH and others----Respondents

C.R.No.702-D of 1991, decided on 26th January, 2015.

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

----Arts. 132 & 133---Cross-Examination---If portion of statement in chief was not cross-examined, such portion deemed to be admitted by other side.

Hafiz Tasadduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 rel.

(b) Limitation---

----Inheritance---Scope---Question of limitation does not arise in case of controversy relating to inheritance.

Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----Art. 70---Oral evidence in presence of documentary evidence---Evidentiary value---Mere oral assertion in presence of documentary evidence had no value---Oral evidence could not exclude documentary evidence.

Elahi Bakhsh through legal heirs and others v. Muhammad lqbal and another 2014 SCMR 1217 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

Ahmad Nawaz Khan for Petitioners.

Mian Babar Saleem for Respondents.

Date of hearing: 26th January, 2015.

2015 C L C 1423

[Lahore]

Before Ali Akbar Qureshi, J

KINNAIRD COLLEGE FOR WOMEN through Principal----Petitioner

versus

MARIA ISABEL MALDONADO GARCIA----Respondent

C.R.No.1783 of 2015, heard on 15th June, 2015.

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

----O. VII, R. 11---Constitution of Pakistan, Art.10A---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plaint, rejection of---Right of fair trial---Scope---Contents of plaint had disclosed a cause of action and same could only be decided by recording evidence of the parties---Law would favour adjudication on merits---Right of fair trial should be provided to the parties---Trial Court had rightly dismissed application for rejection of plaint---No jurisdictional defect or legal infirmity was pointed out in the impugned order passed by the Trial Court---Revision was dismissed in circumstances.

Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92; Muhammad Iqbal v. Altaf Hussain and others 2011 CLC 250; Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others 2000 CLC 1362; Messrs Karsaz Construction Company through Partner Muhammad Hanif v. Pakistan through Secretary, Ministry of Defence, Islamabad and another 1999 CLC 1719; Muhammad Hamdan Shaikh v. The Chairman, Board of Secondary Education, Nazimabad, Karachi and 2 others PLD 1998 Kar. 59; Messrs. Ghee Corporation of Pakistan (Pvt.) Ltd. v. Messrs Ashraf & Sons through its Proprietor 1995 MLD 390; Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi PLD 1982 Kar. 313 and Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Kar. 640 distinguished.

(b) Administration of justice---

----Law would favour adjudication on merits.

(c) Constitution of Pakistan---

----Art. 10A---Right of fair trial---Scope--- Right of fair trial should be provided to the parties.

Jawwad Hassan for Petitioner.

Nemo for Respondent.

Date of hearing: 15th June, 2015.

2015 C L C 1428

[Lahore]

Before Amin-ud-Din Khan, J

Doctor IMRAN MANZOOR and another----Applicants

versus

Mst. NIGHAT BAHAR KHANUM and 10 others----Respondents

Civil Miscellaneous Nos.344 and 390 of 2005 in Civil Revision No.120 of 1992, heard on 1st April, 2015.

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

----S. 12(2)---Application for setting aside judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Scope---Person whose rights were involved in the lis could file an application under S.12(2) of C.P.C., if judgment and decree had been procured by practising fraud, misrepresentation or was result of want of jurisdiction.

Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586 rel.

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

----S. 115---Revision---Scope---When proceedings of original suit were not before revisional court and only a remand order passed by first appellate court was before revisional court, such court had no jurisdiction to restore the decree passed by Trial Court and to affirm the same by its own judgment.

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

----S. 12(2)---Application for setting aside judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Scope---If any order/judgment or decree had been procured without impleading parties whose rights were involved, such decree could not remain in field if it had injured the right of any person who was not a party to that proceedings.

Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 ref.

Ch. Muhammad Hussain Jahania and Ch. Muhammad Riaz Jahania for Applicants.

Ch. Abdul Sattar Goraya for Respondents Nos.1 to 7.

Mirza Saleem Baig, Addl. A.-G. Punjab for Respondents Nos.8 to 10.

Respondent No.11: Ex parte.

Date of hearing: 1st April, 2015.

2015 C L C 1441

[Lahore]

Before Shahid Jamil Khan, J

SAHIWAL COLD STORAGE ASSOCIATION----Petitioner

versus

AGRICULTURE DEPARTMANT----Respondent

Writ Petition No.16499 of 2012, decided on 12th May, 2015.

Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----Ss. 4, 6 & 19---Punjab Agricultural Produce Market (General) Rules, 1979, R. 36---Constitution of Pakistan, Art. 199---Constitutional petition---Notice of recovery---Coercive measures, restraint order from---Petitioner was an Association of cold storage owners who were aggrieved of notices issued by authorities for recovery of professional tax from them---Validity---For the purpose of license and levy of fee, it was to establish that sale and purchase of agricultural produce was being carried on at a place within the Notified Market Area---Mere existence of a business of cold storage did not make it necessary for owner to obtain licence as dealer---Fact whether cold storages owned by members of petitioner (Association) were being used for sale and purchase of agricultural produce was to be determined by authorities under Punjab Agricultural Produce Markets Ordinance, 1978, after due process and in accordance with law---High Court referred the matter to Provincial government to decide it by considering each case independently to determine whether cold storage was being used for sale and purchase of agricultural produce or not---High Court restrained the authorities from taking any coercive measures under notices in question---Petition was disposed of accordingly.

PLD 2014 SC 389 ref.

Taffazal Haider Rizvi for Petitioner.

Adnan Afzal for Respondent.

Muhammad Hammad Khan Rai, Asstt. A.-G., Punjab.

2015 C L C 1470

[Lahore]

Before Shams Mehmood Mirza, J

SAJID MAHMOOD and others----Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 2 others----Respondents

W.P. No.27113 of 2011, decided on 20th March, 2015.

Lahore Development Authority Act (XXX of 1975)---

----Ss. 17, 28, 44 & 45---Constitution of Pakistan, Art.199---Constitutional petition---Failure to construct building within specified time---Fine, imposition of---Petitioners were owners of plot and they failed to raise construction over the same within stipulated period for which Lahore Development Authority imposed penalty upon them---Plea raised by petitioners was that Lahore Development Authority could not impose penalty upto five years---Validity---Letter from the Authority stipulated that penalties could only be levied upto five years---Amount of penalties calculated at the rate mentioned in the said letter came to Rs.1,556,545---Demand by Lahore Development Authority for imposition of penalties beyond the fifth year was an afterthought and as such travelled outside the scope and intent of said letter---Petitioners were willing to make payment of penalty as per the letter from Authority---High Court directed Lahore Development Authority to deliver possession memo. to petitioners specifying details of property handed over to petitioner after payment by petitioner of Rs.1,556,545 within a period of two months---Petitioners were directed by High Court to construct building on the plot in question within a period of four years from the date of execution of possession memo.---Petition was allowed accordingly.

Nagina Silk Mill, Lyallpur v. (1) The Income Tax Officer, A-Ward Lyallpur and (2) The Income-Tax Appellate Tribunal, Pakistan PLD 1963 SC 322; Ishrat Jehan and 5 others v. Province of Punjab through Secretary Housing, Physical and Environmental Planning Department, Lahore and 5 others 2009 YLR 2349 and Noor-ul-Hassan Khan v. Lahore Development Authority through Chairman and another 2013 CLC 100 ref.

Shahid Hamid and Ayesha Hamid for Petitioners.

Waqar A. Sheikh for Respondents.

2015 C L C 1477

[Lahore]

Before Syed Mansoor Ali Shah, J

MANSOOR SARWAR KHAN, Advocate High Court, President Pakistan Tehreek-e-Insaf Central Region, Punjab----Petitioner

versus

ELECTION COMMISSION OF PAKISTAN through Chairman, Islamabad

and 2 others----Respondents

W.P.No.15065 and C.M. No.1914 of 2015, heard on 25th May, 2015.

(a) Constitution of Pakistan---

----Preamble & Arts. 17(2), 2A, 15,16,19 & 19A---Preservation of democracy---Political freedoms under the Fundamental Rights provided in the Constitution---Scope and nature---Significance of political parties to the fundamental freedoms enshrined in Constitution---Scope---Objectives Resolution and the Preamble to the Constitution underlined the Pakistan is a representative democracy, wherein political justice was guaranteed and the State is dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny---Parliamentary democracy is actualized through participatory and representative political process of elections and going to polls was an expression of democracy---Cluster of freedoms (Fundamental Rights) under the Constitution emboldened such Constitutional promise and freedoms of movement, speech, assembly, association and information enjoyed a unique symbiotic relationship which nurtured democracy and strengthened political institutions---Articles 15, 16 19 & 19A of the Constitution bolstered political associations by allowing its members the right of movement across the country, the freedom of speech to express and disseminate their political views, the right to hold lawful assemblies to meet, debate and share their political ideas and by giving them access to information---Under Art.17(2) of the Constitution every citizen, not being in the service of Pakistan, had the right to form or be a member of a political party subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and while Art.17(2) of the Constitution literally provided for the right to formation and membership of a political party; it had deeper political and democratic undertones, which though unwritten, began to surface when purposively contextualized in the background of Constitutional ethos of political justice and representative democracy---Fundamental rights were not static but were pregnant with immense energy to address every growing complexities of modern democracy and such unwritten constitutional nuances, waiting to be discovered, made the Constitution an evergreen and a living document---Right to form or be a member of a political party was not limited to clerical formation of a political party or restricted to the secretarial act of membership of a political party but instead carried within it the right of the political party to be able to actively participate in the political life of the country, to be able to freely profess and propagate its political ideology, to be able to mobilize its electoral campaign, to be able to reach out to the people, to be able to participate in the elections and to be able to form government---Jurisprudence had recognized such penumbras around the Fundamental Rights and Art.17(2) of the Constitution has been held to guarantee not only the right to form or be a member of a political party but also to operate as a political party---Forming of a political party necessarily implied that right of carrying on of all its activities as otherwise the formation itself would be of no consequence---Functioning was implicit in the formation of a political party and Art.17(2) of the Constitution provided a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governance of Pakistan through political activity relating thereto---Article 17(2) of the Constitution along with the cluster of freedoms and the evolution of jurisprudence provided a Constitutional springboard for a robust and dynamic political environment, where citizens could profess their political choices, participate in political activity, have access to information so as to meaningfully oppose irrational and bad policies of the government and on the whole be active members of the political governance of the nation---Entire political architecture and the construct of Constitutional freedoms rested on the existence of spirited and dynamic political parties and political parties were, therefore, the engines of democracy in any country.

Benazir Bhutto cases, PLD 1988 SC 416; PLD 1989 SC 66; PLD 2002 SC 994; PLD 2003 SC 955; PLD 1993 SC 473; Judicial Review of Public Actions by Justice (Retd.) Fazal Karim Pp.715-716; PLD 2012 SC 681 and PLD 1964 SC 673 rel.

(b) Constitution of Pakistan---

----Preamble---Unwritten constitutional nuances, waiting to be discovered make the Constitution, an evergreen and a living document.

(c) Political Parties Order (C.Es.O.18 of 2002)---

----Preamble & Art.2(d)---Representative democracy---Political parties as engines of democracy in any country---Importance and significance of political parties in a modern Constitutional state---Notion of existence of political parties as being integral to a representative democracy along with advantages of political parties, discussed.

PLD 1964 SC 673; PLD 1993 SC 473; PLD 1988 SC 416; Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad PLD 2009 SC 107; Jammu and Kashmir Tehrik Ammal Party and 11 others v. The Azad State of Jammu and Kashmir and another PLD 1985 Azad J&K 95; All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others 2012 CLC 714; IDEA (International Institute for Democracy and Electoral Assistance) cliffsnotes.com, Shmoop.com, Parliament UK; Speaker's Conference on Parliamentary Representation www.Parliament. UK http://www.Parliament. UK; Report by Alexandra Runswick and PLD 2012 SC 681 rel.

(d) Constitution of Pakistan---

----Arts. 17(2), 218(3), 260, 15, 16, 19, 19A & 199---Representation of the People Act (LXXXV of 1976), Ss.81, 83, 78, 79, 81, 92, 103 & 103AA---Election Commission of Pakistan, Notifications No.F.8(4)/2013-Cord. dated 7-5-2015 and No.F.8(4)/2013-Cord(I) dated 16-4-2015---Constitutional petition---Constitutional duty of the Election Commission under Art.218(3) of the Constitution to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against---Scope and nature---Fundamental rights of freedom of association and to form a political party---Scope, nature and interpretation of Art.17(2) of the Constitution---Nature of political freedoms enshrined in the Constitution---Petitioner impugned Election Commission of Pakistan's ("ECP") Notification No.F.8(4)/2013-Cord. dated 7-5-2015 whereby, inter alia, Members of the National and Provincial Assemblies of Pakistan had been restricted from visiting the area of any constituency after the issuance of bye-election schedule---Question before the High Court was whether it was Constitutionally permissible for the Election Commission of Pakistan to impose restriction on the physical movement of a political leader or any member of a political party, who happened to hold a public office, to visit any area of a constituency for the purposes of electioneering after the election schedule had been announced---Held, that Art.17(2) of the Constitution read with the cluster of other freedoms and the jurisprudence evolved over the years contemplated and mandated that a political party through its members could be involved in electioneering and canvassing and it could organize election campaigns and go on hustings to drum up support for their political party---Party leader(s), its members/political workers were an integral constituent of a political party and enjoyed the same freedom of movement, speech, association and information as the political party and the existence of a political party and its smooth functioning was a core Constitutional value of liberal democracy other than reasonable restrictions in the interest of the sovereignty or integrity of Pakistan, any other restriction that abridged or, in any manner, impaired the free functioning of a political party or restricted access of party leaders and members of the political party from reaching the electorate, was a flagrant disregard of the cluster of Fundamental Rights that went to the core of a robust and working Constitutional democracy---While the Election Commission of Pakistan was empowered to take the necessary steps to ensure free and fair elections, however, such empowerment could not overreach or override the Constitutional protections under Arts.15, 16, 17(2), 19 & 19A of the Constitution and the impugned restriction imposed by Election Commission of Pakistan under Art.218(3) of the Constitution was based on an assumption that the public office holders of a political party may indulge in corrupt or illegal practice by utilizing public funds to promote their political party and unduly influence the electorate by making assurance at the expense of the public resources---Such assumption could not deprive the political party and its members or the voters of a constituency from campaigning and canvassing for the elections or bye-elections in any part of the country or the constituency---Political leader or political worker after the elections might hold a public office but that was because of his political affiliation with the political party and because of his own political character and identity, hence a political leader or a political worker could not be stripped of his political character or identity and any step or action that denuded the political and Constitutional character of a political party or a political worker, would offend the cluster of Fundamental rights under Arts.15, 16, 17, 19 & 19A of the Constitution---Only restriction under law was contained in S.84 of the Representation of the People Act, 1976 along with restrictions provided under Ss.83-A & 85 of the said Act which provided that no person shall hold or convene public meetings in a constituency during a period of forty eight hours ending at midnight following conclusion of poll for any election in the constituency and apprehensions for the Election Commission of Pakistan were addressed in Ss.78, 79, 81, 82, 83, 92, 103 & 103AA of the Representation of the People Act, 1976 which provided various remedies in case public office holders abused their public position or public funds during electioneering---Election Commission of Pakistan could lay down guidelines to achieve fair and transparent elections and to avoid corrupt practices but could not restrict political activity or make a political party dysfunctional by putting restrictions on the movement of its leaders or members because such political freedom was grounded in Fundamental rights guaranteed under the Constitution----Public office holders like the Prime Minister, Chief Minister, Federal Ministers, State Ministers and Advisors to the President also wore a political hat and belonged to a political party and were in service of Pakistan in terms of Art.260 of the Constitution and hence they were free to attend to their political obligations of running a political party and were fully entitled to the Fundamental right guaranteed to them under Art.17(2) of the Constitution---Political party had to freely conduct electioneering, canvassing and the electoral campaign and such political activism was the foundation of modern parliamentary democracy and could not be restricted by Election Commission of Pakistan---Issue of abuse of public office and public funds on a case to case basis could be easily addressed under Representation of the People Act, 1976 and the law would take its own course, when any such violation took place---In an open political space and a vigilant media, such violations could not remain hidden and were likely to be immediately highlighted by opposing parties and therefore, to restrict the party leaders, party workers or any public office holders namely: Prime Minister, Chairman/Deputy Chairman Senate, Speakers of Assemblies, Federal Ministers, Ministers of State, Chief Minister, Provincial Ministers and Advisors to the Prime Minister and the Chief Minister and other public office holders, except the President, who was an emblem of unity of the Federation and was non-partisan, to visit the area of the constituency during electioneering offended the Fundamental Rights under Arts.15, 16, 17(2) 19 & 19A of the Constitution---Impugned restriction imposed by Election Commission of Pakistan, therefore, struck at the root of the fundamental constitutional value of democracy and was, therefore, not permissible---High Court declared Cls.(v) & (vi) of the impugned notifications, to the extent of the restriction of not visiting the area of the constituency, to be unconstitutional and illegal and struck down the same with the observation that the remaining part of the said clauses and the Notifications as a whole, shall hold field and remain binding under the law---Constitutional petition was allowed, accordingly.

Workers' Party Pakistan through Akhtar Hussain Advocate General Secretary and 6 others v. Federation of Pakistan PLD 2012 SC 681; Ghasi Ram v. Dal Singh and others AIR 1968 SC 1191; Krishnamukhlal Bhagwandas. Shroff v. Sham Bhagwan Kashidas and others AIR 1974 Gujarat 1; Charon Lal Sahu v. Giani Zail Singh and another AIR 1984 SC 309; P.L. Mehra and others v. D.R. Khanna etc. AIR 1971 Delhi 1 and Dr. Y. Sivaji v. The Chief Election Commissioner, New Delhi and others AIR 1996 Andhra Pradesh 336 ref.

Judicial Review of Public Actions by Justice (Retd.) Fazal Karim. P.715 (also see Benazir Bhutto cases, PLD 1988 SC 416; PLD 1989 SC 66, PLD 2002 SC 994; PLD 2011 SC 955; PLD 1993 SC 473; Judicial Review of Public Actions by Justice (Retd) Fazal Karim. Pp.715-716; PLD 2012 SC 681; PLD 1964 SC 673; Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad PLD 2009 SC 107; Jammu and Kashmir Tehrik Ammal Par and 11 others v. The Azad State of Jammu and Kashmir and another PLD 1985 Azad J&K 95; All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others 2012 CLC 714; IDEA (International Institute for Democracy and Electoral Assistance) cliffsnotes.com, Shmoop.com, Parliament UK and Speaker's Conference on Parliamentary Representation www.Parliament. UK http://www.Parliament. UK rel.

(e) Constitution of Pakistan---

----Arts. 218(3), 17(2), 260, 15, 16, 19 & 19A---Representation of the People Act (LXXXV of 1976), Ss.81, 83, 78, 79, 81, 92, 102 & 103AA---Election Commission of Pakistan Notifications No.F8(4)/2013-Cord. Dated 7-5-2015 and F8(4)/2013-Cord.(1) dated 16-4-2015---Constitutional petition---Election Commission of Pakistan to organize and conduct elections and to make such arrangements as are necessary to ensure that the election was conducted honestly, justly, fairly and in accordance with law, and that corrupt practices were guarded against---Power of Election Commission of Pakistan to impose restriction on movement of party workers, party leaders, Prime Minister, Chief Minister, Federal Ministers, State Ministers, Advisors to the President and other public office holders from visiting constituencies where election schedule had been announced---Scope---Election Commission of Pakistan could lay down guidelines to achieve fair and transparent elections and to avoid corrupt practices but could not restrict political activity or make a political party dysfunctional by putting restrictions on the movement of its leaders or members because such a political freedom was grounded in fundamental rights guaranteed under the Constitution---Public office holders like the Prime Minister, Chief Minister, Federal Ministers, State Ministers and Advisors to the President also wore a political hat and belonged to a political party and were not in the service of Pakistan in terms of Art.260 of the Constitution; hence they were free to attend to their political obligations of running a political party and were fully entitled to the fundamental right guaranteed to them under Art.17(2) of the Constitution---Political party had to freely conduct electioneering, canvassing and the electoral campaign and such political activism was the foundation of modern parliamentary democracy and cannot be restricted by Election Commission of Pakistan---Issue of abuse of public office and public funds on a case to case basis could be easily addressed under Representation of the People Act, 1976 and the law would take its own course, when any such violation took place---In an open political space and a vigilant media, such violations could not remain hidden and were likely to be immediately highlighted by the opposing parties and therefore to restrict the party leaders, party workers or any public office holders namely: Prime Minister, Chairman/Deputy Chairman Senate, Speakers of Assemblies, Federal Ministers, Ministers of State, Chief Minister, Provincial Ministers and Advisors to the Prime Minister and the Chief Minister and other public office holders, except the President, who was an emblem of unity of the Federation and is non­partisan, to visit the area of the constituency during electioneering offends the fundamental rights under Arts.15, 16, 17(2), 19 & 19A of the Constitution.

Petitioner in person along with Ahmad Awais, Zaman Khan Vardag, Syed Shadab Jafery, Muhammad Nouman Shams Qazi, Azeem Ullah Khan for Petitioners.

Muhammad Ramzan Chaudhry for Petitioners (in C.M. No.1914 of 2015).

Naseer Ahmad Bhutta, Additional Attorney-General for Pakistan.

Mian Irfan Akram, Deputy Attorney-General for Pakistan (DAG-7).

Syed Akmal Hussain Shah, Standing Counsel for Pakistan.

Zafar Iqbal Hussain, Provincial Election Commissioner Punjab.

Shahzad Shaukat and Babar Sattar Amici Curiae.

Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 25th May, 2015.

2015 C L C 1509

[Lahore]

Before Syed Mansoor Ali Shah, J

NADEEM ASGHAR NADEEM and others----Petitioners

versus

PROVINCE OF THE PUNJAB and others----Respondents

W.P.No.26696 of 2014, heard on 6th May, 2015.

(a) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Civil rights---Obligations---Nature and ambit of right to fair trial under Art.10A of the Constitution---"Determination of civil rights and obligations of a person through fair trial and due process" was a fundamental right---Civil rights were the rights guaranteed by the Constitution and the legislation---"Obligations" may refer to anything that a person was bound to do or forbear from doing, whether such duty was imposed by law, contract, promise, social relations, courtesy, kindness or morality and anything that an individual was required to do because of a promise, vow, oath, contract, or law; and it referred to a legal or moral duty that an individual could be forced to perform or penalized for neglecting to perform---Right of one person was an obligation of the other, and vice versa and such mutually corresponding and symbolic relationship between civil rights and obligations, expanded the proportions and broadened the amplitude of Art.10A of the Constitution and placed it as one of the most robust, dynamic and an evergreen Fundamental Right that was not frozen in time or moored to serve only the age old vested rights---Article 10A of the Constitution was a Constitutional right, hence it was open and all embracing and was there to include all kinds of rights and obligations that emerged from the Constitution, legislation, law, contract, promise, social relations, courtesy, kindness or morality---Article 10A of the Constitution could not be put in shackles and in fact went beyond vested rights---Article 10A of the Constitution therefore, dealt with rights and duties, which if violated could result in loss of some personal benefit or advantage or curtail a privilege or liberty or franchise.

Warid Telecom (Pvt.) Ltd. and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338; Suo Motu action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process PLD 2012 SC 664; Babar Hussain Shah and another v. Mujeed Ahmed Khan and another 2012 SCMR 1235; Suo Motu Case No.4 of 2010 PLD 2012 SC 553; Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; The most common legal application of the term civil rights involves the rights guaranteed to U.S. citizens and residents by legislation and by the Constitution, Free Dictionary. .; Black's Law Dictionary. 9th Ed. p.1179 and Mian Fazal Din v. Lahore Improvement Trust, Lahore, etc. PLD 1969 SC 223 rel.

(b) Fundamental Rights---

----"Civil rights", meaning of---Civil rights were rights guaranteed by the Constitution and Legislation.

The most common legal application of the term civil rights involves the rights guaranteed to U.S. citizens and residents by legislation and by the Constitution, Free Dictionary. . rel.

(c) Words and Phrases---

----"Obligations", meaning of---Obligations may refer to anything that a person was bound to do or forbear from doing, whether the duty was imposed by law, contract, promise, social relations, courtesy, kindness or morality and anything that an individual was required to do because of a promise, vow, oath, contract, or law; and it referred to a legal or moral duty that an individual could be forced to perform or penalized for neglecting to perform.

Black'sLaw Dictionary. 9th Ed. p.1179 rel.

(d) Punjab Civil Servants Act (VIII of 1974)---

----Ss. 10(1)(i), 5, 4 & 6---Punjab Judicial Service Rules, 1974 R.7A---Constitution of Pakistan, Arts.10A, 4, 9, 14 & 25---Constitutional petition---Civil service---Judicial Officers---Probation---Termination of service during the initial or extended period of probation---Constitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974---Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons---Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution---Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation---Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations---Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process---One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein "performance evaluation" was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer---Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect---Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a "discharge" from service---Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority---High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice---Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant---While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down---High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice, but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order---Constitutional petitions were allowed, accordingly.

Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd and another PLD 2014 SC 283; Messrs Chenone Stores Ltd through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815; Bilal Akbar Bhatti v. Election Tribunal, Multan and 15 others PLD 2015 Lah. 272; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Imtiaz Ahmad Kaifi v. Government of Punjab and others PLD 2013 Lah. 598; Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro and others 2014 SCMR 1236; State of M.P. v. Rakesh Kohli and another 2013 SCMR 34; Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Federation of Pakistan v. Riaz Ali Khan PLD 1958 (W.P.) Lah. 22; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and others v. Federation of Pakistan and another PLD 2010 SC 483; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2003 PLC (C.S.) 1421 and Liaqat Ali Shahid, Ex-Civil Judge, Bhalwal v. Government of the Punjab through Chief Secretary, Punjab, Lahore 1999 PLC (C.S.) 334 ref.

Mrs. Abida Parveen Channar v. High Court of Sindh 2011 PLC (C.S.) 836 rel.

(e) Civil service---

----Termination from service---Probationer---Requirement of notice prior to terminating the services of a probationer---Termination simplicter---Scope---Services of a probationer could be terminated without notice, in case of termination simpliciter but where there were allegations of misconduct or inefficiency levelled against the probationer, in such an eventuality, it was mandatory that the officer was put on notice and if there were allegations of inefficiency, misconduct or corruption, a probationer was required to be served with a notice, with the rationale being that any termination in the nature of dismissal or removal carried a stigma, hence the civil servant should be granted an opportunity to defend and wash away any slur and taint alleged against such a civil servant.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2004 SCMR 44; Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar 2003 PLC (C.S.) 285 and Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275 rel.

(f) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man, etc.---Civil service---Termination from service---Reasons for termination---Every termination order must carry reasons and this was equally applicable to the case of termination simpliciter and there was no plausible explanation why a public authority must shy away from giving reasons for termination---To withhold reasons for termination of a civil servant generated a host of adverse assumptions against the character of a civil servant which had a bearing on his reputation and goodwill and failure of disclosing or intentional withholding of reasons was, therefore, below the dignity of any white collared officer and offended Art.14 of the Constitution.

(g) Civil Service---

----Termination simpliciter---Concept---Concept of termination simpliciter as opposed to a termination carrying a stigma---"Termination simpliciter" meant termination without any ceremony or termination in a summary manner and such a termination from service was when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment is ad hoc and dependent on certain conditions or if the post itself is abolished---Such like termination was not punitive or penalizing in nature and more importantly, it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer and in such cases, probationer therefore need not be put on notice if the termination is actually a discharge from service or was termination simpliciter.

National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd and another PLD 2014 SC 283 rel.

(h) Interpretation of Statutes---

----Purposive or contextual construction---Reading down of statute---Concept and scope---Where literal construction or plain meaning caused hardship, futility, absurdity or uncertainty, the purposive or contextual construction was to be preferred to arrive at a more just, reasonable and sensible result---Every law was designed to further the ends of justice and not to frustrate it on mere technicalities and though the function of the courts was only to expound the law and not to legislate, nonetheless the Legislature could not be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law and in such circumstances, it was the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute---Statutes must be interpreted to advance the cause of statute and not to defeat it and if certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional; the court would lean in favour of the former construction---For upholding any provision, if it could be saved by reading it down, it should be done, unless plain words were so clear as to be in defiance of the Constitution---Such interpretations spring out because of the concern of courts to always let legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation and words were not static but dynamic and this infused fertility in the field of interpretation---Principle of reading down, however, could not be available, where the plain and literal meaning from a bare reading of any impugned provision clearly showed it conferred arbitrary, uncanalised or unbridled power---Reading down the meanings of words with loose lexical amplitude was permissible as part of the judicial process and to sustain a law by interpretation was the rule---Courts could and must interpret words and read their meanings so that public good was promoted and power misuse was interdicted.

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Indus Jute Mills Ltd. v. Federation of Pakistan 2009 PTD 1473; Interpretation of Taxing Statutes by Mittal; Maharao Saheb Shri Bhim Singhji and others v. Union of India and others AIR 1981 SC 234; Muhammad Umer Rathore v. Federation of Pakistan PLD 2009 Lah. 268; Federal Steam Navigation Co. Ltd. and another v. Department of Trade and Industry (1974) 2 All E R 97; Delhi Transporate Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101; Sunil Batra v. Delhi Administration and others etc. AIR 1978 SC 1675 and Jagdish Pandey v. The Chancellor, University of Bihar and others AIR 1968 SC 353 rel.

Muhammad Aslam Rizvi, Mushtaq Ahmed Mohal for Petitioners.

Azhar Iqbal, Muzammal Akhtar Shabbir, Muqtedir Akhtar and Ch. Muhammad Shahid Iqbal for Petitioners (in connected writ petitions).

Shan Gul, Addl. A.-G. Punjab and Barrister Qasim Ali Chowhan, Asstt. A.-G. Punjab for Respondents.

Junaid Jabbar Khan Amicus Curiae.

Assisted by Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 6th May, 2015.

2015 C L C 1531

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD IQBAL----Petitioner

versus

DISTRICT COORDINATOR OFFICER/DISTRICT COLLECTOR, FAISALABAD and 6 others----Respondents

Writ Petition No.16337 of 2015, decided on 14th July, 2015.

(a) West Pakistan Land Revenue Rules 1968---

----R.17(2) & (3)---Constitution of Pakistan, Art.199---Constitutional petition---Lambardar, appointment of---Procedure---Matters to be considered in first appointment---Petitioner challenged orders whereby respondent had been appointed as lambardar---Contention by petitioner was that authorities having recommended his name for appointment as lambardar had illegally appointed the respondent ignoring prescribed procedure regarding appointment---Validity---Respondent had not submitted application for post of lambardar on or before the date of submission of application, rather he had submitted his application after more than two years and six months from expiry of last date for submission of applications---Respondent was minor till last date for submission of application and was not eligible to apply for the post of Lambardar; he was not full time resident of the village for which he had been appointed as lambardar---Respondent had not mentioned cogent and reasonable explanation for submission of application after due date---Authorities had illegally and without any lawful jurisdiction entertained application of respondent after due date, which could not be entertained after expiry of due date---Under R.17(2) and (3) of West Pakistan Land Revenue Rules, 1968, after receiving proposal regarding appointment of lambardar from Tehsildar, Collector would hold Jalsa-e-Aam in revenue estate and submit his report and made recommendations to District Collector who would give opportunity of hearing to all candidates, give his findings on report and recommendations of Collector and then pass orders regarding selection of candidate---Assistant Commissioner after agreeing with proposal and recommendations of Tehsildar would forward case to District Collector for appointment of lambardar who was legally bound to decide matter after considering report and recommendations of Collector---Respondent was appointed in disregard of such legal procedure---Authorities were bound to discharge their duties according to law---Respondent should not have been considered and appointed as lambardar as he was not candidate for post of lambardar before expiry/cut off date---No provision existed in West Pakistan Land Revenue Rules, 1968, which had authorized District Collector to receive application after lapse of more than two and half years---Impugned orders passed by authorities were patently illegal and against provisions of R.17(2) & (3) of West Pakistan Land Revenue Rules, 1968---High Court, allowing constitutional petition, set aside orders of authorities and remanded the case with direction to consider those candidates for

appointment who had submitted their applications before expiry of last date for submission of applications on merits in accordance with law.

Mrs. Rubina Anjum v. Punjab Public Service Commission through Chairman and 5 others 2011 PLC (C.S.) 620; Shahid Sarwar v. Chairman, Admission Board/Principal, King Edward Medical College, Lahore 2005 YLR 344; Muhammad Inzamam and 6 others v. Chairman, Board of Intermediate and Secondary Education, Lahore and 3 others 2010 YLR 1525; Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160; Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others 2012 PLC (C.S.) 772 and International College of Commerce v. University of the Punjab PLD 2004 Lah. 335 rel.

(b) Administration of Justice---

----When law requires a thing to be done in particular manner, same has to be done in that way, otherwise it will not have any sanctity in eye of law.

Nadeem Shibli for Petitioner.

Rana Shamshad Khan, A.A.-G. for Respondents Nos.1, 2, 4 to 7.

Muhammad Aslam Zar for Respondent No.3.

Dates of hearing: 7th and 14th July, 2015.

2015 C L C 1538

[Lahore]

Before Mirza Viqas Rauf, J

PLUM QINGQI MOTORS LIMITED----Appellant

versus

MUHAMMAD MOEED and others----Respondents

F.A.O. No.181 of 2009, heard on 25th May, 2015.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 28(4), 25, 8, 7, 6, 5, 4 & 33----Qanun-e-Shahadat (10 of 1984), Art.117---Filing of claim---Limitation, determination of---Defective product---Liability for defective product---Burden of proof---Petitioner, who had obtained rickshaw on lease from defendant, filed claim under S.25 of Punjab Consumer Protection Act, 2005 claiming replacement of rickshaw and refund of sale price along with compensation and other expenses incurred on said rickshaw on ground of being defective product---Consumer Court, accepting the claim, ordered defendant to refund received amount along with damages due to loss of utility of product and legal expenses incurred by claimant---Contention raised by defendant was that claim filed by consumer was barred by time, and that impugned order was mainly influenced by recommendations of District Nazim instead of expert evidence, which was not legal evidence---Validity---Admittedly, warranty period was fixed as six months or six thousand kilometer running whichever was earlier---Consumer had filed his claim after about ten months after expiry of given warranty period of six months---Limitation period for filing claim was provided under S.28(4) of Punjab Consumer Protection Act, 2005 which provided that as a general rule, thirty days were provided for filing claim from date of cause of action, but under first proviso thereof, consumer court had authority to relax said period of thirty days if sufficient cause was shown for filing claim beyond specified period, whereas second proviso thereof placed embargo on powers of court that in case of existence of specified warranty or guarantee, extension would not be allowed beyond period of sixty days from date of expiry of warranty or guarantee specified by manufacturer or service provider, and if no period of warranty or guarantee had been provided, then claim could be filed within one year from date of purchase of product or provision of service---In the present case, as warranty period was specified, so limitation could be extended up to sixty days---Claim had been filed beyond prescribed period of limitation, and consumer had not shown any sufficient cause for such delay nor had he filed any application for condonation of delay---Consumer had misstated about his first visit to defendant for examination and oil change of his vehicle---Consumer, in order to bring his claim within four corners of provision of Punjab Consumer Protection Act, 2005, had to establish liability of manufacturer in terms of S.4 of the Act by establishing form of defects enumerated in Ss.5, 6, 7 & 8 of Punjab Consumer Protection Act, 2005, whereas no evidence was produced in that regard---Consumer failed to bring his case within four corners of S.4 of Punjab Consumer Protection Act, 2005---Consumer could lead any cogent and reliable evidence from which it could be inferred that auto rickshaw contained manufacturing defects which had resulted into damage---Consumer was bound to lead overwhelming evidence in order to prove his claim in terms of Art.117 of Qanun-e-Shahadat, 1984, whereas his claim was based on oral assertions---Oral assertion could not negate documentary evidence---Defect complained of by consumer could not be said to have been caused due to defective design or due to fault in specification provided for said purpose---Defect in question was of such nature which could occur due to negligence and rough use---Consumer was motivated to file present claim to avoid payment of remaining installments under lease agreement---Consumer Court, while allowing claim of consumer, seemed to have been influenced with recommendations made by District Nazim, which were not made part of evidence---Relying on said recommendations was illegal---Impugned order of Consumer Court was set aside---Appeal was allowed in circumstance.

Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others 2014 CLC 154; Messrs Dawlance United Refrigeration Industries (Pvt.) Ltd. through Branch Coordinator v. Muhammad Jameel 2012 CLD 1461; Coca-Cola Beverages Pakistan Limited v. Ashiq Ali PLD 2014 Lah. 196; Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs PLD 1994 Kar. 106; Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1998 SCMR 753 and Munawar Hussain and 2 others v. Amanat Ali and 6 others PLD 2007 Lah. 83 ref.

Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others 2014 CLC 154; Messrs Dawlance United Refrigeration Industries (Pvt.) Ltd. through Branch Coordinator v. Muhammad Jameel 2012 CLD 1461; Coca-Cola Beverages Pakistan Limited v. Ashiq Ali PLD 2014 Lah. 196; Muhammad Azam v. National Bank of Pakistan and others 2013 CLD 228; Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753; Mirza Muhammad Qasim Baig and another v. Government of Sindh through Secretary, Ministry of Local Self-Government and 2 others 2000 YLR 1669 and Munawar Hussain and 2 others v. Amanat Ali and 6 others PLD 2007 Lah. 83 rel.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 25---Qanun-e-Shahadat (10 of 1984), Art.117---Filing of claim---Burden of proof---Consumer is bound to lead overwhelming evidence in order to prove his claim in terms of Art.117, Qanun-e-Shahadat, 1984.

Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753; Mirza Muhammad Qasim Baig and another v. Government of Sindh through Secretary, Ministry of Local Self-Government and 2 others 2000 YLR 1669 and Munawar Hussain and 2 others v. Amanat Ali and 6 others PLD 2007 Lah. 83 ref.

Usman Akram Sahi for Appellant.

Muhammad Saeed Chaudhary for Respondent No.1.

Pervaiz Akhtar Tahir for Respondent No.2.

Date of hearing: 25th May, 2015.

2015 C L C 1546

[Lahore]

Before Ibad ur Rehman Lodhi, J

Dr. MUHAMMAD AFZAL HUSSAIN----Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 5 others----Respondents

Writ Petition No.6861 of 2015, heard on 2nd June, 2015.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 16---Abatement of suits and proceedings pending before any Court or authority---According to S.16 of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993, all issues relating to property, assets and liabilities of undesirable cooperative society which even were pending before any court or authority stood abated on appointment of Liquidator---All fresh proceedings against such society were only to be instituted before Co-operative Judge within 60 days of such abatement---All decrees etc. passed by any court, except Supreme Court of Pakistan against properties and assets of any undesirable cooperative society or after first day of July, 1990, were to become unexecutable and of no legal effect unless such judgment and decree was confirmed by Co-operative Judge after hearing concerned parties---Any person who relied on such decrees, judgments etc. was competent to approach Co-operative Judge for its confirmation within 60 days of appointment of Liquidator.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 5---Eviction of tenant---Agreement between landlord and tenant---Proof of relationship---Unless a person established his title qua the suit property beyond any doubt, he would not be competent to ask for eviction of person occupying premises in his own independent right.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 rel.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 5---Eviction of tenant---Tenancy agreement---Scope---Person claiming himself to be owner or landlord of premises seeking eviction of tenant in ejectment petition must be equipped with a tenancy deed registered with Rent Registrar---According to S.5(5) of Punjab Rented Premises Act, 2009, tenancy deed was the exclusive proof to establish a relationship of landlord and tenant in between the parties.

Tariq Masood for Petitioner (in Writ Petition No.6861 of 2015).

Shahzada Muhammad Zeeshan Mirza and Muhammad Sajjad Chaudhry for Petitioner (in Writ Petitions Nos.6024, 6027, 6040, 6041, 6042, 6249, 6252, 6281, 6338, 6341, 6342 and 6344 of 2015).

Waqar Hassan Mir for Respondents Nos.3 to 6.

Date of hearing: 2nd June, 2015.

2015 C L C 1579

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD NAZIR and another----Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and another----Respondents

Writ Petition No.20495 of 2004, decided on 2nd April, 2015.

General Clauses Act (X of 1897)---

----S. 24-A---Constitution of Pakistan, Art.199---Constitutional petition---Locus poenitentiae, principle of---Applicability---Cancellation of allotment---Reserve price, non-fixation of---Grievance of petitioner was that after having been declared as successful bidder by the authorities, he deposited amount of consideration and was put in possession of plot in question, thereafter, authorities could not withdraw confirmation of auction in his favour---Plea raised by authorities was that neither reserve price was fixed for plot in question nor auction took place in fair manner---Validity---When a decisive step was taken towards implementation of an order, executive authorities could rarely be allowed to retract from their act but when the very basis of an act was spurious or offended against dictum laid down by superior Courts, the same could not be allowed to survive under the umbrella of principle of locus poenitentiae---No reserve price was fixed in proclamation of auction, the entire super structure raised thereon fell to the ground---Participation of petitioner in bidding process against plot in question was not established---High Court declined to interfere in order passed by authorities cancelling allotment in question---Petition was dismissed, in circumstances.

Aziz Fatima v. Punjab Public Service Commission PLC 2000 (C.S.) 1260 and The Engineer in Chief Branch through Ministry of Defence, Rawalpindi and another PLD 1992 SC 270 ref.

Lanvin Traders Karachi v. Presiding Officer, Banking Court No.2, Karachi 2013 SCMR 1419; Muhammad Sidiq through L.Rs. v. Punjab Service Tribunal, Lahore and others 2007 SCMR 318 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907 rel.

Khawaja Saeed uz Zafar for Petitioners.

Salman Mansoor and Abdul Majeed for Respondents.

2015 C L C 1618

[Lahore]

Before Shahid Karim, J

NATIONAL BANK OF PAKISTAN----Petitioner

versus

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

Writ Petitions Nos.6976, 6977 and 6978 of 2005, heard on 31st March, 2015.

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 4(1)---Constitution of Pakistan, Arts.165 & 199---National Bank of Pakistan Ordinance (XIX of 1949), Ss.4 & 9---Constitutional petition---Property tax, exemption from---Plea raised by National Bank of Pakistan was that Bank was an instrumentality of Federal Government and by virtue of Art.165 of the Constitution it was exempted from payment of property tax---Validity---National Bank of Pakistan was merely another Bank operating in the vast landscape of banking business which was involved in trading, business and commerce and could not be considered as a government department performing sovereign functions having a dominant monopoly or carrying on welfare related functions of the State/Federal Government---To extend the benefit of Art.165 of the Constitution to National Bank of Pakistan and thus exempt it from payment of property tax, would work discriminately against similarly placed Banking Companies operating in the field---Petition was dismissed in circumstances.

Chairman, District Council, Rahim Yar Khan and another v. United Bank Limited, Rahim Yar Khan 1989 CLC 1397; Association Cement (State Cement Corporation of Pakistan (Pvt.) Limited) v. Government of Sindh, through the Secretary, Local Government and 2 others 1992 MLD 1730; Sind Industrial Trading Estate Ltd. Karachi v. Central Board of Revenue and 3 others PLD 1975 Kar. 128; Messrs Rice Export Corporation of Pakistan Ltd. v. Karachi Metropolitan Corporation through Director Octroi and another PLD 1990 Kar. 186; Central Board of Revenue and another v. S.I.T.E. (PLD 1985 SC 97; Water and Power Development Authority through General Manager and Project Director and another v. Administrator District Council Swabi and 5 others 2005 SCMR 487; Collector of Sales Tax and Central Excise, Lahore v. Water and Power Development Authority and others 2007 SCMR 1736 and Central Board of Revenue, Islamabad and another v. WAPDA and another PLD 2014 SC 766 ref.

Union Council Ali Wahan, Sukkur v. Associated Cement (Pvt.) Limited 1993 SCMR 468 and Province of N.-W.F.P through Secretary Local Government and Rural Development etc. v. Pakistan Telecommunication Corporation through its Chairman and others PLD 2005 SC 670 rel.

(b) Interpretation of statutes---

----Fiscal matter---Exemption from tax---Principle---Any claim for exemption from payment of tax, it presupposes levy of duty and in such case, the burden of proof squarely falls on the person claiming exemption--- While interpreting provisions granting exemption, Courts have to lean towards revenue rather than the assessee.

Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 rel.

Ch. Altaf Hussain for Petitioner.

Rana Muhammad Hussain, A.A.-G. along with Muhammad Yousaf Virk, Excise and Taxation Officer, Multan for Respondents.

Date of hearing: 19th March, 2015.

2015 C L C 1640

[Lahore]

Before Ijaz ul Ahsan, J

Mst. ALIA RIAZ----Petitioner

versus

GOVERNMENT OF PUNJAB and others----Respondents

W.Ps.Nos.15676 of 2009 and 10629 of 2011, decided on 10th April, 2015.

(a) Good governance---

----Doing of any act---Principle---Where a thing is required to be done in a particular manner, it must be done in that manner or not at all---Not upto the State functionaries to choose which rule to follow and which to ignore---Such unstructured discretion would breed arbitrariness in decision making process which is contrary to principles of good governance.

Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437; Raja Humayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and M. Yousuf Adil Saleem & Co. Chartered Accountants through Partner and 5 others v. Muhammad Saleem and another 2012 CLC 415 rel.

(b) Punjab Agricultural Produce Markets (General) Rules, 1979---

----Rr. 56 (6) (c) & 67---Constitution of Pakistan, Art.199---Constitutional petition---Fruit and vegetable market, establishment of---Vested right---On the basis of notification issued in year, 2002, fruit and vegetable market was established on the land of petitioner but authorities did not give 1/3rd of auction proceeds to her---Subsequently on the basis of notification dated 18-7-2009 new fruit and vegetable market was established and earlier notification was withdrawn---Validity---On the basis of notification issued in year, 2002, all legal and procedural steps were taken, property of petitioner was converted into plots, a number of such plots were allocated and consideration there against was received---Valuable rights had accrued in favour of petitioner, which could not have been taken away without due process of law---Petitioner was neither heard nor granted opportunity to present her point of view and her rights to be treated in accordance with law as enshrined in the Constitution were violated---Petitioner was also condemned unheard which was contrary to well established rule of audi alteram partem---No bar existed on the power of government to establish new fruit and vegetable market provided process of law as envisaged in Punjab Agricultural Produce Markets (General) Rules, 1979, was duly followed---If government had considered it necessary and in public interest that a new fruit and vegetable market needed to be set up, it could initiate fresh proceedings in accordance with law and subject to rights of petitioner by following and strictly adhering to due process of law---High Court set aside notification dated 18-7-2009, as the same was passed without lawful authority and of no legal effect---Petition was allowed in circumstances.

(c) Estoppel---

----Promisory estoppel--- Scope--- Doctrine of promisory estoppel entails that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in future knowing or intending that the other party would act upon such promise, the promise would be binding on the party making it and he would not be entitled to go back upon it---Estoppel is an equitable principle evolved by Courts for doing justice and is a recognized principle in the jurisprudence.

Fecto Belarus Tractors Limited v. Pakistan through Ministry of Finance Economic Affairs and another 2001 PTD 1829; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 PTD 2728 and Makhdoom Muhammad Mukhtar, Member Provincial Assembly Punjab v. Province of Punjab through Principal Secretary to Chief Minister, Punjab, Lahore PLD 2007 Lah. 61 rel.

Ch. Inayat Ullah for Petitioner.

Abdul Khaliq Safrani for Petitioner (in Writ Petition No.10629 of 2011).

Muhammad Azeem Malik, Addl. A.-G. along with Irshad Ali, Litigation Officer, Agriculture Department, Muhammad Tariq EADA (E&M) Bahawalnagar and Hafiz Muhammad Tahir, Secretary Market Committee Bahawalnagar.

Ch. Aamir Rehman for Respondent No.8.

Date of hearing: 10th April, 2015.

2015 C L C 1661

[Lahore]

Before Ali Akbar Qureshi, J

MUBARA and 4 others----Petitioners

versus

Mst. KHANU through L.Rs. and others----Respondents

C.R. No.1138 of 2004, heard on 7th September, 2015.

Limitation Act (IX of 1908)---

----S. 28 [since omitted]---Adverse possession, claim of---Repugnancy to injunctions of Islam---Plaintiff had filed a suit for possession of suit land, which was contested by the defendant on the ground that he had acquired title to the suit land on the basis of adverse possession---Trial Court decreed suit of plaintiff, however Appellate Court accepted respondent's plea of adverse possession and set aside such decree---Validity---Defendants had no title to the suit land except for the claim of adverse possession---Revenue entries showed that plaintiff had acquired the land in terms of an exchange of some other land---High Court remanded the case to the Appellate Court, in such circumstances, to decide the same afresh on the basis of available record and the principles of adverse possession laid down in the case of Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR 2063)---Revision petition was disposed of accordingly.

Maqbool Ahmad v. State of Pakistan 1991 SCMR 2063 ref.

Shaigan Ijaz Chadhar for Petitioner.

Tariq Mehmood Aamir for Respondents.

Date of hearing: 7th September, 2015.

2015 C L C 1675

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

NOOR ALAM through L.Rs. and another----Petitioners

versus

MUHAMMAD BASHIR and another----Respondents

Civil Revision No.2439 of 2004, heard on 16th April, 2015.

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

----Ss. 30 to 33---Contract Act (IX of 1872), Ss.182, 2(b) & 17---Application for making award rule of court---Maintainability---General power-of-attorney---Rules of construction--- "Arbitration agreement" as compared to "compromise"---Nature and purpose---Appointment of arbitrator by attorney---Requirement of specific authorization---Fraud alleged on part of attorney---Effect---Parties entered into arbitration agreement regarding dispute over suit property, and award of arbitrator was submitted before court by respondents---Trial court accepting application of respondents made the award rule of court on statement of petitioner's general attorney---Petitioners filed objection petition under Ss.30 to 33 of Arbitration Act, 1940 for cancellation of the arbitration agreement and award on ground that their said attorney had played fraud upon them as he had no power to enter into arbitration agreement and make statement before court---Trial court and appellate court dismissed the objection petition---Respondents took plea that power of attorney to enter into compromise would include power to enter into arbitration agreement---Validity---Power-of-attorney should have been construed strictly---Agent could exercise only those powers, which were expressly, unambiguously and specifically delegated to him and were specifically mentioned in document of power of attorney---Power-of-attorney, in the present case, did not contain anything to empower the agent to enter into arbitration agreement or even refer to arbitration, and the words only referred to power to enter into compromise and submit compromise deed before court---Arbitration agreement was not compromise as appointment of arbitrator was substitution of court with one person or panel of persons and empowering nominated person or panel of persons to resolve dispute between parties---Nowhere in arbitration agreement was any mention that petitioners were appointing arbitrator through their attorney except at the end thereof words "through general attorney" were mentioned---As petitioner had denied appointment of arbitrator, respondents were under legal duty to prove that the alleged attorney had powers to enter into arbitration agreement---As settled principle of law, agent must have been specifically authorized to appoint arbitrator and implied authority of agent to appoint arbitrator could not be presumed---Alleged attorney had no authority to enter into arbitration agreement on basis of general power-of-attorney---Impugned judgments of courts below were set aside and application for making award rule of court was dismissed---Revision petition was accepted in circumstance.

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

----S. 115----Revisional jurisdiction of High Court---Scope---Revisional Jurisdiction of High Court can be invoked only in cases of exercise of jurisdiction by lower courts not vested in them by law or courts had failed to exercise jurisdiction so vested or jurisdiction was exercised in illegal manner or that some material, irregularity was committed---If it is found that findings of subordinate court are suffering from misreading, non-reading of evidence or that inference drawn is in utter disregard of law and facts of case, High Court must interfere in matter in its revisional jurisdiction and correct illegality committed by courts below.

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

----S. 182---Power-of-attorney---Nature, purpose and rules of construction---Power-of-attorney is a written delegation of powers on basis of which principal appoints a person or persons singly or jointly as his/their agent and confers upon him/them authority to perform specified acts on his/their behalf and thus primary purpose of instrument of such nature is to delegate authority of principal to another person or persons as his/their agent---Purpose of agency is that agent has to act in name of principal(s) and principal(s) also undertakes to rectify all acts deeds of his/their agent done by him/them under authority conferred through the instrument---In view of nature of authority, power of attorney must be strictly construed and proved---Object and scope of power-of-attorney must be seen in light of its recital to ascertain manner of exercise of authority in relation to terms and conditions specified in instrument---Rule of construction regarding power-of-attorney is that special powers contained therein followed by general words are to be construed as limited to what is necessary for proper exercise of special powers, and where authority is given to do particular act followed by general words, the authority is deemed to be restricted to what is necessary for purpose of doing particular act---General words do not confer general power but are limited for purpose for which authority is given and are construed for enlarging special powers necessary for that purpose and must be construed so as to include purpose necessary for effective execution---Before an act purported to be done under power of attorney is challenged as being in excess of powers, it is necessary to show on fair construction that authority was not available to attorney---Agent could exercise only those powers, which are expressly, unambiguously and specifically delegated to him and are specifically mentioned in document of power of attorney.

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

----S. 186---Appointment of arbitrator by attorney---Specific authorization---Agent must have been specifically authorized to appoint arbitrator and implied authority of agent to appoint arbitrator could not be presumed.

Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Muhammad Yasin and another v. Dost Muhammad through legal heirs and another PLD 2002 SC 71; Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and PLD 1985 SC 341; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190; Muhammad Yasin and another v. Dust Muhammad through legal heirs and another PLD 2002 SC 71 and Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974 rel.

Ch. Majid Hussain for Petitioner.

Ashfaq Qayyum Cheema for Respondent.

Date of hearing: 16th April, 2015.

2015 C L C 1704

[Lahore]

Before Shahid Waheed, J

AHMAD ALI and another----Appellants

versus

Sheikh AMMAN ELAHI----Respondent

E.F.A. No.264 of 2007, heard on 14th May, 2015.

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

----S. 145---Surety, liability of---Scope---When a person had undertaken as a surety for due performance of a decree or any part thereof, to the extent of undertaking surety was personally liable for due performance of liability of the judgment-debtor to the decree-holder and decree-holder was entitled to proceed against him---Whether a compromise was or was not excluded under the terms of a surety bond was a question of fact in each case---Executing Court had neither framed issues nor considered the objections of the surety and had dismissed the objection petition being not maintainable---Executing Court had not determined the liability of surety under the surety bond---Said act of Executing Court was departure from provisions of law and same could not be approved---Case was remanded to the Executing Court to decide the objection petition of the surety afresh after framing of issues---Impugned order passed by the Executing Court was set aside---Objection petition would be deemed to be pending before the Executing Court who should decide the same afresh in accordance with law---Appeal was accepted in circumstances.

Dalip Singh v. Kishan Chan AIR 1937 Lah. 34 ref.

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

----S. 145---Contract Act (IX of 1872), Ss.133 to 141---Discharge of surety---Determination as to whether surety stood discharged or continued to be liable under the surety bond---Tests.

Following are real tests to apply for determining whether a surety stands discharged or continues to be liable under the surety bond.

(a) If the terms of the bond indicate that the surety undertook the liability on the basis that the dispute should be decided on the merits by the Court and not amicably settled, the compromise will effect a discharge of the surety.

(b) If the terms of the bond show that the parties and the surety contemplated that there might be an amicable settlement as well, and the surety executed the bond knowing that he might be liable under the compromise decree, there can be no discharge and the surety will be liable under the compromise decree.

(c) Where the surety bond was executed in favour of Court and by it the surety undertook to pay certain amount of money on behalf of the defendant if decreed by the Court and compromise decree between the parties to the suit introduces complicated provisions or include matters extraneous to the judicial proceedings in which the surety bond was executed, the surety is discharged from his liability.

(d) If there is fraud or collusion or any of the matter on which a contract can be set aside, the surety can claim exemption on these grounds, for consent decree is treated on the same footing as agreements.

(e) Sections 133 to 141 of the Contract Act, 1872 do not in terms apply to the surety bond executed in favour of the Court but their equitable principles apply to it.

(f) Where the plaintiff and defendant have entered into compromise without the consent of the surety by which he is seriously prejudiced and according to which substantial departure is made from the terms of the surety bond under which the surety engages himself to pay the decretal money then of course surety would be discharged.

Kunj Lal v Batuk Prasad 120 Ind. Cal. 552(1); Kabiruddin v Debi Singh AIR 1935 Nag. 16; Raja Bahadur Dhanvaj Sirji v. Raja P. Parthasarthy and others (1963) 3 SCR 921), Jatindra Narayan Deb v. Gaurange Chandra Dutta Banik and another AIR 1957 Assam 71; Chakkunny, (Surety) v. Viswanatha Iyer AIR 1961 Kerala 312; Amin Lal v. Faridabad Auto Industries Private Ltd. 1979 (1) ILR (Punjab) 298); Mohan Lal v. Suraj Mani and another AIR 1973 (J&K) 92; Messrs Meena Trading Co., Karachi v. Abdul Ghani and another PLD 1972 Kar. 19) and Shahamad Khan v. Sh. Muhammad Akbar and others 2005 CLC 641 ref.

Iftikhar Ullah Malik for Appellants.

Muhammad Javed Iqbal Qureshi for Respondent.

Date of hearing: 14th May, 2015.

2015 C L C 1723

[Lahore]

Before Shujaat Ali Khan, J

Sheikh ANWAR SAEED----Petitioner

versus

L.D.A.----Respondent

W.P. No.14926 of 1998, decided on 14th April, 2015.

(a) Constitution of Pakistan---

----Art. 8---Fundamental Rights---Scope---Protection provided by Art.8 of the Constitution to Fundamental Rights---Such rights guaranteed by Constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the Constitution---Characteristic of a fundamental right is its superiority over ordinary State-made laws---Fundamental rights are immune from the pale of legislative enactments and executive actions---Such rights constitute express Constitutional provisions limiting legislative power and controlling temporary will of majority by a permanent and paramount law settled by deliberate wisdom of nation---Sanctity of fundamental rights is protected by Art.8 of the Constitution which prohibits State which includes Legislature not to make any law by which any fundamental right may be curtailed or taken away---If any law is made to such effect, to the extent of such contravention, that law is void---Fundamental right is not liable to be abridged by any legislative or executive orders.

(b) Constitution of Pakistan---

----Arts. 24 & 199---Constitutional petition---Property rights Acquiring of land---Duty of Executive---Grievance of petitioners was that city Development Authority could not demolish their shops without providing alternate land in lieu thereof---Validity---Held, it was bounden duty of Executive to respect ordinary legal rights of a subject towards protection of his property and if government had opted to acquire land for public welfare project, it could do so without following procedure on the subject in addition to paying compensation in lieu thereof as fundamental rights, guaranteed under the Constitution, could neither be treated lightly nor interpreted in a causal or cursory manner rather while interpreting fundamental rights, a cardinal principle had always to be borne in mind that such guarantees to individuals were subject to overriding necessity or interest of community---Balance had to be struck between such rights of individuals and interests of community---If in serving interests of community, an individual or number of individuals had to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, they should be reasonably compensated---Petitioners were entitled to allotment of alternate land in lieu of shops demolished by authorities---Constitutional petition was allowed, in circumstances.

Abdul Sattar v. Land Acquisition Collector 2010 SCMR 1523; Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706; Muhammad Shehzad Malik v. Muhammad Suhail and another 2010 SCMR 1825; Mst. Amina Begum and others v Mehar Ghulam Dastgir PLD 1978 SC 220 and Syed Ali Asghar and 3 others vs. Creators Builders and 3 others 2001 SCMR 279 ref.

Abdul Khaliq Safrani for Petitioner.

Waqar A. Sheikh for LDA with Usman Ghani, Director Estate Management, LDA.

Rana Shamshad Khan, Asstt. A.-G. with Muzzaffar Mahmood, Member (Colonies) and Qamar Abbas Sultan, Assistant Director Board of Revenue Punjab, Lahore.

Date of hearing: 14th April, 2015.

2015 C L C 1808

[Lahore]

Before Muhammad Khalid Mehmood Khan and Abdus Sattar Asghar, JJ

HABIB BANK LIMITED----Appellant

Versus

Messrs MEDINA RICE AND ICE MILLS and others----Respondents

R.F.A. No.108 of 2009, decided on 12th November, 2014.

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

----Ss. 148 & 172---Bailment and pledge---Connotation---Pledge is bailment and purpose of creation of pledge is security for payment of debt as is defined in S.172 of Contract Act, 1872.

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

----S. 9---Contract Act (IX of 1872), Ss.148, 151, 152 & 172---Suit for recovery of finance facility---Bailment and pledge---Loss caused by bailee---Suit was resisted by borrowers on the plea that bank had misappropriated pledged stock and claimed adjustment of misappropriated pledged goods---Banking Court decreed the suit in favour of Bank with direction to return excess stock to borrowers---Plea raised by Bank was that borrowers committed fraud with Bank at the time of creation of pledge in its favour and borrowers had misappropriated pledged stocks---Validity---Where pawnee sued for recovery of debt allowed against security of pawned goods, the creditor was required to keep goods intact for returning the same to the pawner subject to natural wear and tear, who retained the right to redeem pledged goods unless sold after reasonable notice---Creditor could maintain its suit subject to adjustment of sale proceeds of the goods---Knowingly, the Bank did not claim any shortage or replacement of pledged stock by borrowers---Bank filed plaint and did not mention facts alleging replacement or loss of pledged goods, when in reply to application for permission to defend the suit, Bank claimed that borrowers had replaced and removed pledged stock---Bank was duty bound to prove that they were the borrowers who misappropriated and replaced pledged goods of inferior quality which bank failed to prove---High Court declined to interfere in judgment and decree passed by Banking Court as the said Court had thoroughly discussed evidence produced by parties---Appeal was dismissed, in circumstances.

Mst. Talat Nasreen v. United Bank Limited 2003 CLD 94; Prudential Commercial Bank Ltd. v. Hydari Ghee Industries Ltd. and 9 others 1999 MLD 1694; Messers United Bank Ltd v. Messers Amin Corporation Ltd. and others 1983 CLC 1559; Habib Bank Ltd. v. Kashif Steel Industry and others PLD 2001 Lah. 224; Messrs Crystal Enterprises and 6 others v. Platinum Commercial Bank Ltd. and 2 others 2002 CLD 868; Mian Aftab A. Sheikh and 2 others v. Messrs Trust Leasing Corporation Ltd. and another 2003 CLD 702; Bashir Ahmed Mughal v. S.M.E. Bank Ltd. through General Manager and 2 others 2005 CLD 1689; Messrs Fybron (Pvt.) Ltd. through Managing Director and others v. National Bank of Pakistan through Zonal Chief 2006 CLD 127; A.M. Burq and another v. Central Exchange Bank Ltd. and others PLD 1966 (W.P.) Lah. 1; Messrs Muhammad Siddique Muhammad Umar and another v. The Australasia Bank Ltd. and others PLD 1966 SC 684; Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671; Ellis E and Company's Trustees v. Dixon Johnson (1925) AC 489; Lallan Prasad v. Rahmat Ali and others AIR 1967 SC 1322; Khusiram v. Swaroop Naraya 1989 WLN UC 332; Coldman v. Hill [1919] 1 KB 443 and Mendelssohn v. Normand Ltd. [1969] 2 All ER 1215 ref.

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

----S. 152---Bailee when not liable to loss---Principle---Where pawnee claims loss or damage to pawned goods, it is the duty of pawnee to establish that he has fulfilled his obligation both statutory and contractual; otherwise, he is not entitled to get benefit of S.152 of Contract Act, 1872---Bailee is not an insurer of goods and is not responsible for loss caused by accident but he has to show when goods bailed are lost and there was no negligence or default on his part---Bailee is bound to take step to recover goods and if he can inform owner, in time he must do so and if he has failed to inform owner, he must act as an agent of necessity and takes steps which a reasonable owner would take in defense of property of value in question---Bailee is bound to take reasonable means to protect bailor's property and in case of loss, onus is on the bailee to prove that it occurred due to his negligence or want of ordinary care.

Ahmad Pervaiz and Suleman Aslam for Appellant.

Ms. Sarwat Nawaz for Respondents.

Date of hearing: 18th March, 2014.

2015 C L C 49

[Peshawar]

Before Waqar Ahmad Seth, J

MUHAMMAD TARIQ and others----Petitioners

Versus

ABDUL RAZAQ----Respondent

Civil Revision No.196 of 2010, decided on 22nd August, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Plaintiff was co-owner in the suit property whereas defendants had no such qualification---Plaintiff had a superior right of pre-emption---Plaintiff and his witness were not consistent with regard to the mode and manner of performance of Talbs---Major contradictions were on record with regard to material aspects of the case which were fatal to the suit for pre-emption---Such contradictions had created doubt in the veracity of plaintiff and his witnesses with regard to performance of Talbs---Time for performance of Talb-i-Muwathibat had not been given in the statement of informer---Exact time of performance of Talb-i-Muwathibat was not mentioned in the notice of Talb-i-Ishhad---No evidence was on record in support of claim of plaintiff that sale transaction was made in order to defeat his right of pre-emption---Impugned transaction was an exchange for better management of suit land---Findings recorded by the Trial Court were consistent with the evidence on record whereas those of Appellate Court were not supported by evidence and were not sustainable in law---Trial Court had rightly dismissed the suit on proper appraisal of legal and factual aspects of the case---Appellate Court had wrongly and illegally decreed the suit of plaintiff---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

Ghulam Muhammad v. Abdullah 2014 MLD 141; Said ul Haq v. Janas Khan 2013 MLD 350; Amir Muhammad v. Muhammad Ashraf PLD 2011 Pesh. 116; Manzoor Hussain v. Iftikhar Ahmed and another PLD 2007 Pesh. 93; Elahi Bakhsh v. Muhammad Iqbal and others 2014 SCMR 1217; Muhammad Azam and 11 others v. Muhammad Nawaz and 8 others 2005 CLC 1593; Muhammad Anwar Khan Kundi v. Abdur Rehman 2006 CLC 604 and Ahmad Ali Khan and others v. Bibi Ro and others 2011 YLR 2494 ref.

Sardar Muhammad Ashfaq for Petitioners.

Azhar Nadeem for Respondent.

Date of hearing: 22nd August, 2014.

2015 C L C 84

[Peshawar]

Before Yahya Afridi and Assadullah Khan Chamkani, JJ

MUHAMMAD SAYYAH-UD-DIN----Petitioner

Versus

DIRECTOR-GENERAL, PESHAWAR DEVELOPMENT AUTHORITY, (PDA) PESHAWAR and 2 others----Respondents

Writ Petitions Nos.1690/P to 1698/P of 2014, decided on 5th June, 2014.

(a) Khyber Pakhtunkhwa Building Regulations, 1985---

----Constitution of Pakistan, Art.199---Constitutional petition---Commercial use of residential building---Petitioners were using their residential houses as guest houses on commercial basis---Grievance of petitioners was that Development Authority had directed them to close their guest houses---Plea raised by the Authority was that it had issued 292 notices to such persons who were using their residential buildings for commercial purposes---Validity---None including petitioners were entitled to carry on commercial activities in residential buildings', as the same was in violation of terms of allotment of plots and Khyber Pakhtunkhwa Building Regulations, 1985---Petitioners were allotted plots as 'residential building' and they could not be allowed to carry on commercial activities---High Court directed the authorities to provide 30 days to petitioner to close down theirguest houses'---Respondent was a Development Authority and custodian of urban planning and obliged to apply Khyber Pakhtunkhwa Building Regulations, 1985, for urban planning of buildings and to all building structures, without fear or favour---High Court directed the Authority to submit its report of progress made in 292 cases---Petition was dismissed in circumstances.

Principal International School v. Government Writ Petition No.1027 of 1996 fol.

(b) Maxim---

----Necessitas publica major est quam privata---Applicability.

Fida Gul for Petitioner.

Amir Javed for Respondents.

Date of hearing: 5th June, 2014.

2015 C L C 134

[Peshawar]

Before Muhammad Daud Khan, J

SARDAR ALI and another----Petitioners

Versus

AQIL MIN KHAN----Respondent

Civil Revision No.654 of 2011, decided on 24th September, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Transaction, nature of---Sale or exchange---Procedure---Contention of defendants was that transaction being exchange was not pre-emptible---Suit was decreed concurrently---Validity---Framing or non-framing of issues would lose significance if parties had produced their evidence---Trial Court had wrongly placed burden of proof on the plaintiff to prove exchange of land---Framing of issues and shifting burden of proof on the party who was not bound to prove the same was incorrect---Exchange of land did not fall within the ambit of sale and same was not pre-emptible---Defendants were bound to prove exchange of land as they had taken the shelter of the same to ward off right of pre-emption---Patwari halqa had neither produced 'Fard' of ownership of plaintiff nor impugned mutation had been brought on record---Right of pre-emption was substantive right and same should not be defeated by technicalities---Evidence got recorded by both the parties was deficient to reach on just conclusion---For just decision of the case it was necessary to call patwari halqa as court witness to submit relevant mutations, Fard Jamabandi of ownership of both the parties and price of land adjacent to the suit land sold out in near past---Revision was accepted and impugned judgments and decrees of both the courts below were set aside and case was remanded to the Trial Court with the direction to examine patwari halqa as court witness and decide the case afresh.

Fazal Rehman v. Khursheed Ali and others 2004 CLC 359; Amir Nawaz Khan and 2 others v. Rahmatullah Khan 2010 CLC 1474; Muhammad Ashraf v. Haji Muhammad Yar and 3 others 2012 MLD 1426 and Said Kamal Shah's case PLD 1986 SC 360 rel.

Amir Gulab Khan and Aziz-ur-Rehman for Petitioners.

Sayed Tahar Khan and Muzafar Khan for Respondent.

Date of hearing: 24th September, 2013.

2015 C L C 150

[Peshawar]

Before Abdul Latif Khan, J

SULTAN alias KALOO----Petitioner

Versus

Haji MUHAMMAD KHAN and another----Respondents

Civil Revision No.88 of 2011, decided on 27th September, 2013.

(a) Malicious prosecution---

---Suit for damages---Plaintiffs filed suit for damages on the ground that defendant lodged criminal complaint which was dismissed---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---No receipt with regard to payment of fee to the counsel or expenses incurred upon the litigation in complaint case had been annexed with the plaint---No evidence to such effect had been produced---Name of counsel was not mentioned nor he was produced as witness in support of claim by the plaintiffs---Plaintiffs had failed to prove the damages with regard to defamation and mental torture---Plaintiffs were not arrested and case was not tried but same was dismissed in limine and accused were discharged---Plaintiffs failed to prove as to how they suffered damages and mental torture---No evidence was produced that defendant acted without reasonable and probable cause or they were actuated by malice---Ingredients of malicious prosecution were lacking in the present case---Complaint was dismissed on account of pendency of civil cases rather than on merits---Appellate Court was swayed by the consideration other than judicial---Extraneous material had been based upon for awarding decree instead of scanning evidence available on file---No reason had been assigned by the Appellate Court for grant of decree in favour of plaintiffs---Impugned judgment was not sustainable in the eye of law---Revision was accepted and judgment of Appellate Court was set aside and that of Trial Court was restored.

(b) Malicious prosecution---

----Ingredients---Ingredients to establish malicious prosecution were; that plaintiff was prosecuted by the defendant; that prosecution ended in favour of plaintiff; that defendant acted without reasonable and probable cause: that defendant was actuated by malice; that the proceedings had interfered with plaintiff's liberty and had also affected his reputation and plaintiff had suffered damages.

Muhammad Khurshid Qureshi for Petitioner.

Bahadar Khan and Noor Gul Khan for Respondents.

Date of hearing: 27th September, 2013.

2015 C L C 162

[Peshawar]

Before Waqar Ahmad Seth, J

ABDUL QAYYUM----Petitioner

Versus

Mst. ASMA EJAZ----Respondent

Civil Revision No.419 of 2005, decided on 30th August, 2013.

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

----S. 4---Transfer of Property Act (IV of 1882), S.52---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and perpetual injunction---Doctrine of lis pendens, applicability---Original owner of property/predecessor-in-interest of the parties, died leaving behind two widows---First widow had only one son, while second one, had two sons---One son of second widow died leaving behind a daughter who also died leaving behind one daughter---Plaintiff, the only son of first widow of original owner, was consanguine brother of deceased son of second widow, who died without leaving behind any male issue at the time of his death---Grand-daughter of deceased son of original owner, would stand for her mother, the daughter of deceased son, as deceased did not have any son---Predeceased daughter would get 1/2 share from her father under S.4 of Muslim Family Laws Ordinance, 1961, but her daughter, would get 1/2 share from the inheritance of her deceased mother, and not the whole---Section 4 Muslim Family Laws Ordinance, 1961, would not increase said daughters' share, her entitlement would come down to 1/4 in the total legacy of her deceased grandfather and 3/4 thereof would go to plaintiff/only son of first widow of original owner, being consanguine brother of deceased, who died without leaving behind any male issue---Impugned inheritance mutation was cancelled, so was the result of all subsequent mutations attested on the basis of said inheritance mutation under the doctrine of 'lis pendens'---Impugned judgments and decrees of the courts below, were set aside and suit filed by the plaintiff was decreed, in circumstances.

Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Khawaja Ziaul Islam v. Alauddin Malik and another 2010 CLC 273 rel.

Haji Ghulam Rasul for Petitioner.

Abdul Rauf Khan Jadoon for Respondents.

Date of hearing: 30th August, 2013.

2015 C L C 223

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD HASHIM----Petitioner

Versus

SONA KHAN and 5 others----Respondents

Civil Revision No.239 of 2009, decided on 8th July, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 22---Transfer of Property Act (IV of 1882), S.52---Talbs, performance of---Sale of property by vendee after institution of pre-emption suit---Scope---Plaintiff filed pre-emption suit which was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Suit was filed on 19-6-2001 against sale deed attested on 12-3-2001, however, suit property was subsequently transferred back to the vendor through registered deed attested on 1-5-2001---Plaintiff had alleged knowledge of sale on 11-6-2001 and notice of Talb-i-Ishhad was issued on 13-6-2001---Subsequent transfer was made prior to performance of alleged Talb-i-Muwathibat and sending of notice of Talb-i-Ishhad---Plaintiff had to file suit against the fresh transaction and not previous one which did not even exist at the relevant juncture---No suit for pre-emption was filed against the subsequent sale and same remained unchallenged---Right of pre-emption was exercised with regard to previous sale which had ended---Plaintiff had not performed talbs against the subsequent transaction as no suit for pre-emption had been filed against the same---Defendants/vendees were not restrained from the transfer of property in the name of vendor or anyone else prior to the institution of suit---Right of plaintiff, if vendee entered into fresh transaction/sale during pendency of suit, would not be effected but if same was prior to the institution of suit then neither S.22 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 nor S.52 of the Transfer of Property Act, 1882 would be applicable---Revision was dismissed in circumstances.

Abdul Yaseen Khan's case 2004 SCMR 1270 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 22---Sale of property by vendee after institution of pre-emption suit---Validity---Sale/resale of the property by vendee after the institution of pre-emption suit would be barred because once suit for pre-emption was instituted; the right of the plaintiff would not be effected by improvement in his status by vendee except through inheritance.

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

----S. 52---Transfer of property during pendency of suit---Scope---Lis pendens, principle of---Applicability---Section 52 of the Transfer of Property Act, 1882 would be applicable if the sale/resale took place during the pendency of the suit---Sale/further sale took place prior to the institution of the suit would not come within the principle of lis pendence.

S. Mastan Ali Zaidi and Malik Muhammad Jahangir Awan for Petitioner.

Tariq Aziz Baloch for Respondents.

Date of hearing: 8th July, 2013.

2015 C L C 250

[Peshawar]

Before Malik Manzoor Hussain, J

MUNAWAR AHMAD and others----Petitioners

Versus

REHMAT KHAN----Respondent

Civil Revision No.12 of 2012, decided on 19th November, 2013.

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

----S. 42---Suit for declaration---Contention of plaintiffs was that they were owners of suit property and transfer deed in favour of defendants was forged and fictitious one and they were given temporary possession of the same---Suit was dismissed concurrently---Validity---Transfer deed was duly executed by the plaintiffs for sale consideration having boundaries of suit property---Defendants not only improved the suit land by spending huge amount but they had also constructed their houses on the same---Defendants produced scribe and marginal witnesses of transfer deed who supported the execution of the same and transfer of possession in their favour---No witness or document had been produced on behalf of plaintiffs to prove their contention---Plaintiffs had failed to prove the fact that they had given the property in question to the defendants temporarily or as Sadqa (gift)---Both the courts below had properly thrashed the material available on file and correctly applied the law---Concurrent findings of fact could not be disturbed in revisional jurisdiction unless impugned judgment was perverse or patently illegal---Revision was dismissed in circumstances.

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

----O. XXVI, R. 9---Appointment of local commission for spot inspection---Scope---Court had discretion to order spot inspection but same was not mandatory---Spot inspection through local commission was not permissible where controversy could be resolved by producing evidence by the parties.

Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292; Dr. Tahir Mehmood Awan v. Tariq Mehmood and others 2006 MLD 1457 and Jalal Khan and 10 others v. Kando Malik and 24 others 2003 SCMR 1351 rel.

Latifullah Khan for Petitioners.

Ahmad-ud-Din Khan for Respondent.

Date of hearing: 19th November, 2013.

2015 C L C 265

[Peshawar]

Before Yahya Afridi and Musarrat Hilali, JJ

PESHAWAR UNIVERSITY TEACHER'S ASSOCIATION (PUTA) through General Secretary and 3 others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others----Respondents

Writ Petition No.784-P of 2014 with Civil Miscellaneous Nos.327, 328 and 329 of 2014, decided on 9th June, 2014.

(a) Constitution of Pakistan---

----Art. 199--- Constitution petition--- Maintainability--- Scope---'Aggrieved person'---Locus standi---Scope---Seeking writ of Quo warranto' or 'Habeas corpus', locus standi of such person is not decisive regarding maintainability of petition, so filed; it is only with regard to writ of 'Mandamus',Prohibition' and 'Certiorari' that locus standi of person seeking the same would be relevant and crucial in regarding maintainability of petition.

(b) University of Peshawar Act, 2011, (I of 2012)---

----Ss. 23 & 11(3)---Constitution of Pakistan, Art.199---Constitutional petition---Pro bono publico---Land of university, protection of---University of Peshawar was given 83 acres of land on lease to establish Center for Plant Biodiversity but subsequently provincial government resumed major portion of land and leased out to some other institutions---Petitioner was association of teachers of Peshawar University who were aggrieved of the decision of provincial government---Plea raised by authorities was that petitioner did not have any locus standi to file petition---Issue of 'standing' of person being aggrieved' of a decision, was not to be narrowly or strictly viewed---Phenomenon ofwhistle blowers' and socially active and aware citizens voicing their concern regarding action and inaction of executive had developed as a recognized criterion of `standing'---Syndicate of University was vested under S.23 of University of Peshawar Act, 2011, to determine matters relating to property of the University---High Court showed great concern over silence and inaction of Vice-Chancellor, in view of powers vested in him under S.11(3) of University of Peshawar Act, 2013, to take up matters, even where it was beyond his mandate---High Court expected much from Vice-Chancellor, when valuable rights of the University were being taken by Executive authority of the Province---High Court observed that action of Chief Minister without providing any hearing to the University and step taken in pursuance thereof was illegal and without lawful authority and directed the Vice-Chancellor of University of Peshawar to place proposal of Chief Minister before the Syndicate of the University for a decision---Petition was allowed accordingly.

Salahudin's case PLD 1975 SC 244; Israr Hussain's case 2014 PLC (C.S.) 300; Dr. Muhammad Sadiq Saleem's case 2008 PLC (C.S.) 25; Aslam's case 2005 CLC 759; Messrs Facto Belarus Tractors Limited Karachi's case PLD 2006 Kar. 479 ref.

Habibullah Energy Limited's case PLD 2014 SC 47 rel.

Mian Muhibullah Kakakhel and Muhammad Farooq Afridi for Petitioners.

Abdul Latif Yousafzai, A.-G. and Waseem-ud-Din Khattak for Respondents Nos.1 to 5.

Date of hearing: 9th June, 2014.

2015 C L C 282

[Peshawar High Court]

Before Waqar Ahmed Seth, J

Mrs. NAHEED KAMAL AZFAR----Petitioner

Versus

G.D.A.----Respondent

Writ Petition No.482-A of 2014, decided on 1st October, 2014.

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

----Ss. 220, 372, 249 & 253---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of immovable property---Letter of administration---Scope---Petitioner applied for transfer of plot but respondent-department issued letter asking him to get permission of the court for the sale of the same and submit the succession certificate---Validity---Demand of respondent-department was not legal as succession certificate was issued against the movable property---Petitioner had produced letter of administration which had cleared the matter and there was no need of further permission for sale of property by the court---Constitutional petition was accepted in circumstances.

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

----S. 372---Succession certificate---Object---Succession certificate could be issued only for debts and securities which would never give any general power of administration on the estate of the deceased nor same would establish title of the grantee as the heir of the deceased---Succession certificate would only furnish the grantee with authority to collect debts due to the deceased and would allow the debtors to make payment to him with incurring loss---Object of succession certificate was to facilitate the collection of debts, to regulate the administration of succession and to protect person who was going to deal with the alleged representatives.

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

----Ss. 220, 249 & 253---Letter of administration---Scope---All rights belonging to the intestate would vest in the holder of letter of administration the moment same was granted by the competent court of law and only two conditions could limit such letter of administration when same was with regard to will or court of competent jurisdiction had granted the same for limited purpose.

Fazal-e-Abbasi for Petitioner.

Nemo for Respondent.

Date of hearing: 21st October, 2014.

2015 C L C 290

[Peshawar]

Before Lal Jan Khattak, J

KAKI----Petitioner

Versus

AQLEEMUN and 3 others----Respondents

Civil Revision No.448-M of 2011, decided on 28th August, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Oral sale---Scope---Disposal of appeal without deciding of miscellaneous application---Effect---Contention of plaintiff was that Appellate Court had dismissed appeal without deciding the application moved by him which was an illegality---Validity---Appellate Court was bound to decide first miscellaneous application before the disposal of appeal---Appellate Court had not decided miscellaneous application filed by the plaintiff but such omission ipso facto would not nullify its judgment on the main appeal---Such omission should be seen in juxtaposition with merits of the case and contents of the miscellaneous application---Non-disposal of application would not be taken seriously if same had no direct bearing on the merits of the case---Non-disposal of miscellaneous application had not brought any prejudice to the case of plaintiff---Case was not to be remanded to the Appellate Court for re-decision on such score alone---Plaintiff had not given details with regard to sale when he had purchased the suit land---Impugned sale was verbal and no other person except the seller was present with him at the time of sale---Courts below had rightly non-suited the plaintiff for his failure to prove his case---Suit land had been recorded in the name of defendant---Presumption of truth and correctness was attached to revenue record---Such presumption was rebuttable and strong evidence was required for the same which was not available in the present case---Both the courts below had properly appreciated the evidence---No illegality, misreading or non-reading of evidence was pointed out by the plaintiff---Revision was dismissed in circumstances.

Hamayun Khan for Petitioner.

Mir Akbar Khan for Respondent.

Date of hearing: 28th August, 2014.

2015 C L C 298

[Peshawar]

Before Abdul Latif Khan, J

ALAMGIR KHAN and 9 others----Petitioners

Versus

Mst. ZEB JEHAN and others----Respondents

Civil Miscellaneous No.531 with Civil Revision No.352-M of 2013, decided on 6th August, 2014.

Islamic Law---

----Will---Scope---Will would be valid to the extent of 1/3rd of the property---Testator could not bequest his entire property, however he could bequest only 1/3rd of his entire property with the consent of legal heirs---Property could not be bequested in favour of legal heirs without the consent of other legal heirs---Scribe of will deed in the present case, was not mentioned nor had been produced by the plaintiffs---Contents of will deed were against Quranic version, Sunnah and law---Muslim could exercise his right to utilize his property as he wished in his lifetime by alienating the same in any manner but he had no right to by-pass the dictates of Quran, Sunnah and prevailing law---Testator had no authority to deprive the legal heirs of their shari shares through will deed---Inheritance mutation had been attested prior to execution of will deed---Statements of marginal witnesses of will deed were full of contradictions---Notary public who attested the will deed had not entered the same in his register---Legal right which had bestowed upon the heirs could not be jeopardized by executing an unregistered deed which was not in the knowledge of legal heirs---Consent of other legal heirs had not been obtained while executing the will deed---Said will deed had not been proved nor the same contained the description of property---Legal rights of defendants to the extent of their 'shari' shares could not be disturbed---Inheritance mutation attested in accordance with law was not liable to be annulled which was maintained---Plaintiffs were bound to prove partition deed by producing cogent and confidence inspiring evidence---Partition deed was unregistered document which had not been proved---Temporary arrangement of partition for the purpose of produce of land would not amount to permanent private partition or a legal partition---Both the courts below had decided the lis with conscious and application of independent mind---Revision was dismissed in circumstances.

Muhammadan Law and Zardad v. Ali Akbar and 8 others 1989 CLC 2028 rel.

Fazal Rehman and Amanullah for Petitioner.

Malak Ahman Jan for Respondent.

Date of hearing: 6th August, 2014.

2015 C L C 441

[Peshawar]

Before Mian Fasihul Mulk, J

AMIR NAWAZ KHAN----Petitioner

Versus

WALI JAN and others----Respondents

Civil Revision No.67-P of 2012, decided on 9th December, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Witnesses of plaintiff were unanimous on date, time and place of making jumping demand by him---"Majlis"---Connotation---Both the courts below had taken into consideration minor discrepancies and contradictions in the statements of witnesses of plaintiff---Plaintiff and his witnesses had corroborated the assertion that the moment plaintiff came to know the sale, he immediately made demand in the same sitting by declaring his intention to exercise right of pre-emption---Plaintiff after fulfilling requirement of immediate demand served notice of Talb-i-lshhad wherein he specifically mentioned the date when he acquired knowledge of sale transaction--Plaintiff had complied with legal requirements of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Both the courts below had indulged themselves in strict scrutiny of oral evidence to find faults, minor omissions and contradictions which was against the law---Rules and standards for appraisal of evidence in civil cases were different from those of criminal cases---Both the courts below had misread and non-read evidence of plaintiff available on record---Oral evidence to the effect that everyone had the knowledge of sale would not mean that he had knowledge of the same---Knowledge of other persons could not be presumed to he knowledge of the suitor---Plaintiff had produced copy of notice of Talb-i-Ishhad in evidence along with postal receipt and strong presumption would be that said notice had been received by the addressee---Plaintiff had performed Talb-i-Ishhad in accordance with law---Both the courts below had acted in disregard of law and principle of appraisal of evidence---Impugned judgments were not based on proper appreciation of law and same were liable to be set aside---Plaintiff was directed to deposit the remaining sale price within a period of 30 days---Revision was accepted in circumstances.

Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others PLD 1976 SC 572 and Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Findings recorded by the courts below could be corrected in revisional jurisdiction.

(c) Words and Phrases---

----"Majlis"---Meaning---"Majlis" was "a place of sitting" used in the context of "council" to describe various types of special gatherings among common interest groups---Same would also denote a meeting or an assembly of persons and same could not be said to be an assembly of only one person.

Gul Sadbar Khan for Petitioner.

Mukhtar Ahmed Tangi for Respondents.

2015 C L C 500

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

HUSSAIN MUHAMMAD----Petitioner

Versus

VICE-CHANCELLOR, ISLAMIA COLLEGE, PESHAWAR and 4 others----Respondents

Writ Petition No.1841-P of 2013, decided on 28th November, 2013.

(a) Constitution of Pakistan---

----Arts. 199 & 8---Constitutional petition---Advertisement seeking application for foreign scholarship---Non-issuance of "no objection certificate" for grant of Ex-Pakistan study leave and refusal to release fund---Public policy---Bona fide of petitioner---Scope----Contention of respondent-University was that due to lapse of time and enhanced cost, the number of scholarships had been reduced---Validity---Policy decisions should not be interfered with by court while exercising constitutional jurisdiction under Art.199 of the Constitution---Facts of present case did not warrant exercise of constitutional jurisdiction striking down the impugned policy of the respondent-University when same was based on public policy aimed for transparency, reasonableness and natural justice---Petitioner had approached High Court with clean hands and he had crossed the main hurdle for his grievance to be entertained by the constitutional court---High Court had to consider the legality of retrospective application of impugned policy leading to the impugned decision affecting the rights of bona fide of petitioner in the award of scholarship---Any action of the executive or authority or even an enactment of the Parliament could be struck down due to violation of Fundamental Rights---Petitioner was seeking protection of his rights---Petitioner on applying for scholarship offered by the respondent-University through advertisement had acquired a right to be considered in accordance with the terms of advertised representation/offer made by the said University to the public at large---Said right had matured after the petitioner had taken certain steps in pursuance of advertisement which were recognized and accepted by the respondent-University---Right so acquired by the petitioner could not be taken away from him by the respondent-University unless there was any fraud, misrepresentation or illegality committed by him in applying or obtaining the said scholarship---Any change in respondent-University's policy with regard to the choice of subject after application had been received in pursuance thereof would not be correct and appropriate once offer was made by the respondent-University through advertisement to the public at large seeking application for scholarships---Representation/offer which was not in violation of any law, rules or public policy made by the respondent-University for seeking applications for award of scholarship through advertisement was by a competent authority---High Court declared policy of respondent-University as valid and legal but declared the cancellation of scholarship and inaction to grant "no objection certificate" to the petitioner to proceed on the awarded scholarship as illegal and without lawful authority---Respondent-University was directed to grant "no objection certificate" to the petitioner to proceed for the scholarship awarded to him---Constitutional petition was disposed of accordingly.

Amir Feroz Shamsi and another v. Institution of Business Administration and another 2006 SCMR 412; Landirenzo Pakistan (Pvt.) through Chief Executive Officer, Karachi and 3 others v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 6 others 2013 PTD 658; Montgomery Flour Mill's case PLD 1957 (W.P) Lahore 914; Ikram Bus Services' case PLD 1963 SC 564; Fazaldin's case PLD 1969 SC 223; Mian Rafi-ud-Din's case PLD 1971 SC 252; Dr. Abdur Rauf's case 1991 SCMR 483; Messrs Act International's Case 2013 YLR 1396; Ghulam Mustafa's case 1986 CLC 1056; Raza Hasan's case 1999 MLD 1469; Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---"Right" enforceable by High Court in exercise of constitutional jurisdiction---Scope and categories of such "right" stated.

Muhammad Ijaz Khan Sabi for Petitioner.

Ijaz Anwar for Respondents.

Date of hearing: 28th November, 2013.

2015 C L C 603

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

GUL ZAMAN----Petitioner

Versus

MUHAMMAD USMAN and 7 others----Respondents

Civil Revisions Nos.415 and 413 of 2008, decided on 29th November, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R.31---Judgment---Points for determination---Scope---Courts were required to record issue-wise findings in order to ensure that substantial justice had been done and no prejudice had been caused to the parties---Appellate Court, in the present case, neither recorded issue-wise findings nor set out points for determination---Trial Court and Appellate Court were bound to consider and discuss the evidence of both the parties---Impugned judgment passed by the Appellate Court had been recorded in a mechanical manner without discussing the material on record in detail---Revision was accepted and impugned judgment and decree passed by the Appellate Court were set aside and case was remanded for re-writing the judgment in accordance with law.

2002 CLC 427; 1991 CLC 1499 and 1992 CLC 435 rel.

Ghafoor Ahmad Qureshi for Petitioner.

Khalid Rehman for Respondents.

Date of hearing: 29th November, 2013.

2015 C L C 616

[Peshawar]

Before Mazhar Alam Khan Miankhel and Malik Manzoor Hussain, JJ

Mst. ZOHRA FALAK----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affair and 13 others----Respondents

Writ Petition No.2985 of 2010 and 475 of 2009, decided on 11th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Administration of justice---Responsibility---Grievance of petitioner was that order passed by High Court in earlier petition filed by her had not been implemented in letter and spirit---Validity---Held, it was not duty of the Courts only to provide justice to people but it was also duty of every organ and functionaries to provide justice by discharging their duties in accordance with law---Functionaries of the State were expected to give due respect to dictum laid down by superior Courts, which was not congenial and conducive for existence of country but also to run the State smoothly with mutual cooperation, respect and understanding---High Court directed the authorities to finalize proceedings by implementing order of High Court passed on 28-1-2010, in letter and spirit, without any further delay---Petition was allowed accordingly.

Messrs Airport Support Services v. The Airport Manager, Karachi 1998 SCMR 2268 ref.

Sher Muhammad for Petitioner.

Fazal Karim, Nasir Mehmood for Respondents.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 11th February, 2014.

2015 C L C 628

[Peshawar]

Before Malik Manzoor Hussain, J

HUMAYUN KHAN----Petitioner

Versus

ZAREEN KHAN----Respondent

Civil Revision No.702-P with C.M. No.539-P of 2014, decided on 3rd October, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Talbs, performance of---Requirements---Exercise of right of talbs by agent---Power of attorney---Scope---Suit was dismissed on the ground that special attorney had no authority to exercise the right of talbs---Validity---Plaintiff was out of country at the time of exercising talbs which were performed by his special attorney---Power of attorney was not found in genuine condition but same had been tampered/altered---Attorney was not specifically authorized qua performance of talbs with regard to suit property---Attorney had manipulated and tampered with power of attorney in order to fill lacuna---Talbs performed by attorney would carry no value if power of attorney did not specifically authorize to exercise right of Talb-i-Muwathibat or Talb-i-Ishhad---Power of attorney was restricted to institute a suit---Plaintiff had only delegated general authority to the attorney to conduct or defend cases on his behalf---No authority was vested in the attorney to exercise right under S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Only validly appointed agent could exercise right of requisite talbs on behalf of pre-emptor---Mere holding a general power of attorney would not empower attorney to exercise power of talbs rather he would be bound to perform his duties within four corners of said power of attorney---Performance of talbs was mandatory requirement and person exercising such right should be equipped with specific authority as provided under S.14 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Attorney was not given express power to exercise rights of talbs---Suit filed on the basis of such talbs was rightly dismissed by the Trial Court---No illegality or irregularity had been pointed out in the impugned judgments passed by the courts below---Revision was dismissed in limine.

Amjad Ali for Petitioner.

2015 C L C 636

[Peshawar]

Before Nisar Hussain Khan and Ikramullah Khan, JJ

PERVEZ KHAN----Petitioner

Versus

Mst. MEHTABA and others----Respondents

Writ Petition No.297 of 2005, decided on 10th December, 2013.

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

----S. 9---Constitution of Pakistan, Art.199---Constitutional petition---Suit for possession of immovable property---Factum of dispossession, determination of---Limitation---Scope---Documents to be considered by the court---Ingredients---Object and purpose of S.9, Specific Relief Act, 1877---Suit property was joint and a number of co-owners were recorded in the revenue record pertaining to year 1969---Revenue record pertaining to year 1991-92 had not been placed on the file---Khasra Girdawari would play a pivotal role for determination of factum of dispossession of a person from the land---Controversial issue between the parties could not be decided without bringing on record such important piece of evidence---No relief under S.9 of Specific Relief Act, 1877 could be granted without fulfilling necessary ingredients---Question of title either of plaintiffs' or of defendant's could not be raised or should not be given any consideration in such suit---Only possession over the land in question prior to institution of such suit would be counted as determinable factor for granting relief in such case---Such relief of possession could also be granted even against true owner of property---Question of ownership was not germane for invoking provision of S.9 of Specific Relief Act, 1877---Object and purpose of such provision was to provide summary relief even with no right of appeal---Plaintiffs were recorded as co-owners of suit property but they had failed to establish possession over the same within six months prior to institution of suit through reliable and authentic documentary proof---Copies of available revenue record should be brought on file for safe administration of justice---No authentic reliable and fresh copies of Khasra Girdawari and Fard Jamabandi had been exhibited on record---Impugned judgments passed by the courts below were result of abuse of jurisdiction and same were passed with jurisdiction not vested in them---Judgments passed by the courts below were void and could not sustain and same were set aside with the direction to the Trial Court to place on record all the available revenue record pertaining to year 1991-92 and then decide the lis in accordance with law---Constitutional petition was accepted in circumstances.

Messrs Pakistan Cables Limited v. Messrs Mandviwala Estate (Pvt.) Limited 2005 YLR 53 rel.

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

----S. 9---Suit for possession of immovable property---Ingredients---Plaintiff had to prove that he was in possession of suit property; that he had been dispossessed by the defendant otherwise than in due course of law and such dispossession had taken place within six months of the suit which should be reckoned from the date of dispossession.

Mian Shaukat Hussain for Petitioner.

Muhammad Arif Khan and Ishfaq Ahmad Jhagra for Respondents Nos.17 to 21.

Date of hearing: 10th December, 2013.

2015 C L C 649

[Peshawar]

Before Lal Jan Khattak, J

SECRETARY TO GOVERNMENT OF KHYBER PAKHTUNKHWA COMMUNICATION AND WORKS DEPARTMENT and 10 others----Appellants

Versus

PERVAIZ IQBAL----Respondent

Regular First Appeal No.53-D of 2013, decided on 7th October, 2013.

Arbitration Act (X of 1940)---

----S. 18---Qanun-e-Shahadat (10 of 1984), Art.114---Suit for recovery of money---Arbitration clause, non-invoking of---Estoppel, principle of---Applicability---Plaintiff was a contractor and filed suit for recovery of escalation charges with regard to contract completed by him---Trial Court decreed the suit in favour of plaintiff---Plea raised by authorities was that at the time of clearance, plaintiff submitted "No Demand Certificate" and there was arbitration clause which he did not invoke---Validity---"No Demand Certificate" was of no help to authorities for non-suiting plaintiff as neither the same expressly mentioned any waivering of escalation charges nor there was any legal backing behind it which could debar plaintiff from claiming his due right---Arbitration clause was not one sided cycle and authorities themselves could have referred the matter to arbitrator who was their own officer but authorities were not serious in resolving dispute through arbitrator---Instead of directing plaintiff to approach court of law, authorities could have directed him to go for arbitration or they themselves could have sent the issue to arbitrator---Authorities were estopped to raise a plea and due to non-availing of arbitration clause plaintiff could not be non-suited---Plaintiff had proved his case for claiming escalation charges from department as on merit his claim for such charges had not been disputed by authorities and only on technical grounds, his claim was denied which denial and resistance was not based on any legal footings---Plaintiff was entitled to decree in his favour and Trial Court had committed no illegality in decreeing his suit---Decision of Trial Court was well-reasoned and was based on proper appreciation of facts and evidence produced before Trial Court---High Court in exercise of appellate jurisdiction declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Sanaullah Khan Shamim, A.A.-G. for Appellants.

Zia-ur-Rehman Qazi for Respondent.

Date of hearing: 7th October, 2013.

2015 C L C 676

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. MEHR AFZOON----Appellant

Versus

T.M.A.----Respondent

Regular First Appeal No.66-A of 2009, decided on 20th December, 2013.

Land Acquisition Act (I of 1894)---

----S. 18---Acquisition of land---Compensation, determination of---Valuation table--- Scope--Grievance of land owners was that Referee Judge relied upon valuation table prepared by Deputy Commissioner and did not fix proper compensation of their lands according to market value---Validity---Valuation table on the basis of which Referee Judge assessed value of property was meant for stamp duty and other taxes chargeable and was never meant for compensation purposes---Determination of Referee Court was not according to legal and equitable criteria which had been laid down under the law and wisdom of Supreme Court---For proper assessment of compensation the only available document, which led to equitable compensation was report of Local Commissioner vide which compensation had been proposed at the rate of Rs.250,000 per Marla, which seemed to be genuine, legal, proper, just and equitable according to prevailing trend of hike in prices of landed property---Acquired land had a future potentiality and was situated in mid-city as well as on road side---High Court set aside judgment and decree passed by Referee Court and landowners were entitled to compensation of acquired land at the rate of Rs.200,000 per Marla besides 6% simple interest from the date of possession till payment---Appeal was allowed accordingly.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 and Sultan Shah and another v. Land Acquisition Collector, Swabi and others PLD 2011 Pesh. 60 ref.

Mehboob Ali for Appellant.

Sardar Mushtaq and Miss Saima Razzaq for Respondents.

Date of hearing: 20th December, 2013.

2015 C L C 699

[Peshawar]

Before Ikramullah Khan, J

ZAHID RAZA KHAN----Petitioner

Versus

PROVINCIAL GOVERNMENT N.-W.F.P. through Collector Land Acquisition Provincial Urban Development Board, Peshawar and 3 others----Respondents

Civil Revision No.65 of 2007, decided on 4th November, 2013.

(a) Khyber Pakhtunkhwa Urban Planning Ordinance, (IV of 1978)---

----Ss. 52, 49, 3, 55, & 60---Specific Relief Act (I of 1877), Ss. 42 & 8---Civil Procedure Code (V of 1908), S.9---Suit for declaration and possession---Land acquisition---Requirements---Award---Appeal---Scope---Contention of plaintiffs was that award with regard to acquisition of land was result of fraud and was illegal and without jurisdiction and no notice of such acquisition was sent to them---Suit was dismissed concurrently---Validity---Suit property was acquired for public purpose which was mentioned in the award issued under the provisions of Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 which was a special enactment---Land in question was not acquired under the provisions of Land Acquisition Act, 1894---Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 was enacted for the development and establishment of towns in urban areas which had overriding status over Land Acquisition Act, 1894 which was meant for general acquisition of land---Section 49 of Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 had excluded the operation and applicability of Land Acquisition Act, 1984---Department had fulfilled requirements before passing award and notices were duly published---Plaintiffs had neither objected on the mode of publication of notices nor had raised any such objection in their statements recorded before the Trial Court---Plaintiffs could not be allowed to raise a new plea at revisional stage which was not agitated before the lower Appellate Court---Impugned award was challenged by the plaintiffs and they claimed for enhancement of amount which remained intact up to the Supreme Court---Plaintiffs did not raise any objection during the course of acquisition and no appeal was preferred under S.60 of Khyber Pakhtunkhwa Urban Planning Ordinance, 1978---Present suit had been filed after 3 years of passing of impugned award---Plaintiffs had not taken the plea of non-service of notices prior or during the acquisition process in their pleadings---Compensation amount had been received by the plaintiffs without protest and they were precluded from filing of present suit as they did not avail the remedy by filing of appeal---When a particular procedure was provided by a special law for the redressal of a particular grievance then special procedure provided by the special statute should be followed---Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 was a special enactment wherein a particular procedure for redressal of any grievance arising from any act or omission with regard to acquisition of land had been provided and same should be followed in letter and spirit---Person who remained indolent and went in a deep slumber could not be given premium for his indolence and to re-open a past and closed matter in a civil suit---No illegality or irregularity had been pointed out in the impugned judgments passed by the courts below---Findings of facts recorded by the courts below were based on elaborate, reasoning and construction of correct facts---Revision was dismissed in circumstances.

Khan and others v. Province of Punjab and others 2005 SCMR 1135; Said Umar Shah v. Hasham and others PLD 1978 Pesh. 3; Zahurul Haq v. Republic of Pakistan PLD 1960 SC 113 and Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangash and another 2010 SCMR 817 rel.

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

----S. 9---Jurisdiction of civil courts---Scope---Civil courts were forum having plenary jurisdiction but the provisions of S.9, C.P.C. were to be read and given effect to in its true perspective---Special Tribunal or Authority should be given preference for a particular relief where special procedure and special forum was provided in any other law and recourse to civil courts should be avoided---Section 9, C.P.C. would bar and exclude the jurisdiction of civil courts in the matters whereof special procedure and Special Tribunal or Authorities were constituted and established for the redressal of a particular grievance.

Mian Muhammad Younas Shah for Petitioner.

Sabah Uddin Khattak for Respondent.

Date of hearing: 4th November, 2013.

2015 C L C 765

[Peshawar]

Before Ikramullah Khan, J

MUHAMMAD SALEEM GUL----Petitioner

versus

Mst. SAKEENA through L.Rs. and another----Respondents

Civil Revision No.1680 of 2011, decided on 25th October, 2013.

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

----Ss. 68 & 56---Sale of mortgaged property---Scope---Contention of plaintiff was that defendants could not sell the suit property which was already mortgaged with him---Suit was dismissed concurrently---Validity---Suit house was given in the possession of plaintiff on term of tenancy and rent deed cum mortgage deed was executed wherein defendants admitted acknowledgment of Rs.3,00,000---During the subsisting of rent agreement defendants sold suit property and concealed the fact of said deed---Remedies available to the plaintiff was that of a suit for foreclosure whereas defendants had to file a suit for redemption but both the parties did not adopt the proper course either of foreclose to for redemption of the suit house---Mortgagee-plaintiff was entitled to receive the mortgage money---No bar existed on the sale purchase of a mortgaged property except that mortgage was always considered a charge over the property sold which was previously mortgaged---Buyer of suit house would step into the shoes of mortgagor/vendor and he could not acquire better title than which was at the time of sale---Right of such buyer and mortgagee had been protected under S.56 of Transfer of Property Act, 1882---No prejudice had been caused to the plaintiff as he had been compensated and a decree for mortgage money had already been awarded to him---Equity would demand that plaintiff should be relieved of the costs imposed upon him by the courts below---Plaintiff being mortgagee of suit house might retain its possession till the said house was redeemed in accordance with law---Plaintiff was entitled to receive back the mortgage money of Rs.3,00,000---Findings rendered by the courts below were based on correct appreciation of law and facts except the amount of costs imposed on the plaintiff---Revision was dismissed in circumstances.

Mian Shaukat Hossain for Petitioner.

Qazi Babar Irshad for Respondents.

Date of hearing: 25th October, 2013.

2015 C L C 805

[Peshawar]

Before Rooh-ul-Amin Khan, J

Mst. BACHHO----Petitioner

versus

ABDUL QAYYUM KHAN alias HABIB ULLAH and 14 others----Respondents

Civil Revision No.522 of 2011 with Civil Miscellaneous No.89-D of 2013, decided on 17th June, 2014.

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

----O. XLI, R. 31---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Judgment in appeal---Points for determination---Scope---Appeal was in continuation of suit and Appellate Court was final court of facts---Dismissal of appeal at preliminary stage without hearing the other side to be discouraged---Appellate Court was bound to state points for determination and reasons for decision thereon---Said court was required to deal with each and every aspect of the case while hearing appeal by re-opening the entire controversy---Appellate Court was bound to go through the entire evidence recorded by the Trial Court and discuss threadbare for its satisfaction---Appellate Court had decided the appeal in limine without calling the record of the present case---Appellate Court was under legal obligation to decide the dispute in the manner prescribed under O.XLI, R.31, C.P.C. which was mandatory provision of law otherwise judgment would not be in accordance with law---Appellate Court was to decide finally all the questions of facts and law involved in the case as judgment of Trial Court would disappear and merge in the judgment of said court and same would only remain in existence---Judgment of Appellate Court should contain the points for determination of dispute and same should have reasons for decision which were lacking in the impugned judgment---Impugned judgment was set aside and case was remanded to the Appellate Court for decision afresh on merits in accordance with law---Revision was accepted in circumstances.

Abid Hussain v. Mst. Afsar Jehan Begum and others PLD 1973 SC 1 rel.

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

----O. XLI, R. 31---Judgment in appeal---Points for determination---Object---Object of O.XLI, R.31, C.P.C. was to provide a pavement to the Appellate Court for writing a good, characteristic and self-explanatory judgment.

Muhammad Waheed Anjum for Petitioner.

Salahuddin Khan Gandapur and Malik M. Jehangir Awan for Respondents.

Date of hearing: 17th June, 2014.

2015 C L C 814

[Peshawar]

Before Mrs. Irshad Qaiser and Yahya Afridi, JJ

SHAFIQUR REHMAN----Petitioner

versus

PESHAWAR DEVELOPMENT AUTHORITY (PDA), PESHAWAR through Director-General and 4 others----Respondents

Writ Petition No.3399-P of 2012, decided on 15th May, 2014.

(a) Khyber Pakhtunkhwa Building Regulations, 1985---

----R. 27---Parking of vehicles---Arrangement---Parking space has to be retained in all proposed building structures seeking approval of Peshawar Development Authority under regulatory regime.

(b) Maxim---

----Necessitas publica major est quam privata---Meaning---Public necessity is greater than private and necessary requirements of public good are stronger and prevail against private or individual necessity or right.

(c) Khyber Pakhtunkhwa Building Regulations, 1985---

----R. 27---Constitution of Pakistan, Art.199---Constitutional petition---Building plan---Parking of vehicles---Disputed question of fact---Petitioner was running a hospital and did not have parking space for patients visiting hospital---Peshawar Development Authority directed petitioner to make arrangement for parking of vehicles inside hospital area---Validity---Contentions of petitioner were questions of fact, which could not be resolved on available record and required recording of 'pro and contra' evidence of parties---High Court, however, issued directions and observed that Peshawar Development Authority was a development authority and custodian of urban planning and was obliged to apply Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 and Khyber Pakhtunkhwa Building Regulations, 1985, for urban planning of buildings and to all building structures without fear or favour---High Court declined to interfere in direction issued by Peshawar Development Authority---Petition was dismissed in circumstances.

Ghulam Nabi's case PLD 2001 SC 415; Shamim Khan's case PLD 2005 SC 792; Muhammad Sadiq v. Ilahi Bukhsh 2006 SCMR 12 and Watan Party's case PLD 2012 SC 292 ref.

Qazi Muhammad Anwar for Petitioner.

Aamir Javed and Syed Qaiser Ali Shah, A.A.-G. for Respondents.

Date of hearing: 15th May, 2014.

2015 C L C 834

[Peshawar]

Before Malik Manzoor Hussain, J

SAEED-UR-REHMAN----Appellant

versus

CENTRAL BOARD OF REVENUE, through Director General Intelligence, Islamabad and 2 others----Respondents

Regular First Appeal No.3 of 2004, decided on 3rd February, 2014.

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

----O. VII, R. 11---Customs Act (IV of 1969), S.217---Suit for recovery of damages on the basis of mental torture, humiliation and disrespect---Maintainability--- Scope--- Rejection of plaint--- Scope--- Appeal---Competence---Plaintiff filed suit wherein defendants moved an application for rejection of plaint which was accepted by the Trial Court---Validity---Defendants-Customs and Excise Department received information that plaintiff-company which was recorded as closed was in production and was supplying the goods/cigarettes in the market without payment of Central Excise duty and sales tax---Factory of plaintiff was visited by the Customs officials and record was taken into possession which was involved in the production of cigarettes---Plaintiff-company had evaded central excise duty and sales tax and complaint was lodged against the same---Present suit was barred under S.217 of Customs Act, 1969---During pendency of appeal plaintiff had died before getting any decree in his favour and his legal heirs had been impleaded who could not continue to persue the suit after his death as right to sue in such case being personal to the deceased did not survive---Suit for compensation on the basis of wrong done was personal to the person wronged---No mala fide could be alleged in presence of such strong evidence against the official who were bound to protect the interest of the State---Plaint was rightly rejected by the Trial Court---Appeal was dismissed in circumstances.

A. Majid Sama v. The Asbestos Cement Industry Ltd. 1996 MLD 803 and Mercantile Co-Operative Bank Ltd. v. Messrs Habib and Co. and others PLD 1967 Kar. 755 rel.

(b) Maxim---

----"Actio personalis moritur cum persona"---Meaning---Personal right of action dies with the person.

Abdul Latif Afridi for Appellant.

Moin-uddin Hamayun for Respondents.

Date of hearing: 3rd February, 2014.

2015 C L C 872

[Peshawar]

Before Muhammad Daud Khan, J

AKHTAR ALI KHAN----Petitioner

versus

DILAWAR KHAN and 5 others----Respondents

Review Petition No.102-B of 2014 in Civil Revision No.107-B of 2014 with C.M. No.73-B of 2014, decided on 8th September, 2014.

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

----S. 114 & O. XLVII, R. 1---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), Ss.2(d), 5, 13 & 31---Qanun-e-Shahadat (10 of 1984), Art.114---Review---Sale---Definition---Pre-emption suit on the basis of Iqrarnama was dismissed by Trial Court, Appellate Court and the High Court in revision---Contention of pre-emptor was that sale had been effected through registered sale deed and he had right to pre-empt the same after registration of deed through fresh suit---Validity---Suit was dismissed both on points of law and facts---Pre-emption suit was filed over the complete sale effected through unregistered sale deed---Point raised by the pre-emptor was not a new point---Right of pre-emption would come into force if transaction was "sale" notwithstanding the fact that registration or mutation had effected or not---What had been finally and conclusively determined by a competent court should be followed as legal truth---Law did not provide opportunity to re-open the matter at any time after it had been finally decided by a court of law---Litigation should be brought to its logical end---Principle of estoppel was also available against such litigation---Pre-emptor himself indulged the respondents by claiming pre-emption right over the impugned sale---Pre-emptor could not allege at this stage that he had instituted suit on premature sale and had right to re-adjudicate or re-open the case as one could not approbate or reprobate in the same breath---Review petition was dismissed in limine.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716 and Liaqat Ali v. Aziz-ur-Rehman 2010 YLR 2569 rel.

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

----S. 114 & O. XLVII, R. 1---Review---Scope---Scope of review was limited which could only be allowed if there was error apparent on the face of impugned judgment---Party could not be allowed to adjudicate the same facts which had already been decided---Review proceedings could not partake hearing of appeal/revision---Review could not be allowed on the discovery of some new material if same was available at the time of trial, appeal or revision.

Abdul Hakim and others v. Khalid Wazir 2003 SCMR 1501; Sajid Mehmood v. Muhammad Shafi 2008 SCMR 554 and Ali Ahmad v. Muhammad Iqbal 2009 SCMR 394 rel.

Sardar Naeem Khan for Petitioner.

2015 C L C 902

[Peshawar]

Before Nisar Hussain Khan, J

Mst. MEHER TAJA and 4 others----Petitioners

versus

NASEER MUHAMMAD and 2 others----Respondents

Civil Revision No.64 of 2008, decided on 3rd February, 2014.

(a) Islamic law---

----Gift---Execution of gift-deed---Joint possession of suit/gifted property---Effect---Plaintiffs claimed that deceased owner/doner of the suit property had no male legal heir except daughters/defendants, therefore they being his nephew were entitled to inheritance---Suit was decreed in favour of plaintiff and the appeal filed by defendants/daughters of the deceased was dismissed---Contention of the defendants/daughters were that their father/donor gifted the suit house in their favour in his life time by oral declaration, which was supplemented by deed as well, as such the suit was liable to be dismissed---Validity---Suit house had been gifted by the deceased father/donor to his daughters/defendants as they had been residing with their father jointly, though occasionally, as they were married and were residing in their respective houses, with their in-laws, but daughters of deceased father/donor had their liaison with the suit house---Joint possession of the donor and the donee after effecting gift was permissible and had not effected the validity of the very gift---For making valid gift, there was no need of execution of deed much less registered deed---Only requirement of a valid gift was offer, acceptance and delivery of possession which had been satisfied---Trial and Appellate Court fell in error in not appreciating the evidence in true perspective, therefore judgment and decree were set aside---Revision was accepted.

Para.152(3) of Muhammadan Law rel.

(b) Islamic law---

----Gift---Gift in favour of daughters by parents having no male legal heir---Execution of gift deed---Scope---Suit filed by nephews of the deceased donor was decreed in their favour---Appellate court dismissed the appeal filed by defendants/daughters of deceased father/donor---Validity---Donor/deceased father having no male issue made a gift of his residential house in favour of his daughters/defendants just to save them from the suffering at the hands of collaterals, so that they could reside or visit the house of their father with peace of mind without any interruption or resistance at the hands of other legal heirs---Common phenomenon of society is that the male legal heirs especially the collaterals normally treat the female with aggression and oppression---Father of the daughters/defendants had tried to safeguard them from the high-handedness of their collaterals---Execution of the gift deed qua the suit house in favour of the defendants daughters was not an unusual incident---Both the courts below had fallen in error in not appreciating the evidence in true perspective, therefore judgment and decree were set aside---Revision was accepted.

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

----S. 115---Revisional jurisdiction of Court---Scope---Concurrent findings of facts---Normally in concurrent findings of facts, courts in revisional jurisdiction did not interfere but when misreading and non-reading of evidence and misapplication of law was floating on the face of the record, it became imperative to interfere in such findings because non-interference in such concurrent findings of facts would cause grave miscarriage of justice.

Gul Sadbar for Petitioners.

Ashab Ali for Respondents.

Date of hearing: 3rd February, 2014.

2015 C L C 931

[Peshawar]

Before Lal Jan Khattak, J

GUL SHAD----Petitioner

versus

ROYEDAD and another----Respondents

Civil Revision No.135-M of 2013, decided on 20th August, 2014.

Civil Procedure Code (V of 1908) ---

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Compromise---Decree, setting aside of---Application under S.12(2), C.P.C. alleging fraud and misrepresentation---Contention of applicant was that he had purchased suit property and had possession of the same---Application was dismissed concurrently---Validity---Applicant had prima facie valuable rights and lawful interests in the suit land and he was necessary party to the suit---Applicant was initially arrayed as one of the defendants in the plaint but later on he was deleted from the panel of defendants on the application of respondent-plaintiff---Said application for deletion of applicant from the panel of defendants could be termed as a fraud and misrepresentation having been committed by the respondent-plaintiff upon the court---Suit property was purchased by the applicant and he was in possession of the same---Applicant was entitled to defend his interests in the suit land---Court was not required to go into deep appreciation of a document produced and relied upon by either of the parties to the suit while deciding an application under S.12(2), C.P.C. as such an exercise should be undertaken in case the said application was to be accepted---Tentative assessment of available material was to be made, as principles and considerations of appreciation of evidence in a regular suit and applications under S.12(2), C.P.C. were not the same but were altogether different---Applicant had proved that impugned decree was obtained through fraud and misrepresentation---Both the courts below had committed error while dismissing application and appeal of the applicant---Impugned judgments and decrees passed by the courts below were set aside and Trial Court was directed to decide the suit on merits---Revision was accepted in circumstances.

Parvaiz Khan for Petitioner.

Shamsul Hadi for Respondent No.1.

Respondent No.2: Ex parte.

Date of hearing: 20th August, 2014.

2015 C L C 953

[Peshawar]

Before Mazhar Alam Khan Miankhel and Malik Manzoor Hussain, JJ

Syed GHAZI GULAB JAMAL----Petitioner

versus

PRESIDING OFFICER, ELECTION TRIBUNAL, PESHAWAR and 2 others----Respondents

Writ Petitions Nos.2032-P, 2846-P, 3369-P of 2013 and 28-P of 2014, decided on 6th March, 2014.

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

----S. 67---Appeal---Locus standi---Mechanism of filing of appeal has been provided under section 67 of Representation of the People Act, 1976, but that would be only in the circumstances, when a party is aggrieved from final decision of Election Tribunal in main lis.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Interim orders---Principle---Generally, Constitutional petitions are filed and entertained against interim / interlocutory orders of the nature, which finally decide and interpret law and rules on issue and thus attain status of final orders or Court / Tribunal during pendency of a matter, commits any illegality or unlawful exercise of jurisdiction detrimental to rights of a party and aggrieved party at that stage has no legal remedy available to him under the law, then aggrieved party has naturally to look for Constitutional jurisdiction of High Court under Art.199 of the Constitution, as no one can be left remediless.

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

----S. 52---Constitution of Pakistan, Arts. 199 & 225---Constitutional petition---Election dispute---Bar contained in Art.225 of the Constitution---Scope---In appropriate cases, jurisdiction of High Court under Art.199 of the Constitution can be invoked and provisions of Art.225 of the Constitution and S.52 of Representation of the People Act, 1976, cannot completely oust jurisdiction of High Court.

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

----Ss. 54 (b) & 63(a)---Rules of Procedure, 1985, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Election petition---Schedule and annexures, non-sending of to the returned candidate (respondent)---Effect---Grievance of returned candidate was that Election Tribunal did not dismiss election petition as schedule and annexures were not sent to him---Validity---Failure to comply with such requirement of law would lead to dismissal of election petition under S.63 (a) of Representation of the People Act, 1976, as its penal clause had made its compliance necessary and mandatory---Provisions of S.54(b) of Representation of the People Act, 1976, did not refer to sending of schedule and annexure to respondents---Such was the requirement provided under R.1 of Rules of Procedure, 1985, which had laid down the procedure before Election Tribunal and though word 'shall' was used but its non-compliance did not refer to any penal provision and the same was alone sufficient to hold that it was directory in nature---By refusing summary dismissal, Election Tribunal exercised its jurisdiction strictly in accordance with settled law---High Court declined to interfere in the order passed by Election Tribunal---Petition was dismissed in circumstances.

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

----Ss. 54(b) & 55(3)---Constitution of Pakistan, Art.199---Constitutional petition--- Election dispute--- Non-verification of petition---Affidavit, annexing of---Effect---Grievance of returned candidate was that Election Tribunal did not dismiss election petition as the same was not verified---Validity---Affidavit of election petitioner was enclosed, which did not bear any date; verification of petition on oath on the same page was attested by Oath Commissioner and documents attached / annexed with election petition were also attested / verified---Requirement of law, substantial compliance by way of verification had been made by election petitioner---High Court declined to interfere in the order passed by Election Tribunal---Petition was dismissed in circumstances.

Maulvi Abdul Qadir v. Maulvi Abdul Wasey 2010 SCMR 1877 Bashir Ahmad Bhanbhan v. Shaukat Ali PLD 2004 SC 570 rel.

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

----S. 52---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Interim order---Official witness, non-summoning of---Effect---Grievance of election petitioner was that Election Tribunal had refused summoning of official witnesses during trial---Validity---Orders assailed by election petitioner, though were interim in nature but were detrimental to rights of both the petitioners, which was improper exercise of jurisdiction and election petitioners had no other proper and appropriate remedy, so Constitutional petition was rightly filed---Witnesses to be summoned and evidence required to be produced was of much importance and if brought on record could go to root of the case---Jurisdiction exercised by Election Tribunal in refusing to summon witnesses and to compare thumb impression of voters on counterfoils with record available with NADRA was not proper and was unlawful---High Court directed Election Tribunal to summon official witnesses and requisition record and set aside the orders passed by Election Tribunal---Petition was allowed in circumstances.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.158, Naushero Feroze and others 1994 SCMR 1299; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713; Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 310; Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others PLD 2008 SC 495; Mian Ziaur Rehman v. Syed Ahmad Hussain Shah and others in Writ Petition No.730-A of 2013; Attiqur Rehman v. Election Tribunal in Writ Petition 1001 of 2010; Ilyas Ahmad Bilour v. Election Tribunal Writ Petition No.12 of 2007; The Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296 and Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 ref.

Qazi Muhammad Anwar for Petitioner.

Qazi Jawad Ehsanullah Qureshi and Waseemuddin Khattak for Respondents.

Dates of hearing: 12 and 18th February, 2014.

2015 C L C 1004

[Peshawar]

Before Abdul Latif Khan, J

ABDUL KALAM and another----Petitioners

versus

MUHAMMAD and 6 others----Respondents

Civil Revision No.808-M of 2012, decided on 2nd July, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S. 55---Transfer of Property Act (IV of 1882), 53-A---Registration Act (XVI of 1908), S. 17---Suit for specific performance of contract---Time essence of contract---Unregistered document---Effect---Time was essence of contract in the present case---Parties were bound to honour the agreement on or before the cut off date---Each case had its own facts and terms and conditions agreed by the parties were to be considered qua intention of said parties to the agreement---No effort was made on behalf of plaintiffs with regard to payment of consideration amount on or before the cut off date given in the agreement---Plaintiffs had failed to fulfil the obligation of agreement and to justify as to why payment was not made on or before the cut off date mentioned in the agreement---Vendor being not the sole owner of suit land was not competent to transfer the same beyond his share---Person having defective title could not transfer a better title to his vendee---Vendor had no valid title to transfer the suit property, agreement in question could not be acted upon---Impugned sale-deed being unregistered document was to be got registered as value of the same was more than Rs.100---Said unregistered deed would create no title in favour of plaintiffs---Document required to be registered would have no effect in case of its non-registration and reliance could not be placed upon such document---Plaintiffs were not inducted into possession over the suit property on the basis of impugned sale-deed---Provisions of S.53-A of Transfer of Property Act, 1882 were not applicable to the present case---Possession of plaintiffs over the suit property was as a tenant-at-will which would not amount to possession under the sale-deed unless specifically mentioned therein and inducted in possession over said property---Impugned sale-deed was defective in nature as description of suit property had not been mentioned in the same---Trial Court had rightly assessed the evidence available on file and non-suited the plaintiffs---Appellate Court had not evaluated the evidence in true perspective and decreed the suit without any legal backing---Appellate Court had not decided the lis through conscious and application of independent mind---Judgment passed by the Appellate Court was not sustainable which was set aside and that of Trial Court was restored---Revision was accepted in circumstances.

Haji Abdur Rehman v. Niaz Ali through LRs 2000 CLC 184 rel.

Muhammad Parvish Khan for Petitioners.

Aziz-ur-Rehman Swati for Respondents.

Date of hearing: 2nd July, 2014.

2015 C L C 1014

[Peshawar]

Before Assadullah Khan Chamkani and Mrs. Irshad Qaiser, JJ

SHER AJMAL----Petitioner

versus

FAYYAZ RASOOL and 2 others----Respondents

Writ Petitions Nos.1321-P to 1325-P, 1327-P and 1328-P of 2012, decided on 10th January, 2013.

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

----Ss. 13, 13-A, 2(c) & 13(5-A)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenants---Landlords filed eviction petitions on the grounds of personal need and reconstruction of the premises---Contention of the tenants was that no notice was served upon them---Petitions were dismissed by the Rent Controller but the same were accepted by the Appellate Court---Validity---Landlords-respondents had purchased the landed property from the previous landlords---Mutations exhibited had established proprietary status of landlords-respondents over the premises---Tenants-petitioners had not challenged the ownership of the landlords-respondents and relationship of landlord and tenant was not denied---Notices under S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, were issued---Landlord was a person who had the right to receive rent and not necessarily the person who was the owner---Landlords-respondents sent notices for eviction and had obtained approval of structural changes of the premises (shop)---No dispute existed on record between the other tenants of the premises and the landlords with regard to vacation of other shops---Tenants-petitioners had not been able to point out any mala fide on the part of landlord---Nothing was on the record that landlords-respondents wanted to enhance the rate of rent---Under S.13(5) of the Ordinance, penal liability might be imposed when the landlord failed to reconstruct the building in time, such penal provisions were sufficient to safeguard the interest of tenant---Under S.13(5-A), of the Ordinance, the tenants had the right to apply to the Rent Controller for restoration of possession in case landlords failed to reconstruct---Appellate Court handed down detailed findings by discussing each and every issue with reference to the evidence on the record---No prejudice had been shown to have been caused to the tenants-petitioners---Appellate Court had rightly accepted the appeals---Failure to prove the default in payment of rent would not reflect adversely on bona fide personal need---Impugned judgments of the Appellate Court being free from any infirmity were not open to an exception---Constitutional petitions were dismissed.

2008 CLC 650; PLD 2007 Lah. 385 and Badar & Brothers (Arms and Ammunitions Dealers) Peshawar v. Muhammad Aslam and 2 others PLD 1977 Pesh. 80 rel.

aamir Shahzad Malik for Petitioner.

Muhammad Tariq Afridi for Respondents.

Date of hearing: 10th January, 2013.

2015 C L C 1202

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

Mst. ASMA----Petitioner

versus

HIRAD ALI and 2 others----Respondents

Writ Petition No.1608/P of 2013, heard on 19th February, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Claims of the petitioner (wife) were partially allowed by the trial court---On appeal filed by the petitioner (wife), the appellate court partially allowed the appeal and findings recorded by trial court were set aside and decree for the recovery of gold ornaments was granted in favour of respondent (husband)---Controversy raised by the petitioner was the determination of the fact that whether the petitioner (wife) while leaving the house of respondent (husband) had taken gold with herself or not---Validity---Petitioner (wife) in her cross examination rejected the suggestion that she ever took away disputed gold ornaments with herself while leaving for her parents house---Question regarding the description/details of the disputed gold was not put to her---Uncle of the petitioner (wife) supported the allegations levelled in the plaint, he was not questioned viz disputed gold ornaments---Respondent (husband) claimed that petitioner (wife) while leaving his house had put on her the disputed gold ornaments but he himself had not witnessed the same---Father of the respondent (husband) stated that petitioner (wife) while leaving home had put on her disputed gold ornaments but he had not stated that the same were got prepared by his son or not---Appellate Court in circumstances had seriously erred in total disregard to the available record while decreeing disputed gold ornaments in favour of the respondent (husband)---Petitioner (wife) had rightly felt wronged through the impugned judgment and decree of the appellate court---Impugned judgment and decree passed by appellate court was set aside---Constitutional petition was allowed.

Arshad Jamal Qureshi for Petitioner.

Muhammad Tayyab Zaman for Respondents.

Date of hearing: 19th February, 2014.

2015 C L C 1214

[Peshawar]

Before Malik Manzoor Hussain, J

JEHANGIR KHAN and 14 others----Petitioners

versus

MUHAMMAD ARIF and 5 others----Respondents

Civil Revision No.1440 of 2004, decided on 7th November, 2013.

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

----S. 4---Constitution of Pakistan, Art. 203-D---Succession---Right of inheritance of grandson---Scope---Grandson was entitled for receiving shares which his father/mother would have inherited if he/she had been alive at the time of opening of succession---Plaintiffs being legal heirs of their mother were entitled to their shares in the inheritance of their father in his legacy---Operation of judgment passed by Federal Shariat Court would suspend automatically when same had been challenged before the Supreme Court till disposal of appeal by the Shariat Appellate Bench of Supreme Court---Judgments and decrees passed by both the courts below were on correct footing and in accordance with law---Revision was dismissed in circumstances.

PLD 2000 FSC 1 and Fazeelat Jan and others v. Sikandar through his legal heirs and others PLD 2003 SC 475 ref.

Qazi Muhammad Jamil for Petitioners.

Abdul Latif Afridi for Respondents.

Date of hearing: 7th November, 2013.

2015 C L C 1228

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

Mst. SAIRA BIBI and 2 others----Petitioners

versus

NAWAB ALI and 2 others----Respondents

W.P. No.137 of 2014, decided on 14th January, 2015.

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

----S. 5, Sched.---Oaths Act (X of 1873), Ss.8, 9, 10 & 11---Qanun-e-Shahadat, (10 of 1984), Art.163---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower, dowry articles and maintenance---Special oath---Estoppel---Offer of plaintiff to withdraw from her claim, if defendant or either of his parents took oath on Holy Qur'an that gold ornaments had been given to plaintiff as dower---Plaintiff also reduced this into writing which had been made part of record---Defendant accepted the offer and took special oath---Proceedings of offer and acceptance of special oath were also completed as post-trial reconciliation---Trial Court decreed suit on basis of such oath---Validity---Plaintiff having made such offer voluntarily, was estopped to reopen the past and closed transaction particularly when she herself had offered the special oath---No injustice had been caused to plaintiff---High Court dismissed Constitutional petition in circumstances.

Dr. Abdul Ghafoor Raza and 2 others v. Mst. Razia Begum 1995 SCMR 918; Muhammad Sharif v. Bashir Ahmad 1987 CLC 2006; Attiqullah v. Kafayatullah 1981 SCMR 162; Abdul Sattar v. Judge Family Court, Toba Tek Singh and 2 others PLD 2010 Lah. 484; Bhore Khan v. Noor Din PLD 1993 Pesh. 72; Muhammad Ijaz v. Additional District Judge, Islamabad and 3 others 2005 CLC 1164; Muhammad Haider v. Syed Nasir Abbas Naqvi, Judge Family Court Lahore and another 2011 YLR 1240; Ghulam Qadir v. Muhammad Yaseen 1999 MLD 2852 and Abdul Rehman v. Master Abdul Latif 1999 CLC 573 rel.

Mian Hussain Ali for Petitioners.

Muhammad Anwar for Respondents.

Date of hearing: 14th January, 2015.

2015 C L C 1247

[Peshawar]

Before Waqar Ahmad Seth, J

Malik TAHIR MEHMOOD----Petitioner

versus

NATIONAL BANK OF PAKISTAN and others----Respondents

Writ Petition No.657-A of 2013, decided on 25th February, 2014.

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

----Ss. 13 & 13-A---Constitution of Pakistan, Art.199--Constitutional petition--- Application for eviction of tenant--- Ingredients--- Good faith---Default in payment of rent---Bona fide personal need of landlord---Scope---Demised premises was transferred in favour of landlord who served notice upon the tenant with regard to change of ownership as well as vacation for the same---No rent agreement existed between the parties---Good faith was prime and essential ingredient for eviction of tenant---Tenant had failed to prove that landlord was not needy but a greedy person who only wanted to enhance the rent or to rent out the premises to other tenant for higher rent---Tenant could apply to the Rent Controller for restoration of possession of suit premises if landlord did not occupy the same within one month after its eviction or rent it out to other tenant after two months of possession---Rights of tenant had been protected if the suit premises after eviction was not taken into possession by the landlord for running business of his own or same was rented out to someone else---Landlord required the suit premises for his bona fide personal need in good faith---Tenant had not remitted rent to the petitioner nor same was collected by the previous landlord---Tenant had committed wilful default in payment of rent---Both the courts below had wrongly and illegally declined relief to the landlord---Impugned orders passed by both the courts below were set aside and tenant was directed to vacate the demised premises within four months---Constitutional petition was accepted it circumstances.

Iqbal Book Depot v. Khatib Ahmed and 6 others 2001 SCMR 1197 rel.

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

----Preamble---Object---West Pakistan Urban Rent Restriction Ordinance, 1959 had been promulgated for regularizing the rights of both the landlord and tenant in urban area---Object of said Ordinance was to protect the rights of tenants who had occupied the commercial building---Tenant who had established business in the premises and had achieved the good will could not be left at the mercy of landlord.

Haji Sabir Hussain Tanoli for Petitioner.

Malik Mehmood Akhtar for Respondent.

Date of hearing: 25th February, 2014.

JUDGMENNT

WAQAR AHMAD SETH, J.--- Malik Tahir Mehmood petitioner seeks the constitutional jurisdiction of this Court praying for:---

"that on acceptance of the writ petition, the impugned judgments of both the courts below may kindly be set aside and ejectment application of petitioner may kindly be allowed, any other relief which this honourable court deems fit and proper may also be allowed."

1. Brief and relevant facts leading to this writ petition are that the suit property was transferred in the name of the petitioner through Court decree dated 19-5-2012 passed in Suit No.187/1 of 2011 and on the basis of said decree a mutation No.1036 was also attested in his favour on 29-8-2013. The suit property was rented out to the respondent/Bank and petitioner served a notice upon the respondent/bank regarding change of ownership as well as its vacation on the ground of personal need. The petitioner filed an ejectment petition before the Rent Controller Haripur. The respondent appeared and contested the same by filing written reply. The learned Rent Controller Haripur after recording pro and contra evidence and hearing the parties dismissed the ejectment petition on 13-2-2013. Feeling aggrieved, the petitioner filed appeal, which after contest was also dismissed by the learned District Judge, Haripur. Hence, this writ petition.

2. Arguments heard and record perused.

3. There is no denial of the fact that the ownership of the suit property was transferred in the name of the petitioner through Court decree dated 19-5-2012 passed in Suit No.187/1 of 2011 and on the basis of said decree he became owner of the same and a mutation No.1036 was also attested in his favour on 29-8-2013. The suit property was already rented out to the respondent/Bank and petitioner served a notice dated 24-5-2012 upon the respondent/bank regarding change of ownership as well as its vacation on the ground of personal need and ultimately filed the ejectment petition against the respondent on 20-6-2012.

4. There is no rent agreement deed on behalf of petitioner with the respondent/bank. Petitioner filed the petition for eviction of respondents from the suit premises on the ground of personal bona fide need. The legislature was conscious regarding the ejectment of a tenant on the basis of requirement of premises for personal need of landlord and that is why word "good faith" has been inserted. The relevant portion of section 13 of N.-W.F.P. Rent Restriction Ordinance of 1959 is reproduced:---

"Section 13---(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:---

(i) in the case of a residential building, if---

(a) he requires it in good faith for his own occupation or for the occupation of any of his children;

(b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated and

(c) he has not vacated such a building without sufficient cause after the commencement of the Ordinance in the said urban area;

(ii) In the case of a non-residential building or a scheduled building or rented land, if:---

(a) he requires it in good faith for his own occupation or for the occupation of any of his children;

(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time, and

(c) he has not vacated such a building or rented land without sufficient cause after the commencement of the Ordinance in the said urban area;

1. Rent Restriction Ordinance, 1959 has been promulgated for regularizing the rights of both landlord and tenant in Urban area. In fact the main theme behind the said law is to protect the rights of tenants, especially of those tenants, who occupy the commercial building. The said tenant, who has established his business in premises and has achieved the 'good will', cannot be left on the mercy of the landlord. It is also admitted fact that not only such tenant has spent huge amount rather precious time and hectic efforts to build up his business and good will in the rented building. Not only his and his family livelihood is involved rather in case of ejectment financial collapse of tenant cannot be ruled out.

2. The Courts are always conscious regarding the ejectment of a tenant from non-residential/commercial building due to reasons mentioned above. However, it does not mean that a landlord, who has established and proved his bona-fide personal need for himself. The term 'good faith' is prime and essential ingredient of ejectment of the tenant. Now, the mala fide intention of landlord for ejectment on the ground of personal need can only be ascertained if it is proved that landlord in fact is not a 'needy' rather is 'greedy' and only desires to enhance the rent according to his own will or he wants to rent it out to another person on much higher rent. Respondents have been failed to prove that petitioner is not `needy' but a 'greedy' person, who only wants to enhance the rent according to his own wish or to rent out the suit premises to other interested tenant for higher rent.

8 It is needless to say that in case petitioner does not occupy the suit premises within one month after its eviction or rents it out to other tenant after two months of obtaining of possession then under section 13(4) of N.-W.F.P. Rent Restriction Ordinance respondents can apply to the Rent Controller for restoration of the possession of the suit premises. Hence, rights of the respondents are also protected if the suit premises after eviction is not taken into possession by the petitioner for running business of his own or the same is rented out to some one else. In this regard wisdom can be drawn from case of Iqbal Book Depot v. Khatib Ahmed and 6 others reported as 2001 SCMR 1197, wherein it was held:---

"Where the statement on oath was quite consistent with his averment made in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict his statement, such statement on Oath would be considered sufficient for acceptance of the ejectment application---Conclusion drawn by High Court being unexceptionable did not call .for interference".

1. We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087. Let we mention here at this juncture that " the rest test whether a premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. 1978 SCMR 437. Nothing solid or concrete could be brought in rebuttal by the appellants showing that the need of landlord is imaginary or based on mala fide.

2. Now adverting to the contention that ejectment application has been moved with mala fides and for the need enumerates therein can be met in a few shops and eviction of entire building is not necessary hardly needs any elaborate discussion as it is well-settled by now that "so far as Ordinance VI of 1959 is concerned there is a qualifying word attaching to the requirement and that is of good faith provided in the law itself There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications, limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation".

3. In the facts and circumstances of the case, it has been established on record that petitioner requires the suit premises for his bona fide personal need in good faith but both the Courts below have wrongly and illegally declined relief to the petitioner.

4. Moreover, immediately after the purchase of property and stepping into the shoes of landlord, the petitioner served the notice under section 13-A of the Ordinance, which is admitted by the respondents but even then rent was not remitted to the petitioner nor was collected by the previous landlord, thus, admittedly retained by the tenants/respondents, hence, committed wilful default in view of section 13-A, which provides as under:---

2015 C L C 1353

[Peshawar]

Before Waqar Ahmed Seth and Mrs. Irshad Qaiser, JJ

MUHAMMAD SULTAN KHAN----Petitioner

versus

DEPUTY DIRECTOR WORKS----Respondent

Writ Petition No.288-A of 2009, decided on 25th September, 2014.

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

----Ss. 4 & 48---Constitution of Pakistan, Art. 199---Constitutional petition---Land acquisition---Withdrawal of notification issued under S.4, Land Acquisition Act, 1894---Scope---Non-completion of process of acquisition---Effect---Contention of respondents-department was that notification issued under S.4 of Land Acquisition Act, 1894 had been withdrawn---Validity---Land of petitioners was acquired under S.4 of Land Acquisition Act, 1894 and possession was obtained and construction was started thereupon---Government could withdraw from acquisition of land if possession had not been obtained---Such withdrawal could be exercised without seeking consent of landowners and sanction or approval from any authority or from any court---Not only possession was obtained but road had been constructed on the land, therefore, land was of no use to the petitioners---Government was bound to pay determined compensation---Impugned order/de-notifying of notification was in contravention of S.48 of Land Acquisition Act, 1894 and same was based on mala fide---Order of de-notification and omission of making award was without lawful authority and of no legal effect---Government was directed to complete the process of award within a specified period after payment of award money/compensation to the petitioners---Constitutional petition was accepted in circumstances.

Fida Hussain v. Province of Punjab 2002 CLC 790; Pannalal Maheshwari v. State of Bihar and others AIR 1955 (Patna 63 (Vol: 42, C.N.5) and Messrs Mehraj Flour Mill and another and Khizar Hayat Khan v. The Provincial Government and others 2001 SCMR 1806 rel.

(b) Administration of justice---

----Public revenue was a sacred trust and same should be spent for the purpose of State necessity by maintaining financial discipline and for achieving a particular purpose---State necessity should not injure and affect the rights of individuals guaranteed in the Constitution and the law.

Hayat Ali Khan for Petitioner.

Muhammad Naeem Abbasi, A.A.G. for Respondent.

Date of hearing: 25th September, 2014.

2015 C L C 1392

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Muhammad Daud Khan, J

FAZAL RAHIM KHAN and others----Appellants

versus

LAC and others----Respondents

R.F.A. No.25 of 2014, decided on 19th March, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 3(b), 29, 30 & 31---Apportionment of compensation---Principles---Mode of payment of compensation amount---Possession by one of co-sharers---Effect---'Interested person', defined---Government issued notification under S.4 for acquisition of land for public purpose---Land was jointly held by various landowners whose names appeared in revenue record---Collector made award on basis of `Qabza Hissadari Milkiat' possession according to appropriate share in ownership column of each owner in Register 'Haqdaran Zamin'---Reference made against the award also approved apportionment made by Collector and dismissed reference---Findings of Reference were assailed before High Court in appeal on ground that apportionment must be made on basis of their ownership and due shares---Validity---Compensation amount had to be awarded in accordance with title of each landholder in joint land acquired, irrespective of the fact that they were in actual possession of more or less area on the date of acquisition---One co-owner in possession of joint land holds same on behalf of all co-sharers and his possession for how so long a period could not make him an exclusive owner of land held by him unless he had set-up hostile title by some overt act to knowledge of co-owner and later did not take any action within limitation prescribed---Co-owner's possession over joint land would be considered permissive till partition---Land in question had been compulsorily acquired by Government leaving no chance for other co-owners to seek remedy of partition except to become interested person in compensation within meaning of S.3(b) of Land Acquisition Act (1894)---Appeal was allowed accordingly.

Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884 rel.

Shamsul Hadi for Appellants.

Sikandar Rashid and Aftab Ahmed for Respondents.

Date of hearing: 13th January, 2015.

2015 C L C 1564

[Peshawar]

Before Muhammad Daud Khan, J

AWAS KHAN----Petitioner

versus

EDUCATION DEPARTMENT and others----Respondents

C.R.No.198-B of 2014, decided on 16th October, 2014.

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

----S. 42---Suit for declaration---Civil service---Appointment---Predecessor of plaintiff donated land for construction of school on the condition of appointment of plaintiff in government service---Plaintiff claimed his appointment on basis of donation of land by his predecessor---Validity---Appointment to a position in public department was to be made according to prescribed procedure---Donation of land conditional with appointment being illegal agreement between donor of land and the department to the effect that plaintiff would be appointed in service, was not recognized by law---Donation of land by predecessor of plaintiff did not confer any legal character or entitlement for appointment in government service.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 and Umer Said and others v. District Education Officer (Female) and others 2007 SCMR 296 rel.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S.42---Suit for declaration with permanent injunction---Cause of action---Plaint not disclosing any cause of action should be buried at its inception.

S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali (Moin) through legal heirs 2002 SCMR 338; Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 and Mir Sahib Jan v. Jana 2011 SCMR 27 rel.

(c) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court being directive in nature was to be strictly followed.

Asghar Ali for Petitioner.

2015 C L C 1589

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and M. Ghazanfar Khan, J

SINOTEC CO. LIMITED through Authorized Representative----Petitioner

versus

PROVINCE OF KHYBER PAKHTUNKHWA through Secretary, Energy and Power Department and 5 others----Respondents

W.P. No.1939-P of 2014, decided on 20th November, 2014.

Pakhtunkhwa Hydel Development Organization Act (I of 1993)---

----S. 22 [as amended by Khyber Pakhtunkhwa Hydel Development Organization (Amendment) Act (V of 2013)]---Khyber Pakhtunkhwa Public Procurement Regulatory Authority Act (XI of 2012), S.35---Khyber Pakhtunkhwa Procurement Rules, 2014, Rr.47 & 48---Instructions to Bidders, Cls.22.3 & 32---Constitution of Pakistan, Arts.199, 4 & 129---Constitutional jurisdiction---Bid, cancellation of---Scope--- Contention of petitioner-company was that cancelling/annulling the tender process for the projects was illegal and arbitrary---Validity---Every scheme prepared by Hydel Development Organization should be processed in accordance with Government procedures and instructions---Hydel Development Organization was required to submit to the Government periodical reviews and other reports required by it---Chief Minister of the Province was the Chairman of the Hydel Development Organization---Executive authority of the Province should act through the Chief Minister---Government might issue instructions to Energy Development Organization with regard to every scheme prepared by it---Government was the custodian of finances of the State and should protect financial interest of the same---Government should try to get the best person or the best quotation---Right to choose could not be considered to be an arbitrary power---If said power was exercised for any collateral purpose, the exercise of such power would be struck down---Bid of petitioner-company contained a separate discount letter with its bid---Submission of discounted price through a separate letter could not be considered---Petitioner-company was required to have quoted total price instead of unit price---Petitioner-company was neither main contractor nor the sub-contractor in the subject project---Proper opportunity of hearing had been provided to the petitioner-company---Right of appeal was available to the petitioner-company but the same had not been availed---Authority reserved the right to accept or reject all bids at any time prior to award of contract---Grounds of rejection of bid should be communicated to bidder who had submitted bid without justification of grounds---Authority was not supposed to provide grounds for its action unless requested for by the bidder---Petitioner-company had not requested for providing the grounds for rejection/annulling the bid process---Bidder should first ask the Authority to show the reason for rejection of the bid and thereafter had to file appeal---Project, in question, had already been re-advertised---High Court declined to determine as to whether a particular policy or decision taken in fulfillment of the policy was fair---High Court could consider the manner in which such decision had been taken---Authority had acted fairly and their action was legitimate, fair and decision was without any aversion, malice or affection---No favoritism or nepotism could be pointed out---Terms of inviting tenders could not be open to judicial scrutiny---Invitation to tender was in the realm of Authority---Decision to accept the tender or award the contract was reached by process of negotiations through several tiers---Such decisions were made by experts---Government should have freedom for entering into a contract---Fair play was a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere---Decision should be free from arbitrariness not affected by bias or actuated by mala fide---Technical capability of any of the bidders to undertake the work was not in question---Two of the bids were very similar in price---Fraudulent practices indulging in the tendering process were grave and serious which would necessitated cancellation of the bids and calling for fresh tenders---Decision making process adopted by the government neither suffered from any infirmity nor the same could be termed arbitrary---Order passed annulling the tender process could not be interfered within constitutional jurisdiction---Constitutional petitions were dismissed, in circumstances.

Suo Motu Case No.5 of 2010, PLD 2010 SC 731; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651 and Reliance Consultancy and Engineering Works Private Limited v. Federation of Pakistan 2010 CLC 1046 ref.

Munshi Muhammad and another v. Faizanul Haq and another 1971 SCMR 533; Rehmat Ali and 2 others v. The Revenue Board, West Pakistan, Lahore and another 1973 SCMR 342; Babu Parvez Qureshi v. Settlement Commissioner, Multan and Bahawalpur Divisions, Multan and 2 others 1974 SCMR 337 and Petrosin Corporation (Pvt.) Ltd. Singapore and 2 others v. Oil and Gas Development Company Ltd. 2010 SCMR 306 rel.

Akram Sheikh and Khalid Mehmood for Petitioners.

Shumail Ahmad Butt for Respondents.

Umair Majeed Malik for added Respondent No.6.

Date of hearing: 20th November, 2014.

2015 C L C 1682

[Peshawar]

Before Qalandar Ali Khan, J

TUFAIL and others---Petitioners

versus

AURANGZEB and others---Respondents

Civil Revision No.369-A of 2006, decided on 9th February, 2015.

(a) Partition Act (IV of 1893)---

----S. 4---Suit for possession on basis of private partition---Private Partition---Burden of proof---Co-owner, status of---Eviction of co-owner---Preliminary decree, grant of---Plaintiff filed suit for possession of suit property on basis of private partition between predecessors of parties to suit who were legal heirs of deceased/owner of suit property---Plaintiff averred that he was forcibly dispossessed from suit property---Defendant contested suit mainly on ground that suit property along with other inherited properties were jointly owned by parties as co-owners---Suit was dismissed but appeal against was allowed and preliminary decree of partition was granted in favour of plaintiff despite the fact that it was not prayed for---Validity---Burden of proof to prove private partition lay on plaintiff but he had not placed anything on record to substantiate his claim---Witnesses produced by plaintiff were not witnesses to private partition executed by predecessors of parties---Private partition in question had deprived all other legal heirs of owner and exclusive ownership of plaintiff through private partition appeared to be doubtful---Suit property along with other properties was held to be joint ownership of parties since no official partition had been made so far and co-owner could not seek eviction of other co-owners without partition of joint property---Suit for exclusive possession of one of co-owners was not-maintainable to exclusion of other co-owners---Judgment of Appellate Court granting preliminary decree in favour of plaintiff was in excess of jurisdiction, since partition of suit property had not been prayed for---Revision was allowed accordingly.

1995 CLC 1850; PLD 2012 SC (AJ&K) 7; 1979 CLC 230; PLD 2009 SC 198 and 1999 SCMR 348 rel.

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

----S. 115(1)---Judgment/order void ab initio---Effect on limitation---Once it was held that judgment or order in question was void ab initio, no limitation would run against such order, particularly when no period of limitation had been prescribed by S.115(1) of C.P.C.---Revision petition in such cases was to be treated as an information to correct errors of jurisdiction committed by subordinate.

PLD 2012 SC 400 and 2012 SCMR 1942 rel.

Syed Sajjad Hussain Shah for Petitioners.

M. Naeem Anwar Khan for Respondents.

Date of hearing: 9th February, 2015.

2015 C L C 1709

[Peshawar]

Before Muhammad Younis Thaheem, J

AMAN ULLAH----Petitioner

versus

Mst. ISRANA and 2 others----Respondents

C.M.T.A. No.16-B of 2014, decided on 5th January, 2015.

West Pakistan Family Courts Rules, 1965---

----R. 6---Transfer of case---Scope---Husband filed an application for transfer of suit on account to his poor financial condition---Validity---Wife had been provided special remedy to file suit where she was residing---Request of husband could not be acceded to---Application for transfer of suit was dismissed in limine.

Shahida Parveen v. Samiullah 1999 CLC 1863 and Mst. Allah Mafi v. Munir Ahmad 2005 MLD 194 rel.

Noor Raza Ali Khan for Petitioner.

2015 C L C 1751

[Peshawar]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

MUHAMMAD MUNIR QURESHI----Petitioner

versus

ABDUL QADIR SHAH and 3 others----Respondents

W.P. No.41-B of 2010, decided on 11th March, 2015.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908) O.I, R 10---Transfer of Property Act (IV of 1882), S.52---Constitution of Pakistan, Art.199 ---Constitutional petition---Lis pendens, principle of----Applicability---Alienation of land through registered sale deed---Status---Suit for preemption regarding property that was pending sub-judice---Petitioner filed application for impleadment as defendant upon basis of registered sale deed on ground that since defendant was no more owner of suit property and had lost his interest, therefore, petitioner be allowed to defend suit---Application was rejected by Trial Court on ground that sale transaction was executed during pendency of suit and would not affect plaintiff's right in view of principle of lis pendens---Revision filed against dismissal was also dismissed---Validity---Admittedly, alienation of suit land was struck during pendency of suit and petitioner had stepped into shoes of vendee, therefore, will fall or rise with vendee/defendant in view of S.52 of Transfer of Property Act, 1882---Constitutional petition was dismissed being devoid of merit.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 rel.

Haji Riaz Muhammad Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 11th March, 2015.

2015 C L C 1762

[Peshawar]

Before Malik Mansoor Hussain and Haider Ali Khan, JJ

FATEH-UL-MULK ALI NASIR and 4 others----Petitioners

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Mines and Minerals and 6 others----Respondents

W.P. No.1420-P of 2014, decided on 17th April, 2015.

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

----S. 49---Khyber Pakhtunkhwa Mining Concession Rules, 2005, Rr.142 & 204---Notification No 10/31-SOTA. II.(HD) 173 dated 31-7-1975, published in N.-W.F.P. Government Gazette, Extraordinary, dated 5-8-1975---Constitution of Pakistan Arts.199, 23, 24, 172 & 173---Constitutional petition---Right of government in mines and minerals---Land compensation---Surface rent---Petitioner sought cancellation of notices issued by authorities asserting that their predecessor-in-interest was owner of river bed, who had leased out said property to company for mining of minerals, and in response thereof, respondents had issued notices to parties to said lease---Contention raised by petitioners was that they, being legal heirs of their predecessor-in-interest, were owners of suit property as per previous declaration by competent court of law---Authorities took plea that under provisions of the Constitution and S.49 of West Pakistan Land Revenue Act, 1967 read with Khyber Pakhtunkhwa Concession Rules, 2005, all mines and minerals had been declared to be government property, and that under Rr.142 & 204, Director and Director General were authorized to issue license regarding mining of minerals to interested persons through auction and land owners had right to surface rent payable by lessee concerned of Mineral Department---Validity---Under S.49 of West Pakistan Land Revenue Act, 1967, all mines and minerals had been declared to be property of Provincial Government, and in that regard Khyber Pakhtunkhwa Mining Concession Rules, 2005 had been framed---Provision of S.49 of West Pakistan Land Revenue Act, 1967 were clear on subject and no exception could be taken therefrom---Under Government of Khyber Pakhtunkhwa Notification No.10/31-SOTA.II(HD)173, dated 31-7-1975, all rivers, river beds, rivulets and nullahs had been declared to be State property---Constitutional petition was dismissed in circumstance.

Khalilullah Khalil for Petitioners.

Sabir Shah, A.A.-G. for Respondents.

Date of hearing: 17th April, 2015.

2015 C L C 1824

[Peshawar]

Before Malik Manzoor Hussain, Qalandar Ali Khan and Muhammad Ghazanfer Khan, JJ

AMEER TAIMOOR and 7 others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Senior Member Board of Revenue and 3 others----Respondents

W.Ps.Nos.3398 along with 3556, 2242-P and 1833-P of 2014, decided on 4th February, 2015.

Per Malik Manzoor Hussain, J.

(a) Land Records Manual---

----Chap. 3 para.3.6---West Pakistan (Northern Zone) Patwari Subordinate Service Rules, 1963, Rr.5 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Patwari, appointment of---Procedure---Plea raised by petitioners was that for appointment of Patwaris, test and interview was not the criteria rather appointment was to be made from the senior most Patwar-pass persons mentioned in the list entered in Register Patwar---Validity---Appointments of Patwaris, under para.3.6 of Land Records Manual, were to be made from amongst the list of candidates of all Patwar-Pass persons, maintained by Sub-Divisional Collector in Form P-1 appendix "G", subject to observance of service rules and recruitment policy prevalent at the relevant time---Method of recruitment of Patwaris was given in service rules, i.e. Rr.5 & 7 of West Pakistan (Northern Zone) Patwari Subordinate Service Rules, 1963---Until and unless rules prescribed for appointment of Patwaris provided in Land Records Manual as well as service rules with regard to method of recruitment of Patwaris were not amended or struck down, the authorities were bound to make appointments in accordance with existing rules and policy governing the subject-matter---When law required a thing to be done in a particular manner, that thing was to be done in that particular manner and not otherwise---Petition was allowed accordingly.

Executive District Officer (Revenue) v. Ijaz Hussain and another 2011 SCMR 1864 and Zafar Iqbal and another v Director Secondary Education, Multan Division and 3 others 2006 SCMR 1427 ref.

(b) Interpretation of statutes---

----When words are not clear, or provision in question is confusing, then duty of interpretation arises and if language is clear and explicit, the Court must give effect to it.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy making---Scope---Making policy is prerogative of government and Court in exercise of its Constitutional jurisdiction cannot make policy for government---Court cannot interfere in government policy unless there is infringement of legal rights or found to be ultra vires to the Constitution and injunction of Islam.

2008 SCMR 531 and Dr. Alyas Qadeer Tahir v. Secretary 2014 SCMR 997 rel. Per Qalandar Ali Khan, J.

(d) Land Records Manual---

----Chap. 3, para. 3.6---Patwari, appointment of---Procedure---Inbuilt mechanism is available in para.3.6 of Land Record Manual, providing sufficient space to adopt a dynamic approach towards appointment of Patwaris in order to achieve ultimate object of ensuring merit---High Court advised that separate and specific marks be assigned in a transparent manner to Patwar examination, other qualifications of candidate, his knowledge and skill acquired in the field, together with other requisite measures deemed essential for the job, in order to allay misgivings prevalent about appointment of Patwaris in Revenue Department, also causing discontent and breeding frustration in the department and general public alike and contributing to general feeling about lack of good governance.

Shakeel Ahmad for Petitioners.

Muhammad Rahim Shah for Respondents.

Date of hearing: 4th February, 2015.

2015 C L C 1771

[Punjab Environmental Tribunal]

Before Justice (R) Ch. Muhammad Younis, Chairperson, Prof. Dr. A.R. Saleemi, Member Technical and Muzaffar Mahmood, Member General

Messrs HUSSAIN INDUSTRIES CORPORATION PYROLYSIS UNIT, LAHORE----Petitioner

Versus

ENVIRONMENTAL PROTECTION AGENCY, PUNJAB----Respondent

Appeal No.22 of 2015, decided on 4th September, 2015.

(a) Punjab Environmental Protection Act (XXXIV of 1997)---

----Ss. 11, 12, 16, 17, 22 & 33----Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations 2000, Reglns. 5, 23 & Sch.II---Basel Convention, 2011-Environmental Protection Order (EPO)---Scope---Initial environmental examination (IEE) and environmental impact assessment (EIA)---Principles as to their submission, determination and limitation---Service of EPO upon applicant, requirement as to---Duty of Director General---Prohibition of certain discharges or emissions---Power to make regulations---Environmental protection order in name of establishment other than that of applicant---Effect---Projects not requiring IEE and EIA---Appeal to Environmental Tribunal---Limitation--- Penalties---Applicant for installation of pyrolysis oil plant, submitted IEE report to Environmental Protection Agency for obtaining environmental approval---Applicant, before determination of said IEE report and issuance of environmental approval, installed and began operating proposed unit of pyrolysis plant---Environmental Protection Agency, passing Environmental Protection Order, sealed said unit of applicant on basis of negative report submitted by District Officer (Environment)---Applicant contended that delay in issuance of environmental approval to installation of pyrolysis plant was violation of Basel Convention, 2011, and that Environmental Protection Agency could not require him to file EIA---Validity---Environmental Protection Agency was required, within ten days from submission of said IEE report, either to confirm that IEE was complete for purpose of initiating review process or to require applicant to submit such additional information as might be specified or to return IEE clearly listing points requiring further study and discussion---District Officer (Environment), submitting its inspection report, had first recommended that proposed site for installation of plant was suitable---Contrary report later on submitted by same District Officer (Environment) was not understandable as to its basis---Environmental Protection Agency, having received first favourable report of District Officer (Environment), had delayed issuance of environmental approval, which was result of mala fide on its part-- Environmental Protection Agency had ignored all facts and guidelines which had determined waste rubber pyrolysis as one of three environmentally suitable processes---Environmental Protection Agency, before passing impugned order, had not obtained any expert or analysis report---Environmental Protection Agency could not direct submission of EIA, unless project of applicant had fallen within ambit of Schd. II or same had adverse environmental effect, there was recommendation of Environmental Assessment Advisory Committee as required under Regln.23; no such recommendations had been made by such Environmental Assessment Advisory Committee---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 related to Federal Agency, which had to be adopted after necessary modifications so as to apply same to Provincial Agency---Provincial Agency, therefore, had to frame its own Regulations under Punjab Environmental Protection Act, 1997 (as amended in 2012)---Section 12(6) of Punjab Environmental Protection Act, 1997 provided that provisions of subsections (1), (2), (3), (4), and (5) of S.12 were to apply to such category of projects, and in such manner, as prescribed by Regulations---Unless Rules and Regulations were framed, Environmental Protection Agency had no unfettered powers under S.12 of the Punjab Environmental Protection Act, 1997 to direct applicant to file EIA---Neither requisite Regulations had been framed nor Environmental Assessment Advisory Committee had been constituted and notified under new Regulations---Environmental Protection Agency, while directing applicant to file EIA, had not even followed Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000---Environmental Protection Agency had passed impugned order without deciding IEE filed by applicant, discarding defence plea and without giving any sound and plausible reasons---Impugned order was not speaking order---Environmental Protection Agency was bound to consider and discuss each and every point raised by applicant and to decide matter within thirty days after hearing applicant or within reasonable time; whereas, Agency had decided matter after nine months---Present appeal was well within time as there was no proof of service of impugned order upon applicant---Impugned order was passed against "M" whereas name of applicant was "H"---Impugned order was not sustainable as IEE had been submitted by "H" and entire litigation was also in same name---Before sealing unit, no show-cause notice had been given to applicant---Director General of Environmental Protection Agency was under duty to ensure that impugned order was served on applicant---In absence of service of impugned order on applicant, his unit could not be sealed---Applicant, before passing of impugned order, had been directed to adopt remedial measures to minimize environmental pollution; but no such direction was mentioned in impugned Environmental Protection Order---Applicant was directed to stop operation of his plant only once---Direction issued to applicant to adopt remedial measures to control emissions, etc, could, therefore, not be issued, as same was last resort in any case---Applicant had fulfilled all legal and technical requirements given under Punjab Environmental Protection Act, 1997, and there was no adverse environmental impact due to operation of proposed plant---Even if there was any violation of S.11 or S.12, applicant could be prosecuted under S.17(i) of Punjab Environmental Protection Act, 1997---Order in question was arbitrary and whimsical and result of malice, abuse of powers and discriminatory treatment as several other plants of similar nature were in operation and had never been sealed by Environmental Protection Agency---Matter of issuance of environmental approval being still pending before Environmental Protection Agency, it could not be said that applicant had established his unit illegally---Appellate Tribunal, setting aside all impugned orders, directed Agency to de-seal unit of applicant and to decide his IEE report, not requiring him to file any EIA without first obtaining recommendations from Environmental Assessment Advisory Committee---Appeal was allowed accordingly.

(b) Punjab Environmental Protection Act (XXXIV of 1997)---

----Ss. 17 (i), 11 & 12----Penalties, imposition of---Procedure---Initial environmental examination and environmental impact assessment---Prohibition of certain discharges or emissions---Prosecution for violation of Ss.11 & 12 Punjab Environmental Protection Act, 1997---Procedure---Any violation of S.11 or S.12 is punishable under S.17 (i) of Punjab Environmental Protection Act, 1997 [as amended in 2012]---Complaint, if any, can be filed under Punjab Environmental Protection Act, 1997.

(c) Punjab Environmental Protection Act (XXXIV of 1997)---

----Ss. 33 & 12 [as amended by Punjab Environmental Protection (Amendment) Act, (XXXV of 2012)]---Power to make regulations---Initial environmental examination and environmental impact assessment---Framing of rules and regulations---Requirement and competent authority---Under S.33 of Punjab Environmental Protection Act, 1997, words 'this Act' refer to Amendment Act, 2012 and word 'Government' means Provincial Government and not Federal Government---Regulations have to be made under S.33 (as amended)---Section 33(f) clarifies that regulations have to be made by Provincial Agency for providing category of projects to which, and manner in which, S.12 applies.

(d) Punjab Environmental Protection Act (XXXIV of 1997)---

----S. 16---Environmental Protection Order (EPO)---Direction to adopt remedial measures--- Validity--- Applicant, before passing of Environmental Protection Order, had been directed to adopt remedial measures to minimize environmental pollution; but no such direction was given in the impugned Environmental Protection Order---Applicant was directed to stop operation of his plant only once---Direction issued to applicant to adopt remedial measures to control emissions, etc., could not, therefore, be issued, as same was the last resort.

(e) Punjab Environmental Protection Act (XXXIV of 1997)---

----S. 16----Environmental Protection Order (EPO)---Service of Environmental Protection Order---Duty of Director General---Sealing of plant without service of EPO---Validity---Director General of Environmental Protection Agency was bound to ensure that EPO was served on the applicant---In absence of service of the order on applicant, his unit could not be sealed.

(f) Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000----

----Reglns. 5, 23 & Schd. II----Projects not requiring IEE and EIA---Determination--- Environmental Assessment Advisory Committee--- Requirement as to constitution---Environmental Protection Agency cannot direct submission of EIA, unless project of applicant falls within ambit of Schd.II or same has adverse environmental effect.

Miss Kausar Perveen for Appellant.

2015 C L C 97

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

SABZAL and 9 others----Petitioners

Versus

DEPUTY COMMISSIONER/COLLECTOR and 2 others----Respondents

Constitutional Petition No.70 of 2011, decided on 30th October, 2014.

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

----Ss. 18 & 12 (2)---Constitution of Pakistan, Art. 199---Constitutional petition---Land acquisition---Reference---Limitation---Condonation of delay---Deputy Commissioner/Collector rejected reference/application as being time-barred---Contention of landowners was that market value of the acquired land had not been assessed according to law and Deputy Commissioner/Collector had got no jurisdiction to reject the reference---Validity---Applicants pursuant to award had received compensation and during the process of acquisition proceedings they had raised no objection---Government had acquired land in the year 2006-2007 after fulfilment of all the requirements---Landowners had filed reference in the year 2010 without mentioning the date of the same which was rejected by the Collector on the point of limitation---No separate application with the reference for condonation of period of limitation was filed---If any pleadings had been submitted beyond the prescribed period of limitation then same could not be entertained and one had to submit an application for condonation of period of limitation---If any person made reference/objection to the Collector at the time of announcement of an award then he/she was obliged to file application within six weeks from the date of award announced by the Collector---If Landowner was served by the Collector then reference should have been filed within six weeks after receipt of notice---If at the time of announcement of award landlord was not served with notice then he was required to file reference within six months---Collector was competent to reject the reference if same was beyond the limitation---Constitutional petition was dismissed in circumstances.

2007 CLC 1288 and Muhammad Rafique Khan v. Province of Punjab through Collector Bahawalpur and others 1992 CLC 1775 rel

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

-----S. 18---Land acquisition---Reference---Limitation---If any person made reference/objection to the Collector at the time of announcement of an award then he/she was obliged to file application within six weeks from the date of award announced by the Collector---If landlord was served by the Collector then reference should have been filed within six weeks after receipt of notice---If at the time of announcement of award landlord was not served with notice then he was required to file reference within six months.

S.A.M. Quadri and Sabira Islam for Petitioners.

Humayun Tareen, Addl.A.-G. for Respondent No.1.

Ikhlaq Ahmed Shah, Standing Counsel for Respondent No.2.

Muhammad Riaz Ahmed for Respondent No.3.

Date of hearing: 29th September, 2014.

2015 C L C 107

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

DAD KARIM and 12 others----Appellants

Versus

ISHAQ and 20 others----Respondents

Regular First Appeal No.13 of 2011, decided on 29th September, 2014.

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

----O. XXIII, R. 1, O. II, R. 2, O. IX, R. 9, O. XXI, R. 10, O.XXII, R.9 & S.12---Qanun-e-Shahadat (10 of 1984), Arts.75 & 76---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Cause of action, omission of---Fresh suit, institution of---Bar---Power of attorney---Scope---Plaintiffs filed fresh suit after withdrawal of previous one which was dismissed---Contention of plaintiffs was that both the parties entered into a compromise outside the court---Validity---Plaintiffs filed an application for withdrawal of their previous suit which was accepted---Plaintiffs would have either settled the previous suit on the basis of compromise if same was in existence or even mentioned the said settlement in their application for withdrawal of suit---Cause of action arising from the purported agreement was very much available to the plaintiffs when same was arrived as on the said date previous suit was pending but they omitted to claim the said relief---Bar of O. II, R.2, C.P.C. was attracted in the present case---Omission of cause of action and omission of portion of claim with regard to such agreement would bar a fresh suit in respect of a portion so omitted---Where a plaintiff had been precluded from instituting a further suit with regard to any particular cause of action then he should not be entitled to institute a fresh suit---Plaintiffs had withdrawn their previous suit simpliciter within the meaning of O.XXIII, R.1, C.P.C. which would amount to dismissal as withdrawn and finally disposed of the suit---Such withdrawal would bring an end to the litigation and fresh suit was barred---Attorney was not authorized by the defendants to decide the fate of their right in the property in dispute---Special permission from the principal for the proposed object should have been obtained by the attorney---Plaintiffs were bound to prove the authority of attorney with regard to purported agreement but they had failed to prove the same---Plaintiffs could not prove the impugned agreement copy of which was tendered on record which was not only inadmissible but same did not confer any right, title or interest in their favour---Copy of purported agreement could not be taken into consideration---Mere tendering document in evidence had no evidentiary value unless proved in accordance with law---Present suit was not maintainable in circumstances---Appeal was dismissed accordingly.

Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 and Haiderabad Development Authority v. Abdul Majeed PLD 2002 SC 84 rel.

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

----O. XXIII, R.1---Fresh suit after withdrawal of previous one---Bar---Scope---Fresh suit after withdrawal of previous would be barred.

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

----S. 2---Agreement---Scope---Agreement to sell did not create any right, title or interest in favour of any person.

Habib Tahir for Appellants.

Abdullah Baloch for Respondent No.1.

Mumtaz H. Baqri and Sabira Islam for Respondents Nos.2 to 19.

Humayun Tareen, Addl. A.-G. for Respondents Nos.20 and 21.

Date of hearing: 8th September, 2014.

2015 C L C 343

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

MUHAMMAD KHAN----Appellant

Versus

Ch. ABDUL RAHIM and 2 others----Respondents

Regular First Appeal No.75 of 2010, decided on 20th November, 2014.

(a) Islamic law---

----Pre-emption---Talbs, performance of---Evidence produced by plaintiff and his statement with regard to performance of talbs by him and gaining knowledge of sale was not in consonance with the pleadings---No date, time and place had been mentioned in the plaint with regard to performance of Talb-i-Muwathibat---Averment made in the pleadings did not constitute the evidence but evidence led must be consistent therewith---Pleadings could not be departed except by way of amendment---Anything stated outside the scope of such averment could not be looked into---Evidence and statement of the plaintiff was not only divergent from pleadings but there were inter se contradictions with regard to gaining knowledge of sale of suit land and performance of required talbs---Plaintiff had failed to establish performance of talbs in accordance with law---Findings recorded by the Trial Court were well versed and based on sound reasoning---Appeal was dismissed in circumstances.

Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Messrs Choudhary Brothers Ltd v. The Jaranwala Central Co-operative Bank 1968 SCMR 804 and Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 rel.

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

----O. VI, Rr. 7 & 17---"Pleadings"---Scope---Averment made in the pleadings did not constitute the evidence but evidence led must be consistent therewith--- Pleadings could not be departed except by way of amendment---Anything stated outside the scope of such averment could not be looked into.

Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Messrs Choudhary Brothers Ltd v. The Jaranwala Central Co-operative Bank 1968 SCMR 804 and Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 rel.

Miss Sabira Islam for Appellants.

Abdul Wali Khan Nasar for Respondent No.2.

Date of hearing; 10th September, 2014.

2015 C L C 385

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

BAKHTIAR----Petitioner

Versus

NASRULLAH and 12 others----Respondents

Regular First Appeals Nos.15 and 16 of 2008, decided on 10th November, 2014.

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

----Ss. 8 & 42--Registration Act (XVI of 1908), Ss.17 & 49---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for possession and declaration---Agreement---Scope---Document, registration of---Mutation---Scope---Plaintiffs filed suit for possession whereas defendants instituted suit for declaration---Both the suits were consolidated by the Trial Court---Contention of plaintiffs was that they were owners of suit property which was given to the defendants for cultivation whereas defendants contended that they had purchased the said property through agreement---Suit of plaintiffs was decreed whereas that of defendants was dismissed---Validity---Agreement did not by itself create any right, interest or any charge on the property in dispute--Impugned agreement did not create any lawful title in favour of defendants---Defendants had a remedy to seek specific performance of said agreement---Every document purporting to create any right, title or interest of the value of Rs.100 and upward would require compulsory registration---Contract for sale of immovable property was a contract that sale of such property should take place on the terms settled between the parties subject to fulfillment of all other obligations---No sale of property by the owners was made in favour of defendants---Defendants were bound to produce the marginal witnesses of agreement to prove its execution---Non-production of such witnesses was fatal to the case of defendants---Recital of such document could not be said to have been proved---Defendants had failed to establish their right or interest in the suit property---Plaintiffs were recorded owners of suit land whereas defendants were neither bona fide purchaser nor lawful owners the same---Question of handing over disputed property to the defendants by the plaintiffs did not arise---Agreement executed in favour of defendants was not a valid and proved document---Presumption of truth was attached to the mutation---Some cultivable portion of suit-land was given to the defendants for cultivation only---Defendants were bound to provide due share of produce to the plaintiffs but they did not only withhold the same but also deprived them from their valuable right in the property since 2007---Defendants had neither purchased any piece of suit property nor had any lawful right to continue their possession over the same---Trial Court had rightly rejected the evidence produced by the defendants---Findings recorded by the Trial Court were based on proper appreciation of evidence---Defendants were directed to pay compensatory cost of Rs.50,000 jointly and severally to the plaintiffs---Tehsildar was directed to take the vacant possession of suit property and handover the same to the plaintiffs within a specified period---Appeal was dismissed with cost.

PLD 1978 Lah. 113, PLD 1986 Lah. 399; PLD 181 SC (AJ&K); 1983 SCMR 1178; Hakim Khan v. Nazar Ahmed Lughmani, 1992 SCMR 1832; Mazloom Hussain v. Abid Hussain PLD 2008 SC 571 and Nawab Khan v. Said Karim Khan 1997 SCMR 1840 rel.

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

----Ss. 17 & 49---Document, registration of---Scope---Every document purporting to create any right, title or interest of the value of Rs.100 and upward would require compulsory registration.

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

----S. 2---"Agreement"---Scope--- Agreement did not by itself create any right, title, interest or any charge on the property.

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

----S. 54---Sale---Meaning---Contract for sale of immovable property was a contract to the effect that sale of such property should take place on the terms settled between the parties subject to fulfillment of all other obligations.

(e) West Pakistan Land Revenue Act (XVII of 1987)---

----S. 42---Mutation ---Scope---Presumption of truth was attached to the mutation.

Syed Ayaz Zahoor for Appellants.

Muhammad Saleem Lashari for Respondents.

Date of hearing: 24th September, 2014.

2015 C L C 560

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

Malik MUNIR AHMED----Petitioner

Versus

Sardar KHAIR MUHAMMAD TAJIK and others----Respondents

Civil Revision No.6 of 2007, decided on 30th April, 2014.

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

----S. 8---Suit for possession---Lease deed---Mutation---Scope---Lease deed executed in favour of plaintiff without possession was merely an entry in the record which did not confer any title---Mutation by itself would not create title and same had to be proved through evidence of title---Persons deriving title on the strength of mutation entries had to prove that transferor had parted the ownership of property in favour of transferee and mutation was duly entered and attested---Lease agreement and abstract of record maintained by Cantonment Board was not proved and same did not provide any assistance to the plaintiff's claim---Plaintiff had failed to substantiate his plea through documentary and oral evidence---Defendants had established their possession over the suit property since the life time of their predecessor---Pleadings and evidence produced by the plaintiff did not correspond to each other---Plaintiff had failed to establish that either he had constructed the property in question or had ever remained in possession of the same---Divergent pleadings and evidence was fatal for the case of plaintiff---Departure from pleadings could not be allowed and evidence which did not support the pleadings or vice versa in any case would not achieve the object---Both the courts below had passed well speaking and well reasoned judgments---Revision was dismissed in circumstances.

Hakim Khan's case 1992 SCMR 1832 and Shafi Muhammad v. Khanzada Gul 2007 SCMR 368 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not reverse concurrent findings of facts while exercising revisional jurisdiction.

Major Rasheed Baig v. Rehmatullah Khan PLD 2001 SC 443 rel.

(c) Mutation---

----Mutation by itself would not create title and same had to be proved through evidence of title.

Hakim Khan's case 1992 SCMR 1832 rel.

(d) Pleadings---

----Departure from pleadings could not be allowed.

Hadi Shakeel Ahmed and Ayaz Swati for Petitioner.

Mushtaq Anjum for Respondents.

Date of hearing: 21st March, 2014.

2015 C L C 620

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

LA GUARDIA GROUP OF COMPANIES through Assistant Manager Terminal----Appellant

Versus

ABDUL NAFEY and another----Respondents

First Appeal from Order No.48 of 2013, decided on 30th April, 2014.

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

----O. V, Rr. 20, 12 & O. IX, R. 6(1)(a)---Limitation Act (IX of 1908), Arts.164 & 181---Constitution of Pakistan, Art.10-A---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Ejectment of tenant---Ex parte order, setting aside of---Limitation---Substituted service---Scope---Principle of "audi alteram partem"---Applicability---Eviction petition did not show address of tenant due to which service could not be effected---Procedure for substituted service was not adopted in letter and spirit---Alternate and substitute mode of service was required to be adopted when notices could not be served through ordinary mode of service---Service on agent could be considered effective if it fulfilled the stipulation contained in O.V, R.12, C.P.C.---Service, in the present case, was not properly effected---Trial Court did not adhere to the mandatory provision of law---Limitation would be governed under Art.181 of Limitation Act, 1908 in case of non-service of notice of an adjourned hearing---Limitation would be governed under Art.164 of Limitation Act, 1908 when ex parte order was passed under O.IX, R.6(1)(a), C.P.C.---Appeal filed by the tenant was well within time---Lis between the parties to be adjudicated on merits and no one should be non-suited on the basis of technicalities---Fair opportunity of hearing should be provided to the contesting parties---Law did not permit that dispute be decided on technicalities---Justice could only be done after hearing both the parties to decide the lis on merits alone---Ex parte judgment passed by the Trial Court was set aside and case was remanded for its adjudication on merits after providing fair opportunity of leading evidence to the parties---Appeal was accepted in circumstances.

Mst. Afzal Begum v Y.M.C.A. through its General Secretary PLD 1979 SC 18, Messrs Rehman Weaving Factory (Regd.) v Industrial Development Bank of Pakistan PLD 1981 SC 21 and Fida Hussain v Muhammad Rafique Shah 1987 SCMR 845 rel.

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

----Art. 164---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Eviction of tenant---Ex parte order, setting aside of---Limitation---Period of thirty days for filing an application to set aside ex parte order had been provided which would start from the date of decree or where summons was not duly served, when the applicant had knowledge of the decree.

(c) Administration of justice---

----Lis between the parties should be adjudicated on merits and no one should be non-suited on the basis of technicalities.

(d) Maxim---

----"Audi alteram partem"---Meaning---No one, should be condemned unheard.

Attaullahh Langove for Appellant.

Mehmood Sadiq Khokar and Sohail Ansari for Respondent No.1.

Date of hearing: 4th April, 2014.

2015 C L C 752

[Balochistan]

Before Muhammad Noor Meskanzai, CJ

ABDUL HAMEED and 9 others----Petitioners

versus

KHURSHEED AHMED and 12 others----Respondents

Civil Revision No.192 of 2006, decided on 30th January, 2015.

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

----O. VII, R. 11(d)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaint, rejection of---Scope---Decree with regard to suit property had already been passed---Present suit was incompetent---Court, on presentation of plaint was bound to apply its mind independently over the facts of the case and conclude whether the suit was competent and maintainable---Trial Court had failed to adhere to the provisions of O.VII, R.11, C.P.C. which was mandatory in nature and did not apply its judicial mind---Present case would fall within clause (d) of O.VII, R.11, C.P.C.---Court was required to remain within the domain of plaint while examining the same under O.VII, R.11, C.P.C. and conclude whether suit was not hit by the provisions of O.VII, R.11, C.P.C.---No other document except the contents of plaint or the admitted documents placed by the plaintiff was to be taken into consideration for such purpose---Court was bound to reject the plaint prior to issuing notice to defendant if on perusal, it was hit by any of the provisions of O.VII, R.11, C.P.C.---Deviation of procedure by the Trial Court had culminated in entertaining a non-maintainable suit and had initiated incompetent proceedings---Law did not allow the continuity of frivolous litigation and an incompetent suit should be buried at its very inception---Revision was dismissed, in circumstances.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 and Nasrullah Khan v. Mukhtar-Ul-Hassan PLD 2013 SC 478 rel.

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

----S. 12(2)---Allegation of practising fraud upon the court by the beneficiary of the proceedings was sin qua non for filing an application under S.12(2), C.P.C.

Rehmatullah Barech for Petitioners.

Shah Muhammad Jatoi for Respondents Nos.1 to 9.

Tariq Ali Tahir, Addl. A.-G. for Respondents Nos.11 to 13.

Date of hearing: 28th November, 2014.

2015 C L C 794

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

ABDUL MAJEED and 7 others----Petitioners

versus

Mst. SHAH BIBI and 4 others----Respondents

Civil Revision No.165 of 2009, decided on 12th February, 2015.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Amendment of plaint---Scope---Interpretation of O.VI, R.17, C.P.C.---Court had power to allow either of the parties to alter or amend the pleadings at any stage of the proceedings subject to the condition that amendment proposed was necessary for the purpose of determining the real question of controversy between the parties---If amendment of pleadings was necessary for the purpose of determination of real controversy between the parties, it should be allowed subject to the condition that fundamental character of the suit would not be changed---Said power of amendment was not restricted to the trial court rather court sitting in appeal or revision could also exercise such power subject to the said conditions and restrictions---Delay in applying for amendment of pleadings would not be fatal in each case---Relief ancillary to the relief sought should be allowed subject to the fact that allowed amendment should not change the basic character of the suit---Plaintiff, in the present case, would fail in absence of the relief for possession which was ancillary to the relief sought originally in the suit---Addition of the relief for possession would have no effect on the basic structure of the case, nor its nature would be changed---Proposed amendment was necessary for final determination of the controversy between the parties---Application for amendment was allowed to the extent of possession subject to payment of Rs.15,000 as cost of amendment to be paid to the opposite party---Trial Court was directed to frame proper issues to the extent of possession after amendment of pleadings by the parties and decide the matter on merits within a specified time.

Ghulam Bibi v. Sarsa Khan PLD 1995 SC 351 rel.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Court had power to allow either of the parties to alter or amend the pleadings at any stage of the proceedings subject to the condition that amendment proposed was necessary for the purpose of determining the real question of controversy between the parties.

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

----S. 42---Suit for declaration---Bar---Scope---Mere declaration could not be granted where plaintiff was able to seek further relief.

Muhammad Riaz Ahmed for Petitioner.

Abdul Latif Umrani for Respondents Nos.1 and 2.

Farooq Sarwar, Asstt. A.-G.

Date of hearing: 5th December, 2014.

2015 C L C 1042

[Balochistan]

Before Muhammad Kamran Khan Mullakhail, J

MUHAMMAD SABIR and 3 others----Petitioners

versus

Mst. JANAT KHATOON----Respondent

Civil Revision No.373 of 2007, decided on 30th April, 2014.

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

----O. VII, Rr.2 & 3---High Court (Lahore) Rules and Orders Volume I Chap. 1-C, Part C---Pleadings---Requirements---Immovable property---Suit filed by the plaintiff carried certain inherent defects---Description of suit property was neither mentioned nor appended with the plaint---Civil suit on uncertain boundaries and without revenue record with regard to immovable property was not maintainable---No decree on the basis of uncertain and unidentified boundaries was executable---Object of partition or determination of inherited rights could not be determined without description of property---Decree could not be awarded on the basis of ambiguous pleadings---Frivolous, ambiguous and baseless suit/lis should be buried on its inception---Impugned judgments passed by both the courts below, were set aside and suit was dismissed---Revision was accepted, in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts recorded by courts below could not be disturbed by the High Court in exercise of revisional jurisdiction except when the same were based on conjectural presumptions, erroneous assumptions and wrong proposition of law---High Court could reverse such findings while exercising revisional jurisdiction when the same were based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law or arbitrary exercise of powers and where unreasonable view on evidence was taken due to non-reading and misreading of evidence.

Tahir Ali Baloch for Petitioner.

Mujeeb Ahmed Hashmi for Respondent.

Naseer, Addl. A.-G. for State.

Date of hearing: 21st March, 2014.

2015 C L C 1053

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

MUNEER AHMED----Petitioner

versus

DISTRICT AND SESSIONS JUDGE, LASBELLA AT HUB and others----Respondents

Constitutional Petitions Nos.138 and 141 of 2015, decided on 2nd March, 2015.

(a) Balochistan Local Government Act (V of 2010)---

----S. 37---Constitution of Pakistan, Art.199---Constitutional petition---Local bodies' elections---Election Tribunal appointed commission, and on receipt of report passed order that vote of returned candidate might be considered and not excluded, while matter was still pending for final adjudication---Validity---Impugned order had been passed without notice and behind the back of the parties which was contrary to law and in violation of judicial norms---Petitioner was an "aggrieved person"---Executive orders would carry independent and far-reaching consequences, legal repercussion and implications---Order which was void and without jurisdiction could not be allowed to occupy the field as illegality could not be allowed to be perpetuated---Impugned orders were executive in nature but having far-reaching consequences and impact---Status of co-petitioners could not be disturbed without adopting and observing a legal process recognized by law---Both the impugned orders were illegal, unjustified, unwarranted, without lawful authority and void ab initio which were set aside---Constitutional petitions were accepted, in circumstances.

Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others 2014 MLD 574; Shamsul Haq and 8 others v. Mst. Ghoti and 8 others 1991 SCMR 1135; 2011 CLC 1303; 2009 MLD 1059; 2005 CLC 11 and PLD 2000 Kar. 74 rel.

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

----O. I, R.10---Balochistan Local Government Act (V of 2010), S.37---Constitution of Pakistan, Art.199---Constitutional petition---Interveners---Impleadment as a party---Scope---Impugned order would directly affect the interveners which had been passed in their absence without hearing them---Interveners were not party before the Election Tribunal who were necessary party---No legal hitch, bar or impediment existed in making interveners as party---Application for impleadment as a party was accepted and interveners were made party to the constitutional petition who would be treated as co-petitioners.

(c) Administration of justice---

----Basic purpose and object of the court was to do substantial justice between the parties and to achieve the object---Technicalities were to be avoided/over looked unless same would offer insurmountable hurdles.

(d) Administration of justice---

----Order which was void and without jurisdiction could not be allowed to occupy the field as illegality could not be allowed to be perpetuated.

Amanullah Kanrani for Petitioners.

Muhammad Haroon Kasi for Respondents Nos.1 and 2.

Baz Muhammad Kakar for Respondent No.3.

Shai Haq Baloch, A.A.-G.

Date of hearing: 24th February, 2015.

2015 C L C 1084

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

MUHAMMAD NAEEM----Petitioner

versus

SIRAJ-U-DIN and 6 others----Respondents

Constitutional Petition No.74 of 2015, decided on 27th February, 2015.

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

----Ss. 43, 45 & 53---Constitution of Pakistan, Art.199---Constitutional petition---Correction of entries in the Revenue Record by the revenue authorities---Scope---Disputed question of fact with regard to title and inheritance could not be decided by the revenue officer/revenue court by way of mutation proceedings which were summary in nature---Parties ought to have approached the civil court in such like cases--- Order passed by the Settlement Officer, in the present case, was not in accordance with the mandatory provisions of S.53 of West Pakistan Land Revenue Act, 1967---Dispute with regard to entry in the record of rights or in periodical record had to be taken to the court of civil jurisdiction---Revenue authorities had no power to correct the longstanding entries in the revenue record in summary manner---Variation in a periodical record could be made with regard to undisputed acquisition of interest on the basis of facts proved or admitted---Such corrections were permissible with the consent of all the parties or which were supported by a decree or order binding on parties and not otherwise---No disputed entry in a record of rights or periodical record could be altered, either on ground of mistake or a fraud except on the basis of obvious clerical error or patent facts requiring no elaborate inquiry for their establishment---Disputed entries having been incorporated in the revenue record could only be corrected through a decree of the court and not by the order of any of the officials in the hierarchy of Revenue Authorities particularly after lapse of more than five decades---Impugned orders had been passed in violation of mandatory provision of West Pakistan Land Revenue Act, 1967 which could not sustain in the eye of law---Present matter was with regard to title of the parties and validity of mutation entries---Impugned orders passed by the revenue authorities had no effect in view of S.53 of West Pakistan Land Revenue Act, 1967 which were set aside---Proceedings pending before the Settlement Officer were quashed---Petitioner might approach the civil court for redressal of his grievance by filing of a declaratory suit---Constitutional petition was dismissed in limine.

Waris Khan v. Col. Humayun Shah PLD 1994 SC 336; Rasta Mal Khan v. Nabi Sarwar Khan 1996 SCMR 78 and Nemat Ali v. Malik Habib Ullah 2004 SCMR 604 rel.

Khushnood Ahmed for Petitioner.

Nemo for Respondents.

Date of hearing: 12th February, 2015.

2015 C L C 1315

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD ALI and 21 others----Petitioners

versus

ABDUL JALIL----Respondent

Civil Revision No.8 of 2006, decided on 27th April, 2015.

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

----Ss. 2 (15), & O. III, R. 4----High Court (Lahore) Rules & Orders, Vol.V, Ch. 6-B, Part B---Appointment of pleader---Requirement---Power and duties of advocate---Advocates not duly authorized---Effect---Revision petition was filed and petitioners were represented by advocate without authorization---Maintainability---Advocate filed present petition with an undertaking of filing power to represent petitioners, which they never filed---Validity---Present petition was filed by advocate with clear undertaking of filing instrument of authorization to represent petitioners before court, but he failed to place on record written instrument to that effect, which could entitle him to represent petitioners before court and to file petition with his own signatures---Advocate who made his appearance was not duly authorized to represent petitioners before court and his presence was therefore of no legal effect---Petitioners, in circumstances, were not present before the court---No pleader or advocate could act in court of law unless duly appointed by an instrument in writing---Present petition having been filed by an incompetent person was not maintainable---Petition was dismissed in circumstance.

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

----O. III, R. 4---Scope---Appointment of pleader---Procedure and requirement---Order III, R. 4, CPC is elaborate enough to deal with all possible situations but basic requirement of appointment of pleader shall always be the same---Appointment of pleader shall be in writing and duly signed by person who appoints the pleader and this instrument must be before the court---No pleader or advocate can act in court of law unless duly appointed by an instrument in writing.

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

----S. 2(15)---"Pleader"---Meaning---Representation through pleader---Legality---Pleader means any person entitled to appear and plead for another in court, and includes advocate, Vakil and attorney---Person is entitled to be represented before court through pleader instead of making his personal appearance.

Habib-ur-Rehman for Petitioners.

Zahir Muqim Ansari for Respondent.

Date of hearing: 17th April, 2015.

2015 C L C 1374

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ

SOHAIL----Petitioner

versus

Mst. NAZIA AMIN and 3 others----Respondents

C.P. No.695 of 2013, decided on 24th July, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower---Satisfaction of decree in instalments---Scope---Husband had not assailed the judgment and decree passed by the Trial Court and the same had attained finality---Judgment and decree which had attained finality could not be reopened in execution proceedings---Sufficient and reasonable leniency had already been advanced in favour of husband by both the courts below---Constitutional petition was dismissed in circumstances.

(b) Islamic Law---

----Dower---Scope---Dower or Mehr was the sum of money or other property which the husband was obliged to pay to his wife as a mark of respect---Dower was the consideration of marriage contract and token of respect for wife---No marriage could take place without fixing dower---Dower had to be paid by the husband to the wife to acquire religious merit and to discharge an obligation or duty towards the wife---Dower was a debt and wife was entitled to receive the same as a creditor of her outstanding dues against her husband---Dower would become due soon after the marriage was consummated or the Nikah was solemnized.

Muhammadan Law rel.

Jamil Ahmed Kakar for Petitioner.

Shakeel Ahmed Zamrani for Respondents.

Date of hearing: 25th June, 2014.

2015 C L C 1552

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

AMANULLAH----Petitioner

versus

SECRETARY RELIGIOUS AFFAIRS AND INTER-FAITH HARMONY DEPARTMENT, BALOCHISTAN and 2 others----Respondents

C.P. No.768 of 2012, decided on 7th July, 2015.

Balochistan Zakat and Ushr Act (I of 2012)---

----S. 20(3)---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Chairman District Zakat Committee, appointment of---Matter being a factual controversy would require a complete regular probe which in proceedings under Art.199 of the Constitution was not possible---Exercise of constitutional jurisdiction was subject to non-availability of other adequate remedy---Balochistan Zakat and Ushr Act, 2012 had provided a mechanism for removal of Chairman or Member District Zakat Committee---Petitioner should have utilized that forum at the first instance---Matter was sent to the Provincial Council for appropriate action within a specified period---Constitutional petition was disposed of accordingly.

Abdul Khair Achakzai for Petitioner.

Baz Muhammad Kakar and Shai Haq Baloch, A.A.-G. for Respondents.

Date of hearing: 27th May, 2015.

2015 C L C 1555

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

BIBI BABO----Appellant

versus

MUHAMMAD ASLAM and another----Respondents

R.F.A.No.66 of 2013, decided on 16th April, 2015.

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

----Arts. 85, 89 & 92----Specific Relief Act (I of 1877), Ss. 8, 9, 39 & 54---Revenue record, evidentiary value of---Mutation entry---Presumption of truth---Utility bill as proof of ownership of property---Scope---Plaintiff filed suit for possession, permanent injunction, possession and cancellation of agreement claiming ownership of suit property alleging that defendant had illegally occupied the same---Contention raised by plaintiff was that she was owner of suit property as per revenue record supported by oral evidence which remained unrebutted, and utility bills produced by defendant were not sufficient proof of ownership---Defendant took the plea that he had been in possession for twenty-eight years and paid all utility bills; that question of title had earlier been decided in complaint filed by plaintiff under Ss.3, 4 & 5 of Illegal Dispossession Act, 2005; and that mere entries in name of plaintiff were no proof of her ownership---Trial Court dismissed the suit on ground that defendant had been in possession of suit property for twenty-eight years and substantiated his possession by producing electricity bills---Validity---Trial court had given more weight to utility bills than to mutation produced by plaintiff---Defendant had failed to prove that mutation entry in name of plaintiff was collusive or result of forgery---Presumption of truth was attached to revenue entry---Mutation entry was a document bearing presumption of truth unless rebutted---Presumption of truth was attached to revenue record, which could not be controverted without sufficient and convincing evidence---Utility bills might establish possession of a person, but such documents could not establish ownership in presence of recorded owner----In presence of mutation entry in favour of plaintiff, utility bills had no substantial value with regard to ownership of suit property---Plaintiff had succeeded in substantiating her claim, which defendant could not rebut---High Court, setting aside judgment and decree of Trial Court, decreed the suit in favour of plaintiff as prayed for.

Hakim Khan v. Nazar Ahmed Lughmani 1992 SCMR 872 and Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840 rel.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5----Specific Relief Act (I of 1877), Ss. 8 & 9---Complaint, dismissal of---Effect---Plaintiff before filing the suit for possession had filed complaint under Ss.3, 4 & 5 of Illegal Dispossession Act, 2005 against the defendant which the court dismissed on ground of pendency of civil litigation between parties---Defendant raised plea that after dismissal of said complaint, plaintiff had no right to file suit for possession---Validity---Mere dismissal of complaint did not create any right in favour of defendant regarding suit property.

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

----O. VII, R. 3----Pleadings---Wrong description of property in pleadings-- Effect---Trial court non-suited plaintiff for giving wrong description of property---Validity---Wrong description of suit property was not disputed as per pleadings of parties---Plaintiff produced mutation entry in evidence which contained detail description of suit property---Defendant in his written statement had admitted possession of plaintiff prior to his own, and due to such admission there was no cloud between parties in respect of identity or incorrect description of suit property---Oral witnesses also supported the version of plaintiff---Findings of Trial Court were based on erroneous assumption and contrary to record of case---Appeal was allowed.

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

----Ss. 9 & 42---Suit for possession---Defendant based his claim on mere possession---Validity---Claim merely on basis of possession was good against whole world except the rightful owner---Possession was not a good defence against true owner and the same was unjustified and unwarranted.

AIR 2004 SC 4609 and AIR 1990 SC 673 rel.

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

----Art. 144----Adverse possession---Limitation---Defendant raised objection of limitation as he had based his claim on adverse possession for having been in possession of suit property for twenty-eight years---Trial Court accepting said objection held that the suit was time-barred---Validity---Plaintiff filed the suit on basis of title and cause of action under Art.144 of Limitation Act, 1908 arose on date when possession of defendant over suit property became adverse to plaintiff---Defendant claimed right on basis of adverse possession when he had filed written statement---Suit was within time---High Court reversed findings of Trial Court as to issue of limitation.

Mrs. Maqsooda Begum v. Ghulam Qadir and others 1996 SCMR 1539 rel.

Abdul Aziz Khan Khilji for Appellant.

Qurban Ali Tareen for Respondents.

Date of hearing: 9th March, 2015.

2015 C L C 1687

[Balochistan]

Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ

Mrs. ELSA MARRI and 7 others----Appellants

versus

PHILLIPS M. IRANI----Respondent

R.F.A. No.70 of 2004, decided on 26th May, 2015.

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

----S 8---Suit for possession of immovable property---Defendant was occupying the property in question with the consent of trustee/brother of plaintiff as his attorney---Possession of a servant, deputee or appointee for the benefit or on behalf of the master or the person deputing or appointing him was in fact the possession of the later---Possession of defendant over the suit property was unlawful---Defendant was appointed as an attorney but he tried to get undue advantage---Suit property was specified for trust and plaintiff being son of Wakif had rightly filed the suit---Defendant had failed to justify his possession and plaintiff had succeeded to prove his case---Trial Court had rightly appraised the evidence available on record and had come to correct conclusion---Evidence produced by the plaintiff was forceful as compared to the evidence of the defendant---No illegality, irregularity or jurisdictional defect had been pointed out in the impugned judgment and decree---Trial Court had rightly decreed the suit with the direction to the defendants to vacate the property in question---Defendants were occupying the property in question illegally---Defendants were directed to pay rent for the period they had occupied the suit property and they should vacate the same after specified period---Appeal was dismissed in circumstances.

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

----O. XLI, R. 1---Appeal, filing of---Requirements---Appeal should be preferred in the form of memorandum signed by the appellant or his pleader---Such pleader must have an authority on behalf of the party to sign the memorandum of appeal otherwise its presentation would be invalid---Appeal would be incompetent if same was filed by the pleader not authorized to sign the memorandum of said appeal by the appellant.

Ramzan v. Sohrab Khan PLD 1990 Lah. 314 rel.

Ayaz Zahoor and Arthor Victor for Appellant.

Abdul Rauf Lehri for Respondent.

Date of hearing: 9th March, 2015.

2015 C L C 1719

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Mst. AISHA and 2 others----Appellants

versus

Mst. MAH GUL and 2 others----Respondents

Succession Appeal No.5 of 2014, decided on 10th July, 2015.

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

----Ss.381 & 384---Succession certificate---Object, scope and purpose---Logic behind S.381 of Succession Act, 1925, is to enable a person to recover debts on estate of a deceased but the certificate issued for the purpose neither declares rights of persons interested, nor determine their shares in recoverable debt---Issuance of certificate is with sole purpose to protect party paying debt to holder of certificate---Duty is imposed on holder of certificate to disburse amount realized under certificate among persons entitled, in accordance with their respective rights---Certificate issued under Succession Act, 1925, does not confer any title upon a person but only enables him to recover the debts.

Federation of Pakistan v. General Public PLD 1991 SC 731 rel.

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

----Ss. 381 & 384---Succession certificate---Determining right in legacy---Trial Court, jurisdiction of---Appellants were mother, brother and sister of deceased who claimed their shares in the outstanding dues with government department---Trial Court issued succession certificate to widow of deceased for collection of dues of deceased from government department, where he was employed---Validity---Issuance of certificate did not place bar on the right of appellants (legal heirs) to establish their title and entitlement in debts by a suit before a Court of competent jurisdiction---Issuance of certificate also did not confer any title to holder of certificate, rather certificate was issued with the sole purpose to recover dues from concerned department--- Person aggrieved could press his right through a suit and to recover amount received on the basis of such certificate to the extent of his share on the basis thereof---Trial Court, in the present case, without discussing nature of dues and fact that either it covered legacy of deceased and entitlement of parties before it, ordered to exclude claim of appellants (legal heirs) decided that widow was solely and lonely entitled to receive and encash dues of her late husband and appellants (legal heirs) did not deserve to receive any share out of the dues of deceased--- High Court set aside such findings of Trial Court which erred while recording findings and the same could not hold the field---High Court modified the order passed by Trial Court---Appeal was allowed accordingly.

Federation of Pakistan v. General Public PLD 1991 SC 731 rel.

Saleemullah Kakar and Muhammad Anwar Nasar for Appellants.

Qazi Haroon for Respondent No.1.

Date of hearing: 27th March, 2015.

2015 C L C 1833

[Balochistan]

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

KHURSHID ASHRAF and 3 others----Appellants

Versus

AFTAB ASHRAF and another----Respondents

Regular First Appeal No.65 of 2013 and Civil Miscellaneous Appeal No.5 of 2013, decided on 29th June, 2015.

(a) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O. VII, R.11 & S.11---Suit for partition---Res judicata, principle of---Applicability---Plaint, rejection of---Scope---Second suit for partition was instituted after decree of previous suit which was dismissed under O.VII, R.11, C.P.C.---Validity---Previous suit for partition was proceeded on merits and was decreed---No execution proceedings were initiated for enforcement of said judgment and decree within the prescribed period of limitation, judgment and decree passed in the previous suit, therefore, was not enforceable---Plaintiff had prayed for partition of suit property according to his share---Suit property was still joint between the parties---No previous decree for partition existed in favour of one of the plaintiffs---Trial Court had erred in facts as well as law while dismissing the present suit---Impugned order passed by the Trial Court was set aside and case was remanded for decision on merits in accordance with law---Appeal was accepted in circumstances.

Santan Narian v. Saran Narian AIR 1959 PATNA 331 ref.

Allah Dawaya v. Additional District Judge 2002 SCMR 1183; Muhammad Saleem v. Rashid Ahmed 2004 SCMR 1144; State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280; Shariq Saeed v. Mansoob Ali Khan 2010 YLR 1647 and Riaz Ahmed v. Punjab Textbook Board 2006 SCMR 867 distinguished.

Abdul Majid v. Mahmudabi, AIR (36) 1949 Nagpur 366; Bazlur Rahman v. Syed Ali PLD 1967 Dacca 809 and Habibur Rahman v. Abdul Rahman 1987 CLC 195 rel.

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

----Art. 181----Civil Procedure Code (V of 1908), S. 48---Execution petition---Limitation---First application for execution of a decree would be governed by the residuary Art.181 of Limitation Act, 1908 and rest of the applications made thereafter would be governed by six years time limit prescribed by S.48, C.P.C.---Effect of S.48, C.P.C. was to provide limitation for subsequent execution petitions after the first one---In case no execution application was made within the period as prescribed by Art.181 of Limitation Act, 1908 then the execution petition made thereafter would be barred under the said Article and there would be no occasion to avail of the benefits of the extended period by S.48, C.P.C.---Once an application for execution was made within time so prescribed then any number of applications for execution could be presented within six years period from the date of decree.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 rel.

Mumtaz Hussain Baqri and Sabira Islam for Appellants (in R.F.A. No.65 of 2013).

Ghulam Ali Raza for Respondent No.1 (in R.F.A. No.65 of 2013).

Saleem Baloch, Addl. A.-G. for Respondent No.2 (in R.F.A. No.65 of 2013).

Mumtaz Hussain Baqri and Sabira Islam for Appellants (in Civil Miscellaneous Appeal No.5 of 2013).

Ghulam Ali Raza for Respondent No.1 (in Civil Miscellaneous Appeal No.5 of 2013).

Saleem Baloch, Addl. A.-G. for Respondent No.2 (in Civil Miscellaneous Appeal No.5 of 2013).

Date of hearing: 24th June, 2015.

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2015 C L C 171

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary, J

WASEEM AHMAD RATHORE----Appellant

Versus

Mst. FOZIA RAHEEM and 2 others----Respondents

Civil Appeal No.6 of 2013, decided on 14th July, 2014.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Dissolution of marriage---Khula---Restoration of property/dower received by the wife---Scope---Family Court dissolved marriage in consideration for khula by fixing an amount which was not incorporated in the Nikah Nama---Contention of husband was that the amount fixed by the Family Court as consideration for khula was not mentioned in the Nikah Nama---Validity---Wife could not prove that she was entitled to obtain decree for dissolution of marriage on the grounds of cruelty, non-performance of marital obligations and non-payment of maintenance allowance as her husband was out of country---Person who had asserted a point must prove the same---Wife was bound to prove her claim that ornaments were snatched away from her, by her husband or his sister or brother which she could not prove---Decree for dissolution of marriage could be passed without consideration of khula---When khula was due to some fault on the part of husband then it was not lawful for him to take back anything from his wife---Wife herself deserted in the house of her parents and she filed a suit for dissolution of marriage---Wife did not live with her husband continuously---Wife had been granted a decree on ground of khula due to hatred against her husband---No fault was pointed out on the part of husband and Family Court was bound to restore the property/dower received by the wife---Husband was entitled to receive entire dower amount from wife instead of amount fixed by the Family Court in case of dissolution of marriage on khula when snatching of ornaments had not been proved---Wife had not arrayed party to the sister and brother of husband against whom allegation of snatching away ornaments was levelled---When wife had demanded khula as of right then marriage had to be dissolved on restoration of what she had received in consideration of marriage when parties would not observe the limits ordained by Almighty Allah---Family Court had rightly dissolved the marriage on the basis of khula but failed to fix amount as consideration for khula as marriage was to be dissolved on the condition of repayment of dower amount received by wife---Dower in the form of gold ornaments was paid to the wife and specific amount of ornaments had been incorporated in the Nikah Nama---Marriage of the spouses should have been dissolved in consideration for khula i.e. amount incorporated in Nikah Nama instead of amount fixed by the Family Court---Wife would be entitled to obtain a decree for dissolution of marriage on the condition of repayment of entire dower amount incorporated in the Nikah Nama as consideration for khula---Appeal was accepted accordingly.

2005 SCR 37; 2011 SCR 371; 2005 MLD 1822 and PLD 2006 Kar. 563 ref.

Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566 and Muhammad Khalil v. Shazia Iqbal and 2 others 2006 CLC 1033 rel.

Iftikhar Hussain Butt for Appellant.

Malik Muhammad Saleem Khan for Respondents.

2015 C L C 1360

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and

Raja Saeed Akram Khan, JJ

Sardar MUHAMMAD HUSSAIN KHAN----Appellant

versus

ELECTION TRIBUNAL, AZAD JAMMU AND KASHMIR AT RAWLAKOT and 13 others----Respondents

Civil Appeal No.13 of 2014, heard on 8th December, 2014.

(On appeal from the judgment of the High Court dated 31-10-2013 in Writ Petition No.1061 of 2013).

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

----S. 43---Election petition---Re-counting of votes---Scope---Election Tribunal appointed local commissioner and directed him to submit report after re-counting of votes as to how much of them were correct and how many of those were liable to be rejected---Validity---Election Tribunal had power to make orders for opening of the packets of counterfoils and certificates or inspection of any counted ballot papers---No vote should be disclosed until it had been held by the Election Tribunal to be invalid---Only the Election Tribunal could declare a vote as invalid---Inquiry officer or Election Commission had no power to declare that a vote was invalid---Election Tribunal could only summon the relevant record and examine the corresponding official witnesses after leading initial evidence by the petitioner unless said Tribunal was acting suo motu in the midst of election petition---No illegality was pointed out in the impugned judgment passed by the High Court---Election Tribunal was directed by the Supreme Court to decide the election petition within a specified period---Appeal was dismissed in circumstances.

Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others 1998 SCMR 1597; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Mustafeezuddin v. Arshad Mahfooz and 18 others 2004 CLC 687; Malik Nausher Khan Langerial v. Khalid Mahmood Chohan and others 2004 CLC 1249; 2004 CLC 1360 and 2007 MLD 746 ref.

Asghar Ali Malick, Advocate Supreme Court for Appellant.

Raja Muhammad Hanif Khan and Raja Amjad Ali Khan, Advocates for Respondents.

Date of hearing: 3rd December, 2014.

2015 C L C 1406

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, and

Raja Saeed Akram Khan, JJ

Civil Miscellaneous No.50 of 2014 in Civil PLA No.249 of 2013

GHULAM ASGHAR----Petitioner

versus

SARWAR BEGUM and 16 others----Respondents

(On appeal from the judgment and decree of the High Court, dated 2-7-2013 in Civil Appeals Nos.16 and 57 of 2008).

Civil Miscellaneous No.51 of 2014 in Civil PLA No.260 of 2013

MUHAMMAD AZIZ and 13 others---Petitioners

versus

GHULAM ASGHAR and another----Respondents

(On appeal from the judgment and decree of the High Court, dated 2-7-2013 in Civil Appeals Nos.16 and 57 of 2008).

Civil Miscellaneous No.50 of 2014 in Civil PLA No.249 of 2013 and Civil Miscellaneous No.51 of 2014 in Civil PLA No.260 of 2013, decided on 24th June, 2014.

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

----S. 42 (11) (d)---Civil appeal to Supreme Court---Scope---Appeal to Supreme Court would lie from the judgment, decree, final order or sentence of the High Court if amount or value of the subject matter of the dispute in appeal was not less than fifty thousand rupees and High Court had varied or set aside the judgment or final order of the court immediately below---Value of subject matter in the Trial Court, in the present case, was three million rupees---Decree was passed involving the amount of three million rupees---High Court amended the decree and fixed the price instead of three million rupees as 1.5 million rupees---Decree had been varied by the High Court and direct appeal would lie to the Supreme Court---Application for treating petition for leave to appeal as appeal was filed after a period of six months from filing of the petition for leave to appeal---Application had been filed beyond the period of limitation---Petition for leave to appeal was dismissed in circumstances.

Ghulam Nabi and 26 others v. Seth Muhammad Yaqub and 4 others 1981 SCMR 889; Muhammad Latif Khan and others v. Lal Khan and others PLD 1979 SC (AJ&K) 123; Inayatullah Khan v. Capt. (Retd.) Inayatullah Khan and another PLD 1985 SC (AJ&K) 85; Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government through Chief Secretary Azad Jammu and Kashmir Government, Muzaffarabad PLD 1990 SC (AJ&K) 23; Syed Mazhar-ul-Hassan and another v. Zubina Nayyar and 10 others 1994 CLC 1428; Government of Pakistan v. Muhammad Shafi Khan and 4 others 1999 SCR 291; Syed Javed Hussain Shah v. Azad Government and others and 3 others 2001 SCR 567 and Azad Government v. Muhammad Suleman and 6 others 2003 SCR 423 ref.

Azad Government and others v. Mst. Razia Farooqi and others 1996 SCR 136; Defence Department of Pakistan v. Sardar Muhammad Khan and another 2004 SCR 459; Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar and 38 others PLD SC (AJ&K) 21 and Chief Administrator Auqaf (Nazim-e-Alla Auqaf) v. Sain Ghulam Ahmed and others 2013 SCR 715 rel.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XIII, R. 1---Civil petition for Leave to appeal---Limitation---Limitation for filing a petition for leave to appeal from the judgment and decree of High Court was sixty days.

(c) Interpretation of statutes---

----Law was to be interpreted as it was and no word could be added or substracted from a clear legal provision.

Muhammad Ayub Sabir, for Petitioners (in both the cases).

Abdul Majeed Malik, Advocate for Respondents (in both the cases).

Date of hearing: 23rd May, 2014.