CLC 2016 Judgments

2016 C L C 489

[Board of Revenue Punjab]

Before Nayyar Mahmood, Member (Judicial VII)

MALIK ALI and 13 others----Petitioners

Versus

AHMAD YAR and 9 others----Respondents

R.O.Rs. Nos.1399 and 1400 of 2012, decided on 15th October, 2015.

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

----S. 19---West Pakistan Land Revenue Act (XVII of 1967), Ss.42, 44, 45 & 164---Mutation, cancellation of---Both mutations were challenged by the respondent etc., the legal heirs of deceased mother of the respondent---Deputy District Officer (Revenue), after hearing the respective parties, and examining the relevant record, held that, the land in question was transferred by the Revenue Officer concerned without obtaining permission from the District Collector or the Commissioner, which permission was mandatory under S.19 of Colonization of Government Lands (Punjab) Act, 1912---Impugned mutations were set aside with the direction to the Revenue Officer concerned to restore the land in favour of the respondents---Appeals filed by petitioners against order of the Deputy District Collector/ Revenue, were also rejected by the Additional Commissioner (Revenue) after thoroughly examining the whole case---Concurrent findings of the courts below were in accordance with law; and did not suffer from any legal infirmity---No reason existed to differ with the impugned orders of the two courts below which were upheld and revision petitions were dismissed being devoid of merits.

PLD 1959 W.P. (Rev.) 87; PLD 1967 W.P. (Rev.) 103; 1995 MLD 45; PLD 1967 W.P. (Rev.) 32; 2007 SCMR 262; PLD 1974 Lah. 434; 2000 SCMR 431 and PLD 1987 Lah. 659 ref.

Mian Muhammad Yaqoob Kanjoo for Petitioners.

Mian Muhammad Siddique Kamiana for Respondent.

Date of hearing: 29th September, 2015.

2016 C L C 550

[Board of Revenue Punjab]

Before Nayyar Mahmood, Member (Judicial-VII)

Mst. HABIB KHATOON and 5 others----Petitioners

Versus

MUHAMMAD AMIN and 4 others----Respondents

R.O.R. No.210 of 2015, decided on 26th October, 2015.

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

----Ss. 135, 145 & 164---Partition of joint holding---On application for partition of joint holding, Naib Tehsildar, divided said holding in four Wandajat, which were accepted by Revenue Officer Halqa/AC---Under S.145 of West Pakistan Land Revenue Act, 1967, Instrument of partition (Sanad Taqseem) was also issued---No body having challenged said Wandajat, same had attained finality---Additional Commissioner, allowed respondent to choose his wanda, and ordered that other co-sharers, if aggrieved, could apply for partition and that wanda chosen by the respondent would remain intact---Validity---Additional Commissioner had not taken care of the rights of other co-sharers while passing the impugned order---Additional Commissioner had placed 51 Kanals, 8 Marlas land of respondent in one basket and all other co-sharers in the second basket---No justification existed to allow respondent to choose land of his choice out of total holding measuring 160 Kanals, 1 Marla---Additional Commissioner had made error in judgment and by doing so awarded relief, which was not even claimed by respondent---Additional Commissioner, had misused his authority and did not apply judicial mind---Such an order could not be allowed to be maintained, because it smacked fishy---Accepting petition, impugned order of Additional Commissioner, was set aside; in circumstances.

Mian Muhammad Siddique Kamiana for Petitioners.

Respondent in person.

Mian Muhammad Ajmal Sukhera for Respondents.

2016 C L C 669

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

ABDUL SATTAR----Petitioner

Versus

ALTAF HUSSAIN----Respondent

ROR No.2868 of 2012, decided on 4th July, 2014.

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

----S. 164---Appointment of Chowkidar---Revision before Board of Revenue---Scope---Present Chowkidar, being unable to perform his duties of Chowkidar due to ill health, petitioner and respondent submitted application for appointment of Chowkidar---Assistant Commissioner after observing codal formalities appointed respondent as Chowkidar---Appeal filed by the petitioner was dismissed---Validity---Appointment of Chowkidar, was made under instructions of Government and was not appointed under the West Pakistan Land Revenue Act, 1967---Competency of Deputy Commissioner/DCO, and order of Deputy Commissioner being fiscal, Judicial Member of Board of Revenue, being not competent to adjudicate into the matter, revision petition was dismissed, being incompetent.

Hafeez Ullah Zaigham for Petitioner.

Muhammad Zia Ullah for Respondent.

2016 C L C 689

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MASOOD PERVAIZ----Petitioner

Versus

The STATE----Respondent

Case No.570, decided on 21st April, 2014.

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

----Ss. 2 & 3---Allotment of land---Petition for implementation of allotment order---High Court passed order whereby specific land had been allotted in favour of father of the petitioner---High Court had held that respondent Authority should take steps for implementation of said allotment in revenue record and in case it was not possible to deliver possession of said land to the petitioner, steps should be taken for transfer of alternate land of equal value to the petitioner---Petitioner contended that he could be allotted alternate land in pursuance of order of High Court---Petitioner was required to produce the copy of allotment order, which needed to be implemented in obedience to the direction of High Court---Counsel for the petitioner failed to produce any such allotment order in favour of the petitioner, despite various opportunities---Lastly, the petitioner, as well as his counsel absented from proceedings---Petitioner having failed to produce any allotment order, or any such like document, which could show facts regarding proposal of land transferred to the father of the petitioner, no steps for implementation of said allotment could be taken---Allotment order, was not possible.

Nemo for Petitioner.

2016 C L C 41

[Election Tribunal Balochistan]

Before Naeem Akhtar Afghan, J

Sardar HAIDER KHAN NASIR and another----Petitioners

Versus

Sardar DUR MUHAMMAD NASIR----Respondent

Election Petitions Nos.1 and 2 of 2014, decided on 9th January, 2015.

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

----Ss. 52, 38(12) & 44---Election petition---Election for Provincial Assembly---Corrupt or illegal practices---Proof---Standard of---Burden of proof would lie upon the person challenging the election of returned candidate---Alleged illegal/corrupt practice had to be proved by clear, cogent and convincing evidence without reasonable doubt---No findings could be given on presumption, surmises and conjectures---Standard of proof required was like that of a charge in criminal trial and in case of any doubt benefit of same had to be extended to the returned candidate---Statements of interested witnesses could not be made a basis to give findings upon the allegations/issues without corroboration of the same---Mere registration of FIR on the day of polling could not be considered as evidence unless finding of guilt was recorded with regard to the allegations levelled in the FIR---Affidavits/statements of election petitioners without any supporting documents and without any corroboration from record could not be made a basis to give findings upon the allegations/issues---Election petitioners, in the present case, had failed to prove the allegations of corrupt, illegal practice or other illegal acts allegedly committed by the respondent through confidence inspiring oral or documentary evidence---Election material was not sealed in the separate packets/bags by the Presiding Officers and Returning Officers---Respondent could not be penalized for non-compliance of relevant provisions of Representation of the People Act, 1976 by the Presiding Officer and Returning Officers---Nothing was on record that no polling was conducted on the alleged polling stations or election was rigged by the respondent on those polling stations---No evidence had been produced by the election petitioners that Form-XIV of said polling stations were forged, fabricated or maneuvered by or on behest of respondent---Authenticity of results declared by the Presiding Officers of such polling stations on Form-XIV could not be doubted in absence of any evidence to the contrary---Results of alleged polling stations could not be excluded from count as serious doubts had arisen with regard to the safe custody of election material and accessibility of the same by any person---Respondent could not be penalized for the use of poor quality/defective ink by the Election Commission---If all the invalid votes were excluded from the votes secured by the respondent even then he had the lead of 234 votes over the election petitioners---Election petitioners had failed to discharge the burden of proving corrupt, illegal practice or the illegal acts alleged to have been committed by the respondent---Election petitions were dismissed in circumstances.

(b) Administration of justice---

----No one should be penalized for the act of public functionaries.

Iftikhar Hussain Gailani, Senior Advocate Supreme Court, Muhammad Amir Rana and Atta-ur-Rehman for Petitioner (in Election Petition No.1 of 2014).

Muhammad Aslam Chishti and Naseebullah Tareen for Petitioner (in Election Petition No.2 of 2014).

Muhammad Riaz Ahmed for Respondent No.1 (in Election Petitions Nos.1 and 2 of 2014).

Muhammad Aslam Chishti and Naseebullah Tareen for Respondent No.5 (in Election Petition No.1 of 2014).

Muhammad Amir Rana and Atta-ur-Rehman for Respondent No.4 (in Election Petition No.2 of 2014).

Muhammad Haroon Kasi, Law Officer, Election Commission Balochistan, Quetta.

Dates of hearing arguments in Election Petition No.1 of 2014: 18th, 24, September, 15th, 20th October, 25th November and 9th December, 2014.

Dates of hearing arguments in Election Petition No.2 of 2014: 11th, 12th, 15th, 18th September, 2014 and 9th December, 2014.

2016 C L C 21

[Gilgit Baltistan Chief Court]

Before Muhammad Alam, J

ABDUL MATEEN and another----Petitioners

Versus

AHALIAN PATTI SHALTER MOUZA DASHKAN through Ehsanullah and others----Respondents

Civil Revision No.69 of 2015, decided on 3rd September, 2015.

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

----O. VII, R. 1 & O.XLI, R.1---Registration of suit or appeal---Presiding Officer of the court concerned, was legally bound to go through the memo of appeal, or contents of plaint to ascertain as to whether the same was competent or otherwise, in the form in which the same was presented.

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

----S. 54---Civil Procedure Code (V of 1908), O.XV, Rr.1, 3---Suit for perpetual injunction---Selection of site for construction of building of school---Both, the Trial Court and Appellate Court below had passed two different orders---Trial Court by an order appointed an Engineer for site selection of the building of school in question---Appellate Court, instead of passing any order on the merits or otherwise, passed a quite different order on the sole ground that contesting parties to the case, were not at issue---Contesting party, in the case, was the Government, and not the residents of the two villages---Government, was implementing a scheme of construction of a school building in either of two villages---People of the said two villages were disputing the said construction and had filed suit---Question involved in the case, was not a question of any civil right of either of the parties, but was a scheme for construction of a school building in either of the villages---Government had discretion to construct school building in either of the two villages, or anywhere else---Trial Court or Appellate Court, had no power to interfere in the working of Government---Trial Court, in circumstances, had very wrongly appointed a Commission for the site selection of the school building in question---Appellate Court, decreed the suit baselessly---Appellate Court, had wrongly found that parties were not at issue---Chief Court observed that courts were bound to pass legal orders according to the circumstances of each case, where contesting parties were not at issue---Suit filed by the plaintiff was incompetent---Government, which was contesting respondent had not infringed any civil right of the petitioners of the respondents---Both the orders passed by the Trial Court and Appellate Court, were set aside---Suit stood dismissed.

Sharif Ahmed for Petitioners.

Nemo for Respondents Nos.1 and 2.

Additional Advocate General for Respondents Nos.3-8.

Hazrat Khan, rep. of Education Department.

2016 C L C 196

[Gilgit Baltistan Chief Court]

Before Sahib Jan, C.J. and Muhammad Alam, J

SHAMS-UD-DIN----Petitioner

Versus

DISTRICT RETURNING OFFICER FOR ASTORE and 2 others----Respondents

Writ Petition No.60 of 2015, decided on 19th May, 2015.

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

----Ss. 12, 14 & 99---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)---Writ petition---Disqualification to contest election---Petitioner, was declared disqualified to contest election by the Returning Officer on the ground that he was Chairman Zakat and Ushr---Election Tribunal upheld the order of the Returning Officer---Validity---Resignation given by the petitioner from the Chairmanship of the Council had not yet been accepted---Resignation presented by the petitioner being unconditional, the same was to be deemed to have been accepted as and when sent to the Authority---Post of Chairman Zakat and Ushr, was a post devoid of any monetary benefit or monthly remuneration etc.---Administrator Zakat and Ushr, was legally bound to accept the resignation as and when it was conveyed to him, but that was not done---Petitioner could not be deprived of contesting the election, simply because administrator did not convey the acceptance of the resignation to the concerned quarters---Acceptance or otherwise of the resignation of the petitioner, was not whimsical discretion of the Administrator Zakat and Ushr, as post of the petitioner was not a regular Government job, but was a symbolic post---From the date of presenting the resignation, petitioner was no more Chairman Zakat and Ushr, nor said post of the petitioner would operate as any kind of disqualification for contesting the election---Impugned orders of the election Authority as well as the Election Tribunal, were set aside, with direction to the authorities for expunging the remarks of the rejection of the nomination papers of the petitioner; and instead, endorsement of acceptance of the nomination papers of the petitioner, be made on the nomination papers.

Masood-ur-Rehman for Petitioner.

Date of hearing: 19th May, 2015.

2016 C L C 288

[Gilgit Baltistan Chief Court]

Before Sahib Jan. C.J. and Muhammad Alam, J

FIDA HUSSAIN----Petitioner

Versus

RETURNING OFFICER GBLA-4, HUNZA/NAGAR and another----Respondents

Writ Petition No.56 of 2015, decided on 13th May, 2015.

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

----Ss. 11 & 14(5)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)---Writ Petition---Submission of nomination papers---Refusal to receive the nomination papers on account of delay of 12 minutes---Respondent/Returning Officer, refused to receive nomination papers submitted by the petitioner/candidate as petitioner was late only for twelve minutes from the due time---Delay of twelve minutes in presenting the nomination papers, was negligible---By returning the nomination papers of the petitioner, Returning Officer adopted a procedure not provided in the law that governed the receiving and rejecting of nomination papers---Writ petition was competent being the only remedy available to the petitioner---Contesting elections, was right of petitioner, and could not be deprived of the same only because of any mistake or omission on the part of Returning Officer---Chief Court, accepting writ petition, set aside impugned order of the authorities below, with the directions of re-scheduling the process of scrutinizing the nomination papers of the petitioner, accordingly.

Sharif Ahmed and Saeed Iqbal for Petitioner.

Date of hearing: 13th May, 2015.

2016 C L C 325

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

CHIEF SECRETARY, GILGIT-BALTISTAN and 5 others----Petitioners

Versus

IMDAD ALI and 10 others----Respondents

C. Rev. No.7 of 2014, decided on 31st March, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Maintainability---Allotment order, whereby land in question was allotted to the plaintiff, was reviewed entailing modification of the same---Plaintiff claimed that review of the original allotment order was legally wrong; and that plaintiff was entitled to a declaration to that effect and that a permanent injunction be granted restraining the defendant from all kinds of interference---Trial Court decreed the suit, but Appellate Court below, partially accepting appeal against order of the Trial Court, altered the same---Defects in the two impugned orders of the Appellate Court below and the Trial Court, were material irregularities, inviting interference of Chief Court---Both the orders were set aside---Plaint filed by the plaintiff was rejected, holding that the questions raised through the plaint were revenue matters and civil court had no jurisdiction to try the suit, unless remedy of revenue forum was exhausted---Parties, therefore, could approach revenue forum---District Collector was directed for resuming the proceedings pending before him and also to pass orders after doing the legal formalities that he was required to do under the Revenue Laws.

Additional Advocate General for Petitioners Nos.1 and 4., Khadim Hussain for Petitioners Nos.2, 5 and 6.

Mohammad Iqbal and Ali Haider for Respondents.

Date of hearing: 31st March, 2015.

2016 C L C 339

[Gilgit-Baltistan Chief Court]

Before Sahib Khan. C.J. and Muhammad Alam, J

MOHAMMAD SHAFA----Appellant

Versus

Mst. HASINA----Respondent

C.F.A. No.9 of 2015, decided on 30th June, 2015.

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

----Ss. 12, 17 & 25---Custody of minor---Welfare of minor---Parties belonging to Shia sect---Minor son was born after death of his father and was in custody of mother---Paternal grandfather of minor applied for custody of minor which application was dismissed by the Guardian Judge---Validity---Guardian Judge had found that welfare of the minor would be to remain in custody of mother---Guardian Judge, while giving finding about welfare of the minor had omitted to elaborate the circumstances under which the welfare of the minor was in case of his custody with the mother---Guardian Judge did not record evidence of the parties on issue of welfare of minor---Question of welfare of minor, being question of fact, could only be determined through evidence, but Guardian Judge had not recorded such evidence---Custody of minor, according to the personal law of the parties (belonging to Shia Sect), would go to the grandfather after his custody in the hands of mother for two years---Grandfather, in circumstances, was the right guardian of the minor in accordance with the Personal Law of the parties---Impugned order passed by the Guardian Judge was devoid of any evidence---Findings of the Guardian Judge were based on mere conjectures---Impugned order, was set aside---Guardian Judge was directed by the Chief Court to proceed with the transfer of custody of the minor to the grandfather.

Sher Baz Ali Khan for Appellant.

Ali Dad for Respondent.

Date of hearing: 30th June, 2015.

2016 C L C 570

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

SHAH ALAMGIR and 4 others----Petitioners

Versus

ZAMINDARAN-E-BIRGAL through Representatives and 2 others----Respondents

Civil Revision No.87 of 2013, decided on 10th April, 2015.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXI, R.10---Suit for possession---Compromise---Application for execution of decree---Petitioners/plaintiffs were among 79 persons arrayed as plaintiffs in that suit---Soon after the compromise decree, an execution petition was filed, and the representatives of the 79 decree holders of said suit obtained their shares in the suit---After obtaining the shares of the plaintiffs, the representatives of decree holders of execution petition, did not hand over the shares of the plaintiffs to them---Plaintiffs had filed suit, which was dismissed by the Trial Court---Appeal filed against judgment of the Trial Court was also dismissed by the Appellate Court---Validity---Defendants, had admitted the averments of the plaintiffs made in the plaint---Once defendants admitted that the plaintiffs were amongst, decree holders, the burden of proof shifted to the defendants to prove that they had handed over share of the plaintiffs to them after obtaining the same through execution petition---Trial Court, as well as the first Appellate Court in such situation, were duty bound to administer substantial justice by reopening the execution proceedings of execution petition, or suit could be decreed, if it was proved that defendants, did not hand over their due share to the plaintiffs---Trial Court, as well as the first Appellate Court, were not so helpless that they could not reopen the proceedings of the execution petition, or suit filed by the plaintiffs could not be decreed---Appellate Court below did not give issue-wise findings on all issues while giving impugned judgment---Such omission amounted to a material irregularity---Trial Court had mainly based his findings on the legal point that plaintiffs, could not file a separate suit for their share in the decree under execution---Once share of plaintiffs, was admitted in the land under decree and under execution, Trial Court or first Appellate Court, were bound to redress the grievance of the plaintiffs, either by reopening the proceedings in execution petition, or even through a decree in suit---Suit filed by the plaintiffs, was competent, and holding that same was incompetent, was a wrong notion, and was result of misconception or mis-appreciation of relevant law on the part of two courts below---Impugned orders, which were suffering from material and floating defects, were set aside, and case was remanded to the Trial Court with direction to pass fresh order on the suit after hearing parties.

Raja Shakeel Ahmed for Petitioners.

Manzoor Ahmed for Respondents.

Date of hearing: 10th April, 2015.

2016 C L C 615

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

PROVINCIAL GOVERNMENT through Secretary Kashmir Affairs Division, Islamabad and another----Petitioners

Versus

ALL RESIDENT OF MOUZA SAKWAR through Representatives and others----Respondents

Civil Revision No.37 of 1998, decided on 29th April, 2015.

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

----Ss. 12(2), 79 & O. XXVII---Specific Relief Act (I of 1877), S.42---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)---Writ petition---Suit for declaration---Misrepresentation---Decree, setting aside of---Scope---Impugned decree had been obtained through misrepresentation---Only necessary party to the case was government---Trial Court had concluded the trial in violation of S.79 read with O.XXVII, C.P.C---Proceedings conducted by the Trial Court were void and coram non-judice---Impugned decree was set aside and case was remanded to the Trial Court for de novo trial of the suit after impleading applicants-government as defendant to the suit---High Court passed order for maintaining the status quo of suit property till final disposal of the suit---Trial Court would be free to implead the vendees of different parts of suit land as party to the case if impleading them was necessary or was requirement of law---Writ petition was accepted in circumstances.

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

----S. 115---Judicial Commissioner referred revision to the District Judge---Validity---Both the courts of Judicial Commissioner and District Judge had concurrent powers of hearing revision petition---Higher forum (Judicial Commissioner) could not refer revision petition filed in its own court to the District Court---Order of Judicial Commissioner referring revision petition to the District Judge was improper and bad in the eye of law.

(c) Words and phrases---

---'Vested rights'---Meaning.

Addl. A.G. for Petitioners.

Mohammad Isa, Johar Ali, Aurangzeb Khan for Respondents.

Date of hearing: 29th April, 2015.

2016 C L C 630

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. GULZAR BEGUM----Petitioner

Versus

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

Civil Revision No.44 of 2013, decided on 26th June, 2015.

Gift---

----Proof---Both the parties were legal heirs of their deceased father---Property of deceased would devolve on both the parties for partition---Defendants were bound to prove the alleged gift as correct and fit to be acted upon---Father of the parties remained in possession on his properties till his death---Delivery of possession of gifted property was a pre-requisite for a valid gift---Donor had not transferred possession of suit land in favour of donees---None of the donee was present when gift deeds were prepared---Defendants had not produced any marginal witness of gift deed---Donees had failed to prove the gifts as valid and correct through any evidence---Impugned judgment was result of mis-reading and non-reading of evidence which was set aside and that of Trial Court was restored---Revision was allowed in circumstances.

Mohammad Issa for Petitioner.

Mir Akhlaq Hussain for Respondents.

2016 C L C 686

[Gilgit Baltistan Chief Court]

Before Muhammad Alam, J

MEDICAL SUPERINTENDENT DHQ HOSPITAL GILGIT and 4 others----Petitioners

Versus

ALI----Respondent

Civil Revision No.89 of 2014, decided on 10th August, 2015.

Civil Procedure Code (V of 1908)---

----S. 79, O. VI, R. 17 & O. XVII, R. 3---Suit against government---Closure of evidence---Scope---Private defendants and official defendant were proceeded against under O.XVII, R.3, C.P.C. on different dates of hearing by the Trial Court---Private defendants filed appeal wherein official defendant was not impleaded---Official defendant moved a petition under O.VI, R.17, C.P.C. which was dismissed by the Appellate Court---Validity---Defendants were officials of the government having no independent claim or interest in the suit property---Proceedings of Trial Court under O.XVII, R.3, C.P.C. were wrong in the eye of law---Impugned order against the government splitting up defendants in two different sets was a mistake on the part of Trial Court---Interest or claim of private defendants to the suit property was not in clash with the government---Trial Court as well as Appellate Court must have not accepted private defendants as separate set of defendants from the government---Actual contesting party to the case was the government and not the private defendants---Impugned order was set aside and case was remanded to the Trial Court with the direction to afford Government a chance for filing written statement and then to resume the trial proceedings---Revision was allowed in circumstances.

Addl. A.G. for Petitioners.

Musrat Wali for Respondent.

2016 C L C 700

[Gilgit Baltistan Chief Court]

Before Muhammad Alam, J

RAZA and another----Petitioners

Versus

ABBAS and 11 others----Respondents

C.Rev.No.17 of 2014, decided on 25th August, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Limitation---Issue, framing of---Mutation---Scope---Contention of defendants was that they had purchased the suit land---Suit was dismissed concurrently---Validity---Defendants were bound to prove their title and possession on the suit land---Trial Court had not framed issues in the light of pleadings of the parties---Parties had produced evidence in the light of their conflicting pleas in the averments of their pleadings---Trial Court had declared suit as time barred on the basis of copies of mutations attested in favour of defendants---Mere date of sale mutation was not sufficient to declare the suit as time barred---Nothing was on record with regard to sale of suit land to the defendants---Entries in the revenue record could not be an evidence in proof of transfer of any immovable property---Defendants were bound to prove the sale of suit land in their favour---Defendants had failed to prove sale of suit property to them---Impugned judgments were result of framing of wrong issues and mis-reading of evidence which were material irregularities---Judgments were set aside and suit was decreed throughout---Revision was allowed accordingly.

2010 SCMR 13; PLD 2003 SC 688 and 2006 MLD 279 rel.

Mohammad Yaseen for Petitioners.

Khadim Hussain for Respondents.

Date of hearing: 25th August, 2015.

2016 C L C 714

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

KHALEEL and 2 others----Petitioners

Versus

KARAMAT ALI through L.Rs. and another----Respondents

C.Rev. No.9 of 2014, decided on 21st August, 2015.

Land Revenue Act (XVII of 1967)---

----S. 172---Civil Procedure Code (V of 1908), S.9 & O.VII, R.11---Suit for declaration---Order of Revenue Officer---Assailing of---Jurisdiction of civil court---Plaint, rejection of---Suit land was in the ownership of government---Civil court could not take cognizance of a civil suit on the ground that order of Revenue Officer was wrong or correct---Revenue forum had its own stages---Parties were supposed to challenge the order of Tehsildar in the revenue appellate forum---Appellate Court had declared plaintiffs as tenants of suit land---Act of Appellate Court was beyond its jurisdiction---Civil court had no jurisdiction to do the job of a revenue court---Impugned order passed by the Appellate Court was set aside---Trial Court should have rejected the plaint instead of dismissing the suit---Chief Court rejected the plaint in circumstances---Parties of the suit would be free to exhaust the revenue forum and then to move the civil court by impleading the government as a party to the case in the revenue proceedings as well as in the civil proceedings---Revision was allowed accordingly.

Basharat Ali for Petitioners.

Mohammad Nazir for Respondents.

Date of hearing; 21st August, 2015.

2016 C L C 758

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

RUSTAM ALI----Petitioner

Versus

Sheikh MOHAMMAD ALI----Respondent

Civil Revision No.43 of 2015, decided on 19th October, 2015.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment in plaint---Scope---Trial Court dismissed the suit against which appeal was filed wherein application for amendment in the plaint was moved which was dismissed by the Appellate Court---Validity---Plaintiff had not sought any change or amendment in the relief of the plaint---Amendment sought was averred in the written statement but plaintiff did not apply for any such amendment till final disposal of the suit---No defect had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in circumstances.

Shah Rais Khan for Petitioner.

Sher Baz Ali Khan for Respondent.

2016 C L C 1121

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

JUMLA MALIKAN SHEDAI HATI CHILAS through Representatives----Petitioner

Versus

KATO and 17 others----Respondents

W.P. No.140 of 2014, decided on 8th December, 2015.

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

----S. 18---Civil Procedure Code (V of 1908), S.11 & O.VII, R. 10---Land acquisition---Claim for compensation---Res judicata, principle of---Applicability---Trial Court returned the plaint for presentation in proper forum but Appellate Court remanded the case for decision on merits---Validity---Previously vendor from whom plaintiffs derived rights had litigated for the relief, in which she failed---Plaintiffs' case was hit by the principle of res judicata---Plaintiffs had claimed share in the forests and Shamilat lands wherein jurisdiction of Collector land acquisition was ousted---Collector land acquisition had limited jurisdiction with regard to compensation only---Constitutional petition was dismissed in circumstances.

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

----O. XLIII, R. 1 (a) & O. VII, R. 10---Order for return of plaint---Appeal---Competency---Order with regard to return of plaint was appealable and revision against the same was not competent.

(c) Pleadings---

----Conversion of---Scope---Conversion of one pleading into another is allowable.

Fidaullah for Petitioners.

Plaintiff/-Respondent No.2 in person as attorney for Respondents Nos.1 and 3 to 12.

Mir Muhammad, Addl. A.G. for Respondents Nos.13 to 18.

Date of hearing: 8th December, 2015.

2016 C L C 1224

[Gilgit-Baltistan Chief Court (Skardu)]

Before Muhammad Alam, J

HASSAN and another----Appellants/Plaintiffs

Versus

MUSA----Respondent/Defendant

CSA No.4 of 2014 connected in C.Rev. No.l5 of 2015, decided on 17th August, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession---Conversion of appeal into revision---Plaintiffs, sought declaration to the effect that they were owners of total land measuring 21 kanals and 2 marlas by way of two gift deeds executed in their favour---Plaintiffs had alleged that defendant/respondent had taken possession of 4 kanals and 10 marlas out of said land; and claimed that plaintiffs were entitled for possession of said 4 kanals and 10 marlas of land---Defendant contested the suit and pleaded that disputed land measuring 4 kanals and 10 marlas had devolved on him from his mother---Trial Court decreed the suit and, Appellate Court set aside decree passed by the Trial Court and dismissed the suit filed by the plaintiffs---Validity---Question before the Chief Court being pure question of fact, parties had no objection, if the second appeal, was converted into civil revision---Title of the defendant to the suit land measuring 4 kanals and 10 marlas was not disputed as he was real son of the donor---Burden of proof shifted to the plaintiffs to prove that they had obtained the suit land through the said two gift deeds allegedly executed in their favour---Marginal witnesses of said two gifts deeds had died, and the scribe of the same, though was living, but he had appeared as defendant's witness; and had given statement in proof of gift-deed executed in respect of defendant regarding disputed 4 kanals and 10 marlas---Donor of the gift-deeds in favour of the plaintiffs, did not accept gift in favour of the plaintiffs as correct document; and instead had challenged the same in the Trial Court---Gift deed in favour of the plaintiffs could not be accepted as a correct and genuine document---Trial Court had given findings on issue, partly in favour of the plaintiffs, and partly against them, but they did not challenge the said finding in the appellate court which had attained finality, in circumstances---Trial Court had passed a vague decree and did not pass any decree for recovery of possession of the suit land, while in the prayer of the suit, the plaintiffs had very specifically prayed for possession thereof---Appellate Court had rightly set aside the judgment and decree of the Trial Court--- Impugned judgment/ order of the Appellate Court was upheld, in circumstances.

Shaukat Ali for Appellants/Plaintiffs.

Mir Nisar Hussain for Respondent/Defendant.

2016 C L C 1490

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Yar Muhammad, J

TANZEEM CORPORATION GUPIS/YASIN through Representative and another----Appellants

Versus

MOMIN SHAH----Respondent

CFA No.51 of 2014, decided on 18th April, 2016.

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

----O. XVII, R. 3, O. IX, R. 8 & O. VII, R. 2---Money suit---Closure of evidence---Words "proceed to decide forthwith" occurring in O.XVII, R.3, C.P.C.---Scope---Trial Court had failed to afford fair opportunities to the plaintiffs to produce evidence---Only two chances had been given to the plaintiffs to produce evidence---Trial Court instead of making recourse to O.XVII, R.3, C.P.C. should have adjourned the case imposing cost on the plaintiffs---Trial Court was supposed to pass a speaking and well-reasoned order---Material brought on record by the parties should be given due consideration before closing evidence---Trial Court did not go through the pleadings of the parties---Plaintiff who was present before the court should have been asked to come in the witness box to record his own statement and thereafter case should have been adjourned for defendant's evidence or for hearing argument and then judgment given on each issue---Order XVII, R.3, C.P.C. did not at all provide that in case evidence was not produced on the fixed date the suit would be decided against the defaulting party by way of penalty---Trial Court had dismissed the suit without touching merits of the same---Trial Court had acted under the procedure provided in O.XVII, R.3, C.P.C. but suit had been dismissed adopting the procedure provided in O.IX, R.8, C.P.C---Words "proceed to decide forthwith" in O.XVII, R.3, C.P.C. did not mean to decide the suit forthwith or "dismiss the suit forthwith"---Impugned judgment was not only illegal but was without lawful authority which was set aside---Case was remanded to the Trial Court for decision on merits after recording evidence of both the parties---Appeal was allowed in circumstances.

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

----O. XVII, R. 3---`Forthwith'---Meaning.

(c) Administration of justice---

----Delay in justice denial of justice.

Rehmat Karim for Appellants.

Islam-ud-Din for Respondent.

Date of hearing: 18th April, 2016.

2016 C L C 1858

[Gilgit Baltistan Chief Court]

Before Yar Muhammad, J

MAZHAR HUSSAIN----Petitioner

Versus

AMAIZ KHAN and another----Respondents

Civil Revision No.67 of 2014, decided on 3rd June, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Plaint, rejection of---Requirements and procedure---Court, while rejecting plaint had to consider that the averments made therein if accepted in mode and form would not entitle plaintiff to a relief claimed therein---Plaint could only be rejected when no triable issue was made out or suit was clearly hit by any mandatory provision of law justifying rejection of plaint---Court while rejecting plaint was required only to consider the averments of the same avoiding deeper examination of contents of written statement---Claim made in the plaint, in the present case, had been denied by the defendants---Trial Court should have framed issues and determine controversies between the parties after providing opportunities to them to meet the points---Court on its own motion or on the basis of any application from the parties could take issue of law first if case or any part thereof might be disposed of on such issue only---Present suit involved investigation so that rights of the parties might be addressed properly---Impugned orders passed by both the courts below were set aside and case was remanded to the Trial Court for adjudication on merit---Revision was allowed in circumstances.

Islamuddin for Petitioner.

Basharat Ali and Mehmood-ul-Hassan for Respondents.

Date of hearing: 3rd June, 2016.

2016 C L C 801

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, Chaudhry Jahandad Khan and Muhammad Sheraz Kiani, JJ

AHMED NAWAZ TANOLI, ADVOCATE and 2 others----Petitioners

Versus

CHAIRMAN AZAD JAMMU AND KASHMIR COUNCIL (PRIME MINISTER OF PAKISTAN) through Secretary, Azad Jammu and Kashmir Council and 7 others----Respondents

Writ Petition No.2136 of 2015, decided on 17th November, 2015.

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

----Ss. 43 (2-A) & 44----Notification No. LD/AD/372-412/2011 dated 24.02.2011---Writ of quo warranto---Maintainability and pre-requisites---Appointment of Judge of High Court---Consultation process---Validity---Qualification for appointment, relevancy of---Perks and Privileges under illegal appointment---Recovery---Permissibility---Nisi, Rule of---Applicability---Petitioners challenged the elevation process along with appointment notification, whereby, the respondents had been elevated to the office of Judge of the High Court, and sought issuance of writ of quo warranto---One of the respondents having already retired, all benefits received by him under the impugned appointment notification were sought to be recovered---Petitioners contended that the proposal for appointment of the Judges submitted by the Chief Justice of the High Court did not include the name of one of the respondents, whereas, proposal by the Chief Justice of Azad Jammu and Kashmir did not contain the name of the other respondent---Letter written by the Chief Justice of the High Court could not be termed as "recommendation", "proposal" or "consultation"---Validity---High Court declared the impugned appointment notification intra vires the Constitution---Reasons elaborated.

Petitioners, in the first instance, had to show that in view of the given facts of the case, the respondents were not holding the offices in question under the authority of law, but the petitioners had failed to discharge that burden.

1993 SCR 27 rel.

Respondent/one of the appointees was serving as District and Sessions Judge before his elevation as the Judge of the High Court. After elevation, said respondent had performed his duties for more than four years until he had retired. Respondent was, therefore, neither holding any public office at time of filing of present petition, nor was he going to do so. Present petition was, therefore, not competent to the extent of said respondent, as conditions for issuance of writ of quo-warranto, one of which was to be in possession of the public office in dispute, had not been fulfilled. Question of issuance of the rule nisi, in such circumstances, also did not arise. Relief to the extent of recovery of the perks and privileges obtained by said respondent also could not be granted under the de facto doctrine.

PLD 2012 SC (AJK) 42; PLD 1963 SC 203 and 1998 PLC (C.S.) 1229 rel.

For the appointment of the other respondent/appointee, the President had wrote a letter to the Chief Justice of the High Court for his opinion, which contained the words 'consultation/opinion', in response to which, the latter had moved his recommendation/opinion in writing on the same date. Said letter, therefore, could not be termed as a simple letter, specially, in the circumstances, when the proceedings for elevation of Judges in the High Court were already in process. All the proceedings, regarding consultation and advice etc. had been completed before the issuance of the impugned notification, and both the consultees/authorities were consistent on their stands. Name of said respondent, therefore, could not be said to be not having been submitted by one or the other consultee.

High Court observed that even if some irregularity regarding time and mode of consultation had been committed, the same could be termed as irregularity committed on the part of the authority, and a party could not be penalized for the act, which was not under his control or in his knowledge. High Court further observed that if some material facts were withheld by the person under consideration or suppressed at his behest, then, that might be a case of fraud, which would vitiate the consultative process and consequently the appointment resulting from the same. However, if the fact was unknown and there was no suppression of that fact, then writ of quo-warranto would not lie on the plea that the consultative process was faulty.

M. Manohar Reddy and another v. Union of India and others AIR 2013 SC 795; Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others 2005 SCMR 128; Ghulam Mustafa v. AJK Government and others 1991 MLD 2681 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 Kar. 408 rel.

Petitioners had admitted the fact that one of the respondents had been a well-known and well-reputed lawyer. Law did not postulate any condition of expertise in each and every field of law for elevation of a Judge. High Court observed that the universal principle that 'A Judge should be a thorough gentleman and if he knows the law, that will be his additional qualification', was also found fulfilled in the present case. High Court held that any irregularity in the process of consultation or expertise of the appointee only in one field of the law or the question of capability of Judge or superior judiciary were not sufficient grounds for issuance of writ of quo-warranto.

Bashir Mughal's case 2014 SCR 1385 and P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India, New Delhi and others AIR 1975 Delhi 66 rel.

Any irregularity or non-compliance of the process before or after one or other did not amount to an illegality. No case for admission of petition for writ of quo warranto for regular hearing was made out. Conditions of discussions, deliberation, consultation and recommendation had been duly fulfilled, and the Constitutional requirement stood complied with in letter and spirit. Elevation/appointment of the respondents was, therefore, in accordance with section 43 (2-A) of the Constitution. Writ petition was dismissed in limine.

PLD 2013 SC 268; PLD 2014 Isl. 123; 2013 MLD 433; 2011 YLR 2850; 2007 SCMR 307; 2013 SCR 12; 1997 MLD 3066; 2011 SCR 595; 1993 SCR 88; AIR 1994 SC 268 and 2003 SCR 88 distinguished

PLD 1996 SC 324; PLD 2012 SC (AJK) 42; 2002 PLC (C.S.) 274; 1994 MLD 397; PLD 1963 SC 123; PLD 1963 SC 203; 2012 SCR 213; 2001 SCR 530; 1996 SCR 211; 1995 SCR 259; 1997 SCR 381; PLD 1993 SC AJK 12; PLD 1989 SC 168; PLD 1991 Lhr. 420; 1983 CLC 2734; PLD 1967 Lhr. 223; AIR 1965 Allahabad, 151 and 1993 SCR 27 ref.

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

----Ss. 44 & 43 (2-A)----Notification No. LD/AD/372-412/2011 dated 24.02.2011---Writ petition---Locus standi---Appointment of Judges of the High Court---Consultative process---Validity---Not necessary for the petitioners to be an "aggrieved persons" in case of writ of quo-warrato.

1998 PLC (C.S.) 1229 rel.

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

----Ss. 44 & 43(2-A)----Notification No. LD/AD/372-412/2011 dated 24.02.2011---Writ petition---Maintainability---Appointment of Judges of the High Court---Consultative process---Validity---Laches, principle of---Applicability and scope---Question of mere laches hardly matter and the same was not at all fatal in case of writ of quo-warranto, unless, the same had been actuated by malice---Laches per se was no ground for dismissal of a writ of quo-warranto---High Court was competent to see as to whether the petitioners had approached the Court with clean hands and for supremacy of law---Petitioners, having had a long sleep of more than four to five years, were worried about the supremacy of law and independence of judiciary, without any plausible explanation---Said inordinate delay in challenging the elevation of Judges without prima facie bona fides of the petitioners was not justified.

PLD 1991 Lah. 420 rel.

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

----Ss. 44 & 43(2-A)----Notification No. LD/AD/372-412/2011 dated 24.02.2011---Azad Jammu and Kashmir High Court Procedure Rules (1984), R. 32 (2)---Qanun-e-Shahadat (10 of 1984), Art.87(2)---Writ petition---Maintainability---Appointment of Judges of the High Court---Consultative process---Validity---Certified copies of impugned documents not attached with writ petition---Effect---Petitioners had applied for certified copies of the annexed documents to the President Secretariat and the latter had categorically advised the former to approach the Law Department for the same---Nothing was available on the record to show that the petitioners had approached the proper forum and their request had been turned down---Under Art. 87 (2) of Qanun-e-Shahadat, 1984 read with R.32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984, present petition, did not merit consideration and the same was liable to be struck down in the first instance.

Saira Bashir Butt v. Azad Government and 7 others 2015 SCR 631 rel.

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

----Ss. 44 & 43(2-A)----Notification No. LD/AD/372-412/2011 dated 24.02.2011---Writ petition---Maintainability---Appointment of Judges of the High Court---Consultative process---Validity---Mala fide, principle of---Applicability and scope---Fact of being an associate of some of the removed judges might hardly be a ground to term present petition prima facie a mala fide action---Petitioners, being members of the Bar, were responsible members of legal fraternity, and had categorically stated that present petition had been instituted for the supremacy of law---Petitioners/lawyers had been appearing before the Judges (respondents), who were holding the posts for a long time and there was no complaint against them, therefore, the petitioners might not be absolved from establishing prima facie bona fides of the petition, which had been filed after a long period of silence---High Court could not ignore the application of the principle of mala fide, if the prevailing circumstances were such, which militate against the bona fides of the petitioners---High Court observed that mala fide or motive of the appointing authority in making the appointment of a particular person were irrelevant in considering the question of issuing writ of quo-warranto---Petitioners had failed to establish prima facie their bona fides.

PLD 1991 Lah. 420 and AIR 1965 Allahabad 151 rel.

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

----Ss. 44 & 43(2-A)---Notification No. LD/AD/372-412/2011 dated 24.02.2011---Writ petition---Maintainability---Appointment of Judges of the High Court---Consultative process---Validity---Estoppel, principle of---Applicability---Petitioners had admitted to have been appearing before the Judges of the High Court (appointees) for many months, even after coming to know of their (illegal), appointments under the impugned notification---Petitioners were, therefore estopped by their conduct to challenge the appointments of said Judges and had not come to the Court with clean hands.

1998 PLC (C.S.) 1229 rel.

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

----S. 43----Appointment of Judges of the High Court---Consultative process---Validity---Methods and modes of Constitution in different countries highlighted---High Court observed that under the Constitutions of different countries, appointment of the Judges of the superior judiciary are made either by the Parliament or by any other political institution, but dignity and integrity of the Judges prevails in those societies, and in case of some exception, the proceedings are initiated at proper forums.

Petitioners in Person.

Bashir Ahmed Mughal with Syed Zahid Hussain Shah, Law Officer, representative on behalf of Respondents Nos.1 to 3.

Abdul Rashid Abbasi assisted by Sakhawat Hussain Awan for Respondents Nos.4 to 8.

Manzoor Hussain Raja for Respondent No.4.

2016 C L C 947

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, Chaudhry Jahandad Khan and Azhar Saleem Babar, JJ

Sardar JAVED NAZ, ADVOCATE SUPREME COURT and another----Petitioners

Versus

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

Writ Petition No.803 of 2015, decided on 6th August, 2015.

Per M. Tabassum Aftab Alvi, J, Chaudhry Jahandad Khan, J agreeing; Azhar Saleem Babar, J dissenting

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

----Rr. 32(2) & 38---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 41 & 44---Writ petition---Maintainability---Certified copies of documents not appended with writ petition and counter-affidavit was not filed---Effect---Under R.32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984, production of certified copy of the impugned order was the requirement of law and not of the other documents---Petitioners had specifically pleaded in the petition that they had requested the concerned authorities for issuance of certified copies of the relevant record, but due to the influence of the respondents, they had refused to issue the same; hence, the petitioners prayed for dispensation of the requirement of R.32(2) of the Rules---Petitioners had duly supported said assertions with a separate affidavit, and the respondents though had denied the same, but they had not filed counter affidavit to the effect that the petitioners had not applied for the certified copies; hence, said assertions of the petitioners were deemed to have been admitted---Under R.38 of the Rules, all questions arising for determination under writ jurisdiction, would be decided ordinarily upon affidavits, unless the Court directed otherwise---Petitioners, even otherwise, at a later stage, having received the certified copies of the impugned notification, had placed the same on record through an application; whereas, certified copy of the impugned Ordinance had not been issued to them due to promulgation of the same through extraordinary gazette---High Court dispensed with the requirement of R.32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984 in circumstances.

Sardar Farooq Ahmed Khan and 2 others v. Azad Government and 3 others 2002 SCR 14; Iffat Bibi v. AJK Government Civil Appeal No.6/2012 and Kamran Hafeez v. Gul Zaman and others Civil Appeals Nos.255 and 256 ref.

Muhammad Ajaib v. Public Service Commission and 03 others 1997 PLC (C.S.) 222 at page 230 and Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza PLD 1977 SC 182 rel.

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

----Rr. 32(2), 88, 89 & 90----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 41 & 44---Oaths Act (X of 1873), Ss.7 & 13---Civil Procedure Code (V of 1908), S.139 & O.VI, R.15---Writ petition---Maintainability---Form of oath and affirmation---Proceedings and evidence---Administration of oath---Verification of pleadings---Affidavits attested by Oath Commissioner holding an expired licence--- Effect--- Production of fresh affidavits---Permissibility---Objection was raised that the affidavits appended with writ petition had been attested by the Oath Commissioner, whose licence had already expired---Validity---High Court allowed fresh affidavits to be placed on record.

Petitioners, having been apprised of the fact, at later stage, through an application along with an affidavit, had brought on record the duly attested affidavits of advocate, who possessed valid licence of Oath Commissioner, and contents thereof were the same as of those filed with the petition. Said irregularity, therefore, stood cured. High Court observed that, even otherwise, as per section 13 of Oaths Act, 1873, omission to take any oath or make any affirmation and no irregularity whatever, would invalidate any proceedings. Application for placing the duly attested fresh affidavits on record was allowed by High Court.

Muslim Commercial Bank Limited v. Asghar Bros and others 1991 CLC 1912 and Dr. Fazalur Rehman and 3 others v. Malik Ghulam Muhammad and others 1986 CLC 518 rel.

Per Azhar Saleem Babar, J disagreeing [Minority view]: Licence issued to the Oath Commissioner by the High Court had already expired, and he was, therefore not authorized to attest an affidavit on oath. Affidavits annexed with the memorandum of writ petition had, therefore, been attested by an unauthorized person. Affidavit, whose verification was not duly signed by the deponent and attested by the Oath Commissioner, was no affidavit in the eye of law. Application for filing fresh affidavits was, therefore, not worth consideration, as valuable rights had accrued to the non-petitioners due to the negligence of the petitioners, and allowing said application would amount to snatching of those rights. Application for filing fresh affidavit was disallowed and writ petition was liable to be dismissed for lacking the essential ingredients of R.32(2) of High Court Procedure Rules, 1984.

Bashir Ahmed v. Abdul Waheed PLD 1995 Lah. 98; 2005 CLC 1521; 2014 YLR 1641 and Zafar Iqbal Jhagra's case 2000 SCMR 250 rel.

Per M. Tabassum Aftab Alvi, J. Chaudhry Jahandad Khan, J. agreeing [Majority view]

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

----Ss. 44(5) & 41----Azad Jammu and Kashmir Shariat Court Act (IX of 1993), S.3 [as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance (XVIII of 2014)]---Notification No.LD/AD-355-425/2015 dated 27.03.2015---Writ of quo-warranto---Maintainability---Power to promulgate Ordinance---Appointment of Judges of Azad Jammu and Kashmir Shariat Court---Constitutionality---Jurisdiction of High Court---Scope---Shariat Court/Judge not included under S.44(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Respondents raised the objection that their appointments as Judges of Shariat Court on recommendations of the Chief Justice of Azad Jammu and Kashmir and Chief Justice of Shariat Court, could not be challenged through writ petition in view of the bar contained under S.44(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Validity---Shariat Court was not included under S.44(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Said objection was against the principles of Jurisprudence that 'where there is a wrong there is a remedy'---High Court, observed that if appointment of a Judge of the High Court was challenged by way of a writ of quo-warranto, what was in fact under challenge was the appointment of the Judge which had been made not by the High Court or the Supreme Court but by the President---Appointment of a Judge of Shariat Court could, therefore, be questioned through a writ of quo-warranto.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Ghulam Mustafa Mughal v. Azad Govt. and others 1992 MLD 2083; Amjad Hussain v. Ghulam Rasool Mir 1991 PCr.LJ 685; Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJK) 42 and Mr. Zulfikar Ali Bhutto v. The State and another 1977 SCMR 514 rel.

PLD 1996 SC 324; 1992 MLD 2083 and Ibrar Hussain v. Government of Pakistan PLD 1976 SC 315 ref.

(d) Azad Jammu and Kashmir Shariat Court Act (IX of 1993) [as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance (XVIII of 2014)]----

----S. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.41, 42-A(3) & 33---Notification No. LD/AD-355-425/2015 dated 27.03.2015---Writ petition---Power to promulgate Ordinance---Issuance and execution of processes by Supreme Court---Amendment of Act by an amending Ordinance---Scope---Ordinance issued and appointments of Judges of Shariat Court made thereunder in violation of Judgment of the Supreme Court---Effect---Defacto doctrine applied to justify acts done by Judges under illegal appointments---Petitioners challenged the vires of S.3 of the impugned Azad Jammu and Kashmir Shariat Court Act, 1993, as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 2014, along with the appointment notification issued thereunder, whereby the respondents had been appointed as Judges of the Shariat Court---Contention of petitioners was that appointments made were ultra vires to the Azad Jammu and Kashmir Interim Constitution Act, 1974 and being non-transparent, contrary to independence of judiciary and in disregard to the directions issued under judgments in Muhammad Younus Tahir's case and Bashir Ahmed Mughal's case by the Supreme Court of Azad Jammu and Kashmir---Petitioners contended that under (paragraph 51) judgment of the Supreme Court in Bashir Ahmed Mughal's case, the authorities had been directed to establish the Shariat Court through amendment of the Constitution, and that sub-constitutional legislation was allowed only if the required amendment in the Constitution was not practicable---Validity---Authorities failed to bring anything on record to show as to what steps had been taken by them for amendment of the Constitution as per judgment of the Supreme Court; instead, they had initiated proceedings for issuance of Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 2014---Impugned Ordinance, before taking effect of an Ordinance, had been placed before the Legislative Assembly as a Bill---Member Selection Committee had put its dissenting note and apprised that instead, on basis of the directions of the Supreme Court, the authorities should have moved a Bill to amend the Constitution but no step had been taken for eleven months---Authorities, instead of complying with the command of the Supreme Court to amend the Constitution, after about three months, had issued the impugned Ordinance---Under S. 42-A(3) of the Constitution all executive and judicial authorities throughout Azad Jammu and Kashmir would act in aid of the Supreme Court---High Court declared the Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 2014 ultra vires the Constitution for having been promulgated without lawful authority and quashed the notifications of appointments of respondents against the posts of Judges of the Shariat Court and also declared the posts as vacant---High Court also directed that all the acts done by the incumbent Judges appointed under the impugned Ordinance, including drawing benefits, would be valid under the principles of de facto doctrine---Writ petition was accepted in circumstances.

Bashir Ahmed Mughal v. Azad Govt. and 6 others PLD 2015 SC (AJ&K) 31; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; 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; The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others PLD 1994 SC 363; S.P. Gupta and others v. President of India and others AIR 1982 SC 149; Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lah. Municipal Corporation, Lahore and 4 others PLD 1972 Lahore 316; Industrial Relations Advisors' Association through General Secretary v. Federation of Pakistan through Secretary, Ministry of Labour and Manpower, Islamabad and others PLD 2010 Kar. 328; Allah Wasayo v. The State 1999 PCr.LJ 1033; Ramdayal Mirdha v. Nagendra Nath Bain and others PLD 1960 Dacca 991; Syed Mumtaz Hussain Naqvi and 09 others v. Raja Muhammad Farooq Haider Khan and 04 others 2014 SCR 43; Ghulam Mustafa Mughal v. Azad Govt. and others 1992 MLD 2083; Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; The State of Orissa v. Bhupendra Kumar Bose and others AIR 1962 SC 945; Fazal Dad v. Khadim Hussain and anther 1995 MLD 1299; Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Abdul Raheem Zubair Butt v. Azad Jammu and Kashmir High Court and 07 others 2003 PLC (C.S.) 664; Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11; Fouji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Muhammad Rafique v. Federation of Pakistan through Secretary Law Justice and Human Rights Division, Islamabad and another PLD 2005 Lah. 150; Haran Chandra Dutt and another v. The State of West Bengal and others AIR 1952 Kolkata 907; T. Venkata Reddy and others v. State of Andhra Pradesh AIR 1985 SC 724; Mir Laik Ali v. Standard Vacuum Oil Company (ESSO) and another PLD 1964 SC 220; Mst. Siddiqan Afzal v. Assistant Collector of Central Excise and Land Customs, Faisalabad and 2 others PLD 2001 Lah. 78 and Idrees Ahmed and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376 ref.

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

----S. 41----Azad Jammu and Kashmir Shariat Court Act (IX of 1993), S.3 [as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance (XVIII of 2014)]---Notification No. LD/AD-355-425/2015 dated 27.03.2015---Azad Jammu and Kashmir Rules of Business 1984, R.34(2)---Writ petition---Power to promulgate Ordinance---Ordinance issued and appointments of Judges of Azad Jammu and Kashmir Shariat Court made thereunder in violation of the Constitution--- Effect--- 'Making' and 'promulgation', interpretation of---Interpretation of Constitution---Principles---Petitioners contended that impugned Ordinance had been promulgated in violation of S.41(1) of the Constitution---Promulgation of the Ordinance by the President after the same had been placed before the Legislative Assembly in shape of a Bill (three days earlier to the promulgation)---Ordinance in question was invalid for having been made before, and promulgated a day after, session of the Legislative Assembly.

Under section 41(1) of the Constitution, the President enjoyed wide powers to issue an Ordinance, but the same were subject to two pre-conditions: firstly, when the Assembly was not in session; and secondly, when immediate action should appear to the President to be necessary. The President, apart from making an Ordinance, had to promulgate the same also. Words 'making' and 'promulgation' were two different and independent steps and the same would be read disjunctively. Section 41(2) of the Constitution Act, 1974, postulated two things: firstly, section 41(2) of the Constitution provided that an Ordinance 'promulgated' would have the same force and effect as an Act of the Assembly, which meant that the Ordinance 'made' by the President did not have the effect of an Act, however, the Ordinance had the force and effect when the same had been "promulgated"; secondly, the Ordinance would have the force and effect as an Act of the Assembly for four months from its 'promulgation'. Ordinance came into force not when the same was 'made' by the President, but when the second step of 'promulgation' was completed. Promulgation of the Ordinance was a condition precedent. If section 41(1) of the Constitution, was interpreted that if at the time of making an Ordinance, there should have been no session of Assembly then the words 'and' and 'promulgate' would become meaningless, inoperative and redundant. At time of making of the impugned Ordinance, there was although no session of the Assembly, but, three days before promulgation of the Ordinance, the session of the Assembly had been convened and the impugned Ordinance, in the shape of a Bill, had been introduced before the Assembly, and the Assembly had been adjourned sine die a day earlier. After placing the Bill before the Legislative Assembly, the question of urgency had lost importance, as the Legislature had initiated proceedings while exercising its jurisdiction on the motion of Bill before promulgation of the impugned Ordinance. Ordinance promulgated a day before sitting of the Assembly, or a day after prorogation of the Assembly, was the result of mala fide. High Court observed that power of the President under S.41 of the Constitution was designed when, to make a statute, the legislation was required urgently and the Assembly must not be in session from the time of making till promulgation of the Ordinance. High Court, held that from the date of 'making' of the impugned Ordinance till its 'promulgation', there should have been no session of the Assembly.

Bidya Chaudhary and others v. Province of Bihar and others AIR (37) 1950 Patna 19; Judicial Review of Public Actions Vol.I by Justice (R) Fazal Karim; Reference No.01 of 2012 [Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 PLD 2013 SC 279; Nasir Raza Jafery v. M/s. Macter Pharmaceutical (Pvt.) Ltd. through Managing Director and 4 others PLD 1998 Kar. 250; Muhammad Akram and others v. Selection Committee for admission in First Years M.B.B.S., Bolan Medical College and others 2003 CLC 18; Pakistan Chest Foundation and others v. Government of Pakistan and others 1997 CLC 1379 and M.D. Tahir Advocate v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad 1995 CLC 752 rel.

Per Azhar Saleem Babar, J disagreeing [Minority view]

President had independent powers of making and promulgating an Ordinance, no matter how much time had elapsed between the two transactions. Making of an Ordinance did not confer validity on such Ordinance, unless the same was promulgated in accordance with law. Legislation could not be labeled as Ordinance, unless the same had been promulgated/published in official gazette for general information. Under requirement of S.41(2)(a) of the Constitution, and R.34(2) of Rules of Business, 1984, life of an Ordinance started from the date of its publication/promulgation, and the Ordinance could be presented before Assembly only after promulgation of the same. Presentation of the impugned Ordinance in the Legislative Assembly before promulgation of the same was invalid and non-existent in the eye of law. Besides, impugned Ordinance, after expiration of four months, could not be presented before the Assembly. Ordinance on the same subject could not be re-enacted, and only remedy available to the Government was to present a new Bill on the subject in the Legislative Assembly. Impugned Ordinance was, therefore, a valid piece of legislation, which had met its natural death on account of sunset clause provided under section 41(2)(a) of the Constitution Act, 1974.

Per Azhar Saleem Babar, J disagreeing [Minority view]

(f) Words & Phrases---

----'Promulgation'/'Publish'---- Meaning and Scope--- Words 'promulgate' and 'publish' are synonymous and are very often used in place of each other. [Minority view]

Black's Law Dictionary ref.

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

----Ss. 41 & 56-C---Azad Jammu and Kashmir Shariat Court Act (IX of 1993), S.3 [as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance (XVIII of 2014)]---Notification No.LD/AD-355-425/2015 dated 27.03.2015---General Clauses Act (X of 1897), S.6---Power to promulgate Ordinance---Repeal of Ordinance---Effect of repeal of Ordinance on appointments of Judges of Azad Jammu and Kashmir Shariat Court made thereunder discussed. [Minority view]

Impugned notification of appointment of Judges of Azad Jammu and Kashmir Shariat Court had been issued during the life of the Ordinance. Under section 56-C of the Constitution, when a law was repealed or was deemed to have been repealed, the repealing law would not affect any right, privilege, obligation or liability acquired, accrued or incurred under the law. Under section 56-C of the Constitution, impugned Ordinance was deemed to have been repealed by virtue of the sunset clause provided in section 41(2) of the Constitution . Section 6 of General Clauses Act, 1897 did not apply to the present case as the Ordinance had not been repealed by another legislation. Impugned notification had been issued during life of the Ordinance, therefore, rights accrued to the respondents were protected under section 56-C of the Constitution.

AIR 1960 Allahabad 546 and PLD 1972 Lah. 316 ref.

Per M. Tabassum Aftab Alvi, J; Chaudhry Jahandad Khan, J agreeing, Azhar Saleem Babar, JJ dissenting

(h) Azad Jammu and Kashmir Shariat Court Act (IX of 1993) [(as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance (XVIII of 2014)]---

----S. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.41 & 44---Notification No. LD/AD-355-425/2015 dated 27.03.2015---Azad Jammu and Kashmir Legal Practitioners and Bar Council Act (XXX of 1995), S.24(i)---Writ petition---Maintainability---Power to make Ordinance---Appointment of Judges of Azad Jammu and Kashmir Shariat Court---Procedure---Consultation with Chief Justices---Validity---Recommendations of Chief Justices binding on the Executive---Petitioners contended that although the Chief Justices of Azad Jammu and Kashmir and that of Shariat Court had been consulted before appointing the respondents as Judges of Shariat Court, but said appointments were politically motivated and facts regarding their political affiliation and personal conduct had not been brought to the notice of the Chief Justices and that the consultation was, therefore, defective---Opinion of the Chief Justices, regarding recommendations for appointment of Judges, was not questionable/ objectionable. [Majority view]

Objection as to past conduct of the private respondent had not been raised in the writ petition, and the same, being against the principles of pleadings, was turned down. Under section 24(i) of Azad Jammu and Kashmir Legal Practitioners and Bar Council Act, 1995, a dismissed or removed person could not obtain license of Advocacy for a fixed period. Record of his dismissal of respondent from service was neither in the notice of the Bar Council nor the Chief Justices; however, the Bar Council, on coming to know of said fact, could recall the license for having been obtained by fraud. Appointment notification could be challenged through writ petition, as preponderance of judicial authority was in favour of conceding such a power to every authority/tribunal or court on the general principles that "fraud vitiates the most solemn proceedings" and "no party should have been allowed to take advantage of his fraud". High Court observed that the consultation with the Chief Justices should have been effective, meaningful, purposive, consensus, leaving no room for complaint of arbitrariness or unfair play. If the Chief Justice of the High Court, while determining the suitability of a person for appointment as a Judge, was of the view that the person did not enjoy good reputation of honesty and integrity, the Chief Justice would be justified, and he was under duty, not to recommend such person for the appointment.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; S.P. Gupta and others v. President of India and others AIR 1982 SC 149 and Muhammad Hussain v. Abdul Majid and others 1993 SCR 319 rel.

Per Azhar Saleem Babar, J [Minority view]: Allegations levelled against one of the respondents on basis of his previous conduct were questions of fact, which could not be determined in writ jurisdiction. If the mode prescribed by the Constitution had been fulfilled and both the Chief Justices had been consulted before appointment of a Judge of Shariat Court, then, the same would not be open to objection that such an appointment was invalid because of defective consultation. Wisdom of the Chief Justices could not be replaced by any other authority including the High Court. Consultation/recommendations of the Chief Justice of Azad Jammu and Kashmir and that of Shariat Court were conclusive and had binding effect on the Executive; however, the Executive had option to pick-up the most suitable person from the recommended persons for such appointment. Appointment of the respondents on the recommendations of the Chief Justices, therefore, could not be called in question on said grounds.

AIR 1982 SC 149 and Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 rel.

(i) Azad Jammu and Kashmir Rules of Business, 1984---

----Rr. 23, 32 & 34(4)----Azad Jammu and Kashmir Shariat Court Act (IX of 1993), S.3 [as amended by Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance (XVIII of 2014)]---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.41 & 58---Notification No. LD/AD-355-425/2015 dated 27.03.2015---Power to make Ordinance---Cases to be brought before the Cabinet---Ordinance not placed before the Cabinet for approval---Effect---Contention raised was that Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 2014 had no legal effect as the provisions of R.23 of Rules of Business, 1985 had not been complied with while issuing the same---Validity---High Court declared the impugned Ordinance to be ultra vires the Constitution and invalid for not having been laid before the Cabinet for approval.

Under Rule 23 of Azad Jammu and Kashmir Rules of Business, 1984, the promulgation of an Ordinance could be made subject to approval of the Cabinet. Impugned Ordinance, after approval of the President, had been issued subject to approval of the cabinet, but no such approval had been obtained, and instead, the same had been placed before the Legislative Assembly as a Motion Bill on the advice of the Prime Minister. Said draft Bill had been introduced in the Assembly without obtaining approval of the Cabinet in violation of Rule 34(4) of Azad Jammu and Kashmir Rules of Business, 1984. Rules of Business, 1985 had been framed under section 58 of the Constitution, and the same, therefore, had a higher status than ordinary delegated legislation, and had binding force. High Court observed that when a particular matter for performance of an act was prescribed under an Act or Rules, then such act, must be performed according to that particular method alone or not at all. Impugned Ordinance was ultra vires the Constitution.

Reference No.1 of 1977, by President, Azad Jammu and Kashmir PLD 1978 SC AJ&K 37; Inayatullah Chaudhry and others v. Azad Jammu and Kashmir Government through Chief Secretary and others 1990 PLC (C.S.) 598; Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42; Government of Punjab, Food Department through Secretary Food and another v. M/s United Sugar Mills Ltd. and another 2008 SCMR 1148 and Dr. Shehla Waqar Additional Secretary Finance, Muzaffarabad and another v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, New Secretariat, Muzaffarabad and others 2010 PLC (C.S.) 416 rel.

Per Azhar Saleem Babar, J: Presentation of the impugned Ordinance before the Cabinet was essential as per R. 23 (b) of the Rules of Business, 1985. Impugned Ordinance could have been referred to the Cabinet even after issuance of notification of appointment of the private respondents, which had not been done, and the order of appointment, therefore, had lost its significance. Failure to comply with the said mandatory provision of Rules of Business, 1984 had invalidated the impugned Ordinance, and any order issued or act done under the same was, therefore, of no legal effect. [pp. 1023] OO

Writ petition was accepted unanimously.

PLD 1978 SC (AJ&K) 37 and 1990 PLC (C.S.) 598 rel.

Raja Sajjad Ahmed Khan for Petitioners.

Abdul Rasheed Abbasi for Respondents Nos.1 to 4.

Kh. Attaullah Chak, Raja Ibrar Hussain Khan, Bilqees Rasheed Minhas, Sardar Muhammad Riaz, Fiaz Ahmed Janjua and Raja Muhammad Mushtaq for Respondents Nos.5 and 6.

2016 C L C 1845

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

NIAMATULLAH----Appellant

Versus

AZEEM AKHTER and 27 others----Respondents

Civil Appeal No.42 of 2012, decided on 4th July, 2016.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1, O. XLIII, R. 1, Ss.96, 100 & 104---Appeal---Requirements---Appellate Court remanded the case for decision afresh---Contention of defendant was that appeal before the Appellate Court was not properly instituted as judgment of Trial Court had not been appended with the memo of appeal---Validity---Every order was not appealable and right of appeal being a creation of statute could be availed only when it had specifically been granted---Appeal could be filed only against those orders which had been listed in O.XLIII or S.104 of Civil Procedure Code---Procedure for filing of appeal from decree or order was the same---Filing of decree against which appeal was instituted was mandatory requirement of law and court could not dispense with the copy of decree---Appeal filed under O.XLI, R.1, C.P.C. must be accompanied by copy of decree and judgment appealed from and copy of judgment of court of first instance unless same was dispensed with by the Appellate Court either expressly or by necessary implication---Judgment of Trial Court was not appended with the memo of appeal in the present case---Neither any application was made nor any reason had been stated in the appeal for not filing the same---Question of dispensing with the requirement of filing of copy of the judgment of the court of first instance could not be considered in circumstances---Appeal was not properly instituted which was dismissed.

Mst. Safia Begum v. Taj Din and others 1990 CLC (Lah.) 1503 ref.

Ali Haider Shah v. Ghulam Muhammad 1981 CLC (SC AJK) 359 and Azad Govt. and 5 others v. Syed Sajjad Ali Gillani and another 2001 CLC 1105 distinguished.

Muhammad Shafi v. Mst Jameela Bibi and 09 others 1980 CLC (SC AJ&K) 1130; Muhammad Amin Shah v. Mehtab and another PLD 1996 SC (AJ&K) 11 and Mst. Sandal Begum v. Bassam Muhammad PLD 1991 (AJ&K) 14 rel.

Sardar Pervaiz Akhtar for Appellant.

Mrs. Bilquees Rasheed Minhas for Respondents Nos.1 and 2.

Nemo for the remaining Respondents.

2016 C L C 15

[Islamabad]

Before Athar Minallah, J

SHAZIA QAMAR and others----Petitioners

Versus

BASHIRAN BIBI and others----Respondents

C.R. No.286 of 2015, heard on 19th August, 2015.

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

----O.VII, R.2 & O.XXXIX, Rr.1 & 2---Qanun-e-Shahadat (10 of 1984), Art.133---Suit for recovery of money and permanent injunction---Oral agreement, proof of---Absence of cross-examination of facts not controverted during cross examination---Presumption---Exception to presumption---Plaintiff filed suit for recovery claiming that she had loaned suit amount to defendant, her daughter-in-law, under oral agreement to help her get study visa, which defendant refused to return after she had been divorced (by her son)---Both trial court and appellate court decreed the suit---Validity---Defendant had admitted deposit of suit amount in her account by plaintiff---Defendant, in her written statement, had stated that suit amount had been transferred in her account as gift due to love and affection---Defendant witness also deposed that amount deposited in account of defendant was in nature of gift---Statements of defendant and her witnesses had not been controverted by plaintiff---Compromise deed between parties produced and relied upon by plaintiff could not be treated as acknowledgment of debt or admission---Where party had omitted or failed to cross examine a witness on particular question of fact stated in examination-in-chief, it would be presumed that such fact had been admitted---Said presumption was, however, neither absolute nor infallible, and was open to exceptions----Statement made during examination-in-chief, which was not controverted in cross examination, was to be construed in light of pleadings of parties and other evidence produced and placed on record---Said presumption could be displaced by reliable, cogent and clear evidence---When there was other evidence, question as to whether party upon whom burden of proof lay was able to discharge the burden, would be determined on basis of preponderance of evidence or balance of probability---Burden to prove issue regarding existence of oral agreement was on plaintiff, which she failed to discharge---Absence of cross examination or failure to controvert facts deposed by plaintiff in her examination-in-chief did not give rise to presumption of admission, as same was displaced with assertions made in written statement and evidence available on record---Trial court failed to consider pleadings and evidence; it was a case of misreading and non-reading of evidence---High Court, setting aside judgments and decrees of courts below, dismissed the suit---Revision petition was accepted in circumstances.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Syed Muhammad Saleem v. Ashfaq Ahmad Khan and another 1989 CLC 1883 rel.

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

----Art. 133---Facts not controverted during cross examination---Presumption---Exceptions to presumption---Where party omits or fails to cross examine a witness on particular question of fact stated in examination-in-chief, such fact will be deemed to have been admitted---Said presumption is, however, neither absolute nor infallible, and same is open to exceptions---Said presumption can be displaced by reliable, cogent and clear evidence---Statement made during examination-in-chief, which is not controverted in cross examination, is to be construed in light of pleadings of parties and other evidence produced and placed on record.

(c) Administration of justice---

----Case of party had to stand on its own legs and plaintiff cannot take advantage of weakness in case of defendant.

Atif Mukhtar Raja for Petitioners.

Akhtar Mehmood for Respondent No.1.

Date of hearing: 19th August, 2015.

2016 C L C 125

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Ch. ATA-UR-REHMAN QADRI----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

W.P.No.537 of 2011, heard on 19th May, 2015.

Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 2(h)---Public Procurement Rules, 2004, Rr.42 & 50---Constitution of Pakistan, Art.199---Constitutional petition---Mis-procurement---Alternative methods of procurements---Applicability---Dispute was with regard to awarding of contract by Capital Development Authority to respondent to ply shuttle coaches for Diplomatic Enclave in Islamabad---Plea raised by petitioner was that contract was awarded in violation of Public Procurement Regulatory Authority Ordinance, 2002---Validity---Assigning of work subject matter of the petition did not fall in any exceptions provided in R.42 of Public Procurement Regulatory Authority Rules, 2004, therefore, it was "mis-procurement" as defined in S.2(h) of Public Procurement Regulatory Authority Ordinance, 2002, and R.50 of Public Procurement Regulatory Authority Rules, 2004---Entire process was engineered, manipulated and person specific for the respondent---No record of award of contract / license to respondent from years, 2002 to 2008, was available with Capital Development Authority---Respondent failed to advance any reason of assumption of municipal administration work/functions by planning directorate of Capital Development Authority---High Court set aside the contract in question as assigning of contract/work to respondent was illegal, unconstitutional, violative of Public Procurement Regulatory Authority Ordinance, 2002, Public Procurement Regulatory Authority Rules, 2004, dictums laid down by Supreme Court, offensive to the universally accepted principles of fairness, honesty, transparency, openness and was result of colourable exercise of authority, irrelevant considerations, a naked corruption, polluted mannerism, offensive to public exchequer and an infringement to constitutionally guaranteed fundamental rights and a glaring example of discrimination, favoritism, nepotism, ulterior motives and stinking approach to advance personal agenda---High Court directed Chairman Capital Development Authority to immediately take possession of the site, initiate disciplinary proceedings against all officials of Capital Development Authority who contributed in award of contract/work to respondent from year, 2002 and onwards---High Court further directed Chairman Capital Development Authority to also ensure whether respondent had performed his part under the agreement in question or not and if answer was in negative then appropriate legal proceedings be initiated for recovery of amount due including overcharged amount---High Court also directed Capital Development Authority to commence fresh process by adhering to the provisions of Public Procurement Regulatory Authority Ordinance, 2002 and Public Procurement Regulatory Authority Rules, 2004---Petition was allowed in circumstances.

PLD 2014 SC 47; PLD 2010 SC 731; 2007 CLD 125; 2010 CLD 726; PLD 2010 Lah. 605; 2014 YLR 2571; PLD 2012 Bal. 31; Sindh High Court Bar Association's case PLD 2009 SC 879; Violation of Public Procurement Rules, 2004, reported as PLD 2011 SC 927; 2011 PLC (C.S.) 1130; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Hajj Corruption case 2011 PLC (C.S.) 1076; Watan Party v. Federation of Pakistan PLD 2012 SC 292; Munir Hussain Bhatti v. Sindh High Court Bar Association's case PLD 2011 SC 407; Watan Party and another v. Federation of Pakistan PLD 2011 SC 997; Corruption in Rental Power Plants etc.'s case 2012 SCMR 773; Pervaiz Oliver's case PLD 1999 SC 26 and Messrs Malik Goods Transport Co. Lahore v. Federation of Pakistan through Secretary Railways, Islamabad and 9 others PLD 2010 Lah. 289 rel.

Hafiz Arfat Ahmad Ch. and Ms. Kashifa Niaz Awan for Petitioner.

Muhammad Nazir Jawad for CDA.

Syed Hamid Ali Bukhari, ASC for Respondent No.5.

Date of hearing: 19th May, 2015.

2016 C L C 210

[Islamabad]

Before Aamer Farooq, J

Messrs AL-SAFA GOLDEN CO. (PVT.) LIMITED----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 4 others----Respondents

Writ Petition No.1458 of 2015, heard on 29th June, 2015

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Approval of building plan, suspension of---Vested right---Scope---Natural justice, principles of---Completion certificate of building---Scope---Building plan approved in favour of petitioner was suspended by the Authority---Validity---Petitioner was allotted property and approval for construction of the same was granted subject to certain terms and conditions---Construction other than permissible covered area was not allowed---Circulation and utility areas were not to be used as covered areas---Petitioner was not to occupy the building without obtaining "completion certificate" from the Authority---Even if there was any omission in the building same would not relieve the petitioner from any obligation---If approval granted for construction was in violation of Regulations, it was the law that had to prevail---Petitioner could not claim any vested right accrued to it by violation of Regulations---Authority had only suspended the approval for construction and had invited the petitioner to raise concern/reservations---Petitioner had filed representation before the Authority which was still pending---Approval granted in favour of petitioner had not yet been cancelled---No prejudice had been caused to the petitioner---Impugned letter was not in violation of principles of natural justice---Question of fact could not be looked into or adjudicated by the High Court while exercising constitutional jurisdiction---No one could occupy any building unless completion or permission to occupy the same had been obtained from the Authority---Petitioner by occupying the building without completion had violated the terms of approval---Action taken by the Authority was in accordance with the findings and recommendations of Inquiry Committee---Constitutional petition was dismissed in circumstances.

Pakistan through Ministry of Finance Economic Affairs and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208; Crescent Industrial Chemical Ltd. through Chief Executive v. Federation of Pakistan through Secretary M/O Law, Justice and Human Rights Division and 3 others PLD 2004 Quetta 92; M.P. Sugar Mills v. State of U.P. AIR 1979 SC 621; Pakistan International Airlines Corporation through Chairman v. Inayat Rasool 2003 SCMR 1128; Chief Secretary, Government of Sindh and another v. Sher Mohammad Makhdoom PLD 1991 SC 973; Banu Sugar Mills v. Inspector, Customs and Central Excise 1990 CLC 569; Additional Accountant General Pakistan Revenue v. M.M. Malik and others 2012 PLC (CS) 1370; Warid Telecom (Pvt.) Limited and four (4) others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338; Accountant General, K.P.K. v. Abdul Ali 2015 MLD 157; Muhammad Abbasi v. SHO, Barakahu, Islamabad PLD 2010 SC 969; Lahore Development Authority v. Firdus Steel Mills (Pvt.) Limited 2010 SCMR 1097 and Malik Muhammad Majeed v. Government of Pakistan PLD 2002 Lah. 290 ref.

Al-Hajj Raees Ahmed Qureshi v. Water and Sanitation Agency (WASA) 2005 YLR 326 and Farooq Hamid v. Lahore Development Authority (LDA) 2008 SCMR 493 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Question of fact could not be looked into or adjudicated by the High Court while exercising constitutional jurisdiction.

Muhammad Ilyas Sheikh for Petitioner.

Raja Adnan Aslam for Respondents.

Date of hearing: 29th June, 2015.

2016 C L C 313

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

Mst. RUKHSANA KANWAL----Petitioner

Versus

ABDUL JABBAR and 2 others----Respondents

W.P.No.4382 of 2014, decided on 15th September, 2015.

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

----S. 5, Sched. Ss.14 & 17---Limitation Act (IX of 1908), Art.120---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance, dower and gold ornaments---Limitation---Ex parte decree, non-assailing of---Acquiescence, principle of---Res judicata, principle of---Applicability---Divorce certificate---Evidentiary value---Family Court passed ex parte decree in favour of wife to the extent of maintenance allowance for herself and for the minor whereas her claim of dower and gold ornaments was declined---Wife-plaintiff did not challenge the said decree and filed execution petition wherein husband-defendant moved an application for setting aside ex parte judgment and decree which was accepted---Family Court finally decreed the suit only to the extent of maintenance allowance for the wife and minor while rest of the claim in the suit was declined---Validity---Amount of Rs.5,000/- per month in case of desertion was fixed as maintenance in the Nikah Nama with mutual consent of the parties which should have been given due consideration---Nuptial disputes between the parties were consequence of unemployment of husband---No justification existed for reducing the quantum of maintenance from Rs. 5,000/- to Rs. 1,500/---Divorce certificate being a public document had presumption of correctness---Wife had been rightly held entitled for maintenance allowance beginning from July 2005 till 23-11-2007 and for the period of iddat---Wife had not challenged her portion of claim with regard to dower and gold ornaments which was declined in the ex parte decree by the Family Court---Wife had acquiesced the said decision by not assailing the same through appeal---Such conduct of wife would amount to relinquishment of said part of claim---Wife would be debarred from subsequently agitating the same---Wife was having an option to file appeal but she failed to avail the same---Counter right accrued in favour of adverse party could not be discarded merely that ex parte judgment was subsequently set aside---Ex parte judgment would roll back to the extent of husband-defendant's claim---Principle of res judicata was applicable in circumstances---Wife-plaintiff could not re-agitate the claim which had already been decided finally---Period of six years from the accrual of right to sue had been provided for the recovery of maintenance allowance---Findings of both the courts below with regard to quantum of maintenance were in contravention of stipulation contained in the Nikah Nama---Wife was held entitled to maintenance @ Rs.5,000/- per month from July, 2005 to 23-11-2007---Constitutional petition was disposed of in circumstances.

Mst. Zaibun v. Mehrban PLD 2004 SC (AJ&K) 25; Liaqat Ali v. The Addl. District Judge and others 2000 YLR 2084; Mst. Bushra Qasim v. Dr. Abdul Rasheed and others 1993 CLC 2063; Mazhar Iqbal v. Falak Naz and others PLD 2001 Lah. 495; Abdul Razzak v. Shabnam Noonari and others 2012 SCMR 976; Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 and Commissioner of Income Tax Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170 ref.

District Co-ordination Officer Pakpattan v. Safdar Ali etc. 2006 MLD 1 and Mst. Zaibun v. Meharban PLD 2004 SC (AJ&K) 25 rel.

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

----S. 5, Sched.---Limitation Act (IX of 1908), Art.103---Suit for recovery of dower---Limitation---Three years limitation period had been provided for a suit for recovery of dower.

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

----S. 5, Sched.---Limitation Act (IX of 1908), Art.49---Suit for recovery of dower---Limitation---Three years limitation period had been provided for a suit for gold ornaments.

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

----S. 5, Sched---Limitation Act (IX of 1908), Art.120--Suit for recovery of maintenance allowance---Limitation---Period of six years from the accrual of right to sue had been provided for the recovery of maintenance allowance.

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

----S. 5, Sched.---"Divorce certificate" being a public document had presumption of correctness.

Abid Farooq Awan for Petitioner.

Ch. Manzoor Ahmad Kamboh and Hafiz Liaqat Manzoor Kamboh for Respondent No.1

Date of hearing: 4th August, 2015.

2016 C L C 343

[Islamabad]

Before Athar Minallah, J

MUHAMMAD NASEER ABBASI----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

W.P. No.3435 of 2014, decided on 25th November, 2015.

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

----O. I, R. 10---Parties to suit---Interpretation of O.I, R.10, C.P.C---Principle---Defendant, being legal heir was impleaded as necessary and proper party---Plaintiff, through a previously filed Benami suit against his wife, had obtained consent decree in his favour with regard to suit properties; however, plaintiff had never filed execution petition for implementation of the same---Plaintiff, subsequently, on basis of said judgment and decree, filed present suit seeking declaration as to his ownership regarding suit properties and direction to defendant-Capital Development Authority for transfer of the same in his name---Applicant, being brother and legal heir of the deceased wife, filed application under O.I, R.10, C.P.C. to be impleaded as defendant in the suit, which was accepted both by Trial Court and revisional court---Plaintiff contended that the judgment and decree, passed in the previous suit, had attained finality extinguishing right of his deceased wife in the suit properties, and applicant, therefore, could not claim any right or interest in suit properties---Validity---Judgment and decree in question had not been executed during lifetime of the deceased nor had any proceedings been initiated in that regard---Applicant, being brother of the deceased, had acquired interest in suit properties as her legal heir---Existence and effect of said interest of applicant, in context of present suit, was to be determined by Trial Court---Presence of applicant was, therefore, essential to enable Trial Court to effectively and completely adjudicate upon and settle all questions and matters, which were material for proper decision, simultaneously, avoiding multiplicity of litigation---Applicant was necessary and proper party---High Court observed that provision of O.I, R.10, C.P.C. were to be interpreted liberally in the interest of complete adjudication of all questions involved in the case and to avoid multiplicity of proceedings---Constitutional petition was dismissed in circumstances.

Messrs Jans Caterers v. The Islamic Republic of Pakistan through The Chairman, Pakistan Western Railway, Lahore and 2 others PLD 1972 Lah. 169; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 225; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Ali Ahmad and another v. Muhammad Afzal and another PLD 1973 Lah. 207; Pakistan Banking Council and another v. Ali Maohtaram Naqvi and others 1985 SCMR 714; Muhammad Rafique and 2 others v. Noor Khan 2003 YLR 1434; Khaliq Dad and others v. M.B.R. and others 2001 CLC 518; Muhammad Jameel through L.Rs. v. Syeda Sakina Raiz and 2 others 2014 CLC 1098; Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.) Limited through Managing Director and 5 others 2004 MLD 1395; Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and 4 others PLD 2009 Lah. 140; Ghulam Hussain and another v. Malik Shahbaz Khan and another 1985 SCMR 1925; Noor Avenue Cooperative Housing Society, Hanjarwal, Lahore through President v. Lahore Development Authority through Director General, L.D.A, Lahore and 3 others 2008 CLC 200; Razia Begum v. Iqbal Begum and 7 others PLD 1957 Lah. 1040; Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif PLD 2009 Lah. 140; Tirathdas Kallumal and another v. Acharya Devendra Prasadji and others PLD 1967 Kar. 711; Abdul Ghafoor v. Alamgir and 4 others 2006 YLR 2662 and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 ref.

Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Rauf B. Qadri v. State Bank of Pakistan and another PLD 2002 SC 1111 and Said Alam and another v. Raja Sohrab Khan and 8 others 1970 SCMR 639 rel.

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

----O. I, R. 10----Parties to suit---Proper and necessary party---Determination---Party is a necessary party if he ought to have been joined in suit, and in whose absence, no effective decree can be passed---Persons, whose presence before court is necessary to enable it effectually and completely to adjudicate upon and settle all questions involved in suit, are proper parties.

(c) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.115---Constitutional petition is maintainable against order passed by revisional court.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 225; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 rel.

Sardar Asmat Ullah Khan for Petitioner.

Sheraz Ahmad Ranjha and Masood Hussain Shah for Respondents.

Date of hearing: 27th October, 2015.

2016 C L C 474

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

NADEEM YOUNAS----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 3 others----Respondents

Writ Petition No.1598 of 2015, decided on 25th November, 2015.

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

----S. 17---Ejectment of tenant---Default in payment of rent---Defect in title document of landlord---Effect---Change of ownership---Notice to the tenant---Lease agreement---Scope---Tenant failed to produce defence evidence and his right to produce evidence was closed---Eviction petition was accepted concurrently---Validity---No adverse claim with regard to title of demised premises on behalf of tenant was on record---Status of a person would become that of a tenant in absence of adverse claim of title---Relationship of landlord and tenant had been established on record---Mere non-production of lease agreement with the previous owner could not be termed fatal to the case of landlord---Tenant had not tendered rent either in the court or to the previous owner of demised premises---Tenant had no concern with the defect or verification of title document of demised premises---Even defective title of landlord did not entitle the tenant to evade payment of rent---Tenant could not ask for inspection of title document of demised premises---Filing of eviction petition was sufficient notice to the tenant---Tenant had committed wilful default in payment of rent---No interference was warranted in the impugned order passed by the Appellate Court---Tenant had not approached High Court with clean hands---Conduct of tenant remained dubious from the very inception of the case and he played hide and seek with the judicial procedure---Constitutional petition was dismissed with special cost of Rs.10,000/- in circumstances.

Mst. Munawar Sultana v. Additional District Judge, Islamabad 2005 CLC 1119; HBL v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846; Ghulam Rasool v. Mian Khurshid Ahmed 2000 SCMR 632; Mst. Khursheed Begum and another v. Muhammad Siddique 1991 CLC 1134; Ghulam Waris v. Riaz Ahmad Advocate 1990 MLD 2300; Muhammad Yameenullah Pervez Malik v. Mrs. Syeda Habiba Rizvi 1990 MLD 2356; Pakistan National Shipping Corporation v. M/s General Service Corporation 1992 SCMR 871; Aziz Begum v. Faiyaz Butt 1991 CLC Note 9 and Fakhruddin Khan Syed v. Mst. Surryia Sultana 2003 YLR 349 ref.

Suleman and another v. M.A. Mallick 1988 SCMR 775 and Major (Rtd.) Muhammad Yousaf v. Mehraj-ud-Din 1986 SCMR 751 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court, invocation of---Requirements---Party should approach to the High Court with clean hands for invoking constitutional jurisdiction.

Abdul Shakoor Paracha and Haseeb Shakoor Paracha for Petitioner.

Mian Abdur Razzaq, ASC for Respondents.

Date of hearing: 27th October, 2015.

2016 C L C 504

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

ISHAQ KHAN KHAKWANI----Petitioner

Versus

ISLAMABAD CLUB through Secretary and others----Respondents

Writ Petition No.1525 of 2015, decided on 15th December, 2015.

Islamabad Club (Administration) Ordinance (XXXIII of 1978)---

----Ss. 5 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Factual controversy---Petitioner was former Member of National Assembly and his grievance was that Islamabad Club had cancelled his membership due to default in payment of dues---Plea raised by Club was that petition was not maintainable---Validity---Functions mentioned in Islamabad Club (Administration) Ordinance, 1978, were primarily functions of State and a civic responsibility of Federation towards its citizens---Club was vested with power to take necessary steps for achievement of the objects as well as to allow and restrain facilities to natural persons---Condition with regard to exercise of public power was fulfilled---President of Pakistan was Patron of the Club and its administrator was a persona designata Grade-21 officer of Federal Government---Government had invariably taken upon itself to provide funds for the Club and persistently provided for its finances---Islamabad Club was person performing function in connection with the affairs of Federation and as such was amenable to Constitutional jurisdiction---Petitioner was a non-member of Islamabad Club and did not retain any vested right to use its facilities and lacked locus standi to bring Constitutional petition---There was factual controversy involved in the matter as the Club had propounded default in payment of charges on the basis of byelaws but petitioner denied the same which had inevitably given rise to factual controversy, and the same could not be resolved without adducing pro and contra evidence which was not permissible in Constitutional jurisdiction---Petition was dismissed in circumstances.

Anoosha Shaigan v. Lahore University of Management PLD 2007 Lah. 568; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244; Aithchison College, Lahore v. Muhammad Zubair and another PLD 2002 SC 326;

Maqsood Ahmad Toor and 4 others v. FOP and others 2000 SCMR 928; Syed Arshad Ali and 55 others v. Pakistan Telecommunication Company Ltd. through President and 8 others PLD 2007 Kar. 214; Nisar Muhammad and another v. Sultan Zari PLD 1997 Lah. 852; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and another 1998 CLC 1890 ref.

Farrukh Shahzad Daal for Petitioner.

Afzal Siddiqui Advocate Supreme Court for Respondent.

Date of hearing: 28th October, 2015.

2016 C L C 562

[Islamabad]

Before Athar Minallah, J

SUI NORTHERN GAS PIPELINES LTD. through Deputy Chief Law Officer----Petitioner

Versus

OIL AND GAS REGULATORY AUTHORITY through Chairman and another----Respondents

Ogra Petition No.2 of 2015, Writ Petitions Nos.3696, 3697, 3698 and 3699 of 2015, decided on 16th December, 2015.

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

----Ss. 12(2) & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner company had been granted license by Oil and Gas Regulatory Authority (OGRA)---Authority on the application of petitioner, determined final revenue requirements---Validity---Rule that High Court would not entertain a petition under Art.199 of the Constitution when other appropriate remedy was available was not a rule of law barring jurisdiction of High Court---When law provided an adequate remedy, Constitutional jurisdiction under Art.199 of the Constitution could be exercised in exceptional circumstances---Exceptional circumstances which could justify invoking jurisdiction under Art.199 of the Constitution when adequate remedy was available, were when the order or action assailed was palpably without jurisdiction, malafide, void or corum non judice---Tendency to bypass remedy provided under relevant statute by resorting to Constitutional jurisdiction of High Court was to be discouraged so that legislative intent was not defeated---Constitutional jurisdiction under Art.199 could not be readily resorted to when matters amenable to jurisdiction of exclusive forum was mandated by the Constitution itself or when hierarchy provided under a statute ended up in appeal, revision or reference before High Court or directly Supreme Court---High Court in exercising its jurisdiction would take into consideration whether the remedy provided under the statute was illusory or not---Once a person had opted for and availed adequate remedy available under law then resort could not be made to invoking jurisdiction under Article 199 of the Constitution---Same principle was also applicable in case of a petition filed under S.12(2) of Oil and Gas Regulatory Authority Ordinance, 2002---Legislature made it subject to the satisfaction of the Court that no other remedy was provided under Oil and Gas Regulatory Authority Ordinance, 2002---High Court declined to interfere in the determination of final revenue requirements made by Authority---Petition was dismissed in circumstances.

Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others PLD 1958 SC 437; Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; The Muree Brewery Co. Ltd v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847; Income-Tax Officer and another v. M/s. Chappal Builders 1993 SCMR 1108; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Khalid Mehmood v. Collector of Customs, Customs House, Lahore; 1999 SCMR 1881; Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad 1999 SCMR 138 and Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Availability of statutory remedy---Effect.

Mirza Mahmood Ahmed, ASC, Fahad Malik Khwaja Tariq Rahim and Muhammad Azhar Siddique for Petitioner.

Yaser Aman Khan, Muhammad Rizwan-ul-Haq (E.D. Litigation), Ms. Misbah Yaqoob (E.D. Finance and Accounts), Shahzad Iqbal (E.D. Gas), Amir Nusrat (D.E.D. Gas), Basit Qureshi (Registrar) for Respondents.

Ahmed Ata-ur-Rehman (Amicus).

Dates of hearing: 1st, 2nd, 3rd, 8th, 9th, 10th and 11th December, 2015.

2016 C L C 759

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Messrs WISE COMMUNICATION SYSTEM (PVT.) LTD. (LDI & FLL OPERATOR) through Company Secretary----Petitioner

Versus

FEDERATION OF PAKISTAN through the Secretary, Ministry of Information and

Technology, Islamabad and 3 others----Respondents

Writ Petition No.904 of 2014, decided on 20th June, 2014.

Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----Ss. 21, 20, 8, 5 & 4(1)(m)----Pakistan Telecommunication Authority (Functions & Powers) Regulations 2006 Reglns.13 to 18---Licensing of telecommunication services---Exclusive power of the Authority to grant licence---Power of the Federal Government to issue policy directives---Power and functions of Authority---Petitioner, challenged the legality of the Long Distance International (LDI) licence issued to the respondent-company on the ground that Pakistan Telecommunication Authority (PTA) had issued the licence without any open auction in violation of the policy directive dated 17.07.2012, which was against the Constitution---Petitioner contended that said policy directive for award of license by open auction was intact, and the same, being binding on the Regulator in terms of S.8(2)(a)(aa) read with S.21(1)(c) of Pakistan Telecommunication (Re-organization) Act, 1996, had not been followed, and that the process provided by Pakistan Telecommunication Authority (Functions & Powers) Regulations, 2006 had neither been adopted nor followed---Respondents took the plea that PTA had the exclusive power to grant said license and said directive was only guidelines, and that the petitioner was already holding LDI license, thus, he was not an affected or interested party---Validity---No material was available on record to support the contention of the petitioner that any favour had been extended to the respondent company in any manner---Constitutional petition apparently was an endeavour to deprive the respondent company from participating in the auction proceedings to which the petitioner was not an intending bidder---All the codal formalities had been met while granting the license to the respondent company and nothing dubious or irrelevant had surfaced---Constitutional petition was, therefore, dismissed in circumstances.

Barrister Afzal Hussain for Petitioner (in W.P. No.904 of 2014).

Waqas Qadeer Sheikh for Petitioner (in W.P. No.1204 of 2014).

Manawar Iqbal Dugal for Respondents Nos.2 and 3 (in W.P. No.904 of 2014) and for Respondents Nos.3 and 4 (in W.P. No.1204 of 2014).

Waqar Ahmad, Director Legal, Company Secretary, Zong.

Ali Raza, ASC, Sardar M. Ishaq and Ms. Raheema Khan for Respondent C.M.Pak LDI Ltd.

Date of hearing: 22nd April, 2014.

2016 C L C 896

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SAJJAD AHMED----Petitioner

Versus

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

C.R.No.05 of 2016, decided on 3rd February, 2016.

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

----S 49-C---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Affidavit to demolish unauthorized construction, violation of---Temporary injunction, grant of---Ingredients---Equitable relief---Development authority approved building plan in favour of plaintiff---Plaintiff swore an affidavit that he would demolish unauthorized construction at his own cost and completion certificate was issued by the Development Authority-Development authority issued direction to the plaintiff to remove unauthorized construction---Validity---Plaintiff could not wriggle out of his undertaking given to the Development Authority---Breach of undertaking had disentitled the plaintiff to seek equitable remedy of injunction from the court---Plaintiff had neither a prima facie case nor balance of convenience was in his favour---Loss which the plaintiff would suffer on demolition of unauthorized construction was not irreparable---Ingredients for grant of temporary injunction had not been satisfied in the present case---Plaintiff had concealed facts from the courts below and he was not entitled for equitable/discretionary relief of injunction---Plaintiff by concealing earlier litigation had acted contumaciously and inequitably---Litigant who had failed to make complete disclosure of an earlier litigation in the subsequent suit could be held to have abused the process of law---Both the courts below had not committed any illegality or material irregularity while dismissing application for grant of temporary injunction---Revision was dismissed in circumstances.

Mid East Medical Centre Limited v. Government of Pakistan, 1986 CLC 1607 and Saeeda v. Province of Punjab 2013 CLC 454 rel.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Requirements---Party approaching the court for discretionary relief should narrate all material facts in the plaint and/or the application for grant of temporary injunction---Relief of injunction was discretionary and equitable relief which a party could not claim as a matter of right---Party seeking such relief should act equitably.

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

----S. 115---Revision---Scope---Revisional jurisdiction could not be exercised in favour of a party who had concealed or suppressed a material fact from the court.

Ramzan v. Chief Settlement Commission PLD 1968 Lah. 258; Abdur Rashid v. Pakistan 1969 SCMR 141; Principal, King Edward Medical College v. Ghulam Mustafa 1983 SCMR 196; Lahore Development Authority v. Mst. Shamim Akhtar 2003 MLD 1543; Nazir Ahmad v. Faisalabad Development Authority 2003 CLC 359 and Dilawar Hussain v. District Coordination Officer, Okara 2004 CLC 324 rel.

Umar Hanif Khichi for Petitioner.

Mian M. Faisal Irfan for Respondents.

2016 C L C 1051

[Islamabad]

Before Muhammad Anwar Khan Kasi, CJ

NADEEM RAZA ABBASI----Petitioner

Versus

Sardar ABU BAKAR and 2 others----Respondents

Writ Petitions Nos.961, 962 and 959 of 2015, decided on 1st March, 2016.

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

----Ss. 17 & 6---Ejectment of tenant---Lease agreement---Plea of reconstruction of premises---Scope---Relationship of landlord and tenant would be governed by terms and conditions set in the lease agreement---Such relationship would come to an end with non-existence of contractual obligations---Occupation of premises by the tenant would not only depend upon payment of rent but also upon the period mentioned in lease agreement or extension agreement---Tenancy would not remain valid upon lapse of period mentioned in lease agreement---Nothing was on record that lease agreement had been extended between the parties in the present case---Mere payment of rent would not reflect extension of lease agreement---Eviction petition was maintainable on sole ground of expiry of tenancy---Eviction could be ordered on the ground of requirement for reconstruction of demised premises---Tenant was directed to handover possession of demised premises to the landlord within 30 days---Constitutional petition was dismissed in circumstances.

1987 SCMR 2074; PLD 2000 SC 1172; 1989 MLD 1174; Cantonment Board Rawalpindi etc v. Lt. Col. (Rtd.) Allah Dad Khan 2015 SCMR 832; Khairullah v. Sultan Mehmood and others1997 SCMR 906; Muhammad Tariq Badar v. National Bank of Pakistan 2013 SCMR 314; Muhammad Shafique v. S.M. Khurram and others 1983 SCMR 1227; Mst. Humera Sajid v. Muqarrab Khan Puni and others 2008 CLC 650 and Mst. Nazir Begum and others v. ADJ and others 1983 CLC 2045 ref.

Qaiser Javed Malik v. Pervaiz Hameed and others 2009 SCMR 846 and Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1980 SCMR 41 rel.

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

----S. 17---Eviction petition---Lease agreement---Scope---Relationship of landlord and tenant would be governed by terms and conditions set in the lease agreement.

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

----S. 17---Ejectment petition---Agreement to sell---Scope---Agreement to sell did not fetter right to seek eviction of tenant.

(d) Evidence---

----Court had no jurisdiction to compel the witness to depose.

Raja Aleem Khan Abbasi ASC for Petitioner.

Sardar Ashfaq Ahmed Abbasi ASC for Respondents.

Date of hearing: 28th January, 2016.

2016 C L C 1111

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mst. BASAN BI and 2 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE-V, EAST ISLAMABAD and others----Respondents

W.P. No.152 of 2016, decided on 24th February, 2016.

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

----O. XLVIII, R. 1 & O. IX, Rr. 2 & 4---Limitation Act (IX of 1908), Art.163---Specific Relief Act (I of 1877), S.42---Suit for declaration---Non-deposit of process fee---Dismissal of suit---Application for restoration of suit dismissed for non-deposit of process fee---Sufficient cause---Limitation---Condonation of delay---Purchasers of suit property were impleaded during pendency of suit but no process fee was deposited and suit was dismissed to their extent---Application for restoration of suit was filed which was accepted by the Trial Court but Appellate Court dismissed the same being time-barred---Validity---Plaintiffs were required to deposit the process fee well before the date fixed by the Trial Court---Suit could be dismissed where summons had not been served upon the defendant due to failure of plaintiff to pay court-fee or postal charges for such service---Such power of court was discretionary and court was not bound to dismiss the suit for non-deposit of process fee---Court could recall the order and could set the dismissal aside on sufficient cause---Existence of sufficient cause was sine qua non for exercise of such power---Application for restoration of suit was barred by four years---Application for restoration of suit might be admitted after the period of limitation if there was sufficient cause for not filing same within the prescribed period of 30 days---Plaintiffs were bound to satisfy the court that they were restrained by force of circumstances beyond their control to move application for restoration of suit within prescribed period of limitation---Defendants were impleaded as parties to the suit on the application of plaintiffs---Plaintiffs could not claim ignorance with regard to contents of order sheet---No sufficient cause was made out for recalling order for dismissal of suit due to non-deposit of process fee---Application for restoration of suit was liable to be dismissed---Constitutional petition was dismissed in circumstances.

Thal Engg. Industries Ltd. v. Bank of Bahawalpur Ltd. and another 1979 SCMR 32; Zahoor Ahmad v. Mehra through legal heirs and others 1999 SCMR 105;Government of NWFP and others v. Fazal Maula and others PLD 1993 Pesh.192; Ahmad Zaman Khan, Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327; Malik Nasrullah v. Mst. Mumlikat Begum 2003 CLC 235 and Muhammad Illyas and 4 others v. Munshi Khan 2003 CLC 1815 ref.

Muhammad Qasim v. Moujuddin and others 1995 SCMR 218 and Habiba Begum v. Haji Iqbal-ud-Din 2012 MLD 1786 distinguished.

Tanveer Akhtar v. National Bank of Pakistan, Shakargarh, 2002 CLD 264; Hoechst Pakistan Ltd., Karachi v. Chaudhry Agriculture Traders 1993 CLC 1892; Rehmat Ali v. Fazal Hussain 1990 CLC 761 and Abdul Ghani v. Settlement Commissioner, Lahore Division PLD 1971 SC 59 rel.

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

----Art. 163---Civil Procedure Code (V of 1908), O. IX, R. 4---Application for restoration of suit dismissed for non-deposit of process fee---Limitation---Limitation for filing an application to set aside a dismissal of suit for failure to pay cost or service of process was 30 days which would run from the date of the dismissal.

(c) Administration of justice---

----Law would favour adjudication on merits rather than technicalities.

(d) Administration of justice---

----Act of court should prejudice no one.

Zulfiqar Ali Abbasi, ASC for Petitioners.

Sheikh Khizar-ur-Resheed for Respondent No.2.

Muhammad Faisal Chaudhry for Respondents Nos.3 to 8 and 12.

Date of hearing: 17th February, 2016.

2016 C L C 1169

[Islamabad]

Before Athar Minallah, J

BNP (PVT.) LTD.----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

Writ Petition No.3755 of 2014, decided on 3rd March, 2016.

(a) Constitution of Pakistan---

----Art. 69---Public Accounts Committee proceedings of---Scope---Proceedings of a formally constituted Committee of either House falls within the ambit of internal proceedings of Majlis-e-Shoora (Parliament)---Such proceedings are immune from challenge in Courts in the light of bar contained in Art.69 of the Constitution.

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

----Ss. 2(c), 4, 5, 6 & 49---Rules of Procedure and Conduct of Business in the National Assembly, 2007, R.280---General Financial Rules (Vol. 1), R.9(iv)---Constitution of Pakistan, Art.69---Board of Capital Development Authority---Powers---Recommendations of Public Accounts Committee---Pursuant to the directive of Public Accounts Committee, Capital Development Authority directed petitioner company to immediately stop construction work on the site till finalization of inquiry/payment of dues---Validity---Board of Capital Development Authority was required to have considered recommendations/directives of Public Accounts Committee and taken decision based on the exercise of independent judgment and thereafter, submitted reply to the Committee---Instead of considering directions/recommendations of Public Accounts Committee, the Board issued letter in question in a mechanical manner---Audit para. referred by petitioner related to alleged violation of R.9(iv) of General Financial Rules (Vol. 1)---Directions/recommendations issued by Public Accounts Committee raised concerns which were within the powers and functions of Capital Development Authority to consider and then to take necessary decisions and appropriate actions---Directives involved recommendations regarding recovery of a substantial amount from the petitioner-Company---Audit Para. had to be settled in the manner as prescribed particularly under the Rules of Procedure and Conduct of Business in the National Assembly, 2007---High Court set aside the letter issued to petitioner as the same was issued in a mechanical manner---Constitutional petition was allowed accordingly.

Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Pakistan v. Ahmad Saeed Kirmani and 3 others PLD 1958 SC (Pak) 397; Badru Haque Khan v. The Election Tribunal, Dacca and 2 others PLD 1963 SC 704; Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774 and M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 691 ref.

Barrister Aitzaz Ahsan and Barrister Gohar Ali Khan for Petitioner.

Attaullah Hakim Kundi, Raja Adnan Aslam and Malik Zahoor Awan, Standing Counsel for Respondents.

Date of hearing: 20th January, 2016.

2016 C L C 1195

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

ALL PAKISTAN PVC PIPE MANUFACTURERS ASSOCIATION through Chairman----Petitioner

Versus

FEDERATION OF PAKISTAN, MINISTRY OF COMMERCE through Secretary and 5 others----Respondents

Writ Petition No.2926 and C.M. Nos.4034, 4388 of 2015, decided on 29th February, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Necessary and proper parties---Application contending that applicant was necessary and proper party, and the petitioner was, therefore, supposed to implead the applicant as one of the respondents in constitutional petition---Validity---High Court observed that presence of the applicant would help the Court to reach just conclusion and no prejudice would be caused to the other parties if the applicant was impleaded in the array of the respondents---Petitioner was directed to file amended constitutional petition after impleading the applicant as one of the respondents---Application was allowed in circumstances.

1989 SCMR 205; PLD 2013 Sindh 83; 2010 MLD 1000; 2010 YLR 1666; 1998 CLC 1576; 2015 SCMR 1257; 1995 SCMR 650 and 2002 YLR 3433 ref.

Mian Muhammad Kashif for Applicant.

Jawad Hassan and Omer Azad Malik for Petitioners.

2016 C L C 1208

[Islamabad]

Before Athar Minallah, J

MUHAMMAD AKRAM and others----Petitioners

Versus

IRSHAD MAHMOOD and others----Respondents

C.R. Nos.235 to 237 of 2015, decided on 17th February, 2016.

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

----S. 42---Suit for declaration---Mutation---No revenue Officer was produced as a witness to establish the mutation---Defendants had failed to prove sale or factum of payment of consideration---Document which had not been produced and proved in evidence but was only "marked" could not be taken into account by the court as a legal evidence of fact---Trial Court had rightly concluded that defendants had failed to prove the genuineness of transaction entered in the mutation---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Niaz Rasool through Muhammad Bilal v. Mst, Parveen Ikram and others 2013 SCMR 397; Martand Pandharinath Chaudhry v. Radhabai Krishnarao Deshmukh AIR 1931 Bombay 97; State v. Muhammad Ismail Butt and another PLD 1982 SC (AJ&K) 76 and Hakim Khan v. Aurangzaib and another 1979 SCMR 625 ref.

(b) Mutation---

----Scope---Mutation was not a deed of title but was merely a sign or indication of some previous oral transaction between the parties---Entries in mutation registers were by themselves not conclusive evidence of facts which were recorded therein.

(c) Mutation---

----Onus of proof---Ingredients.

Ingredients of onus of proof of mutation were as under:

(i) Mutation is not a deed of title, but is merely a sign or indication of some previous oral transaction between the parties e.g. sale or exchange.

(ii) The proceedings relating to mutation are not in the nature of being judicial.

(iii) The entries in mutation registers are by themselves not conclusive evidence of the facts which are recorded therein.

(iv) An attested mutation carries a rebuttable presumption.

(v) Mutation has to be recorded in the presence of the parties with their consent or upon due notice to them.

(vi) Burden of proof is on the person who acquires the title through the mutation i.e. the beneficiary.

(vii) The beneficiary has to prove the transaction embodied in the mutation; that the transferor had parted with the ownership voluntarily and out of free will; that the mutation was duly entered and attested; the factum of payment of sale consideration;

(viii) In the context of attestation of a mutation, the most important persons are the Patwari Halqa who enters the mutation, and the Revenue Officer who attests the same. In the absence of the said two officials, the mutation cannot be said to have been proved.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCMR 1043; Siraj Din through L.Rs. and 2 others v. Akbar Ali and others 2005 SCR 921; Abdul Rasheed through L.Rs. and others v. Manzoor Ahmed and others PLD 2007 SC 287; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 and State Life Insurance Corporation of Pakistan v. Javaid Iqbal 2011 SCMR 1013 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction of High Court was limited and discretionary---Revisional jurisdiction could not be exercised if substantial justice had been done between the parties.

Sardar Arshad Mehmood Khan for Petitioners.

Zulfiqar Ali Abbasi for Respondents.

Date of hearing; 25th November, 2015.

2016 C L C 1268

[Islamabad]

Before Aamer Farooq, J

Syeda DABEER FATIMA and others----Petitioners

Versus

Mst. BILQEES AKHTAR and others----Respondents

Regular Second Appeal No.9 of 2015, decided on 1st April, 2016.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Limitation---Notice to refusal to transfer the suit property---Scope---Suit was dismissed being barred by limitation---Validity---No date was prescribed for transfer of suit property in the agreement to sell---Period of limitation was to be computed from the notice to the plaintiffs with regard to refusal of performance of the agreement---Any action on the part of defendants which was adverse to the rights granted to the plaintiffs through impugned agreement to sell would tantamount to notice with regard to refusal to transfer of suit property and period of limitation would start therefrom---Plaintiffs had not pleaded specifically the "knowledge" with regard to acts adverse to their rights---No misreading or non-reading of evidence or any legal infirmity had been pointed out in the impugned judgments and decrees passed by the courts below---Second appeal was dismissed in circumstances.

Pakcom Limited v. F.O.P. and others PLD 2011 SC 44 ref.

Haji Abdul Karim v Florida Builders Private Limited PLD 2012 SC 247; Muhammad Ashraf v. Mst.Rashida Bibi 2006 YLR 1626 and Meran v. Ghulam Hussain PLD 1985 Kar. 674 rel.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Limitation---Limitation period for a suit for specific performance of contract was three years from the date fixed for the performance and if no such date was fixed, when the plaintiff had notice that performance had been refused.

Muhammad Munir Paracha and Nauman Munir Paracha for Appellant.

Muhammad Ilyas Sheikh and Hafeez-ur-Rehman for Respondents.

Date of hearing: 6th January, 2016.

2016 C L C 1293

[Islamabad]

Before Shaukat Aziz Siddiqui, and Mohsin Akhtar Kayani, JJ

ABDUL LATIF----Appellant

Versus

BIWI JAN alias BIBI JAN and another----Respondents

R.F.A. No.89 of 2013, heard on 15th February, 2016.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.117, 120 & 129(g)---Suit for possession, declaration and injunction---Beneficiary of document---Onus to prove---Withholding of evidence---Plaintiff claimed that she was owner of plot in question and alleged that transfer application and proceedings before Capital Development Authority in her name were fraudulent proceedings in favour of defendant---Suit filed by plaintiff was decreed in her favour by Trial Court---Validity---Discrepancies and material contradictions present on record proved that beneficiary i.e. defendant did not discharge onus rather he failed to prove due transfer of suit plot in his favour---Defendant withheld independent evidence to prove his claim and made no efforts to produce or call any evidence from Capital Development Authority officials in his favour---Defendant had to discharge onus under Art.117 of Qanun-e-Shahadat, 1984, as beneficiary of transaction of document was obliged / duty bound to prove the same---Trial Court had rightly passed judgment and decree in favour of plaintiff and rightly declared that entire transfer was result of fraud---Appeal was dismissed in circumstances.

Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commissioner 2015 SCMR 397; Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241 and Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 ref.

2015 SCMR 1 rel.

Muhammad Ishtiaq Ahmad Raja for Appellant.

Ch. Muhammad Ali Imran for Respondent No.1.

Mustasim Toor for Respondent No.2.

Date of hearing: 15th February, 2016.

2016 C L C 1304

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

GUJRANWALA ENERGY LIMITED-----Petitioner

Versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY (NEPRA)----Respondent

Writ Petition No.2817 of 2014, decided on 18th April, 2016.

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

----Ss. 15 & 28---Generation license---Suspension and revocation---Annual generation license fee---Petitioner company was granted generation license but it failed to fulfill the requirements of the agreement, thus did not generate electricity---Authorities issued notice to petitioner for recovery of annual generation license fee---Validity---When name of petitioner company was withdrawn from the list of projects, it was not possible for them to continue their business and make payment towards license fee---Imposition of fine was to be assessed, if they would have continued their operation or construction---Action initiated by authorities against petitioner was contrary to law and legal aspect with regard to invoke S.28 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 was grossly ignored by the Authority---Initiation of proceedings and onward superstructure built on passing any other orders including review was uncalled for and not sustainable under law---National Electric Power Regulatory Authority should have considered for invoking S.28 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 thereby revocation order suspending license should have been passed in view of prevailing circumstances as pointed out by petitioner company in its letters communicated time to time and responding notices and other proceedings initiated---Constitutional petition was allowed in circumstances.

Saifullah v. Federation of Pakistan 2015 PLC (C.S.) 1304; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 105; Hafiz Hamdullah v. Saif Ullah Khan and others PLD 2007 SC 52; Muhammad Nadeem Arif v. Inspector General of Police Punjab, Lahore 2010 PLC 924; Faiz Sons v. Hakim son (IMPEX) Private Ltd. 1999 SCMR 2771 and Mian Hakimullah and others v. Additional District Judge 1993 SCMR 907 ref.

Jawad Hassan, Muhammad Hamza, Umair Saleem and Omer Malik for Petitioner.

Barrister Asghar Khan, Muhammad Irfan ul Haq and Faisal Atta for Respondent.

Miss Nadia Nabi Legal Advisor NEPRA.

Date of hearing: 7th April, 2016.

2016 C L C 1316

[Islamabad]

Before Miangul Hassan Aurangzeb, J

APEX CONSULTING PAKISTAN through Mudabbir Haneef and another----Petitioners

Versus

TANVEER HUSSAIN----Respondent

C.R. No.81 of 2016, decided on 24th February, 2016.

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

----O. VII, Rr. 1 & 11---Rejection of plaint---Scope---Deficiencies in the plaint---Rectification of---Defendants moved application that plaint did not disclose cause of action and same should be rejected---Trial Court dismissed the said application and directed the plaintiff to submit amended plaint---Validity---Provisions of O.VII, R.1, C. P. C. were procedural in nature which would not cause rejection of plaint if they were not complied with unless a party despite having been given opportunity to rectify the deficiency failed to do so or no triable issue was made out in the plaint---Plaintiff should be given an opportunity to cure the defect by supplying the omission---Failure to comply with O.VII, R.1, C.P.C would not render suit invalid---If such deficiency was not cured then court could reject the plaint---Suit filed by the plaintiff was fairly detailed and contained particulars as to the breach of contract alleged to have been committed by the defendants---Plaintiff had disclosed cause of action to institute the suit against the defendants---No prejudice had been caused to the defendants by the impugned order---If valuation of suit had been omitted from the suit then it might be permitted to be inserted by an amendment---Defendants would have a full chance to condescend to the particulars contained in the amended plaint by filing an amended written statement---Mixed questions of law and facts required evidence to resolve the said questions---Trial Court had required rectification from the plaintiff by filing an amended plaint---No jurisdictional error or infirmity had been pointed out in the impugned order passed by the Trial Court---Revision was dismissed in circumstances.

Ramprasad Chimanla v. Hazarimull Lalchand AIR 1931 Calcutta 458 and Muhammad Yasin Khan and 4 others v. Azad Government of Jammu and Kashmir through Chief Secretary and 3 others 1991 MLD 2295 distinguished.

Javaid Iqbal v. Abdul Aziz PLD 2006 SC 66; Gulistan Textile Mills Limited v. Askari Bank Limited PLD 2013 Lah. 716; Abdul Qadir v. Sher Muhammad 2010 MLD 1596; Zakya Begum v. Mir Janat Shah 2012 YLR 1515; Abdul Waheed v. Ramzanu 2006 SCMR 489 and Javaid Iqbal v. Abdul Aziz PLD 2006 SC 66 rel.

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

----O. VII, R. 1---Particulars to be contained in the plaint---Provisions of O.VII, R.1, C. P. C---Scope---Provisions contained in O.VII, R.1, C.P.C. were directory and not mandatory in nature---Omission to comply with any of the said provisions would not render a suit invalid.

Malik Saleem Iqbal for Petitioners.

2016 C L C 1392

[Islamabad]

Before Aamer Farooq, J

SAUDI PAK INDUSTRIAL AND AGRICULTURAL INVESTMENT COMPANY LIMITED----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and 3 others----Respondents

Writ Petition No.97 of 2016, heard on 13th April, 2016.

Constitution of Pakistan---

----Arts. 170(2)---Audit by Auditor General for Pakistan---Petitioner company was a joint venture between a foreign country and Pakistan---Grievance of petitioner (company) was that it was not liable to be audited by Auditor General for Pakistan---Validity---Government of Pakistan held 500 shares of petitioner company, therefore, it could not claim complete exemption from conduct of audit by the Auditor General for Pakistan---Nature and extent of shareholding could determine nature and extent of audit to be conducted---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Azid Nafees for Petitioner.

Syed Hasnain Ibrahim Kazmi, DAG for respondents.

Date of hearing: 13th April, 2016.

2016 C L C 1425

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Ms. NAMOOS ZAHEER----Appellant

Versus

AZFAR HUSSAIN and another----Respondents

FAOs Nos.6 and 7 of 2016, decided on 3rd February, 2016.

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

----S. 20(c)---Term 'cause of action'---Connotation---Term 'cause of action' means every fact which, if traversed, would be necessary for plaintiff to prove in order to support his right to a judgment of Court---Cause of action is bundle of facts which are necessary for plaintiff to prove in order to succeed in suit.

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

----S. 13 & O.V11, R.10---Return of plaint---Territorial jurisdiction---Judgment of foreign jurisdiction---Defendants were residents of place "K" who were owners of a flat situated at place "L" in a foreign country---Plaintiff was tenant in that flat where both the parties had some dispute and appeared before a Court of competent jurisdiction and a judgment had already been passed by that Court of foreign jurisdiction---Plaintiff filed suit at place "I" seeking recovery of improvements carried out by her in the flat during the period it was in her possession as tenant---Plea raised by plaintiff was that cause of action had accrued to parties at place "I"---Suit filed by plaintiff was returned by Trial Court for filing the same before Court of competent jurisdiction---Validity---Plaintiff defended action brought by defendants against her before foreign Court at place "L" without making any objection to its jurisdiction---By doing so, plaintiff took a chance of an order in her favour but later on she could not take exception to jurisdiction when order of foreign Court had gone against her---Plaintiff could not assert that Civil Court at place "I" had jurisdiction over the matter which had been agitated by her in her counter claim before that foreign Court---Defendants resided way beyond the territorial jurisdiction of Trial Court at place "I" and provisions of O.VII, R.10, C.P.C. stood attracted in the matter---Trial Court, under O.VII, R.10, C.P.C. was obligated to return the plaint at any stage of the suit for presentation in the Court in which the suit should have been instituted---When Court lacked territorial jurisdiction, plaint had to be returned at the earliest---Trial Court could exercise such power suo motu and needed not wait for defendant to appear and file an application for return of plaint, which on the face of it was liable to be returned---Cause of action or any part of it did not arise within the jurisdiction of Civil Court at place "I"---High Court declined to interfere in the order passed by Trial Court as the same did not suffer from any legal infirmity---Appeal was dismissed in circumstances.

Dr. Atta Muhammad Panwar v. Faisal Mughal 2011 CLC 981; Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Munawar Ali Khan v. Marfani & Co. Ltd. PLD 2003 Kar. 382; Shaligram v. Daulat Ram AIR 1967 SC 739; Sheo Tahal Ram v. Binaek Shukul AIR 1931 All. 689; Fazal Ahmad v. Abdul Bari PLD 1952 Dhaka 155; Ghulam Ahmad v. Sarosh Rattani Wadia PLD 1959 W.P. Kar. 624 Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 (W.P.) Kar. 567; Karam Chand Leal and another v. Mehdi Hassan 1984 CLC 1941 and Pak Arab Nurseries v. Habib Bank Limited, 2005 CLC 1639 ref.

Aimal Khattak for Appellant.

2016 C L C 1451

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD RAFIQUE----Petitioner

Versus

FARIDA KHAN and others----Respondents

W.P. No.1050 of 2016, decided on 24th March, 2016.

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

----Ss. 23, 14, 17, 18 & 21---Eviction of tenant---Eviction order, execution of---Objection petition---Term "as if it was a decree of a civil court" in S.23, Islamabad Rent Restriction Ordinance, 2001---Nature---Plea of agreement to sell---Effect---Tenant got recorded his statement that he would vacate the rented premises within a specified period and would hand over the possession of the same to the landlord and eviction petition was disposed of---Execution proceedings were instituted by the landlord wherein objection petition was moved on the ground that landlord had sold the rented premises through agreement to sell---Objection petition was dismissed by the Rent Controller and warrant of possession was issued---Validity---Term "as if it was a decree of a civil court" in S.23 of the Ordinance was in nature of deeming clause---Rent Controller, in execution proceedings, had to treat every order made under Ss.14, 17, 18 & 21 of Islamabad Rent Restriction Ordinance, 2001 as a decree of a civil court---Provisions of Islamabad Rent Restriction Ordinance, 2001 did not obligate the Rent Controller to pass a decree while deciding an eviction petition---Absence of a decree did not make the execution proceedings before the Rent Controller coram non judice or of no legal effect---Landlord would continue to enjoy the status of being the owner of rented premises until and unless applicant was able to establish his claim for specific performance of agreement to sell by a court of competent jurisdiction---Pendency of a civil suit did not give license to the tenant to remain in occupation on the rented premises---Mere pendency of a suit for declaration or specific performance of an agreement to sell was no ground to avoid eviction of tenant who claimed to have purchased the rented premises---Eviction proceedings could not be stayed or stalled on the plea that tenant in possession was holding an agreement to sell---Eviction order had attained finality and tenant could not get out of it by either asserting that he had become the owner of the rented premises or by asserting that no decree had been passed against him---Tenant was estopped by his conduct to take a contradictory stance to prolong his occupation---Constitutional petition was dismissed in limine.

Arif Hayat v. Sher Muhammad 2015 CLC 1383 distinguished.

Iqbal v. Rabia Bibi PLD 1991 SC 242; Jumma Khan v. Zarin Khan PLD 1999 SC 1101; Barkat Masih v. Manzoor Ahmad 2006 SCMR 1068; Abdul Rasheed v. Maqbool Ahmed, 2011 SCMR 320; Gohar Ali Shah v. Shahzada Alam 2000 MLD 82; Muhammad Akmal v. Faisal Saeed Mirza 2004 CLC 862; Muhammad Parvez v. Additional Rent Controller, Lahore 2013 YLR 1881 and Refhat Hamidee v. Abdul Aziz 2013 YLR 1898 rel.

Sajjad Haider Malik for Petitioner.

2016 C L C 1527

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD NASEER----Petitioner

Versus

KHALIL-UR-REHMAN and others----Respondents

W.P.No.163 of 2016, decided on 18th April, 2016.

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

----S. 12---Limitation Act (IX of 1908), S.3 & Art.113---Civil Procedure Code (V of 1908), O.VII, Rr.11 & 6---Suit for specific performance of agreement to sell---Fresh suit on the basis of same cause of action---Limitation---Grounds of exemption from limitation law---Scope---Suit for specific performance of agreement to sell was dismissed for non-prosecution and second suit was instituted on the basis of same cause of action---Defendant moved application for rejection of plaint which was dismissed by the Trial Court but Appellate Court rejected the plaint---Validity---When fresh suit was instituted on the basis of same cause of action, period of limitation was to be calculated from the date referred in the plaint---Present suit was time barred for 33 days---Plaintiff was bound to state reasons of filing the suit after the period of limitation in the body of plaint---Plaintiff had not referred any ground for exemption from limitation---Courts were bound to act suo motu and dismiss the suit when same was beyond the period of limitation---Question of limitation could not be considered a "technicality" which had its own significance---Revisional Court had rightly rejected the plaint being time barred---Constitutional petition was dismissed in circumstances.

1989 SCMR 58; 1991 SCMR 205; 1991 SCMR 207; PLD 1984 289; 2002 SCMR 361; 2008 CLC 1570; 2010 MLD 68; 2008 SCMR 284 and PLD 1974 SC 139 ref.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Haji Abdul Karim and others v. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; 1994 SCMR 826; 1995 SCMR 459 and Muhammad Islam v. Inspector General of Police, Islamabad and others 2011 SCMR 8 rel.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Limitation---Suit for specific performance of contract could be filed within three years.

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

----S. 3---Dismissal of suit instituted after period of limitation---Suit filed after the period of limitation should be dismissed.

(d) Limitation---

----Question of limitation was a mixed question of law and fact and same could be adjudicated upon after recording of evidence.

Syed Wusat-u-Hassan Shah for Petitioner.

Gul Hussain Jadoon for Respondent No.1.

2016 C L C 1677

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ATLAS CABLES (PVT.) LIMITED----Appellant

Versus

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

R.S.A. No.2 of 2016, decided on 16th May, 2016.

(a) Contract---

----Force majeure, doctrine of--- Applicability---Force majeure refers to legal or physical prevention and not economic activity which is not profitable---Change in economic or market circumstances, affecting profitability of a contract or the ease in which parties' obligation can be performed is not regarded as being a force majeure event.

Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition; Halsbury's Laws of England, 4th Edition, Volume 51; Dhanrajamal Gobindram v. Shamji Kalidas AIR 1961 SC 1285; M/s. Alopi Parshad v. Union of India AIR 1980 SC 588; Brauer & Co. (Great Britain), Ltd. v. James Clark (Brush Materials), Ltd. [1952] 2 All ER 497 and Thames Valley Power Ltd. v. Total Gas and Power Ltd. [2006] 1 Lloyd's Rep. 441 rel.

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

----S. 126---Contract of guarantee or surety---Scope---Guarantee, genesis of---Guarantee envisages two contracts, one between principal debtor and creditor and second between creditor and surety---Guarantee has its genesis in underlying contract between principal debtor and the creditor--Irrevocable and unconditional bank guarantees are normally couched in a language whereby bank undertakes to give money to the beneficiary on demand without demur or protest---If a bank guarantee is unconditional stipulating that the bank should pay, on demand, without demur and that the beneficiary is the sole judge not only on the question of breach of contract but with respect to the amount or loss or damage, the obligation of the bank has to be discharged in the manner provided in the bank guarantee---When such demand is made, the bank is not permitted to probe into the disputes between the parties---Court should not interfere directly or indirectly to withhold payment, otherwise trust in commerce internal and international may be irreparably damaged.

Haral Textiles Milited v. Banque lndosuez Belgium, S.A. 1999 SCMR 591; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 and Standard Construction Company (Pvt.) Limited v. Pakistan, through Secretary M/o Communications and others 2010 SCMR 524 rel.

(c) Contract---

----Construction of contract---Principle---First rule of construction of a contract or a document is to ascertain intention of parties to it.

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

----S. 74---Liquidated damages and penalty---Distinction---Liquidated damages are recognized as a genuine pre-estimate of losses suffered due to another party's breach of contract, whereas penalty is a sum of money so stipulated in terrorem so as to drive a party to fulfill a contract.

Muhammad Karimuddin v. Kanza Food Industries Ltd. 1989 MLD 3900 rel.

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

----Ss. 42 & 54---Contract Act (IX of 1872), Ss. 73, 74 & 126---Suit for declaration and injunction---Performance bonds, encashment of---Liquidated damages and penalty---Recovery---Plaintiff company entered into a contract of supply and the Bank issued performance bonds in support of plaintiff---Due to change in market situation, plaintiff failed to supply goods as per contract, therefore, defendant sought encashment of performance bonds and also sought recovery of damages as well as liquidated damages---Suit and appeal filed by plaintiff company were concurrently dismissed by Trial Court and Lower Appellate Court---Validity---Damages had to be first pleaded and thereafter proved by leading trustworthy and cogent evidence---Damages required evidence regarding details of losses actually suffered and liquidated damages, as a rule, required positive evidence to show actual loss suffered by party claiming the damages---Even fixed amount stipulated in contract as liquidated damages could not be recovered if quantum of actual loss suffered was not proved through sufficient evidence---Defendant did not plead or prove any loss caused by breach of contract by plaintiff, therefore, it could not encash performance bond which was furnished to compensate defendant for the losses it was to suffer on account of such breach---Defendant was not entitled to invoke provisions of performance bond or encash the same unless it was established through adjudicatory process that plaintiff committed default of the provisions of purchase orders and as a result of the default defendant suffered damages---Once such default on the part of plaintiff and loss suffered by defendant as a result of such default was proved, performance bonds could have been encashed to the extent of such loss---High Court set aside judgments and decrees passed by two Courts below and suit was partially decreed in favour of plaintiff---Second appeal was allowed accordingly.

Jamia Industries Ltd. v. Pakistan Refinery Ltd. PLD 1976 Kar. 644; Pakistan Engineering Consultants v. PIA Corporation 1993 CLC 1926; Pakistan Engineering Consultants v. P.I.A. Corporation 1989 SCMR 379; Zeenat Brother (Pvt.) Ltd. v. Aiwan-e-Iqbal Authority PLD 1987 Kar. 183; China International Water and Electric Corporation v. WAPDA 2001 YLR 2191; Mehboob Enterprises v. Karachi Development Authority 1997 MLD 3085; Mercury Corporation v. Pakistan Steel Mills Corporation (Private). Ltd. 2000 YLR 734; Messrs A.Z. Company, Karachi v. Government of Pakistan and another PLD 1973 SC 311; Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431; Muhammad Farooq Azam v. Bank Al-Falah Limited 2015 CLD 1439; Bhai Panna Singh and others v. Bhai Arjun Singh and others AIR 1929 Privy Council 179; Saudi-Pakistan Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan PLD 2003 SC 215; Messrs Khanzada Muhammad Abdul Haq Khan Khattak and Co. v. WAPDA through Chairman WAPDA, and another 1991 SCMR 1436; Industrial Development Bank of Pakistan v. Messrs Baloch Engineering Industry (Pvt.) Ltd. 2010 CLD 591; Messrs United Bank Limited v. Messrs M. Esmail and Company (Pvt.) Limited 2006 CLD 394; Allied Bank of Pakistan Limited, Faisalabad v. Messrs Asisha Garments 2001 MLD 1955; National Development Finance Corporation v. Moona Liza Fruit Juices Limited 1999 YLR 500 and Messrs HITEC Metal Plast (Pvt.) Ltd. v. Habib Bank Limited PLD 1997 Quetta 87 ref.

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

----Arts. 117 & 120---Damages---Onus to prove---Scope---Burden to prove actual loss is on the party who claims damages or compensation, even in the cases of liquidated damages.

Rashid Hanif for Appellant.

Muhammad Khalid Zaman for Respondent No.1.

Dates of hearing: 1st, 2nd, 18th, 22nd and 24th March, 2016.

2016 C L C 1732

[Islamabad]

Before Mohsin Akhtar Kayani, J

WAHEED AHMED and others----Petitioners

Versus

BABAR KHAN and others----Respondents

W.P.No.801 of 2016, decided on 26th April, 2016.

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

----S. 17---Eviction petition---Ejectment of tenant due to structural change in demised premises---Word "impair materially the value or utility of the building" in S.17, Islamabad Rent Restriction Ordinance, 2001---Scope---Ejectment petition was accepted due to structural change by the tenants in the demised premises---Validity---Changes had been made in the demised premises by removing the central wall---Tenants had not given any explanation in favour of structural change in their pleadings---Evasive denial of material question had been taken by the tenants which would amount to admission on their part---Both the courts below had rightly decided the eviction of tenant---Constitutional petition was dismissed in circumstances.

2015 YLR 500; 2011 MLD 373; PLJ 2009 Lahore 671 and 2015 YLR 2290; Intezar Ahmed Khan v. Mst. Khatoon Hadi and another 1995 SCMR 194; Haji Sh.Fazal Elahi v. Sh.Muhammad Ayub and others 1982 SCMR 8; Messrs Organon Pakistan (Pvt.) Ltd. v. Rafat Ali Khan 1999 SCMR 54; Om Prakash v. Amar Singh and another AIR 1987 SC 617; Pratap Narain and another v. District Judge, Azamgarh AIR 1996 SC 111; 1989 CLC 604; Syed Qudrat Ali v. Mst.Maqbool Fatima and 3 others 1989 CLC 599; 1989 CLC 757, Badiul Hasan v. Munawwar Hussain 1985 MLD 1530; 2012 SCMR 954 and 2013 CLC 963 ref.

Hafiz Muhammad Ishaq v. Ch. Muhammad Siddique 1995 SCMR 730; Abdul Rehman and another v. Zia ul Haq Makhdoom and others 2012 SCMR 954; and Shajar Islam v. Muhammad Sddique and 2 others PLD 2007 SC 45 rel.

(b) Words and phrases---

----'Alteration'---Meaning.

Black's Law Dictionary rel.

(c) Words and phrases---

----'Material alteration'---Meaning .

Black's Law Dictionary rel.

(d) Words and phrases---

----'Structural alteration'---Meaning.

Black's Law Dictionary rel.

Sajeel Sheryar Sawati for Petitioners.

Qamar ul Haq Khan Niazi and Jameel Hussain Qureshi for Respondent No.1.

Date of hearing: 18th April, 2016.

2016 C L C 1757

[Islamabad]

Before Aamer Farooq, J

NATIONAL HIGHWAY AUTHORITY through Director (Legal)----Appellant

Versus

LILLEY INTERNATIONAL (PRIVATE) LIMITED and another----Respondents

F.A.O. No.14 of 2015, decided on 12th August, 2015.

Arbitration Act (X of 1940)---

----Ss. 30, 33 & Preamble----Bar to suits contesting arbitration agreement or award---Effect of legal proceedings on arbitration---Arbitration proceedings--- Limitation--- Objection as to limitation/ maintainability not raised before Arbitrator---Effect---Powers of Arbitrator---Scope---'Misconduct' on part of Arbitrator---Scope---Notice of arbitration award not given to all parties by Arbitrator---Effect---Powers of civil court while hearing objections to award---Scope---Respondent/National Highway Authority (NHA) awarded contract to the respondent-Company for construction of a project, however, later on, the Company also claimed compensation for the work not included in the original contract, which was declined by the Authority---Arbitrator allowed the claim of the Company and passed an award for payment of certain amount to the Company, and the civil court, after entertaining objection from the Authority made said award a rule of court---Validity---Civil court hearing objections to the award under Ss.30 & 33 of Arbitration Act, 1940, not being court of appeal, was not to appraise the entire case, but the court had to confine itself to the grounds mentioned in Ss.30 & 33 of the Act---Contention that the Arbitrator had not given any finding on the question of limitation was not factually correct as the parties had agreed to resolve the dispute through arbitration and by mutual consent had appointed the respondent as sole Arbitrator; therefore, all previous discussions/ meetings had come to an end---Respondent had not raised the question of limitation in its reply before the Arbitrator and raised the same for the first time in the supplementary affidavit in evidence---Question of limitation, even if the same was not properly appreciated by the court or the authority which passed an order, did not render the decree or an award a nullity---Objection as to limitation should have been taken before the Arbitrator in clear terms---Award could not be considered to be a nullity in the eye of law, even if the claim was barred by time---Respondent had not raised the issue of maintainability of arbitration in its reply to the claim of the Company---Contention that the proceedings before the Arbitrator were not maintainable as no appeal had been filed against the decision of Dispute Resolution Committee had no substance, as both the parties had submitted to the jurisdiction of the Arbitrator and contested the matter on merits---Technicalities could not defeat the chosen forum of the parties---Object of Arbitration Act, 1940 was that when the parties to a contract decided to get their dispute settled by an Arbitrator, the decision of the Arbitrator should have been considered to be final---Party, participating in arbitration proceedings without protest, could not question the jurisdiction of the Arbitrator when award had been given against that party---Arbitrator was not obliged to give reasons for his decision, and even if giving of reasons was held to be obligatory, that was not obligatory for the Arbitrator to give detailed judgment---Arbitrator was the final judge of fact and the court was bound by the Arbitrator's findings of fact and could not review the same, unless the same were not supported by evidence---Coming to an erroneous decision was not 'misconduct' in terms of Ss.30 & 33 of the Act---Error or infirmity in the award should have been floated on the face of it---Arbitrator, in the present case, while passing the award, had addressed all legal and factual issues, and no error was floating on the surface which could show that the award was suffering from any apparent legal infirmity or that the proceedings by the Arbitrator had been conducted in the manner which amounted to misconduct---Failure to give notice of the award to the respondents did not nullify or vitiate the award---Appeal was dismissed in circumstances.

A. Qutubuddin Khan v. CHEC Millwala Dredging Co. (Pvt.) Limited 2014 SCMR 1268 and Premier Insurance Company v. Attock Textile Mills Limited PLD 2006 Lah. 534 distinguished.

PLD 1998 Lah. 132; PLD 1996 SC 108; PLD 2006 SC 169; 2001 CLC 289 and PLD 1996 SC 108 ref.

2002 CLC 353; PLD 2011 SC 506; PLD 2002 Kar. 427; Kashmir Corporation Limited v. Pakistan International Airlines PLD 1995 Kar. 301; Union of India v. M/s Sohan Singh & Co. AIR 1989 J&K 14; Andison Co-operative Industries Ltd. v. Ch. Nazir Ahmad Cheema and 2 others 1970 SCMR 531; Gujrat W.S.& S.B. v. Unique Erectors (Gujrat) (P) Ltd. AIR 1989 SC 973; Executive Engineer, Puri R.&B. Divn. v. G.C. Kanugo AIR 1990 Orissa 211; Delhi Development Authority, New Delhi v. M/s Alkaram, New Delhi AIR 1982 Delhi 365; Pakistan Steel Mills Corporation, Karachi v. M/s Mustafa Sons (Pvt.) Limited, Karachi PLD 2003 SC 301; Food Corporation of India v. Joginderpal Mohinderpal AIR 1989 SC 1263 and Superintending Engineer, Somasila Project v. R. Ramana Reddy AIR 1990 Andhra Pradesh 283 rel.

Rehan Seerat and Barrister Bilal Akbar Tarrar for Appellant.

Barrister Babar Ali Khan for Respondents.

Date of hearing: 15th June, 2015.

2016 C L C 1772

[Islamabad]

Before Miangul Hassan Aurangzeb, J

BNP (PVT.) LIMITED----Appellant

Versus

COLLIER INTERNATIONAL PAKISTAN (PVT.) LIMITED----Respondent

F.A.O. No.29 of 2016, decided on 28th June, 2016.

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

----Ss. 34, 8 & 20---Suit for recovery of money and damages---Stay of proceedings---Effect---Arbitration clause in agreement for resolution of dispute---Defendant on the first available opportunity filed application to stay the proceedings and to refer the matter to arbitrator---Trial Court allowed the application filed by defendant and stayed the proceedings in suit for recovery of damages---Plea raised by plaintiff was that application was filed by defendant after many adjournments-- Validity---Once the Court would stay proceedings in suit, the parties were left whether to institute arbitration proceedings with intervention of Court (under S.20 of Arbitration Act, 1940), or without intervention of Court (under Chap.II of Arbitration Act, 1940)---Where parties to the suit, who were also parties to arbitration agreement executed prior to institution of suit, jointly applied for matters in dispute between such parties to be referred to arbitration, the Court could treat such application as an application under S.20 of Arbitration Act, 1940, and could refer the disputes to arbitration---Adjournment granted in routine by Trial Court was not inductive of defendant's conduct to abdicate his claim to have disputes raised in the suit to be decided in accordance with arbitration clause in the agreement---Single adjournment granted by Court in routine, requiring defendant to file a power of attorney and written statement could not be termed as 'a step in the proceedings'---Date on which the order was passed was the first date on which representative of defendant had tendered appearance in Court---Conduct of the defendant, in order to be termed as 'a step in the proceedings' must be such as would manifestly have displayed an unequivocal intention to proceed with the suit and gave up the right to have the matter disposed of by arbitration---Trial Court not only stayed proceedings in civil suit but had also directed plaintiff to invoke arbitration clause in agreement for resolution of dispute---Trial Court could not have given such direction and it was against the law---High Court partially set aside the order passed by Trial Court only to the extent of direction given to plaintiff to invoke arbitration clause---Appeal was allowed accordingly.

The Hub Power Company Limited (HUBCO) v. Pakistan WAPDA through Chairman PLD 2000 SC 841; Government of N.-W.F.P. v. The Devlikund Forest and Multipurposes Cooperative Society Limited through Managing Director 1994 SCMR 1829; M/s Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar & Company Limited 1993 SCMR 866; Eckhartd & Company v. Muhammad Hanif PLD 1993 SC 42; Uzin Export Import Foreign Trade Co. v. Macdonald Layton & Co. Ltd. Karachi 1996 SCMR 690; Island Textile Mills Ltd. v. V/O Technoexport and another 1986 SCMR 463; Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Ltd. 1981 SCMR 129; Muhammad Yousuf Burney v. S. Muhammad Ali 1983 CLC 1498; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350; Farid Virani and another v. Feroz Virani PLD 2013 Sindh 386; Trading Corporation of Pakistan (Pvt.) Ltd. Karachi v. Messrs Abdullah Sugar Mills Limited (Depalpur) PLD 2013 Sindh 254 and Nelofar Saqib v. Saiban Builders and Developers 2011 CLC 157 distinguished.

Dar Okaz Printing and Publishing v. Printing Corporation of Pakistan PLD 2003 SC 808; Yusuf Muhammad Siddiq v. Muhammad Rafique PLD 2015 Sindh 319; Serulean (Pvt.) Ltd Karachi v. Bhoja Airlines (Pvt.) Ltd. 2001 YLR 3150; Hamad Raza v. Sajid Hussain 2014 CLC 1057; Province of Punjab v. Ehsan Fazal & Company, Lahore 1986 CLC 2800; Island Textile Limited v. V/O TECHNOEXRERT 1979 CLC 307; Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Limited 1981 SCMR 129; Syed Ghaus Mohyuddin v. National Refinery Limited PLD 1968 Kar. 652; Government of Sindh v. Tousif Ali Khan 2003 CLC 180; Syed Mudassar Shah v. Managing Director N.-W.F.P. Forest Development Corporation 1999 MLD 736; Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak AIR 1962 SC 406; Swiss Timing Limited v. Commonwealth Games 2010 Organising Committee 2014 (6) SCC 677; Messrs S.M. Qasim & Co. v. Messrs Ch. Azimuddin PLD 1962 Lah. 95; Pakistan International Airlines Corporation v. M/s Pak Saaf Dry Cleaners PLD 1981 SC 553; M/s. Associates Construction Limited v. WAPDA 1989 MLD 206; Infospan (Private) Limited v. M/s Telecom foundation and another F.A.O. No.59 of 2013; Rachappa Guruadappa Bijapur v. Gurusiddappa Nuraniappa and others AIR 1989 SC 635; Mst. Surriya Rehman v. Siemens Pakistan Engineering Company Limited PLD 2011 Kar. 571 and Aswan Tentage and Canvas Mills Ltd. Lahore v. M.A. Razzak & Company 1993 MLD 243 ref.

(b) Arbitration---

----Termination of contract---Effect---Arbitration clause in contract continues to exist even after termination of contract---If main contract is repudiated or frustrated or cancelled or expired, the arbitration clause survives---Mere repudiation, frustration, cancellation or expiration of the contract does not give rise to putting an end to arbitration clause.

Heyman and another v. Darwins Ltd. [1942] 1 All ER 337; Firm Karam Narain Daulat Ram and another v. Messrs Volkart Bros. and another AIR 1946 Lah. 116; Radhakishin C. Chawla v. General Construction Co. AIR 1947 Sindh 57; Hoosen Brothers Ltd v. Pakistan Textile Mills Ltd. PLD 1954 Sind 1; Raja Muhammad Sarwar Khan v. The Federation of Pakistan PLD 1958 Kar. 224; The Pan Islamic Steamship Co. Ltd. v. Messrs General Imports and Exports Ltd. PLD 1959 Kar. 750; Hyderabad Municipal Corporation v. Messrs Columbia Enterprises 1990 CLC 47; Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pakistan) Ltd. and others PLD 1990 SC 48; Bharat Petroleum Corpn. Ltd. v. Great Eastern Shipping Co. Ltd. AIR 2008 SC 357 and Pakistan Mobile Communication v. Naimatullah Achakzai 2012 CLC 12 rel.

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

----S. 34---Stay of proceedings---Fraud and forgery---Mere allegation of fraud/forgery in a civil suit against defendant cannot by itself be a ground for refusing a stay the proceedings in suit.

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

----S. 34---Stay of proceedings---Criminal proceedings---Mere pendency of criminal proceedings against defendant by itself cannot be a ground on which proceedings in the suit can be stayed under S.34 of Arbitration Act, 1940.

Ali Nawaz Kharal for Appellant.

Ch. Hassan Murtaza and Barrister Sheryar Swati for Respondent.

Date of hearing: 20th June, 2016.

2016 C L C 1805

[Islamabad]

Before Athar Minallah, J

HIGH FLYING SOLAR DEVELOPMENT PAKISTAN LTD. and others----Petitioners

Versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY and others----Respondents

Writ Petitions Nos.4178 and 4179 of 2015, heard on 22nd June, 2016.

(a) Natural justice, principles of---

----Audi alteram partem, doctrine of---Applicability---Determining factors---Principles of natural justice are flexible and not rigid and determination of application of these principles depends on circumstances of each case---Various factors may be taken into consideration for such purpose, such as the nature of inquiry, the subject matter being dealt with, whether anything unfair can be inferred if opportunity is not afforded, whether there is no apprehension of injustice etc.---Depending on facts and circumstances of each case, it would be sufficient if 'elementary and essential principles of fairness' have been fulfilled---In a given situation, it may be sufficient if person affected has been made aware of the nature of allegations, has been afforded a fair and reasonable opportunity to defend allegations and to controvert any statement made against him or her---It would not be mandatory in every case to examine witnesses in presence of person against whom allegations have been made, or to afford him or her an opportunity for cross examination---If a person who has been afforded a fair opportunity, which satisfies the requirements of elementary and essential principles of fairness, does not appear or fails to avail opportunity or is otherwise defiant, then he or she may not be able to raise a grievance relating to violation of principles of natural justice, as they would have no application in the given circumstances---In the exceptional cases application of doctrine of 'audi alteram partem' may even be excluded.

The University of Dacca through its Vice Chancellor and another v. Zakir Ahmed PLD 1965 SC 90 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.

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

----Ss.6 & 7---National Electric Power Regulatory Authority Upfront (Approval and Procedure) Regulations, 2011, Regln.4(8)---Power Generation Policy, 2006---Constitution of Pakistan, Art.10-A---Audi alteram partem, doctrine of---Petitioners were power generation companies and were aggrieved of dismissal of their applications regarding determination of electricity tariff by authorities---Validity---Proceedings before National Electric Power Regulatory Authority must reflect its independence and autonomy which included ensuring transparent proceedings and affording opportunity of meaningful hearings to stakeholders before passing an order, determination or decision---National Electric Power Regulatory Authority was to strictly follow and implement regulations of National Electric Power Regulatory Authority Upfront (Approval and Procedure) Regulations, 2011, particularly Regln.4(8) thereof---High Court declared rejection of applications without affording an opportunity of hearing or recording of reasons reflecting substance of arguments advanced before National Electric Power Regulatory Authority was ultra vires the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, read with National Electric Power Regulatory Authority Upfront (Approval and Procedure) Regulations, 2011, in violation of fundamental right of due process guaranteed under Art.10-A of the Constitution and the same was without lawful authority and jurisdiction---High Court set aside the order passed by authorities and remanded the matter to authorities for decision on application afresh---Constitutional petition was allowed accordingly.

Muhammad Yasin v. FOP through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Flying Board and Paper Products Ltd. v. Government of Pakistan and others 2010 SCMR 517; Lahore Development Authority through D.G. and others v. Ms Imran Tiwana and others 2015 SCMR 1739; In Re: Poyser and Mills Arbitration [1964] 2 Q.B 467 and Maqbool Ahmed and others v. District Officer (R) and others PLD 2010 Lah. 332 ref.

Feisal Hussain Naqvi and Hassan Murtaza Mann for Petitioners.

Barrister Asghar and Faisal Atta and Ajmal Ghaffar Toor for Respondent No.1.

Syed Ahmed Hassan Shah for Respondent No.2.

Sheikh Muhammad Ali and Munawar-us-Salam for Respondent No.3.

Raja Mehmood for Respondents Nos.6 and 7.

Rashid Hafeez, A.A.-G. Punjab, Afnan Karim Kundi, A.A.G., Malik Zahoor Awan, Standing Counsel, Ahmed Hussain Soomro, S.O. (Law), M/O Water and Power and Ms. Afifa Jabeen, Director Legal for Respondents Nos.6 and 7.

Date of hearing: 22nd June, 2016.

2016 C L C 1838

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD ANWAR----Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others----Respondents

Writ Petition No.3783 of 2015, decided on 20th June, 2016.

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

----S. 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Landlord had proved the grounds mentioned in the eviction petition---Tenant had failed to point out any legal or factual infirmity in the findings recorded by the courts below---Findings of facts rendered by the courts below could not be interfered with under Art.199 of the Constitution unless there was some illegality or jurisdictional error or findings were otherwise perverse---No such infirmity existed in the case---Constitutional petition was dismissed in circumstances.

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

----S. 17---Power of attorney---Registration of---Scope---Power of attorney in question had not conferred on the attorney any right, title or interest in the immovable property rather it was for the purpose to initiate legal proceedings or defend the same with regard to property in question---Such document was not compulsorily registerable.

Abdul Hai v. Muhammad Salahuddin PLD 1967 Kar. 424; Mrs. Escolastica and 3 others v. Peter D'Souza and 2 others 1986 CLC 1472; Nawabzada Mir Balach Khan Marri through Attorney v. Appellate Election Tribunal, Balochistan through Registrar, Balochistan High Court and 2 others PLD 2003 Quetta 35; Sahibzada Anwar Hamid v. Messrs Topworth Investments (Macau) Ltd. through Chairman and 5 others 2003 YLR 2843; Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Khadim Mohy ud Din and Mrs. S. Mahmud v. Ch. Rehmat Ali Nagra and Mst. Aziz Begum PLD 1965 SC 459; Hameed Jilani Tiwana v. Abdul Aziz Ghafoor Khan and 2 others 2005 MLD 1232; Muhammad Yaqoob through legal heirs v. Sh. Muhammad Anwar through legal heirs PLD 2011 Lah. 446 and Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Findings of facts rendered by the courts below could not be interfered with under Art.199 of the Constitution unless there was illegality or jurisdictional error or such findings were otherwise perverse.

Ch. Abdur Rehman Bajwa for Petitioner.

Muhammad Wajid Hussain Mughal for Respondent No.2.

Date of hearing: 15th April, 2016.

2016 C L C 1905

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ATIQ-UR-REHMAN----Petitioner

Versus

NAJMA TABASSUM and others----Respondents

W.P. No.998 of 2016, decided on 19th April, 2016.

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

----S. 21(2)----Eviction petition---Interim order passed by Rent Controller---Tenant did not file written reply to the eviction petition and his right to submit the same was closed---Validity---Section 21(2) of Islamabad Rent Restriction Ordinance, 2001 expressly barred right of appeal against an interim order passed by the Rent Controller which could not be circumvented by challenging in constitutional jurisdiction of High Court---Party aggrieved by such an order had to wait until a final order was passed and then to challenge same before the District Judge---Interim order would merge into the final order which would be appealable under S.21(1) of Islamabad Rent Restriction Ordinance, 2001---Interim order could be challenged by invoking constitutional jurisdiction of High Court when it was without jurisdiction, mala fide, void or coram non judice---Impugned order was interlocutory in nature and it did not dispose of the entire---Said order by the Rent Controller being neither without jurisdiction nor mala fide, void or coram non judice, same could not be challenged by constitutional petition before the High Court---Rent Controller was directed by High Court to dispose of eviction petition expeditiously--- Constitutional petition was dismissed.

Muhammad Farooq v. Abdul Waheed Siddiqui and others 2014 SCMR 630; Shafi Muhammad v. Muzaffar-ud-Din 1990 SCMR 530; Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another PLD 1965 SC 459; Mst. Bashir Begum v. Syed Ijaz Hussain PLD 1995 Lah. 392 and Mian Sher Bahadur and another v. Civil Judge Takht Bhai and another 2003 YLR 1722 ref.

Saghir Ahmad Naqvi v. Province of Sindh 1996 SCMR 1168; Muhammad Taj v. Muhammad Younis Khilji and another 2008 CLC 1666; Jehangir Khan Jadoon v. Gul Nigar Manzoor 2008 CLC 547; Mian Sher Bahadur and 2 others v. Civil Judge Takht Bhai and another 2003 YLR 1722; Iqbal Ahmed v. Muhammad Nasir 2016 MLD 624; Abdul Farooque and another v. Maqsood Ahmed and another 2015 CLC 663; Abdul Majid Khan v. Rent Controller, Civil Judge, Gujranwala 1997 CLC 1822; Mahmood-ul-Hassan v. Special Judge Rent Tribunal, Lodhran 2010 CLC 1590; Muhammad Saghir Abbasi v. District Rent Controller 2015 MLD 417 and Barkat Ali v. Muhammad Ehsan 2000 SCMR 556 rel.

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

----S. 21(2)---Interim order passed by Rent Controller---Bar on appeal against such order---Purpose---Purpose behind barring an appeal against an interim order of Rent Controller was to avoid delay in disposal of the cases by the Rent Controller.

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

----S. 17---Provisions of Civil Procedure Code, 1908---Applicability---Provisions of C.P.C. were not strictly applicable to the proceedings under Islamabad Rent Restriction Ordinance, 2001 nevertheless Rent Controller had discretion to follow and apply provisions of C.P.C., if he deemed necessary especially in the absence of any provision in Islamabad Rent Restriction Ordinance, 2001 to the contrary.

Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422; Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33; Mrs. Sadiq v. Syed Intekhab Hyder Abedi 1983 CLC 1623; Abdur Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117 and Abdul Karim v. Muhammad Ismail and another PLD 1987 Lah. 298 rel.

Zahid Mehmood Raja for Petitioner.

Ch. Naeem Ali Gujjar for Respondent No.1.

2016 C L C 1

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs M.K. INTERNATIONAL, Local Agent of Messrs Interman Trading FZE----Petitioner

Versus

SUI SOUTHERN GAS COMPANY through M.D. and 2 others----Respondents

C.P. No.D-197 of 2015, decided on 6th February, 2015.

(a) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 3---Public Procurement Rules, 2004, R.18---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Public procurement---Black listing of a contractor---Question raised in the present constitutional petition was with regard to the dispute which would require factual enquiry---Procuring agency had authority to disqualify a supplier or a contractor if it had found at any time that the information submitted concerning his qualification as a supplier or a contractor was false and materially inaccurate and incomplete---Factual controversy could only be determined on the basis of evidence of the parties---High Court while exercising constitutional jurisdiction could not look and enter into such factual dispute---Petitioner was provided opportunity by the respondent before passing of the impugned order of black listing---Petitioner could not produce any proper authorization letter with regard to the tender in question---Public Procurement Rules, 2004 had provided a complete mechanism/remedy to an aggrieved person for redressal of grievance---Remedy provided in law could not be allowed to be abandoned or by-passed on mere whims and desire of an aggrieved party---Constitutional jurisdiction of High Court was not to be invoked in petty matters to burden Courts with disputed facts or examination of evidence for resolution of such controversy---Petitioner might seek appropriate alternate remedy as provided under the law and if limitation period for seeking such remedy had expired during pendency of these proceedings and recording of reasons then appropriate forum/authority might sympathetically consider the request for condoning such period---Constitutional petition was dismissed in circumstances.

Khalid Mahmood v. Collector of Customs 1999 SCMR 1881 and Messrs KSB Pumps Company Ltd. v. Government of Sindh and others 2011 MLD 1876 rel.

(b) Public Procurement Rules, 2004---

----R. 18---Black-listing of a contractor---Scope---Procuring agency had authority to disqualify a supplier or a contractor if it had found at any time that the information submitted concerning his qualification as a supplier or a contractor was false and materially inaccurate and incomplete.

Mrs. Haleema Khan for Petitioner.

Asim Iqbal and Farmanullah Khan for Respondent No.1.

Date of hearing: 6th February, 2015.

2016 C L C 25

[Sindh]

Before Aqeel Ahmed Abbasi, Syed Hassan Azhar Rizvi and Sadiq Hussain Bhatti, JJ

HIGH COURT BAR ASSOCIATION, HYDERABAD through President and another----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice and Human Rights Division and others----Respondents

Const. Petitions Nos.D-4430 and D-4629 of 2014, decided on 3rd August, 2015.

(a) Judicial Commission of Pakistan Rules, 2010---

----R. 6---Examination of judgments authored by nominee Additional Judges---"Final decision"---Principle---Constitution of one member Committee to examine such judgments by the Chairman (Chief Justice of Pakistan)---Opinion of such Committee was subject to further scrutiny by all the members of the Commission---Once the other member of Judicial Commission of Pakistan, after scrutiny, concurs with one member committee, then the same does not remain the opinion of one member committee and becomes final decision of Judicial Commission of Pakistan.

(b) Constitution of Pakistan---

----Arts. 175-A & 199---Constitutional petition---Appointment of Judges---Parliamentary Committee, role of---Petitioners were High Court Bar Associations and dispute pertained to non-confirmation of two Additional Judges of High Court---Petitioners assailed subsequent notification whereby earlier notification dated 26-4-2014 was withdrawn and confirmation of two judges was declined---Validity---Parliamentary Committee had no authority to consider or approve appointment, extension of tenure or confirmation of an Additional Judge at its own unless the name of such person was duly recommended by Judicial Commission of Pakistan for such purpose---Names of Judges in question were not approved for confirmation or extension by Judicial Commission of Pakistan, therefore, the decision taken by Parliamentary Committee in relation to said two Additional Judges, recommending extension of their tenure for one year to the President of Pakistan was ab initio without jurisdiction and of no legal effect---Notification No. F.6 (1)/2012.ALL, dated 26-4-2014 issued by Federal Government, giving effect to the decision of Parliamentary Committee, extending tenure of two Additional Judges for a period of one year, was without lawful authority---Earlier notification was validly and properly withdrawn by subsequent notification dated 26-4-2014---Decision of Judicial Commission of Pakistan, either unanimous or by majority of its members relating to evaluation of caliber, competence, legal acumen and overall suitability of a nominee for appointment as a Judge of a Constitutional Court was not justiciable by any forum, including High Court by invoking Art.199 of the Constitution---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Munir Hussain Bhatti and others v. Federation of Pakistan and another PLD 2011 SC 407; Sindh High Court Bar Association Sukkur through its President v. Pakistan through Secretary, Ministry of Law, Parliamentary Affairs, Government of Pakistan and another PLD 2012 Sindh 531; Federation of Pakistan v. Sindh Bar Association and another PLD 2012 SC 1067; Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Zafar Ali Shah's case PLD 2000 SC 869; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 and Mehram Ali's case PLD 1998 SC 1445 ref.

Zamir Hussain Ghumro along with Faizan Hussain and Malik Naeem Iqbal for Petitioner (in C.P.No.D-4629/2014).

Muharram G. Baloch, Z.K. Jatoi, Ch. Waseem Akhtar along with Mallag Dashti for the Petitioner (in C.P.No.D-4430/2014).

Salman Talibuddin, Additional Attorney General of Pakistan.

Saifullah, A.A.-G. along with Ms. Nasreen Sehto, State Counsel.

Date of hearing: 15th July, 2015.

2016 C L C 83

[Sindh]

Before Muhammad Ali Mazhar, J

SHAHZAD TRADE LINKS through Sole Proprietor and another----Plaintiffs

Versus

MTW PAK ASSEMBLING INDUSTRIES (PRIVATE) LIMITED through Representative and others----Defendants

Suit No.975 of 2015, decided on 18th September, 2015.

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

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Temporary injunction, grant of---Ingredients---If interim orders were to continue further, same would cause irreparable loss and injury to the defendants rather than the plaintiffs and balance of inconvenience was in favour of defendants---Contracts involving collection of monetary benefits having been obtained on specific monetary consideration could not involve irreparable loss---No injunction could be issued unless all ingredients i.e. prima facie case, balance of convenience and irreparable loss to the aggrieved party---Plaintiffs had failed to make out any case to have injunctive relief---Application for grant of injunction was dismissed in circumstances.

M/s. Maxim Advertising Company (Pvt.) Ltd. v. Province of Sindh and others 2007 MLD 2019 ref.

Nizam Hashwani v. Hashwani Hotels Limited and others 1999 CLC 1989 distinguished.

Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers' Housing Authority and others 2010 MLD 1267 rel.

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

----S. 21---Relief of specific performance---Grant of---Requirements---Specific performance was an equitable relief which would not be granted as a matter of course or as a matter of right but it would be discretion of court to be exercised on the basis of established and judicial principles and or consideration of circumstances of each case---Contract should be in existence to invoke the specific performance and enforcement of same should not be barred by Specific Relief Act, 1877---Act to be done should be with regard to trust and there should be no standard for ascertaining the actual damage caused and pecuniary compensation should not be adequate relief and court should deem it fit to exercise its discretion in favour of plaintiff.

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

----O. XXXIX, Rr. 1 & 2---"Irreparable loss"---Meaning---Irreparable loss would mean and imply such loss which was incapable of being calculated on yardstick of money.

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

----S. 182---"Agency"---Meaning and scope---Agency would be a relation between two parties created by agreement express or implied by which one of the parties confined to the other management of same business to be transacted in his name or his account and by which the other assumed to do the business and render an account for it---Contract of agency would include that agent had a power on behalf of principal to deal with the third person as to bind the principal that subject matter had been dealt with as proprietor of principal and not of the agent---Agent would act as an intermediary for consideration.

Yousuf Moulvi for Plaintiffs.

Behzad Haider for Defendants Nos.1 to 4 and 6.

Date of hearing: 15th September, 2015.

2016 C L C 120

[Sindh]

Before Nazar Akbar, J

Mrs. GHAZALA ARIF----Plaintiff

Versus

MUHAMMAD AFTAB----Defendant

Suit No.340 of 2008 and C.M.A. No.661 of 2007, decided on 27th February, 2015.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 14---Suit for specific performance of a contract---Temporary injunction, grant of---Contents of plaint confirmed that there was no written agreement of sale---Plaintiff entered into an agreement in writing to purchase school from a person who was a tenant of suit property---Agreement to purchase school was in writing but agreement to purchase suit property was not in writing---Plaintiff did not even disclose the name of witnesses, if any, before whom she entered into an oral agreement of sale---Plaintiff's possession of suit property cannot be termed as possession in terms of part performance of agreement to sell---Different receipts of payment cannot be termed as payment receipts as neither they are stamped nor witnessed by any one---Conduct of plaintiff in pursuing the case and perusal of documents depicted that plaintiff had no prima facie case---Held---Plaintiff's use of suit property commercially did not confer any ownership rights on her in suit property---Plaintiff could not be allowed to retain possession without equitable security provided to actual owner i.e. defendant who was deprived of his ownership right---Plaintiff in terms of O.XXXIX, R.2(2), C.P.C. was directed to deposit in court monthly amount as security to retain possession and also to deposit the balance of sale consideration---Application, disposed of accordingly.

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

----S. 13---Ejectment petition---Nature---Ejectment proceeding was independent to proceeding of a suit for specific performance of a contract of sale---Order passed in civil suit could not defeat the orders of ejectment passed by Rent Controller on the ground of pendency of civil suit.

Iftikhar Javed Qazi for Plaintiff.

Ayaz Ali for Defendant.

Date of hearing: 27th February, 2015.

2016 C L C 170

[Sindh]

Before Syed Hasan Azhar Rizvi and Shah Nawaz Tariq, JJ

MUHAMMAD RAFIQ SIA ----Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government, Karachi and

5 others----Respondents

C.M.As. Nos.31728, 18361 of 2014, 30920 and 27017 of 2013 in C.P. No.D-4201 of 2013, decided on 7th May, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Operating of hydrants of non-drinking water without licence---Demolition of water hydrants by the Water Board---Scope---Contention of petitioner was that he had not obtained any water from the line / source of respondent-Board---Validity---Petitioner was running his business of supply of non-drinking sub-soil/groundwater to the industries without obtaining any licence/permission---Division Bench of High Court had passed order directing the Water Board to dismantle/remove/demolish/disconnect all illegal/unauthorized hydrants in the city---Supreme Court had also directed to take action against illegal and unauthorized hydrants---Water Board had taken action against illegal hydrants and demolished/dismantled the petitioner's hydrant---No contempt or disobedience of the Court's order had been committed on the part of Water Board---Petitioner by misrepresentation and misleading the court had obtained restraining order---Water resources were to be protected from misuse and over exploitation---Once the process of extracting the water in such a huge quantity was allowed to operate then water deposits in the aquifer would diminish rapidly and same would adversely affect the rights of masses to use the underground water according to their genuine needs---Petitioner had no permission or licence for operating such hydrant---Constitutional petition was dismissed in circumstances.

Mehmood Ahmed Khan for the Petitioner.

Asadullah Lashari, State Counsel along with SI Azhar Iqbal, SHO Police Station Mithadar, Karachi.

Asadullah Memon for Respondents Nos.2 and 7.

Khawaja Shamsul Islam for Respondent No.3.

Syed Sultan Ahmed for the Respondent/KMC.

Date of hearing: 21st April, 2015.

2016 C L C 189

[Sindh]

Before Muhammad Junaid Ghaffar, J

Syed ALI ASGHAR SHAH----Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION through Managing

Director and others----Defendants

Suit No.158 of 2015, C.M.As. Nos.5144, 5145 of 2015 and 17544 of 2014 decided on 23rd April, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42, 54, 21 & 56 (f)---Suit for declaration and permanent injunction---Letter of intent---Temporary injunction, grant of---Scope---Plaintiff was required to establish some right in its favour for grant of an injunctive relief on the basis of an instrument, deed or even a letter of intent---Letter of intent had expired hence no further relief by way of an extension in contract period could be granted---Plaintiff could not come to the court to seek an injunctive relief after expiry of period mentioned in the instrument---Contract stood revoked after expiry of period and no vested right would accrue to the plaintiff---No relief could be sought in terms of Ss.21 & 56 (f) of Specific Relief Act, 1877 as contract could not be specifically enforced any more---Injunction in such matters could only be granted where the terms of contract were free from doubt or were not in dispute---Such relief being discretionary in nature had to be exercised in a judicial manner---If contract or licence was revoked without reasonable notice and during the subsistence of an agreement or licence, the aggrieved party could claim damages but not injunctive relief---Plaintiff could not sought specific performance or enforcement of agreement/contract beyond the period stipulated in the letter of intent/contract---If enforcement of said agreement could not be sought, no injunctive relief could be asked for---Plaintiff could claim damages owing to the alleged cancellation /modification of letter of intent---Plaintiff could not be allowed to continue and keep working on the basis of interim orders even beyond the period stipulated in the letter of intent/contract---Plaintiff could not establish a vested right on the basis of interim orders passed by the court---Application for grant of temporary injunction was dismissed, in circumstances.

Messrs Muhammad Ishaq and Sons v. Government of Pakistan and another 1992 CLC 1515 and Petrosin Corporation (Pvt.) Limited Singapore and 2 others v. Oil and Gas Development Company Ltd. 2010 SCMR 306 ref.

Arts Council of Pakistan v. Riazuddin Pirzada PLD 1969 Kar. 349; Province of West Pakistan through the Secretary Public Works Department, Lahore v. Gammon's Pakistan Ltd. Karachi PLD 106 Kar. 458; RTS Flexible Systems Ltd. v. Molkerei Alois Muller GmbH and Co. KG. 2012 SCMR 1027; The Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474; Cramaso LLP v. Ogilvie Grant, Earl of Seafield and others 2014 SCMR 1238; Pakistan Fertilizer Limited v. Dawood Hercules Corporation Limited PLD 2015 Sindh 142 and Shoukat Ali and others v. Government of Pakistan and others PLD 1997 SC 342 distinguished.

M. Umar Lakhani for Plaintiffs.

Usman Shaikh for Defendants.

Date of hearing: 23rd April, 2015.

2016 C L C 204

[Sindh]

Before Aqeel Ahmed Abbasi and Syed Saeed-ud-Din Nasir, JJ

ASIF ALI KHAN and another----Appellants

Versus

STANDARD CHARTERED BANK LIMITED and another----Respondents

1st Appeal No.27 of 2014, decided on 29th May, 2015.

Civil Procedure Code (V of 1908)---

-----O. XXI, Rr.66 & 67---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9 & 22---Suit for recovery of loan amount---Execution of decrees---Mode of execution---Notice to judgment debtor before issuance of proclamation of sale---Requirement---Plaintiff, on defendant's failure to fully satisfy decretal amount as settled under compromise, filed second execution application---Defendant filed application seeking suspension of auction proceedings on ground that notice as required under O.XXI, R.66, C.P.C. had not been served upon him---Executing court, dismissed application filed under O.XXI, Rr.66 & 67, C.P.C., and confirmed auction sale of mortgaged suit property---Validity---Executing court had ordered proclamation of sale without issuance of notice under O.XXI, R.66, C.P.C., and, admittedly, no such notice had been served upon defendants by court for settling terms of auction sale---Provisions of O.XXI, R.66, C.P.C. were mandatory in nature, and non-compliance thereof in letter and spirit were fatal to sale proclamation---Non-issuance of notice under O.XXI, R.66, C.P.C. was material irregularity, which had vitiated whole auction proceedings---High Court, allowing present appeal, set aside impugned order of Banking Court and auction sale, directed Executing Court to put up suit property on re-auction after service of due notice upon defendant under O.XXI, R.66, C.P.C.---Appeal was allowed in circumstances.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Muhammad lkhlaq Memon v. Zakaria Ghani and others PLD 2005 SC 819; United Bank Limited v. M/s. A.Z. Hashmi (Pvt.) Limited and 8 others 2000 CLC 1438; Mr. Yasmin Yaqoob v. M/s. Allied Bank of Pakistan Ltd and 3 others 2007 CLD 1511; Mukhtar Ahmed v. M/s. United Bank Limited 2013 CLD 841; Zulqarnain and 2 others v. Surbuland Khan and another 2004 SCMR 1084; M/s. Jugotekstile Impex, 61001, Lubijana Yugosalavia v. M/s. Shams Textile Mills Ltd. 1990 MLD 857 and Balagamwalla Cotton Ginners and Pressing Factory v. M/s. Akber Oil Mills PLD 1965 (W.P.) Kar. 460 ref.

Abdul Qayyum Abbasi for Appellants.

Ghulam Rasool Korai for Respondent No.1 along with Azmat Zuberi, Regional Manager (Litigation) of Respondent No.1.

Abid Hussain for Respondent No.2.

Date of hearing: 8th April, 2015.

2016 C L C 222

[Sindh]

Before Sajjad Ali Shah and Hasan Feroz, JJ

AFTAB SHAHBAN MIRANI----Petitioner

Versus

MUHAMMAD IBRAHIM JATOI and 10 others----Respondents

Constitution Petition No.D-3397 of 2014, decided on 13th May, 2015.

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

----S.103---Constitution of Pakistan, Art.199---Constitutional petition---Recounting of rejected votes---Election Commission directed the District Returning Officer to recount the rejected votes---Validity---Total rejected votes at nine polling stations were 257 votes---Looking at the lead which had turned the table by de-seating the respondent and declaring the petitioner as returned candidate i.e. 233, vis-a-vis the total of 490 votes rejected in 21 constituencies was a matter of grave concern---Application of respondent containing such serious concern should not have been brushed aside so casually---Application before the Returning Officer should not have been rejected on the ground that Polling Agent should have reported to the Presiding Officer---Order of Election Commission on factual plane was upheld---Where one of the Commission Members had exercised the delegated power of Election Commission, it would represent the entire Commission and its decision would amount to the decision of the Election Commission---Election Commission had power to direct recounting or to review an order of the Returning Officer directing recounting of rejected votes---Constitutional petition was dismissed, in circumstances.

Imran Khan and others v. Election Commission of Pakistan and others 2012 SCMR 448; Bartha Ram v. Lala Mehar Lal Bheel and another 1995 SCMR 684; Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others 2011 SCMR 1084; Ghulam Muhammad Mustafa Khar v. Election Commission of Pakistan PLD 1977 Lah. 1437; Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779 and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak and others 2014 SCMR 122 ref.

Farooq H. Naek along with Owais Ahmed Abro and Asadullah Channa for Petitioner.

Abdul Majeed Khoso for Respondent No.1.

Zia-ul-Haq Makhdoom DAG along with Abdullah Hanjrah, Law Officer, Election Commission of Pakistan for Respondent No.2.

Date of hearing: 25th March, 2015.

2016 C L C 243

[Sindh]

Before Nazar Akbar, J

GHULAM MUHAMMAD----Appellant

Versus

M/S ANAND KOHISTAN COTTON GINNING AND PRESSING FACTORY AND OIL MILLS through Proprietor----Respondent

IInd Appeals Nos.7 and 8 of 2009, decided on 30th September, 2015.

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

----S. 100---Second appeal---Scope---Scope of second appeal was limited to three grounds mentioned in S.100, C.P.C.---In the present case none of the ingredients of S.100, C.P.C. had been bound in memo. of appeal or in grounds of appeal---Appellant had failed to point out anything contrary to law or to some usage having force of law in judgments and decrees of lower courts---Appellant had not pointed out any misreading or non-reading of evidence nor he had been able to point out any legal lacuna in findings of lower court---Second appeals were dismissed, in circumstances.

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

----S. 17---Suit filed by registered firm---Not hit by S.17, Registration Act, 1908---Appeals were dismissed.

Muhammad Suleman Unar for Appellant.

Respondent absent.

Date of hearing: 7th August, 2015.

2016 C L C 259

[Sindh]

Before Munib Akhtar, J

SABIHA JAMEEL----Plaintiff

Versus

Messrs UNILEVER PAKISTAN LTD. through Company Secretary and another----Defendants

Suit No.722 of 2013, decided on 18th December, 2014.

Specific Relief Act (I of 1877)---

----Ss.10 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for recovery of shares, permanent injunction and recovery of damages---Interim injunction, grant of---Final relief at interim stage---Scope---Plaintiff claimed to be owner of shares of defendant company which were in the custody of Share Registrar---Grievance of plaintiff was that the shares were lost by Share Registrar who was vicariously liable for the wrongful act committed by its employees---Validity---Prima facie Share Registrar was vicariously liable for wrongful acts of its employees but no such liability had arisen against the company vis-a-vis the Share Registrar---Plaintiff was not entitled to relief even against Share Registrar because it would amount to attachment before judgment and no case was made out for such relief---Even when High Court considered from the perspective of relief by way of interim mandatory injunction, no case was made out, as such, relief would not restore or maintain status quo at the time of institution of suit rather it would establish a state of affairs that did not then exist and had not existed for some years---High Court declined to grant interim injunction to plaintiff---Application was dismissed in circumstances.

Clerk & Lindsell on Torts 20th ed., 2010; Islamic Republic of Pakistan and others v. Abdul Wahid and others 2011 SCMR 1836; Pakistan and others v. Haji Abdul Razzaque 2005 SCMR 587; Armagas Ltd. v. Mundogas SA (The Ocean Frost) [1985] UKHL 11, [1986] 1 AC 717, [1986] 2 All ER 385 (HL) and Uxbridge Permanent Benefit Building Society v. Pickard [1939] 2 All ER 344 (CA); [1938] 4 All ER 324, 325-6; Weddall v. Barchester Healthcare Ltd. [2012] EWCA Civ 25; Bernard v. Attorney General of Jamaica [2004] UKPC 47; Clyde & Co. v. Krista Bates Van Winkelhof [2013] 1 All ER 844 at [19]; Ready Mixed Concrete (South East) Limited v. Minister of Pensions and National Insurance [1968] 1 All ER 433; Woodland v. Essex County Council [2013] UKSC 66, [2014] 1 All ER 483=2014 SCMR 258; Tahira Sultana and another v. Saleem Rajput and another 2010 YLR 1883; Merkura Sucden v. Rice Export Corporation of Pakistan Ltd. and others 1993 CLC 714 and S.A. Abbasi v. Chairman, District Council Gulshan-e-Iqbal Karachi PLD 1985 Kar. 400 ref.

Muhammad Saleem Tehpdawala for Plaintiff.

Hyder Ali Khan for Defendant No.1.

Kumail Ahmed Shirazee for Defendant No.2.

Date of hearing: 19th August, 2014.

2016 C L C 351

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

HABIB AHMAD----Appellant

Versus

MEEZAN BANK LIMITED and 5 others----Respondents

Spl. High Court Appeal No.22 of 2008, decided on 21st September, 2015.

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

----S. 62---Novation of contract--- Object, import and scope---Novation means and be construed when contract already in existence is extinguished and a new contract is created, whereunder new rights emerge in favour of parties---Unless rights under old contract are explicitly relinquished, no new contract comes into force---Procrastination by a party to abide by terms of contract and to gain benefit out of it does not mean novation of contract---Novation comes about where parties to contract mutually agree to substitute it with new contract---If a party alleges novation of contract, it has to establish such prerequisites.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 rel.

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

----S. 17---Fraud---Proof---Allegations of fraud require specific evidence establishing unequivocally malfeasance or a misrepresentation made with a design to get benefit for oneself or misleading the other into a course of action, detrimental to its rights.

Black's Law Dictionary (Sixth Edition) rel.

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

----Ss. 9 & 22---Contract Act (IX of 1872), S.176---Recovery of finance---Pledged stock, sale of---Procedure---Notice to pawnor---Requirement---Defendant while seeking finance facility from plaintiff Bank pledged shares owned by him, in a company listed in Stock Exchange---Defendant alleged that Bank and stock broker had illegally and fraudulently sold his shares at lesser price causing loss to his property---Plea raised by defendant was, that before selling the shares, bank was to issue notice to him---Giving notice to pawnor was a mandatory requirement of law that had to be fulfilled before selling his pledged property---Obligation stood complied with if pawnor was served with a letter telling him about sale of his shares by pawnee, in case of non-compliance of terms of pledge-agreement---Regarding contents of such notice no hard and fast rule could be laid down and it was not necessary that such letter would contain actual date and place of intended sale---Only prerequisite was to convey reasonable information to pawnor about ensuing action in case he failed to pay the due amount and to afford him a reasonable time to redeem his pledged property---Mere non-activity of a stock broker at times did not mean that his particular dealing during that era was dubious or against the law---It did not in any manner lead to assume that by conducting transactions in question, the stock broker violated either call of his duty or committed offence of fraud as alleged by defendant---High Court declined interference in order passed by Banking Court--- Appeal was dismissed in circumstances.

PLD 1959 (W.P) Kar.725; AIR 1955 Patna 288; PLD 1962 (W.P) Kar. 565; AIR 1966 All. 134 ;AIR 1932 Cal. 524; PLD 1999 Kar. 468; PLD 1966 W.P. 556; 1989 MLD 3394; PLD 1998 Kar. 671; AIR 1960 Punjab 98 and 1987 CLC 1919 ref.

Rashid Anwer for Appellant.

Sajid Zahid for Respondent No.1.

Nemo for Respondent No.2.

Ejaz Ahmed for Respondents Nos.3, 4 and 5.

Khalid Javed Khan for Respondent No.6.

Dates of hearing: 11th, 18th, 27th November, 9th December, 2014, 12th, 20th January, 27th February and 14th September, 2015.

2016 C L C 367

[Sindh]

Before Syed Hasan Azhar Rizvi and Muhammad Faisal Kamal Alam, JJ

Syed DOST ALI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Defence and 2 others----Respondents

C.P.No.D-4404 of 2014, decided on 13th November, 2015.

Constitution of Pakistan---

----Arts. 25, 23 & 199---Constitutional petition---Provision as to property---Protection of property rights---Right to approval of completion plan and issuance of "completion certificate"---Respondent-Defence Housing Authority refused to process application for approval of completion plan and issuance of completion certificate regarding subject property on the ground that it had put a caution in respect of subject property on account of pending litigation---Respondent took plea that the application of petitioner could not be entertained as suits regarding title of subject property were pending before courts and that the relief sought through present petition could also be sought in the pending suit of petitioner---Validity---Petitioner, as per official record and undisputed facts, was owner-in-possession of subject property---Present grievance of petitioner was subsequent event, for which his pending suit was not efficacious remedy as amending the plaint was laborious exercise---High Court observed that where remedy, including civil suit, was neither adequate nor efficacious and the same would not give requisite relief, then in such peculiar circumstances invoking constitutional jurisdiction, even during pendency of suit, was not prohibited---Present constitutional petition, in view of its peculiar facts and exceptional circumstances, was maintainable---Measures taken by respondent, in the present set of facts, had over stretched its authority to the extent of unreasonableness---Respondent, while maintaining caution note in its record and computer system for protection of future transferees and purchasers of subject property, could still address present grievance of petitioner by entertaining his application for processing completion of plan and issuance of completion certificate in accordance with relevant rules and bylaws---Present action of respondent in refusing to do was thus tantamount to putting clog on ownership right of petitioner in respect of subject property, which was not only unreasonable act but excessive use of authority vested in respondent---Petitioner, on basis of assumptions, could not be deprived of his entitlement to use and enjoy subject property, which, otherwise, would be violative of Arts.23 & 24 of the Constitution, relating to proprietary rights of citizens---High Court directed respondent-Authority to process the application for approval of completion plan and issue completion certificate---Constitutional petition was allowed in circumstances.

Case law ref.

Basil Nabi Malik for Petitioner.

Ainuddin Khan, D.A.-G. for Respondent No.1.

Sohail H.K. Rana for Respondent No.2.

Shanawaz for Respondent No.3.

Date of hearing: 6th November, 2015.

2016 C L C 392

[Sindh]

Before Salahuddin Panhwar, J

Mst. NAGHMA SULTANA through Attorney----Appellant

Versus

MUHAMMAD JAMEEL and 2 others----Respondents

IInd Appeal No.10, R.A No.57, CP No.S-151 of 2012 and M.A. No.5081 of 2013, decided on 23rd January, 2015.

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

----O.XLI, R.21---Ex parte judgment, setting aside of---Requirements---Substituted service---Service of summons---Applicant-respondent was required to establish that he was not served or to show the circumstances prevented him from appearing---Court had to examine the maintainability of appeal even if the matter was one of ex parte---Appellate Court should not allow an appeal without examining the legality or illegality of exercise of jurisdiction by the courts below which would not depend upon pointing out of illegalities by appearance of applicant-respondent---Equity would demand a proper notice to rival side before proceeding or hearing with a matter likely to cause any prejudice to rights or interest of such party---Law could not be allowed to be defeated or delayed on tricky moves through which a rival would avoid service of process (summons/notice)---Duly service of summons/ notice which was acknowledged/received by the party himself/herself was not requirement of law---Person sought to be served could not be forced to sign the summons and he/she was only to be communicated the information---Court should satisfy itself before proceeding ex parte that applicant-respondent had knowledge of pending proceeding and date of hearing---Applicant-respondent was required to establish that he was not 'duly served' to succeed in getting an ex parte judgment set aside which would also require to establish the fact of having no knowledge of pending lis (proceedings)---Service effected through substituted service could not be dislodged merely on the plea of applicant-respondent being not a subscriber/reader of the 'newspaper'---Applicant-respondent had knowledge and notice of pendency of appeal who was served through substituted service but he did not appear---No justification existed to seek setting aside of ex parte judgment on plea of not 'duly served'---Active knowledge of pending litigation would amount service of summons (communication of information to interested)---Passing of an ex parte order was not requirement of law in appeal matter---Only requirement of law was the satisfaction of court to the extent of 'well time communication of information of pending lis (duly served) before hearing of appeal---Applicant-respondent had failed to establish that he was not 'duly served' (not having knowledge of pending proceeding)---Application for setting aside ex parte judgment was dismissed, in circumstances.

Muhammad Khalid alias Khalid Hussain v. Salid Hussain and 11 others 2012 MLD 1112; Messrs Sea Breeze Ltd. through Authorized Officer v. Mrs. Padma Ramshes and another 2012 MLD 39; Zulfiqar v. Muhammad Khan 2002 CLC 932 and Farid v. Muhammad Khurshid and 14 others 2008 CLC 481 ref.

PLD 1979 SC (AJ&K) 120 rel.

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

----S. 115 & O. XLI, R. 21---Revision---Applicability of O.XLI, R.21, C.P.C. in revisional jurisdiction---Scope---Provision of O.XLI, R.21, C.P.C. had no application in revisional matter.

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

----S. 115---Revision---Scope---Revisional jurisdiction was confined to correct jurisdictional error or illegality committed by the courts below which the revisional court should require to see even if such jurisdiction was initiated suo motu.

(d) Words and phrases---

----'Ex parte'---Meaning.

Wharton's Law Lexicon 14th Edition rel.

(e) Words and phrases---

----Summons---Meaning and scope.

Zaheeruddin S. Leghari for Petitioner.

Sunderdas for Respondent No.1.

Date of hearing: 12th January, 2015.

2016 C L C 464

[Sindh]

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, J

MUBARAK JAMIA MASJID-WA JAMIA ABU BAKAR TARTEELUR QURAN

(TRUST) through Trustees----Appellant

Versus

INTERNATIONAL BRANDS (PVT.) LIMITED and another----Respondents

High Court Appeal No.102 of 2014 and C.M.As. Nos.1014, 1016 of 2015, decided on 19th November, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10 (3) & O. XIV, R. 5 (1)----Specific Relief Act (I of 1877), Ss.42 & 54---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Parties to suit---Trust/trustees as necessary party---Determination---Trust, limitation against---Principles---Settlement/ determination of issues---Plaintiff filed suit claiming that he was the owner of suit land, whereas defendant had been illegally occupying the same and had extended the same for setting up a Mosque and Madarasa---Defendant filed application under O.I, R.10, C.P.C. seeking joining of additional parties/trustees on ground that the suit land was owned by a trust and said mosque and Madarasa were being run under the management of the trust---Trial court dismissed said application and decreed the suit on merits---Trust/trustees, for the first time, during execution of the decree, on basis of a Trust Deed, filed present appeal against the decree---Contention raised by the appellants/trustees was that the question as to existence of the trust with regard to suit land was yet to be adjudicated upon---Validity---Alleged trust was necessary party---Fourteen years had elapsed since filing of the suit---No limitation ran against the Trust---When the plea of trust had been raised, trial court ought to have issued notice to the trust and joined that as a party---High court, setting aside, the judgment and decree, remanded the case for decision afresh after framing and adjudication of specific issues regarding said trust---Appeal was disposed of accordingly.

Sarfaraz Ali Metlo for Appellant.

Aimal Kansi Khan for Respondents.

2016 C L C 513

[Sindh]

Before Aqeel Ahmed Abbasi and Syed Saeed-ud-Din Nasir, JJ

ADNAN alias SANNY and another----Petitioners

Versus

PROVINCE OF SINDH through Secretary Local Government and 3 others----Respondents

C.P.No.D-3576 and CMA No.1007 of 2015, decided on 13th October, 2015.

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

----S. 36---Sindh Local Councils (Election) Rules, 2013, Rr.18(5), (8), (9) & 36---Constitution of Pakistan, Art.63---Disqualification of candidate as member---Scrutiny---Challenge by electors---Appellate Authority rejected joint nomination papers of petitioner for position of Chairman and Vice Chairman on ground of default in payment of utility charges and registration of FIR against him---Validity---Respondent-objector had not filed any objection when nomination papers of petitioner were being scrutinized by Returning Officer---Respondent had objected to eligibility of petitioner for first time by filing appeal on ground that petitioner was defaulter in utility charges and FIR was registered against him---Petitioner had already paid alleged outstanding amount of utility charges before impugned order was passed as reflected from 'No Dues Certificate'---Parties had lodged FIR's against each other due to enmity---Petitioner was shown to have been accused in counter FIR---Returning Officer had found petitioner an eligible candidate---Appellate Court, while passing impugned order, had not examined relevant facts and law---High Court, setting aside impugned order, restored acceptance of candidature of petitioner by Returning Officer---Constitutional petition was allowed in circumstances.

Ghulam Mustafa Wassan v. Abdul Salem Thaheem and 13 others PLD 2008 Kar. 60 ref.

Ghulam Shabbir Shar for Petitioners.

Zulfiqar Ali Sangi, A.A.G. alongwith Anwar Ali Shoro, Deputy Director (Field) OFWM/NPIW, Sukkar for Respondents.

2016 C L C 524

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD MURTAZA----Plaintiff

Versus

MRs. SARWAT PARVEEN and another----Defendants

Suit No.1 of 2004 and CMA 2080 of 2012, decided on 9th October, 2012.

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

----S. 151---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Release/withdrawal of profit accrued on the price/sale consideration deposited in the Court---Scope---Contention of applicant-plaintiff was that he was entitled to receive the profit/interest on the amount invested in profit bearing scheme, as suit property remained in possession of respondent-defendant---Validity---Portion of possession of property in question was excluded from handing over to the plaintiff being on rent at the relevant time, which was not questioned---Value of money during litigation had decreased while value of property had increased---Applicant-plaintiff would be benefited more than the respondent-defendant---Having relinquished the vacant possession of the portion of property, plaintiff was not justified to contend that he was deprived of the benefit of rent---Litigant could not be penalized and/or blamed merely because much time was consumed during the trial---Aggrieved party if exercising his right of appeal, review etc. even up to the Supreme Court could not be blamed or otherwise stopped---Application for release of profit accrued on the sale consideration invested in profit bearing scheme was dismissed in circumstances.

Nazir Hassan v. Maj. (Retd.) Ejaz Ahmad Khan 1981 SCMR 684 distinguished.

(b) Administration of justice---

----Litigant could not be penalized merely because much time was consumed during the trial.

Muhammad Masood Khan for Plaintiff.

Yousuf Moulvi for Defendant.

2016 C L C 575

[Sindh]

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

Messrs LABBAIK (PVT.) LTD. through authorized person and others----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary for Ministry of Interior and others----Respondents

Const. Petitions Nos.D-2867 of 2013 and D-3224 of 2015, decided on 3rd July, 2015.

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

----S. 30(d)---Pakistan Electronic Media Regulatory Authority Rules, 2009, R.7(d)---Constitution of Pakistan, Art. 199---Constitutional petition---License, suspension of---Security clearance---After change of ownership, the license issued in favour of petitioner company was suspended due to non-availability of security clearance---Plea raised by petitioner was that once security clearance was obtained, there was no requirement under Pakistan Electronic Media Regulatory Authority Ordinance, 2002, or Pakistan Electronic Media Regulatory Authority Rules. 2009, for obtaining fresh security clearance---Validity---Law contemplated security clearance of the management and not of the company as company was a fictitious person run by its management---On every change in shareholding of a company, the investment of existing management was taken out and new management had made investment and at such juncture, the Authority had to ensure security clearance of new management in order to find out as to whether, the funds so invested in the company as well as in payment to outgoing directors, were not funded or sponsored by a foreign government or organization---High Court directed Federal Government to process security clearance as per practice in vogue and once issue of security clearance was finalized either way the Authority would proceed in accordance with law---Petition was allowed accordingly.

Arshad Mehmood v. Government of Pakistan PLD 2005 SC 193; Independent Music Group SMC (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2011 SC 805; case Regarding pensionary benefits of the Judges of Superior Courts PLD 2013 SC 829; M/s. Pakistan International Airlines Corporation v. Board of Trustees, Employees Old Age Benefits Institution and another 2004 PLC 255; Pak Telecom Mobile Limited v. Pakistan Telecommunication Authority, Islamabad PLD 2014 SC 478 and Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 ref.

(b) Constitution of Pakistan---

----Art. 29---Word 'policy'---Connotation---Main attribute of policy is that the same is across the board and for all who are similarly placed and are governed under the law which declares such policy.

M/s. Gadoon Textile Mills v. WAPDA 1997 SCMR 641 and Ghiasuddin v. Ghulam Mohyuddin 2005 SCMR 471 rel.

Abid S. Zuberi and Muhammad Haseeb Jamali for Petition (in Constitutional Petition No.D-2867 of 2013).

Salman Talibuddin, Addl. Attorney General of Pakistan for Respondents Nos.1 to 3 (in Constitutional Petition No.D-2867 of 2013).

Kashif Hanif for Respondent No.4(in Constitutional Petition No.D-2867 of 2013).

Bahzad Haider for Intervenor (in Constitutional Petition No.D-2867 of 2013).

Abid S. Zuberi and Muhammad Haseeb Jamali for Petitioners Nos.1 and 2 (in Constitutional Petition No.D-3224 of 2015).

Salman Talibuddin, Addl. Attorney General of Pakistan for Respondent No.1 (in Constitutional Petition No.D-3224 of 2015).

Kashif Hanif for Respondent No.2 (in Constitutional Petition No.D-3224 of 2015).

Date of hearing: 18th June, 2015.

2016 C L C 592

[Sindh]

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

HABIB BANK LIMITED through President----Appellant

Versus

HAIDER LADHU JAFFER through Attorney and others----Respondents

HCA No.10 of 2014, decided on 6th October, 2015.

Limitation Act (IX of 1908)---

----S. 4---Civil Procedure Code (V of 1908), Ss.114 & 151---Suit, filing of---Period of Limitation---Expiry on last working day---Recalling of judgment---Single Judge of High Court dismissed the suit as it was barred by limitation--- On application of plaintiff, the judgment was recalled by Single Judge of High Court on the ground that court was not assisted on behalf of plaintiff when judgment was passed as notification was not brought to the notice of the court, though the suit was filed on the first opening day of the court ail: plaintiff was entitled for the benefit of S.4 of the Limitation Act, 1908---Validity---If period of limitation was expiring on the day when the court was closed, the suit could be instituted, preferred or made on the day when the court reopened---Order passed by single Judge of High Court was correct in law and was unexceptionable and did not require any interference by Division Bench of High Court---Defendant failed to bring on record any illegality in the order passed by single Judge which could compel Division Bench of High Court to exercise any discretionary relief in favour of defendant---Intra court Appeal was dismissed, in circumstances.

Khushi Muhammad and 6 others v. Muhammad Sharif and 6 others 1995 MLD 1042; Muhammad Shareef v. Muhammad Ramzan and 3 others 2006 CLC 618; Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238; Juma v. Maulvi Mubarak 1971 SCMR 779; Sirajuddin v. Muhammad Sharif PLD 1963 Kar. 883; Memon Educational Board and Society, Karachi v. Munawar Hussain 2003 SCMR 157; Malik Khawaja Muhammad and 24 others v. Mardurnan Babar Kahol and 29 others 1987 SCMR 1543; Fazal Khan and another v. Ghulam Jilani and others 1975 SCMR 452; 2010 CLD 1541 and Pakistan Fisheries Limited, Karachi v. United Bank Limited PLD 1993 SC 109 ref.

Ghulam Murtaza for Appellant.

Ms. Saba Latif alongwith Taffazul Rizvi Attorney for Respondents Nos.1 and 2.

Date of hearing: 22nd September, 2015.

2016 C L C 604

[Sindh]

Before Nadeem Akhtar, J

ABBAS ALI and another----Plaintiffs

Versus

ASIF ABBAS and 3 others----Defendants

Suit No.1699 of 2010, decided on 17th October, 2015.

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

----O. XXXVII & S. 34---Negotiable Instruments Act (XXVI of 1881), Ss.118, 80 & 79---Suit for recovery of amount on basis of dishonoured cheques---Summary Procedure on negotiable instrument---Presumption as to negotiable instrument---Conditional leave to appear and defend---Failure to fulfil condition, effect of---Interest on decretal amount, award of---Permissibility---Defendants' application for leave to appear and defend was allowed subject to condition of furnishing surety equal to amount of dishonoured cheques, which they failed to fulfil---Defendants assailed leave granting order in appeal, which was dismissed for non-prosecution, and their application for restoration of the appeal was still pending for adjudication---Defendants took plea that suit could not be decreed as their application for restoration of appeal was still pending---Validity---Pendency of application for restoration of appeal could not be deemed to be an appeal---Mere filing or pendency of appeal did not operate as stay of proceedings or orders passed therein (in suit)---When leave to appear and defend suit had been conditionally granted to defendants, same would imply that if such condition was not fulfilled and conditional leave granting order was not complied with by defendant, then such order would cease to have effect to extent of grant of leave to appear and defend the suit---Defendants' application for leave to appear and defend, in such an event, would be deemed to have been dismissed---Court observed that non-appearance of defendants or dismissal of application for leave to appear and defend did not necessarily mean that court was not required to apply its mind to facts and documents before it---Defendants had never denied execution of any of cheques in question---Defendants, in partial satisfaction or adjustment of their liability, had transferred immovable property in favour of plaintiffs---Nothing on record to rebut claim of plaintiff---Defendants' objection as to lack of consideration for dishonoured cheques could not be allowed as they had failed to furnish surety as required by court---In view of O.XXXVII, R.2 of C.P.C. and presumption attached to cheque under S.118 of Negotiable Instruments Act, 1881, contents of plaint and allegations made therein were to be deemed to have been admitted---Plaintiffs were, therefore, entitled to decree against defendants jointly and severally with award of profit or markup as prescribed under O.XXXVII, Rr.2(2)(a) & 2(2)(b) of C.P.C., with costs of suit---Suit was decreed in circumstances.

Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659; Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 and Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 882 rel.

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

----O. XXXVII, R. 3(2)--- Summary procedure on negotiable instrument---Conditional leave to appear and defend---Principles---When leave to appear and defend suit is granted to defendant subject to any condition, same will imply that if such condition is not fulfilled and conditional leave granting order is not complied with by defendant, then such order will cease to have effect to extent of grant of leave to appear and defend the suit.

(c) Appeal (Civil)---

----Mere filing or pendency of appeal did not operate as stay of proceedings or orders passed therein---Pendency of application for restoration of appeal could not be deemed to be an appeal.

(d) Administration of Justice---

----Every court is required to apply its mind before passing order or judgment, whether any party has appeared before it or not to oppose an order, or the party who wants to oppose is not allowed to oppose because it has failed to fulfill requirements of law.

Mehar Khan for Plaintiffs.

Ghulam Mujtaba Phull for Defendants Nos.1 to 3.

Muneer Ahmed Khan for Respondent No.4.

Date of hearing: 12th October, 2015.

2016 C L C 624

[Sindh]

Before Mrs. Ashraf Jehan, J

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI through Secretary----Applicant

Versus

Mrs. SHAHIDA M. AMIN and 3 others----Respondents

R.A.No.3 of 2002, decided on 14th October, 2015.

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

----S. 5---Civil Procedure Code (V of 1908), O.XLI---Appeal from original decree---Condonation of delay in filing appeal---Extension of period in certain cases---Scope---"Sufficient cause" for delay, determination of---Negligence on part of counsel---Effect---Trial court decreed the suit ex parte, and appellate court dismissed appeal against the same on ground of delay of one year in filing the appeal---Validity---Defendant had not assigned any cogent or plausible explanation for delay in filing of appeal, and only ground taken for delay was negligence on part of its counsel---No party could take advantage of negligence or carelessness of his counsel---High Court observed that defendant was under a duty to get itself informed about fate of its case---Negligence on part of counsel to give necessary information about the case would not per se constitute sufficient ground for condonation of delay when valuable rights had already accrued to plaintiff by efflux of time---Delay in filing of appeal could only be condoned if delay of each day was explained, which factor was totally lacking in the present case---Defendant, having come to know of judgment and decree of trial court, had applied for certified copies of the same after more than two months---Defendant was supposed to file appeal immediately after getting knowledge of the judgment and decree within period of thirty days---High Court observed that Government functionaries had to strictly follow the limitation provided under law, and no special treatment could be afforded to them---Revision petition was dismissed in circumstances.

Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223; Dhanjishaw Bahramji Ghadialy and another v. Abdul Latif PLD 1983 Kar. 121; Mst. Mah Bibi v. Mst. Hameeda Begum PLD 1976 Kar. 811; Muhammad Din v. Member (Consolidation) Board of Revenue, Punjab and another 2003 SCMR 1304; Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212 and Member Board of Revenue v. Farooq Ahmed and others 2000 SCMR 706 rel.

(b) Administration of Justice---

----No party could take advantage of negligence or carelessness of his counsel.

Nazar Hussain Dhoon for Applicant.

Abid Feroze for Respondents Nos.1 and 2.

Date of hearing: 16th September, 2015.

2016 C L C 633

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

Messrs MUHAMMAD HASSAN WASSAN, GOVERNMENT CONTRACTOR through Proprietor----Petitioner

Versus

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

C.P. No.D-4187 and C.M.As. Nos.11614, 11615, 11616 of 2015, decided on 11th November, 2015.

Sindh Public Procurement Rules, 2010---

----Rr. 4 & 31---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Principles of procurement---Mechanism for redressal of grievances---Petitioner sought direction to Anti-Corruption department and Federal Investigation Agency to conduct inquiry against respondents for awarding contract regarding construction work of road in violation of Sindh Public Procurement Rules, 2010---High Court, in an earlier Constitution petition filed by the petitioner, had issued direction to the respondents to consider request of petitioner for issuance of blank tender form, if he was found eligible; the tender form was issued to petitioner and he had also submitted the same; however, he had not been awarded any contract---Validity---Petitioner had neither furnished necessary details regarding disputed award of contract, nor had he placed on record any material to show alleged violation on part of the respondents while awarding the contract under the reference (earlier direction issued by High Court)---Petitioner had leveled baseless allegations against the respondents, and any direction, on basis of the same, either to Anti-Corruption or Federal Investigation Agency, would obstruct public work unnecessarily---High Court observed that such frivolous petitions were being filed by contractors, who could not get contract in their favour, in order either to blackmail or to get contracts awarded in their favour after exerting pressure---Petitioner had not approached the relevant forum provided under law to dispute public tender process by filing proceedings under Sindh Public Procurement Rules, 2010---Petition being totally misconceived, was dismissed.

Ajeebullah Junejo for Petitioner.

2016 C L C 645

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD IQBAL----Appellant

Versus

NAZEER and 7 others----Respondents

II Appeal No.11 of 2010 and C.M.A No.34/2015, decided on 26th June, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Transfer of Property Act (IV of 1882), S.52---Application for impleadment of party---Lis pendens, principle of---Applicability---Contention of applicant (intervener) was that he was an absolute owner and title holder of suit land---Appellant had not impleaded the applicant as defendant in main suit nor he (applicant) himself had approached the trial court for joining appellant as party---Applicant could not be restrained from filing the application under O.I, R.10, C.P.C.---Mere delay in preferring such application could not deprive the applicant from his rights and claims---Nothing was on record that any notice was issued to the applicant by the appellant---Appellant could not take benefit of principle of lis pendens---Applicant was involved in execution of registered sale deed, mutation of khata and construction over the suit land but he was not impleaded as party by the appellant---Any judgment passed in the appeal would affect the rights of applicant over suit property who was in possession of the same---Applicant had his own independent status and cause of action to defend his vested rights over the suit property and could not be deprived to defend his rights over the suit land nor registered sale could be treated ab initio void on the plea that same was executed after issuance of status quo order---If applicant was denied to be impleaded as a party then he would have no alternate remedy but to file a separate suit which would result in multiplicity of litigation---Applicant had prima facie case in his favour to be impleaded as party in the present appeal---Appellant was directed to file amended title by impleading the applicant as respondent---Application for impleadment was accepted in circumstances.

Hazrat Khan v. Amanullah and others 1996 SCMR 1217; Bashir Ahmed and others v. Ghulam Ali and others 1991 SCMR 1656; Rashid Ahmed v. Mst. Jiwan and 5 others 1997 SCMR 171; Fazal Karim v. Muhammad Afzal PLD 2003 SC 818; Muhammad Shaban and others v. Falak Sher and others 2007 SCMR 882; Mst. Khaista Jan and others v. Hafizur ur Rehman and others 1984 SCMR 709 and Zahoor Hussain v. Ch. Niaz Ali and another 2006 SCMR 1067 rel.

Abdul Hai Khan Pathan for Appellant.

Basil Nabi Malik for alleged contemner No.6 and intervener.

Ghulam Mujtaba for Respondent No.6.

Bahadur Ali Baloch for Respondent No.8.

Date of hearing: 27th May, 2015.

2016 C L C 657

[Sindh]

Before Maqbool Baqar, Abdul Rasool Memon and Syed Muhammad Farooq Shah, JJ

General (R) PERVEZ MUSHARRAF through Special Attorney----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Provincial Election Commission and 3 others----Respondents

Constitutional Petition No.D-1613 of 2013, decided on 18th April, 2013.

Constitution of Pakistan---

----Arts. 62, 63 & 199---Constitutional petition---Election dispute---Word 'righteous'--- Meaning--- Disqualification--- Rejection of nomination papers---Petitioner was Ex-Chief of Army Staff who suspended the Constitution and disturbed the democratic process in the country---Petitioner, after retirement filed his nomination papers to contest general election but the same were rejected by Returning Officer---Validity---Word 'righteous' occurring in Art.62(f) of the Constitution was not defined, therefore, it would be given dictionary meaning i.e. moral right, just or right, virtues, law abiding---Person who had played with democratic process and abrogated the Constitution could not be termed as 'righteous'---Orders by Returning Officer, whereby nomination form of petitioner, submitted for National Assembly, was rejected and subsequently appeal was also dismissed, did not require any interference---Petition was dismissed in circumstances.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Raja Muhammad Afzal v. Chaudhury Altaf Hussain 1986 SCMR 1736; Yousuf Raza Gilani's case 2008 CLC 240 and Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 786 ref.

Khawaja Naveed Ahmed and Arshad Riaz Mughal for Petitioner.

Syed Rashid Ali, Election Officer for Respondents.

Salahuddin Gandapur and S.A. Waheed for Bar Members.

Date of hearing: 18th April, 2013.

2016 C L C 721

[Sindh]

Before Muhammad Junaid Ghaffar, J

MUHAMMAD HASHIM and another----Applicants

Versus

GHULAM MUJTABA SHAH alias Gulzar Shah and 12 others----Respondents

Civil Revision Application No.S-06 of 2006, decided on 6th March, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Sindh Land Revenue Act (XVII of 1967), S.53---Suit for declaration---Plaint, rejection of---Requirements---Defendants filed application for rejection of plaint on the ground that plaintiffs had no locus standi to file the suit which was accepted by the Trial Court but the same was dismissed by the Appellate Court---Validity---Dispute with regard to ownership of suit property could only be adjudicated upon after recording of evidence in respect of said land by both the claimants---Trial Court had erred by rejecting the plaint in haste and in a slipshod manner without taking into account the averments made by the plaintiffs in the plaint---Trial Court while hearing the application under O.VII, R.11, C.P.C. was not required to appreciate deeply the material available/placed on record by the defendants through written statement---Averments made by the plaintiffs could only be examined for deciding an application for rejection of plaint---If an order had been passed by any revenue authority without jurisdiction or considering the material available on record and without following the norms of judicial proprietary, civil court could and had the jurisdiction to examine such orders---Where adverse orders had been passed ex parte the same could be examined and assailed before the civil court in terms of S.53 of the Sindh Land Revenue Act, 1967---Impugned order passed by the Appellate Court was correct in law---No illegality and perversity had been pointed out in the impugned order which was passed after considering the entire material on record---Revision was dismissed, in circumstances.

Hamid Hussain v. Government of West Pakistan 1974 SCMR 356; Jewan and others v. Federation of Pakistan and others 1994 SCMR 826 and Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and 4 others 2011 CLC 88 ref.

Kanwar Qutubuddin Khan v. Karachi Development Authority 2001 CLC 634; Iqbal Hussain v. Province of Punjab 2001 CLC 1019; Hawaldar Sarwar Khan v. Province of Sindh and others 1998 CLC 382; Muhammad Nazir v. Muhammad Yousuf 2012 MLD 439 and Administrator, Thal Development v. Ali Muhammad 2012 SCMR 730 distinguished.

Mian Muhammad Latif v. Province of West Pakistan and others PLD 1970 SC 180 rel.

David Lawrence and Tahir Hussain Mangi for Applicants.

Abdul Naeem for Respondents Nos.1 to 11.

Date of hearing: 2nd March, 2015.

2016 C L C 740

[Sindh]

Before Salahuddin Panhwar, J

ABDUL RAZZAK KHAMOSH----Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others----Defendants

Suit No.562 of 2014, CMA No.4518 of 2014 and CMA No.6279 of 2015, decided on 13th May, 2015.

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

----O. XXXIX---Application for grant of injunction---Scope---Jurisdiction dressed an interim or interlocutory orders, the legal status, otherwise same would be nothing but coram non judice---Administration of justice demanded to attend the question of jurisdiction first---Maintainability of suit had direct nexus with every interlocutory application, including one falling within meaning and scope of O.XXXIX, C.P.C.

Arif Majeed Malik v. Board of Governors Karachi Grammar School 2004 CLC 1029; PLD 2004 Kar. 269; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Khurram Naseemuddin v. Federation of Pakistan through Director General, FIA PLD 2014 Kar. 264; Mst. Khursheed Begum v. KDA 2003 YLR 1478; Tariq Mehmood and others v. The State and others 2004 MLD 1113; Mst. Azra Israr v. Inspector General of Police, Punjab PLD 2003 Lah. 1; Munir Ahmed v. Province of Sindh 2002 MLD 1379; Muhammad Khan v. Nasibulla PLD 2000 Quetta 66; National Pertocarbon (Pvt.) Ltd. v. Registrar of Trade Unions 1989 CLC 1975; Aurganzeb v. Sui Southern Gas Company 2003 YLR 1673 and Fayazuddin v. KBCA 2000 YLR 1161 ref.

(b) Jurisdiction---

----Not whims and wishes of plaintiff on which question of jurisdiction would depend, it was always to be the requirement of law and satisfaction of judicial conscious of the court.

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

----Ss. 42 & 54---Suit for declaration and injunction---Contention of the plaintiff was that he was occupying the state land to protect the same from professional land grabbers---Validity---Private person under any plea, could not justify occupying government property/state land because function of a 'good citizen' come to an end by reporting such matter to quarter concerned who, otherwise, was ultimate authority to ensure protection to government property/state land and were accountable for their negligence but such duty of conscious of a 'citizen' would not in any manner, authorize him to dress himself up as "quarter concern/authority"---Plaintiff, in circumstances, could not apply for allotment of such land.

(d) Res judicata, principle of---

----Applicability---Matter directly or indirectly subjudice before a court of competent jurisdiction could not be re-tried before other court/forum as such lis should fall within meaning of res sub judice' orres judicata'.

(e) Notice---

----Issuance of---Scope---Every person was obliged to respond to demand of law (notice) or to explain his position, as and when demanded by a competent person---Such act of person should bring no harm or prejudice to him/her---Right to complain arises when an Authority prima facie deviate from law and procedure---Demand to show title or legal authority to occupy/possess a government property could not give rise to file suit challenging such notice.

(f) Words and phrases---

----"Recommendation"---Term 'recommendation' could not be equated with that of 'approved/sanctioned' nor a 'recommendation' could be used as a trump card to compel competent Authority in endorsing 'recommendation' with a mandatory 'yes' without examining recommendation as reasonable or otherwise --- Recommendation could at most earn right of consideration but it should not be taken as 'approval/sanction'.

(g) State land---

----Allotment---Procedure---Process of allotment of government land should not start by making an application but from wide publication.

(h) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding in nature---What was prohibited by Supreme Court could not be sought to be permitted by any other court or authority---What one could not obtain directly, could not be obtained indirectly.

Amanullah Khan and others v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 2005 SCMR 25 and Suo moto case No.14 of 2009 and 2014 SCMR 1611 rel.

Muhammad Umar Lakhani for Plaintiff.

Jam Habibullah State Counsel.

Muhammad Vowda for Defendant No.5.

Date of hearing: 24th April, 2015.

2016 C L C 765

[Sindh]

Before Shahnawaz Tariq, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN----Petitioner

Versus

Qazi MAJID ALI and 2 others----Respondents

C.P. No.S-952 of 2012, decided on 26th May, 2015.

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

----Ss. 19, 12 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Application for fixation of fair rent---Adjudication by Rent Controller---Landlord filed application for determination and fixation of fair rent, and tenant in turn filed application under S.12 Sindh Rented Premises Ordinance, 1979 for repairs---Tenant's application for repairs to the premises was allowed by Rent Controller---Contention of petitioner/landlord was that said application of the tenant was filed with mala fide intention---Held, that in the peculiar circumstances of the case, it was incumbent upon the courts below to judiciously consider the entire material available on record, including previous litigation, demeanor of the parties and stances taken by them, and by focusing on the very aspect whether the tenant had filed application for repairs with a bad intention to deprive the landlord from payment of fair rent already fixed by court or otherwise---Tenant had proposed repairs almost equal to the amount of the outstanding fair rent against the tenant, which was still unpaid and which showed mala fide intention of the tenant; and such aspect should have been considered by the courts below---Furthermore, the stance of the tenant that he was prepared to pay entire fair rent amount if the landlord undertook repairs of the premises, clearly indicated mala fide intention and ulterior motives of the tenant---Undeniably under S.12 of the Sindh Rented Premises Ordinance, 1979 the landlord was bound to carry out necessary repairs of the demised premises, but tenant could not compel or pressurize landlord for excessive work, addition or alteration of the premises under the garb of repair works, which was contrary to provisions of S.12 of the Sindh Rented Premises Ordinance, 1979---Rent controller did not proceed in the matter according to S.19 and did not direct tenant to file his affidavit in evidence to establish his claim and did not afford opportunity to landlord to conduct cross examination of tenant---Impugned orders of courts below were set aside, and case was remanded to Rent Controller to decide controversy on merits after providing full opportunity to parties to adduce evidence---Constitutional petition was allowed accordingly.

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

----O.XII, R.6---Qanun-e-Shahadat (10 of 1984), Art.31---Admission---Judgment on admission of party---While deciding an application under O.XII, R.6, C.P.C. on basis of admission of a defendant to a suit, the court should examine the averments of the plaint and written statement minutely and such admission must be specific, unambiguous categorical and definite; and if the admission was not certain, explicit, unequivocal, the court could not pass decree or final order---Even conditional admission, if any, was not covered within the scheme of O.XII, R.6, C.P.C. and it did not provide basis to deviate from settled norms of justice---While dealing with a plea raised under O.XII, R.6, C.P.C., Court was duty bound to examine the averments of plaint and written statements thoroughly and carefully and decide the factual controversy after framing of proper issues and recording evidence of parties by evaluating their respective claims and counter-claims judiciously in view of Art.31 of the Qanun-e-Shahadat, 1984---Admission should not be based on surmises and conjectures---Admission should exclusively pertain to claims and averments raised by one party and its acknowledgement and acceptance by the other party.

Amir Bibi through legal heirs v. Muhammad Khurshid and others 2003 SCMR 1261 and Macdonald Layton and Company Pakistan Ltd v. Uzin Export-Import Foreign Trade Co. 1996 SCMR 696 rel.

(c) Words and phrases---

----"Admission"---Meaning---Any statement or assertion made by a party to a case and offered against that party; an acknowledgement that facts are true.

Black's Law Dictionary English Edition p.50 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Matter related to Sindh Rented Premises Ordinance, 1979---Concurrent findings of fact by courts below---Writ of certiorari---Scope---Ordinarily the High Court in its Constitutional jurisdiction would not reappraise evidence in such matters to disturb findings of facts by courts below, but if such findings were found to be based on erroneous assumptions of facts and misapplication of laws, High Court could interfere with it, by issuing writ of certiorari to correct wrongs committed by Courts below.

Mian Mushtaq Ahmed for Petitioner.

Danish Qazi for Respondent No.1.

Date of hearing: 13th April, 2015.

2016 C L C 786

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

MUHAMMAD ISMAIL----Petitioner

Versus

PROVINCIAL ELECTION COMMISSION, through DEO, District N/Feroze, through A.G. Sindh and 5 others----Respondents

Const. Petition No.D-3868 and C.M.A. No.10770 of 2015, decided on 6th November, 2015.

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

----S. 36 (f)----Sindh Local Councils (Election) Rules (2013), R.52---Disqualification for candidates as members---Scrutiny of nomination papers----Rejection of nomination papers---Registration of FIR---Appellate Authority cancelled nomination papers of petitioner on ground of registration of FIR against him and his family members under S.496-A of Protection of Women Act, 2006 for abduction---Proceedings under Ss.87 & 88, Cr.P.C. had been initiated against petitioner and other accused before they joined the trial---Validity---Petitioner, having no criminal history, had filed his nomination form after complying with all codal formalities---No deficiency had been pointed out both before Returning Officer and the appellate authority, except registration of FIR about allegation of abduction; whereas, alleged abductee had categorically denied such allegations and registration of any such FIR---Petitioner and the others had already joined trial---High Court setting aside order of appellate authority, directed Returning Officer to accept nomination paper of petitioner and issue Form VII accordingly---Constitutional petition was allowed in circumstances.

Shabbir Ali Bozdar and Muhammad Sulleman Kalhoro along with Petitioner.

Ghulam Murtaza Korai and Saqib Kalhoro for Respondent No.5.

Zulfiqar Ali Sangi, Asstt. A.G.

Date of hearing: 6th November, 2015.

2016 C L C 796

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

YOUSAF ALI----Petitioner

Versus

MINISTER OF COOPERATIVE SOCIETIES SINDH ASSEMBLY AT KARACHI and 6 others----Respondents

Constitution Petition No.D-1141 of 2013, decided on 4th September, 2015.

General Clauses Act (X of 1897)---

----S. 24-A---Speaking order---Scope---Authority deciding the matter had to discuss the issue and thereafter to give its own view and findings on that issue and thereafter either to allow or to dismiss the matter before it by giving cogent reasons---Authority, in the present case, had failed to discuss reasons in the impugned order which had rendered the same not sustainable---Impugned order did not appear to be a sound order---Any order in violation of S.24-A of General Clauses Act, 1897 could not be considered to be an order in accordance with law---Impugned order did not fulfill the requirements of S.24-A of General Clauses Act, 1897 which was set aside---Matter was remanded to the authority for deciding the same afresh in accordance with law after granting opportunity of hearing to all the concerned parties through a well-reasoned and speaking order by giving valid reasons for accepting or rejecting the contentions raised before it---Constitutional petition was accepted in circumstances.

Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173; Government of Sindh v. Muhammad Juman and another 2009 SCMR 1407; Gouranga Mohan Sikdar v. The Controller of Import and Export PLD 1970 SC 158; M/s. Poly Pack Ltd. v. Customs and Central Excise Appellate Tribunal and others 2005 PTD 2566 rel.

Ahmed Khan Bugti and Ms. Najma Zehra for Petitioner.

Miran Muhammad Shah, Addl. A.-G., Sindh for Respondents Nos.1, 6 and 7.

Ch. Khalid Rahim Arain for Respondent No.2.

Nemo for Respondents Nos.3, 4 and 5.

Date of hearing: 4th September, 2015.

2016 C L C 844

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

MAZARI and 3 others----Petitioners

Versus

PROVINCE OF SINDH through Secretary Labour Department through A.A.-G. High Court of Sindh and 8 others----Respondents

C.P.No.D-1007 of 2010 and C.M.A. No.1092 of 2013, decided on 19th December, 2014.

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

----S. 218---Misappropriation of amount by the attorney---Agent's duty to pay sums received on behalf of principal---Scope---Acts done by the attorney would be construed as acts done by the principal---Principal was bound by such acts of his agent---Agent/attorney was bound to make payment and render accounts to his principal for the amount received---If agent failed to account for the amount so received then same would give rise to a cause of action to the principal to seek recovery of sums due to him---Attorney was given full authority to collect and receive the amount and do all incidental and ancillary acts in that regard---Case had been registered against the attorney for offences of fraud, forgery and criminal misappropriation--- Constitutional petition was dismissed in circumstances.

M/s. Islamabad Farming Co-operative Society and others v. Ghulam Abbas Khan and others 2011 SCMR 153 ref.

(b) Power of attorney---

----Acts done by the attorney would be construed as acts done by the principal.

Jamshed Ahmed Faiz for Petitioners.

Nemo for Respondents Nos.7 to 8.

Imtiaz Ali Soomro, A.A.G.

2016 C L C 855

[Sindh]

Before Aqeel Ahmed Abbasi and Syed Saeed-ud-Din Nasir, JJ

ABDUL LATIF and others----Petitioners

Versus

The APPELLATE AUTHORITY FOR LOCAL COUNSILS KHAIRPUR/THE DISTRICT AND SESSIONS JUDGE and others----Respondents

Constitutional Petitions Nos.D-3592, D-3627, D-3651, D-3654, D-3713, D-3764, D-3765, D-3778, D-3826, D-3874, D-3905, D-3909, D-3947, D-4017, D-4018 of 2015, decided on 28th October, 2015.

Sindh Local Councils (Election) Rules (2015)---

----Rr. 16 (2) & 18 (3)----Representation of the People Act (LXXXV of 1976), Ss.12 & 14---Nominations for election---Scrutiny---Nomination papers subscribed by proposer or seconder not belonging to same electoral unit---Principles as to permissibility and nature of the defect---Both Returning Officer and appellate authority rejected nomination papers of petitioners for local bodies elections on ground that either proposer or seconder of the candidate was not registered voters of the same electoral unit (constituency)---Petitioners contended that the defect, being not of substantial nature, could be cured in terms of R.18(3) second proviso of Sindh Local Council (Election) Rules, 2015, and the proposer or seconder could therefore be replaced as per law---Validity---Provisions of Rr.16 & 18 of Sindh Local Councils (Election) Rules, 2015 were similar to provisions of Ss.12 & 14 of Representation of the People Act, 1976---Section 14(3)(b) of Representation of the People Act, 1976 provided that Returning Officer might reject the nomination papers if he was satisfied that the proposer or seconder was not qualified to subscribe to the nomination papers---Unqualified proposer or seconder had lead to rejection of the nomination papers as provided under the said provision---Such defect could not be held to be not of substantial nature, because the same could be removed only by substitution of the nomination paper, and the law did not provide for substitution of proposer or seconder---Keeping in view the intention of the legislature word 'may' used in S.12(1) of Representation of the People Act, 1976 had to be read as `shall'---Any substantial defect or deficiency in nomination forms could not be ignored or condoned by Returning Officer at subsequent stage, as the same would deprive the contesting candidates of their substantial right, who, otherwise, would have filed proper nomination forms after complying with the law and relevant rules within stipulated period---Provisions relating to proposer and seconder of candidate were mandatory in nature, and the proposer or seconder, therefore, had to be of the same electoral unit from which petitioners had filed their nomination papers and was contesting elections---Said defect could not be cured at any subsequent stage and the nomination papers, having been found invalid on that account, could not be allowed to be validated afterwards in exercise of powers either by Returning Officer or Election Tribunal or for that matter by High Court or Supreme Court---High Court maintained impugned orders of rejection---Constitutional petitions were dismissed in circumstances.

Mudassar Qayyum Nahra v. Election Tribunal Punjab, Lahore 2003 MLD 1089 and Raja Muhammad Tajammal Hussain v. Rana Shaukat Mehmood PLD 2007 SC 277 rel.

Nisar Ahmed Bhanbhro for Petitioners (in C.P.Nos.D-3592 and 3713 of 2015).

Achar Khan Gabole for Petitioners (in C.P.Nos.D-3764 and 3765 of 2015).

J.K. Jarwar for Petitioner (in C.P.No.D-3826 of 2015).

Syed Zafar Ali Shah for Petitioner (in C.P.No.D-3874 of 2015).

Muhammad Arif Malik for Petitioners (in C.P.No.D-3905 of 2015).

Shabbir Ali Bozdar for Petitioners (in C.P.Nos.D-3909, 3947 of 2015).

Shahzado Dreho for Petitioners (in C.P.Nos.D-4017 and 4018 of 2015).

Sundar Khan Chachar and Ali Raza Baloch, for Applicants/ Petitioners (in C.P.Nos.D- 3627 and 3654 of 2015).

Petitioners present in person (in C.P.No.D-3651 and 3778 of 2015).

Qurban Ali Malano, Mehfooz Ahmed Awan and Pervez Ali Ghumro for Respondents (in all the aforesaid petitions).

Liaquat Ali Shar, Addl: A.G.

Noor Hassan Malik and Zulfiqar Ali Sangi, Asstt: A.G. along with Returning Officers.

Mian Mumtaz Rabbani, D.A.G along with Representative of Election Commission.

Dates of hearing; 27th and 28th October, 2015.

2016 C L C 878

[Sindh]

Before Muhammad Faisal Kamal Alam, J

TRADING CORPORATION OF PAKISTAN LIMITED----Plaintiff

Versus

Haji KHUDA BUX AMIR UMER LIMITED----Defendant

Suit No.176 of 1985, decided on 21st January, 2016.

Civil Procedure Code (V of 1908)---

----O.XXIX, R.1---Companies Ordinance (XLVII of 1984), S.196---Suit filed by corporation---Resolution of Board of Directors, absence of---Preliminary objection---Suit for recovery of money was filed by plaintiff corporation and defendant raised preliminary objection to maintainability of suit on the plea that there was no resolution passed by Board of Directors to file the suit---Validity---Act of compromising the suit or releasing or relinquishing company's claim was dealt with by way of mandatory provision viz. S.196 of Companies Ordinance, 1984, which provided a penalty for non-compliance but with regard to filing of legal proceedings the provision was significantly silent---Such silence was due to the fact that law suit/legal proceedings was to be regulated by Articles and Association of plaintiff company---Chairman and Directors, besides other senior officials at the helm of affairs, had given their separate approvals for filing the suit, therefore, it could not be said that suit was incompetently filed or instituted---High Court decided preliminary issues and declared principal officer of plaintiff company was duly authorized to file the suit, which had been competently filed in the name of plaintiff company---Objection was overruled in circumstances.

China Annang Construction Corporation v. K.A. Construction Company 2001 SCMR 1887; Trading Corporation of Pakistan v. Merchant Agency 2007 CLC 811; 1988 CLC 1381; Zamendar Co-operative Society v. NBP 1982 CLC 1276; 2004 MLD 1778; PLD 1997 Kar. 62; 2007 YLR 1745; 2008 SCMR 358; 2013 SCMR 1419; 1997 SCMR 66; Messrs Nishat Mills Limited v. Superintendent of Central Excise Circle-II and others PLD 1989 SC 222 ref.

Mazhar Jafri and Imran Hussain for Plaintiff.

Zia ul Haq Makhdoom and Azhar Mehmood for Defendant.

Date of hearing: 12th January, 2016.

2016 C L C 893

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs TRICOM ENTERTAINMENT (PVT.) LTD.----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) and another----Respondents

C.P. No.D-570 of 2013, decided on 12th February, 2015.

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

----Ss. 28, 29, 30 & 30-A----Constitution of Pakistan, Art. 199----Constitutional petition---Suspension of broadcast media and distribution service---Power to vary conditions, suspend or revoke licence---Power to authorize inspection---Cancellation of licence without issuance of reasonable notice to show cause and without affording opportunity of personal hearing---Relief, modification of---Permissibility---Conversion of Constitutional petition into appeal---Petitioner-company filed petition asserting that authorities had been threatening it with cancellation of its licence---Authorities took plea that present petition was not maintainable as licence of the channel of petitioner-company had already been cancelled---Validity---Authorities could not establish issuance and service of show-cause notice or communication of cancellation of license order to petitioner-company and had issued letter to petitioner-company requiring it to get its licence renewed by making payments of renewal fee---Petitioner-company, complying with said letter, had paid renewal fee---Authorities had not denied issuance of said letter and receipt of payment in consequence thereof, which suggested that neither petitioner-company nor even officer of the authorities were aware, of any order of cancellation of licence---High Court was competent to modify relief at any stage keeping in view the changed circumstances in order to meet ends of justice---High Court converted present petition into appeal against cancellation of licence order and referred the same to Single Judge of High Court for hearing same on merits in accordance with law.

M/s. Recorder TV v. PEMRA 2013 CLC 1376 ref.

M/s. Sharaf Faridi v. Province of Sindh PLD 1989 Kar. 404 rel.

Rashid A. Razvi, Abbas Razvi, Jamal Bukhari, Junaid Farooqui and Abdul Rauf for Petitioner.

Kashif Hanif for Respondent No.1.

Azizullah Buriro, D.A.G. for Respondent No.2.

Date of hearing: 12th February, 2015.

2016 C L C 919

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

CANTONMENT BOARD CLIFTON through Cantonment Executive Officer----Petitioner

Versus

SULTAN AHMED SIDDIQUI and 3 others----Respondents

Constitutional Petition No.D-1043 of 2004, decided on 6th November, 2014.

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

----Ss. 71, 84 & 250---Tax imposed by the Cantonment Board---Appeal to District Judge---Scope---Applicant approached Defence Housing Authority for execution of lease and he was directed to obtain NOC from Cantonment Board with regard to payment of house tax, conservancy tax and water charges---Applicant moved application before the Executive Officer of Cantonment Board for issuance of bills with regard to arrears of tax as well as current taxes in the name of previous owner---Requests of applicant were not granted and instead of taking an action on the application, matter was referred to Judicial Magistrate for proceedings under S.250 of Cantonments Act, 1924---Cantonment Board did not resolve the issue and insisted upon the applicant and previous owner to pay taxes and water supply was disconnected---Applicant filed appeal before the District Judge and prayed for direction for cancellation of previous bills and for issuance of fresh bills---District Judge accepted the prayer of applicant and also passed directions to the Cantonment Board to pass orders in such like cases within six months of the receipt of applications without fail---Validity---Applicant filed appeal to the District Judge without following procedure provided under S.71 of Cantonments Act, 1924---Appeal by an aggrieved person could be filed only against the final and authenticated assessment of taxes or against the refusal to refund any tax---District Judge without determining its jurisdiction and satisfying about the maintainability and legality of the appeal had entertained the same---No notice for transfer of property had been given to the Cantonment Board---Non-compliance of such requirement had rendered the application of applicant ineffectual and of no consequences---When law required a thing to be done in a particular manner then same should be done in that manner otherwise the same would be deemed illegal---No one could be allowed to plead ignorance of law to justify taking a course for alleviating his problems which was alien to the relevant law---Applicant had no locus standi to file appeal before the District Judge who assumed the jurisdiction improperly and wrongly---Impugned order was declared as coram non judice and was set aside---Cantonment Board was directed to process the case of applicant for transfer of property for taxation purpose expeditiously under the law---Constitutional petition was accepted in circumstances.

(b) Administration of justice---

----When law required a thing to be done in a particular manner then same should be done in that manner otherwise it would be deemed illegal.

(c) Administration of justice---

----No one could be allowed to plead ignorance of law.

Sohail H.K. Rana for Petitioner.

Muhammad Ali Hakro for Respondent No.1.

Abdul Qadir Laghari, Standing Counsel.

Date of hearing: 22nd October, 2014.

2016 C L C 1024

[Sindh]

Before Irfan Saadat Khan, J

ABDUL HUSSAIN TEHIRALLY through L.Rs. and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE OF COURT NO.VI, KARACHI SOUTH and 2 others----Respondents

Constitutional Petition No.S-1051 of 2012, decided on 23rd November, 2015.

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

----S. 15---Ejectment of tenant---Bona fide personal need of landlord---Criteria---Co-owner of property filing eviction petition----Scope---Ejectment petition was dismissed by the Rent Controller whereas same was accepted by the Appellate Court---Validity---Landlord was co-owner of demised premises---Relationship of landlord and tenant existed between the parties---Co-owner could file eviction petition on the ground of personal bona fide need---Landlord had prerogative to choose among many places the place which would suit him the best---Tenant could not give suggestion to the landlord as to which place would suit best for his business---Place in question should be genuinely required by the landlord in good faith which had to be established from facts of a particular case---Tenant was directed to vacate the demised premises within a specified period---Constitutional petition was dismissed in circumstances.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Saifullah v. Muhammad Bux 2003 MLD 480; M/s. Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033; Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502; Azim Khan v. Muhammad Hussain 2003 CLC 278; Secretary to the Government of the Punjab, Forest Department, Punjab Lahore v. Ghulam Nabi PLD 2001 SC 415; Shamauddin v. IVth Additional District and Sessions Judge (East) Karachi 2010 CLC 337; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 46; Pakistan Tobacco Company Limited, Karachi v. Director of Octroi, Karachi 2007 YLR 2982; Khurshid Ali v. Abdul Malik 1991 SCMR 1944; Javed Hussain Shah v. Government of Punjab 1998 SCMR 220; Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129; Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. 2003 CLC 416; Muhammad Afzal Khan v. Ali Akbar 2005 CLC 988; Sara Bai v. Godhra Muslim PLD 1993 Kar. 496; M. Altaf Hussain v. Peshawar Motors Limited 1990 MLD 337; Parvaiz Akhtar v. Muhammad Ahsan PLD 1988 SC 734; Bata Pakistan Limited through Company Secretary and General Attorney v. Muhammad Anwar PLD 2007 Lah.588; Muhammad Yousaf v. District Judge, Rawalpindi 1987 SCMR 307; M.K. Muhammad v. Muhammad Aboobakar 1991 MLD 801; Muhammad Ilyas v. Khurshid Begum 1989 CLC 506; Mtan Brothers v. Suleman 1989 CLC 494; Shahzada Sultan Hamayun v. Zainab Bai 1989 CLC 1338; Haleema Banker v. Ghulam Rasool Samroo 1994 CLC 2422; Qamaruddin Akbar Abbadi v. Zahid Khan 1992 ALD 52(1); Ahmad v. Haji Khair Muhammad 1992 CLC 2504; Saadat Ali Baig v. S. Bux Ellahi 1991 CLC 623; Raza Ali Shah v. Agha Hassamul Haque and another 1989 CLC 2003; Sh. Muhammad Ibrahim Kohli v. Additional District Judge, and others 1989 CLC 49; Rajab Ali v. Darius B. Kandawalla and another PLD 1984 Kar. 14; Ijaz Rashid v. Mst. Inayat Begum 1984 CLC 2459; Mohammad Hanif v. Mst. Sara PLD 1982 Kar. 182; M. Altaf Hussain v. Peshawar Motors Limited 1990 MLD 337; Javed Khalique v. Muhammad Irfan 2008 SCMR 28; Anwar Ahmad v. Jalaluddin 2008 YLR 2265; Almas Khan v. Mrs. Bano through Attorney and 2 others PLD 2009 Kar. 268; Pakistan State Oil Company Ltd. v. Muhammad Naqi 2001 SCMR 1140; Muhammad Rafique v. Habib Bank Limited 1994 SCMR 1012; Zakaullah v. Safdar 1986 SCMR 1873; Raza Ali Shah v. Agha Hassamul Haque and another 1989 CLC 2003; International Computers Limited (ICL) through Business Development Manager, Karachi v. Standard Chartered Bank Limited through General Manager and 2 others PLD 2012 Sindh 481; Niaz Muhammad Dar v. District Judge, Jhelum and another 1985 MLD 419; Mrs. Zahra Ali Muhammad v. Pirhai Shia Asna Ashri Jamat (Regd.) 1987 CLC 1938; Muhammad Yasin v. John Nicholas 1982 CLC 1599; Sara Bai v. Godhra Muslim PLD 1993 Kar. 496; Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Islamuddin v. IV-Additional District and Sessions Judge. Karachi East PLD 2008 Kar. 166 ref.

Mehboob Jewellers and others v. Nur Ahmad 1989 SCMR 1327; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Mst. Kulsoom v. Abdul Rasheed 1995 CLC 230; Mst. Shamim Akhtar v. Zakaria Yousuf and others 1998 CLC 410; Razia Sultana v. Water and Power Development Authority 1993 MLD 477 and Haji Ibrahim and others v. Habib Bank Ltd. and others PLD 2008 Kar. 361 distinguished.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348; M. Kassam and Bros. v. Sharabat Khan 1992 MLD 1225; Farkhunda Jawaid v. IInd Additional District Judge and others 2008 CLC 362; Mohammad Hanif v. Mst. Sara PLD 1982 Kar. 182; Qamar Zaman v. IInd Additional District Judge, Karachi and another 2008 CLC 431; Rajab Ali v. Darius B. Kandawalla PLD 1984 Kar. 14; Niaz Muhammad Dar v. District Judge, Jhelum 1985 MLD 419; Mst. Akhtari Begum v. Muhammad Qasim 2000 SCMR 1937; Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925; Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117; Sarwar Ali v. IInd Additional District and Sessions Judge, Karachi (East) 2010 YLR 815; Ghulam Hussain v. Court of Vth Additional District Judge, Karachi South 2009 CLC 272; Hafiz Ferozeuddin v. Arshad Begum 2010 CLC 365; Noorul Amin v. Sheeraz Sori and others 2008 MLD 1299; Wahid Hassan, Advocate v. Muhammad Aleem 1994 MLD 2418; Haji Majid v. Haji Imamuddin 1981 CLC 1091; Asghar Hussain v. Mst. Tauheed Begum 2005 CLC 633; Arif Baig v. Syed Nasir Hussain Zaidi 1991 MLD 1297; M/s. Hamdard Laboratories (Waqf) Pakistan v. Mohammad Yousaf 1993 MLD 469 and Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394 rel.

Ghulam Abbasi Pishori for Petitioners.

Nemo for Respondents Nos.1 and 2.

Asim Iqbal for Respondent No.3.

Date of hearing: 11th November, 2015.

2016 C L C 1047

[Sindh]

Before Nazar Akbar, J

PROVINCE OF SINDH through Secretary to Government of Sindh and another----Appellants

Versus

LAND ACQUISITION OFFICER and 2 others----Respondents

Ist Appeal No.54, C.M.As. Nos.1212 and 1213 of 2010, decided on 28th September, 2015.

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

----S. 18---Civil Procedure Code (V of 1908), S.79---Land acquisition---Reference to court, rejection of---Appeal---Limitation---Void order---Reference to court was rejected on the ground that beneficiary of acquisition had no right to file a reference or appeal---Validity---Referee Court refused to entertain the reference filed by the beneficiary of the award under the misconception of law---Impugned order was without jurisdiction---Jurisdiction vested in the Referee Court had not been exercised properly---Reference was maintainable in circumstances---Bar of limitation was not applicable to the appeal as impugned order was void ab initio and nullity---Beneficiary of acquisition could file a reference or appeal if he was a party before the Referee Court---Reference was not hit by S.79, C.P.C.---Case was remanded to the Referee Court for deciding the same in accordance with law within a specified period---Appeal was allowed in circumstances.

BP Pakistan Exploration and Production v. Sher Ali Khawaja PLD 2008 SC 400 and Water and Power Development Authority v. Ghulam Shabbir 2009 SCMR 1051 ref.

Land Acquisition Collector v. Muhammad Nawaz PLD 2010 SC 745; Land Acquisition Collector v. Sarfaraz Khan PLD 2001 SC 514; and Sherbano v. Kamil Muhammad Khan PLD 2012 Sindh 293 rel.

(b) Limitation---

----No limitation would run against the void order.

Land Acquisition Collector v. Sarfaraz Khan PLD 2001 SC 514 and Sherbano v. Kamil Muhammad Khan PLD 2012 Sindh 293 rel.

Allah Bachayo Soomro, Addl. A.G, Sindh and Muhammad Huymayoon Khan Special Counsel for Appellants.

Irfan Ahmed Qureshi for Respondents Nos.2 and 3.

Date of hearing: 28th September, 2015.

2016 C L C 1063

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD WAJID KHAN----Plaintiff

Versus

ATTOCK CEMENT FACTORY PAKISTAN LTD. and 3 others----Defendants

Suit No.456 of 1988, decided on 11th March, 2016.

Karachi Building and Town Planning Regulations, 1979---

----Regln. 180---Safety measures, absence of---Compensation---Res ipsa loquitor, principle of---Plaintiff while on duty fell off the mechanical erection of Bucket Elevator from a height of 17 meters and received serious injuries---Plaintiff remained under treatment of different doctors at different hospitals---Plaintiff sought recovery of compensation and damages on the ground that defendants did not provide adequate safety measures and other necessary protections at the site which resulted in the incident---Validity---Assertions of plaintiff had gone un-rebutted that no scaffolding was in place at the project site when the incident occurred in which plaintiff got seriously injured---Defendants failed to comply with basic safety measures as provided in Karachi Building and Town Planning Regulations, 1979, which otherwise were to be strictly adhered to, as the same were framed in public interest and cast a duty on all those who were required to follow the same and it was joint responsibility and obligation of all defendants which fell within the purview of composite negligence---Even if defendants had led evidence to falsify claim of plaintiff, still onus was on them to show that bucket elevator and other necessary safety provisions were in place and the incident did not occur due to negligence of defendants but of plaintiff himself---Principle of res ipsa loquitor (things speak for themselves) was applicable unless successfully controverted by defendants---Overall conduct of defendants was disturbing, rather appalling---High Court instead of awarding Rs.4.7 million as claimed by plaintiff, awarded only Rs.3 million---Suit was decreed accordingly.

Mst. Perveen Akhter v. Consulate-General of U.S.A. at Karachi and others 2006 MLD 1657; Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi AIR 1924 Bombay 290; Abdul Majid Butt v. United Chemicals Ltd. PLD 1970 Lah. 298; Kayumarz v. Messrs Mohammadi Tramway Company Karachi and others PLD 1968 Kar. 376; Nathey Khan v. Government of West Pakistan (Now Punjab) 1980 SCMR 485; Muhammad Anwar v. Pak Arab Refinery Limited through Managing Director 2007 CLC 1821; 1974 SCMR 269; 2006 CLC 440; 1991 SCMR 2126; Agriculture Workers' Union case 1997 SCMR 66 and Hinz v. Berry (1970) QB 40 ref.

National Logistic Cell v. Irfan Khan and others 2015 SCMR 1406; Abdul Qadir v. S.K. Abbas Hussain and two others PLD 1997 Kar. 566 and Pakistan Steel Mills Corporation v. Malik Abdul Habib's case 1993 SCMR 848 rel.

Farrukh Usman and Aamir Maqsood for Plaintiff.

A. Nafees Osmani for Defendant No.1.

Date of hearing: 26th February, 2016.

2016 C L C 1079

[Sindh]

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

ABDUL WAHEED USMAN through legally constituted attorney----Appellant

Versus

GUL HAMEED GHANCHI and 6 others----Respondents

High Court Appeal No.133 of 2014, decided on 29th September, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.II, R.2---Limitation Act (IX of 1908), Art.91---Suit for declaration of title---Frame of suit---Cause of action---Bar of suit---Limitation---Scope---Suit of plaintiff was rejected on ground that it was barred by limitation as well as under R.2 of O.II, C.P.C.---Contention of plaintiff was that Trial Court had failed to appreciate that previous suit filed by plaintiff was in respect of a different cause of action, hence the provisions of O.II, R.2, C.P.C. and that of Art.91 of Limitation Act, 1908 were not applicable and suit was not barred under S.42 of Specific Relief Act, 1877 for the reason that suit was filed only when it came to the knowledge of plaintiff that some construction was being done on the said property (land)---Defendant's plea was that defendant being an owner of plot which had no concern with the property in dispute since plaintiff had earlier filed a suit in respect of said property, therefore, a subsequent suit seeking declaration in respect of same cause of action was barred under O.II, R.2, C.P.C.---Held, that since cause of action for filing present suit arose only when it transpired that area in question of plot had included areas of other plots, bar of O.II, R.2, C.P.C., would not be applicable---When suit was filed, the question that whether the other plot was carved out after allegedly encroaching upon the areas of other plots had not arisen and no relief in that regard could have been sought by plaintiff and with regard to objection that suit was time barred---High Court observed that construction work was already started and plaintiff got knowledge about such fact in year 2012---Period of limitation would start from thereon and not from the date of site plan dated 20-6-1998 through which existence of plot was being claimed---Plaintiff could have presumed that for some reason area of plot in question included some area of other plot or it had been carved out after bifurcating and or encroaching his plot until construction started and counting from date of such knowledge about construction, suit was within period of limitation---For purpose of limitation, date of cause of action as averred in plaint was to be looked into wherein it had been categorically accrued that only when construction was started on plot somewhere in year 2012 and it came to knowledge of plaintiff that plot had been carved out by allegedly encroaching upon area of other plot, hence, plaint could not have been rejected on the point of limitation as suit was filed immediately in the year 2012---Impugned order of Trial Court was set aside and case was remanded to Trial Court---Appeal was allowed accordingly.

Mirza Sarfraz Ahmed for Appellant.

Khawaja Shamsul Islam for Respondent No.1.

Date of hearing: 24th August, 2015.

2016 C L C 1090

[Sindh]

Before Abdul Rasool Memon, J

SARWAR ALI and 8 others----Plaintiffs

Versus

REGISTRAR OF JOINT STOCK COMPANIES and 11 others----Respondents

Suit No.1228 and C.M.As. Nos.10470 and 11091 of 2015, decided on 15th October, 2015.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Requirements---Pleadings, documents and supporting evidence had to be examined and assessed tentatively for grant of injunction or refusal of the same---Where complicated question with regard to merits of the case had arisen requiring framing of issues and recording of evidence injunctive order might not be issued---Claim of plaintiffs, in the present case, required deeper appreciation of evidence which could only be made after trial by framing of issues---Plaintiffs had no prima facie case in their favour---No case for grant of temporary injunction had been made out---Application for grant of temporary injunction was dismissed in circumstances.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Ingredients---Ingredients for grant of temporary injunction were prima facie case, irreparable loss and balance of inconvenience.

Moulvi Iqbal Haider for Plaintiffs.

Yahya Khan for Defendants Nos.5, 7, 8, 9 and 12.

S. Kazim Raza defendant No.2 and Advocate for Defendants Nos.3, 4, 6, 9 and 11.

S. Hasan M. Abidi for Contemnor.

Ms. Marzia Begum, State Counsel.

Date of hearing: 13th October, 2015.

2016 C L C 1152

[Sindh]

Before Sajjad Ali Shah and Syed Saeed-ud-Din Nasir, JJ

RAMESH KUMAR UKRANI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources and 3 others----Respondents

C.P. No.D-4829 of 2014, decided on 30th July, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Administrative action---Limited company under dominative control of the State---Maintainability of constitutional petition against such company---Company which was performing function in connection with affairs of Federation, was amenable to constitutional jurisdiction of High Court---Mere fact that company was a limited company registered under the Companies Ordinance, 1984, limited by shares was not sufficient to hold that constitutional petition could not be maintained against such company---Even if such company was registered under Companies Ordinance, 1984 but was funded by Federal or Provincial Government and was under the dominative control of the State, jurisdiction under Art.199 of the Constitution, would lie against such company---Constitutional petition was, therefore, maintainable.

Inam Ali Bhutto and others v. Sui Southern Gas Company Ltd. and others 2000 PLC (C.S) 459; Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 CLC 1559; Punjab Public Service Commission and another v. Mst: Aisha Nawaz and others 2011 SCMR 1602; Huffaz Seamless Pipe Ind. Ltd.'s case 1998 CLC 1890; M/s. Ramna Pipe and General Mills (Pvt.) Ltd. v. M/s. Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274 rel.

(b) Constitution of Pakistan---

----Art. 158---Constitutional petition---Priority of requirements of natural gas---Petitioner impugned non-commissioning of supply of gas to petitioner's CNG station by company---Held, authority should adhere to letter and spirit of Art.158 of the Constitution while dealing with petitioners and all stake-holders in the Province vis-à-vis the supply of gas---Petitioner had sought treatment similar to other CNG Stations, to whom gas was being supplied and had stated that if nobody was being supplied gas, the petitioner would have no objection, however, whenever gas was available for other CNG Stations, the petitioner should get treatment at par with others---Petitioner was entitled to commissioning of gas supply inasmuch as petitioner's CNG station fell within category of lifting of moratorium by Federal Government---Constitutional petition was allowed, accordingly.

PLD 2012 Sindh Karachi 50 and Messrs Lucky Cement Ltd. v. Federation through the Secretary of Ministry of Petroleum and Natural Resources PLD 2011 Pesh. 57 rel.

Faisal Siddiqui for Petitioner.

Zia-ul-Haque Makhdoom, D.A.G. for Respondent No.1.

Asim Iqbal for Respondents Nos.2 and 3.

Zia-ul-Haque Makhdoom, D.A.G. for Respondent No.4.

Date of hearing: 21st April, 2015.

2016 C L C 1180

[Sindh]

Before Salahuddin Panhwar, J

ALLIED BANK OF PAKISTAN----Decree-holder

Versus

FATEH TEXTILE MILLS and others----Judgment-debtors

Execution No.69 of 2004 in Suit No.B-32 of 2002 C.M.As. Nos.202, 361 of 2015 and 19 of 2016, decided on 12th February, 2016.

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

----O. XXI, Rr.66, 69(3) & 72---Execution of decree---Auction---Proclamation of sale/reserve price---Requirements---Decree holder's right to participate/bid in auction---Permissibility---Judgment debtor had raised number of legal pleas to resist the auction proceedings but nowhere had he denied the right of the decree holder to have his adjudicated claim satisfied through legal course, which included attachment of property of the judgment debtor or part thereof to be followed by auction sale---Proclamation, in the present case, had been issued which contained the amount evaluated by the decree holder and which was more than the decreed amount for recovery whereof the auction was being conducted---Judgment debtor, despite notice for submitting evaluated price, had failed to submit the same; hence, he could not take any advantage of his own failure---Order XXI, R.69(3), C.P.C. provided opportunity to judgment debtor to get the auction/sale stopped by tendering the decretal amount---Judgment debtor had raised the objection only when the decree holder had requested for permission to participate in the auction proceedings---Non-determination of reserved price was not an embargo to proceed for auction of the property to be sold in ordinary civil matter---Provisions of O.XXI, R.72, C.P.C. were permissive in nature to the decree holder to participate in auction, but the same would mean or influence the auctioneer or prejudice the right of other participants to bid for the property under auction---No justification existed to decline the request of the decree holder to participate in the auction.

Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another AIR 1954 SC 349; Investment Corporation of Pakistan v. Muhammad Bilal Ahmed and other 2008 CLD 313; Muhammad Amin alias Jaloo v. Judge Banking Court and others 2011 CLD 280; Muhammad Afzal Khan v. National Bank of Pakistan 2015 CLD 464; Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. through Branch Manager and 3 others 2003 CLD 1693; AIR 1987 SC 2081; Shahid Ali v. Mrs. Aziz Fatima and others PLD 2010 SC 38 and M. Varadarajulu Pillai v. Gendapodinanniar and others AIR 1950 Madras 392 ref.

Shahid Ali v. Mrs. Aziz Fatima and others PLD 2010 SC 38; National Bank of Pakistan v. Saf Textile Mills Ltd. PLD 2014 SC 283; M. Varadarajulu Pillai v. Gendapodinanniar and others AIR 1950 Madras 392 and Muhammad Attique v. Jami Limited 2015 SCMR 148 rel.

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

----O. XXI, R. 66----Execution of decree---Reserve price---Principles---Phrase amount for the recovery', and not the term 'reserved price', is mentioned in O.XXI, R. 66, C.P.C.---Attachment, auction and sale of property takes place only in consequence of failure of the judgment debtor to satisfy the decree---Normally, the decree holder is to choose the property of the judgment debtor for satisfaction of the decree by legal course of attachment, auction and sale; therefore, mentioning of amount evaluated, or least decretal amount, by the decree holder is necessary in proclamation, which, per the decree holder, is sufficient for satisfaction of the decree---'Reserve price', in ordinary auction proceedings, would not be less than thedecretal amount'---No provision existed to permit the court to determine the price of the attached property before auction thereof---Notices to the parties, including the judgment debtor, do not mean to allow the judgment debtor to claim or value his attached property exorbitantly and to take the same as 'reserved price'.

Lanvin Traders Karachi v. Presiding Officer Banking Court No.2 Karachi and others 2013 SCMR 1419 rel.

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

----O. XXI, R. 66----Execution of decree---Proclamation of sale---Requirements and object---Order XXI, R. 66(1), C.P.C. is mandatory in nature whereby the auction of the property would not be held without proclamation---Object of proclamation is nothing but to have an open, fair and transparent auction in order to eliminate all chances of any maneuver at the cost of the rights and interests of the judgment debtor---Proclamation is, therefore, must and failure thereof would result in setting aside such exercise, unless the judgment debtor validates the same by open and clear stance---Any irregularity in drawing up the proclamation is procedural and directory in nature and unless the irregularity is complained to have resulted in serious prejudice to the judgment debtor, the irregularity would not be taken as fatal.

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

----O. XXI, R. 64----Execution of decree---Power of court to attach property---Scope and object---Purpose of vesting the court with power to attach and sell property under O.XXI, R.64, C.P.C. is nothing but to satisfy the decree, but since courts are the ultimate guardians of the rights of individuals; therefore, mechanism (procedure) has been laid down in rules to avoid any prejudice to the rights and interests of the judgment debtor, who even having been declared the judgment debtor, continues with fair treatment.

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

----O. XXI, R. 66----Execution of decree---Reserved price, determination of---Requirement---Determination of 'reserve price' is not the requirement of O.XXI, R. 66, C.P.C., while dealing with ordinary auction proceedings and amount evaluated by the decree holder or least decretal amount would be sufficient.

Mustafa Ali for Decree-holder.

Dr. Muhammad Farogh Naseem for Judgment-debtor.

Ms. Soffia Seed for Applicant (NBP).

Date of hearing: 11th February, 2016.

2016 C L C 1202

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Muhammad Iqbal Kalhoro, JJ

ALI NAWAZ through L.Rs. and others----Petitioners

Versus

Mst. ZAINAB through L.Rs. and others----Respondents

C.P. No.D-1585 and M.A No.8690 of 2011, decided on 28th January, 2016.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 9---Mesne profits---Assessment of---Report of Commissioner---Scope---Commissioner was appointed to determine the share of mesne profits of plaintiffs---Defendants objected the report of Commissioner but same was declined---Contention of defendants was that no opportunity to cross-examine the Commissioner was provided to them---Validity---Examination of Commissioner under O.XXVI, R.9, C.P.C. was not mandatory---Court had discretion to examine or not to examine and also to disallow such examination if there was no real ground for it---Commissioner had recorded statements of local zamindars which were also part of his report for assessing the share of mesne profits---Trial Court was not bound to allow cross-examination of Commissioner by the defendants---Job of Commissioner was to assess the mesne profits after evaluating the income and expenditure of the defendants---Objections over the report of Commissioner or making application for appointment of new Commissioner was nothing but an attempt to delay the matter---Nothing was on record that report of Commissioner was prejudicial to the interest of defendants---Final decree had been passed on the basis of report of Commissioner and same had not been challenged---No illegality or irregularity had been pointed out in the impugned order passed by the court below---Constitutional petition was dismissed in circumstances.

Pirbhulal U. Goklani for Petitioners.

Saeeduddin Siddiqui for Respondents.

Allah Bachayo Soomro, Addl. A.G.

Date of hearing: 13th January, 2016.

2016 C L C 1216

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar, J

DOST ALI----Applicant

Versus

Mst. FARZANA through Special Attorney and others----Respondents

R.As. Nos.51 and 52 of 2015, decided on 15th February, 2016.

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

----S. 42---Suit for declaration---Grant of land---Cancellation of---Land granted in favour of plaintiff was cancelled by the revenue authorities---Validity---Grant of land to the plaintiff was a bona fide mistake on the part of revenue officials---Revenue officials had rectified their mistake as soon as they acquired knowledge---When land was not available for grant to the plaintiff then exercise of powers by the revenue authorities was not legal or lawful---Grant of land to the defendant was still intact and subsequent grant to the plaintiff was cancelled---Plaintiff had not challenged registered sale deed executed by the defendant---Both the courts below had rightly recorded findings of fact on the basis of evidence available on record---Plaintiff had failed to point out any illegality or material irregularity in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

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

----S. 115---Revision---Scope and object---Revisional jurisdiction could be invoked in cases involving illegal assumption, non-exercise or irregularly exercised jurisdiction---Object of revision was to rectify the error committed by the subordinate courts in exercise of jurisdiction---Concurrent findings recorded by the courts below could not be called in question unless it was shown that courts below either had no jurisdiction or failed to exercise jurisdiction vested in them or had committed some illegality or material irregularity resulting in gross injustice---Fact that a different view of evidence could be taken by the courts below was no ground for setting aside such findings in exercise of revisional jurisdiction unless such findings were perverse.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Muhammad Akbar Mughal for Applicant.

Abdul Haseeb Khawaja for attorney of Respondents Nos.1 and 7.

Sher Muhammad Leghari, State Counsel.

Date of hearing: 25th January, 2016.

2016 C L C 1233

[Sindh]

Before Salahuddin Panhwar, J

Mrs. SURIYA IQBAL CHISHTI and 3 others----Plaintiffs

Versus

Mrs. RUBINA MAJIDULLA and 2 others----Respondents

Suit No.195 and C.M.As. Nos.8408, 8409, 7488, 1933, 3784 of 2013 and 584 of 2015, decided on 11th February, 2016.

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

----O. VII, R. 11 & O. XXII, R. 1---Suit for declaration---Application of rejection of plaint---Death of plaintiff or defendant would not abate the suit if right to sue survived---Suit competently filed by the plaintiff could not be rejected merely for reason of his/her death during the pendency of suit---Decree of the court was only remedy for revocation of a gift in favour of any person falling within prohibited decree even after delivery of possession---Plea with regard to gift to be valid or otherwise should require evidence---Application for rejection of plaint was dismissed in circumstances.

1987 SCMR 1492; PLD 1989 SC 362; PLD 1960 Lah. 130; PLD 1968 SC 54; 2005 SCMR 135; 1994 SCMR 8081; PLD 1956 Lah. 716; 1994 SCMR 1939; 1997 MLD 432 and 1997 CLC 1260 ref.

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

----O. XXII, R. 1---Death of a party---Abatement of suit---Scope---Death of plaintiff or defendant would not abate the suit if right to sue survived.

Jaffer Raza for Plaintiff No.3

Khwaja Shamsul Islam for Defendants.

Ejaz Mubarak Khattak for DHA.

2016 C L C 1251

[Sindh]

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

FARIDA SAEED----Appellant

Versus

KHURRAM ZAFAR----Respondent

H.C.A. No.52 of 2014 C.M.A. No.4199 of 2015 and C.M.A. No.586 of 2014, decided on 12th October, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, Rs.5, O.XII, R.6, O.XV & O.VII, R. 2----Suit for recovery of money---Attachment before judgment---Direction to furnish security equivalent to claimed amount---Decree on basis of admission---Principles---Disposal of property at the first hearing---Defendant admitted the receipt of the amount claimed by the plaintiff in the suit but denying her liability to pay the same taking certain defence as to the purpose of receiving the amount---Trial court, while rejecting the plaintiff's claim for attachment before judgment, decree on admission and deposit of the claimed amount, directed the defendant to furnish security equivalent to the claimed amount---Validity---Remedy to obtain judgment on admission provided under O.XII, R.6, C.P.C. with the intent to shorten the litigation keeping in view that the facts admitted needed not to be proved---Order XV, C.P.C. empowered the court to at once pronounce judgment when the court came to the conclusion that the parties were not at issue---Court might also consider partially decreeing the claim, where a portion of the claim had been admitted---Law, however, had prescribed a very high test of considering the admission by providing that admission, on basis whereof claim could be decreed, should have been specific, clear, unqualified, unequivocal, unconditional, and admission which did not qualify such test could not be made basis of decree---If an admission was of lesser value and the same did not qualify said test, then the court could not pass an order in the alternative, such as directing the defendant to furnish security or to deposit the claimed amount, as such, the order could be passed once the plaintiff would meet the pre-requisite of O.XXXVIII, C.P.C.---Unless the suit for recovery fell under a summary chapter, the concept of calling a party to furnish security for the suit amount was alien to the procedural law except in accordance with the provision of O.XXXVIII, C.P.C.---Order XXXVIII, C.P.C. provided for preventive action and equipped the court with ample power to direct the defendant either to furnish security, in such sum as might be specified in the order, or to produce and place at the disposal of the court, when required, the property or the value of the same or such portion thereof as might be sufficient to satisfy the decree---Such order could only be passed when the plaintiff satisfied the court through affidavit or otherwise that the defendant, with intent to obstruct or delay execution of any decree, which might be passed against him, was about to dispose of the whole or any part of his property or was about to remove the whole or any part of his property from the local limits of jurisdiction of the court---If the plaintiff failed to satisfy the court regarding his entitlement to the attachment before the judgment in terms of O.XXXVIII, C.P.C., directing the defendant to furnish security would amount to a punitive action totally against the spirit of O.XXXVIII, C.P.C.---Once the court had rejected the plaintiff's plea under O.XXXVIII, R. 5, C.P.C., the court could not direct the defendant to furnish security---High Court set aside the impugned order---Appeal was allowed in circumstances.

Haider Waheed for Appellant.

Asim Iqbal along with Anas Makhdoom for Respondent.

2016 C L C 1284

[Sindh]

Before Muhammad Junaid Ghaffar, J

MANZOOR BUTT through L.Rs. and 2 others-----Plaintiffs

Versus

MAHMUD SUFI and 7 others----Defendants

Suit No.1271 of 1998, decided on 11th April, 2016.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for declaration---Benami transaction---Burden of proof---Requirements---Contention of plaintiff-husband (since died) was that transaction in favour of defendant-wife (since died) was benami transaction---Validity---Plaintiffs (legal representatives) for their alleged right had to prove such facts---Plaintiff in a suit for benami declaration had to show that there was a motive and reason to buy such property as benami---Once such motive had been shown, plaintiff must also show that subject property was purchased from its sources---If these two things were missing in a positive manner then court could not consider any further evidence---Plaintiffs had failed to show any of their sources which were utilized in buying the suit property---Source of money had never been the sole consideration but it was one of the relevant considerations in such cases---Court had to gather the intention of the parties from the totality of the circumstances surrounding the transaction---Original documents and possession of the property was with the plaintiffs but same had no relevancy in the present case as husband and wife were living happily till she died---Plaintiffs had failed to make out their case seeking benami declaration with regard to suit property---Suit was dismissed in circumstances.

Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829; Nooruddin and 11 others v. Abdul Waheed PLD 1997 Kar. 6 and Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 ref.

Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569; Chittaluri Sitamma and another v. Saphar Sitapatirao and others AIR 1938 Mad 8; Thulasi Ammal v. Official Receiver, Coimbator AIR 1934 Mad. 671; Protimarani Debi and another v. Patitpaban Mukherjee and others 60 CWN 886 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 rel.

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

----Art. 117---Burden of proof---Scope---Onus to prove a claim would be on the person who had asserted such claim.

Ch. Atif Rafiq for Plaintiffs.

Sohail Hameed for Defendant No.2.

Abdul Rehman for Defendants Nos.6 and 7.

Date of hearing: 29th March, 2016.

2016 C L C 1326

[Sindh]

Before Muhammad Faisal Kamal Alam, J

RICE EXPORT CORPORATION OF PAKISTAN----Plaintiff

Versus

MOHAMMAD ALAM----Defendant

Suit No.749 of 1989, decided on 1st April, 2016.

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

----Ss. 151 & 161---Civil Procedure Code (V of 1908), O.XXIX, R.1---Bailee, responsibilities of--- Scope--- Suit by company---Maintainability---Bailee's responsibility when goods were not returned---Two Directors of company recorded their separate approvals to file the suit---Suit had been filed by a competent person who was the then Director and Principal Officer of the company---Suit was maintainable in circumstances---Bailee had to exercise due care and diligence with regard to goods bailed to him---If bailed goods were not returned, delivered or tendered on the proper time and such default resulted in any loss, bailee would be liable for such loss---Suit was decreed.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; PLD 1959 SC 550; Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan PLD 2004 Kar. 17 ref.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550; Abdul Rahim and others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62; Trading Corporation of Pakistan v. Merchant Agency, the Trading Corporation Case 2007 CLC 1811; Messrs Mastersons v. Messrs Ebrahim Enterprises and another and 1988 CLC 1381 and Sri Narasimhaswami, Namagiri Amman and Sri Ranganathaswami Temples v. Muthukrishna Iyengar AIR 1962 Madras 244 (V 49 C 57) rel.

(b) Maxim---

----"Res ipsa loquitur"---Meaning.

S. Ashfaq Hussain Rizvi for Plaintiff.

Sajid Latif for Defendant.

Date of hearing: 29th March, 2016.

2016 C L C 1348

[Sindh]

Before Muhammad Karim Khan Agha, J

IQBAL HUSSAIN----Petitioner

Versus

MOAZAM ZAHEER KHAN and another----Respondents

C.P. No.S-800 of 2010, decided on 15th January, 2016.

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

----Ss. 15, 10 & 21(1-C) (1-D)---Ejectment of tenant---Default in payment of rent---Personal bona fide need of landlord---Compromise between landlord and tenant---Scope of S.21(1-C) & (1-D) of Sindh Rented Premises Ordinance, 1979---Contention of tenant was that S.21(1-C) & (1-D) of Sindh Rented Premises Ordinance, 1979 had not been complied with by the Appellate Court and case should be remanded for decision afresh---Validity---Once landlord had confirmed on oath that he required the property for his own use then, unless he was shattered on cross examination on this point, it would be sufficient to prove the ground of bona fide use---Demised premises was required by the landlord in good faith for his own use---Tenant himself could have raised the ground of compromise at the time of hearing of eviction petition and even at the time of appeal against the order of Rent Controller---Provisions of S.21(1-C) & (1-D) of Sindh Rented Premises Ordinance, 1979 should have been pressed into service in order to reach at a compromise at an early stage of proceedings---Said provisions of law were not mandatory in nature---Tenant having not pressed compromise before the courts below, no compromise could be effected between the parties at present stage---Tenant had failed to discharge his burden of proof of the required standard that he had attempted to pay rent to the landlord or his rent collector and they refused to accept the same---Tenant, on receipt of legal notice, should have immediately attempted to pay rent directly to the landlord or his rent collector and only on their/his refusal he should attempt to pay the same either by postal money order to the landlord or deposit the amount before the Rent Controller---No misreading or non-reading of evidence had been pointed out in the impugned orders passed by the courts below---Tenant had willfully defaulted in payment of rent---Constitutional petition was dismissed in circumstances.

Muhammad Subhan and another v. Mst. Bilquis Begum through legal heirs and 3 others 1994 SCMR 1507(2); Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152; Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Haji Qaim through Legal Heirs v. Syeed Rahim Shah 1999 MLD 1014 ref.

Abdul Latif v. Ghulam Nabi and others 2006 YLR 522; Azam Khan through General Attorney v. Muhammad Hussain and 5 others 2003 CLC 278; Ittehad Chemicals Ltd. v. VII-Additional District Judge and others 2010 CLC 599; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Mst. Yasmeen Khan v. Abdul Qadir and another 2006 SCMR 1501; Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi 2001 SCMR 1140 and M/s Ali Brothers and others v. Mrs. Naushaba Jabeen and others 2001 MLD 648 rel.

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

----Ss. 7 & 8---Fair rent---Fixation of---Scope---Landlord could not unilaterally increase the rent on his own whims---If landlord was dissatisfied with the amount of rent currently being paid by the tenant then his remedy would lie in moving the Rent Controller to fix fair rent.

(c) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court was limited to interfere with the findings of appellate court under Sindh Rented Premises Ordinance, 1979, but same was not barred totally---High Court could exercise discretionary jurisdiction to ensure that justice had been done---Such jurisdiction could be exercised only when there had been a blatant and glaring error by the appellate court.

(d) Interpretation of statutes---

----If word "may" was used (in the provision of law) then same would be only directory and not binding whereas if word "shall" was used then it would be mandatory and must be complied with especially if adverse consequences might follow.

(e) Interpretation of statutes---

----Duty of court was to apply the law and not to make law---Statute must be read as a whole and no part of it should be made redundant.

Mustafa Lakhani for Petitioner.

Adnan Ahmed for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 11th January, 2016.

2016 C L C 1372

[Sindh]

Before Nazar Akbar, J

DISTRICT OFFICER (REVENUE) THATTA and another----Applicants

Versus

KARIM BUX----Respondent

Revision Application No.243 of 1989, decided on 12th January, 2016.

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

----O. VIII, R. 10, O. IX, R. 9 & S. 79---Qanun-e-Shahadat (10 of 1984), Arts.2(c), 70 & 72---Sindh Land Revenue Act (XVII of 1967), Ss.172 & 161---Suit for declaration---Defence, striking off---Scope---Trial Court while dismissing application for adjournment to file written statement ordered for ex parte proceedings and on the basis of affidavit in ex parte proof decreed the suit---Validity---Trial Court had decreed the suit without examining the plaintiff on oath---Original documents were never filed by the plaintiff with his affidavit in ex-parte proof---Mere filing of an ex parte proof by an affidavit was not production of evidence---Only photocopies had been produced as evidence, which were not admissible in evidence---Trial Court was bound to examine the correctness, veracity and truth of the claim of plaintiff set out in the plaint---Parties approaching the court should succeed on the merits of their own case and not on account of weakness of other side---Requirement of evidence could not be ignored by the courts while pronouncing judgment under O.VIII, R.10, C.P.C.---Defendants were government functionaries and not the government themselves---Suit should have been dismissed on account of non-compliance of provisions of S.79, C.P.C. as Government had not been impleaded in the same---Plaintiff had challenged the order of Deputy Commissioner with regard to boundaries of suit plot which was appealable---Civil courts had no jurisdiction in the matters within the jurisdiction of revenue authorities---When remedy of appeal was available under special law then jurisdiction of civil court could not be invoked without exhausting the remedies provided in the statute itself-- Present suit was barred by law---Plaintiff had not adduced evidence in accordance with law in support of his claim before the Trial Court---Public functionaries were not produced in the witness box to confirm the documents and verify contents thereof filed by the plaintiff with the plaint---Both the courts below had failed to exercise jurisdiction vested in them---Impugned judgments and decrees were set aside and suit was dismissed in circumstances.

Nisar Ahmed and others v. Habib Bank Ltd. 1980 CLC 981; Haji Muhammad Moosa and another v. Provincial Government of Balochistan 1986 CLC 2951; Malik Muhammad Saeed v. Mian Muhammad Sadiq 1985 MLD 1440; Divisional Forest Officer, Afforestation Division, Sanghar at Khipro v. Khan through Legal Heirs and 10 others 2008 SCMR 442; Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115; Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 and Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16 rel.

(b) Sindh Land Revenue Act (XVII of 1967)---

----S. 161---Appeal before revenue authority---When remedy of appeal was available under special law then jurisdiction of civil court could not be invoked without exhausting the remedies provided in the statute itself.

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

----Art. 2(c)---Evidence---Scope---Evidence could be produced by making a statement on oath.

Namo for Applicant No.1.

Syed Alley Maqbool Additional Advocate General, Sindh for Applicant No.2.

K.B. Bhutto for Respondent.

Dates of hearing: 21st December, 2015 and 5th January, 2016.

2016 C L C 1396

[Sindh]

Before Mohammad Shafi Siddiqui, J

M/s. HASCOL PETROLEUM LTD. through Authorized Attorney----Plaintiff

Versus

M/s. SHELL PAKISTAN LIMITED through Chief Executive Officer and 5 others----Respondents

Suit No.2471 and C.M.As. Nos.16412 and 16693 of 2014, decided on 6th March, 2015.

Civil Procedure Code (V of 1908)---

----O.XXXIX R.1 & 2---Suit for declaration, damages, permanent and mandatory injunction--- Application for grant of temporary injunction---Statutory tenant---Suit property was leased to defendant vide lease agreement that had expired and despite correspondence from landladies same was not renewed---Landladies entered into a new lease agreement with plaintiff but defendant had installed its machinery on leased land---Effect---Ignorance or no-reply on part of defendant should not be considered in a way that he had conceded their rights as to possession or statutory rights of tenancy---Defendant was for all intent and purposes in occupation of suit property and were running business of supply of petrol and other allied products---Defendant had also applied for storage license after spending huge fee contrary to allegation that they were not interested in operation from suit property---Plaintiff's case was not considered to be one of prima facie, nor it would suffer an irreparable loss---Plaintiff had also not come with clean hands, hence was denied discretionary relief---High Court, in circumstances, dismissed application for grant of temporary injunction under its original jurisdiction.

Omair Nisar for Plaintiff.

Salahuddin Ahmed for Defendant No.1.

M.Salim Thepdawala for Defendants Nos.2 to 4.

Date of hearing: 26th February, 2015.

2016 C L C 1408

[Sindh]

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, J

Mrs. MUCCA BEJON KANDAWALLA through L.Rs. and 7 others----Appellants

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Housing and Works, Islamabad and 3 others----Respondents

H.C.A. No.58 of 2013, decided on 4th December, 2015.

Sindh (Requisition of Land) Act (XLVI of 1947)---

----S. 4(1)---Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 120---Limitation Act (IX of 1908), Art.17---Requisition of property---Fact, proof of---Onus to prove---Properties owned by deceased were requisitioned on 01-07-1947 and were subsequently acquired vide notification dated 27-06-1955---Compensation fixed by government was received by owners of properties---Later on, sole arbitrator was appointed who gave his award---Successors-in-interest of the deceased owners of properties, being dissatisfied with the award, assailed the same---Plea raised by authorities was that appellants failed to prove that they were legal heirs of the deceased owners and amount of compensation was received under protest---Validity---Burden to prove their authority to claim compensation and their status as legal heirs of owners of properties in question was on appellants in terms of Arts.118 & 119 of Qanun-e-Shahadat, 1984---If no evidence was asked in such regard, it was the appellants who would fail in absence of any document showing undisputedly their authority and legal heirship---Merely showing names of some persons as legal heirs of deceased in some court proceedings, which were not concerned with any issue of heirship between the parties, normally would not make them entitled to inheritance of that person under any law, unless they were declared so under competent court of law---Appellants failed to establish themselves as legal heirs or successors-in-interest of the original owners of subject properties---No document was produced by appellants to satisfy that amount was accepted under protest---If that was the position, the owners should have immediately filed appeal against the same within stipulated time of 15 days but for years together there was silence after seeking compensation---Nothing was available on record to show that in terms of Art.17 of Limitation Act, 1908, appellants filed any suit for recovery of compensation against authorities within one year of acquisition of their properties---High Court set aside award announced by sole arbitrator---Appeal was dismissed under circumstances.

Fasail Hussain Naqvi for Appellants.

Muhammad Aslam Butt, Dy. A.-G. of Pakistan for Respondents.

Dates of hearing: 8th 29th October, and 11th November, 2015.

2016 C L C 1442

[Sindh]

Before Sajjad Ali Shah, C.J. and Zulfiqar Ahmad Khan, J

GUJRANWALA ENERGY LIMITED----Appellant

Versus

PRIVATE POWER AND INFRASTRUCTURE BOARD (PPIB) through Managing Director and 3 others----Respondents

H.C.A. No.21 of 2016, decided on 10th May, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Power Policy, 2002, Art.5.2, Para. 25---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Intra-court appeal---Interim injunction, grant of---Performance guarantee---Encashment---Plaintiff company was declared as successful bidder for setting up of 200 Megawatt power-plant and for the purpose, a Letter of Support (LOS) was issued in its favour by Private Power and Infrastructure Board (PPIB)---Plaintiff company provided a Performance Guarantee at the rate of US 5000 per Megawatt in favour of PPIB for a period of three months in excess of validity of the LOS---Plaintiff company could not perform its part therefore, Private Power and Infrastructure Board intended to encash Performance guarantee---If there was a possibility that Financial Close was not to be achieved on stipulated date, the contract entered into between parties through LOS specifically provided that a further extension of three months could have been provided to plaintiff upon them having provided additional Performance guarantee---Intent and bona fide of the Board was evident that it seriously wished that Financial Close to be achieved by intending participants either within first period or within extended date because alarming misery of people at large was at stake, who were desperate to have been provided with electricity to improve standard of their lives---Incumbents who merely were visiting process by anchoring into mechanism by making a small investment had been trying to fish third party into the net had no place in the system and could not be allowed trafficking of opportunities provided by the Power Policy---High Court declined to interfere with orders passed by Single Judge of High Court who had rightly dismissed injunction application against encashment of Performance Guarantee---Intra-court appeal was dismissed in circumstances.

Khalid Javed Khan for Appellant.

Faisal Siddiqui for Respondents Nos.1 and 2.

Ijaz Ahmed for Respondent No.4.

Date of hearing: 6th May, 2016.

2016 C L C 1497

[Sindh]

Before Mahmood Ahmad Khan, J

IQBAL AND ALI REDHA TRADING CO. through authorised local agent and attorney----Plaintiff

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD.----Defendant

Suit No.495 of 1995, decided on 29th February, 2016.

Specific Relief Act (I of 1877)---

----Ss. 12---Suit for specific performance of agreement---Delivery of goods---Plaintiff was buyer of rice and his grievance was that defendant corporation failed to supply agreed substituted quantity of rice---Validity---Plaintiff could not be entitled for a benefit to which he failed to make an actual payment, had he paid the whole amount the whole of the benefit would have gone to him---Plaintiff did not come up with the amount, if any, spent on margins to the Letter of Credit or any other amounts spent---Initially specific performance was being pursued and claim as to compensation/damages was taken as fallback, which now however where the same was being pursued, it could not be delinked altogether---For specific performance, purchaser had to deposit balance price as agreed in order to retain right to property sold although, inflation and devaluation of money had a much more quantitative value; although immovable properties and goods were different where credit was available and accordingly considered---Principle of justice demanded actual payment of price/value to company with its resulting benefit specially in matters of future transactions and conclusions thereof---Plaintiff was entitled to difference of increase price of contract date and performance delivery---Suit was decreed accordingly.

Province of West Pakistan v. M/s Saaz & Co. PLD 1964 SC 625; Aijaz Ahmad v. M/s Amin Fabrics Ltd. PLD 1983 Kar. 63; M/s Chilya Corrugated Board Mills Ltd v. Mr. M. Ismail and another1992 CLC 2524; Muhammadi Cotton Factory Ltd. v. M/s Pakistan Industries Ltd. 1968 SCMR 1198; M/s Sh. Mian Muhammad Allah Bux v. Universal Corporation and others PLD 1960 (West Pakistan) Kar. 736; Lakhani Textile International v. M/s Southern Agencies (Pvt.) Ltd. 2008 CLC 444; Ardeshir Cowasjee and others v. KBCA and others PLD 2003 Kar. 314 and Abdul Rehman v. Parvez Ahmed Butt and 2 others 1983 CLC 1740 distinguished.

Afsar Ali Abidi and Jahanzeb Awan for Plaintiff.

Mazhar Ali Jafri for Defendant.

Date of hearing: 20th January, 2016.

2016 C L C 1510

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Messrs AL-MEEZAN INVESTMENT MANAGEMENT COMPANY----Plaintiff

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and 2 others----Defendants

Suit No.1086 and C.M.A. No.9133 of 2013, decided on 12th February, 2014.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, refusal of---Issuance of Third WAPDA Sukuk Certificate---No documents were available with the plaintiff, an investor, to show any alleged fraud in issuing the Third WAPDA Sukuk Certificate---Plaintiff's case was entirely based on surmises, conjectures, and apprehensions that if the defendants were allowed to issue Third WAPDA Sukuk Certificates and if the plaintiff again purchased the certificates and if another fraud was perpetrated and the plaintiff and other investors lost money as result of the fraud, then a situation would arise whereby the plaintiff would suffer---Plaintiff, in respect of earlier fraud allegedly committed by the WAPDA officials while issuing First WAPDA Sukuk Certificate, had already filed a criminal case, which was still pending before the Special Court (Central)---Relief sought by the plaintiff for restraining issuance of Third floatation had no rational link with dispute relating to the First issue of the Sukuk Certificates, and on such basis, the WAPDA could not be restrained from raising funds in the public interes for energy project, which was vitally required by Pakistan---Economic Coordination Committee of the Federal Cabinet had approved the Third issue of Sukuk Certificates and the term sheet finalized by the two Banks had also been approved by the Ministry of Finance, and Government of Pakistan was processing the issue of sovereign guarantee for the issue, and two Banks had already locked the required amount from the market, which was urgently required for financing a project, and the Third Sukuk Certificates were to be floated through CDC---Plaintiffs case did not fall within the four corners of the principles for grant of injunction under O.XXXIX, Rr.1 & 2, C.P.C.---Plaintiff failed to make out a prima facie case, nor balance of convenience laid in his favour for grant of injunction and he would not suffer injury or loss if the injunctive order was refused---Injunction application was dismissed In circumstances.

Wali and others v. Akbar and 5 others 1995 SCMR 284; Dr. Saghir Alam etc. v. Mst. Kaniz Fatima etc. 1982 CLC 68; Arif Zaman v. Pir Dost Ali Shah and others 2005 MLD 98; Asma Jillani v. Government of Punjab PLD 1972 SC 139; Naveed Akhtar Cheema v. Chairperson Teveta 2011 PLC (CS) 803 and Zulfiqar Cheema v. Technical Education Vocational Trading Authority 2011 PLC (CS) 914 ref.

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

----O. XXXIX, Rr.1 & 2----Temporary injunction---Conditions---Party seeking interim injunction must show that a prima facie case exists in his favour, the court is to be satisfied that if the injunction is not issued, irreparable damage or injury would be caused to the party, and the balance of convenience is in favour of the grant of injunction.

(c) Administration of justice---

----Courts do not decide abstract hypothetical or contingent questions or give mere declarations in the air---Determination of an abstract question of Constitutional law divorced from the concrete facts of a case, floats in an atmosphere of unreality; such determination was in vacuum and unless the same amounts to a decision settling rights and obligations of the parties before the court, the same is not an instance of exercise of judicial power---No duty is cast on the court to enter upon purely academic exercise or to pronounce upon hypothetical questions---Court's, judicial function is to adjudicate upon a real and present controversy, which is formally raised before it by a litigant---If the litigant do not choose to raise a question, however important the same may be; it is not for the court to raise the same suo motu.

A.I. Chundrigar for Plaintiff.

Ms. Ayesha Hamid for Defendants Nos.1 and 3.

Jahanzeb Awan and Mustafa Ali for Defendant No.2.

Date of hearing: 21st October, 2013.

2016 C L C 1561

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

A. HABIB AHMED and another----Appellants

Versus

MEEZAN BANK LIMITED (Former Hongkong and Shanghai Banking Corporation)--- Respondent

First Appeal No.51 of 1999, decided on 27th January, 2016.

Contract Act (IX of 1872)---

----S. 176---Companies Ordinance (XLVII of 1984), Ss.2(32) & 62---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), Ss. 9 & 21---Pawnee's right---Offer of shares/debentures for sale---Banking Court decreed suit in favour of Bank---Plea raised by borrower was that Bank had not issued notice under S.176 of Contract Act, 1872 and could not sell shares without approval of Securities and Exchange Commission of Pakistan---Validity---If notice by pawnee to pawnor had stated that in case of default of payment of debt within time stipulated, pledged shares would be sold out by pawnee, it was sufficient compliance of requirement of S.176 of Contract Act, 1872---Plaintiff Bank duly made compliance of S.176 of Contract Act, 1872 before exercising its right to sell pledged shares of borrower---Plaintiff was a scheduled Bank in terms of S.2(32) of Companies Ordinance, 1984 and it had obtained shares from borrower as security to finance facility availed by him, in normal course of its banking business---Requirement of seeking approval from Securities and Exchange Commission of Pakistan was not applicable to plaintiff-Bank in view of S.62(5) of Companies Ordinance, 1984---High Court did not find any infirmity in judgment and decree passed by Banking Court in favour of plaintiff Bank---Appeal was dismissed in circumstances.

Appellants in person.

Ghulam Mustafa for Respondent.

Date of hearing: 27th January, 2016.

2016 C L C 1573

[Sindh]

Before Muhammad Faisal Kamal Alam, J

TRADING CORPORATION OF PAKISTAN----Plaintiff

Versus

MUHAMMAD ALAM----Defendant

Suit No.750 of 1989, decided on 1st April, 2016.

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

----O. XXIX, R. 1 & O. VII, R. 2----Suit for accounts and recovery by company--- Authority to file Court proceedings--- Scope--- Any shortcoming in compliance of O.XXIX, R.1, C.P.C. was curable, and if a formal Board Resolution was not there, then, the Articles of Association and/or even internal record (un-rebutted one) like Noting Sheet, could be taken into account to determine about the authority of a person instituting a legal proceeding---If the suit had been unauthorizedly and incompetently filed, that was, where authorization from the Board of Directors did not exist, nor the Articles of Association provided such authority, then such a defect remained incurable, even by subsequent ratification of the Board---Articles of Association of the plaintiff-Company provided that a valid and effectual resolution was to be signed or initialed by at least two Directors, and the minimum quorum for the meeting of the Board of Directors was two; therefore, even if no formal meeting of the Directors had been called for passing the requisite resolution, the approval of three Directors, including the Chairman, could have been treated as 'resolution by circulation' under the Articles of Association, granting authorization for filing the recovery suit---Two Directors of the Plaintiff-Company, besides other senior officer, had recorded their separate approval to file the proceedings after detailed discussion---Veracity and authenticity of the Note Sheets/Noting Portion was not disputed---Present suit, therefore, had been filed by the competent person, who was the then Director and Principal Officer of the Plaintiff-Company, and no violation of O. XXIX, R. 1, C.P.C. had taken place.

Trading Corporation of Pakistan v. Merchant Agency 2007 CLC 1811 rel.

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

----O. VII, R. 2----Contract Act (IX of 1872), Ss. 151 & 161---Suit for accounts and recovery---Bailee of goods---Liabilities/obligations---Loss of subject matter of bailment considered as proof of negligence of bailee---Plaintiff sought recovery of certain amount of money or rendition of accounts regarding stock of rice etc., entrusted to the defendant, who was the handling agent of the plaintiff under an agreement---Defendant could not shake the testimony of plaintiff witness about non-production of Reserve Stock Accounts (RSA) with regard to Rice Stock as well as gunny bags---Affidavit-in-evidence was the material part of the plaintiff's testimony, whereunder a detailed breakup of the plaintiff's claim was mentioned with regard to the Rice Stock as well as bags, but the plaintiff witness had not been cross-examined on that factual aspect---Defendant, in his cross-examination had acknowledged the non-submission of the reserve stock account to the plaintiff with regard to rice stock---Defendant had also admitted that submission of periodical accounts of the stock was his responsibility---Defendant had admitted that the guard and ward of the godown was done by his employees, without any interference by the security staff of the plaintiff---Defendant had failed to give any specific figures with regard to the disposal of rice stock by the plaintiff---Defendant, as proved from the evidence available on the record, had neglected to submit periodical accounts of the outstanding rice, and he had not produced any evidence in the form of reserve stock account to discredit the claim of the plaintiff---Onus to proof of submission of periodical reserve stock account to the plaintiff was on the defendant---Defendant had neither pleaded nor stated in the evidence about any default on part of the plaintiff in making timely payments to the defendant for their services as rice handling contractor; therefore, if the plaintiff had fulfilled its part of the contractual obligation, then the defendant was also saddled with the liability to discharge its statutory obligation being bailee of the goods and a contractual obligation as contractor---Under S.151 of Contract Act, 1872, defendant, as the bailee, had to exercise due care and diligence in respect of goods bailed to him, and under S. 161 of the Act, the bailee was responsible if the bailed goods were not returned, delivered or tendered on the proper time and if that default resulted in any loss, then, the bailee was also liable for the same---Status of the defendant in the present case was that of bailee for reward (as distinguished from a gratuituous bailee)---Once a contract of bailment was proved and there was entrustment of the goods with the bailee, then the loss of the subject matter of the bailment was a prima facie evidence of the negligence of the bailee---Defendant had taken the plea that non-submission of the accounts was due to the fact that he was in jail in a criminal case however, the defendant had showed his ignorance about the date of his release from the Jail during his cross-examination---Defendant, therefore, had violated the terms of the contract---High Court decreed the suit with 10% markup per annum---Suit was decreed in circumstances.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; PLD 1959 SC 550; Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan PLD 2004 Kar. 17; Abdul Rahim and others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62 ref.

Messrs Mastersons v. Messrs Ebrahim Enterprises and another 1988 CLC 1381; and Sri Narasimhaswami, Namagiri Amman 1988 CLC 1381 and Sri Narasimhaswami, Namagiri Aamman and Sri Ranganathaswami Temples v. Muthukrishna Iyenga AIR 1962 Madras 244 (V 49 C 57) rel.

S. Ashfaq Hussain Rizvi for Plaintiff.

Sajid Latif for Defendant.

Date of hearing: 29th March, 2016.

2016 C L C 1594

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

RHONE POULENC RORER PAKISTAN (PVT.) LTD.----Petitioner

Versus

CHIEF INSPECTOR OF STAMPS, BOARD OF REVENUE (KS & EP) WING----Respondent

C.P. No.D-1553 and M.A. No.4215 of 2000, decided on 16th May, 2016.

Stamp Act (II of 1899)---

----Schd. I, Art.35(a)(iii) & (c)---Instrument of lease of property---Stamp duty---Annual average rent---Principle---Petitioner company had taken property in question on lease for four years---Revenue authorities directed the petitioner to fulfill deficiency in stamp duty---Validity---Stamp duty was to be charged under Art.35(a)(iii) of Sched.I of the Stamp Act, 1899, rather than Art.35(c) of the Sched. of Stamp Act, 1899---Average annual rent had to be made basis for charging stamp duty, under Art.35(a)(iii) of Sched.I of Stamp Act, 1899---For first two years rent was Rs.102,000/- per month and for next two years it was Rs.132,000/- per month and average of four years annual rent had come to Rs.1,404,000/- which was to be made basis for charging stamp duty---High Court directed the authorities to make a fresh working by calculating stamp duty equal to the amount of average reserved annual rent for all four years---Constitutional petition was allowed in circumstances.

Citibank v. District Registrar District Collector/Deputy Commissioner, Lahore and another 1999 MLD 1101; Union of India v. M/s. Caltex India Limited AIR 1966 Punj. 488; Re: Chief Controller Revenue Authority AIR 1952 Bomb. 285 and AIR 1961 Punjab 12 ref.

Saadat Yar Khan for Petitioner.

Ali Zardari, Asstt. A.-G. Sindh for Respondent.

Date of hearing: 10th May, 2016.

2016 C L C 1607

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

LAWRENCEPUR WOOLLEN AND TEXTILE MILLS LTD.----Appellant

Versus

NATIONAL INVESTMENT TRUST LIMITED and another----Respondents

H.C.A. No.67 of 1999, decided on 3rd May, 2016.

Specific Relief Act (I of 1877)---

----S. 10---Suit for recovery of shares and declaration---Terms of contract, establishment of---Proof--- Suit filed by National Investment Trust was decreed in its favour and against defendant company by Single Judge of High Court---When plaintiff Trust vide its letter dated 27-12-1975, accepted offer made by defendant company, it had to be presumed to be a term of contract between the parties with regard to the offer and acceptance which stood established---When date of consent order on the request of defendant company was extended from time to time by Controller of the Capital Issues (CCI) the delay in making payment, so far as the Trust was concerned, had impliedly been condoned by CCI by granting extension to the consent letter--- Defendant company could not take advantage of the consent order dated 3-1-1975, by stating that by virtue of such consent order since National Investment Trust had failed to subscribe the shares before 2-1-1976, they had rendered themselves ineligible for the issuance of allotment of those shares---Single Judge of High Court had rightly declared that the Trust was entitled for the right shares so also of bonus shares, dividend accrued on those shares in succeeding financial years along with 15% compensation from 15-1-1975 till the date of decree along with costs--- Judgment and decree passed by Single Judge of High Court did not suffer from any illegality or irregularity requiring interference by Division Bench of High Court---Intra-court appeal was dismissed in circumstances.

Zahid F. Ebrahim for Appellant.

Muhammad Masood Khan and Amna Usmani for Respondent No.1.

Respondent No.2 called absent.

Dates of hearing: 11th, 17th, 24th February, 2nd, 9th, 16th, 22nd and 29th March, 2016.

2016 C L C 1764

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD ISHAQUE----Appellant

Versus

FARMAN----Respondent

M.A. No.4 of 2011, decided on 17th May, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Ss. 151 & 96(3)---Suit for recovery of money---Leave to appear and defend subject to furnishing surety---Power to set aside decree---Scope---Surety not deposited within given/extended time---Effect---Consent order/decree, setting aside of---Permissibility---Trial court allowed the leave to defend to the defendant with the condition that the defendant would furnish surety for the amount equal to that of the suit within 15 days---Defendant failed to fulfill the said condition and sought extension of time twice, and the trial court again allowed the defendant to furnish the surety within one week, but the defendant again failed to comply with the said order---Trial court, with the consent of the parties, again allowed the defendant to deposit the surety, but the defendant instead had filed the application for re-calling of the previous order, which the trial court dismissed and decreed the suit---Defendant filed the application under O.XXXVII, R. 4, C.P.C. for setting aside the final order and decree during the execution proceedings, which was also dismissed by the trial court vide the impugned order---Defendant had filed only a copy of an entry of D-Form-VII after the period allowed to him after extension of the initial period, which had been sent to the Mukhtiarkar for its verification, but said copy of the entry had not been accepted as surety by the trial court---Order XXXVII, R.3(2), C.P.C. itself provided giving security as one of the conditions for grant of leave to defend the suit and thus no exception could be taken to the impugned order---Party, having consented to a decree, could not appeal against the same in view of S.96(3), C.P.C.---Trial court had passed the last order for deposit of the surety with the consent of the parties; therefore, the same was not open to challenge---Party challenging a decree or order based on the consent could not be allowed to argue that the same was illegal, as once consent order was passed, the parties could not resile from the same---Defendant had filed the application for recalling of the impugned order and decree on the same grounds as before---Under O.XXXVII, R.4, C.P.C. trial court, having passed the decree, under special circumstances, might set aside the decree and give leave to the defendant to appear and defend the suit; however, in the present case, the defendant had already been granted leave to defend the suit, but the condition for grant of the leave had not been fulfilled---Trial court, therefore, was left with no other option but to decree the suit---Defendant had not been able to point out any special circumstances for setting-aside the impugned decree---Defendant had tried his best to protract the proceedings of the case by filing repeated applications to deprive the decree holder of the fruit of the decree---Appeal was dismissed in circumstances.

Syed Sharaf Ali Shah v. Syed Liaquat Ali Shah 2000 CLC 1646 and Allied Bank of Pakistan Ltd. v. V.C. Khilnani and 2 others PLD 1984 Kar. 127 rel.

Jawaid Chaudhry for Appellant.

Nemo for Respondent.

Date of hearing: 29th February, 2016.

2016 C L C 1790

[Sindh]

Before Nazar Akbar, J

SHABBIR KHAN and another----Applicants

Versus

Haji ABDUL LATIF KHAN through L.Rs.----Respondent

R.As. Nos.47 and 48 of 1997, decided on 29th March, 2016.

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

----Ss. 151, 96, 10 & 11 & O. XLI, R. 27---Appeal---Inherent powers under S.151, C.P.C. exercised by the Appellate Court---Scope---Respondent moved an application under S.151, C.P.C. claiming res judicata against the suit---Appellate Court remanded the case while exercising powers under S.151, C.P.C.---Validity---Respondent raised a factual issue before the Appellate Court through application under S.151, C.P.C. which was not raised before the Trial Court---Powers of civil court under S.151, C.P.C. had certain restrictions in application of the same could not be equated with the powers of a court of original civil jurisdiction---Provisions of Civil Procedure Code which empowered courts of original civil jurisdiction while dealing with civil suits like provisions of Ss.10 & 11, C.P.C. were not available to the appellate court while exercising authority in terms of S.96, C.P.C.---Appellate Court had not given reference to the findings of the Trial Court while deciding the appeal and had exercised the powers of a court of original civil jurisdiction which were not vested in it---Exercise of power under S.151, C.P.C. by the Appellate Court was improper and uncalled for---Trial Court had not discussed the issue of res judicata in its judgment---Issue which was not taken up and decided by the Trial Court was not supposed to be examined by the Appellate Court---Issue of res judicata ought to have been raised first before the Trial Court for its decision and not at the appellate stage for the first time--Question of res judicata was a question of fact and parties had to first allege it and then prove it through evidence---Appellate Court was not supposed to examine a new/fresh defence (plea of res judicata) at appellate stage---If appeal was time barred then Appellate Court had no jurisdiction to entertain the same and remand the suit---Appellate Court had exercised the jurisdiction not vested in it---Impugned judgment and decree were set aside and appeal was remanded for decision afresh---Appellate Court was directed to first examine the question of limitation for filing the appeal before proceeding further in the matter---Revision was disposed of in circumstances.

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

----S. 11---Res judicata---Power of appellate Court---Scope---Question of res judicata was a question of fact and parties had to first allege it and then prove it through evidence---Appellate Court was not supposed to examine a new/fresh defence (plea of res judicata) at appellate stage.

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

----S. 151---Inherent power---Scope---Civil court was not supposed to resort to the inherent powers in presence of a specific provision available in C.P.C. to deal with a particular situation.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had suo motu power to examine the correctness, legality and propriety of an order passed by the subordinate court at any time and if subordinate court had improperly exercised its jurisdiction and/ or exercised jurisdiction not vested in it then High Court could set aside the said order.

Applicants in person.

Ashiq Hussain Mehar for Respondent.

Date of hearing: 29th March, 2016.

2016 C L C 1800

[Sindh]

Before Sajjad Ali Shah and Syed Saeeduddin Nasir, JJ

TRADING CORPORATION OF PAKISTAN through Chairman----Appellant

Versus

NAVEED HUSSAIN SHAH----Respondent

High Court Appeal No.114 of 2014, decided on 22nd May, 2015.

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

----Rr.128, 129 & 130---Civil Procedure Code (V of 1908), Ss.12(2), 151 & O.IX, R.13---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Suit for recovery of money---Ex parte decree, setting aside of---Restoration of suit---Limitation---Plaintiff was aggrieved of setting aside of ex parte judgment and decree passed against defendant---Validity---If plaintiff had brought fresh suit for recovery of money against defendant after a period of four and half years, the same would have been hopelessly barred by limitation---Plaintiff opted for getting the suit restored by High Court office through a time barred restoration application, to which plaintiff was otherwise not entitled under the law---High Court office by restoring the suit to its original file after lapse of four and a half years and that also without notice to defendant, seriously prejudiced vested rights accrued to defendant on account of dismissal of the suit and striking off the plaint under R.128 of Sindh Chief Court Rules (O.S.)---Notice of restoration application, which was hopelessly time barred, was never served upon defendant and ex parte judgment and decree in the suit was passed behind the back of defendant---Defendant was not afforded an equal opportunity with that of plaintiff to defend the suit---Judge in Chambers of High Court had rightly allowed application of defendant under S.12(2), C.P.C. read with O.IX, R.13, C.P.C. and S.151 C.P.C., setting aside ex parte judgment and decree passed against defendant--- Division Bench of High Court declined to interfere in order passed by Judge in Chambers of High Court, whereby ex parte decree passed against defendant was set aside---High Court appeal was dismissed in circumstances.

Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

Ashfaq Hussain Shah for Appellant.

Nemo for Respondent.

Date of hearing: 22nd May, 2015.

2016 C L C 1824

[Sindh (Sukkur Bench)]

Before Khadim Hussain M. Shaikh, J

ABDUL RASHEED----Appellant

Versus

ALI BUX through L.Rs. and others----Respondents

2nd Civil Appeal No.S-02 and C.M.A. No.866 of 2011, decided on 7th March, 2016.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaint, rejection of---Scope---Plaintiff filed suit that he was Mutawali of suit property (Eid Gah)---Plaint was rejected concurrently---Validity---Plaintiff did not claim himself to be owner or claimant of the suit property---Son of plaintiff had filed suit with regard to the same subject matter wherein plaint had been rejected---Plaintiff had no legal right or character over the suit property which was commonly used for offering Eid prayer by public in general---Suit was barred under S.42 of Specific Relief Act, 1877---Impugned orders passed by the courts below did not suffer from any jurisdictional defect---Second appeal was dismissed in circumstances.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Court should look plaint at initial stage to find whether application under O.VII, R.11, C.P.C. was attracted---If facts of the case justified applicability of O.VII, R.11, C.P.C., it must be applied for rejection of plaint irrespective of the fact whether it was stage of disposal of application for temporary injunction or earlier stage---Plaint could be rejected if it did not disclose cause of action or was barred by any law.

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

----S. 42---Suit for declaration---Scope---Section 42 of Specific Relief Act, 1877 would attract to a case in which plaintiff approached the court for the safeguard of his right to legal character or property but where right of his own legal character or property was not involved, suit for declaration would not be maintainable.

Shafqat Raheem Rajput for Appellant.

Bakhshan Khan Mahar for Respondent No.1-b.

Nisar Ahmad Bhanbhro for Respondents Nos.1-a, 1-c to 1-j.

Ali Gul Abbasi, State Counsel.

Date of hearing: 9th December, 2015.

2016 C L C 1850

[Sindh]

Before Zulfiqar Ahmad Khan, J

PAKISTAN STATE OIL COMPANY (PVT.) LTD.----Petitioner

Versus

ZULEKHA KHANUM and 6 others----Respondents

C.P. No.S-611 of 2011, decided on 15th June, 2016.

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

----S. 15---Constitution of Pakistan, Arts.199, 23 & 24---Constitutional petition---Ejectment of tenant---Tenant was in possession of the property on main road where it was running its petrol station on the rent of Rs.2,500/- per month---Conduct of tenant was apathy and selfish---Tenant entered into a contract of using the demised premises for a term of ten years as back as in 1968 @ Rs.2,500/- per month and since that day was using the said property at the same rate even after expiry of tenancy agreement---Tenant filed constitutional petition merely to keep the landlords away from enjoyment of their constitutional rights over their property---Tenant should pay equitable compensation for the commercial and opportunity losses suffered by the landlords after the year when the term of the rent agreement expired---High Court appointed Nazir of the Court to determine profits made by the tenant from the use of demised premises from the year when rent deed expired till date and after deducting the miniscule sum of Rs.2,500/- per month for the equal number of months such sum was actually paid to the landlords and 25% of such profits be repatriated to the landlords' accounts---Tenant was directed to vacate the demised premises and handover peaceful possession of the same to the landlords within seven days failing which Member Inspection Team should take stock of the plant, machinery and equipment present on the demised premises---Constitutional petition was disposed of accordingly.

Mrs. Samina Zaheer Abbas v. Hassan S. Akhtar 2014 YLR 2331 and PLD 1981 SC 246 ref.

2001 SCMR 338 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Exercise of---Requirements---Constitutional jurisdiction could be exercised when there was non-reading/mis-reading of evidence, erroneous assumption of facts, misapplication of law, access or abuse of jurisdiction or arbitrary exercise of powers.

Syed Masroor Ahmed Alvi for Petitioner.

Khalil Ahmed Siddiqui for Respondents.

Date of hearing: 30th May, 2016.

2016 C L C 1861

[Sindh]

Before Muhammad Ali Mazhar and Muhammad Iqbal Mahar, JJ

Dr. MASROOR AHMED ZAI----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others----Respondents

Review Application M.A. No.6374 of 2016 in C.P.No.D-6600 of 2015, decided on 22nd June, 2016.

Civil Procedure Code (V of 1908)---

----O. XLVII, R. 1 & S. 114---Review---Scope and maintainability---Where court had applied its mind to a particular fact or law and come to a conclusion after conscious reasoning, it could never be contended that error was one apparent on the face of record and could be corrected by it in review---Court, in the present case, had considered and appreciated all the relevant facts and law and arrived at the resolute conclusion---Case could not be reopened on merits on review petition---Scope of review was limited---Application for review was not maintainable on the points which had been decided one way or the other---Matter which had already been resolved could not be reviewed---Review by its very nature was not an appeal or rehearing merely on the ground that one party or the other conceived himself to be dissatisfied with the decision of the court---No mistake or error was apparent on the face of record nor any other sufficient reason or justification was made out by the applicant to review the earlier judgment---Review petition was dismissed in circumstances.

AIR 1960 Andra Pradesh 81 and PLD 2015 SC 6 distinguished.

2008 SCMR 554 and 2009 SCMR 394 rel.

Malik Naeem Iqbal for Petitioner.

Mukesh Kumar Karara, Addl. A.G.

Jam Habibullah, State Counsel.

Date of hearing: 21st April, 2016.

2016 C L C 1871

[Sindh]

Before Shahnawaz Tariq, J

MUDASIR ILLAHI----Petitioner

Versus

FAROOQUE AHMED KHAN and 2 others----Respondents

Constitutional Petition No.S-3480 of 2014, decided on 9th May, 2016.

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

----Ss. 15(2)(vii), 16 & 18----Constitution of Pakistan, Art.23---Eviction petition---Bona fide personal need of landlord---Proof---Disclosure of existing business by landlord---Change of ownership, notice for---Requirement---Non-service of notice under S.18 of the Ordinance---Effect---Fundamental right as to provision of property---Rent Controller dismissed the eviction petition, but the appellate court accepted the same---Validity---Tenant was occupying the demised shop vide agreement, which had been executed between the father of the legal heirs and the tenant and on expiry of the agreement, another rent agreement had been executed between the same parties---Tenant had denied the execution of said subsequent agreement, but as he had not produced any evidence in support of his claim controverting the execution of the second agreement and had been paying monthly rent as per the second rent agreement and subsequently depositing the same in the court in the names of the legal heirs the execution of the second agreement had stood proved---Tenant knowing the change of ownership in favour of the legal heirs being his real sons, had acknowledged them as the landlords of the demised premises---Tenant was depositing the monthly rent in the court; therefore, there was no need to serve the notice under S.18 of Sindh Rented Premises Ordinance, 1979---Requirement of the said notice, after acknowledgement of the legal heirs as the landlords, had become infructuous---Filing of present application was sufficient for the purpose of notice for change of ownership---Non-service of the notice under S.18 of the Ordinance, therefore, would not defeat and frustrate the ground of bona fide need of the landlord (legal heirs) who were the new owners/landlords of the demised premises, particularly when they had dropped the ground of default in payment of the rent against the tenant---Landlords (legal heirs) had been running their business in the rented shops and wanted to establish their independent business in the demised premises---Tenant had failed to produce any documentary evidence to establish ownership of the legal heirs of landlord (deceased) pertaining to the shops where they were currently running their business---Landlords had verified the averments of the rent application in their affidavits produced in evidence maintaining the requirement of demised shops for their personal bona fide need to establish their independent business; whereas the tenant had been unable to shake the statements of the petitioners---Disclosure of present business, being carried out by the landlords or nature of the business which they had intended to establish, was not essential---Shops in possession of the landlords were on rent and they were not the owners of the same; thus, it was not necessary for them to categorically express the factum of insufficiency of the available space of the rented shops---Landlords had intended to establish their business in their own shops, which was their legal right covered under Art.23 of the Constitution---Sole testimony of the landlords was sufficient to establish their bona fide need of the premises--- High Court, upheld the impugned judgment---Constitutional petition was dismissed in circumstances.

1998 SCMR 819; 1993 CLC 2370; 2004 SCMR 578; 2010 MLD 665; 2008 SCMR 398; 1992 SCMR 46; 1995 CLC 3014; 2012 CLC 793 and 1989 SCMR 1366 ref.

Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400; Messer General Services Corporation v. Messer Pakistan National Shipping Corporation 1987 MLD 2149; Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Jahangir Rustam Kakalia through legal heirs v. M/s Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241; M/s F.K. Ibrami & Co v. Begum Begoza 1996 SCMR 1178; Qamaruddin through his L.Rs. v. Hakeem Mehmood Khan 1988 SCMR 819 and S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 rel.

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

----S. 15 (2) (vii)----Eviction petition---Bona fide personal need of landlord---Good faith---Scope---Nature of business, disclosure of---Requirement---Law does not require that the owner of the property must disclose the nature of the business, which he intends to establish in demised premises, as it all depends upon circumstances, need and financial implication.

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

----S. 15----Eviction petition---Bona fide personal need of landlord---Scope---Right of landlord---Extent---Personal bona fide need of the landlord for the premises cannot be frustrated by the tenant by dictating the landlord to use or not to use the premises to meet his bona fide requirement for a premises---Landlord has a right to choose a specific premises for his personal bona fide requirement and no restriction can be imposed upon such requirement by the tenant---Personal bona fide requirement provides an independent cause of action to landlord.

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

----S. 15--- Constitution of Pakistan, Art.199--- Constitutional jurisdiction---Scope---High Court, while dealing with the matter under the Ordinance will neither proceed with the constitutional petition like a second appeal nor can evaluate the evidence adduced by the parties for the purpose of merits of impugned judgment.

T. David Lawrence for Petitioner.

Rehan Khan Durrani for Respondents Nos.1 and 2.

Agha Ather Hussain Pathan, Asstt. A.G. for Respondent No.3.

2016 C L C 1880

[Sindh]

Before Salahuddin Panhwar, J

INDEPENDENT NEWSPAPERS CORPORATION PRIVATE LIMITED and 5 others----Plaintiffs

Versus

CENTURY PUBLICATION (PVT.) LTD. and 3 others----Defendants

C.M.As. Nos.7716, 7717, 7794 and 7537 of 2011 in Suit No.894 of 2011 and C.M.As. Nos.3010 and 4765 of 2011 in Suit No.408 of 2011, decided on 22nd May, 2015.

Defamation Ordinance (LVI of 2002)---

----S. 13---Civil Procedure Code (V of 1908), O.VII, R.10---Suit for damages---Return of plaint---Pecuniary jurisdiction---Plaintiff sought recovery of damages under Defamation Ordinance, 2002, and suit was filed before High Court in its original civil jurisdiction---Validity---Deliberate use of words 'the District Court' in S.13 of Defamation Ordinance, 2002, with word 'shall' was sufficient to establish intention of lawmakers that no other court would have jurisdiction to try cases filed under Defamation Ordinance, 2002---High Court was 'Civil Court' but such could not be confused that, High Court while exercising its original civil jurisdiction had become 'District Court' or could dress it up as a 'particular court'---When law itself did not confer jurisdiction, no Court could legally create such jurisdiction, even the High Court---Law could permit Courts to interpret law but not to step onto the domain of Legislature i.e. 'making of law'---To confer jurisdiction was function of lawmakers and the suit was triable by 'District Court' concerned which jurisdiction could not be taken away even on the ground of `pecuniary jurisdiction'---Case under Defamation Ordinance, 2002, was to be tried by District Court, as directed by special law---Suit filed before High Court was barred by law---Plaint was returned in circumstances.

Khadim Hussain and 12 others v. Gul Hassan Tivano and 3 others 2013 CLD 981 and Pakistan Herald Publications (Pvt.) Ltd. and 2 others v. Karachi Building Control Authority 2012 CLD 453 ref.

Behzad Haider and Abid Naseem for Plaintiff.

2016 C L C 1894

[Sindh]

Before Muhammad Faisal Kamal Alam, J

JUGOLINIJA through Local Agent----Plaintiff

Versus

SAEED A. TAYYAB ELMHURST through Clearing Agent and another----Defendants

Suit No.287 of 1990, decided on 28th March, 2016.

Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----S. 3---Civil Procedure Code (V of 1908), O.XXIX, R.1---Qanun-e-Shahadat (10 of 1984), Art.129(g)--- Suit for recovery of freight amount---Locus standi to file suit---Authority---Resolution by Board of Directors of the plaintiff/company, absence of---Remedy--- Withholding of evidence---Plaintiff was a shipping company and claimed that despite delivery of consignments, defendant failed to pay freight amount---Plea raised by defendant was that suit was not maintainable as there was no resolution passed by Board of Directors of plaintiff company in favour of plaintiff witness---Validity---If plaintiff had Board resolution in favour of plaintiff witness, then same should have been produced even at a subsequent stage in evidence by reexamining plaintiff witness but that was not done---Plaintiff could have cured such irregularity by producing Articles of Association containing power and authority to institute legal proceedings conferred upon a particular person or Director in which case Board resolution was not required and the same was also not done by plaintiff---Plaintiff was adversely affected by principle relating to best evidence, according to which, if a best piece of evidence was not produced by a party or was withheld then an adverse inference would be drawn against such party that it had deliberately not produced the evidence, coupled with some motive---Suit was not maintainable as person who filed proceedings was not authorized by Board of Directors of plaintiff company or by way of some other written instrument including Articles of Association or Power of Attorney---Suit was dismissed in circumstances.

Liaquat Ali v. Government of NWFP 2009 SCMR 1217 and Manzoor Ahmed v. Ghulam Nabi 2010 CLC 350 rel.

PLD 1971 SC 550; PLD 1966 SC 685; 2010 YLR 2974; 2010 CLC 191; 2010 CLC 421; 2006 CLD 440; 2008 CLD 239; Abul Rahim v. United Bank Limited PLD 1997 Kar. 62; Razo (Pvt.) Limited v. Director, Karachi City Region Employees Old Age Benefit Institution and others 2005 CLD 1208; Trading Corporation of Pakistan v. Merchant Agency 2007 CLC 1811; Messrs Duncan Stratton & Co. v. Messrs N.S. Construction Co. and 2 others 1992 CLC 1128 and Muhammad Saeed v. Muhammad Irfan 1994 SCMR 1449 ref.

Manzar Bashir for Plaintiff.

Syed Ali Hyder for Defendants.

2016 C L C 1922

[Sindh]

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

Messrs PAKISTAN HOCKEY FEDERATION through Secretary General and another----Appellants

Versus

Mirza IMTIAZ BAIG----Respondent

High Court Appeal No.313 of 2014, decided on 17th May, 2016.

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

----O. VI, Rr.14 & 15---Pleadings, non-signing of---Ex parte proceedings---Defendants failed to sign written statement and verification thereunder, therefore, Single Judge of High Court directed to proceed ex-parte against defendants---Plea raised by defendants was that it was merely an irregularity which was curable---Validity---Omission to or mistake to sign pleadings (plaint or written statement) was merely an irregularity and could be cured/rectified subsequently at any stage---Division Bench of High Court directed defendants to sign and verify written statement already on record and set aside the order passed by Single Judge---Intra-court appeal was allowed in circumstances.

1987 SCMR 1365; 1992 SCMR 1009; 1989 CLC 1883;1996 CLC 1064; 1993 MLD 321; 1981 SCMR 687; PLD 1983 Kar. 99; PLD 1990 SC (AJ&K) 13; PLD 1980 Kar. 477; PLD 1962 (W.P) (Lah.) 830; Muhammad Anwar Khan and others v. Choudhry Riaz Ahmed and others PLD 2002 SC 491; Muhammad Khaliq v. Abdullah Khan 1987 CLC 1366; Ajaib Khan v. Allah Ditta, 2002 YLR 2723; M/s. Aziz Floor Mills v. I.D.B.P. 1990 CLC 1473; Muhammad Sarwar alias Feroz Ali v. Abdul Ghani 1980 CLC 946; Rajabali v. Gujrat Bus Service PLD 1961 (W.P.) Kar. 486; Toor Gul v. Mumtaz Begum PLD 1972 SC 9; Suneri Bank Limited v. Classic Denim Mills (Pvt.) Limited 2011 CLD 408; Managing Director S.S.G.C. v. Ghulam Abbas PLD 2003 SC 724 and PLD 2013 SC 829 ref.

(b) Administration of justice---

----Technicalities---Scope---Technicalities are to be brushed aside for the administration of justice---Law favours decision of case on merits rather on technical knock outs.

Ayaz Ahmed Ansari for Appellants.

Muhammad Farooq for Respondent.

2016 C L C 1931

[Sindh]

Before Munib Akhtar and Abdul Maalik Gaddi, JJ

Mirza ABDUL SATTAR BAIG and others----Appellants

Versus

PAKISTAN RAILWAY through Divisional Superintendent, Karachi and others----Respondents

C.M.As. Nos.594 and 595 of 2010 in High Court Appeal No.70 of 2010 and C.M.As. Nos.597 and 599 of 2010 in High Court Appeal No.71 of 2010, decided on 6th April, 2016.

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

---O. XX, Rr. 5 & 1---Decision on each issue---Judgment when pronounced---Natural justice, principles of---Applicability---Trial Court had not given its findings on the issues framed in the suit---Nothing was on record that before pronouncement of judgment arguments of the parties or their counsel were heard---Mandatory provisions of O.XX, Rr.5 & 1, C.P.C. had been violated---Principles of natural justice had been violated in the present case---Trial Court was bound to give findings on each issue separately unless findings upon any one or more issues was sufficient for the decision of the suit---Impugned judgment and decrees passed by the Trial Court were not sustainable which were set aside---Case was remanded to the Trial Court for decision afresh---Appeal was allowed in circumstances.

Mrs. Aneesa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816 and Mst. Ishrat Jehan and another v. Syed Anis-ur-Rehman and another 2013 CLC 291 rel.

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

----O. XX, R.1---Parties had vested right to have opportunity of addressing arguments before pronouncement of judgment.

(c) Maxim---

----"Audi alteram partem"---Meaning.

Muhammad Ilyas Warraich for Appellant in both the Appeals.

Arshad Iqbal for Respondent No.2.

Niaz Ahmed for Respondent No.1.

Durrani on behalf of Respondent No.4.

Waseem Jan on behalf of Respondent No.5.

Respondent No.6 in person.

2016 C L C 7

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD SARFRAZ----Petitioner

Versus

NADEEM TAHIR SYED, ADJ and others----Respondents

Writ Petition No.4302 of 2015, decided on 19th February, 2015.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 15---Civil Procedure Code (V of 1908), O.XXI, R.29---Constitution of Pakistan, Art.199---Constitutional petition---Application for ejectment of tenant---Ejectment order, execution of---Stay of proceedings of ejectment order---Scope---Application for suspension of execution proceedings was filed by the applicant-tenant but the same was dismissed concurrently---Validity---Relationship of landlord and tenant was relevant to exercise jurisdiction by the Rent Tribunal---Controversy between the parties with regard to plea of ejectment stood resolved---Landlord was not holding a decree of a civil court---Ejectment order had been passed in favour of landlord by the Rent Tribunal which was to be executed in accordance with law---Provisions of O.XXI, R.29, C.P.C. were not attracted to the facts of the present case---Execution of ejectment order passed by Rent tribunal could not be interfered with in terms of O.XXI, R.29, C.P.C.---Tenant had filed suit for declaration against the landlord wherein facts of ejectment order had been concealed---Wilful and mala fide concealment of such material facts had also disentitled tenant to any relief under the principles of equity---Status quo order passed by the civil judge did not attract the provision of O.XXI, R.29, C.P.C.---Tenant was not entitled to claim stay of execution proceedings of ejectment order---No factual or legal infirmity or jurisdictional error was pointed out in the impugned order passed by the Appellate Court---Constitutional petition was dismissed in limine.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Lawful orders passed by the revisional court of competent jurisdiction could not be called into question in exercise of constitutional jurisdiction of High Court.

Syed Qaisar Gilani for Petitioner.

2016 C L C 73

[Lahore]

Before Atir Mahmood, J

KHUDA BAKHSH----Petitioner

Versus

MUHAMMAD YAR and others----Respondents

Civil Revision No.533 of 1996, decided on 18th December, 2014.

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

----Ss. 27 (b) & 42---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration---Necessary party---Subsequent purchaser---Plea raised by plaintiff was that subsequent purchasers could not file appeal against judgment and decree passed by Trial Court---Validity---Appellants before Lower Appellate Court were subsequent purchasers of suit property and question as to whether they were bona fide purchasers of suit property could only be decided if they were impleaded as defendants in the suit---Appellants before Lower Appellate Court claimed that they purchased the property through sale mutation after due verification of ownership of defendants, as their names were duly incorporated in record of rights and there was no restraining order on record whereby property could not be shown to be under any lien---Appellants were legally entitled to file appeal before the lower Appellate Court against judgment and decree passed by Trial Court.

Sahib Dad v. Province of Punjab and others 2009 SCMR 385 rel.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for declaration---Ownership---Proof---Two marginal witnesses, requirement of---Plaintiff filed suit claiming to be owner in possession of suit property and alleged that sale deed in favour of defendants was a forged document---Trial Court decreed suit in favour of plaintiff but Lower Appellate Court dismissed the suit---Plea raised by plaintiff was that defendants did not produce two marginal witnesses to prove sale deed in their favour---Validity---Plaintiff failed to establish on record that disputed sale deed in favour of defendants was forged and fictitious document---Contention of plaintiff that only one marginal witness was produced and there was no other eyewitness, therefore, sale deed was not in accordance with provisions of Qanun-e-Shahadat, 1984, was misconceived, as in year, 1979, Qanun-e-Shahadat, 1984, was not in existence, therefore, provisions of Arts.17 and 79 of Qanun-e-Shahadat, 1984, were not attracted---Appearance of one marginal witness of document, whose credibility could not be shaken in cross-examination, was sufficient to prove existence of valid sale deed which was duly registered with Sub-Registrar---Disputed sale deed was a registered document and in order to discredit the same, very heavy burden was upon plaintiff but he failed to do it by appearing in witness box in his affirmative evidence and thereafter by any cogent evidence produced in rebuttal of defendants---Plaintiff was not in possession of property at the time of filing of suit and was under legal obligation to seek relief of possession while filing suit, therefore, suit of plaintiff was barred under S.42 of Specific Relief Act, 1877---High Court maintained judgment and decree passed by Lower Appellate Court.

Shujahat Hussain Versus Muhammad Habib and another 2003 SCMR 176; Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935; Muhammad Nawaz and 2 others v. Muhammad Khan and 9 others 2009 CLC 663; Sadiq Ali v. Raj Din and others PLD 1992 Lah. 158; Habib Ahmad v. Muhammad Aslam alias Lashkar 2002 SCMR 1391; Khawaja Muhammad Naeem and others v. Tasleem Jan and others 1980 CLC 1483; Sahib Dad v. Province of Punjab and others 2009 SCMR 385 and Mst. Sharman and 211 others v. Syed Ali Hussain and 8 others 2006 YLR 130 ref.

Muhammad Fazil Muhammad for Petitioner.

Mian Muhammad Akram for Respondents Nos.1 to 3.

Respondents Nos.4 and 5 proceeded against ex parte vide order dated 25-6-2003.

Date of hearing: 18th December, 2014.

2016 C L C 81

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD NADEEM----Petitioner

Versus

ANEESA BIBI and others----Respondents

W.P. No.17141 of 2015, decided on 6th October, 2015.

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

----Ss. 14 & 17-A----Constitution of Pakistan, Art. 199---Constitutional petition---Suit for maintenance---Appeal---Appellate court upheld decree of maintenance of rupees thirty-five hundred per month on ground that no appeal was maintainable against maintenance for less than rupees five thousand---Validity---Maintenance as a whole would determine pecuniary jurisdiction of appellate court---Under S.17-A of West Pakistan Family Courts Act, 1964, if defendant had failed to pay interim maintenance fixed by trial court, then not only right of defence could be struck off but decree could also be passed---Appellate court had incorrectly found that order of maintenance passed by Family Court was interim order under S.14(3) of West Pakistan Family Courts Act, 1964, therefore no appeal could be preferred against the same---High Court, setting aside impugned judgment and decree, directed appellate court to decided appeal on merits---Constitutional petition was allowed in circumstances.

Muhammad Naseer v. Fatima through her mother and 2 others 2000 MLD 802 rel.

Shaigan Ijaz Chadhar for Petitioner.

Rana Muhammad Afzal for Respondent No.1.

2016 C L C 95

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

IFTIKHAR HUSSAIN BUTT and 42 others---Petitioners

Versus

GOVT. OF THE PUNJAB through Secretary Health and 3 others---Respondents

Writ Petition No.10651 of 2003, decided on 28th April, 2015.

(a) Allopathic System (Prevention of Misuse) Ordinance (LXV of 1962)---

----Ss. 6 & 8---Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968, Rr.4, 7 & Sched. A [since repealed]---Punjab Healthcare Commission Act (XVI of 2010), S.13---Medical and Dental Council Ordinance (XXXII of 1962), Ss.2(q) & 23---Notification No.S.O. (H&D) 8-9/90/2011 dated 8-3-2012---Constitution of Pakistan, Art.199, 18, 9 & 4---Constitutional petition---Application for grant of license to practice allopathic medicine---Eligibility for grant of license to prescribe allopathic medicine---Powers of Provincial Screening Board to grant license---Persons competent of prescribe allopathic medicine---Unregistered medical practitioner, status of---Freedom of trade, business and profession---Applicability---Prohibition of prescribing certain drugs---Petitioners filed applications before District Screening Board for grant of license to prescribe antibiotics and dangerous drugs as specified under Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968---District Screening Board declared petitioners eligible to hold license, but Provincial Screening Board declared them ineligible---Contention raised by petitioners was that Provincial Screening Board was not competent to differ with recommendation of District Screening Board---Validity---Contentions of petitioners were devoid of substance for reasons: firstly, District Screening Board, after matter had been referred to it for reconsideration, had declared petitioners ineligible for grant of permit; secondly, R. 7 of Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968 fully empowered Provincial Screening Board to grant permits to eligible candidates only---Claim of petitioners was based on R. 4 of Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968 as framed under section 8 of Allopathic System (Prevention of Misuse) Ordinance, 1962, which had already been repealed vide Notification No. S.O. (H & D) 8-9/90/2011 dated 08.03.2012---Punjab Healthcare Commission Act, 2010 having been promulgated, present petition had become infructuous and was liable to be dismissed---Under S.6 of Allopathic System (Prevention of Misuse) Ordinance, 1962, only two categories of persons could prescribe antibiotics or dangerous drugs---Firstly, Registered Medical Practitioner or person authorized in that behalf by Provincial Government; secondly, those who were authorized by Provincial Government under Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968---Allopathic System (Prevention of Misuse) Ordinance, 1962 having already been repealed, only the Medical Practitioners could dispense and prescribe anti-biotic and dangerous drugs---Section 2(q) Medical and Dental Council Ordinance, 1962 provided that 'Registered Medical Practitioner' meant Medical Practitioner whose name had been included in register maintained under S.23 of Allopathic System (Prevention of Misuse) Ordinance, 1962---If petitioners were granted permit to prescribe any anti-biotic or dangerous drugs under the Rules, then they would be at par with persons holding MBBS degrees, and with those who were referred to as Medical Practitioners and would be deemed to have acquired professional qualification, eligibility and status equal to those persons who met requirements as laid down under S.23 of Medical and Dental Council Ordinance, 1962---Considering different side effects of antibiotics, dispensation and prescribing anti-biotic and other allopathic medicines was not child's play---Anyone who would dispense allopathic medicines, particularly antibiotics, without knowledge of its side effects, which were likely to occur, would be at risk of actionable wrong or negligence---Any person who did not fulfill criteria given under S.13 of Punjab Health Care Commission Act, 2010 would fall within definition of quack and were liable to be prosecuted---Case previously filed by one of the petitioners on same subject matter, had already been dismissed up to Supreme Court---High Court observed that medical practice was highly regulated profession and State was empowered to regulate same through licensing system and lay down minimum eligibility criteria to qualify for same---Under its Art.18, although, Constitution guaranteed freedom of trade, business or profession, but same was subject to certain qualifications, which might be prescribed by law---Granting permission to petitioners to practice allopathic or western medicine would offend Arts.4 & 9 of the Constitution---Petitioners, posing themselves to be doctor and practicing western allopathic medicines, had been playing with precious lives of innocent persons---High Court, in its Constitutional jurisdiction, could not endorse perpetuate said illegality of petitioners---Constitutional petition was dismissed in circumstances.

Munjri Khan and others v. Faridoon and 5 others 1995 SCMR 678 and Zulfiqar Ali Khan and another v. District Government, Ghotki at Mirpur Mathelo 2006 CLC 20 rel.

(b) Allopathic System (Prevention of Misuse) (West Pakistan) Rules (1968)---

----R. 7 [since repealed]----Provincial Screening Board---Power to grant license---Rule 7 of Allopathic System (Prevention of misuse) (West Pakistan) Rules, 1968 fully empowers Provincial Screening Board to grant permits to eligible candidates only.

(c) Allopathic System (Prevention of Misuse) Ordinance (LXV of 1962)---

----S. 6---Medical and Dental Council Ordinance (XXXII of 1962), Ss.2(q) & 23---Prohibition on prescribing certain drugs---Persons competent to prescribe drugs---"Registered Medical Practitioner"---Definition---Under S.6 of Allopathic System (Prevention of Misuse) Ordinance, 1962, only two categories of persons could prescribe antibiotics or dangerous drugs--- Firstly, Registered Medical Practitioner or person authorized in that behalf by Provincial Government; secondly, those who were authorized by Provincial Government under Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968 [since repealed]---Said Rules having already been repealed, only the Medical Practitioners could dispense and prescribe anti-biotic and dangerous drugs---Section 2(q) Medical and Dental Council Ordinance, 1962 provided that "Registered Medical Practitioner" meant Medical Practitioner whose name had been included in register maintained under section 23 of Medical and Dental Council Ordinance, 1962.

(d) Constitution of Pakistan---

----Art. 18---Right of freedom of trade, business and profession---Scope---Under Art.18, although, Constitution guarantees freedom of trade, business or profession, but same is subject to certain qualifications, which may be prescribed by law.

(e) Punjab Healthcare Commission Act (XVI of 2010)---

----S. 13---Unregistered Healthcare Service Provider, Status of--Any person who did not fulfill criteria given under S.13 of Punjab Health Care Commission Act, 2010 would fall within definition of "quack" and were liable to be prosecuted.

Imran Raza Chadher for Petitioner.

Noshab A. Khan for Respondent No.3.

Mazhar Qayyum for Respondent No.2.

Siraj-ul-Islam Addl. A.G. for the State.

2016 C L C 111

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD IQBAL----Petitioner

Versus

RASHEEDA BIBI and others----Respondents

Civil Revision No.1078 of 2009, decided on 8th September, 2015.

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

----S. 13---Talbs, performance of---Proof---Attesting witnesses of notice of Talb-i-Ishhad, competency of--Attesting witness must be in conscious knowledge of contents of the document, which he was going to attest---Attesting witnesses of notice of Talb-i-Ishhad had deposed that they had signed the notice without knowing as to what was written therein---Statements of plaintiff witnesses, who were attesting witnesses of notice of Talb-i-Ishhad, were, therefore, not to be considered at all---Said attesting witnesses, according to their admission, had only put their signatures on previously prepared document without having any knowledge as to what had been written in the same---Said witnesses were not "attesting witnesses" of notice Talb-i-Ishhad as they were not in a position to testify or to affirm the notice of Talb-i-Ishhad to be true or genuine---Strict test was provided under Pre-emption Act, 1991 to prove three Talbs beyond any doubt---Important link of Talbs was missing from chain, in the present case, as provided under S.13 of Pre-emption Act, 1991, which was fatal to the case of plaintiff---Impugned judgment and decree was result of misreading of evidence and non-appreciation of the legal position in question---Judgments and decrees of courts below were set aside---Revision petition was allowed in circumstances.

Khuda Yar through Legal Heirs and 10 others v. Ghulam Muhammad and another 1999 SCMR1808 rel.

(b) Words and Phrases---

----`Attest'---Definition.

Black's Law Dictionary Ninth Edition ref.

Shaigan Ijaz Chadhar for Petitioner.

Najaf Muzammal Khan for Respondents.

2016 C L C 114

[Lahore]

Before Amin-ud-Din Khan, J

IRFAN AHMAD----Petitioner

Versus

AHMAD SHAH through L.Rs. and 7 others----Respondents

Civil Revision No.1070-D of 2001, heard on 4th May, 2015.

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

----S. 54---Agreement to sell---Not signed by one of parties---Such agreement to sell could not said to be an agreement to sell in the eyes of law when parties to agreement had to do something for performance of said agreement.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

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

----S. 42---Transfer of Property Act (IV of 1882), S.54---Declaratory decree---Suit for declaration---Agreement to sell---Nature---Declaration of title could not be granted in favour of a plaintiff who claimed a right in immovable property on basis of agreement to sell---Declaratory decree declared a pre-existing right and could not create or confer a new right.

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

----S. 3---Civil Procedure Code (V of 1908), S.115---Under S.3 of Limitation Act, 1908, it was duty of court to see whether the lis had been filed within prescribed period of limitation---No bar existed on pressing the plea of limitation before High Court.

Tariq Zulfiqar Chaudhary for Petitioner.

Rafiq Ahmad Qureshi and Ch. Ghulam Ahmad for Respondents.

Ch. Muhammad Bashir for Respondent No.7.

Date of hearing: 4th May, 2015.

2016 C L C 154

[Lahore]

Before Shahid Karim, J

Mst. ZARINA YOUSAFI and another----Petitioners

Versus

Mst. ZAHIDA BIBI and 3 others----Respondents

C.R. No.482-D of 2002, decided on 6th May, 2015.

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

----O. XVII, R. 3---Striking off right to produce evidence---Wilful default in producing evidence---Scope---Not right of party to avail innumerable opportunities for production of evidence---No valid reasons having been put forth by respondent which would justify his act in failing to produce evidence, judgment and decree of Trial Court was upheld.

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

----Arts. 75, 76 & 73---Proof of documents ---Application for production of primary and secondary evidence---Scope---According to Art.75 of Qanun-e-Shahadat, 1984, all documents must be proved by primary evidence---Article 73 of Qanun-e-Shahadat, 1984 defined primary evidence as document itself produced for inspection of Court---On the other hand, Art.76 of Qanun-e-Shahadat, 1984 elaborately dealt with a case in which secondary evidence relating, to a document might be given---Obligatory upon applicants to have brought their case within ambit of Art.76 of Qanun-e-Shahadat, 1984 to convince the court to grant application for production of secondary evidence.

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

----Art. 76---Muslim Family Laws Ordinance (VIII of 1961), S.7---Property devolved on inheritance---Divorce deed---Application for production of secondary evidence---Scope---Held, that application was devoid of any reasons in support of production of secondary evidence relating to divorce deed---Grounds had not been spelt out in the application on which secondary evidence was sought to be produced as enumerated in Art.76 of Qanun-e-Shahadat, 1984---Respondent wanted to produce divorce deed, however, such evidence could have been validly obtained from record under Muslim Family Laws Ordinance, 1961---Applicant/respondent could apply to court for production of record of concerned local council---Once it was established that such record could not be obtained or had been destroyed or lost, respondent had applied for production of secondary evidence---Production of secondary evidence was not a right or was not to be permitted in normal course --- Secondary evidence was hedged in by conditions given in law and must be complied with before a permission could be granted.

Syed Muhammad Ali Gillani and Malik Ghulam Qasim Rajwana for Petitioners.

Mirza Aziz Akbar Baig for Respondents.

Date of hearing: 27th April, 2015.

2016 C L C 160

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

NASEER AHMAD and others----Appellants

Versus

YOUSAF MURTAZA MIRZA and others----Respondents

R.S.A. No.19 of 2006, decided on 12th November, 2014.

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

----Ss. 12 & 27(b)---Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 120---Suit for specific performance of agreement to sell---Subsequent sale of suit property---Bona fide purchaser---Onus to prove---Scope---General power of attorney---Agreement to sell had been executed between the plaintiff and original owners of suit property---Subsequent purchasers of suit land were in cultivating possession of the same as a tenant prior to execution of sale deed in their favour---Original owner of suit property had received the entire consideration at the time of execution of sale deed in favour of subsequent purchasers---Prior sale agreement was in the knowledge of subsequent purchasers---Subsequent purchasers were bound to prove that they were bona fide purchasers for value without notice of prior sale agreement of suit land---Party who had asserted that he/she was a bona fide purchaser for value had to prove that he/she had paid the price in good faith and he/she had no notice of the earlier bargain between vendor and any other person or persons---Initial onus to prove the fact of bona fide purchaser for value without notice would be on subsequent purchaser---Onus to prove the disputed fact was not constant but it would change on coming the relevant facts on record---Once the initial onus of asserted fact was discharged by the asserting party, it would become the obligation of other party who was denying the same to discharge the burden of proof---Where subsequent purchaser had asserted that he/she was bona fide purchaser, he/she had to establish on record first that disputed transaction was legal and against legitimate consideration with legitimate object---Said transaction should not be to cause loss to other person or persons---Claimant had to establish that defect was not in his/her knowledge nor he/she was aware about the interest of any other person or persons in the suit property---If such facts were proved, onus of purchasers stood discharged---Breach of contract was on the part of original owner of suit property but not on the part of plaintiff---Original owner remained unsuccessful in obtaining proprietary rights in favour of his wife till her death---Wife of original owner had not withdrawn or revoked general power of attorney in favour of her husband---Original owner of suit property agreed to sell suit land assuming that he would be able to obtain proprietary rights of land in favour of his wife---Subsequent purchasers did not bother to ask the original owner about the earlier bargain of suit land---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed to the extent of land owned by the original owners---Sale in favour of subsequent purchasers was set aside---Second appeal was accepted accordingly.

Gurmukh Singh Vir Singh and others v. Sohan Singh Beta Singh and another AIR 1963 Punjab 470; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Muhammad Shafi v. Muhammad Sarwar and others 1997 CLC 1231; Allah Ditta v. Muhammad Sabir 2000 C.L.R. 511; Rashid Ahmad and 7 others v. Muhammad Bashir and 2 others 2005 YLR 2914; Mst. Malkani v. Mst.Bakhat Begum and 13 others 2004 SCMR 1591; Rana Ghulam Rasul Khan v. Wasim Gul, Proprietor Messrs Moon Enterprises and others 2008 SCMR 310; Mst.Jhandi v. Syed Baqir Ali Rizvi and another 1987 CLC 459; Muhammad Bashir and others v. Chiragh Din through Legal Heirs and others 2003 SCMR 774; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442; Muhammad Yar v. Mehmood and 2 others 2003 MLD 878 and Asghar Ali v. Waqar uz Zaman and others 2004 CLC 1531 ref.

Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 rel.

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

----Arts. 117, 118, 119 & 120---Burden of proof---Scope---Onus to prove the facts would be on the party who had asserted the same and wanted the court to believe the existence of asserted facts.

(c) Administration of justice---

----Court to decide the civil litigation on probabilities and not on the proof of fact beyond any shadow of doubt.

Ch. Khurshid Ahmad for Appellants.

Malik Muhammad Akbar Awan and Ashfaq Qayyum Cheema for Respondents.

Date of hearing: 19th May, 2014.

2016 C L C 180

[Lahore]

Before Shahid Mubeen, J

Mst. NAVEEDA KAUSAR and others----Petitioners

Versus

MAUZZAM KHAN and others----Respondents

Writ Petition No.3045 of 2014, decided on 5th August, 2015.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance, dowry articles, delivery expenses and cash amount---Talaq, pronouncement of---Determination---Oral Talaq, proof of---Principles as to when oral Talaq becomes effective---Notice of Talaq to Chairman, Union Council, absence of---Effect---Talaq pronounced in anger---Recovery of amount mentioned in column 16 of Nikahnama and claimable in case of divorce---Jurisdiction of Family Court---Decree for restitution of conjugal rights---Enforceability---Non-framing of issue regarding Talaq---Effect---Plaintiff's wife and minor filed suit for recovery of maintenance, dowry articles and delivery expenses along with recovery of amount resulting from divorce---Trial Court partially accepted the suit and dismissed the same to the extent of amount claimed as result of divorce---Appellate court enhanced quantum of maintenance of minor and dismissed appeal regarding remaining prayer---Husband took plea that marriage between parties was still intact as he divorced plaintiff in anger---Validity---Wife produced affidavit in evidence in support of her contention that defendant had orally divorced her---Defendant had sought Fatwa which had established that he had divorced plaintiff for three times in irritated and annoyed mood---When fact of oral divorce had been admitted by defendant, then it was valid divorce---Oral Talaq, given thrice, had become irrevocable and effective the moment same had been pronounced---High Court observed that oral Talaq would become effective and binding in spite of absence of notice under requirement of S.7 of Muslim Family Laws Ordinance, 1961---Oral Talaq was as good as Talaq in writing---Husband was bound to send notice to Chairman of concerned Union Council---No issue regarding alleged oral divorce had been framed by Trial Court---Both parties had asserted said issue in their pleadings and also produced evidence regarding same---Non-framing of issue regarding factum of divorce was, therefore, not fatal---Finding of courts below regarding divorce were contrary to record---Court could grant relief flowing from pleadings and evidence of parties---Present suit had also been treated as suit for dissolution of marriage---Plaintiff's claim on basis of column No.16 of Nikahnama regarding recovery of amount in case of divorce could not be granted to her by Family Court, for which she could file appropriate remedy before court of competent jurisdiction---Decree of restitution of conjugal rights had become redundant and ineffective as defendant had divorced plaintiff---Said decree was good answer to suit for maintenance filed by wife---Impugned judgment and decrees were in accordance with evidence on record regarding remaining issues---Constitutional petition was partially accepted in circumstances.

Ghulam Shabir Shah v. The State 1983 SCMR 942; Muhammad Sarwar and another v. The State PLD 1988 FSC 42; Allah Dad v. Mukhtar and another 1992 SCMR 1273; Fida Hussain v. Mst. Najma and another PLD 2000 Quetta 46; Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169; Mst. Batool Bibi v. Muhammad Hayat and another 1995 CLC 724; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260; Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515; Ghulam Muhammad v. Parveen Akhtar and others 2012 CLC 321: Shahida Parveen v. Nijabat Ali and 2 others 2009 MLD 671; Mushtaq Ahmad v. District Judge, Vehari and 2 others 2013 CLC 928; Shamshoo v. Mst. Tahira and another 1983 CLC 133 and Rukhsana Tabassm v. Judge, Family Court and 2 others 1999 CLC 878 rel.

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

----S. 5 & Sched.---Suit for recovery of amount mentioned in Column 16 of Nikahnama---Maintainability---Claimable in case of divorce---Jurisdiction of Family Court---Plaintiff's claim on basis of column No.16 of Nikahnama regarding recovery of amount in case of divorce could not be granted to her by Family Court, for which she could file appropriate remedy before court of competent jurisdiction.

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

----S. 5 & Sched.----Decree for restitution of conjugal rights---Enforceability---Decree of restitution of conjugal rights became redundant and ineffective as defendant had already divorced the plaintiff.

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

----S. 5 & Sched.---Non-framing of issue regarding divorce---Effect---Both parties had asserted said issue in their pleadings and also produced evidence regarding the same---Non-framing of issue regarding factum of divorce was, therefore, not fatal---Court could grant relief flowing from pleadings and evidence of parties.

Muhammad Umar Awan for Petitioners.

Syed Atif Hussain Naqvi for Respondent No.1.

2016 C L C 199

[Lahore]

Before Shezada Mazhar, J

GHULAM ABBAS----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Finance and 3 others----Respondents

W.P. No.31586 of 2014, heard on 22nd December, 2014.

Cost and Management Accountants Act (XI of 1966)---

----Ss. 9 & 34(4)---Cost and Management Accountants Regulations, 1990, Regln. 49-- Notification No. SRO 1020(I)/2014, dated 11-11-2014---Constitution of Pakistan, Art.199---Constitutional petition---Election---Amendment in Cost and Management Accountants Regulations, 1990, retrospective effect of---Petitioner asserted that amendment made in Cost and Management Accountants Regulations, 1990, vide Notification No. SRO 1020(I)/2014, dated 11-11-2014, for conducting election could not have retrospective effect---Validity---Held, as per provisions of Regulations earlier there was no online procedure available, therefore, it was possible that a candidate could not approach overseas members for canvassing---Overseas members, with amendment in question, had also become important for any candidate---Amendments had also affected rights of all contesting candidates, therefore, the same could not be allowed to operate retrospectively---New procedure was introduced for balloting of overseas members which in fact affected rights of contesting candidates as well, therefore, it could not be allowed to apply retrospectively---High Court directed the authorities to hold elections on the basis of Cost and Management Accountants Regulations, 1990, without taking into account amendments made by Notification No.SRO.1020(I)/2014 dated 11-11-2014---Petition was allowed in circumstances.

Muhammad Asif Khan and 173 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 14 others 2014 PLC (C.S) 534; Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others (2012 SCMR 965; Federation of Pakistan and others v. Ammar Textile Mills (Pvt.) Limited and others 2002 SCMR 510; K. Kapen Chako v. The Provident Investment Company (P) Ltd. (1977) 1 SCC 593 and Ch. Muhammad Yusuf and others v. Azad Government through Chief Secretary, Muzaffarabad and others PLD 2001 Azad J&K 60 ref.

Waqar A. Sheikh for Petitioner.

Sameer Khosa for Respondents.

Date of hearing: 22nd December, 2014.

2016 C L C 219

[Lahore]

Before Muhammad Anwaar-ul-Haq and Erum Sajad Gull, JJ

MAQBOOL HUSSAIN alias JAMALA DOGAR----Applicant

Versus

FEDERATION OF PAKISTAN and others----Respondents

Review Application No.76 of 2015, decided on 20th August, 2015.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R. 1---Review---Object and scope---Main object of review under S.114 read with O.XLVII, C.P.C. was to enable the Court to correct its own mistake or error to prevent injustice---Review had a very limited scope and was permissible and maintainable if conditions in R.1 of O.XLVII, C.P.C. were fulfilled and not otherwise---Power of review was only to be exercised on account of some mistake or error apparent on face of record---Under the garb of review proceedings, re-hearing of a decided case was not warranted especially where full opportunity of hearing was given to all parties---Conversion of a review petition into an appeal could not be permitted---Applicant, in the present case, was attempting to re-open and re-argue the case afresh which course of action was not permissible while hearing review application---Review application was dismissed, accordingly.

Mehmood Hussain Lark and others v. Muslim Commercial Bank Limited and others 2010 SCMR 1036 rel.

A.K. Dogar for Petitioner.

2016 C L C 234

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ENGRO FOODS LTD.----Petitioner

Versus

C.D.G. and others----Respondents

W.Ps.Nos.920 of 2014, 2951 of 2009, 1315 of 2008, 3333, 2138, 3077, 404 of 2007, 8831 of 2012, 4999 of 2008, 4103, 3086, 3616 of 2007, 1585, 5357 of 2008 and 3614 of 2007 decided on 16th July 2015.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 190---Punjab Local Government Taxation Rules, 2001, Rr.8 & 9---Punjab Local Government (Appeals) Rules, 2002, R.2---Constitution of Pakistan, Art.199---Constitutional petition---Alternate remedy---Petitioners were aggrieved of advertisement fee imposed by Local Government Authorities---Validity---Petitioners had an alternate remedy of appeal under S.190 of Punjab Local Government Ordinance, 2001, as well as Punjab Local Government (Appeals) Rules, 2002, which they did not avail---Petition was dismissed, in circumstances.

Civil Appeal No.1001-2014 titled City District Government Rawalpindi through DCO Rawalpindi and another v. M/s Coca-Cola Beverages Pakistan Ltd. and others; W.P. No.1219-2014 titled M/s Bahria Town (Pvt.) Ltd. v. City District Government Rawalpindi etc. through DCO; I.C.A. No.53-2014 Meezan Bank v. City District Government etc.; W.P. No.8500-2006; Messrs Aslam Traders v. Asghar Ali Tahir and others 2000 SCMR 65 and Javed Iqbal Butt v. Tehsil Nazim/Tehsil Council, Daska and 2 others 2003 CLC 1030 rel.

Messrs Coca Cola Beverages and others v. Cantonment Board Chaklala, Rawalpindi and others 2011 MLD 1987; Messrs Coca Cola Beverages Pakistan Limited through Company Secretary v. City District Government, Rawalpindi through DCO and others 2014 CLC 1135; Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630; Dubai Islamic Bank Pakistan Ltd. through authorized attorneys v. Federation of Pakistan, through Ministry of Defence, Rawalpindi and 2 others 2014 MLD 957; Messrs Lucky Cement Factory Limited and others v. The Government of N.W.F.P. through Secretary, Local Government and Rural Development Department, Peshawar and others 2013 SCMR 1511; East Pakistan Chrome Tannery (Pvt.) Ltd. v. Federation of Pakistan and others 2011 PTD 2643; Messrs Shamim and Co. v. Tehsil Municipal Administration, Multan City etc. 2004 YLR 366 and Arab Contracting and Co. v. Tehsil Municipal Administration, Multan etc. 2005 MLD 1520 ref.

Mansoor Usman Awan for Petitioner.

Ch. Muhammad Zahid Saleem for Respondent (in W.P. No.920 of 2014) and Petitioner (in W.P. No.3333 of 2007).

Muhammad Irfan Wain for Petitioner (in W.P. No.3086 of 2007).

Muhammad Akhtar Khan for Petitioner (in W.P. No.3077 of 2007).

Pirzada Niaz Mustafa Qureshi for petitioner (in W.P. No.2951 of 2009).

Syed Muhammad Ali Gillani for DHA/respondent (in W.P. No.3616 of 2007).

Anwar-ul-Haq Bari for Respondent No.2.

Muhammad Amer Malik, Advocate for M.D.A.

2016 C L C 248

[Lahore]

Before Ali Akbar Qureshi, J

ABDUL MAJEED and another----Petitioners

Versus

Mst. IRSHAD BEGUM and 10 others----Respondents

C.R. No.1022 of 2007, heard on 23rd June, 2015.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.12(2)---Suit for declaration and perpetual injunction---Fraud and misrepresentation, proof of---General power of attorney---Scope---Arbitration agreement beyond power of attorney---Permissibility---Plaintiffs application under S.12(2) of C.P.C. and suit for declaration and perpetual injunction, were dismissed by both trial and appellate courts---Plaintiffs claimed that predecessor of defendants, being general power of attorney of their predecessor, had fraudulently and through misrepresentation transferred suit land in favour of his brother by obtaining decree on basis of arbitration award---Contention raised by plaintiffs was that said attorney was not empowered to enter into any arbitration agreement---Validity---All transactions, that were arbitration proceedings, announcement of award and making of award rule of court, were based on registered general power of attorney---Even if said power of attorney was admitted to be correct, attorney had not been given power to enter into any type of arbitration to dispose of suit property---Agreement for referring matter to arbitrator, award and filing of petition had been made on same day, which was sufficient to show fraud and misrepresentation on part of predecessor of defendants---Fraud vitiated even most solemn proceedings or order---General or special attorney could not go beyond scope of terms of power of attorney---General power of attorney, in order to transfer suit and in favour of his own brother, had to obtain permission from principal, predecessor of plaintiffs, which was missing in the present case---Courts below did not peruse record, particularly power of attorney, which was basis of all subsequent misdeeds and frauds---Appellate court, instead of appreciating and evaluating record, had dismissed appeal in very summary and slipshod manner, which was not warranted by law---Appellate court was expected to correct irregularities and illegalities committed by trial court---High Court, setting aside impugned judgment and decree along with all transactions conducted on basis of general power of attorney with regard to suit land, decreed the suit---Revision petition was allowed in circumstance.

Malik Riaz Ahmed and others v. Mian Inayat Ullah and others NLR 1992 SCJ 587; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190; Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522; Muhammad Jan v. Arshad Mehmood and 3 others 2009 SCMR 114; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others 2014 SCMR 914 rel.

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

----S. 12(2)---Contract Act (IX of 1872), S.182---Application under S.12(2), C.P.C.--- Power of attorney--- Scope--- Fraud and misrepresentation-Determination---Attorney, in the present case, had not been given power to enter into any type of arbitration to dispose of suit property---Agreement for referring matter to arbitrator, award and filing of petition had been made on same day, which was sufficient to show fraud and misrepresentation.

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

----S. 115----Revisional jurisdiction of High Court---Scope---Concurrent findings---Principles---Court observed that even in case of concurrent findings of courts below, where courts below had acted with material irregularity and legal infirmity, High court could take cognizance of the matter under S.115 of C.P.C.

Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others 2014 SCMR 914 rel.

(d) Fraud---

----Fraud vitiates even most solemn proceedings or order.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 rel.

(e) Power of Attorney---

----General or special attorney cannot go beyond scope of terms of power of attorney.

Malik Riaz Ahmed and others v. Mian Inayat Ullah and others NLR 1992 SCJ 587; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190 and Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522 rel.

(f) Administration of Justice---

----Appellate jurisdiction---Duty of appellate court---Appellate court is always expected to correct irregularities and illegalities committed by trial court.

Malik Noor Muhammad Awan for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd June, 2015.

2016 C L C 302

[Lahore]

Before Shahid Karim, J

NOOR MUHAMMAD and another----Petitioners

Versus

Mst. FARZANA and 3 others----Respondents

C.R. No.416-D of 2004, decided on 14th May, 2015.

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

----S. 42---Oral exchange---Pardanasheen lady---Part Patwar---Scope---Mutation, sanction of---Procedure---Defendant being beneficiary of alleged transaction was bound to mention all the material facts of the same in his written statement---Impugned transaction was oral one---Nothing was on record that possession of suit land was delivered to the plaintiff---Impugned transaction was the result of fraud, coercion and undue influence---Part Patwar would relate to the proceedings taken by the Revenue Officer and same would conclusively determine the fact of transaction to take place as well as the proceedings which had preceded the said transaction being sanctioned in the name of beneficiary---Thumb impressions of plaintiff were taken only on Part Patwar and not on Part Sarkar---Impugned mutation was not sanctioned in a Jalsa-i-Aam or at a public place---Provisions of S.42 of West Pakistan Land Revenue Act, 1967 had not been complied with---Transaction was not carried out with the free will of the plaintiff---Nothing was on record that proceedings with regard to identification of plaintiff had taken place---No evidence had been produced with regard to the proceedings taken by the revenue officer in respect of exchange as well as transaction of exchange which had been alleged to have taken place---Alleged transaction of exchange could not be upheld and sustained on such ground alone---Appellate Court had set aside the judgment and decree of Trial Court on cogent and valid reasons---No material irregularity was pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Abdul Hameed through L.Rs. and others v. Shamasuddin and others PLD 2008 SC 140 rel.

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

----S. 42---"Part Patwar"---Meaning---Part Patwar would relate to the proceedings taken by the Revenue Officer and same would conclusively determine the fact of transaction to take place as well as the proceedings which had preceded the said transaction being sanctioned in the name of beneficiary.

Ch. Muhammad Hussain Jahania for Petitioners.

Sh. Muhammad Rafiq Goreja and Rana Muhammad Hussain, A.A.G. for Respondents.

Date of hearing: 30th April, 2015.

2016 C L C 322

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

GHULAM QADIR and 2 others----Petitioners

Versus

SHABBIR HUSSAIN CHEEMA----Respondent

C.R. No.2544 of 2009, decided on 29th October, 2015.

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

----O. VII, R. 2, O. VI, R. 4 & O. XVIII---Qanun-e-Shahadat (10 of 1984), Arts.70, 72 & 130---Suit for recovery---Pleadings--Necessary particulars and details not set in plaint---Examination of witnesses---Burden of proof---Proof of facts by oral evidence---Order of production and examination of witnesses---Plaintiff filed suit for recovery claiming that defendant had damaged his crops, which was dismissed by Trial Court; whereas, appellate court decreed the same---Validity---Plaintiff had neither mentioned time nor names of persons who witnessed the occurrence, to prove as to when and before whom the defendants had damaged his crop---Registration number of tractor, whereby the crops were alleged to have been damaged by ploughing, was also not mentioned in the plaint---Plaintiff himself and his son alone had appeared as witnesses, and no independent witness had been produced by plaintiff to substantiate his version---Contradiction on major points were apparent in statements of plaintiff witnesses, and the same were lacking necessary details---Onus probandi was on plaintiff to prove his case positively, but he had failed to discharge the same by not producing convincing and independent evidence---Plaintiff could not benefit from weaknesses of the case of defendant---Question of disproof or rebuttal would come only when plaintiff had established his case through positive evidence; and, when plaintiff had failed to prove his case, then defendant was not obliged to lead any evidence---Appellate court, discarding the reason recorded by Trial Court, had passed impugned judgment and decree on erroneous premises---High Court, setting aside judgment and decree of appellate court, restored that of trial court---Revision petition was accepted in circumstances.

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

----O. XVIII---Qanun-e-Shahadat (10 of 1984), Arts.130 & 72---Examination of witnesses---Order of production and examination of witnesses---Burden of proof---Question of disproof or rebuttal would come only when plaintiff has established his case through positive evidence; and, when plaintiff has failed to prove his case, then defendant is not obliged to lead any evidence---Plaintiff cannot be benefitted from the weaknesses of the case of defendant.

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

----Art. 70----Oral evidence---Proof of facts by oral evidence---Admissibility---Statement of witness matters only when he deposes correctly, truly and categorically; but the same is to be ignored from consideration, if he shows ignorance about material facts or withholds truth and makes shaky, mysterious, vague or contradictory statement.

(d) Evidence---

----Court, while deciding a case, had to consider quality of evidence.

Shaigan Ijaz Chadhar for Petitioners.

Ch. Muhammad Anwar Bhindar for Respondent.

2016 C L C 386

[Lahore]

Before Shahid Karim, J

SHAUKAT ALI through Legal Heirs and 3 others----Petitioners

Versus

PROVINCE OF PUNJAB through District Collector and 2 others----Respondents

C.R. No.280-D of 1998, decided on 15th April, 2015.

(a) Auction---

----Land reclaimed by Government put to auction---Non-sending of notice to allottee---Effect---Contention of plaintiffs was that proceedings by Government of reclaiming the suit land and putting the same to auction were held at their back without notice---Suit was dismissed concurrently---Validity---Plaintiffs were in possession of suit land---No rebuttal had been produced to the claim of plaintiffs---Names of plaintiffs had been entered in the revenue record as persons in possession of suit property---Material irregularity had crept in the impugned judgments passed by the courts below---Impugned judgments and decrees passed by the courts below were set aside---Suit filed by the plaintiffs was decreed as prayed for---Auction purchaser might approach the concerned authority for the refund of amount deposited by him as a consequence of the auction proceedings---Revision was allowed in circumstances.

Amjad Ikram v. Asiya Kausar and 2 others 2015 SCMR 1 rel.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Amendment in the pleadings could be allowed if same was necessary and it did not change the complexion of suit or the nature of the relief sought.

Kanwar Muhammad Younis for Petitioners.

Rana Muhammad Hussain, A.A.G.

Mirza Aziz Akbar Baig for Respondent No.3.

Date of hearing: 7th April, 2015.

2016 C L C 408

[Lahore]

Before Shujaat Ali Khan, J

Mian RAFAT MEHMOOD and 5 others----Petitioners

Versus

DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 3 others----Respondents

W.P.No.11797 of 2001, decided on 18th August, 2015.

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

----Ss. 4, 6, 17(4), 23 & 18---Punjab Land Acquisition Rules, 1983, R.7---Constitution of Pakistan, Arts.4, 18, 23, 24, 25 & 199---Constitutional petition---Land acquisition---Establishment of a private housing scheme---Non-issuance of NOC by the Development Authority---Land for private housing scheme acquired for proposed housing scheme of Development Authority---Status-quo order against the acquisition proceedings---Effect---Due process of law---Scope---Petitioners approached the Development Authority ("Authority") for issuance of NOC to develop a private housing scheme but same was not acceded to and their land was included in the housing scheme proposed to be established by the Authority itself---Petitioners applied to the Authority for exclusion of their land from acquisition and issuance of requisite NOC and restraint order was sought against the Authority---Authority issued notification for acquisition of land of petitioners during pendency of status-quo order---Validity---No decisive step was taken by the Authority in furtherance of notification under S.4 of Land Acquisition Act, 1894 despite expiry of one year---Notification issued under S.4 of Land Acquisition Act, 1894 had died its natural death---Conditional offer of petitioners which was not accepted by the Authority in unequivocal words did not assume the role of a binding promise/undertaking---Authority was bound to decide as to whether it was interested to acquire land of the petitioners within one year---Authority was bound to process the application of petitioners for issuance of NOC in case of its failure to decide within one year whether land of petitioners was required or not---Idea of developing its own housing scheme by the Authority was no ground to turn down the request of petitioners for issuance of NOC to develop a private housing scheme---Notification under S.4 of Land Acquisition Act, 1894 was issued by the Authority in defiance of a status-quo order---Authority after issuance of status-quo order could have either moved for vacation of the same before the same court or could have approached the higher forum for recalling/setting aside thereof---Authority neither moved High Court for vacation/recalling of status-quo order nor approached the Supreme Court for the said relief prior to issuance of notification under S.4 of Land Acquisition Act, 1894---Act of Authority in violation of an injunctive order issued by a court of law would be illegal, unlawful and void ab initio---Authority was bound to decide the application of petitioners for issuance of NOC through well-reasoned order and in accordance with law---Government had power to acquire land for public purpose but said power could not be exercised to deprive an individual of the right he was enjoying as owner of the land except under the due process of law---Constitution provided a protection against compulsory acquisition of land without following due process of law---Acquiring agency had power to select any particular land for any public purpose but said discretion could not be used to deprive a citizen of lawful use of his property according to his own wishes---Authority had failed to discharge its legal duty towards issuance of NOC to the petitioners---Mala fide was on record on the part of the Authority---Operation of notification issued for acquisition of land was suspended by the High Court but despite that not only Authority took over possession of land owned by the petitioners but also raised superstructure thereon---Acquiring agency could acquire land of a private housing scheme which had been approved but no substantial step had been taken towards development work---Said jurisdiction, however, could not be allowed to be used for the land which was subject matter of litigation before a court of law wherein order of status-quo had already been passed---Any act of public functionaries in violation of a mandate provided in the Constitution would amount to misuse of powers---Authority had adopted discriminatory attitude with the petitioners and had refused to exclude their land from the process of acquisition---Mere issuance of notification under S.4 of Land Acquisition Act, 1894 did not create any interest in favour of the acquiring agency except the permission to enter and inquire into it---Authority could only proceed with development work of a housing scheme after publication of notification under Ss.6 & 17(4) of Land Acquisition Act, 1894---Mala fide and discriminatory conduct of Authority was floating on the surface in the present case---Petitioners had been discriminated while refusing their request with regard to exclusion of their land from the acquisition process despite the fact that the land of their proposed housing scheme was situated separate from housing scheme of Authority---Deposit of compensation by the acquiring agency with Land Acquisition Collector did not render the acquisition proceedings qua land of petitioners legal---When acquisition proceedings had been found mala fide, discriminatory and violative of fundamental rights then the question of deposit of compensation would be immaterial--- Entire superstructure raised on the basis of notification could not be legal on the ground that material steps had already been taken by the Authority--- High Court declared that acts of Authority starting from the publication of notification under S.4 of Land Acquisition Act, 1894 till the taking over of possession by them were illegal, unlawful and void ab-initio and same were set aside; that since possession was already with the Authority, if it was interested in continuing with the same then it should initiate the process of acquisition of land afresh from initial stage of issuance of notification under S.4 of Land Acquisition Act, 1894; that if Authority opted to proceed with the acquisition proceedings afresh then same should be concluded within a specified period---High Court directed that Authority should hand over the possession of land in question to the petitioners in alternate forthwith in addition to paying compensation of Rs.6,000,000/- towards the cost of superstructure demolished by it---Constitutional petition was disposed of accordingly.

case law referred.

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

----S. 4---Acquisition of land---Scope---Acquiring agencies could acquire land of a private housing scheme which had been approved.

(c) Constitution of Pakistan---

----Art. 4---"Due process of law"---Scope---Every individual should be treated in accordance with law.

(d) Constitution of Pakistan---

----Art. 18---Freedom of profession---Scope---Every person had a right to choose a profession of his choice to earn livelihood.

(e) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---Similarly placed persons should be treated alike. [p. 452] QQ

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Relief---Scope---Relief could not be granted beyond the scope of prayer clause but High Court had jurisdiction to look into the subsequent events which had surfaced during pendency of a lis before it and had direct nexus with the subject of the pending lis.

(g) Administration of justice---

----When a matter was decided in terms of an earlier judgment or order then all the directions and conclusions arrived at by a court of law were applicable in the subsequent matter.

(h) Words and phrases---

----Term 'status-quo order'---Meaning.

(i) Words and phrases---

----'Mala fide'---Meaning.

(j) Constitution of Pakistan---

----Art. 4---"Due process of law"---Meaning---Due process of law would mean that every act should be in accordance with law on the subject.

(k) Public functionaries---

----Any act of public functionaries in violation of a mandate provided in the Constitution would amount to misuse of powers.

(l) Public functionaries---

----Government functionaries were bound to strictly adhere to the mandate of the Constitution and the relevant laws.

Farooq Amjad Mir and Hasnain Almakky assisted by Sajid Mehmood Sheikh and Ahmad Farooq for Petitioners.

Khawaja Haris Ahmad assisted by Maqsooma Zahra Bukhari, Saleem Akhtar Sheikh and Ghulam Subhan for Respondents Nos.1, 2 and 4 along with Iftikhar Ahmad, Director Legal.

Rana Shamshad Khan, Asstt. A.-G for Respondent No.3.

2016 C L C 458

[Lahore]

Before Shahid Jamil Khan, J

Ms. SHABINA RIAZ KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.13628 of 2013, decided on 12th June, 2015.

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

----Ss. 78(3)(d), 82 & 94--- Corrupt practice--- Fake degree, determination of---Petitioner was Member Provincial Assembly and her grievance was that Election Commission of Pakistan could not file complaint against Trial Court after holding that her educational degree was fake---Validity---Complaint against Corrupt Practice of using forged document to claim an educational qualification, could be filed even by a private person---Supreme Court had directed Election Commission of Pakistan to investigate the matter first and the intention would be to avert uncalled for proceedings against a parliamentarian---Law envisaged punishment for a private individual who had lodged a false or malafide complaint---Election Commission of Pakistan was neither directed nor had jurisdiction to sit as an adjudicating authority and give finding of fact, as done against the petitioner---Election Commission of Pakistan was required to hold an investigation and file complaint on the basis of positive and tangible evidence---High Court declared the order passed by authorities in excess of the mandate given by the Supreme Court, against the spirit of law, passed without jurisdiction and nullity in the eyes of law---Petition was allowed in circumstances.

Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 and Mian Najeeb-ud-Din Owasi and others v. Amir Yar Waran, etc. PLD 2011 SC 1; Civil Miscellaneous Application No.1712 of 2013 in Civil Appeals Nos.181-L, 409 of 2010 rel.

Haider Rasool Mirza and Barrister Shehryar Riaz for Petitioner.

Ms. Sadia Malik, Standing Counsel for Pakistan.

Adnan Saeed Chaudhry and Hafiz Ahsan Ahmad Khokhar for Respondents Nos.2 and 3.

Date of hearing: 12th June, 2015.

2016 C L C 466

[Lahore]

Before Shahid Jamil Khan, J

Dr. SULMAN JAFFAR----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.642 of 2014, decided on 2nd June, 2014.

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

----S. 32(3)---Constitution of Pakistan, Arts.199, 143, 25 & 27---Constitutional petition---Civil service---Appointment---Determination of eligibility criteria for the post of Associate Professor in Medical College--- Inconsistency between Federal legislation--- Effect---Provincial legislation---Effect---Petitioner applied for the post of Associate Professor of Ophthalmology, which was regretted for the reason that "not eligible due to teaching experience for the post was not in accordance with Government of the Punjab Service Rules"---Eligibility/experience of the petitioner was determined by PM&DC under a statutory authority (Federal Legislation) and the respondents were ignoring the same by enforcing the purported Rules made under the authority of Provincial Legislation---No scholarly discussion was required to hold that the authority given by the Provincial Legislation was void under Art.143 of the Constitution in presence of an authority for determining the eligibility given by the Federal Legislation i.e. Pakistan Medical and Dental Council Ordinance, 1962---Act of the respondents of substituting the eligibility/experience determined by the PM&DC shall lead to uncertainty and might give way to discrimination and arbitrary exercise of administrative powers---Council was statutorily recognized institution to determine the qualification in the field of medicine and it had superior authority, being specialized and technically equipped, to opine on the eligibility/experience in a particular discipline---Uncertainty was prevalent; Health Department, in some other advertisement, while describing the eligibility criteria had stipulated that "Qualification/experience required as prescribed by PM&DC", meaning thereby that the Health Department was itself not following a uniform and consistent policy---Such inconsistent advertisements by the Health Department were, without doubt, in violation of Arts.25 & 27 of the Constitution---Condition of eligibility criteria ("Five years teaching experience as an Assistant Professor in the relevant subject") given in the advertisement was itself ambiguous and germane for two interpretations i.e. 'actual experience' or 'experience as determined by the PM&DC'---If two interpretations were possible, one favouring the subject should be followed---Constitutional petition was allowed by directing the respondents to consider the petitioner for appointment against the post of Associate Professor.

Dr. Abrar Hussain Ahmed Khan and others v. Government of Punjab through Secretary and others 1995 CLC 1409; Dr. Abrar Maqbool and 2 others v. Government of Punjab through Secretary, Health Department and another 2004 PLC (C.S.) 373 and Zulfiqar Ahmed v. The Punjab Public Service Commission through Secretary and 2 others 1997 MLD 1925 rel.

Haseeb Shakoor Paracha for Petitioner.

Shahzad Sarwar for Respondent No.3.

Dr. A.B. Saleem, APMO and Dr. Yousaf Aziz APMO, representatives of Respondent No.3.

Shahid Mehmood Abbasi, Asstt. A.G. for the State.

Date of hearing: 21st May, 2014.

2016 C L C 482

[Lahore]

Before Amin-ud-Din Khan and Shahid Jamil Khan, JJ

MUHAMMAD JAMIL CHOHAN and others----Appellants

Versus

NADEEM HAYAT MALIK and others----Respondents

R.F.A. No.196 of 1994, decided on 15th October, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration, injunction and recovery of damages---Notice by advocate---Proof---Plaintiffs claimed recovery of damages on the plea of issuance of notice by advocate containing false allegations and its circulation amongst financial institutions---Trial Court decreed the suit in favour of plaintiffs---Validity---Neither any proof regarding circulation of alleged notice nor regarding injury caused to plaintiffs' business was produced---Advocate who allegedly issued the notice was not produced in witness box, therefore, issuance of notice was also not proved---Falsehood of allegations in notice in question were also not proved through evidence rather assertion regarding liability towards financial institutions in the light of objections by lending institutions caste reasonable doubt whether the allegations, if at all, levelled in the notice allegedly issued by the advocate, were false---Plaintiffs could not prove their case on the face of record and through evidence led, therefore, findings on such issue were reversed by High Court and the same was decided against plaintiffs---Suit merited dismissal---Appeal was allowed in circumstances.

Rehmat Ali v. Additional District Judge, Multan and others 1999 SCMR 900; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337 and Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922 ref.

Appellant No.1 in Person.

Abdul Sattar Junaid for Appellant No.3.

Nemo for Respondents.

Date of hearing: 15th October, 2014.

2016 C L C 502

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD ANWAR----Petitioner

Versus

GHULAM KHADIJA and another----Respondents

W.P.No.18924 of 2011, decided on 30th September, 2015.

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

----O. VIII, R.10---Suit for recovery of damages---Written statement, non-filing of---Right of defence, striking of---Scope---Trial Court granted adjournment for filing of written statement which was challenged by the plaintiff---Revisional Court while accepting the revision struck off right of defence of defendant---Validity---Revisional Court without adverting to the record and law applicable to the case accepted the revision petition---Trial Court did not pass a specific order to file written statement---Revisional Court had struck off the valuable right of defendant to file written statement---Litigant could not be deprived from his valuable right---Impugned order passed by the Revisional Court was harsh which was not sustainable---Law would favour adjudication on merits instead of technicalities----Defendant was given only one opportunity to file written statement---Defendant was directed to appear before the Trial Court on the date fixed and file his written statement---If defendant failed to file his written statement then his right of defence would be deemed to be struck off---Constitutional petition was accepted in circumstances.

(b) Administration of justice---

----Law would favour adjudication on merits instead of technicalities.

Mian Tariq Hussain for Petitioner.

Nemo for Respondents.

2016 C L C 509

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

LAHORE REGENCY (PVT.) LTD. through Managing Director----Petitioner

Versus

WYNDHAM HOTEL GROUP INC. through President and Chief Executive Officer and 3 others----Respondents

C.R. No.3754 of 2014, decided on 11th February, 2015.

Civil Procedure Code (V of 1908)---

----O. XV, R. 1, O. XII, R. 2 & O. XXI----Suit for recovery of damages---Admission of documents---Disposal of suit at first hearing---Preliminary decree---Deposit of admitted amount in court---Execution of decree---Plaintiff, a private limited company, filed suit for damages on ground that defendants, foreign companies, had failed to fulfill their part of undertaking as agreed upon through a Letter of Intent, which had resulted in huge loss, and other defendants, being franchise holders, represented said foreign companies in Pakistan---Defendants, foreign companies, on application under O.XII, R.2, C.P.C. filed by plaintiff, had admitted all documents annexed with the plaint, including receipt of amount of money as part of payment of the franchise agreement; on which, plaintiff filed application under O.XV, R.1 read with S.151, C.P.C. for preliminary decree on basis of said admission seeking deposit of the admitted amount in court, which was dismissed by trial court---Defendants took plea that the amount paid by plaintiff was non-refundable---Validity---Present suit had already been summarily dismissed against defendants, the franchise holders, by trial court under O.I, R.10, C.P.C.---Defendants, in their reply to present application for preliminary decree, had shown their willingness to refund the disputed amount but with condition that plaintiff would withdraw the suit---Defendants, had no assets in Pakistan, and in case, decree was passed, plaintiff would not be able to get the decree executed against the defendants---Franchise fee being received by the defendants from other defendants, franchise holders, was not ascertainable---Defendants, having been incorporated out of Pakistan, should have deposited the amount in court, which would be regulated as per terms of decree---High Court, setting aside order of trial court, directed defendants to deposit the amount in dispute with trial court---Revision petition was allowed in circumstances.

Ch. Bashir Khalid for Petitioner.

Syed Hassan Ali Raza and Asad Javed for Respondents.

2016 C L C 553

[Lahore]

Before Shahid Karim, J

MUHAMMAD YASIN and others----Appellants

Versus

MUHAMMAD LATIF and others----Respondents

R.S.A. No.01 of 2014, decided on 23rd April, 2015.

Evidence Act (I of 1872)---

----S. 68 [since repealed]---Document proof of---Agreement to sell---If a document was required to be attested, it could be used in evidence if one attesting witness had been called for the purpose of proving its execution---Deposition of attesting witness of agreement to sell had not been shaken either in the examination-in-chief or in the cross-examination---Scribe of agreement had also supported the contents of plaint and the case set up therein---Execution of agreement had been duly proved by the plaintiffs---Appeal was dismissed in circumstances.

PLD 1969 SC 617 and 2007 SCMR 554 ref.

Ch. Riayasat Ali v. Mst. Hakim Bibi and another 2000 YLR 2789; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Muhammad Hassan v. Khawaja Khalil-ur-Rehman 2007 SCMR 576; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Zafar Muhammad v. Mst. Anwar Bibi 2004 SCMR 559; Bashir Ahmad and another v. Muhammad Rafiq 2002 SCMR 1291 and Muhammad Nawaz alias Nawaza v. Member Judicial Board of Revenue and others 2014 SCMR 914 distinguished.

Muhammad Amin v. Sardar Ali PLD 2006 SC 318 and Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162 rel.

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

----S. 100---Judgment of trial court and appellate court---Inconsistency in findings---Procedure---High Court in its appellate jurisdiction had to give preference to the findings of Appellate Court in case of variance and dissension in the findings of two courts below unless it suffered from grave irregularity or the same were perverse or the reasons given by the Appellate Court were not sustainable.

Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 rel.

(c) Pleadings---

----Parties were bound by their pleadings and evidence could not be led beyond the pleadings.

PLD 2010 SC 965 and 2012 SCMR 254 rel.

Abdul Sattar Goraya, Mst. Sagheer Ahmad Bhatti Aurang Zaib Ghumman and Masood Bilal for Appellants.

Mian Shahid Iqbal Syed Kabir Mehmood, Ch. Sagheer Ahmad for Respondents.

Date of Hearing: 15th April, 2015.

2016 C L C 671

[Lahore]

Before Shahid Karim, J

MUHAMMAD MAMOON TARAR and another----Petitioners

Versus

DISTRICT RETURNING OFFICER, HAFIZABAD and 6 others----Respondents

W.Ps.Nos.36004 and 36384 of 2015, decided on 26th November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 36(2) & Form XIII---Consolidation of result---Ballot papers excluded from counting---Returning Officer, duty of---Irrespective of any candidate attending process of consolidation, R.36(2) of Punjab Local Government (Conduct of Elections) Rules, 2013, requires Returning Officer to examine ballot papers excluded from the count by presiding officers---Such is mandatory to be done before consolidating results of count---Conditions enumerated in R.36 of Punjab Local Government (Conduct of Elections) Rules, 2013, have to be carried out and must be complied with in order to lend credence and legality to the result consolidated and submitted in Form XIII---If Returning Officer fails to follow the procedure substantially, the process of consolidation becomes ultra vires and High Court has to interfere to declare it non est.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 36(2)(5) & Form XIII---Recount of valid ballot papers---Procedure---Parties contested Local Bodies elections and petitioner was aggrieved of the order made by Returning Officer directing recount of valid ballot papers---Validity---Recount of valid ballot papers could only be set in motion by an application filed by contesting candidate---Two processes in R.36 of Punjab Local Government (Conduct of Elections) Rules, 2013, entailed different forms of examination to take place---In the first, Returning Officer examined ballot papers excluded from count and in the second, (recount of votes) Returning Officer was to merely recount valid ballot papers---High Court set aside purported consolidation of results by Returning Officer for failure to adhere to twin conditions contemplated by R.36 of Punjab Local Government (Conduct of Elections) Rules, 2013---Returning Officer did not give notice under R.36(1) of Punjab Local Government (Conduct of Elections) Rules, 2013, and also omitted to examine ballot papers excluded from the count by Presiding Officers---Returning Officer did not decide application for recount under R.36(5) of Punjab Local Government (Conduct of Elections) Rules, 2013, prior to consolidation of result which was filed in time---High Court directed Returning Officer to proceed with the recount of valid ballot papers and thereafter to consolidate results in accordance with law---Constitutional Petition was allowed accordingly.

Rana Wakeel Ahmad Khan v. Chief Election Commission and 9 others PLD 2004 Lah. 794; Liaquat Ali and another v. Election Tribunal, Sialkot 2003 SCMR 1313; Nawab Khan and others v. Qamar ud Din and others 1999 SCMR 299; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713; Syed Nayyar Hussain Bukhari v. District Returning Officer, N.A. 49, Islamabad and others PLD 2008 SC 487 and Liaqat Abbas Bhatti v. Election Commission of Pakistan through Secretary ECP and others PLD 2013 Lah. 610 rel.

Muhammad Ahsan Bhoon for Petitioner (in W.P. No.36004 of 2015).

Azam Nazeer Tarar for Petitioners (in W.P. No.36384 of 2015).

Mian Irfan Akram, Deputy Attorney General along with Hafiz Adeel Ashraf Law Officer and Allah Ditta, Returning Officer for Respondents.

2016 C L C 706

[Lahore]

Before Shahid Karim, J

AZIZ MASOOD----Petitioner

Versus

Khawaja AHMAD HASSAN and 5 others----Respondents

W.P.No.29157 of 2015, decided on 11th November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 14---Punjab Local Government Act (XVIII of 2013), Ss. 27(2)(e) & 9---Constitution of Pakistan, Art.199---Constitutional petition---Election for Local Government---Nomination papers, submission of---Objections---Appeal---Procedure---Contention of petitioner-applicant was that he raised objections to the nomination papers of the respondent but same were rejected without passing any order---Validity---Right to appear and raise objection at the time of scrutiny of nomination papers was of fundamental importance---Right of appeal had been conferred only upon those persons who were present at the time of scrutiny of nomination papers---Person who was present at the time of scrutiny must have also raised objections to the nomination papers---Nothing was on record with regard to the date and time of filing objections and that petitioner-applicant filed objections to the nomination papers or he was present at the time of scrutiny of the same---Controversial facts could not be gone into in the constitutional jurisdiction of High Court---Question whether respondent was disqualified had become moot point which could not be determined in the Constitutional petition---Petitioner-applicant might if so advised bring appropriate proceedings to challenge the election of the respondent on the basis of disqualification in which decision could be given upon a proper objective analysis---High Court observed that clear and transparent procedure should be prescribed for receiving and dealing with the objections and other matters ancillary to the scrutiny of nomination papers and Election Commission to take steps for plugging the loopholes in this regard---Constitutional petition was dismissed in circumstances.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 14---Submission of nomination papers---Scrutiny---Appeal---Procedure---Appeal against the decision of Returning Officer rejecting or accepting the nomination papers could be preferred by any "person present at the time of scrutiny".

(c) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of High Court---Scope---Controversial facts could not be gone into in the constitutional jurisdiction of High Court.

(d) Appeal---

----Right of appeal was a right conferred by the statute and same could not be inferred or presumed.

Sheraz Zaka for the Petitioner.

Zia Ullah Khan and Rai Shahid Salim Khan, Malik Awais Khalid for Respondent No.l.

Shan Gul, Addl.A.G. with Ahmad Hassan Khan, A.A.G and Amir Majeed.

Mian Irfan Akram, Deputy Attorney General along with Hafiz Adeel Ashraf, Law Officer.

Barrister Salman Mansoor for LDA.

2016 C L C 717

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

MUHAMMAD SHER----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, DISTRICT KHUSHAB and 6 others----Respondents

Writ Petition No.19045 of 2011, heard on 11th September, 2015.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Registration of FIR---Irregular marriage---Petitioner alleged that his daughter was abducted by respondents who also took away gold ornaments and cash amount with them from his house---Ex-officio Justice of Peace declined to interfere in the matter as daughter of the petitioner was a sui juris and had contracted second marriage after elapse of period of Iddat---Validity---Marriage entered into by a divorced lady before completion of Iddat period could be an irregular marriage and not void marriage---Marriage which was irregular could not be treated as void marriage---Union of husband and wife in irregular marriage could not be regarded as un-Islamic or against Sharia---Daughter of petitioner was divorced by her previous husband and if she had produced divorce deed, the same would be valid when the previous husband had not come forward to deny or dispute validity of 'Talaqnama'---High Court declined to interfere in the order passed by Ex-officio Justice of Peace---Petition was dismissed in circumstances.

Mst. Sughran v. Station House Officer and others 2004 YLR 1229; Fatima Bibi v. Station House Officer and others PLD 2005 Lah. 126 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.

Para No.2, Surah Al-Baqarah, Verse No.228 of Holy Quran; Mullah's Mohammadan Law; Shaukat Ali and others v. The State 2004 YLR 619 and Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.

(b) Islamic law---

----Marriage---Divorced lady---Iddat period---Non observance of---Effect---Marriage entered into by a divorced lady before completion of Iddat period could be an irregular marriage and not void marriage---Marriage which was irregular could not be treated as void marriage---Union of husband and wife in irregular marriage could not be regarded as un-Islamic or against Sharia.

Mst. Sughran. v. Station House Officer and others 2004 YLR 1229; Fatima Bibi v. Station House Officer, and others PLD 2005 Lah. 126 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.

Ch. Ghulam Farid Sanotra for Petitioner.

Ch. Iftikhar Iqbal Ahmad, A.A.G. for the State.

Malik Muhammad Azam Awan for Respondents.

Date of hearing: 11th September, 2015.

2016 C L C 736

[Lahore]

Before Ali Akbar Qureshi, J

Rana LIAQUAT ALI and 10 others----Petitioners

Versus

Mst. AZIZAN and 5 others----Respondents

C.R.No.1137-D of 2003, heard on 28th April, 2015.

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

----Ss. 53 & 118---Mutation of exchange---Illiterate lady---Plaintiff was an illiterate, ignorant and blind lady---Nobody out of family members of plaintiff was present at the time of executing the alleged exchange mutation to identify and look after her---Land measuring 19 kanals and 04 marlas was being exchanged with land measuring 02 kanals owned by the defendant---Defendant who was brother of plaintiff had committed fraud with her---Revision was dismissed with cost of Rs.25,000/- which should be paid to the plaintiff/respondent.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi 2013 SCMR 868 rel.

Rana Majid Ali for Petitioners.

Nemo for Respondents.

Date of hearing: 28th April, 2015.

2016 C L C 780

[Lahore]

Before Shahid Karim, J

Mst. MUMTAZ MAJEED and 4 others----Petitioners

Versus

MUHAMMAD INAYAT----Respondent

Civil Revision No.947-D of 2000, decided on 21st May, 2015.

Specific Relief Act (I of 1877)---

----Ss. 12, 14, 15, 16, 17 & 21 (c)---Contract Act (IX of 1872), Ss.3 & 7---Suit for specific performance---Part performance of agreement---Reasonable certainty---Requirements---Decree for specific performance of part of an agreement was passed by the courts below---Validity---Alleged agreement to sell did not contain full particulars of suit property---Agreement, the terms of which could not be found with reasonable certainty could not be specifically enforced---Merely stating the name of village in which the land was situated did not satisfy the requirements with regard to certainty and exactitude of the description of property which was sought to be alienated---Material contradictions in the statements of witnesses produced by the plaintiff were on record---Present suit did not come within the ambit of Ss.14, 15, 16 & 17, Specific Relief Act, 1877---Both the courts below had committed misreading of evidence---Impugned judgments and decrees passed by both the courts below were set aside---Revision was accepted in circumstances.

Fida Hussain v. Jalal Khan 2002 CLC 1339 rel.

Khadim Nadeem Malik for Petitioners.

Nemo for Respondent.

Date of hearing: 7th May, 2015.

2016 C L C 792

[Lahore]

Before Amin-ud-Din Khan and Muhammad Sajid Mehmood Sethi, JJ

Malik NASIR MEHMOOD----Appellant

Versus

DISTRICT TRANSPORT OFFICER and 3 others----Respondents

I.C.A. No.268 of 2015 in W.P. No.8327 of 2015, decided on 10th June, 2015.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Intra-court appeal---Maintainability---If relevant law had provided the remedy of appeal review or revision then remedy of intra-court appeal was barred.

Muhammad Aslam Sukhera v. Collector Land Acquisition, Lahore, Improvement Trust, Lahore and another PLD 2005 SC 45; Akbar Ali v. Additional I.G. Police and others 2011 YLR 2497; Muhammad Ameer Azam and 3 others v. Islamia University Bahawalpur and 5 others 2011 PLC (C.S.) 1227; Vice Chancellor, University of Health Sciences v. Breeha Zainab and others 2011 MLD 1652; Bashir Ahmad v. Board of Intermediate and Secondary Education, Multan through Chairman and 3 others 2013 PLC (C.S.) 752 and Dr. Kiran Qadir v. Maj. Dr. Muhammad Ali Yousaf Khan PLD 2014 Lah. 17 rel.

Sajjad Hussain Sipra for Appellant.

Abdul Salam Alvi for Respondent "on watching brief".

2016 C L C 837

[Lahore]

Before Abid Aziz Sheikh, J

BANK AL HABIB LIMITED through Branch Manager---Petitioner

Versus

ABU BAKAR TEXTILE MILLS through Managing Partner and 8 others---Respondents

C.M. No.533-B of 2015 in C.O.S. No. 114 of 2009, decided on 30th June, 2015.

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

----Ss. 2(2) & 96(3)---"Consent decree"---Scope---Consent decree has not been separately defined in Civil Procedure Code, 1908---For all intents and purposes "consent decree" is decree of Court and provisions of Civil Procedure Code, 1908, are applicable to such decree also except where specifically excluded such as S. 96(3), C.P.C. which has provided that consent decree is not appealable.

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

----S. 151 & O.XX, R.3---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.27---Consent decree---Amendment---Impleading of new party---Suit was decreed in favour of Bank with the consent of parties---Subsequently parties arrived at new settlement and sought amendment of decree as well as impleading a new party---Validity---Consent decree was an agreement, like any other agreement and it was open to parties to enter into compromise with reference to their rights and obligations under a decree---Nothing existed in Civil Procedure Code, 1908, or Financial Institutions (Recovery of Finances) Ordinance, 2001, which could prevent parties to seek amendment of consent decree by circumventing mandatory provisions of Civil Procedure Code, 1908, and Financial Institutions (Recovery of Finances) Ordinance, 2001--- Parties even with consent could not confer jurisdiction on Court to amend decree in contravention of provisions of O. XX, R. 2, C.P.C. and S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Once the Court had passed decree, it became functus officio except for amendment of decree as provided under law---No new person could be impleaded even as a defendant in suit after passing of decree---High Court declined to interfere in consent decree passed by Banking Court---Application was dismissed in circumstances.

Messrs Muslim Commercial Bank Ltd. v. Messrs World Automobiles through Proprietor and others 2010 CLD 558; Habib and 8 others v. Haji Muhammad and 3 others PLD 1970 Kar. 495; Water and Power Development Authority through Chairman, WAPDA Lahore v. Mian Abdul Rauf PLD 2002 Lah. 268; Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others 1976 SCMR 420 and Nizam ud Din and 13 others v. Ch. Muhammad Saeed and 7 others 1987 CLC 1682 distinguished.

Industrial Development Bank of Pakistan through Vice-President IDBP v. Messrs Crystal Chemicals Limited through Director/Guarantor Crystal Chemical Ltd. and 9 others PLD 2009 Lah. 176; Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh Revenue Department Sindh Secretariat Karachi and others PLD 2001 SC 131; Moti Lal Banker (dead) by his legal representative v. Maharaj Kumar Mahmood Hasan Khan AIR 1968 SC 1087 and Muhammad Umar and another v. Gul Muhammad through L.Rs. and 4 others 2010 CLC 397 rel.

Shezada Mazhar and Salman Faisal for Applicant/Decree Holder Bank.

Raheel Aslam for Respondent/Judgment Debtor.

Anwaar Hussain, Assistant Advocate-General Punjab/Amicus curiae.

2016 C L C 848

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

GULZAR MEHMOOD KHAN----Appellant

Versus

ABDUL WHAEED----Respondent

R.F.A. No.119 of 2009, heard on 16th September, 2015.

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

----O. XXXVII, Rr. 1 & 2---Negotiable Instruments Act (XXVI of 1881), S.118---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for recovery of loan amount on basis of promissory note---Summary procedure on negotiable instrument---Presumptions as to negotiable instrument---Pronote---Principles as to execution and proof---One of marginal witnesses to pronote and receipt of payment not produced---Effect---Plaintiff filed suit for recovery alleging that defendant, having received loan on execution of promissory note, refused to return same, which was decreed by trial court---Validity---Defendant had specifically denied execution of pronote and receipt of payment---Initial onus was on shoulders of plaintiff to prove payment of loan consideration, besides valid execution of pronote and receipt---Only one of attesting witnesses had been produced, who deposed that neither loan amount was paid to defendant nor other attesting witness had signed pronote in his presence---Other attesting witness had not been produced---Pronote was not required to be attested by any witness, but receipt attached therewith must have been attested by two witnesses, and those witnesses were required to be produced to prove same---Plaintiff's contention that other marginal witness had moved abroad, and in such eventuality, trial court was justified in not drawing inference against plaintiff, was misconceived---Plaintiff's omission not to produce marginal witness was fatal as to proof of both pronote and receipt---Scribe of document could not be treated as attesting witness, particularly, when he had never deposed that loan amount was paid in his presence---Scribe of pronote had deposed that one of marginal witness had not signed pronote and receipt before him---Pronote and receipt had been scribed by layman and not by licensed deed writer---Plaintiff had not produced register of deed writer to support his version, thus inference was to be drawn against him--Under Art. 118 of Negotiable Instruments Act, 1881, although certain presumptions were attached to negotiable instrument, but same were rebuttable--Evidence produced by plaintiff was not sufficient to hold that disputed amount had been paid and pronote and receipt had been duly executed---Trial court, while decreeing suit, misinterpreted evidence available on record and erred in law---High Court, setting aside impugned judgment and decree, dismissed suit with costs---Appeal was allowed in circumstances.

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

----Arts. 150 & 151---Question by party to his own witness---Impeaching credit of witness---Hostile witness---Principles as to declaring a witness as hostile---Plaintiff's contention that his witness, who had deposed that consideration was not paid in his presence, had been declared hostile witness by trial court, and he, therefore, was not bound by statement of hostile witness, was without any substance---Such witness would not necessarily be declared as hostile for only reasons that he was unfavourable to party calling him and he was not desirous of telling truth---Trial court, to ascertain as to whether or not a witness was desirous of telling truth, might allow conducting of cross-examination by party, who had called him as witness---No reason existed for declaring a witness as hostile simply because a portion of his statement had gone against party, who had called him---If portion of statement of witness was not inconsonance with deposition made by other witnesses, such witness would not be unnecessarily treated as hostile witness and permitted to be cross-examined---Witness was declared hostile when he resiled from material parts of his earlier statement, and it was not safe to rely upon testimony of such witness---In the present case, however, plaintiff's witness had never been examined on any previous occasion---Inference had to be drawn against party who had produced the witness---Plaintiff was bound by statement of his own witness.

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

----S. 118---Presumptions as to negotiable instrument---Under Art.118 of Negotiable Instruments Act, 1881, although certain presumptions are attached to negotiable instrument, but same are rebuttable.

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

----S. 118---Qanun-e-Shahadat (10 of 1984), Art.17---Presumptions as to negotiable instrument---Competency and number of witnesses---Pronote is not required to be attested by any witness, but receipt attached therewith must be attested by two witnesses, and those witnesses are required to be produced to prove the same.

Mian Hafeez-ur-Rehman for Appellant.

Sheikh Ahmed Saeed for Respondent.

Date of hearing: 16th September, 2015.

2016 C L C 871

[Lahore]

Before Mirza Viqas Rauf, J

GHULAM FAREED----Petitioner

Versus

DELIMITATION AUUTHORITY, D.G. KHAN and 4 others----Respondents

Writ Petitions Nos.11192, 11207, 11332, 11470, 11517, 11519, 11588, 11616, 11628, 11629, 11630, 11641, 11772 and 12112 to 12115 of 2015, heard on 20th August, 2015.

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

----Ss. 10, 8 & 9----Punjab Local Government Act (XVIII of 2013), Ss.8 & 9---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Arts.10-A, 218, 219 & 222---Delimitation process---Principles---Reports of Commission and list of constituencies---Objections against delimitation process---Right to fair trial---Election Commission, duty of---Petitioners, preferred objections against delimitation of their constituencies, which were rejected by Delimitation Officer---Contention raised by petitioner was that the delimitation process had been conducted in disregard of all prescribed laws, rules and instructions---Validity---Part III of Chapter II of Instructions issued by Election Commission prescribed responsibilities of Delimitation Authorities, and Item No.37 of said Instruction cast duty upon Delimitation Authorities to hold inquiry, summon witnesses and record evidence for purpose of deciding objections preferred before it---Delimitation Authority had not followed the said basic requirements while deciding objection petitions or representations of petitioners---Impugned orders of Delimitation Authority were in oblivion of mandatory provisions of law, and the same also lacked any lawful reasoning for acceptance or rejection of objections---Impugned orders also offended provisions of Art.10-A of Constitution---Any order passed by the Authority in exercise of its powers was expected to carry reasoning and be speaking order---Section 24-A of General Clauses Act, 1897 bound down even the Executive to assign reasoning and pass speaking order, while determining rights of parties---High Court, declaring impugned orders as illegal, unlawful, restored all objection petitions and directed the Delimitation Authority to re-adjudicate the same in accordance with the law and Instructions---Constitutional petition was allowed in circumstances.

Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1; Messrs United Wollen Mills Ltd. Workers' Union v. Messrs United Wollen Mills Ltd. 2010 SCMR 1475 and Fasih-ud-Din Khan and others v. Government of Punjab and others 2010 SCMR 1778 rel.

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

----S. 24-A----Speaking order---Section 24-A of General Clauses Act, 1897 binds down even the Executive to assign reasoning and pass speaking order, while determining rights of parties.

Tahir Mehmood, Mian Abbas Ahmad, Abdul Rehman Khan Laskani, Muhammad Maalik Khan Langha, Malik Muhammad Fiaz Mohana for Petitioners.

Muhammad Naveed Rana, Standing Counsel for the Respondents Nos.1 to 3 along with Sh. Zahid Iqbal District Election Commissioner Muzaffargarh for Respondents.

Date of hearing: 20th August, 2015.

2016 C L C 887

[Lahore]

Before Ali Akbar Qureshi and Ch. Muhammad Iqbal, JJ

Mst. AKHTAR FATIMA through Legal Heirs and others----Petitioners

Versus

BAKHAT RAFEE SHAH and others----Respondents

RFA No.154 of 2011, heard on 9th April, 2015.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for specific performance of agreement to sell property---General power of attorney---Sale of property by the attorney to his close relative without permission of principal---Unilateral agreement---Agreement, proof of---Procedure---General attorney executed an agreement to sell property in favour of his mother---Suit was dismissed concurrently---Validity---Alleged attorney executed an agreement to sell in favour of his mother---Whereabouts of suit properties were not specifically mentioned in the general power of attorney---Property in question could not be chosen for the purpose of sale and transfer---Impugned transaction was doubtful in circumstances---No uncertainty or vagueness was permissible in the power of attorney---Alleged power of attorney was result of fraud and fabrication just to usurp the property of a lady---Power of attorney to be construed strictly---Only such powers qua the explicit object which were expressly and specifically mentioned in the power of attorney to be exercised by the agent---Attorney could not alienate property to his close relatives i.e. mother, father, brother, wife etc. without getting special permission from the principal---No such permission was obtained by the attorney from the principal for sale of her property to his mother---Alleged agreement to sell was not enforceable under the law---Alleged agreement to sell was unilateral which could not be enforced even same had been admitted by the parties---Any agreement creating future obligations should be attested by two truthful male witnesses or if two male witnesses were not available then one male and two female witnesses could attest any such instrument---Marginal witnesses of agreement to sell were not produced before the Trial Court to prove the same---One marginal witness of alleged power of attorney was not produced before the Trial Court to prove the same---Plaintiffs had failed to prove alleged power of attorney and agreement to sell---Agreement to sell had been fraudulently prepared by the alleged attorney---Plaintiffs had failed to prove their case---No illegality or irregularity had been committed by the courts below while dismissing the suit---Appeal was dismissed in circumstances.

Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190; Imam Din and 4 others v. Bashir Ahmad and 10 others PLD 2005 SC 418; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241 rel.

(b) Power of attorney---

----Power of attorney should be construed strictly.

Ch. Abdul Razzaq for Appellants.

Nemo for Respondents.

Date of hearing: 9th April, 2015.

2016 C L C 915

[Lahore]

Before Shahid Mubeen, J

MUHAMMAD NAWAZ----Petitioner

Versus

SENIOR MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 4 others----Respondents

Writ Petition No.1322 of 2012, decided on 13th November, 2015.

(a) Punjab Land Revenue Rules, 1968---

----Rr. 17 & 19---Lambardar---Appointment of---Procedure---Vested right---Petitioner filed application for appointment of Lamberdar on the death of earlier Lamberdar which was accepted by the District Officer (Revenue)---Respondent filed appeal against the said appointment which was accepted and he was appointed as Lamberdar---Validity---Concurrent findings of fact had been recorded by the revenue authorities---Respondent had land measuring 61-kanals and 7-marlas which was sufficient for Zar-e-Bharat---Respondent had already rendered services as Sarbrah Lamberdar for a long time and he was well versed with the duties of the post---Petitioner had higher education qualification as compared to respondent---To be appointed as Lamberdar was not the vested right---Concurrent findings recorded by the revenue authorities were in accordance with law---Constitutional petition was dismissed in circumstances.

2006 CLC 755 distinguished.

Bashir Ahmad v. Member (Judicial-III), Board of Revenue Punjab and others 2002 SCMR 1371; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363 and Abdul Ghafoor v. Member (Revenue) Board of Revenue and another 1982 SCMR 2002 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not upset concurrent findings of fact while exercising constitutional jurisdiction.

Sheikh Naveed Shehryar for Petitioner.

Muhammad Nasir Chowhan, Addl. A.-G. for the State.

Mian Tariq Hussain for Respondent.

2016 C L C 937

[Lahore]

Before Shams Mehmood Mirza, J

ZAHOOR AHMAD----Appellant

Versus

Master MUSHTAQ AHMAD----Respondent

RFAs Nos.84 and 85 to 99 of 2006, decided on 17th September, 2015.

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

----O. XXXVII, Rr. 2, 3 & O. II, R. 2---Negotiable Instruments Act (XXVI of 1881), Ss. 118, 69, 72 & 73---Suit for recovery of money on the basis of cheque---Requirements---Procedure---Non-presentation of cheque to the Bank---Effect---Different suits for different cheques---Scope---Identical cause of action---Bar of O.II, R.2, C. P. C---Applicability---Pleadings---Scope---Plaintiff filed sixteen suits for recovery of money on the basis of sixteen cheques which were decreed by the Trial Court---Validity---Cheques in question were never presented to the bank for encashment--- Plaint, in the present case, was short in details and necessary and relevant facts were not pleaded therein---Factual matrix in which cheque(s) was/were issued and handed over to the plaintiff was never pleaded in the plaint---Testimony of plaintiff was beyond the contents of plaint---Fact that defendant had taken loan from the plaintiff and delivered sixteen cheques was never averred in the plaint---Evidence adduced beyond pleadings would not be admissible nor any evidence could be permitted to be adduced which was at variance with the pleadings---Evidence led by the plaintiff could not be considered and had to be rejected---Trial Court had ignored material discrepancies in the evidence of plaintiff---Nothing was on record that cheques were issued by the defendant---Presumption of consideration under S.118 of Negotiable Instruments Act, 1881 was not available to the plaintiff---Disputed cheques were never dishonoured---Plaintiff was bound to present the cheques to the Bank for cause of action to accrue to him against the drawer of said cheques---If cheque was not presented to the Bank for its payment then procedure provided for in O.XXXVII, C.P.C. would not be available to the plaintiff and the suit so filed would not be maintainable---Drawer of the cheque would be absolved from liability unless same was presented for payment---Nothing was on record that account of defendant did not have sufficient funds for honouring the amount of sixteen cheques---Plaintiff was bound to prefer all the claims before the court in one suit if cause of action was the same---Order II, R.2, C.P.C. had prohibited the splitting of claim and had enjoined unity of all claims based on the same cause of action in one suit---Alleged loan was the original transaction which had created the obligation on the part of defendant for which he allegedly gave collateral security in the shape of cheques---Obligation to repay the loan and collateral security of sixteen cheques was but one cause of action with regard to which plaintiff had to bring one suit---All the sixteen cheques were part of same transaction and had constituted one cause of action---Identical cause of action existed in all the suits---Said suits would be hit by the provisions of O.II, R.2, C.P.C. which were barred and plaints of the same were rejected accordingly---Suits being not maintainable, impugned judgment and decree passed by the Trial Court were set aside---Appeal was allowed in circumstances.

Muhammad Khalil Khan and others v. Mahbub Ali Mian and others PLD 1948 PC 131; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 and Mahadulal and another v. Chironji Lal and others AIR 1963 MP 51 rel.

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

----O. XXXVII, Rr. 2 & 3---Institution of suit for recovery of money on the basis of cheque---Maintainability---Procedure---Plaintiff would be bound to present the cheque to the Bank and if the same was dishonourned, could file a suit under O.XXXVII, C.P.C. for cause of action had accrued against the drawer of said cheque---If cheque was not presented to the Bank for its payment, procedure provided for in O.XXXVII, C.P.C. would not be available to the plaintiff and the suit so filed would not be maintainable.

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

----O. II, R. 2---Suit to include whole claim---Scope and object---Order II, R.2, C.P.C. had prohibited the splitting of claim and had enjoined unity of all claims based on the same cause of action in one suit---Object of O.II, R.2, C.P.C. was to prevent further litigation between the same parties over the same cause of action.

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

----O. II, R. 2---Cause of action---Meaning.

(e) Evidence---

----Pleadings----Evidence adduced beyond pleadings would not be admissible nor any evidence could be permitted to be adduced which was at variance with the pleadings.

Syed Muhammad Jamil Anwar Shah for Appellant.

Fakhar Raza Malana for Respondent.

Date of hearing: 22nd May, 2015.

2016 C L C 1077

[Lahore]

Before Muhammad Khalid Mehmood Khan and Shahid Bilal Hassan, JJ

Mian WASEEM RASOOL----Appellant

Versus

AHMAD FAREED and others----Respondents

RFA No.435 of 2010, heard on 1st February, 2016.

Arbitration Act (X of 1940)---

----Ss.14 & 17---Suit for specific performance of agreement and perpetual injunction---Judgment in terms of arbitration award---Court, after the Arbitrator had submitted the award to the court, was bound to invite objections from the parties to the arbitration award, and in case the parties, who, being party to the arbitration, had not been made party to the suit, the court was within its power to implead them as party to the suit---Trial Court, after deciding the objections of the parties, was to make the award rule of court, and the rule of court alone was an executable order or decree; hence, the trial court had erred in law while disposing of the suit in terms of the arbitration award without making the award rule of the court---High Court, setting aside the impugned order, directed the trial court to allow the parties to file objections to the award and to implead the parties mentioned in the award as party to the suit and after entertaining the objections either to set aside the award or to make the award rule of court---Appeal was allowed in circumstances.

Ijaz Ahmad Chadhar and Barrister Danyal Ijaz Chadhar for Appellant.

Inayat Ullah Ch. for Respondents.

Date of hearing: 1st February, 2016.

2016 C L C 1085

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

SALMAN FAROOQI----Appellant

Versus

Messrs ROSETEX through Muhammad Tariq----Respondent

F.A.O. No.243 of 2013, heard on 28th October, 2014.

Civil Procedure Code (V of 1908)---

----Ss. 39, 42, 46 & O. XXI, R.6---Execution of decree---Transfer of decree---Powers of Court executing transferred decree---Precepts---Territorial jurisdiction of executing court---Determination---Executing Court at place "F" attached the Bank accounts of the judgment debtor at place "K" and in satisfaction of the decree transferred the amount lying in those accounts in the account of the decree holder---Validity---Under S.39(1), C.P.C., transfer of the decree might be made on application of the decree holder; whereas, S.39(2), C.P.C. gave Suo Motu powers to the executing court to transfer the decree to the court of competent jurisdiction---Term 'competent jurisdiction' referred to territorial and pecuniary jurisdiction to deal with the decree and not the competence of the court to entertain the suit, in which the decree was passed---Under S.42, C.P.C., the transferee court could exercise the same powers as those exercised by the transferor court---Impugned order of the executing court to attach and transfer the amount lying in the Bank accounts at "K" was beyond its territorial jurisdiction---Under S.46 (1) & (2), C.P.C., proper procedure for the executing court was to issue a precept for the attachment of the bank accounts of the judgment debtor to the court in whose territorial jurisdiction the same were located---Executing court should have transferred the execution petition under S.39 read with O.XXI, R.6, C.P.C. to the court where the bank accounts of the judgment debtor were lying or where the judgment debtor was residing---No provision of law existed under which the executing court could attach or make an order for transfer of the amount lying in the Bank account falling outside of its territorial jurisdiction---Courts were bound to follow the procedure prescribed by the law---High Court, setting aside impugned order, restored the execution petition for the executing court to pass appropriate order---Appeal was allowed in circumstances.

Ijaz Ahmed Chadhar for Appellant.

Muhammad Chand Khan for Respondent.

Date of hearing: 28th October, 2014.

2016 C L C 1095

[Lahore]

Before Atir Mahmood and Shahid Mubeen, JJ

Messrs MEGA STEEL MILLS PRIVATE LIMITED----Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary, Environmental Protection Department, Punjab, Lahore and 6 others----Respondents

W.P. No.17300 converted in F.A.O. No.145 of 2015, decided on 22nd December, 2015.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 16 & 23---Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, Rgln.20(3)---Environment protection---Sealing of property---Audi Alteram Partem, principle of---Applicability---Appellant company was aggrieved of sealing its factory by authorities under Pakistan Environmental Protection Act, 1997---Plea raised by appellant was that no opportunity of hearing was provided to appellant, before sealing its factory---Validity---Authorities were not empowered under S.16 of Pakistan Environmental Protection Act, 1997, and Regln.20(3) of Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, to seal property---Sealing of property / premises of appellant by authorities was beyond the scope of Pakistan Environmental Protection Act, 1997, and Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000---Action of sealing property of appellant by authorities was violative of principle of audi alteram partem as no notice was given by authorities to appellant---Principles of natural justice had to be observed in all proceedings whether judicial or administrative, if proceedings were to result in consequences affecting person or property or other right of parties concerned---Such rule was applied even though there was no positive words in statute or legal document whereby power was vested to take such proceedings and in such cases such requirement was to be implied into it as the minimum requirement of fairness---High Court set aside the order of sealing of factory of appellant by authorities---Appeal was allowed in circumstances.

Amanullah Khan v. Chief Secretary, Government of NWFP and others 1995 SCMR 1856; The Registrar of University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 rel.

(b) Maxim---

-----Audi Alteram Partem---Applicability---Scope.

Syed Riaz-ul-Hassan Gillani for Appellant.

Mubashar Latif Gill, A.A.G.

Syed Ahsan Raza Hashmi for respondent No.7.

Hafiz Muhammad Tahir and Khalid Iqbal Cheema for Respondents

2016 C L C 1104

[Lahore]

Before Abdus Sattar Asghar, J

FESCO and others----Appellants

Versus

Sh. JAMIL AHMAD----Respondent

F.A.O. No.460 of 2013, decided on 17th December, 2013.

(a) Punjab Consumers Protection Act (II of 2005)---

----Ss. 25, 28, 23, 3 & 4---Punjab Consumer Protection Rules, 2009, R.11---Civil Procedure Code (V of 1908), S.9---Consumer Court, jurisdiction of---Dispute with regard to payment of electricity bill---Issuance of injunctive order by the Consumer Court---Scope---Contention of respondent-department was that jurisdiction of Consumer Court was restricted to the claim of damages with regard to defective product or service and said court had no jurisdiction to determine civil rights and liabilities of the parties---Validity---Provisions of S.3 of Punjab Consumer Protection Act, 2005 did not determine the jurisdiction of consumer court rather its aim was to protect rights and interests of consumer created by the said Act as well as the rights created in any other law for the time being in force---Application filed by the applicant did not contain any claim of damages against the respondent---Consumer Court was bound to examine the allegations raised in the application in order to determine its jurisdiction with regard to grievance of applicant against exorbitant charges of electricity and restoration of connection etc---Jurisdiction of Consumer Court was restricted to the extent of defective product or service for which a consumer could file a claim to recover damages against the manufacturer or service provider---Determination of civil rights and liabilities would fall within the general jurisdiction of civil court under S.9, C.P.C.---Applicant had questioned the impugned demand of electricity charges as exorbitant and had sought for perpetual injunction restraining the respondents from disconnecting his electricity connection and mandatory injunction for restoration of the previous connection---Consumer court was not vested with the jurisdiction to take cognizance of the applicant's grievance---Relief prayed by the applicant could not be granted by the Consumer Court under Punjab Consumers Protection Act, 2005---Consumer Court had no jurisdiction to issue any injunction against the respondent---Impugned order being without jurisdiction was untenable and was liable to be set aside---Application filed under Ss.3 & 4 of Punjab Consumers Protection Act, 2005 was dismissed, however it was clarified by High Court that applicant would be at liberty to avail efficacious remedy before the civil court of competent jurisdiction---Appeal was accepted in circumstances.

Chief Executive FESCO, Faisalabad and 2 others v. Nayab Hussain PLD 2010 Lah. 95 and Messrs Neelab CNG Filling Station through Managing Director v. Managing Director, Sui Northern Gas Pipleline Ltd. and 4 others PLD 2013 Pesh. 9 ref.

Chief Executive FESCO, Faisalabad and 2 others v. Nayab Hussain PLD 2010 Lah. 95 and Messrs Neelab CNG Filling Station through Managing Director v. Managing Director, Sui Northern Gas Pipeline Ltd. and 4 others PLD 2013 Pesh. 9 Distinguished.

(b) Punjab Consumers Protection Act (II of 2005)---

----Preamble---Object---Object of Punjab Consumers Protection Act, 2005 was to provide for protection and promotion of rights and interests of the consumer, speedy redressal of consumer complaints and for matters connected therewith---Purpose of the Act was to furnish speedy remedy to the consumer for the claim of damages on account of defective product or service---Consumer who suffered damage had two options either to file complaint before the competent Authority or file claim for damages.

Shabbir Ahmed for Appellant.

Jahanzeb Khan for Respondents.

Date of hearing: 17th December, 2013.

2016 C L C 1125

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SHAHIDA SHAHEEN and others----Petitioners

Versus

Mst. ASIF SULTANA----Respondent

C.M. No.1-C of 2014 in C.R. No.1461 of 2009, decided on 14th January, 2015.

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

----O. XLI, R.27, Ss.151 & 115---Production of additional evidence---Powers of Revisional Court---Scope---Applicant filed application to produce additional evidence that was dismissed---Revision against, and Constitutional petition were also dismissed---Applicant again filed revision petition to seek permission to produce additional evidence---Validity---Concept of additional evidence under O.XLI, R 27, C.P.C. was alien to revisional jurisdiction, however, in exceptional circumstances by exercising power under S.151, C.P.C. and that too only to clarify something, such process could be adopted---Additional evidence which was being sought to be produced or brought on record could not be allowed in revisional jurisdiction with intent to fill lacuna---Revisional court, in no circumstances, was competent to allow production of additional evidence of any kind.

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

----O. XLI, R.27, Ss.107 & 115---Production of additional evidence---Powers of appellate Court and revisional Court---Distinction---Appellate Court shall have same power and perform in accordance with procedure prescribed for courts of original jurisdiction---Appellate Court after resettling issues may finally determine suit but revisional court after calling record of any case will decide illegality, irregularity or jurisdictional defects before the proceedings below---Power to permit additional evidence was confined only either to Trial Court or Appellate Court---Revisional court has no power to finally determine or take additional evidence unlike appellate court---Appellate court has vast and wide powers to reopen and cause addition in record already maintained by Trial Court whereas revisional court would restrict itself to examine illegality or irregularity in proceedings of courts below.

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

----O. XLI, R.27 & S.115---Production of additional evidence in revision---Case-law surveyed.

Mohabbat v. Asadullah Khan and others PLD 1989 SC 112 and Muhammad Khan v. Mukhtiarkar Revenue, Kot Ghulam Muhammad, District Mirpurkhas and others PLD 2009 Kar. 352 rel.

Ghulam Muhammad v. Mian Muhammad and another 2007 SCMR 231; Km. Rakhi and another v. Ist Additional District Judge, Firozabad and others AIR 2000 Allahabad 166 and Mohd. Sabir v. Mohd. Husain 1979 All LJ 1065 distinguished.

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

----O. XVIII, Rr.2, 5, 12 & 13---Procedure of taking evidence and examination of witness discussed.

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

----O. XLI, Rr.27, 28 & 29---Appeal from original decree and powers of court to permit additional evidence---Scope.

(f) Words and Phrases---

----"Record"---Definition---Written account of some act, transaction, or instrument, drawn up, under authority of law, by a proper officer, and designed to remain as a memorial or permanent evidence of the matters to which it relates; term 'records' means accounts, correspondence, memorandums, tapes, discs, papers, books and other documents or transcribed information of any type whether expressed in ordinary or machine language; complete record, encompasses clerk's record, record of proceedings and all evidence; Court record proceedings means official collection of all the trial pleadings, exhibits, orders and word-for-word testimony that took place during the trial and Judicial record, means precise history of civil or criminal proceedings from commencement to termination.

Black's Law Dictionary Sixth Edition quoted.

Ahmed Waheed Khan for Petitioners.

Muhammad Anzak Raja for Respondent.

2016 C L C 1137

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ABDUL RASHEED FARAIDI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and another----Respondents

W.P. No.8698 of 2015, decided on 18th June, 2015.

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

----O. VI, R. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim order---Amendment of plaint---Scope---Application for amendment of plaint was accepted by the Trial Court against which Appellate Court passed direction that final judgment till next date of hearing be not announced---Validity---Interim/interlocutory order of Appellate Court had been challenged through present constitutional petition---Constitutional petition would not lie against an interim/interlocutory order passed by the court of competent jurisdiction unless it was shown to be patently illegal, unlawful and without lawful authority---No illegality, infirmity or jurisdictional error had been pointed out in the impugned order passed by the Appellate Court---Constitutional petition was dismissed in limine being not competent.

Abdul Rasheed v. Judge, Family Courts, Mian Channu and another 2010 CLC 797; Agricultural Development Bank of Pakistan and others v. Yar Muhammad and others 2004 CLD 1084; Muhammad Yaqoob v. Secretary Cooperative and 6 others 2003 YLR 2604 and Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition against interim order---Scope---Constitutional petition would not lie against an interim/interlocutory order passed by the court of competent jurisdiction unless it was shown to be patently illegal, unlawful and without lawful authority.

Tariq Muhammad Iqbal Ch. for Petitioner.

Aziz-ur-Rehman A.A.G on Courts' call.

2016 C L C 1145

[Lahore]

Before Ch. Muhammad Iqbal, J

ZAIGHAM IMTIAZ----Petitioner

Versus

IQBAL AHMED ANSARI and another----Respondents

Writ Petition No.21349 of 2015, decided on 23rd July, 2015.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 2(c)(i), 4, 8, 25 & 28(4)---Punjab General Clauses Act (VI of 1956), Ss.2 & 2(47)---Constitution of Pakistan, Art.199---Constitutional petition---Liability for defective products---Determination---Terms 'consumer' and 'commercial purpose'---Definition and scope---Limitation and negligence in using product, determination of---Principles---Complaint under S.25 of Punjab Consumer Protection Act, 2005 on ground that solar energy system installed by respondent was not working properly, which complaint was entertained by Consumer Court---Respondent contended that complaint could not be entertained as complainant did not fall within definition of 'consumer' as he had used solar energy system for commercial purpose---Validity---Under S.2(c) Punjab Consumer Protection Act, 2005, 'consumer' meant person or entity who bought or obtained any product against consideration and any user of such product but did not include person or entity who obtained any product for resale or for any commercial purpose, which did not include use of product by consumer only for purpose of his livelihood as self-employed person---Definition of 'consumer' showed that two words 'person' and 'entity' had been used---Word 'person' was not defined in Punjab Consumer Protection Act, 2005, for which provision of S.2 of Punjab General Clauses Act, 1956 would be invoked---Section 2(47) of Punjab General Clauses Act, 1956 defined 'person' as 'Person shall include any company or association or body of individuals, whether incorporated or not.'---Section 2 (e) of Punjab Consumer Protection Act, 2005 defined 'entity' as 'Entity means organization that has legal identity apart from its members'---Definition of 'consumer' was very comprehensive, which not only covered consumer of products but also consumer of services and extended from person who bought any commodity to consume either as eatable or otherwise from shop, business place, corporation, store, fair price shop to use private or public service---When any expression or word was not defined in an Act, then its common parlance meaning should have been given, and according to which words 'commercial purpose' was purpose the object or aim of which was to make profit out of undertaking---High Court observed that 'commercial purpose' must be interpreted considering facts and circumstances of each case---Respondent had installed solar energy system after receiving consideration at shop of complainant, where he sold shoes---Purpose of installation of solar energy system was for providing better atmosphere to customers who came there to buy shoes and to facilitate workers who worked there, and no benefit by way of profit had accrued to complainant improving his balance sheet---Whether complainant had used solar energy system for operating machines used in manufacturing shoes or he supplied energy to other shops could not be proved---Complainant, therefore, fell within definition of 'consumer' in terms of S.2(c)(i) of Punjab Consumer Protection Act, 2005---Consumer Court had rightly observed that complainant had purchased solar system from respondent for using the same at his business premises which was meant for selling of shoes and not for sale of energy solar system---Questions as to limitation in filing complaint and negligence on part of complainant in using the product, could appropriately be dealt with and decided by Consumer Court---Any verdict on said questions under constitutional jurisdiction would affect case of either party at trial---Constitutional petition against interlocutory or interim order was not maintainable---Constitutional petition was dismissed in circumstances.

Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 3 SCC 583 and AIR 1995 SC 1428; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 and Liaqat Abbas Bhatti v. Election Commission of Pakistan through Secretary, ECP and others PLD 2010 L 610 rel.

(b) Words and Phrases---

----`Person'---Meaning.

Oxford Dictionary, Black's Law Dictionary and Webster's Dictionary ref.

(c) Words and Phrases---

----`Commercial purpose'---Meaning.

Collins English Dictionary, Chambers Twentieth Century Dictionary, Concise Oxford Dictionary, Whartson's Law Lexicon, Black's Law Dictionary and Stroud's Judicial Dictionary ref.

(d) Interpretation of statutes---

----When any expression or word was not defined in an Act, its common paralance meaning to be given.

Manzoor Hussain Butt for Petitioner.

2016 C L C 1164

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

GHULAM SAKINA and another----Petitioners

Versus

Mst. MUMTAZ BEGUM----Respondent

Civil Revision No.651 of 2005, heard on 6th November, 2015.

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

----Ss. 21 & 99---Suits Valuation Act (VII of 1887), S.11---Punjab Civil Courts Ordinance (II of 1962), S. 9---Decree passed by a court having no jurisdiction---Objection to jurisdiction---"Prejudice"---Scope---Civil Judge Class-II passed a decree in a suit having value for the purpose of jurisdiction as Rs.12,00,000/---Validity---When a suit had been tried by a court on merits and judgment was delivered, it should not be reversed on technical ground unless it had caused failure of justice---Objections to jurisdiction both territorial and pecuniary should be treated as technical unless it had resulted in prejudice on the merits---Civil Judges of Class-II were competent to exercise jurisdiction in original civil suit or proceedings wherein the subject-matter in amount or value did not exceed Rs.50,000/---Civil Judge Class-II on 23-10-1994 had no jurisdiction to pass a decree in the suit, the value of which was determined at the rate of Rs.12,00,000/---Court should consider whether any disadvantage was caused on account of any bias---Appellate Court had not given any findings with regard to value of suit for the purpose of jurisdiction---Defendants had been prejudiced both at trial stage as well as at first appellate stage---Judgments and decrees passed by both the courts below were not sustainable which were set aside---Case was remanded to the Civil Judge Class-I for proceedings in accordance with law---Revision was allowed in circumstances.

Muhammad Hussain and another v. Muhammad Shafi and others 2004 SCMR 1947; Malik Fida Mohammad and another v. Haji Ahmad and another 2001 YLR 1859 and Rehmat Khan v. Muhammad Shafi PLD 1981 Lah. 759 rel.

(b) Punjab Civil Courts Ordinance (II of 1962)---

----S. 9---Civil Judges, classification of---Object---Object for classification of Civil Judges was that the suit having more pecuniary jurisdiction should be attended by the Civil Judge having rich experience.

(c) Words and phrases---

----Prejudice'---Meaning.

Chambers 21st Century Dictionary and Black's Law Dictionary Tenth Edition rel.

Syed Asghar Hussain Sabzwari for Petitioners.

Sardar Abdul Raziq Khan for Respondent.

Date of hearing: 6th November, 2015.

2016 C L C 1197

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

RAFHAN BEST FOODS LIMITED through Legal Manager----Petitioner

Versus

Messrs RASHID AND BROTHERS through Proprietor and 2 others----Respondents

C.R. No.2915 of 2011, heard on 23rd April, 2014.

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

----S. 20, O.XXXVII, R.2, O.VII, R.10 & O.XIV, R.2---Contract Act (IX of 1872), S.28---Recovery suit---Territorial jurisdiction---Agreement in restraint of legal proceedings---Defendant raised objection to the jurisdiction of the court and sought decision on the issue of jurisdiction before decision on merits---Validity---Issue of jurisdiction of court being a question of law could be raised by any party at any stage of the trial, even court itself was required to examine whether it had jurisdiction to seize with the matter or not---Merely because a party to the proceedings had not taken objection relating to jurisdiction, such a party would not be barred from taking such objection at any stage of proceedings---Parties could not confer jurisdiction on a court where the court was not vested with jurisdiction---Proceedings without jurisdiction were coram non judice---Question of (absence of) jurisdiction vitiated the entire proceedings---Section 20, C.P.C. provided that every suit would be filed in a civil court within whose local limits or jurisdiction the defendant resided or carried on business or where the cause of action wholly or in part occurred---Under S.28 of the Contract Act, 1872 every agreement by which any party thereto was restricted absolutely from enforcing his rights under or in respect of any contract by legal proceedings in the ordinary tribunals or which limited the time within which any party may thus enforce his rights was void to that extent---Civil courts exercised jurisdiction under Civil Procedure Code, 1908, where such courts did not have jurisdiction under the Civil Procedure Code, 1908, jurisdiction would not be conferred on civil courts by mutual agreement of parties to a dispute---Where two or more courts had jurisdiction to try a suit under Civil Procedure Code, 1908, parties could select a particular court having territorial and pecuniary jurisdiction for the determination of their dispute---Trial Court had to determine first whether it had jurisdiction or not---Revision was allowed with direction to Trial Court to treat the issue of jurisdiction as preliminary and decide the same prior to decision of other issues.

2006 CLC 210 and 2011 SCMR 806 ref.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 and Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 1174 rel.

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

----S. 28---Agreement in restraint of legal proceedings---Validity/ effect---Under S.28, Contract Act, 1872 every agreement by which any party thereto was restricted absolutely from enforcing his rights under or in respect of any contract by legal proceedings in the ordinary tribunals or which limited the time within which any party may enforce his rights was void to that extent.

Syed Ijaz Ali Akbar Sabzwari for Petitioner.

Sh. Naveed Shehryar for Respondents.

Date of hearing: 23rd April, 2014.

2016 C L C 1205

[Lahore (Rawalpindi Bench)]

Before Ijaz Ahmad and M. Sohail Iqbal Bhatti, JJ

Sardar ZULFIQAR ALI KHAN and 8 others----Appellants

Versus

Malik SAJID BASHIR----Respondent

R.F.A. No.32 and C.M. No.2 of 2013, decided on 3rd December, 2013.

Limitation Act (IX of 1908)---

----S. 14---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Filing of appeal before wrong forum---Condonation of delay---"Good faith"---"Sufficient cause"---Wrong advice by the counsel---Scope---Appeal was returned to the appellants on 23-04-2010 and same was filed before the High Court on 24-01-2013---No ambiguity was on record in filing appeal before High Court---Wrong advice of counsel could not constitute "good faith" or "sufficient cause" for condonation of delay against clear provision of law---Appellants were bound to explain the delay of each and every day---Appeal on account of pecuniary jurisdiction was to be filed before the High Court but appellant after return of the same had been pursuing civil revisions---Pursuing civil revision could not constitute "good faith"---Application for condonation of delay along with appeal were dismissed in circumstances.

Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Abdul Majeed and others v. Hamida Bibi and 4 others 2002 SCMR 416; Mst. Khalida Begum and 2 others v. Mst. Yasmeen and 4 others 2000 CLC 1290 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 ref.

Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 distinguished.

Ahmad Awais for Appellant.

M. Bilal and Malik Muhammad Iqbal for Respondent.

2016 C L C 1229

[Lahore]

Before Muhammad Khalid Mehmood Khan and Shahid Bilal Hassan, JJ

MUHAMMAD HASNAIN MUMTAZ and 3 others----Appellants

Versus

GHULAM BARI and 2 others----Respondents

Regular First Appeal No.812 of 2010, decided on 26th January, 2016.

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

----S. 13---Talbs, performance of---Requirements---Non-mentioning of names of witnesses of talbs in the plaint---Effect---When talbs were not proved as per mandate and dictates of law then same would be fatal to the pre-emptor's case---Evidence of both the parties had minutely been scanned and appraised by the Trial Court---No misreading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Trial Court---Talb-i-Muwathibat had not been proved according to law---No specific place except 'house' for performance of Talb-i-Muwathibat had been narrated by the plaintiffs---Plaint did not contain the names of witnesses who formed Majlis or in whose presence such talb had been performed by the plaintiffs---Mentioning and proving of time, date and place of imparting information and making of jumping demand was sine qua non in order to succeed in a suit for possession on the basis of pre-emption which was lacking in the present case---Missing of performance of one talb was fatal and injurious to the plaintiffs---When plaintiffs had failed to prove performance of Talb-i-Muwathibat then no decree for possession through pre-emption could be passed in their favour---Appeal was dismissed in circumstances.

Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others 2013 SCMR 178 and Sardar Khan v. Nadir Ali 2014 YLR 69 ref.

Dr. Pir Muhammad Khan v. Khuda Bukhsh and others 2015 SCMR 1243; Mian Pir Muhammad and another's case PLD 2007 SC 302; 2013 SCMR 721 and Mst. Sahib Jamala v. Fazal Subhan and 11 others PLD 2005 SC 977 rel.

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

----S. 13---Talbs, performance of---Pre-emptor would be bound to prove the performance of talbs in accordance with law in a suit for pre-emption in order to succeed in the said suit.

Ali Ahmad Parvez Malik and Atif Sohail Butt for Petitioners.

Shaegan Ejaz for Respondent No.3

2016 C L C 1236

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD RAMZAN----Petitioner

Versus

MUHAMMAD TARIQ----Respondent

Civil Revision No.1161 of 2009, heard on 18th December, 2015.

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

----S. 13---Talb-i-Ishhad, performance of---Procedure---Affirmative onus to prove Talb-i-Ishhad was on the pre-emptor---Pre-emptor had to prove the sending of notice of Talb-i-Ishhad by affirmative evidence which required examination of booking postal clerk as well as postman in witness box---Non-production of said officials in the witness box was fatal for the success of pre-emption suit---Pre-emptor, in circumstances, had failed to prove performance of Talb-i-Ishhad---Findings recorded by the Appellate Court were not sustainable which were reversed---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Allah Ditta v. Muhammad Anar 2013 SCMR 866 ref.

Khan Afsar v. Afsar Khan and others 2015 SCMR 311 rel.

Ejaz Feroze for Petitioner.

Shaigan Ijaz Chadhar for Respondent.

Date of hearing; 18th December, 2015.

2016 C L C 1245

[Lahore]

Before Ali Baqar Najafi, J

ZAKA ULLAH and others----Petitioners

Versus

MANZOOR HUSSAIN through L.Rs. and others----Respondents

Civil Revision No.891 of 2011, heard on 8th December, 2015.

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

----Arts. 17 & 79---Civil Procedure Code (V of 1908), O.XVI---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---One of two attesting witnesses not produced in proof of agreement---Effect---Scribe produced as attesting witness---Competence---Both courts below dismissed the suit for the reason that the agreement had not been proved in terms of Arts.17 & 79 of Qanun-e-Shahadat, 1984, as only one of the two attesting witnesses had been produced and no explanation had been afforded for not producing the other witness---Validity---Non-production of one of the two attesting witnesses had neither been explained by the plaintiffs nor had any serious effort been made to produce him before the court through the process of law---Provisions of Arts.17 & 79 of Qanun-e-Shahadat, 1984 clearly demonstrated that except for a will, no document could be used in evidence until the same was proved by two attesting witnesses---Mere producing one of the two attesting witnesses would not discharge the burden lying upon the plaintiffs to prove said document when execution of the same had been specifically denied by the defendants---Plaintiffs' other witness/scribe was claimed to be also one of the attesting witnesses of the agreement, and though plaintiff's witness had admitted that payment of the consideration had been made in presence of the scribe, but name of said scribe was neither mentioned in the agreement nor in the plaint in any capacity---Said witness/scribe himself had admitted that though he had witnessed the signing of the agreement but he remained ignorant about the payment made in his presence---Witness could not be introduced to prove the document, unless his name existed on the document or was referred by any of the other witnesses in their statements or was named as such in the plaint; therefore, at least, his name was required to be mentioned in the list of witnesses under O.XVI, C.P.C.---Scribe of the document could be a competent witness only in terms of Arts.17 & 79 of Qanun-e-Shahadat, 1984, if he had fixed his signatures as an attesting witness of the document and not otherwise---Concurrent findings of the courts below were, therefore, upheld---Revision was dismissed in circumstances.

Sana Ullah and another versus Muhammad Manzoor and another PLD 1996 SC 256 ref.

Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254 and Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 rel.

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

----Arts. 17 & 79----Civil Procedure Code (V of 1908), O.XVI---Specific Relief Act (I of 1977), S.12---Suit for specific performance of agreement---Witness cannot be introduced to prove a document unless his name exists on the document or is referred by any of the witness in their statements or is named as such in the plaint; therefore, at least, his name is required to be mentioned in the list of witnesses under O.XVI, C.P.C.

Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254 and Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 rel.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of fact recorded by the courts below cannot be interfered with in exercise of revisional jurisdiction in the absence of any illegality or glaring irregularity.

Mirza Hafeez-ur-Rehman for Petitioners.

Mian Subah Sadiq Klasson for Respondents Nos.1 (1A to 1-G).

Date of hearing: 8th December, 2015.

2016 C L C 1258

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD YOUSAF----Petitioner

Versus

MEHMOOD and 2 others----Respondents

C.R. No.268-D of 2008, heard on 9th September, 2015.

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

----Ss. 8 & 12----Qanun-e-Shahadat (10 of 1984), Arts. 72 & 74---Suit for possession and specific performance of oral agreement---Proof of contents of document---Secondary evidence---Oral agreement---Principles as to validity and proof---Plaintiff filed suit seeking possession of suit property claiming that defendants had been in possession as his licensee---Defendants later filed suit for specific performance on ground that plaintiff had agreed to exchange suit land with their land under oral agreement---Trial court, through consolidated judgment, decreed suit of defendants, and dismissed that of plaintiff---Appellate court maintained decision of trial court---Validity---Ownership of plaintiff regarding suit property had been admitted by defendants by producing Register Haqdaran Zameen---Defendants, in their written statement, had not mentioned that against how much property alleged transaction of "exchange" had been made---Defendants did not plead date, month, venue and names of witnesses to explain as to when, where and before whom "oral exchange contract" had been settled between plaintiff and defendants; instead, only year of oral agreement had been mentioned---Defendants, in their suit for specific performance, for the first time, had pleaded that oral agreement had been settled by plaintiff against different land owned by all defendants---Defendants, in their suit, again failed to plead venue and names of witnesses to explain as to where and before whom alleged transaction had been settled---Glaring major contradictions in statements of defendants' witnesses had badly damaged their case---Defendants' witness had made statement in complete departure of stance as pleaded in their written statement---Defendant's witness had mis-stated area of land which she had alleged to have exchanged with plaintiff against suit property---Defendants had based their claim on oral contract without narrating basic ingredients---None of defendants' witnesses had mentioned exact date regarding settlement of oral contract, terms and conditions of same or exact specification of property owned by defendants, which was alleged to have been exchanged with plaintiff---Written statement and later suit filed by defendants and evidence produced in proof thereof had made their posture highly doubtful---Oral agreement was valid just like written contract provided same fulfilled conditions of valid agreement and also provided through convincing and strong evidence---Impugned judgments and decree were tainted with mis-reading and non-reading of evidence having been passed in complete derogation of settled law, and same, therefore were illegal, unlawful, ultra vires and without jurisdiction---High Court, setting aside impugned judgments and decrees, dismissed suit of defendants and decreed that of plaintiff---Revision petition was allowed in circumstances.

Nazir Ahmad and another v. Yousaf PLD 2011 SC 161; Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs and other 2013 SCMR 1300; Farzand Ali and others v. Khuda Bukhsh and others PLD 2015 SC 187; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

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

----O. XLI, R. 31----Judgment in appeal---Principles---Observance of parameters set down in O. XLI, R. 31, C.P.C. was mandatory---Where Appellate Court overlooked, ignored or failed to consider evidence on record or judgment of appellate court lacked application of mind, it would amount to failure to comply provisions of O. XLI, R. 31, C.P.C.---Recitals of judgment passed by Lower Appellate Court must have shown that it has made sincere endeavour to make proper appraisement of merits of case put forward by parties, which was lacking in judgment of lower appellate court---Appellate Court was bound and obliged to render its independent findings on each point of determination---Appellate Court, in the present case, had ignored said mandate of law, thus impugned judgment was found not qualified to be called "judgment" in eye of aw---Impugned judgment could be termed as cursory judgment for mainly depending upon surmises, although sufficient material in shape of evidence was available before appellate court.

(c) Pleadings---

----Plaint---Proof---When basic ingredients are missing in plaint, then no evidence can be led on such points---Nobody can be allowed to lead evidence in departure of his pleadings.

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

----S. 115----Revision---Scope---Although scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by High Court under S.115, C.P.C. if courts below appeared to have either misread evidence on record or while assessing evidence have omitted from consideration some important piece of evidence, which has direct bearing on issue involved.

Khizar Hayat Khan Punian and Muhammad Masood Bilal for Petitioner.

Mian Fazal Hussain Bhatti for Respondents.

Date of hearing: 9th September, 2015.

2016 C L C 1280

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD YASEEN----Petitioner

Versus

ELECTION COMMISSION and others----Respondents

W.P. No.35635 of 2015, decided on 24th November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 36(5)---Recounting of votes---Consolidation of results---Scope---In view of R.36(5) of Local Government (Conduct of Elections) Rules, 2013, application had to be made in writing by any of contesting candidates---Application filed by petitioner in that respect did not bear any signature of the recipient and it was not known as to whether it was filed prior to consolidation---Held, that High Court, under its constitutional jurisdiction, was not in a position to pass any observation because it might affect the cause of any of the party before appropriate forum---Prima facie, it appeared that there was no such application before Returning Officer at the appropriate time, however, there seemed to be no appropriate procedure that Election Commission of Pakistan had adopted in order to receive and acknowledge any application filed by contesting candidates in relation to conduct of elections on the election day and in relation to subsequent events of tabulation and consolidation of results---High Court observed that Election Commission of Pakistan would issue directions to all Returning Officers to ensure implementation of requirements of Local Government (Conduct of Elections) Rules, 2013 in letter and spirit and to implement a protocol for the receiving and disposal of applications by Returning Officers and District Returning Officers where they were required to do so---Constitutional petition was dismissed accordingly.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 36(2)---Consolidation of results---Examining of ballot papers---Scope---Contention of petitioner was that Returning Officer did not perform the duties cast upon him under R. 36(2) of Local Government (Conduct of Elections) Rules, 2013---Respondent's plea was that omission in such regard related to 33 discarded votes and if said votes stood proved valid in favour of the petitioner, even then it would not affect the final result---High Court observed that Election Commission of Pakistan would issue directions to all Returning Officers to ensure implementation of requirements of Local Government (Conduct of Elections) Rules, 2013 in letter and spirit and to implement a protocol for the receiving and disposal of applications by Returning Officers and District Returning Officers where they were required to do so---Disputed questions raised in the constitutional petition could not be resolved by High Court, however, petitioner was at liberty to agitate at appropriate forum---Constitutional petition was disposed of, accordingly.

Umair Khan Niazi for Petitioner.

Ch. Ishtiaq Ahmad Khan for Respondent No.5.

Muzammal Akhtar Shabbir, Deputy Attorney General for Pakistan along with Ali Akhtar Khan, Law Officer for Election Commission and Muhammad Sohail Anwar Khan, R.O.

2016 C L C 1309

[Lahore (Multan Bench)]

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD SHABBIR and others----Petitioners

Versus

MUHAMMAD RAFIQUE and others----Respondents

C.R. No.930 of 2013, heard on 13th June, 2014.

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

----O. VI, R.17---Amendment in written statement---Scope---Trial Court decreed the suit against which appeal was filed wherein an application for amendment in the written statement was moved by the defendants which was dismissed by the Appellate Court---Validity---Proposed amendment had already been mentioned in the written statement but in evidence same had not been pressed---After framing of issues defendants could have filed an application for recasting of issues in accordance with their pleadings---Proposed amendment should only be allowed in such manner and on such terms as might be just and necessary for the purpose of determining the real questions in controversy between the parties---Defendants had filed application for amendment to introduce a new plea which did not relate to the controversy raised in the plaint as well as in the written statement---Proposed amendment was not necessary to determine the real controversy between the parties---Application for amendment might be filed at any stage in the interest of justice but while allowing such application the consideration of the court should be that no such amendment should be allowed which was aimed at changing the complexion of the case altogether or would introduce a new case based on new cause of action---No jurisdictional error or material irregularity had been committed by the Appellate Court while passing the impugned order---Revision was dismissed in circumstances.

Ghulam Zohra and 8 others v. Nazar Hussain through Legal Heirs 2007 SCMR 1117 and Ghulam Muhammad v. Mian Muhammad and another 2007 SCMR 231 ref.

Ghulam Zohra and 8 others v. Nazar Hussain through Legal Heirs 2007 SCMR 1117 and Ghulam Muhammad v. Mian Muhammad and another 2007 SCMR 231 distinguished.

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Trial Court decreed the suit against which appeal was filed wherein an application for production of additional evidence was moved by the defendants which was dismissed to the extent of production of cheque---Validity---Defendants had failed to give any justification as to why said document was not produced during the trial of the suit---Said document was not attached even with the written statement to specifically deny the claim made by the plaintiff nor same was mentioned in the said written statement---Appellate Court had discretion to require any document to be produced or any witness to be examined for the purpose of enabling it to pronounce judgment---Appellate Court had rightly observed that acceptance of application to the extent of production of cheque would open the pandora box---Said cheque was not required by the Appellate Court to decide the appeal on merits rather the production of the same would result into introducing a new cause of action which might change the nature of entire litigation---No jurisdictional error or material irregularity had been committed by the Appellate Court while passing the impugned order---Revision was dismissed in circumstances.

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

----O. VI, R.17---Amendment in pleadings---Scope--- Amendment should only be allowed in such manner and on such terms as might be just and necessary for the purpose of determining the real questions in controversy between the parties.

(d) Administration of justice---

----Legal formalities were to safeguard paramount interest of justice---Technicalities and formalities should not be allowed to stand in the way of justice unless they present a hurdle which might lead to unsettlement and uncertainty of law.

(e) Maxim---

----Equity follows the law.

Abdul Salam Alvi for Petitioners.

Kanwar Muhammad Younis for Respondents Nos.1 and 2.

Date of hearing: 13th June, 2014.

2016 C L C 1337

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD AFZAL----Petitioner

Versus

Mst. IDREES BIBI and others----Respondents

Writ Petition No.14544 of 2014, decided on 26th May, 2014.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance allowance---Enhancement of quantum of maintenance for minor---Reasonable level of sustenance for minor---Contentions of the defendant (father) were that Family Court had misread and non-read the evidence on record; that the defendant (father) was a labourer and was working on daily wages while he had also to support his old parents; that plaintiff (respondent) failed to prove the income of the defendant by bringing on record any cogent evidence---Validity---Contention of the defendant that he was a labourer on daily wages was just a bald assertion as he had failed to bring any material or evidence in support of his claim---Family Court had awarded maintenance to the minor at the rate of Rs.1500/- per month, considering the version of the father that he was a labourer and could not afford to maintain his child on a higher level---Family Court had rightly taken into consideration the minimum needs of a five years old girl, but no one could deny the inflation rate and ever rising prices of commodities in the country---Appellate Court left with no option but to use its judicial mind to arrive at a reasonable level of sustenance for the minor, who could not be left to strive on the plea, which had not been proved by the father that he had very meagre resources---Even if the claim of the defendant was considered that he was a labourer, meaning thereby that he was an able-bodied person and he could undertake additional work to meet up with his obligation of providing maintenance to his minor child, at least, to a level that she was able to sustain herself---No illegality or perversity in the judgment of the appellate court was found---Constitutional petition was dismissed in limine.

Rana Zia Abdul Rehman for Petitioner.

2016 C L C 1339

[Lahore]

Before Ijaz ul Ahsan, C.J.

Messrs ALI BROTHERAN through Proprietor and 4 others----Petitioners

Versus

PROVINCE OF PUNJAB through Secretary and 3 others----Respondents

Writ Petitions Nos.26021 and 34202 of 2015, decided on 22nd March, 2016.

(a) Punjab Curriculum and Textbook Board Act (VI of 2015)---

----Ss 9, 2(b) 2(c) & Preamble---National Textbook and Learning Materials Policy 2007, cl.2.2---Interpretation of Punjab Curriculum and Textbook Board Act, 2015---Selection, development and regulation of manuscripts for textbooks---Selection and development of manuscripts by Punjab Curriculum and Textbook Board---Role and functions of Punjab Curriculum and Textbook Board ("Board")---Regulatory capture---Scope---Contention of the petitioner, inter alia, was that the Punjab Curriculum and Textbook Board under Punjab Curriculum and Textbook Board Act, 2015 could not prepare manuscripts for textbooks on its own and the same were required to be invited through open competition as envisaged in the National Textbook and Learning Materials Policy and Plan of Action, 2007, and furthermore, that the regulator and the regulatee could not be the same---Validity---Punjab Curriculum and Textbook Board was admittedly a regulator charged with the responsibility of choosing between various manuscripts that may be submitted to it for approval pursuant to advertisement published by it as visualized in the National Textbook and Learning Materials Policy and Plan of Action, 2007 and the Provincial Government had not specifically denied having followed the said policy until recently and it had also not been denied by the Provincial Government that no policy in replacement of the National Textbook and Learning Materials Policy and Plan of Action, 2007 had been put in place---Perusal of Punjab Curriculum and Textbook Board Act, 2015 revealed that the Board did not fall within definition of a "person" or "agency" and in terms of S.2(d) of the Punjab Curriculum and Textbook Board Act, 2015, "agency" had been defined and in S.2(c) of the same, "Board" had been defined separately which indicated that the "Board" and "agency" were two different entities visualized by the Punjab Curriculum and Textbook Board Act, 2015---Board could not, therefore, act as an "agency" for the purpose of preparation and development of manuscripts for textbooks---Section 9 of Punjab Curriculum and Textbook Board Act, 2015 provided functions and powers of the Board wherein S.9(3) showed that much emphasis had been laid on preparation and execution of "schemes" pertaining to matters enumerated in said section and it may be stated that the Board had the power to prepare and execute schemes for manuscripts of textbooks and schedule or strategize for introduction of textbooks in various classes of an institution and S.9(3)(d) of the Punjab Curriculum and Textbook Board Act, 2015 empowered the Board to approve manuscripts of textbooks and supplementary material produced by a person or agency before the same were prescribed---Repeated use of the word "scheme" in opening line of S.9(3) of the Punjab Curriculum and Textbook Board Act, 2015 indicated an intent on the part of the legislature to limit the power of the Board as regulatory and supervisory body tasked to make detailed arrangements relating to supervision and administration of matters mentioned in S.9(3) of the Punjab Curriculum and Textbook Board Act, 2015---In absence of any express, distinct and independent power to prepare manuscripts, it was difficult to read such power into the language of the statute---Perusal of Punjab Curriculum and Textbook Board Act, 2015 created an impression that the Board was in the position of a regulator and policy maker to provide guidelines, develop, implement, evaluate, and update curricula; arrange for development, production and publication of textbooks and lay down specifications to regulate and control production, printing, publication and sale of textbooks; and not to engage in the process of development of manuscripts which had been left to be undertaken by persons or agencies other than the Board---Rationale behind the same was that having put in the position of regulator, the Board could not at the same time assume role of a regulatee and such course of action would clearly lead to conflict of interest, making Board a judge in its own cause, thereby rendering the entire process as non-transparent and placing other competitors who may have submitted manuscripts for approval at an obvious and unfair disadvantage, which could not be the intent of the law---High Court observed that work of development of manuscripts may be undertaken by any department, organization directorate or wing of the Government which fell within definition of the word "agency" and such work shall not be carried out by the Board itself, which shall exercise all other powers and functions as provided, inter alia, in S.9 of the Punjab Curriculum and Textbook Board Act, 2015 and manuscripts submitted by any person who had any nexus with the agency which had developed manuscripts shall not sit in the meeting of the Board if such person was a member of the Board Constitutional petition was disposed of, accordingly.

(b) Words and phrases---

----"Scheme"---Meaning---Term scheme was used where as the power was given to make detailed arrangements for some matter considered to be in need of general statutory supervision or administration.

Understanding Statutes-Canons of Construction by S.M. Zafar page 757 rel.

Saad Rasool for Petitioners.

Waqar A. Sheikh for Respondents.

Qazi Misbah ul Hassan for Petitioners (in W.P.No.34202 of 2015).

Imran Aziz Khan, Deputy Attorney General for Pakistan.

Muhammad Azeem Malik, Addl. Advocate-General Punjab.

Zubair Khan, Deputy Secretary (Legal). School Education Department.

2016 C L C 1390

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

RIASAT ALI----Petitioner

Versus

MUHAMMAD RAFIQ----Respondent

C.R. No.2866 of 2010, decided on 30th March, 2016.

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

----O. IX, R. 13 & O. XVII, R. 3---Petition for setting aside ex parte decree---Closure of evidence---Scope---Applicant was afforded numerous opportunities to produce evidence and respondent did not raise any objection on the adjournment granted by the Trial Court---When no objection was taken on the preceding date with regard to adjournment of case, O.XVII, R.3, C.P.C. could not be invoked on the next falling date---Law required disposal of case on merits and not on technicalities---Impugned orders passed by the courts below were set aside---Application for setting aside ex-parte decree would be deemed to be pending before the Trial Court who should afford only one fair opportunity to the applicant for production of his entire oral as well as documentary evidence subject to payment of cost of Rs.10,000/- to the respondent---Revision was allowed in circumstances.

Syed Tasleem Ahmad Shah v. Sajawal Khan, and others 1985 SCMR 585 rel.

(b) Administration of justice---

----Law required disposal of case on merits rather than technicalities.

Mohammad Yasin Hatif for Petitioner.

2016 C L C 1402

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD AKBAR----Appellant

Versus

MUHAMMAD YAQOOB and 3 others----Respondents

Regular First Appeal No.18 of 2011, decided on 2nd May, 2016.

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

----S. 13---Talbs, performance of--- Scope--- Expression "jump"---Scope---Informer deposed that when factum of sale was intimated to the pre-emptor he made jumping demand---Such statement of informer with regard to re-action of pre¬emptor by itself was not sufficient to prove the factum of jumping demand---Expression "jump" could not be considered as reflection of intention of pre-emptor to institute suit for possession through pre-emption---Deposition of informer which did not corroborate the evidence of pre-emptor was sufficient to non-suit the plaintiff with reference to performance of Talb-i-Muwathibat---Postman could not establish whether vendee received notice of Talb-i-Ishhad or not---Such fact by itself was sufficient to disprove the factum of service of notice of Talb-i-Ishhad---Pre-emptor was bound to prove service of notice Talb-i-lshhad by producing convincing and corroborative piece of evidence who had failed to produce such evidence---Mere denial by the vendee to receive notice of Talb-i-lshhad was sufficient to controvert and rebut the evidence of pre-emptor---Appeal was dismissed in circumstances.

Daniyal Ijaz Chadhar for Appellant.

Malik Abdul Wahid for Respondents.

2016 C L C 1417

[Lahore (Bahawalpur Bench)]

Before Ch. Muhammad Masood Jahangir, J

SUB-DIVISIONAL OFFICER (OPERATION), FESCO----Appellant

Versus

MUHAMMAD ILLYAS----Respondent

FAO No.418 of 2013, heard on 22nd April, 2014.

(a) Punjab Consumers Protection Act (II of 2005)---

----Ss. 25, 27, 30 & 31--- Electricity Act (IX of 1910), S.39-A---Complaint, filing of---Detection bill---Jurisdiction of Consumer Court---Scope---Illegal order---Limitation---Consumer Court could issue direction if products complained against suffered from any of the defects specified in the claim or all the allegations contained in the same with regard to service provided were true---Complaint by the complainant was not with regard to any defective product or faulty services rather same was with regard to correction of detection bill which would fall within the jurisdiction of civil court---Criminal case had also been got registered against the complainant under S.39-A of Electricity Act, 1910---Matter of issuance of detection bill with regard to charge of theft of energy by the consumer through metering equipments or relating to reading would fall within the jurisdiction of Electric Inspector but not civil court---Consumer Court had to first identify a consumer availing service and if the said service was found defective, only then court could fix damages and award the same---Said court could not issue a direction for reduction in the detection bill issued by WAPDA which was the exclusive domain of civil court---Present complaint was incompetent and Consumer Court had wrongly assumed the jurisdiction in the matter as complainant had already invoked the jurisdiction of civil court---Impugned order had been passed without jurisdiction which was illegal and no limitation would run against such order---Impugned order passed by the Consumer Court was set aside and complaint filed was dismissed---Appeal was accepted in circumstances.

WAPDA and others v. Kamal Foods (Pvt.) Ltd. PLD 2012 SC 371; MEPCO Ltd. v. Muhammad Ashiq PLD 2006 SC 328; Dr. Muhammad Rafiq Chaudhry v. WAPDA and others 1983 CLC 2397; Mst. Zainab v. Chief Engineer, Electricity, WAPDA and 2 others 1983 CLC 3314; Chief Executive, FESCO, Faisalabad and 2 others v. Nayab Hussain PLD 2010 Lah. 95 ref.

WAPDA and others v. Kamal Foods (Pvt.) Ltd. PLD 2012 SC 371; MEPCO Ltd. v. Muhammad Ashiq PLD 2006 SC 328; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262 and Mehreen Zaibun Nisa v. Land Commission PLD 1975 SC 397 rel.

(b) Punjab Consumers Protection Act (II of 2005)---

----Preamble---Object---Punjab Consumers Protection Act, 2005 had been promulgated to provide for protection and promotion of the rights and interests of consumers.

Hafiz Shahzad Ahmad for Appellant.

Malik Abdul Sattar Chughtai for Respondent.

Date of hearing: 22nd April, 2014.

2016 C L C 1438

[Lahore]

Before Shahid Bilal Hassan, J

SAEEDA GHAZALA and 3 others----Appellants

Versus

TAHIRA NAZ and 10 others----Respondents

R.S.A. No.2 of 2007, heard on 27th May, 2015.

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

----S. 13---Talb-i-Ishhad, performance of---Procedure---Pre-emptor was bound to prove the dispatch and delivery of notice of Talb-i-Ishhad to the vendee---Where the postman deposed that vendees were not residing on the given address and he returned the envelops by making reports as such, service of addressees of notice of Talb-i-Ishhad was not effected in accordance with law which was fatal for pre-emptor---Plaintiff was not entitled to any decree for possession through pre-emption---Second appeal was allowed in circumstances.

Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1; Muhammad Hussain and others v. Ghulam Qadir through Legal Heirs PLD 2006 SC 594; Muhammad Shafi v. Muhammad Ayub and another 2006 CLC 556; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Muhammad Fazal v. Kaura through Legal Heirs 1999 SCMR 1870; Ghulam Muhammad v. Sabir Hussain and others 2004 SCMR 999; Jangi v. Jhanda and others PLD 1961 (W.P.) Baghdad-ul-Jadid 34; Qudratullah v. Ghulam Jan and others PLD 1966 (W.P.) Pesh. 85; Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others 2013 SCMR 178; Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721; Muhammad Akram alias Raja v. Muhammad Ishaque 2004 SCMR 1130; Muhammad Ashiq Khan v. Muhammad Sharif and 5 others 2014 YLR 767 and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 ref.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Bashir Ahmed's case 2011 SCMR 762; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; and Dayam Khan and others v. Muslim Khan 2015 SCMR 222 rel.

Umar Abdullah for Appellant.

Jari Ullah Khan for Respondents.

Date of hearing: 27th May, 2015.

2016 C L C 1460

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. RABIA BIBI----Petitioner

Versus

ABDUL QADIR and others----Respondents

Writ Petition No.14684 of 2011, decided on 14th July, 2014.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minor---Welfare of minor---Determination---Second marriage of mother---Effect---Scope---Courts below handed over custody of minor to father---Validity---Courts below took into consideration the second marriage of mother and age of minor---While deciding custody of minor, welfare of minor, and nothing else, was the paramount consideration---Courts below were not justified in disturbing the custody of minor---Father admitted that suit for recovery of maintenance allowance of the minor had been decreed against him---Real mother could not be deprived of her son due to her second marriage---Father filed application for custody of minor subsequent to passing of decree of maintenance allowance against him---Father was least interested in welfare of minor, rather, he filed the application for custody of minor in order to frustrate the decree of maintenance allowance passed against him---Minor was growing up properly and getting proper education in a private school---Minor was living with his mother since birth and had developed love and affection for her---Disturbance in custody at this stage would psychologically tell upon his personality in future---No substitute to real mother---Lap of mother was cradle of God---Remarriage of the mother, ipso facto, would not disentitle her from retaining the custody of minor---Poverty of mother was no ground to disentitle her from the custody of the minor---Islamic law was subservient to the welfare of the minor---Petition was allowed---Application of father for custody of minor was dismissed.

Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Firdaus Iqbal v. Shafaat Ali and others 2000 SCMR 838 rel.

Hifza Aziz for Petitioner.

Zulfiqar Ahmad for Respondent No.1.

2016 C L C 1508

[Lahore]

Before Shahid Karim, J

Mian MUHAMMAD TANVIR IBRAHIM----Petitioner

Versus

PARKS AND HORTICULTURE AUTHORITY and others----Respondent

Writ Petition No.4828 of 2016, decided on 13th April, 2016.

National Policy for Persons with Disabilities, 2002---

----Disabled person---Access to club---Petitioner, being a member of social club and unable to walk, relying on National Policy for Persons with Disabilities, 2002, sought direction to the authorities, for provision of transportation from the gate of Park to the Club---Parks and Horticulture Authority, took the plea that the Club, as provided in the agreement between the Authority and the Club, was obliged to provide a golf cart service for pick-and-drop facility to the disabled persons---Club informed the Court that it had already arranged the golf cart, which was functioning for the people like petitioner---High Court, observed that the Parks and Horticulture Authority would still remain obliged to ensure that the golf cart remained functional and available to the people for whom the same was meant---Constitutional petition was disposed of in circumstances.

Sheraz Zaka for Petitioner.

Zeeshan Ali for Respondent.

2016 C L C 1522

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Malik KHALID RIAZ----Petitioner

Versus

The ADMINISTRATOR, ARBITRATION COUNCIL, HAFIZABAD and another--- Respondents

W.P. No.16219 of 2011, decided on 24th January, 2014.

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

----Ss. 6 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Notice of Talaq---Death of husband before expiry of period of ninety days---Effect---Few days before the death of husband, he allegedly sent a notice of Talaq to his wife---Husband died before the finalization of the Talaq and expiry of period of ninety days---Contention of the petitioner/father of deceased person was that his son divorced thrice to respondent/wife and as such the moment notice was served, Talaq became effective and she was no more widow of deceased, therefore the Chairman Union Council was bound to issue certificate of Talaq---Validity---Deceased husband had died before the expiry of ninety days from the date of notice of Talaq and as such the same vas not finalized---Deceased was the only person who could withdraw the notice of Talaq before expiry of ninety days, therefore in his absence, it could not be presumed that deceased had no intention to revoke the notice of Talaq---Respondent was declared as widow of deceased husband in circumstances---Constitutional petition was dismissed.

Mst. Zarina Begum v. Major Aziz-ul-Haq and 3 others 2006 CLC 1525; Allah Dad v. Mukhtar and another 1992 SCMR 1273; Ahmad Nadeem v. Chairman, Arbitration Council and others 1991 MLD 1198; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583; Sardar and 3 others v. Malik Khan alias Malla and 6 others 2003 YLR 2623 and Abbas Khan and 3 others v. Mst. Sat Bherai and 2 others 1993 CLC 2181 ref.

Mushtaq Ahmad and others v. Mst. Sat Bharai and 5 others 1994 SCMR 1720 rel.

Munir A. Malik and M. Sikandar Hayat for Petitioner.

Ch. Noor Muhammad Jaspal for Respondent No.2.

Ch. Muhammad Iqbal, Addl. A.G., Punjab.

Date of hearing: 18th December, 2012.

2016 C L C 1534

[Lahore]

Before Abid Aziz Sheikh, J

TANVEER HUSSAIN MANJI and 3 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Interior and 3 others----Respondents

Writ Petition No.14102 of 2013 and C.M. No.3 of 2014, decided on 21st July, 2014.

(a) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.20---Constitutional petition---Jurisdiction of High Court---Scope---Jurisdiction of High Court under Art.199 of the Constitution is not contingent upon residence of respondents; it requires that a person/authority/ functionary of State against whom Constitutional petition is sought to be issued should be operating or be amenable to jurisdiction of High Court---Elements embodied in S.20, C.P.C. cannot be introduced in Art.199 of the Constitution.

Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18; The Superintendent of Police Headquarter, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387; Muhammad Idrees v. Govt. of Pakistan through Secretary Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239; Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited 2000 SCMR 1703; Mst. Shahida Masood v. President of Pakistan and another 2005 SCMR 1746; Khalid Habib v. Pakistan Telecommunication Corporation Ltd. and others 2014 PLC (C.S.) 203 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Territorial jurisdiction---Principle---Petitioners were residents of place "L" and letters/memoranda in question were addressed to petitioner also at place "L"---Part of cause of action had arisen at place "L" therefore, High Court at place "L" had concurrent jurisdiction in the circumstances.

LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498 rel.

(c) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----Ss. 2 & 3---National Accountability Ordinance (XVIII of 1999), S.25---Constitution of Pakistan, Arts.4, 9 & 199---Constitutional petition---Exit Control List---Removal of name---Plea bargain, approval of---Names of petitioners were entered into Exit Control List on recommendation of National Accountability Bureau---Petitioners entered into plea bargain with National Accountability Bureau, which was approved by Accountability Court but names of petitioners were not removed from Exit Control List---Validity---Freedom of movement or right to travel was fundamental right of a citizen as enshrined under Arts.4 & 9 of the Constitution---Every citizen of Pakistan had liberty to go abroad and return to Pakistan unless precluded from doing so, in public interest---No prior notice or hearing was given to petitioners before placing their names on Exit Control List---No detail of allegations, particulars or speaking reasons were given in letters / memoranda placing names of petitioners on Exit Control List---Names of petitioners were placed on Exit Control List at the instance of National Accountability Bureau through memorandum in question---National Accountability Bureau itself entered into plea bargain with one of the petitioners and had also received substantial amount and remaining amount could be recovered through sale of immovable property kept as security and collateral by National Accountability Bureau---In view of subsequent development after placing names of petitioners on Exit Control List and after recovery of partial amount of plea bargain from one of the petitioners, there was no justification with authorities to retain names of petitioners on Exit Control List, especially when National Accountability Bureau was fully secured for recovery of balance amount/liability through sale of immovable property---High Court directed the authorities to remove names of petitioners from Exit Control List---Petition was allowed in circumstances.

Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Higher Education Commission through Project Manager v. Sajid Anwar and others 2012 SCMR 186; Sheikh Muhammad Yousaf and another v. District Collector/District Registrar (DOR) Okara and 4 others PLD 2010 Lah. 123; Habib Ullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others PLD 2009 Kar. 243; M/s. Zurash Industries (Pvt.) Ltd. through Director and 4 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 2011 CLD 511; Munir Ahmad Bhatti v. Govt. of Pakistan, Ministry of Interior, through Secretary and others PLD 2010 Lah. 697; Mian Munir Ahmed v. Federation of Pakistan and others 2008 YLR 1508; Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Sheikh Niaz Anjum v. Govt. of Pakistan and others 2012 CLD 1133; Sohail Latif and 2 others v. FOP through Secretary, Ministry of Interior, Islamabad PLD 2008 Lah. 341; Malik Mushtaq Awan v. Govt. of Pakistan and others PLD 1999 Lah. 372; Tanveer Shakoor v. Federation of Pakistan 2014 CLD 803; Wasatullah Jaffery v. Ministry of. Interior through Secretary Federal Govt. of Pakistan and four others PLD 2014 Sindh 28; Sikandar Hayat Khan and 4 others v. Govt. of Pakistan through Federal Secretary, Ministry of Interior, Islamabad and 5 others PLD 2003 Pesh. 102 rel.

B.N. Alias and Co. Ltd. v. State of West Bengal AIR 1959 Cal. 247; Achut Anant Pai v. Governor General in Council AIR 1955 Cal. 331; Jahangir Badar v. Federation and others PLD 2004 Lah. 478 and Muhammad Younas Marwat v. Govt. of Pakistan through Secretary Ministry of Interior and three others 2010 YLR 1573 distinguished.

Rao Athar Akhlaq for Petitioners.

Haroon-ur-Rashid for Respondent No.4.

Mian Muhammad Irfan Akram, Dy.A.G. for Respondents Nos.1 to 3.

Date of hearing: 3rd July, 2014.

2016 C L C 1553

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ABDUL LATIF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KASUR and 4 others----Respondents

Writ Petition No.13400 of 2011, decided on 4th April, 2014.

Inheritance---

----Parentage, determination of---Dispute as to inheritance---DNA Test for determination of parentage of defendant who was adopted son of plaintiff's parents---Scope and validity---DNA Test was the safest way to depict the true picture of relationship---If a person conducting DNA test committed any foul play, such person could be dealt with in accordance with law by courts---DNA test could be helpful in deciding (expeditiously) cases involving disputed inheritance transactions by adoptive parents---Constitutional petition was dismissed.

Aman Ullah v. The State PLD 2009 SC 542 and Khizar Hayat v. Additional District Judge, Kabirwala and 2 others PLD 2010 Lah. 422 distinguished.

Adeel Mumtaz Mian for Petitioner.

Ch. Mohammad Hanif for Respondent No.1.

Date of hearing: 4th April, 2014.

2016 C L C 1604

[Lahore]

Before Atir Mahmood, J

MUHAMMAD ABID AKRAM CHEEMA----Petitioner

Versus

ANEELA CHEEMA and others----Respondents

Writ Petition No.18140 of 2014, decided on 3rd July, 2014.

Family Courts Act (XXXV of 1964)---

----Ss. 7(2) & 5, Sched---Constitution of Pakistan, Art.199---Constitutional petition---Suits for recovery of dower and maintenance allowance---Additional evidence, production of---Scope---Application for permission to produce documents and witnesses was filed by the plaintiff-wife which was accepted by the Family Court---Validity---Family Court might grant permission for production of any witness at any stage if same was necessary to reach at a just and fair conclusion---Present application was moved at a preliminary stage of trial---Occasion to file the present application arose when defendant-husband denied the existence of a valid marriage and asserted that the same was a paper marriage---Documents and witnesses which were sought to be produced in evidence were necessary for just and fair adjudication of the matter---Plaintiff-wife might not be in a position to confront all such documents if permission to produce said documents was declined at present stage and there would be multiplicity of litigation---Defendant-husband had every right to rebut the evidence intended to be produced by the plaintiff-wife and he had also right of cross-examination upon the witnesses of plaintiff-wife---Each party had a right of fair trial and no prejudice had been caused to the rights of defendant-husband---Family Court had exercised jurisdiction rightly and no illegality or irregularity had been committed---Impugned order was based on convincing reasons---Constitutional petition was dismissed in circumstances.

Muhammad Faheem Bashir for Petitioner.

Ijaz Feroze for Respondent.

Date of hearing: 3rd July, 2014.

2016 C L C 1618

[Lahore (Multan Bench)]

Before Atir Mahmood, J

PITRAS GILL----Appellant

Versus

PARVAIZ BHATTI----Respondent

RFA No.198 of 2014, heard on 26th October, 2015.

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

----Art. 163---Decision of case on the basis of special oath---Scope---Whenever an offer was made to decide the controversy on special oath and same was accepted by the other side and statement on oath was made, then party who had offered for settlement of issue on the basis of special oath could not be allowed to resile from its stance after such oath had been administered---Defendant himself made offer to put the plaintiff to special oath which was accepted and plaintiff sworn the special oath as demanded by the defendant---Defendant, thereafter could not be permitted to ask for resolution of the controversy other than the mode chosen by himself---Defendant had never objected to the procedure adopted by the Trial Court---Trial Court had rightly decreed the suit---Defendant could not be allowed to take a new plea that suit should have been decided on the basis of evidence available on record even if plaintiff had sworn special oath---Appeal was dismissed in circumstances.

Mst. Khairan Bibi v. Mst. Hajran Bibi 2012 YLR 2054 and Raja Wali v. Mansha Ahmed PLD 1996 Lah. 354 ref.

Mahmood Ali Butt v. Inspector General Police, Punjab, Lahore and 10 others 1998 PSC 53 rel.

Ch. Muhammad Akram for Appellant.

Shakeel Javed Chaudhry for Respondent.

Date of hearing: 26th October, 2015.

2016 C L C 1621

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

Mst. TAJ BIBI through L.Rs.----Petitioners

Versus

Rana SALAH-UD-DIN----Respondent

R.S.A. No.56 of 2010, decided on 8th October, 2015.

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

----S. 8---Civil Procedure Code (V of 1908), O.VII, R. 3 & O.XXIII, R.1---Suit for possession of immovable property---Requirements---Non-framing of issue---Effect---Fine imposed at the time of withdrawal of first suit was not deposited and second suit was filed---Suit was decreed concurrently---Validity---Plaintiff was required to plead complete specification of suit property---Site plan should have been annexed with the plaint to identify the land in question---Plaintiff was required to prove that suit house had been constructed upon the land owned by him---Plaintiff was owner of disputed land but nothing was on record that suit house had been constructed on the said land---Both the courts below had failed to take into consideration the real question of controversy between the parties---Civil dispute had to be decided by preponderance of evidence---Findings recorded by the courts below were against the evidence available on the file---Non-framing of issue could not be a ground to set aside the judgments and decrees and remand the case unless a party proved that it was prejudiced due to non-framing of said issue---Plaintiff had not deposited the fine against which permission to file another suit on same cause of action was granted---Permission to file another suit was no more in field as plaintiff had not fulfilled the condition of said permission---Second suit on same cause of action was barred under O.XXIII, R.1, C.P.C.---Findings recorded by the courts below were nullity in the eye of law---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed with costs throughout---Second appeal was allowed in circumstances.

Abdul Karim v. Haji Noor Badshah 2012 SCMR 212 rel.

(b) Administration of justice---

----Civil dispute should be decided by preponderance of evidence.

Muhammad Ramzan Khalid Joiya for Appellants.

Rao Jamshaid Ali Khan for Respondent.

Date of hearing: 8th October, 2015.

2016 C L C 1632

[Lahore (Multan Bench)]

Before Atir Mahmood and Shahid Mubeen, JJ

MUHAMMAD RAFIQUE----Appellant

Versus

DISTRICT GOVERNMENT and others----Respondents

I.C.A. No.153 of 2009, decided on 3rd December, 2015.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.8 & S.175---Intra-court appeal---Dispute with regard to ownership rights of the parties---Appointment of local commission by the High Court to collect evidence---Determination of ownership rights by the local commission---Scope---Both the parties agreed that they would he satisfied if matter was resolved after receiving report from local commission---Single Judge of High Court appointed local commission and disposed of the constitutional petition after receiving its report---Validity---Disputed question of fact could not be decided by the High Court under its constitutional jurisdiction without recording of evidence which was not its domain---Local commission had no jurisdiction to determine ownership rights of the parties---Only civil court had jurisdiction to determine such controversy---No opportunity was given to the appellant to file objection against the report of local commission---Single Judge was bound to fix a date whether parties wanted to file any objection to the report of local commission or not---High Court could not collect evidence to prove ownership rights of the parties through report of local commission---Impugned order passed by Single Judge was set aside---Respondent might file a suit with regard to her ownership rights if so advised---Intra-court appeal was allowed in circumstances.

Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others 2001 MLD 1518 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact could not be decided by High Court without recording of evidence which was not its domain.

Muhammad Irfan Wyne for Appellant.

S.M. Tahir Jamal for Respondent No.5.

Sajjad Hussain Tangra for Respondents Nos.6 to 10.

2016 C L C 1642

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

PAKISTAN MINERAL DEVELOPMENT CORPORATION through Project Manager----Petitioner

Versus

DIRECTOR GENERAL MINES AND MINERAL PUNJAB LICENSING AUTHORITY, LAHORE and others----Respondents

Writ Petitions Nos.28579 of 2015 and 33103, decided on 30th December, 2015.

Punjab Mining Concession Rules, 2002---

----Rr.48 (1) & 76---Lease/license of mining rights---Competitive bids---Authorities allowed respondent company to excavate rock salt from the area in question and renewed its exploration license---Plea raised by petitioner was that area in question was already a proved area which could not be allotted on exploration license and the same had to be auctioned---Validity---Provincial Government gave another opportunity to respondent company to complete exploration work and structure investment for installation of chemical plant and consequently, the exploration license of respondent company was restored for a further period of three years without holding public auction and without asking it to deposit assessed amount, which was referred back to Licensing Authority for decision afresh---Without affording an opportunity to petitioner, it was held that petitioner was found involved in unauthorized excavation of rock salt from licensed area of respondent company---Petitioner was condemned unheard, thus was an aggrieved person within the contemplation of Art.199 of the Constitution---High Court set aside the order passed by authorities, as the same was illegal and without lawful authority---High Court remanded the matter to authorities to re-decide the matter afresh after hearing petitioner and all concerned---Petition was allowed accordingly.

Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Syeda Shahida Tasleem v. The Province of Punjab and others PLD 1995 Lah. 110; Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab Lahore and 3 others 1995 MLD 123; Khalid Hassan v. Secretary to the Government of Balochistan and others 2001 YLR 2724; Malik Habibullah v. Province of the Punjab through Secretary Mines and Mineral Department, Lahore and 7 others 2006 CLC 1723; Haji Faiz Muhammad v. Mines Labour Welfare Commissioner and 5 others 2007 MLD 423; Ilyas Ali v. Secretary Mines and Minerals Punjab, Lahore and 4 others 2011 YLR 186; Malik Sarfraz Khan v. Secretary Government of the Punjab Mines and Mineral Department and 2 others 2011 YLR 2268; Messrs Ghani Corporation through Chief Executive v. Government of N.-W.F.P. through Secretary Industries Commerce, Mineral Development and 5 others PLD 2011 Pesh. 1; Major (Rtd.) Baseer Ahmad Khattak v. Government of Khyber Pakhtunkhwa through Secretary Mineral Development Department, Peshawar and 2 others 2013 CLC 1108; Fateh-ul-Mulk Ali Nasir and 4 others v. Government of Khyber Pakhtunkhwa through Secretary Mines and Minerals and 6 others 2015 CLC 1762; Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others PLD 1959 SC (Pak.) 272; Gouranga Mohan Sikdar v. The Controller, Import and Export and 2 others PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others 1984 SCMR 1014; Al-Hadayat Textile through Proprietor v. Soneri Bank Limited 2003 CLD 105 and Waqar Alam Saeed v. District Coordination Officer/Chairman and 3 others 2005 YLR 1742 ref.

Fakhar-ul-Zaman Akhtar Tarar, Ghulam Farid Sanotra for Petitioner (in W.P. No.33103 of 2015).

Muhammad Ejaz, Asstt. A.G. along with M. Saeed Anjum Khokhar for Respondents.

Date of hearing: 23rd November, 2015.

2016 C L C 1655

[Lahore (Bahawalpur Bench)]

Before Atir Mahmood and Shahid Bilal Hassan, JJ

SHABBIR AHMAD ZAFFAR----Applicant

Versus

MEMBER BOARD OF REVENUE (CONSOLIDATION) and others----Respondents

Review Application No.17 of 2011/BWP, decided on 11th March, 2015.

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

----S. 114---Arbitration Act (X of 1940), Ss. 21, 23 & 26-A---Review---Scope---Vires of arbitration award---Applicant filed review of order passed in writ petition decided earlier, in order to challenge award made by Arbitrator---Applicant argued that the award had been issued in violation of Ss.21, 23 & 26-A, Arbitration Act, 1940 as Arbitrator/Member Board of Revenue had gone beyond powers conferred upon him---Plea raised by respondents was that scope of review was limited and points not raised during hearing of writ petition (under review) could not be raised through review application being not competent---Validity---Provisions of S.114, C.P.C. did not apply to vires of award issued by Arbitrator or violation of certain provisions of Arbitration Act, 1940---No new horizon could be opened, or grounds which had not been urged at time of hearing of case could be allowed to be introduced or Agitated in review application---No apparent error or any new point or evidence was noticed which was not considered or taken into account at time of passing the judgment---Review application did not satisfy criterion and principles of review---Review could not be granted for re-appraisement of certain facts or re-examination of same arguments or re-arguing/rehearing case on merits and additional grounds---Impugned judgment being based on sound footing could not be interfered with---High Court dismissed application being based on misconception.

Muhammad Sadiq and others v. Ali Asghar Khan and others 1995 CLC 1529; Waheed Ahmad and others v. Additional Commissioner (Revenue)/Settlement Commissioner, Rawalpindi Division, Rawalpindi and others 1990 CLC 220; Jahanzeb Aziz Dar v. Messrs Maersk Line and others PLD 2000 Kar. 258; Haji Bostan v. Sahib Shah Ali and others PLD 1982 SC 102; Sujanmal and others v. Kazi Abdul Hai and others 1993 SCMR 86; Qaimey alias Bhola v. The Settlement and Rehabilitation Commissioner, Bahawalpur Division, Bahawalpur and 3 others PLD 1979 Lah. 535; Mst. Ghulam Fatima and others Sufi Ahmad Khan and others 1981 CLC 76; M. Moosa v. Muhammad and others 1975 SCMR 115; Khairati and 4 others v. Aleem-ud-Din and another PLD 1973 SC 295; Haji Muhammad Boota and others v. Member, BOR and others 2010 SCMR 1049; Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others 2008 SCMR 1702; PLD 2004 SC 752; 999 MLD 511 and Shams Din and others v. Jalal Din and others 1982 SCMR 445 rel.

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

----S. 114----Review---Scope and principles---For grant of review, there must be some new point based upon discovery of new evidence which could not with diligence had been found out on previous occasion---Review petition was not competent where neither any new and important matter or evidence had been discovered nor was any mistake or error apparent on face of record---Error may be error of act or of law but it must be self-evident and floating on surface and not requiring any elaborate discussion---Orders based on erroneous assumption of material fact, or without adverting to provisions of ,law, or departure from undisputed construction of law and Constitution, may amount to error apparent on face of record---Error must not only be apparent but must also have a material bearing on fate of case and be not of inconsequential import---If judgment or finding, although suffering from erroneous assumption of facts, was sustainable on other grounds available on record, review was not justifiable and competent notwithstanding error being apparent on face of record.

Haji Muhammad Boota and others v. Member, BOR and others 2010 SCMR 1049 ref.

Irshad Ullah Chattha for Applicant.

Aejaz Ahmad Ansari for Respondents.

Malik Muhammad Mumtaz Akhtar, Addl. A.G. for Respondents.

Muhammad Ishaque Naib Tehsildar and Mubarak Ali Patwari.

2016 C L C 1660

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ANWAR and 27 others----Petitioners

Versus

PROVINCE OF PUNJAB through District Officer (Revenue), Pakpattan and 3 others---Respondents

Civil Revision No.436 of 2010, decided on 11th February, 2015.

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

---O. VII, R.11 & S.151---"Rejection of plaint" and "dismissal of suit"---Distinction---Trial Court without recording of evidence, on application filed by defendant, dismissed suit filed by plaintiff, on the ground that it was not Maintainable-- Validity--- Difference existed between dismissal of suit and rejection of plaint---In O. VII, R.11, C.P.C. words "the rejection of plaint" meant that if ingredients in O. VII, R.11, C.P.C. were available in plaint, the Court had jurisdiction and powers to reject the plaint---Dismissal of suit connoted that it was a final determination of controversy between parties meaning thereby the Trial Court could dismiss the suit only after holding inquiry and recording of evidence---Rejection of plaint provided or opened door for plaintiff for filing fresh suit but in case of dismissal of suit no fresh suit could be filed and only statutory remedy was available against dismissal order---Defendants filed application under S.151 C.P.C. by placing on record all facts finally settled between parties and plaintiffs admitted all such facts, hence, no question for further determination of any issue had arisen and Trial Court was within its rights to reject the plaint under O. VII, R.11, .C.P.C.---Dismissal of suit for invoking doctrine of res judicata was not correct interpretation of law by two Courts below-11th Courts below should have treated application under S.151, C. P. C. an application under O. VII, R.11, C.P.C. and rejected the plaint---High Court modified orders passed by two Courts below which would be deemed to be passed under 0. VII, R.11, C.P.C. and plaint was deemed to be rejected---Revision was allowed in, circumstances.

Punjab Board of Revenue, Employes Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284; Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others 2,008 SCMR 1037; Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others PLD 2008 SC 650; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Arshad Ali and 6 others v. Muhammad Tufail through L.Rs. and others 2013 CLC 632; Ghulam .Rasool son of Kalu v. Ghulam Rasool and others 2007 SCMR 1924; Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue and others 2000 SCMR 945 and Hussain Shah v. Bano Bibi and 9 others 2007 CLC 680 and Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 ref.

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

----O.VII, R.11---Rejection of plaint---Principles---To decide fate of plaint under O. VII, R.11, C.P.C., averments in plaint were to be read without looking at the defense and it was to be seen whether on the basis of averments made in plaint, O. VII, R.11, C.P.C. was attracted or not and from the averments made, whether jurisdiction of Court was made out or not and whether suit was barred by any law or plaint did not disclose any cause of action---Rejection of plaint was a serious matter as it non-suits plaintiff and eliminate cause of action---Such action could not be ordered without satisfying requirements of O. VII, R.11, C.P.C.

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

---O. XII, R.6---Decree on admission---Principle---Admissions must be clear and unambiguous--- When admission was not clear and unequivocal and pleadings of parties raised serious preliminary pleas, which were likely to non-suit a party, Court in its discretion could refuse to pass a decree.

Sh. Naveed Shahryar and Bashir Ahmad Mirza for Petitioner.

Ch. Aish Muhammad Khan Sara for Respondent No.4.

Dr. Muhammad Irtiza Awan for Respondent No.3.

Malik Abdul Aziz Awan, Asstt. A.G., Punjab for Respondent.

Date of hearing: 13th January, 2015.

2016 C L C 1672

[Lahore]

Before lbad ur Rehman Lodhi, J

SHAHIDA SHAHEEN and 3 others----Petitioners

Versus

Mst. ASIF SULTANA through Special Attorney----Respondent

Civil Revision No.1461 of 2009, decided on 19th February, 2015.

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

----S. 5---Condonation of delay---Principles---Courts should not be reluctant in condoning delay depending upon merits of case under consideration and can exercise suo motu powers to enlarge time and condone delay.

Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 and Board of Governors, Area Study Centre for Africa America, Quaid-e-Azam, University, Islamabad and another v. Ms. Farah Zahra PLD 2002 SC 153 rel.

(b) Partition Act (IV of 1893)---

---S. 4---Suit for partition/administration-Estoppel, doctrine of--­Applicability---Examination of witness---Principle---Plaintiff, daughter 'of deceased from his earlier marriage claimed her share in suit property---Plaintiff placed her birth certificate and gift deed executed by predecessor of parties in her favour---Defendant had assailed birth certificate of plaintiff before relevant forum but later withdrew the same---Defendant was estopped to raise that plea again challenge to which had been withdrawn by him-Gift deed by predecessor of parties in favour of plaintiff had never been independently challenged even the witness producing the document was not cross-examined---Effect--- When a fact deposed during cross-examination had not been properly checked, it was deemed to be accepted---Mother of defendant was alive and was not produced at the time of recording evidence---Best evidence had been withheld by defendant---Suit of plaintiff stood decreed.

(c) Islamic Law---

----Parentage---Legitimacy---Principles---Islam leans in favor of legitimization and in case of doubt child follows status of father when affirmation of parentage is acknowledged by father.

(d) Constitution of Pakistan---

----Art. 2-A---Objectives Resolution---Mandate---Article 2-A of the Constitution of Pakistan provides' that Objectives Resolution will be a substantive part of Constitution---Social justice as enunciated by Islam is to be fully observed and Muslims are expected to be able to order their lives in individual and collective spheres with teachings and requirements of Islam as settled in Holy Quran and Sunnah.

Ahmad Waheed Khan for Petitioners.

Mohammad Anzak Raja for Respondent.

Date of hearing: 4th February, 2015.

2016 C L C 1708

[Lahore]

Before Ayesha A. Malik and Faisal Zaman Khan, JJ

MUHAMMAD MAMOON TARAR----Appellant

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

I.C.As. Nos.1692 and 1689 of 2015, heard on 9th December, 2015.

(a) Punjab Local Government Act (XVIII of 2013)---

----Ss. 38 & 44---Punjab Local Government (Conduct of Elections) Rules, 2013, Rr.36, 46 & 62---Election for local government---Recounting of votes after consolidation of result---Scope---Single Judge of High Court had set aside the consolidation of result directing the Returning Officer to recount the valid ballot papers and thereafter consolidate the result in accordance with law---Validity---Decision on application for recount of votes would be subject to consolidation of result---Once result was consolidated the Returning Officer should have waited for declaration of result in the official gazette---Any procedural impropriety could be challenged before the Election Tribunal---Impugned order of Single Judge of High Court was set aside by Division Bench in intra-court appeal.

Multiline Associate v. Ardeshir Cowasjee and others 1995 SCMR 362; Vice Chancellor/Chairman Admission Board University of Health Science, Lahore v. Breeha Zainab and another 2011 MLD 1652; Muhammad Riaz v. Province of Punjab and others 2014 CLC 817; Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 78(b)---Constitution of Pakistan, Arts.140-A & 218(3)---Review of order by the Election Commission---Scope---Power to review an order under R.78 (b) of Punjab Local Government (Conduct of Elections) Rules, 2013 was executive function of Election Commission to reorganize and conduct local government election so as to ensure that they were being carried out honestly, justly, fairly and in accordance with law.

Batha Ram v. Lala Mehar Bheel and another 1995 SCMR 684 and Dr. Raja Aamer Zaman v. Omar Ayub Khan and another 2015 SCMR 1303 rel.

Muhammad Ahsan Bhoon for Appellant.

Azam Nazir Tarar and Khalid Ishaq for Respondents.

Nasir Javed Ghumman for ECP with Allah Ditta Warraich RO UC 8 Hafizabad.

Date of hearing: 9th December, 2015.

2016 C L C 1719

[Lahore]

Before Shezada Mazhar, J

Mst. NIGHAT RIZWAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and 10 others----Respondents

W.Ps.Nos.1474 and 2036 of 2008 and 1019 of 2012, decided on 4th August, 2014.

Civil Procedure Code (V of 1908)---

----S. 91---Constitution of Pakistan, Art.199---Constitutional petition---Public nuisance---Commercial activity in residential area in Cantonment---Factual controversy---Petitioners were aggrieved of commercial activities in shape of beauty parlours/private schools by respondents in residential buildings situated in residential areas---Validity---No material was available on record to establish nuisance and only reliance was made to certain judgments of superior Courts to establish nuisance on wrongful use of residential properties---Commercial activity was going on at residential properties and in order to claim nuisance one had to establish the same through tangible evidence---"Nuisance" was a relative term and it could not be ascertained in Constitutional jurisdiction of High Court, as it required recording of evidence---Petitioners could seek their remedy before competent Court of law, if so desired, as provided under S.91, C.P.C. or before Cantonment Board---No Objection Certificates were issued by Cantonment Board for operation/opening of certain educational institutions---In presence of "No Objection Certificates" and on account of pending litigation proceedings before appropriate forum, functioning of schools/ educational institutions/ commercial organizations could not be considered to be unlawful or illegal---High Court directed Cantonment Board to optimize its policy and to evolve workable strategy in order to shorten miseries and multiplicity of litigation in the larger interest and welfare of public at large---Commercial/educational institutions had been working at their respective premises since long due to obvious inaction on the part of Cantonment Board in addition to the mandate contained in letter issued by authorities---High Court remanded the matter to Cantonment Board to conclude pending proceedings pursuant to show cause notices issued to alleged violators---Petition was disposed of accordingly.

Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631; Lahore Grammar School (Pvt.) Ltd. and others v. Mst. Hameeda Begum and others PLD 1996 Lah. 442; Muhammad Munir and 20 others v. City District Government, Karachi through District Coordination Officer and 6 others 2007 CLC 906; Syed Tahir Hussain Mahmoodi and 7 others v. Tayyab and others 2009 CLC 1254; Ali Muhammad Mahrio and others v. CDGK and others 2009 YLR 1758; Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others 2011 CLC 1866; Mrs. Nasreen Tariq v. Abdul Basit and 2 others 2013 MLD 1388; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Amjad Ikram v. Lahore Cantonment Cooperative Housing Society Ltd through Secretary and 2 others PLD 2007 Lah. 485; Muhammad Siddique and another v. Federation of Pakistan through M/o Works and Housing and others 2013 SCMR 1665 and Mrs. Yawar Azhar Waheed through L.Rs. v. Khalid Hussain and 5 others 2008 CLC 187 distinguished.

Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237; Shafaat Ali v. Faisalabad Development Authority through its Director General and 3 others NLR 1999 Civil 668 and Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 ref.

Rizwan Niaz for Petitioner.

Syed Qalab-i-Hassan Shah and Mrs. Sarkar Abbas for Petitioner (in W.P.No.2036/2008)

Ch. Muhammad Yaqub for Respondents

Hafiz Hifiz ur Rehman Syed for Respondents Nos.6 and 7.

Babar Ali for Chaklala Cantonment Board.

Sh. Zamir Hussain for Respondent No.5 (in W.P.No.2036/2008)

Muhammad Ilyas Sheikh for Respondents.

Waqar ul Haq Sheikh for Respondents Nos.3 and 4.

Mrs. Kinz-ul-Sadaat standing counsel.

Date of hearing: 4th April, 2014.

2016 C L C 1744

[Lahore (Multan Bench)]

Before Ali Akbar Qureshi, J

FAIZ MUHAMMAD through L.Rs. ----Petitioners

Versus

MUHAMMAD BOOTA through L.Rs. and others----Respondents

C.R. No.579-D of 1996, decided on 4th February, 2015.

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

----Ars. 17, 72, 78, 79 & 117---Specific Relief Act (I of 1877), S.42---Suit for declaration---Exchange deed, proof as to execution/authenticity---Plaintiffs filed suit challenging the validity of exchange deed regarding agricultural land on ground that (defendant) while being their tenant in said agricultural land had prepared the exchange deed by playing fraud and misrepresentation and the deed was illegal and unlawful---Plea raised by defendants was that they had transferred a piece of land in name of plaintiffs as consideration of said exchange deed and the same was valid---Trial court decreed the suit and appellate court affirmed the same on ground that plaintiffs had succeeded in proving their claim---Validity---Burden to prove genuineness and validity of the exchange deed was on defendant---Defendants could not produce any marginal witnesses to the deed and failed to prove both execution and registration thereof---Contradiction in statements of oral witnesses were found---Proceedings for comparison between thumb impressions of parties on the deed were conducted and thumb impressions were found different---Defendants had failed to adduce any solid, cogent or reliable evidence to substantiate their claim---Mere registration of document was not sufficient to prove its execution and validity---Courts below had rightly reached the concurrent findings both on facts and on law and there was no reason to interfere with the same---High Court dismissed the petition.

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

----S. 115----Scope---Concurrent findings, interference with---High Court normally does not interfere in concurrent findings unless the same is the result of exercise of jurisdiction not vested with the courts below.

Muhammad Tahir v. The State PLD 1984 Pesh. 56; Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; and Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 ref.

Malik Waqar Haider Awan for Petitioners.

Ch. Ayyaz Muhammad Khan for Respondents.

Date of hearing: 25th November, 2014.

2016 C L C 1751

[Lahore]

Before Mirza Viqas Rauf, J

MUHAMMAD AKRAM JAVAID and 2 others----Petitioners

Versus

BASHIR AHMAD SHAUK and another----Respondents

Civil Revision No.2011 of 2007, heard on 7th May, 2015.

(a) Co-operative Societies Act (VII of 1925)---

----Ss. 23, 70 & 70-A----Specific Relief Act (I of 1877), Ss. 42 & 54---Suit against Society or member of Society---Maintainability and pre-conditions---Bar of jurisdiction of civil court---Notice to Registrar---Requirement---Plaintiffs filed suit for declaration and permanent injunction against defendants assailing legality and validity of resolution and proceedings of meeting of defendant Society regarding amendment of its bye-laws---Trial court dismissed the suit, whereas appellate court set aside judgment and decree of trial court---Defendants contended that civil court had no jurisdiction to entertain the suit as proceedings and resolution of Society was its internal affair---Validity---Grievance of plaintiff was with regard to business of Society, and impugned proceedings of Society had been conducted under Co-operative Societies Act, 1925---Section 70-A of the Act clearly placed embargo upon exercise of jurisdiction by any court or authority except mentioned therein---Defendants had specifically pleaded bar of jurisdiction of trial court, and issue to that effect had also been framed by court---Trial court had rightly found that civil court had no jurisdiction to entertain dispute regarding affairs of Society conducted under the Co-operative Societies Act, 1925---Section 70-A of the Act, also laid down certain pre-conditions for filing of suit against Society or any of its members---No notice to Registrar of Co-operative Societies under S.70 of the Act was served before filing present suit---Provisions of S.70 of the Act, 1925 were mandatory and failure to comply with requirements of the same had rendered the suit incompetent---Reasoning given by appellate court to avoid implications of S.70-A of the Act were not tenable under law---Appellate court had clearly departed from well-settled principles of law, while setting aside well-reasoned judgment of trial court---Appellate court had committed material irregularity by allowing appeal---Impugned judgment and decree of appellate court was set aside, and suit was dismissed---Revision petition was accepted in circumstances.

(b) Co-operative Societies Act (VII of 1925)---

----S. 70---Scope---Notice is necessary in suits---Provisions of S.70 of the Act, are mandatory and failure to comply with requirements of the same will render suit incompetent.

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

----S. 115---Revision---Scope---Conflict between judgment of trial court and that of appellate court---Preference and regard to be given to later, but such is not rule of universal application---Court has to examine legality of judgments of courts below in revision.

(d) Administration of justice---

----When a thing is required to be done in a specific manner by some law that can only be done in the manner prescribed but in no other way.

Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Messrs Sunshine Biscuits Ltd. v. Muhammad Hassan Lodhi and another PLD 1982 Lah. 189; Ch. Abdul Hameed and another v. Bashir Ahmad Shauq and 3 others 2006 CLC 741 and Ghulam Muhammad Daudpota v. Tausif Ahmad 1987 MLD 1267 ref.

Muhammad Issa Abbasi through Legal Representatives and others v. Abdul Qadir through Legal Heirs and others PLD 2013 Sindh 60; Registrar, Cooperative Societies N.-W.F.P Peshawar and 3 others v. Cooperative Society Muhammad Amin Kallay through Finance Secretary PLD 2008 Pesh. 35; Syed Sultan Ali through legally constituted Attorney v. Sahibzada Frogh Najam Najmi and 2 others 2009 CLC 477; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Muhammad Saleem Chotia, Advocate v. Zafar Iqbal Owasi, Advocate Bahawalnagar and 4 others PLD 1999 Lah. 446 and Muhammad Sharif v. Station House Officer, Police Station, City, Hafizabad and another PLD 1997 Lah. 692 rel.

Ch. Zafar Ullah for Petitioners.

S.M. Sami uz Zaman Durrani for Respondents.

Date of hearing: 7th May, 2015.

2016 C L C 1796

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD YOUSAF and another----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 5 others----Respondents

Writ Petition No.21702 of 2009, heard on 30th January, 2015.

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

----O. XVII, R. 3---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art.199--- Constitutional petition--- Scope--- Suit for possession through specific performance---Striking off right of cross-examination of defendant's witnesses---Scope---Plaintiff filed suit for possession through specific performance wherein right of cross-examination of plaintiff was struck off by Trial Court---Plaintiff sought numerous adjournments for cross-examination but he failed to cross-examine the witnesses of defendant despite being given ample opportunities to cross-examine witnesses---When defendant had succeeded in recording statements of witnesses, plaintiff slipped out of court room without cross examining witnesses---Trial court closed right of cross-examination by plaintiff and revisional court also dismissed petition assailing said order---Validity---No illegality, perversity or jurisdictional defect having been found in the order passed by courts below, High Court dismissed constitutional petition.

(b) Administration of justice---

----Prime duty of courts is to ensure that case is decided on merit as early as possible and it cannot be left at the choice of parties to linger on matter for illegal gain in aid of injunctive order usually issued by court during pendency of suit.

Ch. Masood Ahmad Zafar for Petitioners.

Nemo for Respondents.

Date of hearing: 30th January, 2015.

2016 C L C 1832

[Lahore]

Before Ali Akbar Qureshi, J

AYESHA MOEEN----Petitioner

Versus

APPELLATE RENT TRIBUNAL/ADDITIONAL DISTRICT JUDGE, LAHORE and 4 others----Respondents

W.P. No.6324 of 2016, heard on 20th June, 2016.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 10---Specific Relief Act (I of 1877), S.12---Agreement to sell after execution of tenancy agreement---Effect---Suit for specific performance on the basis of agreement to sell---Dismissal of ejectment petition---Grounds---Agreement to sell or any other agreement entered into between the landlord and the tenant, after execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy was revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of S.5 of the Punjab Rented Premises Act, 2009---In the present case, the agreement to sell was executed on 05.06.2012, whereas the lease agreement was dated 28.02.2012---Agreement to sell would have no effect upon the ejectment petition and the tenancy was to be regulated by the terms of lease agreement---Pendency of a suit for specific performance on the basis of agreement to sell of the rented premises executed during pendency of tenancy was not a sufficient ground to dismiss the ejectment petition---Leave to defend filed by the tenant was also dismissed which disclosed that tenant failed to prove its case before the Trial Court---Ejectment order passed by the Trial Court was upheld---Constitutional petition was allowed accordingly.

Haji Muhammad Saeed v. Additional District Judge 2012 MLD 108 rel.

(b) Punjab Rented Premises Act (VII of 2009) ---

----S. 15---Specific Relief Act (I of 1877), S.12---Eviction of tenant---Grounds---Pendency of suit for specific performance---Pendency of a suit for specific performance on the basis of agreement to sell of the rented premises executed during pendency of tenancy was not a sufficient ground to dismiss the ejectment petition.

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

----O. XLI, R. 41---Remand of case---Principles---Cases not to be remanded in routine but in extraordinary circumstances and if the material was available and sufficient to decide the appeal on merits, the appeal etc. should finally be decided on merits, instead of remanding the matter on technicalities.

Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119 rel.

Ch. Abdul Majeed Gondal for Petitioner.

Hafeez-ur-Rehman Mirza for Respondents Nos.3 to 5.

Date of hearing: 20th June, 2016.

2016 C L C 1884

[Lahore]

Before Syed Mansoor Ali Shah and Shujaat Ali Khan, JJ

DIRECTOR OF INTELLIGENCE AND INVESTIGATION---Appellant

Versus

ASLAM HASHIM BUTT---Respondent

I.C.A. No. 119 of 2014, decided on 22nd April, 2016.

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

----Art. 12---Pakistan Legal Practitioners and Bar Councils Rules, 1976, Chap. XII, Part-B, R.134---Sales Tax Act (VII of 1990), S.37---Power to summon persons to give evidence and produce documents in inquiries under Sales Tax Act, 1990---Scope and validity---Confidential communication with legal advisors---Principles---Privileged communication---Scope---Whether an officer of the Sales Tax, Inland Revenue could summon petitioner, an advocate, while dealing with investigation of a criminal case against his client/the registered person under Sales Tax Act, 1990 and ask him to disclose identity of the client---Single Bench of the High Court had already set aside the summons issued to the petitioner under S. 37 of Sales Tax Act, 1990---Department contended that said registered person had caused colossal loss to the National Exchequer, therefore, the petitioner, being a responsible citizen, was bound to disclose the identity of the person/client while representing him to enable the Investigation Officer to conduct the investigation of the criminal case in a transparent and fair manner---Validity---Criminal case had been registered against the registered person relating to the fraudulent tax adjustments prior to the engagement of the petitioner as a counsel of the registered person, and nothing was available on the record to establish the involvement or connivance of the petitioner in the alleged default/fraud by the registered person---Investigation (into the tax liabilities/evasions) of the registered person had no nexus with the professional duties of the petitioner---Department, therefore, could not require the petitioner to share information regarding identity of his client, merely due to the fact that the petitioner had represented him in the proceedings pending before the Commissioner, Inland Revenue---Principle, as laid down in Art. 12 of Qanun-e-Shahadat, 1984 which provided a shield to a counsel against disclosure of confidential communication taking place inter se the counsel and his client during the course of the agency, enjoyed universal acknowledgement---Under Chapter XII of Pakistan Legal Practitioners and Bar Councils Rules, 1976, an advocate was bound to maintain confidentiality about the facts which came into his knowledge as a result of an engagement---Rule 134 of Part B, Chap.XII of Pakistan Legal Practitioners and Bar Councils Rules, 1976, provided that a member of a Bar was under a bounden duty to maintain high standards of his profession, in addition to his own dignity---Investigation Officer could use all means available to him under Sales Tax Act, 1990, but, in no way, could he ask the petitioner (counsel) to disclose identity of his client---High Court, maintaining impugned order of Single Judge of the Court, dismissed the intra-court appeal.

Section 37 of Sales Tax Act, 1990 provided that an officer of Sales Tax, Inland Revenue, conducting an investigation or inquiry into a matter, was empowered to summon any person to give evidence or to produce documents or to perform any other act relating to the inquiry. Petitioner/Counsel, however, having not been equipped with any material relating to the criminal case under investigation before the Investigation Officer, could neither be summoned to tender evidence, nor could he be required to produce any document.

Department had issued the show cause notice to the registered person, who was being represented by the petitioner/counsel before the Commissioner, Inland Revenue. Petitioner was, therefore, under legal and ethical duty not to disclose the identity of his client before anybody, including the Investigation Officer, which might prejudice his case before any authority. Department, being so much curious to unearth the identity of the registered person, could have ordered for the personal appearance of that person, who had filed reply to the show cause notice, and in the event of his default, the penal action could have been taken against said person; but the department, by no stretch of imagination, could compel the petitioner to expose the personal bio-data of the person/his client. Advocate enjoyed immunity from appearance before the Investigation Officer, unless he was personally involved in the commission of an offence cognizable under Sales Tax Act, 1990. Impugned order of Single Judge of the High Court was, therefore, upheld. Intra court appeal was dismissed in circumstances.

Swindler & Berlin ET AL. v. United State (524 U.S. 399 (1998); Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28; Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC 51; Municipal Corporation of Greater Bombay and another v. Vijay Metal Works, Bombay AIR 1982 Bom. 6 ref.

Canon 4 of the Model Code of Professional Responsibility (American Bar Association) rel.

(b) Counsel and client---

----Relationship of counsel and client---Nature and scope---Counsel-client relationship, being fiduciary in nature, could not be allowed to be betrayed at any cost---Entire legal system would collapse if the members of the Bar were compelled to disclose about any fact, which formed part of the privileged communication---Counsel-client privilege enjoyed a pivotal role in the legal system with the result that no authority was permitted to enquire from an advocate about any matter which he had come across during the course of his engagement with his client---Counsel, opting to share anything with somebody about which he came across during the period of his engagement by a particular party, would not only lower down the dignity of the profession but would also be guilty of misconduct---Nobody, while sharing information/material in respect of a particular matter, would depend upon his counsel, if such practice was permitted to be followed---Court could not allow a public functionary to force a counsel to disclose the antecedents of his client, which fell under the privileged communication.

Prudential PLC and another v. Special Commissioner of Income Tax and another 2013 SCMR 403 (U.K.); Upjohn Co. v. United State 449 U.S. 383 (1981) and Regina v. Debry Magistrates Court [1995] UKHL 18 rel.

Salman Faisal and Ms. Farah Malik for Appellant.

Anwaar Hussain, Assistant Advocate General assisted by Rutaaba Gull for Respondent.

2016 C L C 1900

[Lahore]

Before Ibad ur Rehman Lodhi, J

PAKISTAN CRICKET BOARD (PCB)----Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), LAHORE and 2 others----Respondents

Writ Petition No.10380 of 2006, heard on 29th April, 2015.

Punjab Urban Immovable Property Tax Act (V of 1958)---

----Ss. 4(b)(e) & 10(2)---Constitution of Pakistan, Art.199---Constitutional petition---Property tax exemption---"Stadium" and "play-ground"---Distinction---Pakistan Cricket Board was maintaining Cricket stadium on lease from Provincial Government and sought exemption in payment of immovable property tax---Validity---Stadium in question had capacity of hundreds and thousands of people to be accommodated in tiers of seats, available on stairs, pavilion and other allied facilities also having commercial centers outside the stadium under uprising stairs could not be given the status of playground---Stadium was not included in properties exempted from levy of property tax within the meaning of S.4(e) of Punjab Urban Immovable Property Tax Act, 1958---Petitioner could not enjoy exemption from levy of property tax on leased property, which was completely being administered by petitioner Board and in view of the agreed terms of lease, it was petitioner Board, which was responsible to pay all taxes and assessments of every description---Demand of authorities before year, 2002, when the properties administered by Provincial Government itself and not by the lessees for the first time, were included in exemption clause---After year 2002, petitioner Board was liable to pay property tax---Claim prior to 25-6-2002 as was raised by authorities towards property tax would remain exempted in favour of petitioner Board, thereafter petitioner Board was bound to pay such property tax as was determined by authorities--- High Court declined to interfere in demand made by authorities against Pakistan Cricket Board--- Petition was dismissed in circumstances.

Pakistan Cricket Board through Manager, National Stadium, Karachi and others v. Director-General Excise and Taxation and others 2011 CLC 1894; Concise Oxford English Dictionary Twelefth Edition; Chambers 21st Century Dictionary and Muhammad Shafi v. Pakistan through Secretary, Ministry of Religious and Minority Affairs, Islamabad and 3 others 2002 MLD 1270 rel.

Taffazul H. Rizvi and Haider Ali Khan for Petitioner.

Anwaar Hussain, A.A.G., with Naseer-ud-Din ETO, Salah-ud-Din AETO and Fida Khan AETI for Respondents.

2016 C L C 10

[Peshawar]

Before Nisar Hussain Khan and Roohul Amin Khan, JJ

Mst. GUL SAFIA BIBI and another----Petitioners

Versus

Al-Haj MUHAMMAD NAZIR and 2 others----Respondents

Review Petition No.114-P of 2015 in Writ Petition No.831-P of 2014, decided on 24th June, 2015.

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

----S. 114---Review---Scope and object---Scope of review was very limited and an order could only be reviewed when there was discovery of some new or important evidence which despite of exercise of due diligence was not in the knowledge of party and so could not be produced by him when order was being passed or on account of some mistake or error on the face of record---Power of review could not be invoked or exercised merely on assertion of a person that he/she had not authorized the counsel to make a statement before Court---Main aim of review was correction of error and not reopening of finally decided matter.

(b) Administration of Justice---

----Denial as well as affidavit of counsel if contrary to record of court, had no value as court proceedings had always precedence over affidavit of counsel---Any material placed on record in negation of court proceedings had no value and it could not be considered at all.

Abdul Khalid and others v. Province of Sindh 2010 SCMR 583 and Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.

(c) Counsel and client---

----Primary duty of counsel was not just to defend his client to the best of his ability but to uphold letter and spirit of the Constitution to the best of his understanding in order to do right and justice, according to law without fear or favour---Counsel was first an officer of court and should thus assist Court as guardian of the Constitution and law in imparting justice---Only function of legal profession was to promote administration of justice---Practice of law was not trade and brief no merchandise---Lawyer was obligated to observe carefully and with extreme delicacy those norms which made him worth of confidence.

Iftikhar Ilahi and Farhana Marwat for Petitioners.

Muhammad Rustam Khan for Respondents.

Date of hearing: 24th June, 2015.

2016 C L C 118

[Peshawar]

Before Mohammad Ghazanfar Khan, J

Mst. GHULAM AISHA and others----Petitioners

Versus

KALIMULLAH and others----Respondents

C.R. No.379-D of 2011, decided on 17th February, 2015.

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

----S. 4---Constitution of Pakistan, Art.203-D---Specific Relief Act (I of 1877), Ss.42, 8 & 54----Suit for declaration, possession and perpetual injunction on basis of inheritance---Right of grand children to inherit through predeceased father---Permissibility---Powers, jurisdiction and functions of courts---Suspension of a decision by Supreme Court---Effect---Plaintiffs filed the suit claiming that they, being grand children of deceased, were entitled to their respective shares in his legacy---Trial court decreed the suit; and appellate court dismissed appeal---Plaintiffs took plea that Supreme Court in appeal, had suspended operation of judgment and decree whereby provision of S.4 of Muslim Family Laws Ordinance, 1961 had been declared against Injunctions of Islam by Federal Shariat Court---Held, that plaintiffs were admittedly grand children of deceased---Decision of Federal Shariat Court would not take effect before disposal of said appeal pending before Supreme Court---Provision of S.4 of Muslim Family Laws Ordinance, 1961 would remain automatically operative until said appeal was disposed of by Supreme Court---Impugned judgment and decree passed by courts below were in accordance with law---Revision petition was dismissed.

2005 CLC 1240 and PLD 2003 SC 475 rel.

Sajid Nawaz Khan Sadozai for Petitioners.

Muhammad Ayaz Khan Qasuria for Respondents.

Date of hearing: 17th February, 2015.

2016 C L C 176

[Peshawar]

Before Yahya Afridi, J

KHAN SHER and 4 others----Petitioners

Versus

ISRAIL SHAH and 26 others----Respondents

C.R. No.2052 of 2010, decided on 26th June, 2015.

Co-sharer---

----Rights---Scope---Each co-owner of an undivided property was presumed to be the owner in possession of each inch of the property---Co-owner of an undivided property seeking injunctive relief could only seek the same with the formal partition of the said property---Co-owner on seeking the partition for the joint property would be able to obtain the determination of the respective share of each co-owner---Granting injunctive relief to one co-owner would amount to authorizing one of the co-owners to legally take possession of a valuable portion of the joint property which would frustrate the partition of joint property---When co-owner's right as co-owner of undivided property was denied, he might seek a declaration of his proprietary rights in the undivided property---Co-owner in such circumstances might first seek declaration with regard to proprietary shares in the joint property and after seeking such declaration he might seek partition along with other injunctive relief---If co-owner of undivided property was dispossessed, he might without seeking partition, prayed for possession under S.9 of Specific Relief Act, 1877 but not under S.8 of the said Act.

Muhammad Zafar Khan's case PLD 1959 SC (Pak) 9; Ghulam Muhammad's case 1991 MLD 193; Atta Muhammad's case 1992 SCMR 138; Jan Muhammad's case 1993 SCMR 1463; Abdur Rehman and 7 others' case 1998 SCMR 1589; Muhammad Abid's case 2000 SCMR 780; Mst. Yaseen's case 2010 CLC 1618; Firdos Khan's case 2011 MLD 521; Niaz War Jan's case 2007 YLR 1723; Ghulam Nabi's case 1991 CLC 708; Muhammad Anwar's case 2003 MLD 742; Muhammad Ibrahim's case 2005 SCMR 1335; Syed Shabir Hussain's case 2007 SCMR 1884; Muhammad Sirajul Islam's case 2007 YLR 2645; Gulzar Begum's case 2012 YLR 809; Muhammad Rafiq's case 2004 SCMR 1036; Mst. Resham Bibi's case 1999 SCMR 2325; Muhammad Shafi's case 1979 CLC 230; Haji Muhammad Alam's case 2009 SCMR 688 and Muhammad Riaz's case 2006 YLR 1071 rel.

Haji Shahzad Gul for Petitioners.

Nemo for Respondents.

Date of hearing: 26th June, 2015.

2016 C L C 216

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SIRANJAM KHAN and 4 others----Appellants

Versus

CHAIRMAN NATIONAL HIGHWAY AUTHORITY, ISLAMABAD and 7 others----Respondents

R.F.A. No.138-P of 2012, decided on 18th February, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Acquisition of land---Reference to court---Enhancement of compensation---Factors to be considered for determination of compensation---Referee Judge assessed the market value of suit property at the rate of Rs.3,00,000/- per marla but it was not clear as to how the said amount had been determined---Average available on record had not been taken into consideration nor statements of Property Dealers and elders brought on file had been taken into consideration-Court was bound to appoint local commission for determination of market value/compensation of land under reference---Land Acquisition Collector had also referred to acquisition in the same vicinity at the rate of Rs.3,00,000/- and Rs.4,00,000/- per marla which had lost the sight of the Trial Court---No cogent evidence had been discussed in the impugned judgment---Claim of objectors had not been properly addressed by the Referee Judge---Court had to consider evidence brought on record by the parties---One year average, location of acquired land, its potentiality and likelihood of development and improvement, and report of local commission were to be taken into consideration for determination of compensation---Average could not be relied upon in such like cases without appointment of local commission as vendees showed smaller amount to avoid imposition of tax and stamp duty---Appointment of local commission had become inevitable in cases of enhancement of compensation---Case was remanded to the Referee Judge with the direction to consider and evaluate evidence in the light of documents and statements of disinterested persons---Referee Judge should also record fresh evidence if needed and appoint local commission to determine the status of the property, location and future potentiality within the specified period---Impugned judgment and decree were set aside and appeal was allowed in circumstances.

Abdul Zakir Tareen for Appellant.

Sikandar Rasheed for Respondents.

Date of hearing: 18th February, 2015.

2016 C L C 230

[Peshawar]

Before Lal Jan Khattak and Muhammad Daud Khan, JJ

Haji SHEWA JAN and another----Appellants

Versus

GOVERNMENT ----Respondent

FRAs Nos.1-B of 2006 and 3-B of 2007, decided on 18th November, 2014.

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

----S. 42---Suit for declaration---Mere averments made in the plaint were not sufficient for the entitlement of a decree unless proved on the strength of cogent and reliable evidence---Trial Court, in the present case, had rightly decreed the suit after proper appraisal of statement of local commission and available evidence---Appeal was dismissed in circumstances.

Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594 and Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465 rel.

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

----O. XLI, R. 22---Appeal---Cross objections---Limitation---Respondent might file cross objections to a decree within one month from the date of service on him or his pleader or within such further time as the appellate court might deem fit to allow, despite the fact that he had not appealed from any part of the decree.

Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel.

Anwarul Haq for Appellants.

Qudratullah Khan Gandapur, Asst.A.-G. for Respondent.

Date of hearing: 18th November, 2014.

2016 C L C 256

[Peshawar]

Before Abdul Latif Khan and Malik Manzoor Hussain, JJ

SHER DIL KHAN----Petitioner

Versus

Baby MAIMOONA and others----Respondents

W.P. No.86-H of 2015, decided on 6th February, 2015.

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

----S. 5, Sched---Limitation Act (IX of 1908), Art.181---Civil Procedure Code (V of 1908), Ss.47 & 48--- Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Execution petition--- Limitation--- Objection application--- Scope---Contention of applicant-judgment debtor was that execution petition was time barred---Objection petition was dismissed concurrently---Validity---First application for execution of decree was to be governed by residuary Art.181 of Limitation Act, 1908---Rest of application made thereafter would be governed by S.48, C.P.C. whereby six years period of limitation had been provided---First execution petition was not pressed due to compromise and second application was moved---Second execution petition was filed within limitation period of six years prescribed by law---Both the courts below had rightly turned down objection petition for rejection of execution application filed by both the applicant-judgment debtor---No illegality or material irregularity had been pointed out in the impugned judgments passed by the courts below---Constitutional petition being devoid of force was dismissed in limine.

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

----S. 48---Execution petition---Limitation---Period of limitation for execution petition under S.48, C.P.C. was six years from the passing of order on the earlier execution application.

Sajjad Ahmed Abbasi for Petitioner.

Nemo for Respondents.

Date of hearing: 6th February, 2015;

2016 C L C 278

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Muhammad Daud Khan, J

Syed GHAZI GULAB JAMAL----Petitioner

Versus

JAWAD HUSSAIN and others----Respondents

Election Appeals Nos.1 and 2 of 2014, decided on 25th June, 2015.

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

----Ss. 52, 39(3), 46, 70, 78 & 83---Representation of the People (Conduct of Election) Rules, 1977, R.26---Appeal---Election for the seat of Member National Assembly---Corrupt or illegal practices---Recounting in the entire constituency---Narrow margin of difference between the votes secured by returned candidate and runner-up candidate---Effect---Contention was that corrupt practice was committed in the election process---Election Tribunal ordered for re-election in two polling stations only---Validity---Not only corrupt and illegal practices were committed in the alleged polling stations but rejected votes were also not scrutinized by the Returning Officer---Returned candidate had won the election with the margin of 196 votes only---No illegality was pointed out in the impugned judgment of Election Tribunal---Candidate was supposed to have led evidence in support of his allegations to justify his prayer with regard to re-election or recount in the entire constituency---Party had to prove his case---Court could not go beyond the evidence of the party---Corrupt and illegal practices were committed in only two polling stations---Nothing was on record that Election Tribunal had exercised its jurisdiction against law or any illegal or misuse of authority was committed by the said Tribunal---Re-polling or re-count in the entire constituency could not be ordered on mere allegations without any cogent and valid proof---Narrow margin of votes between the returned candidate and the election petitioner did not per se give rise to a presumption that there was an irregularity or illegality in counting the votes---Material facts with this regard had to be stated clearly in the election petition first and then proved by cogent evidence---Onus to prove allegations of irregularity, impropriety, or illegality in the election process was on the election petitioner but he had failed to bring on record any such evidence---Merely because some serious allegations had been made in the election petition would not be proper to order re-count of entire votes in the constituency on the premise that no prejudice would be caused to the returned candidate---Well reasoned judgment of Election Tribunal was not open to any exception in the appellate jurisdiction of High Court---Election Appeals were dismissed in circumstances.

Harchand Rai v. Manga Ram 1986 CLC 985; Muhammad Zahir Shah Khan and others v. Nasiruddin and others 1986 CLC 2463; Muhammad Shafi v. Muhammad Usman Khan Noori 1986 MLD 2112; Haji Nannay Khan v. Muhammad Aslam Mujahid 1986 MLD 2253; Capt. Syed Muhammad Ali v. The Returning Officer, P.S. 89, District Courts, Karachi 1999 CLC 2039; Muhammad Aslam Mujahid v. Mahmood Ahmad Qureshi and 9 others 2003 YLR 3021; Asghar Ali v. Sardar Khan Rajput and another PLD 1959 SC 91; Khan Muhammad Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; N.C. Zeliang v. Aju Newmai and others 1985 PSC Cases 1400 Civil; Shradha Devi v. Krishna Chandra Pant and others AIR 1982 SC 1569; Sheikh Iftikhar-ud-Din and another v. District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523; Malik Irshad Hussain and another v. Muhammad Ashraf Nagra and 12 others 2003 YLR 812; Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others PLD 2007 Lah. 141 and Mehr Khaliq Yar Khan v. Ch.Ghayas Ahmad Mela and others 2011 CLC 1515 distinguished.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Lone and 13 others 1999 SCMR 284 and Dr. Raja Aamer Zaman v. Omar Ayub Khan 2015 SCMR 890 rel.

Qazi Muhammad Anwar for Appellant.

Malik Abdul Qayum along with Qazi Jawad Ehsanullah Qureshi for Respondents.

Date of hearing: 3rd June, 2015.

2016 C L C 293

[Peshawar]

Before Syed Afsar Shah and Haider Ali Khan, JJ

AURANG ZEB KHAN----Petitioner

Versus

RETURNING OFFICER, CENTRE NO.18, TEHSIL MATTA DISTRICT SWAT and another----Respondents

W.P. No.233-M of 2015, decided on 5th May, 2015.

(a) Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2013---

----Chap. IV, R. 14----Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013), S.100---Constitution of Pakistan, Art.199---Constitutional petition---Nomination for elections---Assistance by government servants---Scope---Candidate seconded or proposed by government servant---Permissibility---Petitioner filed nomination papers for seat of General Councilor, which were rejected by both Returning Officer and appellate court on ground that the seconder who had proposed petitioner for the election was government employee---Validity---No express bar existed for government officials to propose or second candidate for local government elections provided they were registered voters in village council or neighbourhood council or electoral ward---Section 100 of Khyber Pakhtunkhwa Local Government Act, 2013 was not applicable to the present case as proposing or seconding petitioner did not come within the purview of political activities---Impugned order of rejection was set aside and respondents were directed to accept the nomination papers of petitioner---Constitutional petition was accepted in circumstances.

(b) Khyber Pakhtunkhwa Local Government Act (XXVII of 2013)----

----S. 100----Applicability---Section 100 of Khyber Pakhtunkhwa Local Government Act, 2013 was not applicable to the case of proposing or seconding candidate for election as the same did not come within the purview of "political activities".

Shams-ul-Hadi for Petitioner.

Sabir Shah, A.A.-G along with Muhammad Jameel, Regional Election Commissioner for Respondents.

Date of hearing: 5th May, 2015.

2016 C L C 377

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Mrs. Irshad Qaiser, J

QAISER JAMAL KHAN----Appellant

Versus

Haji ABID AFRIDI and 10 others----Respondents

Election Appeals Nos.3, 4 and 5 of 2014, decided on 16th July, 2015.

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

----S.67(3)---Limitation Act (IX of 1908), S.14---Notification No.F6(53)-F.1/76 dated 9-1-1977---Applicability of Representation of the People Act, 1976 to the Federally Administered Tribal Areas---Appeal---Limitation---Exclusion of time spent before wrong forum---Appellants filed appeals before the Supreme Court but same was returned for presentation before Election Tribunal---Appellants had acted diligently by filing appeals before the Supreme Court which were entertained---Appellants were not negligent for presenting appeals before the Supreme Court nor it was an ill advice of their counsel---Appellants should not suffer for act of court---Appellants who were prosecuting their appeals before the Supreme Court in good faith were entitled for exclusion of time spent before wrong forum---Section 14 of Limitation Act, 1908 was applicable to the proceedings under Representation of the People Act, 1976---Time spent in the Supreme Court was to be excluded in circumstances---Appeals were within time, if time spent before the Supreme Court was excluded---Objection raised was overruled and appeals were directed to be fixed for regular hearing.

Haji Kadir Bux v. Province of Sindh and another 1982 SCMR 582; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957 and Karachi Electric Supply Corporation Ltd v. Lawari and 4 others PLD 2000 SC 94 rel.

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

----S. 67(3)---Appeal---Limitation---Appeal could be filed within 30 days.

(c) Administration of justice---

----No one should suffer due to act of court.

(d) Words and phrases---

----"Application"---Meaning.

Black's Law Dictionary rel.

(e) Words and phrases---

----"Petition"---Meaning.

Black's Law Dictionary rel.

Qazi Muhammad Anwar and Muhammad Tariq Afridi for Appellant.

Barrister Aitezaz Ahsan along with Barrister Gohar Ali for Respondents.

Date of hearing: 30th June, 2015.

2016 C L C 400

[Peshawar]

Before Muhammad Younis Thaheem, J

RUSTAM KHAN----Appellant

Versus

KHALID RAHMAN and another----Respondents

RFA No.5-B of 2010, decided on 11th May, 2015.

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

----O. VII, R. 2 & S. 96----Limitation Act (IX of 1908), S.5---High Court (Lahore) Rules and Orders, Vol.I, Chap. 1-B, R.5 & Chap.14-B, R.5---Jurisdiction---Pecuniary jurisdiction---Determination---Duty of court--- Money suit---Limitation---Condonation of delay---Sufficient cause---Ownership of vehicle, proof as to---Requirement---Plaintiff filed suit for recovery of money claiming that he was owner of vehicle which he had rented out to defendant company, who later informed him that said vehicle had been snatched from defendant-driver of company, but it was later turned out that driver himself was involved in theft of vehicle---Defendant, after amicable settlement through arbitration, paid part of total value of said vehicle but failed to pay the remaining amount---Trial Court dismissed the suit---Plaintiff filed appeal before Additional District Judge, which was returned for lack of pecuniary jurisdiction; whereafter present appeal was filed before High Court---Defendant took plea that appeal was filed with lapse of thirteen days after return thereof, and no sufficient cause was given for said delay---Contention raised by plaintiff was that he had filed present appeal before court below well before expiry of limitation period, but same was returned after expiry of limitation, so he should not have suffered for act of court---Validity---Appellate court, in oblivion to High Court Rules and Orders, not returning appeal on very first day when it was filed, had committed irregularity and illegality---If first appeal was properly checked in light of High Court Rules and Orders, it would have been returned forthwith, so that it could be re-filed within prescribed period of limitation before competent court---First appeal, having been filed well within time, remained pending before court for nine months before the same was returned for lack of pecuniary jurisdiction---Plaintiff had performed his obligation by applying for certified copies on next day of pronouncement of order of return---Plaintiff, who remained vigilant and showed no negligence, should not have suffered by act of court---Omission on part of court in not returning appeal in time, which was reason for re-filing present appeal beyond limitation, was sufficient cause under S.5 of Limitation Act, 1908 for condonation of delay---Objection that plaintiff had re-filed present appeal after return with delay of twelve days was not sustainable as said delay had no adverse effect---Delay in re-filing present appeal was condoned---Plaintiff had not produced any document regarding registration of vehicle to prove that he was owner thereof---Plaintiff, in his pleadings, had mentioned himself as owner of vehicle but during cross-examination he stated his son to be owner of the same---Plaintiff's son had not asserted right to vehicle before any court---Plaintiff failed to prove purchase of said vehicle---Plaintiff had not produced any document regarding renting out of vehicle to defendant---Documents produced by plaintiff were not properly executed---Award of arbitration was not admissible in court as same had not been signed by defendant---Plaintiff had not lodged FIR for alleged theft of vehicle---Findings of court below were based on correct appreciation of evidence---Appeal was dismissed in circumstance.

PLD 1987 SC 284; Mst. Nazeeran Bibi v. Additional Judge Okara 2006 YLR 216; PLD 1988 SC 20; Dilawar Shah v Nasrullah Khan PLD 2011 Pesh. 256 and Sherin's case 1995 SCMR 584 ref.

Dilawar Shah v. Nasrullah Khan PLD 2011 Pesh. 256 and Sherin's case 1995 SCMR 584 and KESC Ltd. v. Lawari and 4 others PLD 2000 SC 94 rel.

(b) Administration of Justice---

----Party who remain vigilant and show no negligence on his part should not suffer from act of court.

KESC Ltd. v. Lawari and 4 others PLD 2000 SC 94 rel.

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

----O. XIV----Settlement of issues and determination of suit on issues---Issues not available on court file---Effect---Trial court, although, had mentioned in the order-sheet that issues had been framed and had given issuewise judgment, but those issues were not available on trial court file, which was sufficient to believe that issues had been framed---Suit could not be remanded in given circumstances.

Abdul Jabbar Khan Khattak for Appellant.

Taj Muhammad Khan for Respondents.

Date of hearing: 11th May, 2015.

2016 C L C 517

[Peshawar]

Before Qalandar Ali Khan, J

MUHAMMAD AKHAN----Appellant

Versus

MUHAMMAD SULTAN KHAN----Respondent

RFA No.62-A of 2014, decided on 29th June, 2015.

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

----O. XXXVII---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Arts. 74, 76 & 77---Suit for recovery of money on basis of pronote---Summary procedure on negotiable instrument---Presumption as to negotiable instrument---Burden of proof---Time as to payment of consideration for pronote---Principles---Plea of duress and coercion regarding execution of pronote---Secondary evidence, production of---Procedure---Pronote admitted in evidence without objection as to insufficiency of stamp and non-cancellation of adhesive stamps---Effect---Sale transaction, proof of---Plaintiff filed present suit claiming that he had purchased plot from defendant on payment of sale consideration, but upon verification of titled documents, said plot was turned out not to be in ownership of defendant, and transaction of sale was, therefore, cancelled and defendant for repayment of sale consideration, executed pronote along with affidavit as undertaking, which defendant failed to honour---Trial court dismissed the suit---Defendant took plea that pronote in question was result of duress and coercion, and that he, in fact, had sold out said plot to some other person with whom plaintiff had entered into sale transaction---Validity---Execution of pronote was not denied by defendant---Pronote was not the only document which had been executed, as affidavit had also been executed on same date, which had also been signed and thumb impressed by defendant in presence of marginal witnesses---Marginal witnesses had fully supported execution of pronote and affidavit---Deed writer, stamp vendor and Notary Public, who belonged to place where defendant belonged, had also appeared as plaintiff witnesses to substantiate execution of both said documents---All said witnesses were subjected to thorough cross-examination, but nothing could be brought on record to show that pronote and affidavit had been executed at place as alleged by defendant or that signatures and thumb impression of defendant on the same had been obtained through duress and coercion---Defendant had failed to prove his application filed to DCO, as photocopy of same had not been exhibited and same had only been marked---Nothing was brought on record to show dispatch of said application by defendant and its receipt in office of DCO---Defendant had not moved application for production of secondary evidence to prove application filed to DCO---Nothing was on record to show that defendant had ever pursued his application against DDOR for using of pressure tactics to obtain his signatures and thumb impression on pronote and affidavit---Defendant, therefore, had failed to prove allegations of duress and coercion---Under S.118 of Negotiable Instruments, 1881, until contrary was proved, there would be presumption that negotiable instrument was made for consideration---Contrary had to be proved by party alleging non-genuineness of promissory note, who was under obligation to prove the same, and his failure would lead to presumption attached to pronote---Payment of consideration for pronote on same date on which pronote had been executed was also not essential requirement of law, and even consideration paid earlier in time was good consideration---As pronote had been admitted in evidence without any objection with regard to insufficiency and non-cancellation of adhesive stamps, same, therefore, could not be challenged at any subsequent stage of suit on ground of said objection---Adhesive stamps on pronote, at different places, bearing signatures and thumb impression of defendant had indicated their cancellation---After proof of execution of pronote, there was no need to prove sale transaction with respect to property between plaintiff and defendant or between defendant and third person introduced by him in his written statement---Defendant, before present case, had been accused of more than once for entering into transactions and executing pronotes and then backing out from same---High Court, setting aside impugned judgment and decree of trial court, decreed the suit as prayed for---Appeal was accepted in circumstances.

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

----S. 118---Presumption as to negotiable instrument---Burden of proof---Time as to payment of consideration for pronote---Principles---Objection as, to insufficiency and non-cancellation of adhesive stamps not raised during trial---Effect---Under S.118 of Negotiable Instruments Act, 1881, until contrary was proved, there would be presumption that negotiable instrument had been made for consideration---Payment of consideration for pronote on same date on which pronote was executed was not essential requirement of law, and even consideration paid earlier was good consideration---Contrary had to be proved by party alleging non-genuineness of promissory note, who was under obligation to prove the same, and his failure would lead to presumptions attached to instrument---Pronote, admitted in evidence without any objection with regard to insufficiency and non-cancellation of adhesive stamps, could not be challenged at any subsequent stage of suit on ground of said objection---Adhesive stamps on pronote bearing signatures and thumb impressions of defendant at different places indicated their cancellation.

1992 MLD 1007; 1993 CLC 2015; 1991 CLC Note 42; 1990 CLC 1018; PLD 1993 Lah. 244 and 2001 CLC 318 rel.

Syed Altaf Hussain Shah for Appellant.

Qazi Muhammad Azhar for Respondents.

Date of hearing: 29th June, 2015.

2016 C L C 600

[Peshawar]

Before Malik Manzoor Hussain, J

DEPUTY LAND COMMISSIONER/D.C., SWAT and 2 others----Petitioners

Versus

SHAHZADA AMAN ROOM and another----Respondents

C.R. No.456-P of 2002, decided on 26th January, 2015.

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

----S. 42---Land Reforms Regulation, 1972 [MLR No.115], Paras.122, 123 & 115---Suit for declaration---Maintainability---Bar of jurisdiction---Martial Law Regulations---Applicability---Contention of defendants was that suit property was in the ownership of Provincial Government---Suit was decreed concurrently---Validity---Suit property was purchased through registered deed by the plaintiffs---Provisions of Land Reforms Regulation, 1972 would not apply to the property if it was established that the same was purchased or gifted property---Suit of plaintiffs was confined only to correction of wrong entries---Civil court had jurisdiction to entertain the present suit---Both the courts below had properly examined the material available before them in true perspective---Revision was dismissed in circumstances.

(b) Land Reforms Regulation, 1972 [MLR No.115]---

----S. 26---Bar on the jurisdiction of civil court---Scope---Immunity under Para.26 of Land Reforms Regulation, 1972 was available to those orders which had been competently passed under the Regulation---No immunity would attach to the orders which were made without jurisdiction or in violation of any provision of law---Civil court as court of plenary jurisdiction was competent to assume initial jurisdiction to examine whether a tribunal of special jurisdiction had acted within the limits set out by the statute creating it---Clause ousting jurisdiction of civil court would become operative only if order brought under challenge was passed within the four corners of the statute---Special tribunals or even government functionaries were vested with powers to act in accordance with law and if they failed to do so, order would become without jurisdiction and the same could be set aside by the court.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court having limited revisional jurisdiction could not interfere in the matter concurrently decided on question of facts and law unless and until it came to surface that the impugned orders were perverse or without jurisdiction.

(d) Administration of justice---

----Court of justice should come to the rescue and save citizens from arbitrary and capricious actions of the State functionaries and their unlawful proceedings.

Rahimullah, Asstt. A.G. for Petitioners.

Sher Muhammad Khan for Respondents.

Date of hearing: 26th January, 2015.

2016 C L C 635

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Muhammad Dawood Khan, J

UMAIR KHAN and 9 others----Petitioners

Versus

PRINCIPAL, KABIR MEDICAL COLLEGE, PESHAWAR and 4 others----Respondents

Writ Petition No.9 of 2015, decided on 30th June, 2015.

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

----S. 32(2) [as amended by S.37 of Medical and Dental Council (Amendment) Act (XIX of 2012)]---Scheme of examination--- Promotion to next class---Petitioners were students of medical college who could not pass one class and college authorities declined to promote them in the next class---Validity---Authorities brought changes just for streamlining their system of administration---Legally, authorities could not be questioned in such regard in absence of anything to the contrary available on record and on mere allegations High Could not go to that extent---No change was made in the scheme for the students of Second, Third Professionals and onward and every student eligible for next higher class had to pass/clear all the subjects---High Court intervened for the sake of precious time of students of medical profession by holding that failing students in some subjects in any class would be entitled to sit in the next higher class to get or secure the required number of attendance for the reason that if he had passed all the failed subjects in supplementary examination, then he would become eligible to sit in the next professional exam without wasting his one complete year---Petition was allowed accordingly.

Alapthagin v. Principal Saidu Sharif Medical College, Swat and 3 others PLD 2004 Pesh. 307; CPLA No.1992 of 2004 and Muhammad Bilal and others v. Khyber Medical University and others Writ Petition No.1844-P/2012 rel.

Khush Dil Khan for Petitioners.

Mansoor Tariq, Syed Qaiser Ali Shah, A.A.G. Aurangzeb Khan for PMDC along with Taskeenuddin Khattak for Respondents.

Date of hearing: 25th June, 2015.

2016 C L C 653

[Peshawar]

Before Nisar Hussain Khan and Waqar Ahmad Seth, JJ

HOUSE BUILDING FINANCE CORPORATION through General Manager/District Manager----Appellant

Versus

MUHAMMAD ASIF and 9 others----Respondents

FAB No.60 of 2006, decided on 22nd July, 2015.

House Building Finance Corporation Act (XVIII of 1952)---

----S. 24---Civil Procedure Code (V of 1908), S.47---House Building Finance Corporation---Suit for recovery of loan amount---Execution petition---Objection application---Bona fide purchaser---Proof of---Requirements---Contention of applicants was that they were bona fide purchasers of the house in question---Objection petition was accepted by the Executing Court and order of attachment of disputed house was withdrawn---Validity---No entry with regard to mortgage of house in question was made in favour of plaintiff-Corporation---Plaintiff-Corporation could not be blamed, as mortgage of the house was through a registered deed which itself was a notice to public in general and all kinds of mortgages were required to be entered in mutation registered---Registrar and Sub-Registrar were bound to send to Tehsildar the particulars of all such registered deeds---Purchasers had not filed any application in writing before the Sub-Registrar to find out as to whether house in question was free from encumbrance or not---Purchasers of disputed house could not claim to be bona fide purchasers of the same---Registrar of the area would issue non-encumbrance certificate when any application for such purpose had been submitted before him if there was no encumbrance over the property---If property was under any encumbrance then such fact should be mentioned by the Registrar while giving intimation to the applicant---Rights of plaintiff-Corporation with regard to mortgage house were also protected under S.24(3) of House Building Finance Corporation Act, 1952---Applicants purchased the house in question without the consent of Corporation and without payment of its dues---Said purchase of house by the applicants would be void till payment of Corporation's dues---Suit house was in exclusive ownership and possession of judgment-debtor at the time of execution of mortgage deed between original owner and Corporation---Corporation had not filed any suit against the applicants---Mortgage deed was registered before the alleged sale of property in favour of applicants---Executing Court had not acted in accordance with law while accepting objection petition---Impugned order passed by the Banking Court was set aside and objection petition was dismissed---Executing Court was directed to proceed with the case in accordance with law---Deputy Commissioner concerned was directed by the High Court to take necessary action against the revenue official/officers who had entered sale deed and mutation in favour of applicants---Appeal was allowed in circumstances.

Malik Haroon Iqbal for Appellant.

Abdul Munim Khan for Respondents.

Date of hearing: 22nd July, 2015.

2016 C L C 663

[Peshawar]

Before Muhammad Younis Thaheem, J

SHER KHAN through Legal Heirs----Petitioner

Versus

GUL ZAR KHAN----Respondent

C.R. No.19-B of 2015, decided on 5th June, 2015.

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

----Ss. 12, 54 & 55---Civil Procedure Code (V of 1908), O.VII, Rr.11(a), (d) & 26---Limitation Act (IX of 1908), Art.113---Suit for specific performance and perpetual and mandatory injunction---Limitation, determination of---Rejection of plaint---Judgment pronounced after death of plaintiff---List of legal heirs not filed---Effect---Plaintiff filed suit regarding transfer of land, which was dismissed under O.VII, R.11, C.P.C. both by trial court and appellate court on grounds of limitation and absence of cause of action---Plaintiffs contended that as their predecessor had died after submission of final arguments but before passing of impugned judgment by appellate court, impugned judgment was not valid against a dead person---Validity---Under Art.113, Limitation Act, 1908, period of limitation for filing suit for specific performance was three years, which would start from date, month and year of agreement in case time for performance was not stipulated---Agreement in question was alleged to have been executed twenty years back, thus suit was barred by limitation---None of legal heirs had moved any application for their appointment as legal heirs of deceased---Predecessor of present plaintiffs had died after completion of arguments and before pronouncement of impugned judgment, appellate court had rightly proceeded and pronounced impugned judgment---No abatement took place by reason of death of either party after hearing of the case and before pronouncement of judgment---Variations existed in pleadings of previous suit and present suit regarding description of Khatas (particulars of suit land)---Revision petition was dismissed in circumstances.

Mst. Kubra Begum and others v. Mst. Shad Begum and others 1993 SCMR 2096 and Muhammad Saddiq (deceased) through L.Rs. and others v. Mushtaq and others 2011 SCMR 239 rel.

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

----O. VII, R. 11---Rejection of plaint---Object and scope---Object of O.VII, R. 11, C.P.C. is primarily to save parties from rigors of frivolous litigation at very inception of proceedings---If court, on basis of averments made in plaint and available documents, comes to conclusion that even if all allegations made in plaint are proved, plaintiff will not be entitled to relief claimed, court would be justified in rejecting plaint in exercise of powers available under O.VII, R.11, C.P.C.

Muhammad Saddiq (deceased) through L.Rs and others v. Mushtaq and others 2011 SCMR 239 rel.

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

----O. VII, R. 26 & O.XXII, R.1---Statement as to legal representatives of plaintiff---Judgment pronounced after death of plaintiff---Validity---None of legal heirs had moved any application for their appointment as legal heirs of deceased---Predecessor of present plaintiffs having died just after completion of arguments and before pronouncement of impugned judgment, appellate court had rightly proceeded and pronounced impugned judgment---No abatement took place by reason of death of either party after hearing of the case and before pronouncement of judgment.

Mst. Kubra Begum and others v. Mst. Shad Begum and others 1993 SCMR 2096 rel.

Sardar Naeem for Petitioners.

Umar Qayyum Khan for Respondents.

Date of hearing: 5th June, 2015.

2016 C L C 682

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

Mian MUJAHID ULLAH----Petitioner

Versus

SABIR ALI and 2 others----Respondents

Regular First Appeal No.13-P of 2014, decided on 22nd October, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Adjournments---Production of evidence---Scope---Suit of plaintiff was dismissed by Trial Court under O.XVII, R.3, C.P.C.---Validity---Despite many opportunities provided to plaintiff for recording of evidence, he failed to produce his witnesses---Plaintiff on several occasions, was warned with caution notice to comply with the court order and to produce evidence but plaintiff paid no heed to directions of court, thus, lastly he was proceeded under O.XVII, R.3, C.P.C. and on his failure to produce his remaining evidence, Trial Court closed the evidence and dismissed the suit for no evidence---Perusal of record would reveal that Trial Court had shown a lot of clemency in providing opportunities to plaintiff to do the needful and similarly plaintiff had abused the process of law to its maximum and choking the legal process of court for long two years---Order passed by trial Court did not warrant any interference in circumstances---Appeal was dismissed accordingly.

Umar Zafran for Petitioner.

Rab Nawaz Khan, Addl. A.G. along with Dr. Khalid Khan for Respondent No.2.

Date of hearing: 22nd October, 2015.

2016 C L C 731

[Peshawar]

Before Haider Ali Khan, J

Mst. KHANDANA BIBI and 2 others----Petitioners

Versus

KHAISTA REHMAN and 9 others----Respondents

C.R. No.715-M of 2005, decided on 2nd June, 2015.

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

----Ss. 42, 8 & 54----Limitation Act (IX of 1908), Art.120----Suit for declaration, possession and perpetual injunction---Shamilat property---Inheritance---Claim in inheritance acquiesced through conduct---Limitation---Applicability---Inheritance in property of step-brother---Principles---Non-mentioning of all legal heirs in plaint---Effect---Plaintiff filed suit on basis of inheritance claiming that they along with defendants were cousins and legal heirs of their predecessor-in-interest through their fathers, and that they were joint owners of inherited suit land---Trial court dismissed the suit, but appellate court partially decreed the same and, dismissed to the extent of remaining part---Contention raised by plaintiffs was that they were entitled to their respective shares in inherited suit land---Defendants took plea that suit land had been devolved upon them since about six decades and they had sold out part thereof years ago, but plaintiff had never raised any objection---Held, plaintiff had shown that their predecessor-in-interest had only three sons, whereas record revealed that he also had another fourth son, who had died issueless---Record also revealed that said four sons were not real brothers---As per plaintiff witnesses, predecessor-in-interest had already partitioned suit land among said four sons, and there was, therefore, no property to be jointly owned by his legal heirs---Predecessor-in-interest had not challenged said partition in his life time, which showed that predecessors of parties were satisfied with the partition---Defendants, being sole owners, had sold out suit land to other defendants, who had made improvements thereon at their own expense---Nothing was available on record to show that plaintiffs or their predecessors had raised any objection to said sale or improvements---Plaintiffs had not mentioned another fourth son of their predecessor-in-interest in their plaint, which showed that they neither had knowledge about all legal heirs of their predecessor-in-interest, nor were they aware of details of entire inherited suit land---Fourth son, who had died issueless, was not real brother of father of plaintiffs, so plaintiffs were not entitled to inherit from property of said son---Plaintiffs were well-aware of all developments pertaining to suit land, but they intentionally remained silent throughout---Plaintiffs through their conduct had acquiesced in defendants' title in suit land and allowed them to deal with the same as exclusive owners thereof---Law of limitation was not to be brushed aside in case of claim on basis of inheritance---Suit of plaintiffs was hopelessly time-barred---Plaintiffs had claimed their share in Shamilat land, but owners-in-possession of said land were not made party to suit---Suit of plaintiff was bad for non-joinder of parties, and no decree could be passed in favour of plaintiffs in respect of disputed Shamilat property---Trial court had properly scrutinized evidence and rightly non-suited plaintiffs---High Court, setting aside judgment and decree of appellate court, maintained that of trial court---Revision petition filed by plaintiffs was dismissed, while the other filed by defendants was allowed in circumstance.

PLD 2011 SC 657; PLD 2014 SC 167 and PLD 2013 Lah. 234 rel.

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

----O. I, R. 10----Parties to suit---Owners-in-possession of disputed Shamilat property not joined in suit---Effect---Plaintiffs had claimed their share in Shamilat land, but owners-in-possession of said land were not made party to suit---Suit was bad for non-joinder of parties, and no decree could be passed in favour of plaintiffs in respect of disputed Shamilat property.

PLD 2013 Lah. 234 rel.

Husn-ul-Maab for Petitioners.

Hazrat Rehman for Respondents

Date of hearing: 2nd June, 2015.

2016 C L C 754

[Peshawar]

Before Abdul Latif Khan, J

BAWAR KHAN and others----Appellants

Versus

MUHAMMAD HANIF and others----Respondents

R.S.A. No.2-P of 2006, decided on 9th September, 2014.

(a) Islamic Law---

----Gift---Ingredients---Requirements---Consent of donee---Donee, wife of the donor---Physical possession of property was not necessary---Revocation of gift---Principles---Non-production of witnesses of gift deed---Effect---Gift deed was not questioned in the life time of the donee and the same had been incorporated in the Jamabandi---Donor had never challenged gift deed which was properly executed with his free-will and consent---Suit property was gifted through registered deed which was sufficient to prove consent of donees---Gift could be made orally which required no registration and even writing was not necessary to the validity of gift made with regard to immovable property---Delivery of possession of subject matter of gift by the donor to the donee was sine qua non for a valid gift---Declaration of gift by the donor stood proved from the attestation of registered deed and endorsement thereupon by the Sub-Registrar---Said endorsement had presumption of truth---Both the parties, after the death of donee, had taken benefit in inheritance out of her legacy---Acceptance of gift could be either express or implied by the donees or by anyone on their behalf---Delivery of actual and physical possession was not necessary when donee was wife of donor---Donor had not revoked the gift deed in his life time---Only donor could revoke the gift at any time before the delivery of possession---None of the legal heirs of donor could revoke a valid gift made by the donor---Non-production of witnesses of gift deed would not invalidate the gift---Appellate Court had decided the 'lis' with conscious and application of independent mind---Second appeal was dismissed ,in circumstances.

(b) Islamic Law---

----Gift---Ingredients---Ingredients of gift were declaration of gift by the donor; acceptance either express or implied by or on behalf of donees and delivery of possession of subject matter of gift by the donor to the donee.

(c) Islamic Law---

----Gift, revocation of---Scope---Only donor could revoke the gift at any time before the delivery of possession.

(d) Islamic Law---

----Gift---Donee, wife of donor---Physical possession of property to donee was not necessary.

Sher Muhammad Khan and Iftikhar Ahmad for Appellants.

Muhammad Asif for Respondents.

Date of hearing: 9th September, 2014.

2016 C L C 774

[Peshawar]

Before Lal Jan Khattak and Muhammad Daud Khan, JJ

SHARIF KHAN----Petitioner

Versus

AKBAR ZAMAN----Respondent

Writ Petition No.04-B of 2006, decided on 20th November, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31 & 32---Civil Procedure Code (V of 1908), O.VII, R.11(d)---Constitution of Pakistan, Art.199---Constitutional petition---Pre-emption suit---Limitation---Notice---Scope---Plaint, rejection of---Plaintiff filed pre-emption suit wherein defendant moved an application for rejection of plaint on the ground that suit was time-barred---Application was dismissed concurrently---Validity---Period of one hundred and twenty days should be computed from the date of registration of sale in case same was effected through registered sale deed---Provisions with regard to issuance of notice by the Registrar had no nexus with the period of limitation---Provision of S.32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 was directory in nature whereas S.31 of the said Act was mandatory---Both the courts below had erred while computing the period of limitation---Requirement of limitation would go to jurisdiction and an order made in disregard of the requirement would be without jurisdiction---Court must dismiss the suit, appeal or application if it was hit by limitation---Present suit was filed after lapse of five months and twenty one days which was time-barred---Such like plaint should be buried at its inception---Both the courts below had wrongly dismissed the application for rejection of plaint---Impugned orders passed by both the courts below were set aside and plaint was rejected.

Mst. Samina Sohail v. Hamaid Naseer-al-Owais and 2 others 1989 CLC 1949 and Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 ref.

Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 305; Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134; Major Shujat Ali v. Mst. Surrya Begum PLD 1978 SC (AJ&K) 118; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; S.M. Shafi Ahmadi 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.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 31---Pre-emption suit---Limitation---Period of one hundred and twenty days had been provided for a suit for possession through pre-emption from the date of registration of sale in case same was effected through registered sale deed.

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

----S. 3---Bar of limitation---Scope---Action must be provided within the statutory time limit---Suit instituted, appeal preferred or an application made after the period of limitation should be dismissed although limitation had not been set up as a defence.

Petitioner not present.

Nemo for Respondent.

Date of hearing: 20th November, 2014.

2016 C L C 789

[Peshawar]

Before Mrs. Irshad Qaiser and Muhammad Younis Thaheem, JJ

KHAN MOHAMMAD and 2 others----Petitioners

Versus

JUMA GUL and 7 others----Respondents

W.P.No.2190-P of 2014(M), decided on 20th November, 2014.

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

----S. 12(2)---Fraud and misrepresentation---Proof---Compromise effected by special attorney without authorization---Validity---Trial court decreed suit on basis of statement of one of defendants, special power of attorney/one of legal heirs, and compromise deed executed between plaintiffs and said defendant---Other defendants, legal heirs, filed application under S.12(2), C.P.C., challenging consent judgment and decree---Trial court dismissed the application---Revisional court, setting aside judgment of trial court, directed the trial court to proceed with case from stage before disputed compromise---Validity---Special power of attorney transpired that defendant was not authorized either to effect compromise between parties or to submit compromise deed before trial court---Special power of attorney was meant only to take part in court proceedings regarding civil suit, and no authorization with regard to effecting of compromise had been provided therein---Contents of special power of attorney had to be strictly construed-Impugned judgment of revisional court was well reasoned and based on proper appreciation of evidence warranting no interference---Constitutional petition was dismissed in circumstance.

Muhammad Yousuf Siddiqui v. Haji Sharif Khan through his L.Rs. and others PLD 2005 SC 705 rel.

(b) Power of Attorney---

----Special power of attorney---Rules of construction---Contents of special power of attorney have to be strictly construed.

Muhammad Yousuf Siddiqui v. Haji Sharif Khan through his L.Rs. and others PLD 2005 SC 705 rel.

Hassan U.K. Afridi for Petitioners.

Nemo for Respondents.

Date of hearing: 20th November, 2014.

2016 C L C 831

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J.

KHAN BAZ and another----Petitioners

Versus

RANRA BAZ and 3 others----Respondents

C.Rs. Nos.328 of 2013 and 703 of 2014, decided on 5th October, 2015.

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

----Ss. 42, 39, & 54---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), Ss.53, 172 & 141---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, cancellation and permanent injunction---Rejection of plaint---Exclusion of jurisdiction of civil court in matter within jurisdiction of revenue officers---Question of title in property to be divided---Suit for declaratory decree by person aggrieved by entry in revenue record---Partition mutation, dispute as to---Jurisdiction of civil court---Determination---Consolidation of suit on same subject matter between same parties--- Requirement--- Plaintiffs filed suit for declaration and permanent injunction against their brothers claiming that they were owners-in-possession of suit property under partition mutation and sought demolition of house built on the suit property---Defendants also filed suit for declaration and cancellation regarding said partition mutation on ground that plaintiffs, in connivance with revenue officials had allocated disputed Khasra numbers in their lot and said partition mutation had been attested accordingly---Both suits were tried separately by different Trial Courts---Suit of plaintiffs was decreed by Trial Court but was dismissed by appellate court---Plaint of the suit filed by defendants was rejected by Trial Court under O.VII, R.11, C.P.C. on ground that under S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967, civil court had no jurisdiction to entertain the suit for cancellation of mutation which had been attested in the light of partition proceedings and proper forum for the same was revenue hierarchy; whereas, appellate court reversed findings of Trial Court and remanded the case for decision afresh on merits---Validity---Jurisdiction of civil court was ousted under S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967 only to the extent of correction of entries made by Revenue Officer in performance of its duties without touching rights of persons in land record or in record of rights---Mutation entries did not establish title, and if title of a party was under clouds, then, such party had every right to approach court of plenary jurisdiction for enforcement of its right under S.53 of the Khyber Pakhtunkhwa Land Revenue Act, 1967---Under S.53 of Khyber Pakhtunkhwa Land Revenue Act, 1967, any joint owner of land could file suit for declaration under Chap.VI, Specific Relief Act, 1877 for partition of his share in a jointly owned land---Under S.172(2) of Khyber Pakhtunkhwa Land Revenue Act, 1967, civil court would not exercise jurisdiction over any claim for partition or any question connected with or arising out of proceedings of partition, provided title was not denied by other co-sharers---Under S.141(1) of Khyber Pakhtunkhwa Land Revenue Act, 1967, in case question of title arose, Revenue Officer could either take cognizance of the question or stop partition proceedings and ask party to approach civil court to get resolution of the question as required under S.141(2) of the Act---Defendants' suit revolved around question of title, as they had claimed themselves to be owners of residential house, which was situated in Khasra numbers under disputed property---Disputed partition proceedings had been conducted in absence of defendants; their suit, therefore, could be filed in civil court---Plaintiffs had sought demolition of house of defendants, but they had not made the latter, party (to partition proceedings) nor had any notice been served upon them---Defendants' witnesses had deposed that house in question existed on disputed property for the last sixty years---Defendants' witnesses had also deposed that said house had been constructed jointly, and the same had devolved on defendants under private settlement---High Court, setting aside impugned judgments and decrees, remanded both the cases to Trial Court for decision afresh on merits after consolidation of both the suits---Revision petition was accepted accordingly.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 53, 141 & 172----Specific Relief Act (I of 1877), Ss.54, 42 & 39----Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaratory decree by person aggrieved by any entry in record---Rejection of plaint---Exclusion of jurisdiction of civil court in matter within jurisdiction of revenue court---Disposal of question of title in property to be divided---Plaint of the suit filed by defendants was rejected by trial court under O.VII, R.11, C.P.C. on ground that under S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967, civil court had no jurisdiction to entertain the suit for cancellation of mutation which had been attested in the light of partition proceedings and proper forum for the same was revenue hierarchy; whereas, appellate court reversed findings of Trial Court and remanded the case for decision afresh on its merits---Validity---Jurisdiction of civil court was ousted under S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967 only to the extent of correction of entries made by Revenue Officer in performance of its duties without touching rights of persons in land record or in record of rights---Mutation entries did not establish title and if title of a party was under clouds then such party has got every right to approach court of plenary jurisdiction for enforcement of its right under S.53 of the Khyber Pakhtunkhwa Land Revenue Act, 1967---Under S.53 of Khyber Pakhtunkhwa Land Revenue Act, 1967, any joint owner of land could file suit under Chap.VI, Specific Relief Act, 1877 for partition of his share in a jointly owned land---Under S.172(2) of Khyber Pakhtunkhwa Land Revenue Act, 1967, civil court would not exercise jurisdiction over any claim for partition or any question connected with or arising out of proceedings of partition, provided his title was not denied by other co-sharers---Under S.141(1) of Khyber Pakhtunkhwa Land Revenue Act, 1967, in a case of question of title, Revenue Officer could either take cognizance of the question or stop partition proceedings and ask party to approach civil court to get resolution of the question as required under S.141(2) of the Act---Revenue Officer had jurisdiction to entertain application for partition if land in question was agricultural, and in case of building or residential houses over the land, civil court has jurisdiction to entertain suit for partition.

(c) Legal Practitioner---

----Misconduct---Consolidation of suit on same subject matter by same parties--- Requirement---Professional misconduct on part of lawyer---Two suits filed against same subject matter by same parties were not consolidated and had been tried separately by different courts---Validity---Counsel were under duty to inform Trial Court about said fact or to file application for consolidation of the suits---Counsel had neither informed the trial courts nor had filed any such application, which amounted to professional misconduct.

Muhammad Amin Khattak Lachi for Petitioners.

Kamaluddin Khattak for Respondents.

Date of hearing: 5th October, 2015.

2016 C L C 866

[Peshawar]

Before Rooh ul Amin Khan, J

FAYAZ MUHAMMAD and 2 others----Petitioners

Versus

KIFAYATULLAH and another----Respondents

Civil Revision No.878-P of 2012, decided on 5th October, 2015.

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

----O. II, R. 2---Specific Relief Act (I of 1877), S.12---Agreement to sell---Recovery of sale amount---Subsequent suit with leave of the court---Bar of O.II, R.2, C.P.C.---Applicability---Constructive res judicata----Scope---Plaintiffs filed suit for grant of decree of specific performance of agreement to sell which was dismissed but they were allowed to file a fresh suit for recovery of sale amount---Plaintiffs instituted suit for recovery of sale consideration which was partially decreed concurrently---Contention of defendants was that suit was hit by principle of constructive res judicata---Validity---Appellate Court allowed the plaintiffs to file a fresh suit for recovery of sale amount---Findings of Appellate Court had attained finality as same were not challenged by the defendants---Plaintiffs had instituted the present suit with leave of the court---Present suit did not fall in the barring clause of O.II, R.2, C.P.C.---Order II, R.2, C.P.C. did not contemplate omission or relinquishment of any claim of the plaintiff with the leave of the court---Plaintiff had been precluded from bringing subsequent suit to claim the relief earlier omitted except where leave of the court had been obtained---Plaintiff could not vex defendant again and again by multiple suits except in a situation where one of the several reliefs though available to him had not been claimed for a good reason---Subsequent suit for such relief might be considered only with the permission of the court which should be granted upon due satisfaction and for good and sufficient reasons---Present suit was not hit by the principle of constructive res judicata---Revision was dismissed in circumstances.

(b) Appeal---

----Appeal was in continuation of proceedings.

Wajid Sattar for Petitioners.

Khanzeb Rahim for Respondents.

Date of hearing: 18th September, 2015.

2016 C L C 906

[Peshawar]

Before Nisar Hussain Khan and Muhammad Daud Khan, JJ

ALI STEEL INDUSTRY through Proprietor---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and another---Respondents

Writ Petition No. 2744-P of 2015 along with C.M. No. 1149-P of 2015, decided on 10th September, 2015.

(a) Khyber Pakhtunkhwa Environmental Protection Act (XXXVIII of 2014)---

----Ss. 17, 18(1) & Preamble----Constitution of Pakistan, Arts. 2-A, 9, 14, 199(1)(c) & 247---Environmental Protection Order---Penalties---Administration of Tribal Areas---Security of person---Inviolability of dignity of man etc.---Environmental Protection Agency served notice under S. 17 of Khyber Pakhtunkhwa Environmental Protection Act, 2014 upon the petitioner and directed him to stop all activities of his Mill immediately---Petitioner challenged the vires of the impugned order on ground that Khyber Pakhtunkhwa Environmental Protection Act, 2014 had not been extended to Provincially Administered Tribal Areas (PATA)---Validity---Petitioner's mill was situated in PATA, and, under Art. 247 of the Constitution, Environmental Protection Act, 2014 had not been extended to PATA, however the break or further non-extension of the environmental laws did not grant licence to any person to threaten the health or life of the locals by his actions/activities---Present case was not only in between the petitioner and the Agency, but the locals of the vicinity had also filed several complaints in that regard---Petitioner's mill was situated in a thickly populated area---Location of the mill showed that public's basic rights were also involved, which was a feature of the environmental assessment---High Court, in exercise of its jurisdiction under Art. 199(1)(c) of Constitution, might grant relief to the extent of stopping the functioning of factories, which created pollution and environmental degradation---Article 9 of the Constitution ensured safety against any attack or danger or apprehension on life of a person---Likelihood of any hazard to life by air pollution that was dangerous to human health and surrounding environment could not be ignored---Constitutional petition was dismissed in circumstances.

Mst. Shehla Zia v. WAPDA PLD 1994 SC 693; M.C. Mehta v. Union of India AIR 1988 SC 1115 and M.C. Mehta v. Union of India AIR 1988 SC 1037 ref.

(b) Khyber Pakhtunkhwa Environmental Protection Act (XXXVIII of 2014)---

----Preamble---Constitution of Pakistan, Arts.2-A, 9 & 14---Security of person---Inviolability of dignity of man etc.---'Right to life', meaning of---Environment right/environmental justice---Scope---Protection of environment is an inalienable right and perhaps more fundamental than the other rights, and the same emerges from the right to life, liberty and dignity under Arts. 9 & 14 of the Constitution---Right to life as enshrined under Art. 9 of the Constitution means a right to a healthier and cleaner environment---Environmental justice is an amalgam of the constitutional principles of democracy, equality, social, economic and political justice guaranteed under the Objectives Resolution, the fundamental right to life, liberty and human dignity given under Art. 14 of the Constitution, which includes the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine.

Mst. Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(c) Words and phrases---

----'Life'----Meaning and scope---Word 'life' under the American Constitution mentioned.

Oxford Dictionary and Black's Law Dictionary ref.

Shumail Ahmad Butt and Abdul Rahim Khan Jadoon for Petitioner.

Rab Nawaz Khan, A.A.-G. for Respondents.

Date of hearing: 10th September, 2015.

2016 C L C 928

[Peshawar]

Before Ikramullah Khan, J

ABDULLAH JAN and another----Petitioners

Versus

HUSSAIN and others----Respondents

C.R. No.357-B of 2011, decided on 11th November, 2015.

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

----S. 20(2) & Art. 148---Transfer of Property Act (IV of 1882), S.60---Suit for redemption of mortgage---Limitation---Prescription---Receiving usufruct from the mortgage property---Effect---Suit for redemption of mortgage was dismissed on the ground of limitation---Validity---Right of plaintiffs-mortgagors to redeem suit property after expiry of 60 years would not extinguish unless court of law had passed decree in favour of defendants-mortgagees---Suit for redemption of mortgage could be decreed after expiry of prescribed period of limitation as provided in Art. 148 of Limitation Act, 1908---Receipt of usufruct would give a fresh period of limitation to the mortgagor---Suit filed by the plaintiffs-mortgagors was within time---Impugned judgments and decrees passed by both the courts below were set aside---Suit filed by the plaintiffs was decreed preliminary---Plaintiffs should deposit mortgage money within specified period in the Trial Court---Revision was allowed accordingly.

Maqbool Ahmad v. Govt. of Pakistan 1991 SCMR 2063; Ahmad Khan and others v. Abdur Rehman and others 2009 SCMR 191; Bilawar Khan v. Amir Sabar Khan and others PLD 2013 Pesh. 38 and Muhammad Zahir and 3 others v. Amir Saleh and 4 others 2014 MLD 212 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could exercise revisional jurisdiction to do justice even if no revision was preferred by any party when any illegality or irregularity came in its notice.

(c) Administration of justice---

----No one could be penalized for any innocent omission.

Aslam Khan Alucham Khel for Petitioner.

Sardar Naeem Khan for Respondents.

Date of hearing: 11th November, 2015.

2016 C L C 1042

[Peshawar]

Before Waqar Ahmad Seth, J

MUSARRAT BEGUM and 2 others----Petitioners

Versus

Sayed IFTIKHAR HUSSAIN GILLANI and 2 others----Respondents

Civil Revisions Nos.864 and 1260 of 2005, decided on 16th October, 2015.

(a) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O.VI, Rr.1 & 5 & O.VIII, R.2--- Suit for partition---Pleadings---Scope---Gift---Evasive denial--- Maxim secundum allegata et probata, principle of---Applicability---Private partition---Plaintiffs were entitled to their shares in all the properties without any exception or reservation---Anything not specifically claimed in the pleadings could not be allowed to introduce in the evidence and if evidence was so recorded then same should be declared irrelevant---Written statement filed by the defendants was silent with regard to gift in their favour---Defendants had not asked for any permission for amendment with regard to such gift---Parties were bound by the averments made in the pleadings---Judgment could not be based upon the pleas not raised in the pleadings---Defendants had not availed the opportunity for better statement---Departure from pleadings could not be allowed---If statement of fact contained in the plaint was not specifically controverted in written statement and even an evasive answer was given then same would amount to admission---Plea could not be raised in evidence for not having been raised in written statement---Principle of secundum allegata et probata was applicable to the present case---Nothing was on record with regard to private partition between the parties---Judgments and decrees passed by both the courts below were set aside---Revision was allowed in circumstances.

Mehboob Alam and 2 others v. Province of the Punjab 2007 MLD 1496; Rafique Wadood and 4 others v. Messrs Haji Suleman Gowa Wala and sons 2009 CLC 1070; PLD 2007 Lah. 300; Messrs Choudhary Brothers v. Jaranwala Central Co-operative 1968 SCMR 804; 2005 SCMR 1174 and Binyameen and 6 others v. Chaudhry Hakim and another 1996 SCMR 336 rel.

(b) Islamic Law---

----Inheritance---Legal heirs would be entitled to their shares in all the properties of deceased without any exception or reservation.

(c) Pleadings---

----Anything not specifically claimed in the pleadings could not be allowed to introduce in the evidence and if evidence was so recorded then same should be declared irrelevant---Even the judgment could not be placed upon the pleas not raised in the pleading.

(d) Pleadings---

----Object---Purpose of pleadings was to let the other party know what case it had to meet and the facts which parties had to prove or establish the cause of action or the defendants to establish their defence.

(e) Maxim---

----Secundum allegata et probata---Scope---Maxim meant that a fact had to be alleged by a party before it was allowed to be proved and no party could be allowed to lead evidence with regard to plea which was not taken in pleadings and if evidence was led then same could not be considered as evidence in the case.

Maazullah Barkandi for Petitioners.

Ajmal Khan for Respondents.

Date of hearing: 16th October, 2015.

2016 C L C 1100

[Peshawar]

Before Syed Afsar Shah, J

AHMAD SHAH and another----Appellants

Versus

ISRAR-UD-DIN----Respondent

R.F.A. No.393 of 2010, decided on 24th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3 & Appendix B, Form 4---Limitation Act (IX of 1908), Art. 159 & S. 5---Summary suit on negotiable instrument---Application for leave to appear and defend the suit---Limitation---Condonation of delay---Application for leave to appear and defend the suit was dismissed being time barred---Contention of defendant was that he was not served in person and copy of plaint was not sent along with the summons---Validity---Proceedings under O.XXXVII, Rr.2 & 3, C.P.C. were summary in nature---Where defendant did not submit an application for leave to appear and defend the suit within prescribed time then allegations in the plaint should be deemed to have been admitted and suit decreed---Trial Court to ensure before decreeing the suit that the person proceeded against was not only served but was also aware of the nature of proceedings---Forms for plaint and summons to be served on the defendant for such proceedings had been prescribed and service of defendants had been made on Form 4 of Appendix B, C.P.C.---Copy of plaint was not sent along with the summons---Defendants were served on 07-07-2010 for 13-07-2010 and they ought to have filed their application for leave to appear and defend the suit within ten days of their service---Defendants were aware of the nature of suit---Application for leave to appear and defend the suit was filed after prescribed period of limitation---No application for condonation of delay had been filed---No satisfactory explanation had been given as to why defendants did not seek leave to appear and defend the suit within the prescribed period---Appeal was dismissed in circumstances.

Manzoor Ahmad v. Muhammad Iqbal 1994 SCMR 560; Muhammad Ashraf Parwaz v. Prof Asghar Ali Naz 1995 SCMR 45 and Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 rel.

Mohib Jan for Appellants.

Ghulam Jan Niazi for Respondent.

Date of hearing: 24th January, 2014.

2016 C L C 1133

[Peshawar]

Before Abdul Latif Khan, J

DEPUTY MANAGER PESCO WAPDA ABBOTABAD and 2 others----Petitioners

Versus

ALI MATCH (PVT.) LTD. and 9 others----Respondents

C.R. No.263 of 2008, decided on 10th April, 2015.

Civil Procedure Code (V of 1908)---

----O. XXIX, R.1---Suit for declaration, recovery and mandatory injunction---Authorization to initiate proceedings by corporation---Plaintiff filed suit for declaration that it was not liable to pay amount collected as fixed minimum charges and sought recovery of entire amount along with perpetual injunction---Electricity supply of plaintiff was disconnected as its unit remained closed but for restoration of electricity Electric Supply Company charged the consumer/plaintiff certain amount as fixed/minimum charges---Evidence produced by both parties established that no fixed/minimum charges could be claimed from plaintiff---Suit was partially decreed and appeal against by Electric Supply Company was dismissed---Revision was filed by Electric Supply Company and preliminary objection was raised to the effect that petition was not filed by the Supply Company being a body corporate---Validity---Evidence produced by plaintiff was confidence inspiring and demand made by Electric Supply Company from plaintiff was without legal backing---Proceedings on behalf of a company even by a person incharge was not competent, unless authorized by resolution passed by Board of Directors, in a meeting of Directors duly convened---Non-placing of any resolution or authorization on record necessary for initiation or contest the proceedings by or against company did not deserve any consideration on legal plane---Revision was dismissed.

Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 rel.

Muhammad Zeb Tanoli for Petitioners.

Abdur Rehman Qadir for Respondents.

Date of hearing: 10th April, 2015.

2016 C L C 1140

[Peshawar]

Before Muhammad Daud Khan, J

ISAM JAN----Petitioner

Versus

KHALID IQBAL----Respondent

Civil Revision No.188-B of 2014, decided on 15th July, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 5 & 13---Pre-emption suit---Alienation of land through gift deed to avoid pre-emption---Burden of proof---Scope---Plaintiff filed suit against defendants regarding property which was gifted away to the latter by donor---Plaintiff alleged in his suit that transaction was sale in disguise of gift which was purported to damage his pre-emption right--- All witnesses produced by plaintiff along with his own deposition did not mention payment of consideration ---Statement of witness produced in defence categorically affirmed the transaction as gift which was not assailed in cross-examination---Trial Court dismissed the suit on ground that plaintiff had failed to establish his claim that transaction was not a gift but a sale and he had also failed to establish performance of Talbs---Appellate court affirmed the finding of Trial Court---Validity---To prove a gift to be a sale, plaintiff had to satisfy judicial conscience of court through cogent and convincing evidence---Statement of defendant not questioned in cross examination would also be deemed to be correct---Plaintiff had challenged gift on basis of circumstances presumptive in nature but to prove the same plaintiff did not make any effort---Mere assertion of plaintiff in plaint could not shift burden to defendant---Gift was to be considered as genuine even if made to avoid pre-emption because a device to avoid pre-emption was permissible provided it was not a disguise.

Muhammad Zaheer Ahmad v. Tariq Mehmood and another 2007 SCMR 1275 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Different dates of performance---Material contradiction---Informer, evidence of---Pleadings before court and informer produced by plaintiff mentioned different dates of performance of Talb-e-Muwathibat and Talb-e-Ishad---Effect---Such contradiction being a material one was sufficient to disentitle preemptor to exercise of right of pre-emption.

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

----S. 115---Revisional Jurisdiction of High Court---Scope---Concurrent findings of courts below---High Court, in revisional jurisdiction could not set aside concurrent findings of facts recorded by courts of competent jurisdiction unless those findings were shown to be patently illegal, without jurisdiction or result of bare misreading or non-reading of evidence.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 Attiqur Rehman and another v. Muhammad Amin PLD 2006 SC 309 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Abdul Jabar Khattak for Petitioner.

Muhammad Umer Khattak for Respondent.

Date of hearing: 15th July, 2014.

2016 C L C 1255

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Malik Manzoor Hussain, J

MUHAMMAD SAREER KHAN and 10 others----Petitioners

Versus

ARBAB SULTAN MUHAMMAD and 6 others----Respondents

Writ Petition No.2527 of 2010 with I.R. with C.M. No.273-P/2014, decided on 15th October, 2014.

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

----S. 9---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Suit for possession of immovable property---Co-sharer---Scope---Suit property was purchased by the plaintiffs from the suit khata through registered deed---Mutation was attested in favour of plaintiffs (of the share of land purchased by them) and entry was made in Khasra Girdawari---Co-sharer in exclusive possession of joint portion of property for a long period could not be dispossessed by another co-sharer except by filing a suit for partition---Possession of plaintiffs was supported by long standing entries---Vendors of defendants were not in possession of the property when they transferred the same in their favour---Defendants had stepped into the shoes of their vendors who were not in possession of suit land when property was sold out to them---Defendants were not entitled to interfere in the possession of plaintiffs without due course of law as their vendors were not in possession of the said land---Defendants had no right to take the law in their hands and to take forcible possession under the garb of mutation---Defendants were bound to seek remedy before the court of competent jurisdiction on the basis of sale deed---No one else including other co-owners had any right to dispossess the plaintiffs by show of force---Present suit was rightly filed and decreed by the courts below after dispossession of plaintiffs which was not in accordance with law---Constitutional jurisdiction could not be converted into appellate jurisdiction---High Court could not constitute itself as a court of appeal for the purpose of examining factual controversy which had already been adjudicated upon by competent court of law---Constitutional petition was dismissed in circumstances.

Abdul Wahid Mirza v. Vth Additional District Judge (South) Karachi and others 1989 CLC 957; Muhammad Amin and others v. Karam Dad and other 69 IC 671; Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pak) 9 and Kutijan Bibi v. Zulmat Khan and others PLD 1968 Dacca 172 rel.

(b) Co-sharer---

----Co-sharer in exclusive possession of joint portion of property for a long period could not be dispossessed by another co-sharer except by filing a suit for partition.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction could not be converted into appellate jurisdiction---High Court could not constitute itself as a court of appeal for the purpose of examining factual controversy which had already been adjudicated upon by competent court of law.

Ghulam Mohy Uddin Malik for Petitioners.

Shahbaz Khan for Respondents.

Date of hearing: 15th October, 2014.

2016 C L C 1277

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

SOHAIL AFSAR----Petitioner

Versus

ABDUL REHMAN----Respondent

C.R. No.267-A of 2012, decided on 18th May, 2015.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Ishhad, performance of---Requirements---Plaintiff had failed to produce acknowledgement-due card showing delivery of notice of Talb-i-Ishhad nor could produce truthful witnesses of said notice---Inconsistencies/contradictions in the statements of plaintiff and attesting witnesses of Talbs would show that one of them was not telling the truth---Both the witnesses of Talb-i-Ishhad should be truthful witnesses---Plaintiff, in circumstances, had failed to fulfill the requirements of 'talbs' prescribed in the law of Pre-emption---Pre-emptor was bound to send notice of Talb-i-Ishhad under registered cover acknowledgement-due to the vendee---Non-production of acknowledgement due card and non-examination of postman would render notice of Talb-i-Ishhad defective and same would disentitle the pre-emptor to decree for possession through pre-emption---Revision was dismissed with costs.

PLD 2011 Pesh. 116; PLD 2007 Pesh. 93; 2007 SCMR 1105; 2007 SCMR 1117 and 2013 YLR 1638 rel.

Fida Bahadur for Petitioner.

Malik Mehmud Akhtar for Respondent.

Date of hearing: 18th May, 2015.

2016 C L C 1322

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

KHANZEB----Petitioner

Versus

CENTRAL GOVERNMENT through Secretary of Defence, Islamabad and 3 others----Respondents

C.R. No.66-A of 2012, decided on 13th April, 2015.

Cantonments Act (II of 1924)---

----S. 273---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Notice under Section 273 of Cantonments Act, 1924---Scope---Plaintiff filed suit wherein he challenged the notice requiring him to remove encroachment on Cantonment Board path---Contention of plaintiff was that he had made no encroachment as alleged in the impugned notice---Suit was dismissed concurrently---Validity---Section 273 of Cantonments Act, 1924 barred a suit against Cantonment Board for any act done or purporting to have been done in pursuance of the Act or any Rule or bye-law made thereunder until expiration of two months after notice in writing had been left at the office of the Board---Cause of action and nature of relief sought should be stated in the said notice---Plaint should contain a statement that notice had been so delivered or left---Delivery of such notice containing the details was sine qua non for institution of suit against Cantonment Board---Suit for declaration even with prayer of injunction as ancillary relief would not be maintainable unless declaratory relief was dropped and suit confined to relief of injunction only---No notice had been placed on record/file so as to make the suit against Cantonment Board maintainable---Suit of plaintiff was liable to be dismissed on this score alone---Suit was not maintainable as negative declaration had been sought in the same---Khasra number in question was path and present suit was filed only after receipt of notice for removal of encroachment---Path existed with revenue record was no more in existence on ground---Plaintiff had encroached upon the path and included the same in his house---Cantonment Board was well within its right to serve the plaintiff with notice for removal of encroachment in the light of demarcation---Findings recorded by the courts below were based on proper appreciation of evidence and sound reasoning---Revision was dismissed with costs.

Haji Abdus Sattar Kotriwalla v. The Cantonment Board, Hyderabad and another 1988 CLC 1182 rel.

Haji Ghulam Basit for Petitioner.

Aurangzeb Mughal, D.A.G. for Respondent No.1.

Haji Muhammad Yousaf for Respondents Nos.2 and 3.

M. Ashfaq Lodhi for Respondent No.4.

Date of hearing: 13th April, 2015.

JUGMENT

QALANDAR ALI KHAN, J.---This revision petition by Khanzeb, petitioner, calls in question judgment and decree of the learned Additional District Judge-VII, Abbottabad, in Appeal No.22/13 dated 20.10.2011, whereby judgment and decree of the learned trial Court/ Civil Judge-XII, Abbottabad, dated 25.11.2010 was upheld/maintained. The petitioner prayed for acceptance of the revision petition and setting aside the judgment and decree of both the Trial as well as appellate Courts.

1. The facts leading to the instant revision petition, briefly stated, are that the petitioner had lodged a suit for declaration and perpetual injunction thereby challenging notice dated 19.08.2000 requiring him to remove encroachment on Cantonment Board path; on the ground that he had constructed his residential house on Khasra No.2146 situated in Sheikh-ul-Bandi after securing approval of construction plan from Cantonment Board and had made no encroachment upon Khasra No.2151/1, as alleged in the impugned notice. Moreover, respondents/ defendants were not owners in possession of Khasra No.2151/1 which was 'Shamilat deh' and petitioner/plaintiff was one of the co-owners.

2. In his plaint, the petitioner/plaintiff further averred that at the behest of some interested persons, the Cantonment Board Authorities had served him with notice for removal of encroachment on the said Khasra number, therefore, he had lodged suit in the Civil Court, but due to some formal defect the suit was withdrawn with permission to file fresh suit, hence the subsequent suit on the plea that the petitioner/plaintiff had raised construction on his own property/land after approval of the plan by the concerned authorities in the Cantonment Board and that claim of the respondents/defendants that the petitioner/plaintiff had encroached upon the path of the Cantonment Board was totally wrong and baseless as neither Khasra No.2151/1 was acquired nor any demarcation of the said khasra number had taken place so as to justify the notice for removal of alleged encroachment on the said property.

3. The suit was resisted by respondents/defendants who submitted their separate written statements, wherein they contended that though construction plan of the petitioner/plaintiff was approved for raising construction on Khasra No.2146 but the petitioner/plaintiff had encroached upon Khasra No.2151/1 which was Cantonment path, therefore, on the complaint of local inhabitants regarding blockage of the path by the petitioner/plaintiff, which was verified through revenue officials, the petitioner/plaintiff and other persons who had encroached upon the cantonment path, according to the demarcation carried out by revenue officials, were served with notice for removal of encroachment.

4. The pleadings of the parties were reduced to as many as 9 issues, where after the parties led their respective evidence, and the learned trial Court/Civil Judge-XII, Abbottabad, eventually dismissed the suit vide judgment and decree dated 25.11.2010. Aggrieved of the order of the learned trial Court, the petitioner preferred appeal, which, too, met the same fate, and was dismissed by the learned appellate Court/Additional District Judge-VII, Abbottabad, vide the impugned judgment dated 20.10.2011; hence this revision petition, inter alia, on the grounds that the respondents were neither owners nor occupiers of the suit Khasra number, therefore, the impugned notice was baseless and issued with mala fide intention at the behest of respondent No.4. The petitioner also questioned entries in favour of respondents regarding suit khasra number in the revenue record, and stressed that the impugned judgments without spot investigation, had no basis at all. The petitioner claimed that report of the Girdawar, Imdad Hussain, was over looked, which rendered the impugned judgments void, wrong and against the principles of natural justice.

5. Arguments of learned counsel for the petitioner, standing counsel for Cantonment Board/respondents Nos.1 to 3 and learned counsel for private respondent No.4 heard, and record perused.

6. Admittedly, this is a suit against Cantonment Board, and Section 273 of the Cantonment Act, 1924, specifically bars a suit instituted against a Cantonment Board for "any act done, or purporting to have been done, in pursuance of the Act or any Rule or bye law made thereunder, until the expiration of two months after notice in writing has been left at the office of the Board", stating therein "explicitly the cause of action, the nature of the relief sought" etc. and further the plaint shall contain "a statement that such notice has been so delivered or left". In other words, delivery of requisite notice containing the aforementioned details is a sine qua non for institution of a suit against a Cantonment Board under the above referred section of, law; and a suit for declaration even with prayer of injunction as ancillary relief, unless declaratory relief is dropped and suit is confined to relief of injunction only, would not be maintainable in the light of judgment in the case of Haji Abdus Sattar Kotriwalla v. The Cantonment Board Hyderabad and another reported as 1988 CLC 1182 (Karachi).

7. The record would show that though a vague reference to the requisite notice has been made in Para No.6 of both the original and amended plaints, but, let alone proof of leaving the notice at the office of Cantonment Board, even the notice has not been placed on record/file so as to make suit against Cantonment Board maintainable under the above referred mandatory provision of law. Therefore, suit of the plaintiff was even otherwise liable to be dismissal on this score alone.

8. On merits too, the suit was not sustainable, as negative declaration was sought to the effect that the Cantonment Board had no right, whatsoever, in respect of the suit khasra number, but the record, right from the settlement in the year 1904-05, showing the suit khasra number as a path, proved otherwise, and the petitioners/plaintiff was unable to prove to the contrary and establish on record that long standing entries in the revenue record did not reflect situation on ground, notwithstanding the fact that a suit in the year 2001 challenging therein long and consistent entries in the revenue record, only after receipt of notice for removal of encroachment, was even otherwise hopelessly time barred.

9. Even the report of Imdad Hussain, former Girdawar (PW.3), inforced the fact that a path existed all along in the revenue record since 1905-906, despite reporting that path was more in existence on ground, which fact was taken into consideration by both the Courts below and it was held by the learned appellate Court/Additional District Judge-VII, Abbottabad, in his impugned judgment, that after the path was encroached upon and included in the house of the petitioner/plaintiff, it was but natural that the path no longer existed and that the said witness, obviously, could not find :a path during his visit to the spot. The close relationship of the said Imdad Hussain with petitioner/plaintiff notwithstanding, even he could not come to the rescue of petitioner/ plaintiff in view of the overwhelming revenue record, together with statements of DWs, showing existence of the path for more than a century.

2016 C L C 1384

[Peshawar]

Before Muhammad Daud Khan and Muhammad Younis Thaheem, JJ

HAYAT MIR----Petitioner

Versus

GOVERNMENT----Respondent

Writ Petition No.1-B of 2000, decided on 11th December, 2014.

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

----Art. 148 & S. 3---Khyber Pakhtunkhwa Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.10---Constitution of Pakistan, Art.199---Constitutional petition---Redemption of mortgaged property--- Limitation---Land in question was mortgaged before the settlement of 1886-87 and remained mortgaged for more than 110 years---Application of petitioners for redemption was time-barred---Impugned judgments and orders passed by the Revenue Courts were based on proper appraisal of evidence on record---No illegality or material irregularity or any jurisdictional error was pointed out in the impugned judgments and orders---Constitutional petition was dismissed in circumstances.

Abdur Rehman and 12 others v. Muhammad Akram 1999 SCMR 100 distinguished.

Maqbool Ahmad v. Hakoomate-e-Pakistan 1991 SCMR 2063; Kata Mir and others v. Mst. Sho Begum and others 2003 SCMR 589 and Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 rel.

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

----S. 3---Bar of limitation---Scope---Action must be taken within the statutory time limit---Every suit instituted, appeal preferred or an application made after the period of limitation should be dismissed although limitation had not been set up as a defence---Court must dismiss the suit, appeal or application if it was hit by the statute of limitation whether parties had taken or not taken the objection to such suit, appeal or application being time-barred.

Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 rel.

Sher Muhammad Khan for Petitioner.

Saifur Rahman Khattak, Addl. A.-G. for Government

Salamat Shah Mehsood for Respondents.

Date of hearing: 11th December, 2014.

JUDGMENNT

MUHAMMAD DAUD KHAN, J.--- Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners Hayat Mir and others have challenged the judgments and orders dated 30-08-1995, 12-05-1999 and 15-08-1999 respectively passed by respondents Nos.3, 2 and 1, whereby the Revenue Courts rejected the application, appeal and revision of the petitioners for redemption of certain mortgaged property.

1. Facts shortly are that the predecessor-in-interest of the petitioners had mortgaged with the predecessor-in-interest of the respondents certain land bearing khasra Nos.2577, 2760,2762, 2757 and 2761 measuring 52 kanals situated in Village Chokara District Karak. Following the death of their predecessor-in-interest, the land devolved on respondents vide mutation No. 2898 attested on 6.6.1993.

2. The respondents contested the application by filing their written statement. The Collector Takht-e-Nasrati, Karak, after framing issues, recording pro and contra evidence and hearing arguments of the learned counsel for the parties, dismissed the application being barred by time. The appeal and revision petition were also dismissed being barred by limitation under Article 148 of the Limitation Act, 1908 (hereinafter called as the Act).

3. Aggrieved from the aforesaid judgments and orders of the revenue courts, the petitioners filed a W.P. No.01/2000 which was allowed by a Division Bench of the Peshawar High Court Peshawar. Resultantly, the impugned judgments and orders were declared as illegal, without jurisdiction and without lawful authority and of no legal effect and the petitioners, being lawful owners of the suit property, were declared entitled to redeem the same vide judgment dated 20.05.2003.

4. Not satisfied from the abovementioned judgment of this Court, the respondents challenged the same before the august Supreme Court of Pakistan in CPLA No.1798 of 2003, in which Leave to Appeal was granted by the Apex Court to consider the controversy between the parties. The leave granting order is reproduced as under:-

"It is, inter alia, contended that the redemption of the mortgage would be governed by the provision of Article 148 of the Schedule to the Limitation Act, 1908, which provides a period of 60 years from the date when the right to redeem or to recover possession accrues. In the case in hand, claim of the respondents was filed after more than a century without any explanation as to when the right to redeem or to recover possession under the mortgage had accrued to them. Tentatively, therefore, the view taken by the Revenue authorities appears to be correct and the view of the High Court suffers from misconception of law as the High Court laid much emphasis on application of the provision of section 28 of the Limitation Act, 1908, relating to the extinguishment of right to property by virtue of prescription and adverse possession, which was declared repugnant to injunctions of Islam by Shariat Appellate Bench of this Court in the judgment reported as Maqbool Ahmad v. Hakoomate-e-Pakistan (1991 SCMR 2063). It appeared that provision of section 28 of the Limitation Act were hardly attracted in the circumstances of the case while the High Court has not taken into consideration the legal implications of Article 148 (Supra).

Leave to appeal is, therefore, granted to consider whether the High Court was legally justified in allowing the Writ petition and setting aside the orders passed by the Revenue authorities in the exercise of their jurisdiction in the facts and circumstances of the case?."

However, with the consent of the parties, the august Supreme Court remanded the case to this Court for its decision afresh.

1. Mr. Sher Muhammad Khan, learned counsel for the petitioners contended that in the matter in hand the decision of the Shariat Appellate Court reported in Maqbool Ahmad's case (supra), being very much important, has declared Section 28 of the Act as null and void and against the Injunctions of Islam. According to the learned counsel, as the decision was given effect from 31.08.1991, while the redemption application was filed by the petitioners on 01.11.1993, therefore, it shall not be hit by limitation. The learned counsel for the petitioners further relied on the case titled Abdur Rehman and 12 others v. Muhammad Akram (1999 SCMR 100)

2. Mr. Salamat Shah Mehsood, learned counsel for the respondents, conversely opposed the arguments of the learned counsel for the petitioners and contended that the instant case of the petitioners, being barred by law, falls within the Schedule to Article 148 of the Act wherein the prescribed period for filing an application to redeem a mortgaged property is provided as sixty years. The learned counsel for the respondents also submitted that Article 148 of the Limitation Act does not come within the ambit of Maqbool Ahmad's case (supra). He further supported the judgments and orders of the revenue hierarchies.

3. We have considered the arguments advanced by the learned counsels for the parties and perused the available record.

9 In support of their contention, the petitioners produced Patwari Halqa as PW-1, who produced copies of the following record of the disputed property:

1. Goshwara and Jamabandi from 1903-04 to 1991-92 (Ex.PW.1/1);

2. Khasra Girdawari from Kharif 1989 to Rabbi 1994 (Ex.PW.1/2);

3. Aks Shajra-e-Kishtwar for the year 1974-75 (Ex.PW.1/3);

4. Naqsha-e-Tasweree (Ex.PW.1/4); and

5. Goshwara (Ex.PW.1/5).

The testimony of Patwari Halqa demonstrates that the disputed property was mortgaged before the year, 1903-04; though its khasra numbers remained different at different times. According to oral evidence given by Hayat Mir, petitioner, one Ali Khan Mir mortgaged the suit property with Mst. Khial Mina. The oral evidence further shows that Lal Mir was the legal heir of Mst. Khial Mina and the petitioners are the legal heirs of Khan Mir and La1 Mir. While wider cross-examination, Hayat Mir has testified that he got knowledge of the mortgage about 2/3 years; he does not know the names of all respondents, about the period for which the respondents in possession of the disputed property and the time when his grand father has passed away.

1. The respondents also produced their evidence in which they attempted to prove that the disputed property was purchased by his forefathers from Khan Mir, since long, residential houses have been constructed in the disputed property and that they challenged the entry of mortgage in a civil suit.

2. The above evidence shows that the suit land was mortgaged before the settlement of 1886-87 and remained mortgaged for more than 110 years. It also indicates that petitioners filed the claim under Section 10 of the West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964, for redemption of mortgaged land. Petitioners for the first time made an application for redemption before the Collector, Karak, on 01.11.1991 which was dismissed by the Collector on 30.08.1995, being barred by law under Article 148 of the Act. The said judgment and order was maintained by the Additional Commissioner, Kohat vide judgment and order dated 20.05.1999. The revision petition also met the same fate as it was dismissed by the Senior Member Board of Revenue, Khyber Pakhtunkhwa vide judgment dated 15.08.1995.

3. Learned counsel for the petitioners mainly argued that Section 28 of the Act has been declared as repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the august Supreme Court of Pakistan in Maqbool Ahmad's case. After having been declared as repugnant to the injunctions of Islam, no interpretation of any provision of the Statute can be adopted which may reintroduce the spirit of Section 28 of the Act afresh.

4. The pivotal question before this Court is that after repugnancy of Section 28 of the Act, can a mortgagee take shelter under Article 148 of the Limitation Act, enjoying possession of the mortgaged property for 60 years or more?

5. In Maqbool Ahmad's case Section 28 of the Act along with Article 144 of the Act was challenged but only Section 28 of the Act was declared repugnant to the injunctions of Islam whereas Article 144 of the Act was not touched at all. Later on, through amendment in Act No.II of 1995 Article 144 of the Act was omitted. Though the essence of Articles 144 and 148 of the Act was the same, but Section 148 of the Act was neither discussed in the judgment of Maqbool Ahmad's case nor omitted through the amendment. It follows that Article 148 of the Act is still intact. This question came up for consideration before the august Supreme Court of Pakistan in the case reported as "Kata Mir and others v. Mst. Sho Begum and others (2003 SCMR 589) wherein it has been held as under:-

"It may be noted that this Court in the judgment of Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2063) declared the provisions of section 28 of the Limitation Act as repugnant to the Injunction of Islam to the extent as it deals with extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. However, in this case the provisions of Article 148 of the Limitation Act relating to filing of the suit for possession through redemption was not discussed that is why for such reasons this Court in the case of Ismail (ibid) was held that if a mortgagor has not filed a suit for redemption within time he would lose his proprietary rights over the property and the mortgagee who is in possession of the mortgaged land by prescription would be deemed to be the owner of the property."

In light of the afore-discussion, we are of the considered view that the suit of the petitioners for redemption is badly time barred under Article 148 of the Act. The case relied upon by the learned counsel for the petitioners (1999 SCMR 100) is not relevant to the facts of the instant case as the referred case is the outcome of mortgagees suit for prescription.

1. The bar of limitation being embodied in the statute of limitation, it is a statutory requirement that an action must be taken within the statutory time limit and Section 3 of the Act provides a clog for every suit instituted, appeal preferred or an application made after the period of limitation shall be dismissed although limitation has not been set up as a defence.

2. The words 'although limitation has not been set up as a defence' provide clear cut indication of the statutory intention that it is not left to parties to take or not to take objection to the suit, appeal or application being time barred. Under the law, the Court must dismiss the suit, appeal or application if it is hit by the statute of limitation. Reliance is placed on Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167).

2016 C L C 1405

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

AMIR SIYAB----Petitioner

Versus

SHER BAHADAR KHAN alias TOTA and 4 others----Respondents

W.P.No.217-M of 2013, decided on 15th January, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 24---Constitution of Pakistan, Art.199---Constitutional petition---Pre-emption suit---Probable value, determination of---Procedure---Zar-e-soem, deposit of---Plaintiff mentioned sale price of land sought to be pre empted as Rs.6,00,000/- and as per direction of the court deposited 1/3rd of the said sale price---Defendants relied on an agreement to sell wherein sale between the parties was stated to have been effected at Rs.40,88,000/---Defendants filed application that plaintiff be directed to make up the deficiency in the sale price and deposit 1/3rd of the stated sale amount which was accepted---Validity---Trial Court had failed to apply its independent mind to the facts of the case---Impugned order had been passed in a mechanical fashion---Huge difference of sale amount as stated by the plaintiff and defendants was on record---Trial Court was bound to apply its independent mind---Prices alleged by both the parties were not based on any document to which presumption of correctness could be attached---Evidence was required to determine price of suit property alleged by both the parties---Both the courts below were bound to ascertain the probable market price of suit land by adopting the mode contemplated in S.24 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Impugned judgments passed by both the courts below were set aside and Trial Court was directed to ascertain the probable market value of suit property and direct the plaintiff to deposit 1/3rd of the price so fixed and then proceed with the case in accordance with law---Constitutional petition was allowed in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 24---Probable market value, determination of---Procedure---Probable market price of land pre-empted could be determined by ascertaining the price through one year average or by fixing tentative market price.

Saiful Malook Saif for Petitioner.

Abdul Wahid Khan and Amir Zaman Khan for Respondents.

Date of hearing: 15th January, 2015.

2016 C L C 1557

[Peshawar]

Before Lal Jan Khattak and Muhammad Daud Khan, JJ

MASAJIDIN and 5 others----Petitioners

Versus

Mst. DIL PAYAZ BEGUM and another----Respondents

W.P. No.423-B of 2014, decided on 19th November, 2014.

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

----S. 12(2)--- Constitution of Pakistan, Art.199--- Constitutional petition---Application under S.12(2), C.P.C. on ground of fraud and collusion---Dismissal of application after acceptance by revisional court-- Validity---Speaking judgment---Duty of court---Petitioner filed application under S.12(2), C.P.C. challenging judgment and decree of trial court on ground of fraud, connivance and collusion of respondents---Trial court accepted the application and set aside the judgment and decree, but revisional court dismissed the application---Validity---Revisional court dismissed the application overlooking original issues between parties and without giving any reason for its decision---Once an application under S.12(2), C.P.C. was admitted for full hearing and the same was not dismissed in accordance with prevailing facts and circumstance of case, impugned decree had lost its effectiveness and status---Trial Court having seized of matter had to decide each and every matter arising out of ancillary thereto---Courts of law were supposed to accept or discard claim of one party or another through speaking reasoned judgment, so that parties losing the case might go with the impression that it had been decided fairly, justly and in accordance with law and justice had actually and manifestly been done---Decision of revisional court was set aside--- Constitutional petition was allowed in circumstance.

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

----S. 12(2)---Application under S.12(2), C.P.C.---Admission of application---Effect---Once an application under S.12(2), C.P.C. was admitted for full hearing and the same was not dismissed in accordance with prevailing facts and circumstance of case, then impugned decree lost its effectiveness and status---Application under S.12(2), C.P.C. may be treated as civil suit.

(c) Administration of justice---

----Speaking judgment---Duty of court---Court of law is supposed to accept or discard claim of one party or another through speaking reasoned judgment, so that parties losing the case may go with the impression that it has been decided fairly, justly and in accordance with law and justice has been actually and manifestly done.

(d) Administration of justice---

----Adjudication of matter---Duty of court---Trial court having seized of matter has to decide each and every matter arising out of ancillary thereto.

Latif-ur-Rehman v. Haji Farman Ullah PLD 2014 Pesh. 1 rel.

Masood Iqbal Khattak for Petitioner.

Ghulam Mustafa Khattak for Respondents.

Date of hearing: 19th November, 2014.

2016 C L C 1585

[Peshawar (D.I. Khan Bench)]

Before Syed Afsar Shah, J

MEHRBAN---Petitioner

Versus

GHULAM HASSAN---Respondent

C. R. No.427-D of 2011, decided on 18th August, 2014.

(a) Malicious prosecution---

----Damages--- Prosecution of a criminal offence---Probable and reasonable cause---Scope---Plaintiff filed suit for damages on the ground that he was acquitted of the charge in FIR lodged by the defendant---Suit was dismissed concurrently---Validity---Prosecution of a criminal offence would only provide a cause for damages for malicious prosecution to the acquitted accused if the same was based on malice of the complainant and that too when the same was without any reasonable and probable cause---Son of the defendant, in the present case, was murdered for which he charged the plaintiff along with others---Investigation was conducted by the police and on completion of the same, complete challan was submitted---One of the accused, during investigation, had even made confession---No personal enmity existed between the parties prior to the occurrence---Prosecution on the part of defendant was more than reasonable---Mere acquittal from the charge would not confer any right on the plaintiff to sue the defendant for damages on the basis of malicious prosecution---Element of malice on the part of the defendant was missing in toto in the present case---Malice did not appear to be without any reasonable and probable cause---Both the courts below had rightly appreciated the case concurrently---Revision was dismissed, in circumstances.

Hussain Gul v. Soorat Shah and others 2014 MLD 1008 rel.

(b) Malicious prosecution---

----Elements to be taken into consideration enlisted.

Prosecution of a criminal offence would only provide a cause for damages for malicious prosecution to the acquitted accused if it is based on malice of the complainant, and that too when the same is without any reasonable and probable cause. In an action for malicious prosecution, the plaintiff has to prove that:-

(i) he was prosecuted by the defendant of a criminal charge;

(ii) the proceedings complained of terminated in his favour.

(iii) the defendant instituted or carried on such prosecution maliciously, or in other words the prosecution was instituted and carried on with a malicious intention;

(iv) there was absence of reasonable and probable cause for such proceeding; and

(v) he has suffered damage:

Balbhaddar Singh and another v. Badri Sah and another AIR 1926 PC 46; Naber Shaha v. Shamsuddin and others PLD 1964 Dacca 111; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; UBL and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 and Rafique Ahmad Khan v. Province of Punjab through Secretary, Education and others 2004 SCMR 1065 rel.

(c) Malicious prosecution---

----Meaning.

Malicious prosecution is an action instituted with intention of injuring defendant and without probable cause.

The meanings of malicious prosecution has been given as filing a law suit with intention of creating problems for the defendant such as costs, attorney's fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the law suit wins and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages.

A prosecution exists where criminal charge is made before a judicial officer or tribunal. A malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort, the prosecution must have been malicious and terminated in favour of the plaintiff.

Lectric Law Library Lexicon; Dustin Mark Ammons Attorney at Law; Legal Glossary; Law Dictionary and Halsbury's Law of England (Fourth Edition), Volume 45, Page 612, Para 1342 rel.

(d) Malicious prosecution---

----"Probable and reasonable cause"---Meaning.

Province of East Bengal and others v. S.M. Faruque and others PLD 1959 Dacca 268 rel.

Ghulam Hur Khan Baloch for Petitioner.

Allah Nawaz Khan for Respondent.

Date of hearing: 18th August, 2014.

2016 C L C 1600

[Peshawar]

Before M. Daud Khan, J

MULTAN KHAN----Appellant

Versus

GHAZNI KHAN and 13 others----Respondents

F.A.O. No.3 of 2012, decided on 30th March, 2015.

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

----S. 114 & O. XLVII, R. 4(2)---Appeal dismissed in limine---Review---Notice, requirement of---Trial court dismissed application filed under S.12(2), C.P.C., by respondents against ex parte decree---Appellate court dismissed appeal in limine for being time barred; against which respondents filed review petition on the ground that they had no knowledge regarding preparation of copy, as copy agency had not notified the date of preparation---Court accepting review application recalled its order and admitted the appeal for regular hearing---Contention raised by appellant was that appellate court had committed material irregularity by accepting review application as no notice had been issued to him---Validity---No notice to appellant was required under O.XLVII, R.4(2), C.P.C. as order which was sought to be reviewed had been passed in limine---High Court dismissed appeal for being without any substance.

Saleem Dil Khan v. Mirza Khan 1991 MLD 1006; Official Trustee of Bengal v. Benods Behari Ghose Mal AIR 1925 Cal. 114; Dr. M. Fazil Zahir and others v. Mst. Begum and others PLD 1966 (W.P.) Lah. 53 and Waheed Ahmad and others v. Additional Commissioner (Revenue)/Settlement Commissioner, Rawalpindi Division, Rawalpindi and others 1990 CLC 220 rel.

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

----S. 12(2)----Exclusion of time in legal proceedings---Preparation of copy, notice as to---Limitation, determination of---Copy agency has to notify to the party about date when copy is ready, and if such notice is not given then time requisite for obtaining copy would start when application for the same is made and ends when copy is delivered.

Shujahat Hussain v. Muhammad Habib and another 2003 SCMR 176 rel.

Ghafoor Ahmad Qureshi for Appellant.

Asad Jan and Naveed Ahmed for Respondents.

Date of hearing: 30th March, 2015.

2016 C L C 1616

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

MUHAMMAD UMAR KHAN----Petitioner

Versus

KHAN BAHADUR----Respondent

C.R.No.270 of 2011, decided on 4th December, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction on the basis of compromise---Scope---Defendant was arrested on the charge of murder of family members of plaintiff and compromise was executed whereby defendant undertook not to come to the village during his life time or else he would transfer his property in favour of plaintiff---Defendant violated terms of compromise deed after his acquittal and returned to the village and started living there---Validity---Condition imposed on the defendant in registered compromise deed was not enforceable in law---No condition could be imposed on defendant against his right of free movement and taking abode guaranteed by the Constitution---Compromise deed carried element of undue influence as defendant was confined in jail facing murder charge and had no other choice---Said compromise deed could not be held to be based on free will of defendant---Defendant had adequately compensated the aggrieved party by paying amount to the legal heirs of the deceased and had undergone imprisonment for ten years in addition to payment of compensation---Revision was dismissed with costs, in circumstances.

Muhammad Shoaib Khan for Petitioner.

Ghulam Mustafa Awan for Respondents.

Date of hearing: 4th December, 2014.

2016 C L C 1628

[Peshawar (Mingora Bench Dar-ul-Qaza) Swat)]

Before Haider Ali Khan, J

AMIR ZADA through L.Rs. and others----Petitioners

Versus

Haji AHMAD NOOR and others----Respondents

C.R. No.88-M of 2012, decided on 16th March, 2015.

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

----S. 42---Suit for declaration for shares in the Shamilat deh, common property of the village---Shamilat deh land---Scope---Plaintiffs were not entitled to any share in the Shamilat property or any joint right or profits thereof---Both the courts below had passed the impugned judgments and decrees after proper appreciation of evidence---No mis-reading and non-reading of evidence or unlawful exercise of jurisdiction had been pointed out by the plaintiffs---Revision was dismissed in circumstances.

PLD 2002 SC 200 PLD 2007 Lah. 583; PLD 1984 Pesh. 28; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 370 and Mst. Rehana Zeb v. Dr. Matwarra Hussain and others 2012 SCMR 685 rel.

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

----S. 115---Revision---Object---Revision was meant for correction of jurisdictional error and material illegalities or irregularities.

(c) Words and phrases---

----"Malikan-e-Qabza"---Meaning.

Law Lexicon and Malikan-e-Qabza by Sir James M. Douie rel.

Muhammad Zahir Khan for Petitioner.

Abdul Haleem for Respondents.

Date of hearing: 16th March, 2015.

2016 C L C 1637

[Peshawar (Mingora Bench (Dar-ul-Qaza) Swat)]

Before Muhammad Daud Khan, J

ZAHID KHAN and 6 others----Appellants

Versus

SHOAIB AHMAD and another----Respondents

R.F.A. No.58 of 2011, decided on 18th January, 2016.

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

----O. XVI, R. 1, O. XVIII, Rr. 2 & 4 & O. VII, R. 2---Money suit---Examination of a witness by the party whose name was not mentioned in the list of witnesses---Words "call" "produce" and "attendance"---Scope---Trial Court did not allow the defendants to get recorded statement of witness whose name was not mentioned in the list of witnesses---Validity---Witness produced by the parties in the court had to be examined by the court---Order XVI, R.1, C.P.C. was a technical one and court could not refuse to examine the witnesses on the ground that they were not mentioned in the list of witnesses---Court had discretion to allow the witnesses to be examined even if they were not mentioned in the list of witnesses---Party who wanted to produce such witness had to show good cause and court had to record reason if it allowed such witness to be examined---Present suit was bad for non-joinder of necessary parties---Impugned judgments and decrees passed by the courts below were set aside---Case was remanded to the Trial Court with the direction to allow the defendants to implead necessary party in the suit and give an opportunity to the defendants to record evidence of witness whose testimony was refused to be recorded---Appeal was allowed in circumstances.

Ghulam Murtaza v. Muhammad Ilyas PLD 1980 Lah. 495 and Ahmad Khan v. Nazir Ahmad and 3 other 1999 SCMR 803 rel.

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

----O. XVI, R. 1 & O. XVIII, Rr. 2 & 4---Examination of a witness by the party whose name was not mentioned in the list of witnesses---Scope---Witness produced by a party in the court could not be refused to be recorded for the reason that his name was not mentioned in the list of witnesses.

(c) Administration of justice---

----Every lis must be decided with reasons.

Abdul Halim Khan for Appellants.

Asghar Ali for Respondents.

Date of hearing: 18th January, 2016.

2016 C L C 1651

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

MUHAMMAD WARIS and 3 others----Petitioners

Versus

Malik ABDUL GHAFFAR----Respondent

C.R. No.248 of 2009, decided on 14th April, 2016.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Demands of talbs---Requirements---Two sale mutations were made but only one Talb-i-Muwathibat was performed with regard to both the sale transactions---Informer was son of pre-emptor---Evidentiary value---Plaintiffs filed two suits which were dismissed by the Trial Court but Appellate Court decreed the same---Validity---Pre-emptor was required to make Talb-i-Muwathibat with regard to each sale mutation/transaction---Nothing was on record that two separate demands of Talb-i-Muwathibat were made with regard to each of the two separate sale transactions---Contradiction in the statements of plaintiff and informer with regard to place where pre-emptor came to know the sale was on record---Informer being son of pre-emptor could not be treated as an independent and impartial witness for making Talb-i-Muwathibat---Postman who delivered the notice of Talb-i-Ishhad was not produced by the plaintiff to prove service of said notice---Pre-emptor had failed to prove service of notice of Talb-i-Ishhad in accordance with law---Talbs had not been performed in accordance with law and suits were liable to be dismissed---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

2011 CLC 899; 2014 CLC 864; 2014 CLJ 541; 2015 SCMR 311; 2014 UC 201 and 2011 CLC 899 rel.

Haji Ghulam Basit for Petitioners.

Muhammad Saleem Awan for Respondents.

Date of hearing: 14th April, 2016.

2016 C L C 1668

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

Syed NOBAHAR SHAH----Petitioner

Versus

Mst. SALMA BIBI and 4 others----Respondents

W.P. No.410-B of 2013, decided on 26th March, 2015.

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

----S. 5, Sched---Recovery of dower---Compromise was effected between the parties in the previous litigation wherein husband had admitted that 50 tolas of gold ornaments was fixed as dower---Husband had promised to return 11 tolas gold ornaments to the wife and remaining would be returned on her demand-Validity-Nothing was on record that husband had returned remaining gold or cash amount in lieu to the wife---Husband had failed to prove payment of remaining dower i.e. 39 tolas gold ornaments to the wife---Husband was bound to return the same to the wife-Constitutional petition was dismissed in circumstances.

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

5 & Sched.---Maintenance to wife and children---"Cruelty"--- Scope---Abusing, misbehaving and disrespecting would be cruelty---Wife might refuse to live with husband on the basis of "cruelty" and she would be .entitled to the maintenance allowance---Family Court had rightly fixed the quantum of maintenance allowance for the wife and her children---Decree for conjugal rights had been passed in favour of husband subject to payment of outstanding dower and maintenance allowance-Wife was not entitled for future maintenance upon refusal for re-union---Impugned judgment and decree passed by the Appellate Court were well reasoned---No illegality or irregularity had been pointed out in the impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed in circumstances.

Shahid Khan Bangash for Petitioner.

Haji Gul Diaz Khan Wazir for Respondents.

Date of hearing: 26th March, 2015.

2016 C L C 1715

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J.

ASIF SHAH and another----Petitioners

Versus

Mst. ATTAR BIBI and 11 others----Respondents

Civil Revision No.589 of 2013, decided on 21st December, 2015.

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

----Ss. 373, 375 & 383---Succession certificate, revocation of---Question of title---Determination of---Procedure---Nominee---Scope---Applicant moved application for revocation of succession certificate on the ground that deceased (her husband) had gifted her the saving certificates in his life time---Application for revocation of certificate was dismissed by the Trial Court but Appellate Court allowed the same and disputed amount was excluded from the succession certificate---Validity---Object of Succession Act, 1925 was to facilitate the collection of debt on succession and not to indulge the parties in litigation over the disputed question of title---Grant of succession certificate would enable the party to collect any debt or security belonging to the deceased but it did not determine question of title---Appellate Court had adopted wrong procedure---Nominee was the person to receive/collect the amount and would be legally bound for onward payment of the same to all of them who were legally entitled to receive the same according to shari shares---Nominee at the most could act as a facilitator for all those who were legally entitled to receive their shares in order of succession---Claim of applicant with regard to gift by her deceased husband was the question to be determined by a competent court of law---Impugned judgment passed by the Appellate Court was set aside and application for revocation of succession certificate was dismissed---Applicant if claimed to be exclusive owner of the amount so fixed/deposited by the deceased should establish her right through a court of law and legal heirs till then should have to furnish surety bond to the extent of their respective shares determined by the Trial Court in original succession certificate to the effect that in case applicant succeeded to establish her right then they would return the amount---Revision was allowed in circumstances.

Malik Safdar Ali Khan and another v. Public at large and others 2004 SCMR 1219 rel.

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

----Preamble---Scope---Object of Succession Act, 1925 was to facilitate the collection of debt on succession.

Barrister Babar Shahzad Imran for Petitioner.

Asghar Ali and Muhammad Safdar Khan S/Counsel along with Hameemullah, Asstt. Director (Legal) National Saving for Respondents.

Date of hearing: 21st December, 2015.

2016 C L C 1819

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

Mst. KARIM JAN----Petitioner

Versus

MUHAMMAD IQBAL----Respondent

Civil Revision No.15-A of 2013, decided on 4th May, 2016.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Limitation---Suit property was mortgaged with the plaintiff being occupancy tenant which was converted to his full ownership by operation of law---No period of limitation would run against wrong entries in record of rights---Such wrong entries could not either confer or extinguish proprietary rights of rightful owner in immovable property---Each and every wrong entry in periodical record would give fresh cause of action to the person against whom such entries were effected subject to condition that he was in possession on the property concerned---Revision had been filed after eight months and sixteen days period of limitation which could not be condoned on evasive grounds---Revision was dismissed in circumstances.

Province of Punjab through District Officer Revenue, Rawalpindi v. Muhammad Sarwar 2014 SCMR 1358; Hasnain Nawaz Khan v. Ghulam Akbar PLD 2013 SC 489; Azhar-ud-Din v. Aqeel Ahmad Khan 2002 SCMR 671 and Mst. Gohar Taja v. Sajid and others 2003 YLR 1994 rel.

(b) Administration of justice---

----Judicial proceedings--- Scope--- Judicial proceedings had presumption of genuineness and truth.

Ms. Farri Gill for Petitioner.

Ghulam Younis Tanoli and Haji Sabir Hussain Tanoli for Respondent.

Date of hearing: 4th May, 2016.

2016 C L C 1829

[Peshawar]

Before Muhammad Daud Khan, J

MEHMOOD KHALID KHAN and 3 others----Petitioners

Versus

MUHAMMAD IQBAL KHAN and others----Respondents

C.R. No.54-P of 2014, decided on 25th April, 2016.

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

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration----Closure of evidence---Scope---Statement of plaintiff was recorded and adjournment was sought for cross-examination but Trial Court dismissed the suit straightaway---Validity---Trial Court should have afforded an opportunity for production of evidence by imposing cost on the plaintiff or could close the evidence of plaintiff and direct the defendants to produce evidence---Trial Court was required to give issue-wise findings on the basis of available evidence on record and had no jurisdiction to dismiss the suit straightaway in a slipshod manner---Order XVII, R.3, C.P.C. did not provide that in case evidence was absent on a date then suit was to be decided against the party by way of penalty---Impugned orders passed by both the courts below were set aside and suit was restored---Case was remanded for recording rest of the evidence of plaintiffs without any adjournment---Revision was allowed accordingly.

Muhammad Aslam v. Nazir Ahmad 2008 SCMR 942 rel.

(b) Administration of justice---

----Law favours decision of a 'lis' on merits without making the technicalities of law as hurdles in the way of doing substantial justice.

Abdul Kabir Khan for Petitioners.

Muhammad Ajmal Khan for Respondents.

Date of hearing: 25th April, 2016.

2016 C L C 1867

[Peshawar]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

MUZAFFAR KHAN and 3 others----Appellants

Versus

GOVERNENT OF N.W.F.P. through Secretary Education, Peshawar and 2 others----Respondents

R.F.A. No.174 of 2008, decided on 27th January, 2016.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 4---Civil Procedure Code (V of 1908), O.XXVI, R.9---Reference---Enhancement of compensation---Criteria---Referee Judge enhanced compensation price with 6% interest---Validity---Notification under S.4 of Land Acquisition Act, 1894 was issued on 29-06-2002 whereas award was made on 21-07-2005---Future potential value and inflation in prices during intervening period between the issuance of notification and award was considered by the Referee Judge while determining rate of compensation but it was not clear as to how the amount had been determined---Schedule of average price for four years or for that matter even of one year were not only criterion for determination of amount of compensation but the "other material" brought on file was quite relevant to determine the correct amount of compensation for the acquired land---Amount to be paid to the owner for acquiring his land was not the price but the compensation which would always be higher than the price---Referee Court was bound to appoint local commission for determination of market value---Report of Local Commission was to be taken into consideration for determination of compensation---Average could not be relied upon in such like cases without appointment of local commission---Case was remanded to the Referee Court with the direction to appoint local commission to determine the status of property, location and future potentiality and decide the same afresh within specific period---Impugned judgment passed by the Referee Court was set aside---Appeal was allowed in circumstances.

Sher Muhammad Khan, Muhammad Ikram Khan and Muhammad Tariq for Appellants.

Sabir Shah, AAG and Muhammad Yar Malezai for Respondents.

2016 C L C 1916

[Peshawar (Abbottabad Bench)]

Before Abdul Latif Khan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA and others----Petitioners

Versus

ASIF ALI and others----Respondents

C.R. No.201-A of 2012, decided on 6th April, 2015.

(a) Counsel and client---

----Private counsel engaged by Government---Permissibility---Private counsel on authorization to act on behalf of Government---Recognized agent could appear and conduct case on behalf of Government---Government could authorize a person to act for, in suits by or against it---Advocate General though was an authorized agent of Government, however in peculiar circumstances, if private counsel was engaged, may appear and conduct cases on behalf of Government who was entitled to get assistance of counsel of its choice unless disallowed by law.

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

----S. 115---Revision---Scope---Only the satisfaction of revisional court regarding proper exercise of jurisdiction or exercise of jurisdiction illegally or with material irregularity by subordinate court wherein interference in revision could be made---Such was matter between revisional court and subordinate court and even if there was no petition on behalf of party, suo motu interference could be made when subordinate court had exercised jurisdiction not vested in it, or failed to exercise jurisdiction vested in it, or acted in exercise of jurisdiction illegally or with material irregularity---Court had supervisory powers to check illegality and irregularity and to see as to whether jurisdiction was exercised properly or otherwise.

Qazi Ghulam Rauf for Petitioner.

Qazi Obaidur Rehman for Respondents.

2016 C L C 1928

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khatak and Qalandar Ali Khan, JJ

GUL SHEREEN BIBI----Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior and 5 others----Respondents

W.P. No.669-A of 2015, decided on 18th February, 2016.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18(3)---Power to cancel, impound, confiscate National Identity Card----Petitioner challenged the cancellation of her CNIC by NADRA---Other family members of the petitioner had been issued CNIC's; however, the petitioner and her brother had been deprived of the same---Section 18(3) of National Database and Registration Authority Ordinance, 2000 provided the forum of appeal, obliging an aggrieved person to appeal to the Federal Government against the order and the decision of cancellation, impounding and confiscation of CNIC within thirty days of the order---High Court, having converted the Constitutional petition filed by said brother of the petitioner on the same subject into appeal, had already sent the same to the Secretary, Ministry of Interior for redressal of his grievance, and the appeal had been decided in his favour---High Court, therefore, converting present constitutional petition, sent the same to the authorities for redressal of the grievance of the petitioner within one month taking into consideration the decision of said appeal of her brother---Constitutional petition was disposed of in circumstances.

S. Sajjad Hassan Shah for Petitioner.

Aurangzeb Mughal, D.A.G. for Respondents.

2016 C L C 533

[Balochistan]

Before Muhammad Noor Meskanzai, C.J.

RASHIDA----Petitioner

Versus

GHOUS-UD-DIN and 8 others----Respondents

Civil Revision No.197 of 2013, decided on 30th October, 2015.

(a) Islamic Law---

----Gift---Ingredients---Donor, an illiterate lady---Attorney of donor gifted share of sister in favour of brother during pendency of suit for declaration, partition, possession, injunction etc. and preliminary decree was passed---Contention of plaintiff was that her counsel had not properly assisted her---Validity---Impugned gift deed executed by the attorney did not have prerequisites and essentials of a gift---Neither there was offer of gift by the donor nor acceptance of the same by the donee and possession had also not been delivered to the donee---Gift made by the attorney was also beyond the powers conferred upon the attorney---Specific clause of conferment of power making gift by the attorney must be mentioned in the power of attorney---No such power was ever conferred upon the attorney in the present case---Impugned gift/compromise deed was frivolous, fictitious, fabricated, unauthorized and an illegal document---Preliminary decree passed by the Trial Court had no legal weight in circumstances---Plaintiff was entitled for her legal share in the suit property---Impugned preliminary order/decree passed by the Trial Court was set aside and suit was decreed---Collector (Revenue) was directed to distribute the property of deceased to all the share holders including the plaintiff in accordance with shari shares---Revision was allowed in circumstances.

2005 SCMR 1368; 2006 CLC 1893; PLD 1990 SC 1; PLD 2010 SC 582; PLD 2005 SC 705; and PLD 1996 SCR 193 ref.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Mst. Bandi v. Province of Punjab and others 2005'SCMR 1368 and Mst. Parsan Bibi and another v. Mst. Razia Bibi and 10 others 2006 CLC 1893 rel.

(b) Islamic Law---

----Inheritance---Property would devolve upon the legal heirs without any intervention of court and clergy the moment propositus died.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Suban v. Allah Ditta and others 2007 SCMR 635 rel.

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

----S. 115---Preliminary consent decree---Revision without filing of appeal---Competence---Consent decree was not appealable and non-filing of appeal against the said preliminary decree was no bar for filing revision petition.

1989 SCMR 1826; PLD 1980 SC 45; AIR 1974 SC 1069 and Registrar, High Court of Balochistan v. Abdul Majeed and 3 others PLD 2013 Bal. 26 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional powers were supervisory in nature and matter would remain between the High Court and court subordinate to it---Where an order/judgment suffered from inherent jurisdictional defect or was void and no appeal had been preferred even then High Court could exercise revisional jurisdiction---Non-mentioning of date of decree would not affect revisional jurisdiction of High Court.

N.W.F.P. Govt. v. Abdul Ghafoor Khan PLD 1993 SC 418 and Ghulam Hussain and others v. Faiz Muhammad and others PLD 1991 SC 218 rel.

(e) Power of attorney---

----Alienation of property---Gift---Scope---Power of attorney by its description does not include the power to make gift, alienate or dispose of the property of the principal, unless specific and exhaustive clause was mentioned in it.

Mujeeb Ahmed Hashmi, Khushal Khan Kasi and Gul Hassan Tareen Amicus Curie for Petitioner.

Malik Azmatullah and Ghaus-ud-Din for Respondents.

Date of hearing: 18th September, 2015.

2016 C L C 609

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD IBRAHIM----Appellant

Versus

NIAZ MUHAMMAD----Respondent

F.A.O. No.81 of 2012, decided on 16th November, 2015.

West Pakistan Rent Restriction Ordinance (VI of 1959)---

----Ss. 13, 2(c) & 2(i)---Ejectment of tenant---Default in payment of rent---Personal bona fide need of landlord---Denial of relationship of landlord and tenant by tenant---Contention of tenant was that he was owner of demised premises and he had filed a suit for specific performance---Eviction petition was accepted by Rent Controller---Validity---Initial burden was on the landlord to establish his title as landlord, besides ownership of demised premises---Landlord was bound to prove status of tenant as of tenant---Evidence must exist that demised premises was in fact owned by the landlord which was rented out to the tenant and landlord received rent of the same---Once a tenant was always a tenant but landlord had to prove the status of tenant to seek eviction---Nothing was on record to prove that landlord was owner of the demised premises---Landlord had failed to prove that tenant had paid rent of the demised premises to him---Existence of mutation entries in the record-of-rights in favour of landlord were not sufficient in eviction proceedings as he had failed to establish relationship of landlord and tenant---High Court observed that parties should approach a court of competent jurisdiction to establish title in their favour to enable them to seek eviction or possession as the case might be---Impugned judgment passed by the Rent Controller was set aside and ejectment petition was dismissed---Appeal was allowed in circumstances.

Province of Punjab v. Abdul Ghani PLD 1985 SC 1; PLD 1996 Quetta 296 No judgment available on referred page; 1999 SCMR 2058 No judgment available on referred page; Kamaluddin v. Syed Muteebullah 2012 CLC 341; CLC 2012 Balochistan 890 No judgment found on the referred page and Liaqat v. Allah ud Din 2012 CLC 1104 ref.

Rehmatullah v Muhammad Ali 1983 SCMR 1064 rel.

Wali Khan Nasir for Appellant.

Behlol Khan Kasi for Respondent.

Date of hearing: 13th November, 2015.

2016 C L C 692

[Balochistan]

Before Muhammad Noor Meskanzai, C.J.

Haji ZAHIR ALI, ADVOCATE----Petitioner

Versus

XEN/EXECUTIVE DISTRICT OFFICER, PUBLIC HEALTH ENGINEERING DEPARTMENT KHARAN and 3 others----Respondents

Civil Revision No.397 of 2009, decided on 30th October, 2015.

Balochistan People's Local Government Ordinance (1 of 1972)---

----S. 74---Allotment of State land---Competence---Chairman, Town Committee not competent to allot state land---Plaintiff claimed that the suit land, which belonged to Public Health Department, had been allotted to him by Chairman Town Committee and he had been in possession of the same and that Chairman, Town Committee during his (plaintiff's) absence, had interfered in his possession---Both trial and appellate courts dismissed the suit---Question before High Court was whether the Town Committee had the authority to allot land measuring more than six hundred square feet---Under cl.4 of Notification dated 28th May, 1975 issued by Balochistan Government, application for allotment of land of Town Committee was to be referred to District Coordination Committee by Deputy Commissioner for obtaining NOC, which prerequisite was lacking in the present case---After issuance of the NOC, the case was to be referred to Secretary Local Government---Under cl.7 of said Notification, the only competent authority for making allotment was the Secretary Local Government---Other Notifications dated 31st July, 1975 and 7th August, 1975, also did not confer any power of allotment to the Chairman Town Committee---Documentary evidence produced by the plaintiff had although established allotment of the suit land but firstly, the procedure provided under Notification dated 28th May, 1975 had not been adhered to for the allotment, secondly, the Chairman Town Committee was not competent at all to issue any allotment order---Allotment in question issued by the Chairman Town Committee at any point of time was absolutely without jurisdiction, ab initio void and without lawful authority---Tehsil Nazim concerned had also addressed a letter to the court and categorically stated that no allotment whatsoever had been issued in favour of the plaintiff---High Court observed that Officials were under their prime responsibility to safeguard each and every inch of the State land allotted to Public Health Department---Revision petition was dismissed with cost in circumstances.

Mujeeb Ahmed Hashmi for Petitioner.

Shia Haq Baloch, AAG for Respondents.

Date of hearing; 30th October, 2015.

2016 C L C 932

[Balochistan]

Before Mrs. Syeda Tahira Safdar ad Muhammad Ejaz Swati, JJ

Mst. PARVEEN KHAN----Petitioner

Versus

ABDUL GHAFOOR and 2 others----Respondents

C.P. No.126 of 2015, decided on 19th January, 2016.

Islamic Law---

----Maintenance for wife---Principles---Wife had left the house of husband---For entitlement of maintenance, wife was bound to establish that she was turned out of the house by the husband---If wife succeeded to prove the same, she would be entitled for the maintenance---Wife had failed to establish that husband turned her out of his house or even maltreated her---Appellate Court had rightly held that wife had failed to establish that she left the house of her husband due to his cruel conduct to make her entitled for the maintenance---Benefit arising of the principles of maintenance to wife, could not be extended to her---Appellate Court had rightly allowed maintenance to the wife only for the Iddat period at the rate of Rs.3000/- per month---No error had been committed by the Appellate Court to be corrected---Constitutional petition was dismissed in circumstances.

Principles of Muhammadan Law Rules 277 and 278 ref.

Agha Nadir Shah for Petitioner.

Rajesh Kohli for Respondent No.1.

Date of hearing: 1st December, 2015.

2016 C L C 1465

[Balochistan]

Before Jamal Khan Mandokhail and Shakeel Ahmad Baloch, JJ

ABDULLAH JAN and another----Appellants

Versus

BIBI ALMAS BANO and 8 others----Respondents

Regular First Appeal No.34 of 2009, decided on 22nd February, 2016.

(a) Islamic law---

----Pre-emption---Suit for possession through pre-emption---Oral evidence produced by the plaintiffs did not give description of their property and property in question---Plaintiffs had failed to establish their entitlement to claim the property in dispute through right of pre-emption---Plaintiffs had not mentioned the exact date and time when they came to know about the factum of sale nor was there any mention of the date and time of performance of Talb-i-Muwathibat---Exact date and time of performance of Talb-i-Muwathibat must be clearly mentioned in the plaint which would be subject to confirmation by the witnesses---Talb-i-Muwathibat was not performed promptly and properly in the present case---Nothing was on record that plaintiffs had made a reference of Talb-i-Muwathibat before performance of Talb-i-lshhad which was a condition precedent---Trial Court should have considered such aspect of the case instead of decreeing the suit ex parte---Suit was decreed without properly appreciating the evidence by Trial Court which was an illegality---Impugned judgment and decree were not sustainable and set aside---Suit was dismissed.

Section 231 of the Mohammadan Law ref.

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

----O. V, R. 20---Substituted service---Requirements---Ex parte decree, setting aside of---Non-service of defendant due to incomplete and wrong address---Substituted service---Application for setting aside ex parte decree was dismissed by the Trial Court---Contention of applicants-defendants was that they were not served due to incomplete address---Validity---Plaintiffs were bound to provide complete address of the parties i.e. plaintiff and defendant in the plaint---Proper address of the defendants was not mentioned in the plaint nor plaintiffs pointed out the whereabouts of the defendants to the Process Server---Defendants were not served due to negligence of plaintiffs---Trial Court instead of compelling the plaintiffs to provide proper address of the defendants ordered substituted service---Substituted service could only be adopted when all efforts to effect service upon the defendants in ordinary course were made but failed---No report or statement of Process Server was on record to the effect that defendants were either avoiding service of summons upon them, or they could not be found for any reason---Non-service of defendants was due to incomplete and wrong address given by the plaintiffs---Trial Court had failed to follow the procedure provided by law before ordering substituted service---Trial Court before making order for publication of notice in press did not order affixation of a copy of summons at some conspicuous part of the house or place of business of defendants---Proper procedure for substituted service had not been adopted by the Trial Court, in circumstances---Appeal was allowed.

Haji Akbar v. Gul Baran 1996 SCMR 1703; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 and Messer AXLEPRODUCTS Limited v. Messer Allied Bank of Pakistan Ltd. 2011 SCMR 1469 ref.

(c) Pre-epmption---

----Talb-i-Muwathibat---Meaning.

(d) Pre-epmption---

----Talb-i-Ishhad---Meaning.

Muhammad Akram Shah for Appellants.

Muhammad Usman Yousafzai for Respondents.

Date of hearing: 30th November, 2015.

2016 C L C 1478

[Balochistan]

Before Muhammad Ejaz Swati, J

AZIZ JAN----Petitioner

Versus

AYAZ and others----Respondents

Civil Revision No.114 of 2014, decided on 13th May, 2016.

Specific Relief Act (I of 1877)---

----Ss. 12 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) & 79---Suit for specific performance and cancellation of mutation---Limitation---Agreement to sell---Proof---Procedure---Plaintiff was bound to prove execution of agreement to sell in accordance with law---Admission of co-defendant was not binding on the other even if made in the written statement---Limitation would run from the date of specific performance if mentioned in the agreement---Nothing was on record as to why suit was not filed during the lifetime of executant of agreement to sell---Agreement was required to be proved by two attesting witnesses of the same---Two attesting witnesses of agreement to sell had not been produced in the present case---Statement of scribe could not support the claim of plaintiff---No evidence was led to show that impugned mutations were fraudulently made---No evidence had been led to prove the allegation of fraud against revenue officer---Plaintiff had no locus standi to challenge the impugned entries of mutation on the ground of forgery and fraud---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Nawab Khan v. Said Karim Khan 1997 SCMR 1840 and Abdul Haq v. Mst. Surraya Begum 2002 SCMR 1330 rel.

Khushnood Ahmed and Abdul Nasir Kakar for Petitioner.

Syed Iqbal Shah for Respondents No.1, 1-b and 1-c.

Naseebullah Tareen for Respondent No.3.

Farooq Sarwar, Asst. A.G. for Respondent No.9.

Date of hearing: 20th April, 2016.

2016 C L C 1747

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ

SHER DIL----Applicant

Versus

Mst. SHARIFA and 2 others----Respondents

Civil Miscellaneous Application No.(S)4 of 2013, decided on 5th June, 2014.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr.17, 19 & S.151---Limitation Act (IX of 1908), Art.168---Dismissal of appeal for non-prosecution and lack of interest of appellant---Re-admission of appeal---Limitation---Invocation of S.151, C.P.C.---Scope---Re-admission of appeal was governed by O.XLI, R.19, C.P.C., and the limitation for re-admission fell under Art.168 of Limitation Act, 1908, which stipulated the period of thirty days---If appeal was dismissed under O.XLI, R.17(1), C.P.C., for default of appellant and application under R.19 of O.XLI, C.P.C., was not filed within the period prescribed by Art.168 of Limitation Act, 1908, inherent power under S.151, C.P.C., could not be invoked without sufficient cause and justifiable reason, particularly in an application which was barred by time---Application for re-admission of appeal, in the present case, was filed by the appellant with the delay of about fourteen months---Appellant had not been pursuing the remedy diligently, as no immediate steps were taken by the appellant for getting the appeal re-admitted, after obtaining the certified copy of dismissal order---Limitation, would create right in favour of the other side; law always favoured those who were vigilant and not those who were negligent in pursuing their remedy---No exception could be taken against the order of dismissal of appeal; application for re-admission of the appeal was dismissed being without any substance.

Khushi Muhammad v. Member Board of Revenue 2008 SCMR 358; Nowsheri Khan v. Saeed Ahmed Shah 1983 SCMR 1092 and Sindh Industrial Trading Estate v. West Pakistan Water and Power Development Authority PLD 1991 SC 250 ref.

Sindh Sugar Corporation Ltd. v. Messrs Maqbool Associates. Karachi 2008 SCMR 47 and Worldcall Telecom Ltd. v. Pakistan Telecommunication Authority 2011 SCMR 959 rel.

Hasnain Iqbal Minhas for Applicant.

Muhammad Saleem Lashari for Respondent.

Date of hearing: 22nd May, 2014.

2016 C L C 1936

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

HAZOOR BAKHSH and 2 others----Appellants

Versus

Mir NASRULLAH KHAN----Respondent

Regular First Appeal No.2 of 2010, decided on 25th May, 2015.

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

----S, 9 & O.II, R.2---Defamation Ordinance (LVI of 2002), Preamble--- Malicious prosecution--- Defamation--- Ingredients and proof---Scope---Publication of news item---Mental agony---Damages---Jurisdiction of Civil Court---Scope---Defamation Ordinance, 2002 did not contain any ouster clause or any overriding effect qua jurisdiction of civil court---Prior to promulgation of Defamation Ordinance, 2002 the tort of defamation was actionable before civil court of ordinary jurisdiction---Civil courts being courts of ultimate jurisdiction could try suits with regard to civil disputes unless their jurisdiction was expressly or impliedly barred---Suit for defamation was maintainable before the civil court of ordinary jurisdiction---Plaintiffs had not pressed their claim or remedy under the Defamation Ordinance, 2002 rather opted to file suit under S.9, C.P.C---Litigants could choose either of two statutory remedies i.e. as provided under the Defamation Ordinance, 2002 or the court of civil jurisdiction under S.9, C.P.C.---Hearsay evidence was not admissible under the law---Giving of any information with regard to commission of crime did not constitute defamation rather it was duty of every citizen to inform law enforcing agencies about commission of any crime---Originator, publisher or printer of material in question could be sued for damages but plaintiffs had not made any claim against them which would constitute relinquishment of claim---Plaintiffs had failed to prove that alleged application for registration of criminal case was filed by the defendant---Mere filing of application would not amount to malicious prosecution---Person claiming to have been injured must establish that his reputation had been diminished or his general reputation in the estimation of general public was tend to reduce him to ridicule due to unjust criticism and unnecessary hatred had been created against him; that his reputation suffered due to circulation of said news---Nothing was on record to substantiate the claim of defamation---Question of mental agony was required to be established through cogent and reliable evidence---Mere feeling of resentment in one's mind was not sufficient to establish mental agony---If a person claimed mental torture/agony or damage/injury to his reputation, initial burden would lie upon him to lead evidence on such point---Suit was rightly dismissed by the Trial Court---Appeal was dismissed in circumstances.

M. Musa v. Muhammad and others PLD 1968 SC 25 and Ch. Zulfiqar Cheema v. Farhan Arshad Mir PLD 2015 SC 134 rel.

(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 and that the proceedings had interfered with plaintiff's liberty and had also affected his reputation and plaintiff had suffered damages.

Niaz and others v. The State PLD 2006 SC 432 rel.

Ahsan Rafiq Rana for Appellants.

Nadir Ali Chalgari and Khurshid Anwar Khoso for Respondent.

2016 C L C 1473

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUHAMMAD ASHRAF----Appellant

Versus

FARZANA KOUSAR----Respondent

Civil Appeal No.89 of 2014, decided on 27th April, 2016.

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

----S. 5, Sched---Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976, S.5---Suit for recovery of bridal gift---Husband filed suit for recovery of bridal gifts in the shape of gold ornaments which was dismissed having no cause of action---Validity---No one was under any obligation to make a present to anybody else---Husband might give various benefits to the wife due to love or respect or to satisfy certain norms or etiquette but he was not bound to confer any benefit on the wife or pass on any gifts to her---No provision of law existed that might entitle the husband to recover bridal gift from his wife on divorce---Property given as a bridal gift to the bride as a present should be in the ownership of bride and her interest should not be restricted or limited---Family Court had no jurisdiction to entertain such suits---No illegality or irregularity had been pointed out in the impugned judgment passed by the Family Court---Appeal was dismissed in circumstances.

2008 CLC 1541 ref.

2014 MLD 1400 and 2014 CLC 87 distinguished.

(b) Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976---

----Preamble---Scope---Object of Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976 was not to recover bridal gifts or dowry but was to impose restrictions and limit the dowry and bridal gifts within a specified amount so that extravagance might be prevented and a sacred and necessary bond of marriage should not become a business or an affair of the rich---If such dowry and bridal gifts exceeded the amount then same was not liable to return.

(c) Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976---

----S. 2---"Bridal gift"---Meaning.

(d) Gift---

----Gift or benefit was in essence a bounty from one to another person---When ingredients of gift were completed, same would become irrevocable---When possession of gifted property was handed over to the donee, donor could not claim return or recovery of the same.

Rafiullah Sultani for Appellant.

Raja Muhammad Saghir Khan for Respondent.

2016 C L C 296

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

CHIEF ENGINEER SFD&KF (Saudi Fund for Development and Kuwait Fund), Upper Chatter Muzaffarabad and another----Appellants

Versus

RECENT CONSTRUCTION COMPANY, ISLAMABAD through Project Manager and 2 others----Respondents

Civil Appeal No.51 of 2015, decided on 7th July, 2015.

(On appeal from the judgment of the High Court dated 17-10-2014 in Revision Petition No.172 of 2014).

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

----O. VI, R. 17---Amendment of pleadings---Requirements---Amendment in pleadings to be liberally granted provided it did not alter the complexion of suit; proposed amendment was necessary for just decision and resolved real controversy between the parties; amendment application had not been filed with mala fide intention and by allowing the said application for amendment the case would not un-necessarily be prolonged---Plaintiff wanted to add further amount in the suit for work he had done later on and the material which he had collected for construction---Proposed amendment appeared to be just and necessary for avoiding the multiplicity of the proceedings---Party should be at liberty to add relief by way of amendment at the later stage which was available to him at the time of filing of suit---Appeal was dismissed in circumstances.

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

----O. XXXVIII, R. 5---Security, furnishing of---Scope---If the Trial Court was satisfied from affidavit, contents of plaint and the record that if decree was passed in favour of plaintiff, it would be difficult for him to recover the amount---Order for furnishing security was passed in a legal manner in circumstances.

AJ&K Council and 3 others v. Messrs Paidar Builders 2011 SCR 595 and Abdul Hameed v. Fazil Karim 2011 SCR 269 ref.

Mohiuddin Molla v. The Province of East Pakistan PLD 1962 SC 119 and Travel Agents Association of Pakistan v. M/s Skyline (Pvt.) Travels Ltd. 1992 CLC 1644 rel.

Abdul Rasheed Karnahi, Advocate for Appellants.

Sardar Pervaiz Akhtar, Advocate for Respondent No.1.

Date of hearing: 10th June, 2015.

2016 C L C 332

[Supreme Court (AJ&K)]

Present Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Civil Appeal No.325 of 2014

MUHAMMAD ZAHEER-UD-DIN BABAR----Petitioner

Versus

Mst. SHAZIA KOUSAR and another----Respondents

(On appeal from the judgment and decree of the Shariat Court, dated 11.02.2014 in Civil Appeals Nos.26, 26, 26 and 31 of 2013).

Civil Appeal No.326 of 2014

SHAZIA KOUSAR and another----Appellants

Versus

MUHAMMAD ZAHEER-UD-DIN BABAR----Respondent

(On appeal from the judgment and decree of the Shariat Court, dated 11-2-2014 in Civil

Appeals Nos.26, 26, 26 and 31 of 2013)

Civil Appeal No.327 of 2014

MUHAMMAD ZAHEER-UD-DIN BABAR----Appellant

Versus

Mst. SHAZIA KOUSAR----Respondent

(On appeal from the judgment and decree of the Shariat Court dated 11-2-2014 in Civil Appeals Nos.26, 26, 26 and 31 of 2013).

Civil Appeals Nos.325, 326 and 327 of 2014, decided on 2nd May, 2015.

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

----S. 5, Sched---Suit for dissolution of marriage, recovery of maintenance charges and dower---Cruelty---Scope---Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband---Cruelty had been proved by the wife in the present case---Husband had failed to point out any misreading or non-reading of evidence on the record---No illegality was pointed out in the judgment passed by the Shariat Court---Appeals were dismissed in circumstances.

Mst. Amreen v. Muhammad Kabir 2014 SCR 504; M. Saleem Ahmed Siddique v. Mst. Sabira Begum and others 2001 YLR 2329 and Muhammad Nazim v. Muneer Akhtar and 2 others 2015 YLR 1433 rel.

Khalid Yousaf Chaudhary, Advocate for Appellant (in Civil Appeal No.325 of 2014).

Ch. Muhammad Ilyas, Advocate for Respondents (in Civil Appeal No.325 of 2014).

Ch. Muhammad Ilyas, Advocate for Appellants (in Civil Appeal No.326 of 2014).

Khalid Yousaf Chaudhary, Advocate for Respondent (in Civil Appeals Nos.326 of 2014).

Khalid Yousaf Chaudhary, Advocate for Appellant (in Civil Appeal No.327 of 2014).

Ch. Muhammad Ilyas, Advocate for Respondent (in Civil Appeal No.327 of 2014).

Date of hearing: 29th April, 2015.

2016 C L C 493

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Civil Appeal No.83 of 2014

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 3 others----Appellants

Versus

MUHAMMAD YOUSAF and 10 others----Respondents

(On appeal from the judgment and decree of the High Court dated 29.01.2014 in Civil Appeal No.79/08)

Civil PLA No.142 of 2014

MUHAMMAD YOUSAF and 8 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 5 others

(On appeal from the judgment and decree of the High Court dated 29.01.2014 in Civil Appeal No.79/08)

Civil Appeal No.83 of 2014 and Civil PLA No.142 of 2014, decided on 14th May, 2015.

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

----Ss. 23, 24 & 4---Acquisition of land---Reference to court---Compensation, determination of---Criteria---High Court enhanced compensation to the extent of Rs.10,00,000/- per kanal along with 15% compulsory acquisition charges---Validity---Compensation could be determined by considering the sale deeds registered during the period of one year prior to the issuance of notification under Section 4 of Land Acquisition Act, 1894---Sale deed registered immediately after the issuance of notification under S.4 of Land Acquisition Act, 1894 and prior to the issuance of award were also relevant for determination of compensation---Market value of the land had to be considered while keeping in view the potential of the same for use of which said land might reasonably be put in future---Suit land, in the present case, was situated within the municipal limit of city---City was a hilly area and land owners were holding small pieces of land in the city---Sale deeds with regard to smaller pieces of land were relevant for determination of market value and compensation---Land was situated in the municipal limit and had potential to be utilized for the residential as well as commercial purposes---If land owners had sold land in the open market, they would have fetched higher price as compared to the one awarded by the Collector Land Acquisition---High Court had correctly assessed the market value and awarded the compensation---Appeal was dismissed in circumstances.

Faiz Akbar Khan and others v. Azad Government and others 1996 SCR 132; Azad Government and 2 others v. Mst. Razia Farooqi and others 1996 SCR 136 and Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project and 2 others 2013 SCR 1224 rel.

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

----S. 42(11)(d)--- Appeal to Supreme Court--- Maintainability---Application for conversion of appeal into petition for leave to appeal and vice versa---Limitation---Condonation of delay---Scope---Value of subject matter in the court of first instance and in the High Court was more than Rs.50,000/- and High Court had altered the judgment of court of first instance---When the value of subject matter in the court of first instance and High Court was not less than Rs.50,000/- and High Court had altered, varied or set aside the judgment and decree of the court immediately below, then direct appeal would lie in the Supreme Court---Appellant was bound to file application for treating the appeal as petition for leave to appeal soon after the announcement of impugned judgment or within a period of 60 days---No explanation had been furnished for filing application after four months of the announcement of impugned judgment---Appellant was negligent and he was not entitled for condonation of delay---Application for conversion of appeal into petition for leave to appeal and vice versa could only be entertained if same was filed within the prescribed period of limitation---No case for condonation of delay was made out by the appellant---Petition for leave to appeal was dismissed as filed incompetently.

Chief Administrator Auqaf (Nazam-e-Alla Auqaf) v. Sain Ghulam Ahmed and others 2013 SCR 715 distinguished.

Gulzar Hussain v. Azad Government through its Chief Secretary, Muzaffarabad and 3 others 2013 SCR 1043 and WAPDA and others v. Taj Begum and others 2014 SCR 588 rel.

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

----S. 42---Petition for leave to appeal---Limitation---Petition for leave to appeal could be filed within 60 days.

Mansoor Pervaiz Khan, Advocate-General for Appellants (in Civil Appeal No.83 of 2014).

Kh. Muhammad Nasim, Advocate for Respondents (in Civil Appeal No.83 of 2014).

Kh. Muhammad Nasim, Advocate for Petitioners (in Civil PLA No.142 of 2014).

Mansoor Pervaiz Khan, Advocate-General for Respondents (in Civil PLA No.142 of 2014).

Date of hearing: 7th May, 2015.

2016 C L C 1240

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD RAFIQUE CHAUDHARY and another----Appellants

Versus

MUHAMMAD YAQOOB JANJUA and 8 others----Respondents

Civil Appeal No.100 of 2014, decided on 23rd June, 2015.

(On appeal from the judgment of the Service Tribunal dated 31-12-2013 in Service Appeal No.1219 of 2012).

(a) Maxim---

----Audi alteram partem---Hearing based on principle of audi alteram partem was a fundamental right of every person and no one could be deprived of such right---No adverse order could be passed against a person who was not a party in the proceedings before any court or Tribunal.

Muhammad Khurshid and another v. Secretary Education Schools and 4 others 2011 SCR 175 and Khalid Ahmed Aqeel v. Member Board of Revenue and 3 others 2004 PLC (C.S.) 949 rel.

(b) Administration of justice---

----Relief could be granted to a party who had knocked the doors of the court.

Azad Government and another v. Khurshid Ahmad and another 2001 YLR 10 rel.

Sardar M. Habib Zia, Advocate for Appellants.

Meer Sharafat Hussain, Advocate for Respondents Nos.1 to 6.

Date of hearing: 8th June, 2015.

2016 C L C 1485

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD RASHEED alias MUHAMMAD RAFIQUE and 5 others

Versus

MUHAMMAD MUSHTAQ KHAN and 5 others

Civil Appeal No.88 of 2013, decided on 27th November, 2015.

(On appeal from the judgment and decree of the High Court dated 30.05.2013 in Civil Appeal No.109 of 2007).

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Shamilat deh land---Declaration could not be claimed on the basis of possession over the Shamilat deh land unless same was partitioned and specific certificate by the Collector was granted---Civil court having limited jurisdiction with regard to Shamilat deh land could not grant permanent injunction against all the share-holders who possessed the land in the estate---Legal proceedings could be initiated after partition of Shamilat deh land if anybody was in the possession of the land in excess of his share---Partition of Shamilat deh land, in the present case, had not been effected---Impugned judgments and decrees passed by the courts below were set aside as subject matter of decrees was Shamilat deh land---If share holder was in possession of land in dispute, he should not be dispossessed until and unless Shamilat deh land was partitioned---If after partition anybody was found in possession of the land in excess of his share then aggrieved party might approach the proper forum for redressal of his grievance---Appeal was disposed of in circumstances, Barkat Ali and another v. Sultan Mehmood and 18 other 2009 CLC 899 rel.

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

----S. 12---Shamilat deh land---Agreement---Scope---Decree for ownership with regard to Shamilat deh land on the basis of any agreement by a private person or cognovits could not be granted.

Raja Asmatullah Khan v. Qudratullah and another 2014 SCR 1537 rel.

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

----O. XXII, R. 2---Death of plaintiff---Non-impleadment of legal heirs---Effect---If legal heirs of deceased plaintiff were not arrayed as party, suit to his extent would automatically abate.

Zaffar Hussain Mirza, Advocate for Appellants.

Raja Saadat Ali Kiani, Advocate for Respondents.

Date of hearing: 26th October, 2015.

2016 C L C 1547

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram, JJ

GHULAM RABANI----Appellant

Versus

MUHAMMAD FIAZ and another----Respondents

Civil Appeal No.109 of 2012, decided on 19th November, 2014.

(On appeal from the judgment and decree of the High Court dated 20-3-2011 in Civil Appeal No.10 of 2010).

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

----O. XX, R. 14 & Ss. 148 & 107---Decree in pre-emption suit---Decretal amount, deposit of---Extension of time by the Appellate Court---Scope---Trial Court decreed the suit and directed the decree holder to deposit the decretal amount along with costs of sale deed within a period of one month otherwise suit would be deemed as dismissed---Decree holder filed appeal and interim injunction was issued---Appeal was dismissed and Appellate Court granted two months' time for deposit of decretal amount---Validity---Right of appeal was a statutory right of a party---Powers vested in the courts of original jurisdiction were also available with the appellate courts---Any period fixed or granted by the court for doing any act prescribed or allowed by Civil Procedure Code, 1908 including the period for depositing decretal amount could be enlarged from time to time---Application for extension of time could be entertained by the appellate court after expiry of time allowed by the trial court---Courts below had rightly passed the orders and no illegality had been committed---Appeal was dismissed in circumstances.

Khadim Hussain v. Muhammad Azam Satti 2007 CLC 404 and Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541 ref.

Maqsood Ahmed and others v. Member Board of Revenue, Punjab Lahore and others 2007 SCMR 399 and Javed Iqbal and 5 others v. Social Welfare Department and 5 others 2004 SCR 435 distinguished.

Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105 rel.

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

----O. IX, R. 9---Suit or appeal dismissed for default restored by order of the court---When any suit or appeal was dismissed for non-prosecution and subsequently was restored, the proceedings conducted in such suit or appeal before dismissal would also stand revived.

Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 rel.

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

----S. 148---Enlargement of time---Scope---Powers available under S.148, C.P.C. could be exercised by the court even without any application, suo motu or on an oral prayer.

Jahandad Khan v. Muhammad Arif Khan NLR 1991 CLJ 730 and Syed Iqbal Hussain Shah and 10 others v. Muhammad Naseem and another 2010 CLC 22 rel.

Abdul Aziz Ratalvi, Advocate for Appellants.

Ch. Muhammad Reaz Alam, Advocate for Respondent No.1.

Date of hearing: 19th November, 2014.

2016 C L C 1570

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

FAZAL HUSSAIN (deceased) through L.Rs.----Appellants

Versus

ALLAH RAKHI and 4 others----Respondents

Civil Appeal No.54 of 2015, decided on 23rd July, 2015.

(On appeal from the judgment of the High Court, dated 22.11.2014 in Writ Petition No.63 of 2012).

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

----S 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.32---Qanun-e-Shahadat (10 of 1984), Art.87---Writ petition before High Court---Requirements---Writ petition should be accompanied by an affidavit verifying the facts relied on, a certified copy of impugned order and at least two copies thereof including annexure if any---Petitioners had annexed photocopy of impugned order with the writ petition before the High Court---Photocopy of a document was not admissible in evidence---Writ petition without certified copy of impugned order was not maintainable---No illegality had been committed by the High Court---Appeal was dismissed in circumstances.

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

-----S. 44---Writ petition before High Court---Scope---Appeal from the judgment and decree of civil court would lay as of right before the next higher forum but writ petition would be competent when there was violation of law and rules.

Hafiz Fazal-ur-Rehman Dar, Advocate for Appellants.

Muhammad Ramzan Dutt, Advocate for Respondents.

Date of hearing: 18th June, 2015.