CLC 2017 Judgments

2017 C L C 1478

[Board of Revenue Punjab]

Before Nayyar Mahmood, Member (Judicial-VII)

Mian NAZIR AHMAD WATTOO and others----Appellants

Versus

Mian MAQSOOD AHMAD and others----Respondents

R.O.A. No.63 and R.O.R. No.1060 of 2014, decided on 26th May, 2016.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 36 & 161---Punjab Land Revenue Rules, 1968, Rr.16 & 17---Lambardar, appointment of---Requirements---Additional post of lambardar was created without valid administrative justification, despite there was a sitting Lambardar---Validity---Simple statement that creation of post of additional lambardar was in the "interest of public service" was not enough---When it was essential to create an additional post of lambardar in the relevant chak, it was mandatory to hear the view point of sitting lambardar, which was not done---Appointment on newly created post of additional lambardar was made on the first date of hearing by District Director on the basis of ex parte reports of the field Formation---Creation of additional post of lambardar was not justified as appointment was made in violation of R.17 of Punjab Land Revenue Rules, 1968 in a slipshod manner, which rendered the whole process as doubtful and without legal force---Post of additional lambdardar was not to be processed on applications of interested parties, or residents of Deh, as it was rather an administrative arrangement which was to be initiated by the District administration strictly on need basis---Creation of post of lambardar and appointment, were illegal and were set aside accordingly.

Mian Muhammad Siddique Kamiana for Appellant (in R.O.A. No.63 of 2014) and for Respondent No.2 (in R.O.R. No.1060 of 2014).

Ch. Muhammad Naseer for Petitioner (in R.O.R. No.1060 of 2014) and for Respondent (in R.O.A No.63 of 2014).

2017 C L C 152

[Gilgit-Bbaltistan Chief Court]

Before Muhammad Alam, J

SHER SALAM through L.Rs. and another----Petitioners

Versus

SHER ALAM and 8 others----Respondents

Civil Revision No.54 of 2014, decided on 11th April, 2016.

Civil Procedure Code (V of 1908)---

----O. I, R.3--- Non-impleadment of necessary party---Effect---Forefathers of the parties were co-shares in the suit property but they had not impleaded other legal heirs in the suit who were necessary party---Both the courts below had not applied judicious mind to the circumstances of the present case---Present suit had been decided summarily---Impugned judgments and decrees were result of mis-reading of evidence---Judgments and decrees passed by both the courts below were set aside and case was remanded to the Trial Court with the direction to implead other legal heirs of the parties and decide the same on merits---Revision was allowed accordingly.

Raja Shakeel Ahmed for Petitioners.

Mohammad Jan and Rehmat Karim for Respondents.

2017 C L C 253

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

GHULAM NABI----Appellant

Versus

MOHAMMAD NABI and 3 others----Respondents

C.S.A. No.03 of 2014, decided on 25th April, 2016.

Civil Procedure Code (V of 1908)---

----S. 47--- Compromise decree--- Execution petition--- Scope---Compromise was not fit to be executed as it did not mention the suit land---Contents of alleged compromise were beyond the subject matter of the suit---Courts were supposed not to make rule of court any compromise or award which contained any material beyond the subject matter of the suit---Trial Court had illegally made the alleged compromise as rule of court, which had caused miscarriage of justice---Compromise filed in the suit was cancelled and decree passed on the basis of same was set aside---Execution proceedings were set aside and execution petition was dismissed---Case was remanded to the Trial Court with the direction to resume trial proceedings on the suit from the stage prior to filing of alleged compromise---Revision was allowed accordingly.

Masood Ur Rehman for Appellant.

Latif Shah and Mohammad Qasim Shehzad for Respondents.

2017 C L C 285

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, J

AMINULLAH and 5 others----Petitioners

Versus

JOHAR ALI and 3 others----Respondents

Civil Revision No.23 of 2015, decided on 3rd June, 2016.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for possession and declaration---Gift---Parties of the suit were maternal brothers inter se and one defendant was brother-in-law of plaintiff---One of the plaintiffs contended that he being shari waris of his deceased mother and vide an iqrar nama, was the sole owner of suit land, which was left with one of the defendants as 'Amanat' (on trust)---Claim of all the plaintiffs was that after death of their mother, plaintiffs were her legal heirs and were entitled to get possession of suit land from the defendants---Trial Court, dismissed the suit, but appellate court below, set aside judgment/decrees passed by the Trial Court, and passed decree as prayed for in favour of the plaintiff---Claim of defendants was that mother of the plaintiffs after getting her shari share, handed over the same to her brother who was father of two defendants through gift, and that donee of suit land remained in possession of said gifted property for a period of 19/20 years; that after his death property had devolved upon said two defendants who being son of deceased donee were in possession of the same as donees---Validity---Said defendants had failed to prove a valid gift in favour of their father and the possession of the suit land by them as donees being sons of alleged donee---Trial Court without being satisfied about the necessary ingredients of a valid hiba/gift had wrongly, rather, illegally got proved the hiba in favour of defendants---Plaintiffs had proved through witness that their mother after getting her shari share from her brother, handed over the same to sister of one of the plaintiffs, who herself as plaintiff had authenticated the contents of the plaint---Appellate Court below had rightly dismissed judgment of the Trial Court---Chief Court declined interference in a just and legal conclusion arrived at by the Appellate Court.

Sherbaz Ali for Petitioners.

2017 C L C 1658

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

SUBHAN MIR and 7 others----Petitioners

Versus

ABDUL JABBAR and 6 others----Respondents

Review Petition No.281 in Writ Petition No.92 of 2016, decided on 1st March, 2017.

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

----Ss. 114 & 12(2)---Review petition----Petitioners were important party to the writ petition and deserved to be impleaded as party in the petition which was denied to them---Chief Court converted the review petition into the one under S.12(2), C.P.C. and allowed the same and set aside the order and directed the office to implead the petitioners to the writ petition as respondents and present the same for further proceedings---Petition was allowed accordingly.

Manzoor Ahmed for Petitioners.

Muhammad Hussain Shahzad for Respondents Nos.1 to 3.

Assistant Advocate General for Respondents Nos.4 to 7 assisted by Basharat Ali, Legal Advisor.

Faqir Ullah, D.D. Legal, Education Department.

2017 C L C 225

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, CJ

ASKARI BANK LTD. through Branch Manager----Appellant

Versus

Messrs BUKHARI TRAVELS, MIRPUR through Manager----Respondent

Civil Appeal No.33 of 2016, decided on 1st November, 2016.

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

----O. IX, R. 13 & O. XXIX R. 2---Ex-parte decree, setting aside of---Summons on corporation---Irregularity in service of summons---Effect---Suit for recovery against Bank was decreed ex parte---Application of Bank to set aside ex parte decree was rejected---Validity---Service on corporation under O.XXIX, R. 2 of C.P.C. could only be effected on the Secretary or any other Director or other principal officer of the corporation or by sending it vide post to the corporation at its registered office---Suit in the present case was filed against the bank, through the Manager of a local branch, however, the Banking Company was not impleaded through its Head Office in the original suit and the service had been effected on the clerk of the local branch of the Bank---Process was thus not duly served in accordance with the mandatory provisions of O.XXIX, R.2, C.P.C.---Ex parte decree, in circumstances, was to be set aside under O.IX, R.13 of the C.P.C.---Appeal was allowed.

Tahir Mehinood v. Abdul Salam and 6 others 2015 YLR 1768; Muzaffar Ali and others v. Dr. Zaffar Ullah Malik 2015 YLR 1332; State Life Insurance Corporation of Pakistan v. Nasim-e-Sahar through legal heirs 1992 CLC 563; PLD 1991 SC 1104; PLD 1987 SC 22; Syed Nisar Hussain Shah v. Sahibzada Abdul Rashid and 2 others 2014 MLD 86; Muhammad Tariq and others v. Abdul Razzaq 2015 CLC 52 and Secretary Education Department Govt. of N.W.F.P Peshawar and others v. Asfandiar Khan 2008 SCMR 287 ref.

Muhammad Ashraf and 8 others v. Azad Govt. and others PLD 1985 AJK 102 and State Life Insurance Corporation of Pakistan v. Naseem-e-Sehar through legal heirs 1992 CLC 563 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court was vested with revisional jurisdiction and an order which on the face of it was illegal perverse or a nullity in the eye of law could be recalled in exercise of revisional jurisdiction, notwithstanding the competency of the appeal or suit or an application.

Azad Kashmir Logging and Saw Mill Corporation Ltd. v. Messrs Muhammad Farid Khan and Company Brothers, Contractors AKLASC PLD 1986 AJK 228 rel.

Kh. Ansar Ahmed for Appellant.

2017 C L C 401

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

ROOTS MILLENNIUM SCHOOL and others----Petitioners

Versus

DISTRICT MAGISTRATE, MIRPUR and others----Respondents

Writ Petitions Nos.2287-A, 2289 and 2297 of 2015, decided on 5th November, 2016.

Criminal Procedure Code (V of 1898)---

----S. 144---Azad Jammu and Kashmir Private Educational Institution (Promotions and Regulation) Act (XIII of 2007), S.6---Educational institutions---Ban on enhancement of fees---Scope---District Magistrate imposed ban on enhancement of fee on the part of all private schools, tuition centers and academies---Validity---Impugned order was issued for an indefinite period and that too against the spirit of basic provisions of S.144 of Criminal Procedure Code, 1898---Order passed by the District Magistrate was not sustainable under the law---High Court observed that tuition fee and other charges levied by any institution should not be fixed or raised beyond reasonable limits---Registering authority of education department should take matter for cancellation of registration of such institutions who had raised fee unreasonably or violated other conditions---No private educational institution should function without registration---Divisional Commissioners, District Magistrates and Sub-Divisional Magistrates would be bound to take steps for enforcement of Azad Jammu and Kashmir Private Educational Institution (Promotions and Regulations) Act, 2007 and should co-operate with registering authority for implementation of said Act---Order passed by the District Magistrate was quashed as being without lawful authority having no legal effect---Secretary Education and Director Public Instructions (Schools) as well as Director Public Instructions (Colleges) were directed by the High Court to take necessary steps and close all private schools and colleges which were functioning without obtaining registration from registering authority---Writ petitions were disposed of accordingly.

Syed Nishat Kazmi for Petitioners.

2017 C L C 1221

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUHAMMAD ZAMAN TABASSUM----Petitioner

Versus

MEHMOOD----Respondent

Civil Revision No.250 of 2016, decided on 28th March, 2017.

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

----Art. 76---Secondary evidence, production of---Principles---Plaintiff moved application before the Trial Court for permission to produce copies of documents as secondary evidence but same was declined---Validity---Original documents had been misplaced---No legal bar existed to produce copies of said documents in evidence---Such copies being necessary could be tendered in evidence as secondary evidence---If original documents were destroyed, lost or misplaced, Court was to resort to other secondary/circumstantial/corroborative evidence to reach the just conclusion of the case---When a document was permitted to be exhibited that did not mean that same had been accepted as correct---Tendering or exhibiting the document would mean making the same a part of record---Genuineness, validity or truthfulness of said document could be challenged by way of cross-examination and objections could be raised at the time of arguments---Parties should not be prevented from bringing the evidence on record to prove their version except when the same was not admissible under the law---Court would be at liberty to check the veracity, truthfulness or falsehood of documents while appreciating the same at the time of judgment---Attesting witness could be examined on the document attested by him---Complicated questions of fact could not be decided effectively if such documents were kept aside---Deponent himself could be produced by the parties and no prejudice would be done to the other party---Mere filing of affidavit without cross-examination of the deponent would be of no use---Impugned order passed by the Court below was set aside and plaintiff was allowed to produce copies of original documents as secondary evidence---Revision was allowed in circumstances.

Khurram Zulfiqar Ali v. Mst. Benish Mubarik and another 2009 MLD 766 ref.

2009 MLD 766 rel.

Raja Javaid Akhtar for Petitioner.

2017 C L C 23

[Islamabad]

Before Miangul Hassan Aurangzeb, J

HASSAN ZIA and another----Appellants

Versus

Mrs. UMERA ARSAM and others----Respondents

F.A.O. No.32 of 2016, decided on 30th August, 2016.

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

----O. XXXIX, Rr. 1 & 2---Intellectual Property Organization of Pakistan Act (XXII of 2012), Ss.19 & 17---Copyright Ordinance (XXXIV of 1962), Ss.60, 63 & 65---Specific Relief Act (I of 1877), Ss.55 & 8---Agreement with regard to proprietary rights over the script of novel---Using the said script with new characters---Suit for permanent injunction, damages and recovery of possession---Ad-interim temporary injunction, grant of---Scope---Trial Court while giving findings on application for temporary injunction had not adverted to the terms and conditions of agreement executed between the parties---Defendant had purchased the script of drama from the plaintiff whereafter same had become his property who had right to allow the use of said script, characters or performances to any other person or organization---Defendants could not be restrained from using the script which had been sold to them---Defendants could not tamper with or change around the script---Changed/altered script would give a cause of action to seek a restraint against the use of the same----Adaptation of the original script to modern technology with new characters and in a new setting did not, prima facie, violate plaintiff's rights---Plaintiff had sold out all rights with regard to script of novel to the defendants---Plaintiff could not make any grouse against the defendants for using the script which she had sold---Impugned interim order was modified to the extent that defendants in the suit were restrained only from altering, changing or modifying the script for the novel---Appeal was allowed accordingly.

Khadim Hussain v. The Additional District Judge, Faisalabad PLD 1990 SC 632, Muhammad Musa Ansari v. Gul Sahib Jan Khattak 1991 CLC 1483; Rauf B. Qadri v. State Bank of Pakistan PLD 2002 SC 1111; Zahid Zaman Khan v. Khan Afsar PLD 2016 SC 406 and District Council Haripur v. Zaheer Ullah Khan PLD 1994 Pesh. 228 ref.

(b) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----Ss. 19 & 17---Copyright Ordinance (XXXIV of 1962), Ss.60, 63 & 65---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2 & O.XLIII, R.1---Suit for permanent injunction---Ad-interim temporary injunction, grant of--- Appeal--- Maintainability--- Words "final judgment and order"---Scope---Right to file an appeal was a substantive right and had to be specifically conferred by the statute---Said right was not a matter of procedure---Intellectual Property Tribunal had all the powers vested in a civil court under Civil Procedure Code, 1908---Said Tribunal had to follow the procedure laid down in Civil Procedure Code, 1908 if no procedure had been provided in Intellectual Property Organization of Pakistan Act, 2012---Intellectual Property Tribunal while exercising powers under Civil Procedure Code, 1908 could pass all orders that a civil court could pass---No bar existed with regard to appeal from an interlocutory order passed by the Intellectual Property Tribunal---Impugned order had finally disposed of the application for temporary injunction---Provision barring a right of appeal had to be strictly construed---Appeal against the order allowing application for temporary injunction was maintainable in circumstances.

Shafique Ahmad Butt v. Punjab Labour Appellate Tribunal 1993 CLC 1352; University of Punjab v. Rehmatullah and PLD 1982 Lah. 729 and Amjad Mustafa v. Muhammad Faiz 2005 YLR 419 rel.

Umar Sohaib Pirzada and Faisal Iqbal Khan for Appellant.

Dr. Khalid Ranjha, ASC for Respondent No.1.

2017 C L C 48

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD AJAIB----Petitioner

Versus

ZAHIDA ARSHAD and others----Respondents

Civil Revision No.62 of 2016, decided on 27th July, 2016.

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

----S. 12---Suit for specific performance of agreement to sell---Agreement to sell by the attorney---Comparison of signatures by the court---Scope---Plot was allotted to the defendant who appointed his attorney and attorney executed agreement to sell---Defendant cancelled power of attorney---Plaintiff filed suit for specific performance which was decreed concurrently---Validity---Defendant was allottee of suit plot and his attorney had executed agreement to sell---Plaintiff had paid entire cost of land of suit plot and other charges---General power of attorney was an irrevocable document---Defendant had cancelled power of attorney without assigning any reason after six years---Defendant could not cancel power of attorney by any means which was registered instrument---Testimony of defendant could not be believed on the

principle that documentary evidence would prevail upon oral testimony---Court could compare disputed signatures with the admitted signature and form its own opinion---Signatures of defendant on power of attorney and agreement to sell were similar to one admitted on application for NOC---Both the courts below had rightly passed judgments and decrees in favour of plaintiff---Revision was dismissed in circumstances.

Hashmat Ali v. Mst. Rasheedan Bibi and 2 others 2004 YLR 3140; Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85; Mirza Arif Baig v. Mubarak Ali PLD 1992 Lah. 366 and Muhammad Yaqoob v. Hameeda Begum and 4 others 2005 CLC 870 rel.

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

----S. 115---Revision---Scope---Concurrent findings recorded after proper appraisal of evidence could not be interfered by Revisional Court when there was no error on record---Even such findings could not be interfered with on the ground that appraisal of evidence would suggest another view of the matter.

Abdul Ghaffar Khan v. Umar Khan 2006 SCMR 1619 rel.

Raja Umer Hussain Bhatti for Petitioner.

Ghulam Shabbir Akbar for Respondents Nos.1 and 2.

2017 C L C 105

[Islamabad]

Before Aamer Farooq, J

LINKDOTNET TELECOM----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.2451 of 2015, decided on 18th July, 2016.

Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----S. 4-K--- Access Promotion Contribution--- Suspension of notification---Effect---Petitioners assailed clarifications dated 15-6-2015 and 22-6-2015 and demand notices issued by authorities on the basis of such clarifications---Order/notification in question was suspended for the time being and when stay was vacated it revived---In the year 2014 the directive was stayed by two different High Courts and stay orders came to an end on 24-2-2015 and the result of the same was that 2014 policy directive was revived and became operative from its original date---Effect---Clarifications issued by authorities were not sustainable and the demand based on such clarifications issued by authorities were also not tenable---Authorities issued notification dated 1-7-2014, which was in field and was suspended only for some period, therefore, authorities were estopped from demanding charges on the basis of 2013 policy directive---Clarifications dated 15-6-2015 and 22-6-2015 as well as demand notices based thereon were set aside by High Court with direction that authorities to implement notification letter dated 1-7-2014 from its date of issuance-Constitutional petition was allowed in circumstances.

Government of Punjab v. M/s Crescent Textile Mills Limited PLD 2004 SC 108; Collector of Customs and others v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357; Collector of Customs, Customs House Lahore v. Messrs S.M. Ahmed and Company (Pvt.) Ltd. 1999 SCMR 138; Nizamuddin and others v. Civil Aviation Authority and others 1999 SCMR 467; Rana Aftab Ahmed Khan v Muhammad Ajmal and others PLD 2010 SC 1066; Messrs Shree Chamundi Mopeds Ltd v. Church of S.I.T. Association AIR 1992 SC 1439; Kanoria Chemicals and Industries Ltd v. U.P.State Electricity Board and others (1997) 5 SCC 772; Messrs B.P.L. Ltd. v. R.Sudhakar AIR 2004 SC 3606; Nadia Nazir and others v. Chairman, Board of Intermediate and Secondary Education Lahore and others PLD 1999 Lah. 187; Mst.Attiyya Bibi Khan and others v. F.O.P, and others 2001 SCMR 1161; Muhammad Nawaz Malik and others v. Government of the Punjab and others PLD 2011 Lah. 160; Pak Shaheen Containers Services (Pvt.) Ltd. v. Trustees of Port of Karachi and others PLD 2001 Kar. 30; Farzand Raza Naqvi and others v. Muhammad Din 2004 SCMR 400 and Civil Petitions Nos.146 and 147 of 2015 ref.

Sardar Ejaz Ishaq Khan for Petitioner.

Barrister Munawar Iqbal Duggal and Syed Hasnain Ibrahim Kazmi, D.A.G. for Respondents.

2017 C L C 119

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Ch. MUHAMMAD ARSHAD---Petitioner

Versus

PTCL through General Manager---Respondent

C.R.No.105 of 2016, decided on 25th May, 2016.

Civil Procedure Code (V of 1908)---

----O. XVI, R.14 & O.XXVI, Rr. 9 & 10---Local commission---Report of---Scope---Summoning of local commission as a court witness---Application for summoning of local commission as a court witness was moved which was dismissed by the Trial Court---Validity---Court on its own motion had power to summon a person to give evidence at any stage of the proceedings if it was necessary to examine such person---Such power was discretionary and could be exercised by the court to ensure complete justice---Provisions of O. XVI, R.14, C.P.C. could not be used by a party to a litigation to summon any person---Report of local commission was prior in time to the framing of issues---Had the plaintiff given the name of local commission in the list of witnesses then he could have summoned the local commission through process of court---Plaintiff could not insist the court to exercise its powers under O.XVI, R.14, C.P.C. to summon the local commission as a court witness to give evidence---Report of local commission together with evidence recorded by him would be evidence in the suit---Such evidence or report ought to be taken into consideration by the court in coming to its conclusion, however same was not binding on the court---No party, in the present case, had filed objections to the report of local commission---Plaintiff had not filed any application under O.XXVI, R.10(2), C.P.C. for summoning of local commission---Report of local commission along with evidence submitted before the Trial Court should be treated as evidence in the suit in terms of O.XXVI, R.10(2), C.P.C.---Plaintiff could file an application under O.XXVI, R.10(2), C.P.C. for seeking permission to examine the local commission personally---Revision was dismissed accordingly.

Mst. Hajra Begum through legal heirs v. Mst. Badar-un-Nissa and others PLD 2013 Sindh 417; Urman Jee v. District Judge, Kohat and 3 others PLD 1990 Pesh. 100 and Amna Bibi and 2 others v. Sona Khan and others 2012 YLR 2047 distinguished.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Abdus Shakoor v. Muhammad Zafar Ullah Khan and others 2007 CLC 1661; Zaheer-ur-Din v. Mst. Khurshida Begum 1996 CLC 585; Allah Jewaya v. Muhammad Bakhsh PLD 1998 Lah. 338 and National Bank of Pakistan v. Messrs Ch. Auto and Tools Agency PLD 2001 Lah. 135 rel.

Syed Hasnain Ibrahim Kazmi and M. Akram Shaheen for Petitioner.

Tariq Khushnood Qureshi for Respondent.

2017 C L C 131

[Islamabad]

Before Miangul Hassan Aurangzeb, J

INFOSPAN (PRIVATE) LIMITED---Appellant

Versus

Messrs TELECOM FOUNDATION and another---Respondents

F.A.O. No.59 of 2013, decided on 22nd April, 2016.

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

----S. 34---Islamabad Rent Restriction Ordinance (IV of 2001), S. 17---Ejectment of tenant---Arrears of rent---Recovery of---Arbitration agreement---Arbitration clause---Stay of proceedings---Term "step in the proceedings" occurring in S.34, Arbitration Act, 1940---Scope---Defendant did not file written statement and right to submit the same was struck off---Application for stay of proceedings was moved by the defendant by referring arbitration but same was dismissed---Validity---If defendant filed written statement or took a 'step in the proceedings' then he would not be entitled thereafter to seek a stay of the suit---Where counsel appearing for the party had sought adjournments for filing a written statement and had obtained time on more than one occasion for such purpose then application for stay of suit would not be maintainable---Defendant ought to have applied for setting aside the order for striking off defence---Filing of such application could not be considered to be a "step in the proceedings"---Had the defendant made such an application and said order had been set aside then he could not have been precluded to file an application under S.34 of Arbitration Act, 1940---Defendant could not have sought stay of the proceedings without having the said order set aside---Parties were presumed to be aware of the contents of the order sheet maintained by the Trial Court---Once defendant had gone through the suit then he must at the earliest make up his mind whether or not to submit to the jurisdiction of the court---If defendant wanted to opt for the dispute resolution mechanism contained in the contract then he should take corrective steps and inform the court without any delay about his intention to seek stay of the suit---No one could be stopped for seeking an adjournment for filing an application under S.34 of Arbitration Act, 1940---If after appearance of defendant suit was adjourned for filing written statement without expressing his intention of filing an application under S.34 of Arbitration Act, 1940 then he could be said to have taken a step in the proceedings---Defendant remained silent before the Trial Court for six occasions and case was adjourned for filing written statement---Trial Court was correct in dismissing the application for stay of proceedings in the suit---Appeal was dismissed in circumstances.

Muhammad Farooq v. Nazir Ahmad PLD 2006 SC 196; Ghulam Mohiuddin Paracha and another v. Ahmed Naseer Khawaja and another 1996 CLC 405; Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar and Company Limited 1993 SCMR 866 and Pakistan International Airlines Corporation v. Messrs Pak. Saaf Dry Cleaners PLD 1981 SC 553 ref.

Charan Das and Sons v. Harbhajan Singh Hardit Singh AIR 1952 Punj. 109; Government of Balochistan and 4 others v. Mir Qadir Bakhsh and sons PLD 1978 Quetta 204; Badshah Meah Sowdagar v. Nurul Haq and others PLD 1967 Dacca 250; Messrs Multix International Corporation v. Karachi Metropolitan Corporation 2014 MLD 1482; Hamad Raza v. Sajid Hussain 2014 CLC 1057; Messrs Sprint Energy (Pvt.) Limited v. Ahsaan Ullah and 2 others 2013 CLC 799 and Utility Stores Corporation of Pakistan v. UNI-CARE International Cosmetics 2014 CLC 238 rel.

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

----S. 34---Arbitration agreement---Stay of proceedings---Discretion of Court---Conditions.

Section 34 vests the court with the power to refuse its aid to a person who appeals to it in breach of an agreement to decide the matter by arbitration. Under this section the court has the power to exercise its discretion to make an order for stay provided that:

(i) There is a valid submission;

(ii) The proceedings in the court have been commenced by a party to the submission or a person claiming through and under him against another party to the submission or a person claiming through or under him;

(iii) The proceedings are in respect of a matter agreed to be referred;

(iv) The application is made by a party to the proceedings;

(v) The application is made before filing a written statement and taking any other 'step in the proceedings'; and

(vi) The party applying for stay was and is ready and willing to do all things necessary to the proper conduct of the arbitration.

(c) Arbitration Act (X of 1940)-

----S. 34---'Step in the proceedings'---Connotation.

Sultan Mazhar Sher for Appellant.

Syed Ishtiaq Haider for Respondent No.1.

2017 C L C 143

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

BASHIR AHMED----Petitioner

Versus

DEPUTY COMMISSIONER, ISLAMABAD and another----Respondents

Writ Petition No.4400 of 2014, decided on 26th October, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Non-confirming use of residential house---Imposition of penalty by the Development Authority---Scope---Development Authority imposed penalty of fine upon the petitioner due to non-confirming use of his residential house---Petitioner's appeal was dismissed being time barred---Contention of petitioner was that he was abroad and had been condemned unheard---Validity---Petitioner had failed to adduce any document whereby it could be ascertained that he was abroad at the time of passing of impugned order and thereafter when he filed appeal---Constitutional petition was dismissed in circumstances.

Muhammad Salman Munir Mughal for Petitioner.

2017 C L C 150

[Islamabad]

Before Aamer Farooq, J

Messrs LABELS FRANCHISE trough Mrs. Amna Badar Afzal and 2 others----Petitioners

Versus

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

Writ Petition No.2496 and C.M. Nos.3270 and 3271 of 2015, decided on 10th August, 2015.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Non-confirming use of residential property as school by tenants---Properties used by the tenants were sealed by the Development Authority---Petitioners gave undertaking that they would vacate the said property within four weeks---Properties in question were sealed by the respondent for repeated non-confirming use of the same and even allotment of the owner had been cancelled---Said properties were de-sealed on submission of application by the petitioners to enable them to remove their belongings from the premises---Constitutional petition was dismissed being not justified---Petitioners were however allowed time to remove their belongings from the premises.

Malik Qamar Afzal for Petitioners.

2017 C L C 154

[Islamabad]

Before Athar Minallah, J

Syed NUSRAT ALI SHAH----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman----Respondent

Civil Revision No.267 of 2014, decided on 22nd March, 2016.

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

----S. 42---Suit for declaration---Development Authority directed the plaintiff to remove unauthorized construction---Plaintiff filed suit against the direction which was dismissed concurrently---Validity---Trial Court as well as Appellate Court had rendered well-reasoned judgments---Plaintiff had not sought approval from the Development Authority and notice was issued to him---Development Authority being regulator was empowered to proceed in accordance with law if there was violation of regulations---No mis-reading or non-reading of evidence or infirmity was pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.

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

----S. 115---Revision---Scope---Scope of revision by High Court was limited when findings of courts below were concurrent---Revision would be justified when there was misreading or non-reading of evidence or when there was an error in the exercise of jurisdiction or courts below had acted in the exercise of their jurisdiction illegally or with material irregularity and findings of fact recorded were without considering documents and record in their true perspective.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.

Syed Asghar Hussain Sabzwari and Sheikh Khizar-ur-Rasheed for Petitioner.

Rehan Seerat and Ms. Sabih Farooq for Respondents.

2017 C L C 208

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD SALIHEEN MOGHAL through Attorney----Appellant

Versus

SWADEKA KADER and 3 others----Respondents

F.A.O. No.55 of 2016, decided on 5th August, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.54---Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, Cl.2.6---Suit for permanent injunction---Dispute with regard to construction---Temporary injunction, grant of---Ingredients---Retaining walls had been constructed alongside the property of plaintiff---No prima facie case had been made out in favour of plaintiff---Nothing was on record that any damage had accrued to the property of plaintiff due to the construction raised by the defendants---Regulatory Authority i.e. Development Authority was satisfied with the construction at site in accordance with regulations/approved plan---Balance of convenience was in favour of plaintiff---No irreparable loss would accrue to the plaintiff if temporary injunction was not granted---Essential ingredients required for grant of temporary injunction did not exist in favour of plaintiff---Building plan had been approved in accordance with regulations and construction was also in accordance with the same---Question of fact could only be determined after the parties led their evidence---No factual or legal infirmity was pointed out in the impugned order passed by the court below---Appeal was dismissed in circumstances.

Anwar v. Mst. Ilyas Begum PLD 2013 SC 255; Muhammad Nawaz v. MBR 2014 SCMR 914 and Qamar Ali Shah v. Waryam Ali and 3 others 1976 SCMR 393 distinguished.

Mst. Saeeda v. Province of Punjab and others 2013 CLC 454; Mst. Nusrat Begum v. Muhammad Iqbal Khan and 10 others 2008 CLC 476; Sajjad Ahmed v. Chairman, CDA and others 2016 CLC 896 and Farooq Hamid v. Lahore Development Authority and others 2006 YLR 1539 rel.

Sheikh Ahsan-ud-Din and Mohiuddin Aamir Mughal for Appellant.

Barrister Afzal Hussain, Rehan Seerat, Malik Talha Ahmed Rahim and Muhammad Ayub Khan, Assistant Director BCS-1, C.D.A. for Respondents.

2017 C L C 311

[Islamabad]

Before Aamer Farooq, J

NAJAM SETHI----Petitioner

Versus

Dr. FAQIR HUSSAIN and another----Respondents

Civil Revision No.200 of 2013, heard on 19th January, 2016.

Defamation Ordinance (LVI of 2002)---

----S. 13 & Preamble---Trial of cases under Defamation Ordinance, 2002---Pecuniary jurisdiction of District Court under the Defamation Ordinance, 2002---Scope---Defamation Ordinance, 2000 was a special law and empowered the District Court to hear cases of defamation regardless of the amount of the claim involved, and a special law on a subject excluded general law on the same.

Civil Suit No.264/2011; PLD 1981 Kar. 210; PLD 2011 Kar. 484; PLD 1961 Kar. 565; I.C.A. No.130 of 2012 Pakistan Herald Publications Private Limited and others v. Karachi Building Control Authority 2012 CLD 453 and Khadim Hussain and others v. Gul Hassan Tiwano and others 2013 CLD 981 ref.

Pakistan Herald Publications Private Limited v. Karachi Building Control Authority 2012 CLD 453 and Khadim Hussain and others v. Gul Hassan Tiwano 2013 CLD 981 rel.

Idrees Ashraf for Petitioner.

Hamid Ahmad for Respondents.

2017 C L C 360

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SHAFIQUE AHMED KHAN and others----Petitioners

Versus

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

Writ Petition No.3402 of 2016, decided on 7th November, 2016.

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

----S. 17---Ejectment of tenant---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Contention of tenant was that landlady was only benami owner and relationship of landlord and tenant did not exist between the parties---Eviction petition was allowed concurrently---Validity---Nothing was on record that landlady was only a benami owner of demised premises---Tenant had not filed suit for declaration with regard to suit premises---Tenant had committed default in payment of rent---Constitutional petition was dismissed in circumstances.

Muhammad Irshad v. Additional District Judge, Multan 2009 YLR 2379; Muhammad Naeem v. Abdul Wahidi 1999 MLD 1342; Abdul Rasul v. Aziz Khatoon 1992 MLD 1997; Rasheeda Qudrat v. Muhammad Qudrat Ullah 1998 MLD 171; Muhammad Siddique v. Shah Pasandkhan 1979 SCMR 619; Muneer Khan v. Uzma Ufaq 2011 CLC 846 and Liaquat Ali v. Additional Sessions Judge, Islamabad PLD 2011 Islamabad 14 ref.

Raja Aamir Abbas and Muhammad Abdul Wali Irfan for Petitioners.

Ishtiaq Ahmad Raja for Respondent No.2.

2017 C L C 369

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD YAQUB BROHI----Petitioner

Versus

MINISTRY OF HOUSING AND WORKS through Secretary and 2 others----Respondents

C.R. No.124 of 2016, decided on 5th October, 2016.

(a) Accommodation Allocation Rules, 2002---

----R. 12---Allotment of official accommodation---Plaintiff an employee, filed suit that he was lawful allottee of suit accommodation and authorities be restrained to cancell the allotment letter---Suit was dismissed concurrently---Validity---Mere fact that plaintiff employee was not able to establish that he had occupied an accommodation, earlier allotted, before allotment letter of the present accommodation, did not render the said letter unlawful or void---Findings rendered by the courts below were not in accordance with law which were set aside---Case was remanded to the Trial Court for decision on the basis of available record---Plaintiff might take his plea with regard to re-possession of suit accommodation before the Trial Court---Revision was allowed in circumstances.

Saheb Khan v. Muhammad Pannah PLD 1994 SC 162 and Malik Muhammad Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428 rel.

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

----S. 115---Revision---Scope---When concurrent findings were against law revisional court had jurisdiction to remove the illegality in the judgment.

(c) Pleadings---

----Parties were bound by their pleadings and evidence adduced beyond the pleadings was not permissible under the law---Evidence or arguments with regard to a plea not taken in pleadings could not be looked into.

Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 and Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 rel.

(d) Maxim---

----"Secundum allegata et probata"---Party can succeed according to what was alleged and proved.

Mujeeb-ur-Rehman Kiani for Petitioner.

Musharraf Khan for Respondent.

2017 C L C 466

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs CATALYST COMMUNICATION (PVT.) LTD.----Petitioner

Versus

Messrs NATIONAL TELECOMMUNICATION CORPORATION through Chairman----Respondent

C.M. Arbitration Petition No.3 of 2008, heard on 11th July, 2016.

(a) Arbitration---

----Agreement---Object and scope---Arbitration agreement merely provides for an alternative forum for resolution of disputes--- All disputes that parties agree to resolve by arbitration are to be resolved by arbitration---Till the disputes that are covered under arbitration agreement remain unresolved, parties would be free to take recourse to arbitration for resolution of disputes and other party would be contractually bound to submit disputes to arbitration.

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

----S. 20---Civil Procedure Code (V of 1908), S.11---Arbitration proceedings---Res judicata, principle of---Applicability---Principle of res judicata is applicable to arbitration proceedings---Administration of justice requires that there should not be multiplicity of proceedings and parties should not be permitted to raise disputes over and over again, once disputes have been settled either by a pronouncement of court of competent jurisdiction or by an award of an arbitrator.

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

----S. 20---Civil Procedure Code (V of 1908), S.11 & O.II, R.2---Arbitration proceedings---Fresh ground---Res judicata, principle of---Scope---Petitioner sought referring the dispute to arbitrator for decision---Respondent raised the plea that application was barred by principle of res judicata---Validity---Petition seeking reference to arbitration of disputes and differences which had not arisen prior to the institution of earlier arbitration proceedings, were not barred under the principle of res judicata and O.II, R.2, C.P.C.---Arbitration was a time saving device and parties to arbitration proceedings were expected to adhere strictly to time lines---If the respondents did not come up with a 'sufficient cause' in their reply or failed to file a reply within the time stipulated by court, the court was to assume that there was no cause or reason not to refer matters in dispute between parties to arbitration---No formal order closing right of respondent to file reply was required under special law and Court once satisfied that respondents, despite having notice/knowledge of application under S.20 of Arbitration Act, 1940, had not filed a reply, ought to refer the matter to arbitration in terms of arbitration agreement and S.20(4) of Arbitration Act, 1940---Application under S.20 of Arbitration Act, 1940, was to be adjudicated upon expeditiously and should be kept pending for the least possible time---High Court appointed sole arbitrator and referred the matter to him---Application was allowed in circumstances.

Pakistan Industrial Development Corporation (PIDC) v. Muhammad Iqbal 2015 CLC 1066; Industrial Fabrication Company through Managing Director v. Managing Director Pak American Fertilizer Limited PLD 2015 SC 154; Haji Hashim Haji Ahmed and Bros v. Trading Corporation of Pakistan PLD 1977 Kar. 180; Abdul Sattar Mandokhal v. Port Qasim Authority 2001 YLR 758; National Engineering Services Pakistan (Pvt.) Limited v. Steel Mills Corporation 2003 YLR 1696; Abdul Hussain Shah v. Allah Ditta PLD 2009 Lah. 224; City Schools (Pvt.) Limited v. Azmat Nawaz 2013 CLD 451; Muhammad Akbar v. Muhammad Tariq 2014 YLR 2218; Balmukund Rina v. Gopiram Bhotica AIR 1920 Calcutta 808; Pushraj v. Clive Mills Company AIR 1960 Calcutta 180; Seth Kerorimall v. Union of India AIR 1964 Calcutta 545; Satish Kumar v. Surinder Kumar AIR 1970 SC 833; Jiwnani Engineering Works v. Union of India AIR 1978 Cal. 228; M/s. Alkarma v. Dehli Development Authority AIR 1981 Dehli 230; Shah Construction Co. Ltd. v. Municipal Corporation of Delhi AIR 1985 Delhi 358; K.V. George v. Secretary to Govt., Water and Power Department AIR 1990 SC 53; Indian Oil Corporation Limited v. SPS Engineering Limited (2011) 3 SCC 507; Tehri Hydro Development Corporation Limited v. Jai Parakash Association Limited AIR 2013 SC 920; Purser & Co. (Willingdon) Ltd. v. Jackson 1976 (3) All ER 641; Ramesh M. Udeshi v. The State 2005 SCMR 648; Project Director Balochistan Minor Irrigation and Agricultural Development Project Quetta, Cantt v. Murad Ali and Company 1999 SCMR 121; Rakshani Builders (Pvt.) Ltd. v. Capital Development Authority 2015 YLR 2116; Strong Built Enterprises (Pvt.) Limited Lahore v. Fauji Fertilizer Company Limited 1998 MLD 1628; Manzoor Construction Company Limited v. University of Engineering and Technology 1984 CLC 3347 and Lithuanian Airlines v. Bhoja Airlines (Pvt.) Limited 2004 CLC 544 rel.

Barrister Gohar Ali Khan for Petitioner.

Hasnain Ibrahim Kazmi and Ch. Shafiq-ur-Rehman and Asif Ranjha, Legal Advisor NTC for Respondents.

2017 C L C 575

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Homeopathic Dr. JAMIL AKHTAR GHAURI----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

I.C.As. Nos.143, 144 and 145 of 2012, decided on 30th August, 2016.

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

----Ss. 8 & 13---General Clauses Act (X of 1897), S.21---National Council for Homeopathic---Members, appointment of---Locus poenitentiae, principle of---Applicability---Appellants were appointed members of National Council for Homeopathic but subsequently Federal Government issued notification replacing other doctors in place of appellants as members of National Council for Homeopathic---Validity---Issuance of notification nominating some of the members of National Council for Homeopathic under S.8 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965, was a culmination of a consultative process with Provincial Governments for selection of Homeopathic doctors for nomination as members of National Council for Homeopathic by Federal Government---Result of such process could not simply be undone by resort to S.21 of General Clauses Act, 1897---Appointment to the post of Director was a term appointment and such term could be curtailed or tinkered with only for justifiable reasons that too in accordance with S.13 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965, and after observing principles of natural justice---High Court, in intra court appeal, set aside the order passed by single Judge of High Court resultantly notification in question was set aside---Intra court appeal was allowed accordingly.

Commissioner of Income Tax v. Media Network PLD 2006 SC 787; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Moazzam Husain Khan v. Government of Pakistan and others PLD 1958 (W.P.) Kar. 35; Allauddin Akhtar v. Government of Punjab 1982 CLC 515; Dr. Aftab Ahmad Malik v. University of Engineering and Technology 2005 PLC (C.S.) 80; Homoeopathic Doctor Muhammad Zahir v. Federation of Pakistan 2011 CLC 427; Mrs. Jamshed Naqvi v. Azad Jammu and Kashmir Government 2013 PLC (C.S.) 1037; Babar Sattar v. Federation of Pakistan 2015 CLD 134; P.L. Dhingra v. Union of India AIR 1958 SC 36; L.P. Agarwal v. Union of India AIR 1992 SC 1892 and P. Venugopal v. Union of India (2008) 5 SCC 1 ref.

Aamir Abdullah Abbasi and Sher Afzal Khan for Appellant.

Niaz Ahmed Rathore and Muhammad Arbab Alam Khan Abbasi for Respondents.

Khawaja Imtiaz, Standing Counsel.

2017 C L C 599

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAK. U.K. ASSOCIATION (PVT.) LTD.----Petitioner

Versus

The HASHEMITE KINGDOM OF JORDAN----Respondent

Arbitration Petition No.24 of 2016, decided on 15th September, 2016.

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

----Ss. 20, 5 & 11---Civil Procedure Code (V of 1908), O.VII, R.11---Arbitration agreement---Condition in the agreement for referring the dispute to the engineer for his decision---Application for filing the arbitration agreement in Court---Scope---Allegation of bias of arbitrator---Effect---Petitioner moved petition for filing arbitration agreement in the Court wherein respondent submitted an application for rejecting the said petition on the ground that petitioner had not exhausted the precondition of referring the dispute to the engineer---Contention of petitioner was that engineer was biased and controversial---Validity---Petitioner was aware of the requirement to refer the dispute in the first instance to the engineer---Dispute was not referred to the engineer for decision under the contract---Dispute between the parties had to be referred in the first instance to the engineer who was supposed to give his decision within stipulated period---If the engineer gave his decision or did not give his decision within stipulated period then aggrieved party could refer the matter in dispute to arbitration---Right of aggrieved party to refer the dispute to arbitration was pre-conditioned with a reference of such dispute to the engineer---Application for filing the arbitration agreement in the Court without fulfillment of such condition was liable to be dismissed as premature---Court could not rewrite the agreement between the parties or exempt a party from complying with its contractual obligation of the contract---Where reference to engineer could not be made because he had resigned or refused to entertain the dispute or had been disengaged by the employer then dispute could be referred to arbitration without a reference to the engineer---Party could not bypass the requirement of a reference of dispute to an engineer on the ground of bias unless court was satisfied that substantial miscarriage of justice would take place if such an application for filing the arbitration agreement was dismissed as premature---Court must not lightly relieve the parties from their bargain---Discretion had to be exercised cautiously and parties should not be relieved from a forum they had chosen because they feared that the engineer's decision might go against them---Bias of an arbitrator was one of the grounds on which an arbitrator could be removed or his authority could be revoked---Mere suspicion of a party must not lead to the conclusion that authority hearing the proceedings was biased---Apprehension must be judged from a healthy, reasoned and average point of view and not on mere apprehension of any whimsical person---Where allegations of fraud, misrepresentation, collusion or mala fide were attributed then necessary particulars and details should be unfolded---Bald or vague statement to such effect would be of no legal consequence---Mere fact that engineer had in past given decision against a party or had expressed a view/opinion adverse to the said party could not be made a ground for avoiding the contractual obligation---Respondent had right to insist that dispute should be resolved in accordance with the procedure provided in the contract---Application for rejection of petition for filing the arbitration agreement in the court was allowed and petitioner's application was dismissed as premature---Petitioner might subject to law refer the dispute to the engineer in terms of contract for decision.

Pakistan Development Corporation (Pvt.) Ltd. v. Ministry of Defence, Government of Pakistan PLD 1995 Kar. 286; Board of Intermediate and Secondary Education v. Fine Star and Company 1993 SCMR 530; Karachi Dock Labour Board v. Quality Builders Ltd. PLD 2016 SC 121; Hanover Contractors v. Pakistan Defence Officers Housing Society 2002 CLC 1880; Sanad Associates v. General Manager Telephone and Telegraph 1989 CLC 386; Ayaz Builders v. Board of Trustees of the Karachi Port Trust and another 2008 CLC 726 and WAPDA v. S.H. Haq Noor & Co. 2008 MLD 1606 ref.

Smith v. Martin [1925] 1 K.B. 745; The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585; Azhar Ali v. Punjab Public Service Commission PLD 2004 SC 4; Sain Rakhio v. Abdul Ghaffar 2011 CLC 1160; International Airport Authority of India v. K.D. Bali AIR 1988 SC 1099; Bristol Corporation v. John Aird & Co. 1913 AC 241; Lanvin Traders v. Presiding Officer, Banking Court 2013 SCMR 1419 and Muhammad Ishaque Qureshi v. Azad J&K Government PLD 1962 Azad J&K 1 rel.

(b) Bias---

----Allegation has to be established by cogent and clear evidence---Bias stands included in the attributes of the word "malice"---Principles.

Sardar Arshad Mehmood Khan for Applicant.

Tahir Mehmood Abbasi and Raza Ullah Khan Niazi for Respondent.

2017 C L C 635

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD IBRAR KHAN and another----Appellants

Versus

DEPUTY COMMISSIONER and another----Respondents

R.S.A. No.3 of 2016, decided on 25th October, 2016.

Civil Procedure Code (V of 1908)---

----S. 91 & O.VII, R. 11---Specific Relief Act (I of 1877), Ss.42 & 54---Public nuisance---Suit for declaration and permanent injunction---Consent of Advocate General---Scope---Plaint, rejection of---Plaintiffs filed suit to the effect that defendants were closing the road---Authorities (defendants) moved application for rejection of plaint on the ground that land through which road in question passed was acquired by the authorities---Plaint was rejected concurrently---Validity---If a particular right of suit had arisen in favour of a particular person i.e. in case of public nuisance then such right was not affected by S.91, C.P.C.---If plaintiffs were shown to suffer direct or special damage and also the general public then suit would be maintainable without consent of Advocate General---Plaintiffs wanted to prosecute the suit in their individual and independent capacities and not as representatives of the village---Present suit could be proceeded without the plaintiffs having obtained the permission of Advocate General---Where the case did not relate to a public nuisance then S.91, C.P.C. was not attracted and no intervention of Advocate General was necessary---Plaintiffs were not seeking permanent easement rights over the road in question---Land through which road passed was owned by Development Authority---Plaintiffs could not obstruct Development Authority to use the road---Development Authority would be at liberty to use the road in question and close the same to carry out development activity---Impugned judgments passed by the courts below were set aside---Matter was remanded to the Trial Court for further proceedings---Trial Court would determine as to whether the case was in fact a case of private nuisance or it involved the determination of plaintiffs' independent right to use the road so as to take the case within the parameters of S.91(2), C.P.C.---Second appeal was allowed in circumstances.

Islamuddin and others v. Ghulam Muhammad PLD 2004 SC 633; Shahzad v. IVth Additional District Judge, Karachi PLD 2016 Kar. 26; Muhammad Issa Abbasi v. Abdul Qadir PLD 2013 Kar. 60; Anjuman-i-Mutasreen Khshatkaran v. Province of Punjab 2012 CLC 1145 and Akhtar Muhammad v. Abdul Hameed 2011 CLC 1379 rel.

Muhammad Ishtiaq Ahmad Raja for Appellants.

Barrister Ammer Hussain Khushnood for Respondent No.2.

2017 C L C 681

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mst. SAFA ARSHAD----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE (EAST), ISLAMABAD and others----Respondents

Writ Petition No.1359 of 2016, decided on 7th November, 2016.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 5---Family Courts Act (XXXV of 1964), S.5, Sched.---Suit by wife for recovery of maintenance allowance, dower and dowry articles---Defendant husband who had divorced the lady claiming decree for restitution of conjugal rights---Framing of issues---Necessity---Family Court decreed the suit partially but Appellate Court remanded the same with the direction to frame issues in the light of pleadings of the contesting parties---Validity---Provisions of Civil Procedure Code, 1908 though were not applicable to the proceedings before the Family Court but principles enshrined therein might be invoked for the just and proper adjudication of the case---Nothing was on record that defendant agitated the framing of additional issue before the Family Court at any stage---Defendant was estopped from seeking an issue to be framed after conclusion of trial---Appellate Court should have appreciated that prayer for a decree for restitution of conjugal rights could not be granted as Talaq had been confirmed---Defendant should have insisted on framing of an issue with regard to conjugal rights---Non-framing of an issue by the Family Court was not even a ground taken in the defendant's appeal---Impugned judgment passed by the Appellate Court was set aside and judgment and decree passed by the Family Court were restored---Constitutional petition was allowed in circumstances.

Mst. Sughra Bibi v. Asghar Khan 1988 SCMR 4; Eada Khan v. Mst. Ghanwar 2004 SCMR 1524; Noor v. Mst. Sattan PLD 2013 Lah. 30; Mehmood Ahmad v. Malik Abdul Ghafoor PLD 2011 Lah. 522; Charagh Begum v. Raj Muhammad 2004 YLR 1421; Karam Dad v. Mst. Barkat Jan 2004 CLC 910; Capital Development Authority v. Shaikh Muhammad Hanif 2003 CLC 1684 and Abdul Baqi v. Abdul Baseer Qureshi 1982 SCMR 478 rel.

Ali Raza Kayani for Petitioner.

Sajid Abbas Khan for Respondent No.2.

2017 C L C 712

[Islamabad]

Before Aamer Farooq, J

DILSHAD AHMED KHAN----Petitioner

Versus

NIAZ AHMAD ZAHID and others----Respondents

Civil Revision No.167 of 2015, decided on 21st December, 2016.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment in plaint seeking addition of relief for specific performance---Scope---Plaintiff sought amendment in plaint in paragraph of relief by adding the relief of specific performance---Petition for amendment was dismissed by the Trial Court---Validity---Where in a suit for declaration new relief of specific performance of agreement to sell was sought which was based on assertions already made in the plaint, same would not change the nature of suit---Amendment sought in the plaint by way of seeking relief of specific performance of agreement to sell and declaration vis-à-vis the cancellation of general power of attorney did not change the nature of suit or complexion of suit or introduced a new cause of action---Impugned order passed by the Trial Court was set aside and application for amendment was ordered to be accepted subject to cost of Rs.10,000/- to the defendant---Defendants would be entitled to file amended written statement---Revision was allowed in circumstances.

Javaid Iqbal v. Abdul Aziz etc. PLD 2006 SC 66 ref.

Mst.Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Niamatullah Khan and others v. Additional District Judge, Bannu and others 1994 MLD 2332; Mst.Zubaida Bibi v. Mst.Hashmat Bibi and others 1993 SCMR 1882; Muhammad Ismail and others v. Roshan Ara Begum and others PLD 2001 Lah. 28 and Ali Asghar Shah v. Hashim Shah and others 1996 CLC 1252 rel.

Shams Iqbal for Petitioner.

Ch. Tasneem Bari Salimi for Respondents.

2017 C L C 839

[Islamabad]

Before Mohsin Akhtar Kayani, J

NASEEM AHMED KHAN and others----Appellants

Versus

Syed FAHAD ALI and others----Respondents

R.S.A. No.7 of 2016, decided on 14th November, 2016.

(a) Islamic law---

----Gift---Oral gift---Scope---Any person of sound mind may dispose of his property by way of gift and writing is not essential to validity of gift.

Section 19 of Mohammadan Law rel.

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

----S. 123---Gift of immovable property---Procedure---For the purpose of making gift of immovable property, transfer must be effected by a registered instrument signed by or on behalf of doner and attested by at least two witnesses.

Ghulam Zainib and another v. Said Rasool and others 2004 CLC 33 rel.

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

----S. 100---Second appeal---Maintainability---Pre-conditions.

Following legal principles emerge that second appeal lies:

i. when decision assailed is contrary to law;

ii. failure to determine some material issues of law;

iii. decision based upon undisputed facts, which has not been appreciated by Courts below on wrong principle of law;

iv. interpretation and legal effect of any document is also a question of law, which has not been appreciated by the Courts below;

v. failure to appreciate and determine a question of fact, which materially affects principal issue of the case and as a result of such basic question of fact, constitutes an error in law;

vi. decision based on erroneous reasoning and incorrect exposition of law;

vii. decision based upon evidence, which has not been pleaded by parties in their pleadings and Courts below have not given any reason for change of plea and evidence and wrongly appreciated the law;

viii. courts below have committed error or defect in the procedure, which is of substantial nature and decision is based upon such defect; and

ix. question of admissibility of evidence.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan PLD 1966 SC 612; Messrs Irum Ghee Mills Limited v. Income Tax Appellate Tribunal and others 2000 SCMR 1871 and Rangalal Sutradhar and others v. Satish Chandra Poddar PLD 1960 Dacca 52 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.100 & O.V1, R.2---Qanun-e-Shahadat (10 of 1984), Art. 117 & 120---Second appeal---Plea raised---Onus to prove---Plaintiffs claimed to be owners of suit property on the basis of oral gift in their favour---Trial Court dismissed the suit but Lower Appellate Court allowed appeal in favour of plaintiffs and decreed the suit---Validity---Plea of oral gift was raised by plaintiffs and the same had not been proved---Onus and obligation to prove fact raised was the responsibility of the person who had alleged that fact---Plaintiffs after departure from pleadings had gone beyond their plea, therefore, as a result of such departure suit failed whereas Lower Appellate Court refused to acknowledge such departure rather failed to appreciate the most important and crucial plea referred in the plaint---Plaintiffs did not prove material facts, which were pleaded in their plaint, rather substituted their testimony through other witnesses---Such substitution and departure was substantial question of law, which could be taken up at the level of second appeal---Lower Appellate Court wrongly considered factum of declaration of oral gift without considering pleadings of plaintiffs---High Court set aside the judgment and decree passed by Lower Appellate Court as the court had committed material error on factual side, which resulted in wrong application of law---Judgment of Trial Court was restored---Second appeal was allowed.

Ghulam Nabi through L.Rs. and others v. Tahir Abbas and others 2006 CLC 546; Trading Corporation of Pakistan (Pvt.) Limited v. Messrs Nidera Handelscompagnie B.B. Meent 94, P.O. Box 676, 3000 AR Rotterdam The Netherlands and another 2007 CLC 462 and Rafiq Dawood and 4 others v. Messrs Haji Suleman Gowa Wala & Sons Ltd. through Director and others 2009 CLC 1070 ref.

Muhammad Ejaz and 2 others v. Mst.Khalida Awan and another 2010 SCMR 342 and Sardara and Allah Ditta through Legal Heirs and others v. Mst. Bashir Begum and another PLD 2016 Lah. 587 rel.

Syed Asad Ali Saeed for Appellants.

Tariq Ameen for Respondents Nos.1 and 2.

Tariq Masud for Respondent No.3.

2017 C L C 878

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Homeopathic Dr. JAMIL AKHTAR GHAURI----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

I.C.As. No.143, 144 and 145 of 2012, decided on 30th August, 2016.

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

----Ss. 8 & 13---General Clauses Act (X of 1897), S.21---National Council for Homeopathic---Members, appointment of---Locus poenitentiae, principle of---Applicability---Appellants were appointed members of National Council for Homeopathic but subsequently Federal Government issued notification replacing other doctors in place of appellants as members of National Council for Homeopathic---Validity---Issuance of notification nominating some of the members of National Council for Homeopathic under S.8 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965, was a culmination of a consultative process with Provincial Governments for selection of Homeopathic doctors for nomination as members of National Council for Homeopathic by Federal Government---Result of such process could not simply be undone by resort to S.21 of General Clauses Act, 1897---Appointment to the post of Director was a term appointment and such term could be curtailed or tinkered with only for justifiable reasons that too in accordance with S.13 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965, and after observing principles of natural justice---High Court, in intra court appeal, set aside the order passed by single Judge of High Court resultantly notification in question was set aside---Intra court appeal was allowed accordingly.

Commissioner of Income Tax v. Media Network PLD 2006 SC 787; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Moazzam Husain Khan v. Government of Pakistan and others PLD 1958 (W.P.) Kar. 35; Allauddin Akhtar v. Government of Punjab 1982 CLC 515; Dr. Aftab Ahmad Malik v. University of Engineering and Technology 2005 PLC (C.S.) 80; Homoeopathic Doctor Muhammad Zahir v. Federation of Pakistan 2011 CLC 427; Mrs. Jamshed Naqvi v. Azad Jammu and Kashmir Government 2013 PLC (C.S.) 1037; Babar Sattar v. Federation of Pakistan 2015 CLD 134; P.L. Dhingra v. Union of India AIR 1958 SC 36; L.P. Agarwal v. Union of India AIR 1992 SC 1892 and P. Venugopal v. Union of India (2008) 5 SCC 1 ref.

Aamir Abdullah Abbasi and Sher Afzal Khan for Appellant.

Niaz Ahmed Rathore and Muhammad Arbab Alam Khan Abbasi for Respondents.

Khawaja Imtiaz, Standing Counsel.

2017 C L C 941

[Islamabad]

Before Aamer Farooq, J

NOMAD ART GALLERY CENTER----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman----Respondent

Civil Revision No.410 of 2016, heard on 10th January, 2017.

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

----O. XXXIX, Rr.1 & 2(3), O.XLIII, R.1, Ss.104, 115 & 151---Injunctive order, violation of---Restoration of possession---Appeal---Competency---Suo motu revisional jurisdiction of High Court---Scope---Trial Court issued notice and meanwhile granted status quo---Defendant had taken possession of the property in question---Plaintiff moved application for restoration of possession which was accepted by the Trial Court and possession was restored but Appellate Court set aside the said order of Trial Court---Validity---Court granting injunctive relief had the jurisdiction to restore the possession of property in case the same was taken away in violation of the injunctive order---No appeal would lie against the order for restoration of possession---Trial Court had ordered for restoration of possession on the assumption that possession was taken over by the defendant on the date of passing of impugned order---Court could order status quo ante under its inherent jurisdiction under S.151, C.P.C., however said provision of law was not appealable---Appeal was a substantive right and could only be exercised if available---Non-availability of such right or invocation of the same when it was not available could not be regarded as a mere technicality---Appeal filed by the defendant was not maintainable---Injunctive order passed by the Court was not operative unless other side against whom the order had been passed was served with the same---Trial Court had deferred the adjudication of issue whether defendant had knowledge of the interim order but proceeded to restore possession---Trial Court had only the jurisdiction to restore the possession if injunctive order had been violated and violation could only be attributed to the other side if it was aware of the same---Grant of restoration of possession could not have been made unless it was first adjudicated whether defendant had knowledge of the status quo order---Impugned order for restoration of possession was not tenable in circumstances---If said order was left intact then same would be unjustified---High Court had suo motu revisional power to correct any illegality/jurisdictional error---High Court set aside order passed by the Appellate Court as well as Trial Court---Application for restoration of possession should be deemed to be pending before the Trial Court and same be decided after determining the fact whether notice of injunctive order was served on the defendant---Revision was allowed in circumstances.

Bsty. Basan Bi and 2 others v. Additional District Judge-V (East), Islamabad and others 2016 CLC 1111; Muhammad Qasim Khan v. Mst. Mehbooba and 6 others 1991 SCMR 515 and Ali Hussain v. Rafiquddin and 9 others PLD 1977 Lah. 418 ref.

Bakhtawar and others v. Amin and others 1980 SCMR 89; Muhammad Sabir Khan v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Ali Hussain v. Rafiquddin and 9 others PLD 1977 Lah. 418; M/s Hakimuddin Harmusji & Sons v. Ghafoor Textile Mills PLD 1978 Kar. 152; Mst. Gumbad v. Member Board of Revenue 1996 SCMR 1755; Muhammad Swaleh v. M/s. United Grain and Fodder Agencies PLD 1964 SC 97; Town Municipal Administration v. Rifat Hussain 2003 CLC 1370; Oil and Gas Development Corporation v. Clough Engineering Limited 2003 YLR 353; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Mst. Iqbal Bibi v. Allah Yar 2004 YLR 1279 and Kiran Arif Mian v. Kinza Khalid PLD 2008 Isl. 11 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had suo motu revisional power to correct any illegality/jurisdictional error.

Mst. Gumbad v. Member Board of Revenue 1996 SCMR 1755 rel.

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

----S. 151---Order passed under S.151 of Civil Procedure Code was not appealable.

Ali Hussain v. Rafiquddin and 9 others PLD 1977 Lah. 418 rel.

(d) Appeal---

----Appeal was a substantive right and could only be exercised if available.

Sajjad Haider Malik for Petitioner.

Tariq Mehmood Jahangiri for Respondents.

2017 C L C 952

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NATIONAL HIGHWAY AUTHORITY and others----Appellants

Versus

LILLEY INTERNATIONAL (PVT.) LTD. and others----Respondents

F.A.O. Nos.30 and 31 of 2016, decided on 2nd March, 2017.

Arbitration Act (X of 1940)---

----Ss. 30 & 33---Arbitration---Award---Objections to award---Civil court---Powers of---Scope---Construction contract---Objection to the award of sole arbitrator was that amendments made in the contract did not contain an escalation clause---Parties to the contract had amended the contract so as to introduce a price adjustment formula in the contract to cater for the price hike---Company (contractor) moved the civil court to make the award rule of the court contending that the amendments were made with mutual consent and Interim Payment Certificates (I.P.C.) raised by the company were duly certified by the engineer for which partial payment was made to the company---Company further submitted that Dispute Review Expert (DRE) and sole arbitrator were justified because the purpose of introducing the price adjustment formula in the contract through amendments was to assist in mitigating the effects of the increase in the cost of the basic construction material that had occurred since the commencement of the project---Validity---Fact that parties had introduced price adjustment formula and partial payment was made to the company was not disputed but remaining amount of Interim payment certificates was withheld in view of meeting of Executive Board which decided that benefit of price adjustment was not effective retrospectively---Dispute Review Expert recommended the remaining payment declaring that Principal (authorities) could not thrust its Executive Board's decision on the company---Witnesses of Principal before sole arbitrator admitted that during the pendency of contract, substantial rise in cost of construction material was witnessed---Sole arbitrator was cognizant that the amendments were executed between the parties voluntarily---Sole arbitrator was of the view that authorities could not wriggle out of its obligations---Sole arbitrator took into consideration the fact that first amendment was stated to be retrospective, whereas other (second) amendment was in continuation of the first amendment, thus making both amendments to be an integral part of the contract from its very inception---Sole arbitrator did not find any reason to declare the amendments in the contract as void as these amendments were partially given effect to by the authorities---Principal (Authorities) did not identify the matter before civil court that had been allegedly left undecided by the sole arbitrator and did not even specify the document or piece of evidence that would have caused sole arbitrator to come to a different conclusion---Civil court was conscious of the scope of its powers while hearing objections to an arbitration award that it could not carry out reappraisal of the entire evidence produced by the parties before the sole arbitrator like a court of appeal and held that the sole arbitrator had not committed any misconduct in rendering the arbitration award---Decision of the Executive Board of Principal (Authority) was taken much after the said amendments, therefore, the Dispute Review Expert the sole arbitrator and the civil court were correct in concurrently holding that the said decision of Executive Board could not be considered as a part of the contract between the parties---Amendments to a contract during its currency might be made for a variety of reasons, and there need not be consideration for each and every amendment to the contract independently---Reappraisal of evidence by the court was impermissible and award of arbitrator was final which could be challenged only on the grounds mentioned in Ss.30 & 33 of the Act---Interference would be available if there existed a total perversity in the award or award was based on wrong proposition of law---Sole arbitrator had not misconducted himself---Appeals were dismissed accordingly.

Mian Corporation v. Lever Brothers of Pakistan Ltd. PLD 2006 SC 169 and Premier Insurance Company v. Attock Textile Mills Ltd. PLD 2006 Lah. 534 ref.

Bilal Akbar Tarar for Appellants.

Tasaddaq Hanif for Respondent No.1.

2017 C L C 1002

[Islamabad]

Before Miangul Hassan Aurangzeb, J

EDNAN SYED and others----Petitioners

Versus

FEDERAL GOVERNMENT EMPLOYEES' HOUSING FOUNDATION and another----Respondents

Writ Petition No.2233 of 2016, decided on 28th September, 2016.

(a) Estoppel---

----Promissory estoppel---Scope---Where government functionaries make promises/representations to anyone who believes them and acts under them, those functionaries are precluded from acting to the detriment of such persons/citizens---Doctrine of Promissory Estoppel is applicable in circumstances.

Judicial Review of Public Actions by Justice (Retd.) Fazl Karim p.1365; Halsbury's Laws of England, 4th Edition and Pakistan through Ministry of Finance, Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208 rel.

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

----Art. 114---Promissory estoppel, doctrine of---Applicability---Federal Government Employees Housing Foundation invited employees of Federal Government to get membership for allotment of plots in housing scheme on 'first come first serve basis'---Petitioners got memberships but they were aggrieved of decision made by the Foundation changing criteria of preference of members with regard to allotment of plots---Validity---Once Federal Government employee registered himself in Membership Drive-I, such employee was entitled to allotment of plot in future housing schemes of Federal Government Employees Housing Foundation---Petitioners' registration in Membership Drive-I placed them in queue for allotment of plot in the Foundation's housing schemes---Membership Drive-I was not just advertised by the Foundation but Federal Government employees were encouraged to apply by submitting forms and paying registration fees---Federal Government employees who got themselves registered in such membership drive altered their position to their detriment by paying registration fees and thereafter they were marking time for turn to come for allotment of a plot---Over the time, members in Membership Drive-I swelled and Federal Government Employees Housing Foundation collected an enormous amount---Legitimate rights and expectations of such registered members could not be brought to a naught by the Foundation by relegating them to another housing scheme at a distant place---Federal Government Employees Housing Foundation could not take steps to launch another housing scheme in an expensive area of city and make plots available to members under Membership Drive-II, by abandoning criteria of 'first come first serve'---Asking members registered under Membership Drive-I to apply under Membership Drive-II or get a refund of registration fee, was not a consolation or compensation---Federal Government Employees Housing Foundation was estopped from allotting plots in existing schemes or any other future housing scheme of the Foundation to persons other than members registered under Membership Drive-I, unless such members were all accommodated or they refused offer for allotment in an existing housing scheme of the Foundation---Constitutional petition was allowed in circumstances.

Federal Government Employees Housing Foundation v. Muhammad Akram Alizai PLD 2002 SC 1079; Munir Ahmed v. Mst. Shirin 2015 SCMR 441; Muhammad Shafique v. Zafar Abbas 2004 YLR 1047; Muhammad Raza v. Jammu and Kashmir Cooperative Housing Society PLD 2013 Islamabad 49; Muhammad Riaz Mehmood v. Secretary, Government of Punjab 2016 PLC (C.S) 354; Human Right Case No.5818 of 2006, 2008 SCMR 531 and Syed Muhammad Saleem v. Ashfaq Khan 1989 CLC 1833 ref.

Omer Ismail Khalid v. Pakistan Medical and Dental Council PLD 2015 Islamabad 65; New Shaheen Trading Company v. Government of Pakistan 2008. SCMR 17; Azra Riffat Rana v. Secretary, Ministry of Housing and Works PLD 2008 SC 476; Nishat Mills Limited v. Federation of Pakistan 2005 PTD 495; Motilal Padampat Sugar Mills v. State of Uttar Pradesh AIR 1979 SC 621; Union of India v. Godfrey Philips AIR 1986 SC 806 and Sethi Auto Service Station v. DDA (2009) 1 SCC 180 rel.

Babar Sattar for Petitioners.

Mansoor Ahmed and Malik Zafar Abbas, Director Law for Respondents.

2017 C L C 1043

[Islamabad]

Before Miangul Hassan Aurangzeb, J

KHUSHNOOD AHMAD----Petitioner

Versus

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

Writ Petition No.1090 of 2015, decided on 3rd October, 2016.

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

-----Ss. 17, 5 & 28---Eviction of tenant---Relationship of landlord and tenant---Tenancy agreement---Requirements---Agreement to sell---Effect---Contention of tenant was that there was agreement to sell between the parties and he was in possession on the demised premises being owner and had filed suit for specific performance---Eviction petition was accepted concurrently---Validity---No one could remain in occupation of rental premises on the ground that he had instituted a suit for specific performance or declaration---Tenant had not paid any rent which was sufficient reason for his eviction from the premises---Tenancy agreement had to be in writing---Section 5 of Islamabad Rent Restriction Ordinance, 2001 did not take the matter out of jurisdiction of Rent Controller if rent agreement was not in writing---Discretionary power not to be exercised in favour of a person who had not come to the court with clean hands---One who had sought equity must come with clean hands---High Court under Art.199 of the Constitution could not interfere with the findings of Rent Controller merely on the ground that more than one view was possible and weigh the evidence led before the Rent Controller---Finding of facts could not be challenged on the ground that relevant material and evidence adduced before the Rent Controller was insufficient or inadequate to sustain the findings recorded by the Rent Controller---Such a Tribunal was not bound by strict rules of evidence---High Court could interfere with the findings of Rent Controller if same were perverse or irrational or arrived at by ignoring materials on record or arbitrary or contrary to the principles of natural justice---No perversity, irrationality or violation of principles of natural justice were pointed out in the proceedings recorded by the courts below---Constitutional petition was dismissed in circumstances.

Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Afzal Ahmad Qureshi v. Mursaleen 2001 SCMR 1434; Pervaiz Zafar Butt v. Muhammad Hanif 1997 SCMR 1185; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Muhammad Akhtar v. Mst. Manna and others 2001 SCMR 1700; Fakhar-ud-Din v. Mst. Mansab Bibi and others 2004 SCMR 711; Muhammad Akram Khan and another v. Awal Zaman and others 2002 CLC 1686; Dad Karim and others v. Ishaq and others 2015 CLC 107; Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525; Javaid Ahmed v. Muhammad Imran Malik PLD 2011 Islamabad 30; Mst. Naseem Fatima v. Sheikh Ala-ud-Din PLD 2005 SC 455; Khuda Bukhsh v. Muhammad Sharif 1974 SCMR 279; Messrs King Clothing v. Muhabat Khan and others 2012 CLC 939; Ali Haider v. Mubarak Din Khan 2012 YLR 1598; Rizwan Najmi v. Nusratullah Bhorey Khan 2013 YLR 2526; Muhammad Asad v. Muhammad Tariq 2010 MLD 1354 and Muhammad Taj v. Muhammad Younis Khilji 2008 CLC 1666 ref.

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; Refhat Hamidee v. Abdul Aziz, 2013 YLR 1898 and Muhammad Rafique v. Farida Khan 2016 CLC 1451 rel.

(b) Estoppel---

----Applicability---Scope---Estoppel would apply to a party who attempted to blow hot and cold.

(c) Approbate and reprobate---

----One could not be permitted to approbate and reprobate to the detriment of the opponent.

M. Aleem Khan Abbasi, Hamood-ur-Rehman Khan and Rana Ghulam Asghar Khan for Petitioner.

Tariq Mahmood Jehangiri for Respondents Nos.2 to 7.

2017 C L C 1085

[Islamabad]

Before Shaukat Aziz Siddiqui, J

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman----Petitioner

Versus

ABEER MASOOD----Respondent

Civil Revision No.341 of 2016, heard on 14th December, 2016.

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

----S. 42---Suit for declaration---Correction of date of birth in educational testimonials---Scope---Contention of plaintiff was that her date of birth was 17-08-1994 instead of 17-08-1992---Suit was decreed concurrently---Validity---Once a document was admitted in evidence it could not be ruled out of consideration on subsequent objection of its admissibility---Computerized National Identity Card would be treated more authentic in case of disparity in date of birth recorded in the same and educational testimonials as it had presumption of truth---CNIC could be considered in evidence and would hold field unless same was rebutted by good and better evidence---Admission form was not sufficient to rebut the entries of CNIC which had been corroborated with birth certificate---Physio-Chemistry of birth of two brothers on different dates could not be lumped together for the purpose of determination of their date of births---If version of defendant that date of birth of plaintiff was 17-08-1992 be presumed to be correct then the result would be that her elder brother would be presumed to have born after four months which was not possible---Mistake in recording entries of date of birth in academic institutions was not uncommon---Such mistake should be corrected if no prejudice was caused to any other---Revision was dismissed in circumstances.

Board of Intermediate and Secondary Education v. Junaid Iqbal Bajwa 2005 YLR 2114; Salma Altaf v. Principal Junior Bernhall Girls College 2001 CLC 972 and Muhammad Arshad v. Mian Noor Ahmed 2008 SCMR 713 distinguished.

Haji Abdul v. Yahya Bakhsh PLD 2001 SC 158; Malik Din v. Muhammad Aslam PLD 1969 SC 136; Abdullah v. Abdul Karim PLD 1968 SC 140; Allah Rakha v. Muhammad Ameen 194 SLC 1494(sic); Abdul Karim v. Bashari Ahmed 1988 CLC 1400; Shahida Parveen v. Samiullah Malik PLD 2006 Lah. 401; Muhammad Saadiq v. Shah 2003 YLR 79; Ahmed Ali v. Manzoor Hussain 2008 YLR 109; Abdul Khaliq v. M Noor PLD 2005 SC 962; BISE v. Hassan Salma 2000 SCMR 1415 and 2001 SCMR 1700 rel.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact recorded by the Courts below could not be interfered in exercise of revisional jurisdiction on the ground that different view on reappraisal of evidence was possible.

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

----S. 115---Revision---Plea not raised before Courts below could not be raised at revisional stage.

Mir Afzal Malik for Petitioner.

Raja M. Aleem Khan Abbasi for Respondent.

2017 C L C 1173

[Islamabad]

Before Aamer Farooq, J

MOHAMMAD WAQAS MALIK, ADVOCATE----Petitioner

Versus

ISLAMABAD BAR COUNCIL through Secretary and 2 others----Respondents

Writ Petition No.4776 of 2016, decided on 18th January, 2017.

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

----S. 13(2)---Constitution of Pakistan, Art.199---Constitutional petition--- Maintainability--- Bar Council, status of--- Factual controversy---Alternate remedy, availability of---Petitioner was an office bearer of High Court Bar Association who assailed notice issued to him by Bar Council---Respondents raised the plea that petition was not maintainable on various grounds including non-availing of alternate remedy; rules of Bar Council being non-statutory and dispute pertained to question of facts---Validity---Bar Council could not be regarded as a person performing functions in connection with the affairs of the Federation, Province or local authority---High Court, in exercise of its powers under Art.199 of the Constitution declined to pass any order against respondents---Constitutional petition was dismissed in circumstances.

Pakistan International Airline Corporation and others v. Tanveer-ur-Rehman PLD 2010 SC 676; Pir Imran Sajid v. Managing Director/General Manager Telephone Industry of Pakistan 2015 SCMR 1257 and Abdul Wahab v. HBL and others 2013 SCMR 1383 ref.

Riaz Hanif Rahi and M. Asif Gujjar for Petitioner.

2017 C L C 1215

[Islamabad]

Before Athar Minallah, J

The OPEN INTERNATIONAL UNIVERSITY FOR COMPLIMENTARY MEDICINE, SRI LANKA----Petitioner

Versus

HIGHER EDUCATION COMMISSION and others----Respondents

Writ Petition No.18 of 2017, heard on 31st January, 2017.

(a) Higher Education Commission Ordinance (LIII of 2002)---

----S. 10(2)(h)---Foreign educational institutions---Scope---Higher Education Commission has wide powers which also extend to institutions established abroad---Expression `institution' is defined in cl.2(h) of S.10 of Higher Education Commission Ordinance, 2002, as any university or other degree awarding institution that offers higher education or is involved in research and development activities---Definition of 'institution' is exclusive and is not restricted to an institution established within Pakistan.

(b) Higher Education Commission Ordinance (LIII of 2002)---

----S. 10---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner was a university of foreign country and it assailed inclusion of its name in the list prepared by Higher Education Commission declaring same as illegal university---Validity---Natural person represented himself as Vice-Chancellor of Pakistan Chapter of petitioner university---Bank accounts operated by such person were not in the name of petitioner university---Vice-Chancellor had been mistakenly representing to general public that petitioner university was recognized by the Commission---No credible document was placed on record to show that he had authority to file petition or petitioner university actually had an existence or was a degree awarding educational institution--- Petitioner university had to show to the satisfaction of the Commission that information published pursuant to the powers conferred under S.10(1)(x) of Higher Education Commission Ordinance, 2002, was not correct---High Court directed that if a representation was made to the Commission, the later would afford opportunity of hearing to an authorized representative of petitioner university could also conduct such inquiry as it would deem appropriate---High Court directed the Commission to amend the list, if petitioner university would able to satisfy the Commission that information relating to it in disputed list was incorrect---Petition was dismissed in circumstances.

Sher Afzal for Petitioner.

Qaisar Sarwar for Respondents.

2017 C L C 1242

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Syed USMAN KHALID----Petitioner

Versus

ATTA MOHAMMAD and others----Respondents

Writ Petition No.372 of 2016, decided on 3rd April, 2017.

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

----S. 17---Ejectment of tenant---Personal bona fide need of landlord---Default in payment of rent---Tentative rent order---Term 'monthly rent which subsequently becomes due'---Connotation---Rent agreement---Scope---Rent Controller passed tentative rent order for deposit of rent before the fifteenth day of each succeeding month---Eviction petition was dismissed by the Rent Controller but Appellate Court accepted the same on the ground that tenant had violated the tentative rent order passed by the Rent Controller---Validity---Term 'monthly rent which subsequently becomes due' referred to the monthly rent which became due in the period after passing of tentative rent order until eviction petition was decided---Section 17(8) of Islamabad Rent Restrictions Ordinance, 2001 referred to a 'specified date' by which Rent Controller could require the tenant to deposit the unpaid rent accumulated upto the date of passing the tentative rent order---Rent agreement had role in not just determining the quantum of tentative rent but also the manner and time when same was to be paid---If rent agreement had provided for payment in advance then Rent Controller in tentative rent order could require the tenant to pay the tentative rent in advance---Section 17(8) of Islamabad Rent Restrictions Ordinance, 2001 did not prohibit the Rent Controller from requiring the tenant to pay the tentative rent in advance---If Rent Controller had ordered to pay tentative rent in the succeeding month despite the fact that rent agreement required the tenant to pay rent in advance or vice versa then unless such order was modified the tenant would be bound to comply with the said order---Tentative rent order had obligated the tenant to deposit tentative rent on or before fifteenth day of each succeeding month in future---Rent Controller did not strike off the tenant's defence for depositing tentative rent with delay---Rent Controller was cognizant of the obligation placed on the tenant to deposit tentative rent for each month by the fifteenth day of every succeeding month and not the current month---Appellate Court had interpreted the tentative rent order passed by the Rent Controller and penalized the tenant by holding that he had defaulted in showing compliance with the said order---Tenant deposited the tentative rent for each month before the fifteenth day of each succeeding month---Such a deposit was in consonance with the direction contained in the tentative rent order---Appellate Court was not correct in holding that tenant had defaulted in showing compliance with the tentative rent order passed by the Rent Controller---Defence of tenant was liable to be struck off unless compliance was shown by the tenant with the tentative rent order passed by the Rent Controller---Even a single day's default in showing compliance with a tentative rent order would entail penal consequences---Where rent agreement did not require the tenant to pay rent in advance then Rent Controller ought to specify in the tentative rent order that future rent was to be deposited by the tenant by the fifteenth day of succeeding month and not the current month---Impugned judgment passed by the Appellate Court was set aside and matter was remanded for decision afresh---Appellate Court might consider landlord's plea with regard to the bonafide need for the rented premises---Constitutional petition was allowed in circumstances.

Mohammad Zahir v. Mst. Hussan Zari 2007 CLC 556; Messrs Unique Services v. Occupant Owners Welfare Association 2003 YLR 466; Shoaib Mohammad v. Kulsoom Bibi 2006 YLR 1389; Malik Nazar Hussain v. Commander (R.) Zafar Iqbal PLD 2006 Lah. 684; Pervaiz Masood Dar v. Riffat Masood Dar 2007 CLC 140; Mirza Irfan Baig v. Mubashar Ahmad Bajwa 2007 CLC 234; Ghulam Mohammad v. Mrs. Mustafa Kazmie 2012 YLR 1291; Mrs. Ghazala Iftikhar v. Controller/ Additional Controller of Rents 2012 YLR 74; Syed Bilal Adil v. District Judge West-Islamabad 2015 YLR 2405; Mohammad Naseer v. Sajid Hussain 2009 SCMR 784; M.H. Mussadaq v. Muhammad Zafar Iqbal 2004 SCMR 1453; Ibrahim Trust, Karachi v. Shaheen Freight Services PLD 2011 SC 331; Mehboob Illahi v. Saqib Mehmood Riaz 1990 SCMR 1688; Muhammad Ashfaq v. Aziz-ur-Rahman 1993 CLC 2293; Mian Ashraf Hussain v. Asad Bashir Bajwa 2007 CLC 579; Mohammad Naeem Abbasi v. Mst. Mohammad Jan 2008 MLD 1659 and Mrs. Abida Mahmood v. Malik Mohammad Bashir 2014 YLR 1525 ref.

Tahir Mahmood Abbasi for Petitioner.

Hafiz Ali Asghar and Safeer Khadim for Respondent No.1.

2017 C L C 1259

[Islamabad]

Before Athar Minallah, J

ACCESS SOLAR (PVT.) LTD. and 2 others----Petitioners

Versus

FEDERATION OF PAKISTAN and 3 others----Respondents

W.P. No.4169 of 2015, decided on 9th May, 2017.

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

----Ss. 7(3)(a) & 31---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R.2(m)---National Electric Power Regulatory Authority (Market Operator Registration, Standards and Procedure) Rules, 2015, Rr.2(d) & 19---National Electric Power Regulatory Authority Upfront Tariff (Approval and Procedure) Regulations, 2011, Reg.2(j)---Central Power Purchasing Agency ("the Purchasing Agency), powers of---Scope---Solar power project---Tariff approved by National Electric Power Regulatory Authority ("the Authority")---Refusal on the part of the Purchasing Agency to execute power purchase agreement with a power generation company (petitioner) based on the tariff approved by the Authority---Legality---Purchasing Agency had no role in tariff determination nor it was empowered to negotiate the tariff with a power generation company which had become eligible under the Policy for Development of Renewable Energy for Power Generation, 2006---Orders passed by the Authority were binding on the Purchasing Agency and violation thereof could expose it to the imposition of a penalty under R.19 of the National Electric Power Regulatory Authority (Market Operator Registration, Standards and Procedure) Rules, 2015---Purchasing Agency had no jurisdiction whatsoever to question the determination made by the Authority on the ground that the rights of the consumers had been ignored---Purchasing Agency, at best, could seek meaningful participation in the determination process or the Federal Government may seek reconsideration of the approved tariff under the proviso to the S.31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Purchasing Agency was not empowered to act as a forum of review or appeal in relation to determination of tariff made by the Authority---After the approval was given by the Authority regarding the petitioner's option in respect of a certain tariff, then upon intimation the Federal Government was either required to publish the same in the official Gazette or to have exercised the remedy available under the proviso to the S.31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Valuable rights had accrued in favour of the petitioner for giving effect to the approval of the Authority in respect of the tariff---High Court directed that the Authority, after issuing a notification, shall intimate the same to the Federal Government for publication in the official Gazette; that in case the Federal Government decided not to avail the remedy provided under the proviso to S.31(4) then it shall cause the notification to be published in the Official Gazette; that in the event the Federal Government elected to file a petition for reconsideration of tariff within the specified time prescribed under the proviso to S.31(4), the Authority was expected to complete the proceedings, having regard to the time mentioned therein; that the interested parties, including the Purchasing Agency, shall be afforded a meaningful participation, and on completion of the proceedings under S.31(4) or the proviso thereto, the notification regarding approval of the Authority shall be published in the official Gazette and thereafter the Purchasing Agency shall execute the agreement by incorporating the tariff notified under S.31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Constitutional petition was allowed accordingly.

(b) Administration of justice---

----An act had to done and performed in the manner prescribed under the law.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional jurisdiction of the High Court could be invoked where rights were based on a statute and rules or regulations framed thereunder or when the grievance was in respect of obligations or duty vested in public functionaries or a statutory body.

Aitzaz Ahsan and Gohar Ali Khan for Petitioner.

Asghar Khan and Faisal Atta for Respondent No.2.

Syed Mudassir Ali Rizvi for Respondent No.3.

Munawar-us-Salam and Ajmal Ghaffar Toor for Respondent No.4.

2017 C L C 1306

[Islamabad]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

The COLLEGE OF PHYSICIANS AND SURGEONS OF PAKISTAN (CPSP)----Appellant

Versus

The FOP and others----Respondents

I.C.A. No.571 of 2012, decided on 9th February, 2017.

(a) Words and phrases---

----"Accreditation"---Connotation---"Accreditation" essentially has the meaning of recognizing someone or something as having a particular status.

Black's Law Dictionary, Ninth Edition; Oxford English Dictionary and Chambers Dictionary, Tenth Edition rel.

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

----S. 3---Medical and Dental Council---Object, purpose and scope---All qualifications relating to medicine, whether at graduate or post graduate level and whether in the nature of degrees, licenses or diplomas or in any other form, are regulated exclusively by and under Pakistan Medical and Dental Council Ordinance, 1962---Council has been established under S.3 of Pakistan Medical and Dental Council Ordinance, 1962, for such purpose in order to achieve a uniform minimum standard with regard thereto---Medical institutions or hospitals may be established by legislature through legislative enactments and vested with power to grant degrees, yet they would be subject to regulatory framework mandated under Pakistan Medical and Dental Council Ordinance, 1962, unless legislature, through express and unambiguous language has intended otherwise.

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

----Ss.3, 23 & Third Schedule---Pakistan College of Physicians and Surgeons Ordinance (XX of 1962), Ss. 3 & 5---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---"Accreditation"---Additional medical qualifications---Pakistan Medical and Dental Council, jurisdiction of--- Appellant college granted accreditation to a private hospital for postgraduate teaching experience but the Council did not recognize the same---Single Judge of High Court, in exercise of Constitutional jurisdiction, declined to interfere in the order passed by Pakistan Medical and Dental Council---Validity---Accreditation of a hospital by appellant college for the purposes of a recognized additional medical qualification was without lawful authority and had no legal status unless endorsed or approved under Pakistan Medical and Dental Council Ordinance, 1962---Appellant college was subject to regulatory framework provided in Pakistan Medical and Dental Council Ordinance, 1962, including powers relating to seeking information or inspection through inspectors---Appellant college and postgraduate degrees awarded by it had an enviable repute and standing within and outside Pakistan---High Court observed that Pakistan Medical and Dental Council, would take appropriate and timely measures, in consultation with appellant college to remedy the irregularities in respect of accreditation or approval of hospitals in connection with training of students or other matters leading to award of recognized additional medical qualifications granted by appellant college and included in Third Schedule to Pakistan Medical and Dental Council Ordinance, 1962 and that Council in its regulatory capacity was expected to attend to the grievance of Consultants and resolve the same in accordance with law---Intra court appeal was disposed of accordingly.

Pakistan Medical and Dental Council v. Ziauddin Medical, University PLD 2007 SC 323 rel.

Dr. Khalid Ranjha, ASC for Appellant.

Attaullah Hakim Kundi for Respondent No.3.

Tariq Saeed Rana for Respondent No.5.

Anwar Kamal and Muhammad Umar Vardag, Senior ASC for Respondents Nos.6 to 14.

Rehman Seerat for Respondent No.15.

Israr-ul-Haq, Standing Counsel.

2017 C L C 1493

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SAIFCO GROUP through Chief Executive and another----Petitioners

Versus

PRIVATISATION COMMISSION OF PAKISTAN and others----Respondents

W.P. No.1505 of 2017, decided on 20th June, 2017.

(a) Public Procurement Rules, 2004---

----R. 27---Constitution of Pakistan Art.199---Public procurement---Privatization of public assets---Constitutional jurisdiction of High Court--- Scope--- Extension in deadline for submission of bids----Scope---Petitioner sought a direction to the respondent Privatization Commission of Pakistan to receive Statement of Qualification (SOQs) from the petitioners in response to the expression of interest for privatization of shares of a Bank----Contention of the respondents, inter alia, was that the petitioners could not be granted an undue advantage by accepting their SOQs beyond the stipulated deadline---Validity---No provision existed in the documents authorizing the (respondent) Privatization Commission of Pakistan to extend deadline for submission of SOQs after lapse of the same---Relaxation of such deadliness by State or its agencies in favour of a particular bidder was not permissible unless expressly provided for in the tender conditions or applicable rules---Executive agency must be rigorously held to the standards by which it professed its actions to be judged---High Court could not rewrite the conditions in the advertisement or the SOQs so as to suit the convenience of the petitioners enabling them to submit the same beyond the stipulated period---High Court observed that the law never tolerates an indolent litigant since delay defeated equity---Petitioners were therefore not entitled to grant of any equitable relief by the High Court under its Constitutional jurisdiction, which was consistent with the trend of judicial restraint in administrative actions---Constitutional petition was dismissed, in circumstances.

Vitarelli v. Seaton (1959) 359 US 535; Aliya Hamayun v. Nadeem-ul-Haq 2014 CLC 958; Shafco International v. Chairman Pakistan Telecommunication Corporation, Karachi 1995 MLD 146; Azam & Co. Solicitors v. Legal Services Commission [2010] EWCA Civ, 1194; Sorath Builders v. Shreejikrupa Buildcon Limited (2009) 11 SCC 9; Nokia India (Pvt.) Ltd. v. Mahanagar Telephone Nigam Ltd. AIR 2003 Delhi 474; K.V. Joseph and Sons v. Surya Constructions AIR 2005 Kerala 159; Siemens Ltd. v. Mumbai Railway Vikas Corporation Ltd. (Writ Petition No.2449/2010); Aisha Siddique v. Senior Terminal Manager (2003 (2) AWC 1642); Vijayashanti Instruments Corporation v. Directorate of Women Development and Child Welfare (1998 (1) ALD 515 and Shri Mahalaxmi Construction Corporation v. Chief Engineer, Yamuna Basin Jal Sansadhan Vibhag 1993 (O) MPLJ 295 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioners, in a Constitutional petition under Art.199 of the Constitution, could not be permitted to depart from their pleadings.

Echo West International Private Limited v. Government of Punjab PLD 2009 SC 406 rel.

Barrister Gohar Ali Khan for Petitioners.

Barrister Khurram Hashmi, Abdul Haseeb Khan Senior Legal Consultant Privatisation Commission for Respondent No.1.

2017 C L C 1512

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Col. (Retd.) NADEEM SHAFIQUE RAJA----Petitioner

Versus

JAMSHED KHAN BARKI----Respondent

C.R. No.361 of 2013, decided on 17th April, 2017.

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

----S. 54---Civil Procedure Code (V of 1908), S.107---Suit for permanent injunction---Ex parte proceedings against the defendants---Disposal of suit on the basis of statement of defendant---Appellate Court, powers of---Remand of case--- Ex parte proceedings---Scope---Agreement was entered into between the parties with regard to construction of road/passage to be used jointly---Defendant put up a barrier on the said passage and plaintiff filed suit for permanent injunction wherein defendant was proceeded against ex parte---Defendant appeared in the Trial Court and got recorded his statement that he had no objection if passage in question is used by the plaintiff and his employees---Trial Court disposed of the suit with the observation that defendant should abide by the undertaking/statement---Appellate Court, however, decreed the suit in term of relief sought in the suit---Validity---Appellate Court had same jurisdiction that vested in the Trial Court and entire lis would reopen without any restriction placed by the order or decree pleaded against---Appeal was continuation of original suit and Appellate Court had power to thrash out and evaluate the entire evidence and scrutinize the available record---Appellate Court had power to uphold, modify or reverse the decree or order appealed against---Judgment of Trial Court would merge into the judgment of Appellate Court---Proceedings before the Trial Court had reached the stage of final arguments after recording ex parte evidence of plaintiff---Trial Court recorded the statement of defendant---Defendant could not complain that he was not heard on merits of the case---Defendant could not insist for the Appellate Court to remand the case to the Trial Court for arguments---If Appellate Court found the impugned decree or order of lower Court, to be erroneous or against the law or facts, then it was required to correct the same in appellate proceedings---Remand order should be avoided unless exceptional circumstances called for the same---Even though defendant had been proceeded against ex parte he nonetheless had a right to participate in the proceedings at a subsequent stage---Where an ex parte order had been passed against the defendant he could not ask for the reopening of proceedings unless sufficient cause was shown---Defendant could join proceedings at any stage---Defendant had at no material stage applied for the setting aside of the ex parte proceedings---Trial Court instead of simply deciding the case on the basis of statement of defendant ought to have decided the same on merits i.e. on the basis of material available on record---Agreement was executed between the parties with regard to construction of road for common use---Road constructed pursuant to said agreement was to be joint property of the parties to the said agreement---Said agreement did not provide for the restriction qua the use of road in question---Defendant could not arrogate to himself the right to approve the list of persons authorized by the plaintiff to use the passage in question---Trial Court had not exercised jurisdiction vested in it by not deciding the case on its merits---No infirmity factual or legal had been pointed out in the findings recorded by the Appellate Court---Revision was dismissed in circumstances.

Tyeb v. Messrs Alpha Insurance Company Limited 1990 CLC 428; Syed Mushtaq Ali v. Master Khushi Muhammad PLD 1961 (W.P.) Lah. 792 and Mst. Banori v. Jilani PLD 2010 SC 1186 ref.

Police Department through Deputy Inspector General of Police v. Javid Israr 1992 SCMR 1009; Sabir Ali v. Khalida Parveen 2006 YLR 638 and Muhammad Mussain v. Dana Begum PLD 2004 SC (AJ&K) 20 rel.

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

----S. 107---Appellate Court, powers of---Scope---Appellate Court being last Court of fact could do all that the original/Trial Court could do.

(c) Appeal---

----Appeal was continuation of trial.

Shamshad Ullah Cheema for Petitioner.

Muhammad Younis Bhatti for Respondent.

2017 C L C 1632

[Islamabad]

Before Aamer Farooq, J

WILSON'S PHARMACEUTICALS----Petitioner

Versus

DRUG REGULATORY AUTHORITY OF PAKISTAN through Chief Executive Officer, Islamabad and others----Respondents

C.R. No.216 of 2017, decided on 8th June, 2017.

Drugs Act (XXXI of 1976)---

----S. 39---Specific Relief Act (I of 1877), Ss.42, 54 & 56(d)---Civil Procedure Code (V of 1908), S.115 & O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Civil court, jurisdiction of---Plaintiff assailed fixation of price by the authorities of drug manufactured by him and sought interim injunction which was concurrently declined by Trial Court as well as Lower Appellate Court---Validity---Ousting of jurisdiction as provided in S.39 of Drugs Act, 1976 operated only if Board or Drug Court had acted in accordance with four corners of law---When there was any illegality or jurisdictional defect in exercise of authority, same could be examined by civil court being courts of plenary jurisdiction---Ouster clause was not an impediment in exercise of jurisdiction by civil court---No injunction could be granted under S.56(d) of Specific Relief Act, 1877, against exercise of authority by public functionary---If public functionary had acted illegally or with mala fide, exclusion clause was not applicable---Both courts below had erred in holding that civil court did not have jurisdiction in view of S.39 of Drugs Act, 1976---Such conclusion reached by courts below was without examination of fact that whether authorities had exercised their authority in accordance with law or acted with mala fide---High Court set aside orders passed by two courts below as jurisdiction exercised by said courts was with material irregularity and case was remanded to Trial Court for decision afresh---Revision was allowed accordingly.

Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995 ref.

Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180; Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356; Province of the Punjab through Collector District Khushab, Jauharabad and others v. Haji Yaqoob Khan and others 2007 SCMR 554; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; M/s Getz Pharma (Pvt.) Ltd. through Authorized Person v. Province of Sindh through Chief Secretary, Government of Sindh and 7 others PLD 2016 Sindh 479 and Liaqat National Hospital Association through Chairman, Governing Body and another v. Province of Sindh through Chief Secretary and 5 others PLD 2002 Kar. 359 rel.

Amjad Hameed Ghouri for Petitioner.

2017 C L C 17

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

HABIB BANK LIMITED----Appellant

Versus

LIQUIDATOR NATIONAL CONSTRUCTION COMPANY (PAKISTAN) LTD.----Respondent

First Appeal No.89 of 2002, decided on 19th September, 2016.

Contract Act (IX of 1872)---

----S. 171---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9 & 22---Suit for recovery of money---Lien without contract---Scope---Suit was filed by borrower assailing lien marked by Bank over amount lying in the account---Banking Court decreed the suit in favour of borrower and against the Bank---Validity---Lien was a right in one man to retain that which was in his possession but belonged to another person, till certain demands of the person in possession were satisfied---Under the provisions of S.171 of Contract Act, 1872, a Banker, amongst others named therein, in absence of a contract to the contrary, had a right to retain as security for a general balance of account goods bailed to him---Bank retained subject margin amount under lien to secure partially outstanding liability till such time either the original guarantees were returned or a no claim/discharge certificate in lieu thereof was provided to sank for reversal of liability outstanding thereagainst---Banking Court while passing judgment and decree failed to recognize self-same right of Bank under S.171 of Contract Act, 1872, and committed an error of law---High Court set aside judgment and decree passed by Banking Court and dismissed the suit filed by borrower---Appeal was allowed in circumstances.

Shiam Lal J. Dewan v. Official Liquidators of the U.P. Oil Mills Co. Ltd. AIR 1933 Allahabad 789; R.G.N. Price, Official Liquidator, Andhra Paper Mills Company, Limited (in liquidation), v. The State of Madras AIR (39) 1952 Madras 58; Discount Bank of India Ltd., Delhi v. Triloki Nath and others AIR 1953 Punjab 145; Ch. Habibullah v. Sheikhupura Central Co-operative Bank Limited PLD 1987 SC 53; Messrs Continental Syndicate of Trade v. Lloyds Bank Ltd. PLD 1966 (W.P.) Kar. 556; Firm Jai Kishan Dass Jinda Ram and others v. Central Bank of India Ltd. AIR 1955 Punjab 250 and Muhammad Saleemullah Khan v. National Construction Company (Pak.) Ltd. through Managing Director and another PLD 1999 Lah. 456 and Farooq v. Messrs Eastern Banking Corporation Ltd., Karachi and another PLD 1980 Kar. 115 ref.

Suleman Hudda for Appellant.

Ghulam Murtaza for Respondent.

2017 C L C 40

[Sindh]

Before Muhammad Ali Mazhar and Abdul Ghani Soomro, JJ

AHMED NAWAZ JAGIRANI----Appellant

Versus

SINDH INDUSTRIAL TRADING ESTATE LTD. through Managing Director----Respondent

H.C.A. No.333 of 2015, decided on 9th September, 2016.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.42 & 54---Plaint, rejection of---Cause of action---Scope---Suit for declaration, permanent injunction and damages---Plaintiff being employee of a company having no statutory rules---Plaint was rejected holding that plaintiff-employee had no cause of action and suit was barred by law---Validity---"Accrual of cause of action" or the "suit was barred by law" were two distinct attributes and characteristics---Court had to catch sight of both the components discretely---Totality of facts must co-exist and if anything was wanting then claim would be incompetent---One part would be included in whole but whole could never be equated to the part---Party seeking relief should have a cause of action not only when the transaction or the alleged act was done but also at the time of institution of claim---Suitor was required to show that not only a right had been infringed to entitle him to a relief but also that when he approached the court the right to seek relief was in existence---Still born suit should be buried at its inception to save the time of court on a fruitless litigation---Material other than contents of the plaint might be looked into for the purpose of rejection of plaint---Averments contained in the plaint were presumed to be correct for the purposes of application under O.VII, R.11, C.P.C.---Lack or weakness of proof in the circumstances of case could not furnish any justification to the conclusion that there was no cause of action---Defendant-company had no statutory rules of service nor its employees were civil servants---Relationship between the employer and employees was of master and servant---Plaint demonstrating the cause of action and relief claimed by the plaintiff-employee including damages could not be considered barred by law---Person employed in a company/organization having no statutory rules might file a suit for his redressal---Impugned order was set aside in circumstances---Plaintiff-employee having been restored to his previous position, appeal was disposed of.

Badal and another v. Mansoor Ahmed Awan and others SBLR 2010 Sindh 1680; Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and others 2011 CLC 88; Sadiq Amin Rehman v. PIAC 2016 PLC 335; PLD 1975 Kar. 128 and PLD 1985 SC 97 rel.

(b) Cause of action---

----Meaning---Cause of action was a bundle of facts which if traversed a suitor claiming relief was required to prove for obtaining judgment---Cause of action had no relation to the defence that might be set up nor did it depend upon the character of relief prayed.

Malik Naeem Iqbal and Faizan Memon for Appellant.

Samiullah Soomro for Respondent.

2017 C L C 78

[Sindh]

Before Sajjad Ali Shah, C.J. and Zulfiqar Ahmad Khan, J

Messrs FAISAL MOTORS----Petitioner

Versus

MODEL COLLECTOR OF CUSTOMS (EAST) and others----Respondents

C.P. No.D-2753 of 2016, decided on 16th August, 2016.

Import Policy, 2013---

----Cl. 2(1)---"New vehicle"---Connotation---Registered vehicle---Petitioner imported 2016 model car from Japan which was already registered there and was driven only 75 kilometers---Authorities declined to allow import of car in question allegedly for the reason that import of registered car did not fall within the meaning of 'new vehicle'---Validity---Held, it was a must for bringing vehicle within the purview of Cl.2(1) of Import Policy, 2013, that vehicle had to have manufacturing date of past twelve months preceding date of importation into Pakistan---Such vehicle was not to be (a) registered in country of export, or (b) not used in country of export, prior to its importation in Pakistan---Mere proof of registration of vehicle prior to its importation in foreign country alone or alternatively its prior use was not conclusive to remove vehicle from importability as 'new vehicle' under Cl.2(1) of Import Policy, 2013---Vehicle in question was manufactured within 12 months from the date of import, though had been registered in country of export (Japan) but being unused and legitimately showing only 75 kilometers on its speedometer, qualified definition of a 'new vehicle' set in Cl.2(1) of Import Policy, 2013---High Court directed the authorities to treat vehicle in question as 'new vehicle'---Constitutional petition was allowed in circumstances.

Shazeb Pharmaceutical Industries Ltd. v. Federation of Pakistan 2006 PTD 2237 ref.

Khawaja Shamsul Islam for Petitioner.

Iqbal Khurram, Asim Mansoor Khan, D.A.G. and Ilyas Ahsan, Principal Appraiser (Legal) for Respondents.

2017 C L C 169

[Sindh]

Before Khadim Hussain M. Shaikh, J

HASSAN ALI & CO. COTTON (PVT.) LTD.----Plaintiff

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. and another----Defendants

Suit No.837 of 1989, decided on 8th August, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Civil Procedure Code (V of 1908), O.XXIX, R.1---Suit for declaration and injunction by company---Valid institution of suit---Absence of authority to file suit---Presumption---Plaintiff company filed suit against defendants, through the person who did not have any authority to file the same---Validity---Where there was any defect in institution of suit, such as it had been instituted un-authorizedly and incompetently, such defect was incurable---Competency and authority to institute legal proceedings were to be determined strictly in accordance with Articles of plaintiff company, as for a suit to be validly instituted, it must have been instituted by a person authorized in such behalf, through a resolution passed in meeting of Board of Directors of the company and/or in accordance with Memorandum of Articles of Association thereof---In order to determine as to whether a suit was instituted by a person competent to do so, reference was to be made to Articles of Association and/or resolution of Board of Directors of the company, on whose behalf the suit had been instituted---Burden to establish that the suit was filed on behalf of plaintiff company by an authorized and competent person was upon plaintiff company---In the present case, more than eleven years had elapsed but no document/authority was produced by plaintiff to establish that the person who filed the suit was Chairman of plaintiff company and he was an authorized person to institute the suit on behalf of plaintiff company, nor Memorandum and Articles of plaintiff company had been produced so as to adduce that suit was instituted on behalf of plaintiff company by a duly authorized and competent person---Presumption about non-existence of alleged authority claimed by person who filed the suit and appeared as plaintiff's witness could legitimately be drawn against the plaintiff company in view of Art.129(g) of Qanun-e-Shahadat, 1984---Suit was dismissed in circumstances.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; Khan Iftikhar Hussain Khan Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 and Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62 rel.

S. Irtaza Hussain Zaidi for Plaintiff.

Syed Ashfaq Hussain Rizvi for Defendants.

2017 C L C 199

[Sindh]

Before Aqeel Ahmed Abbasi and Rasheed Ahmed Soomro, JJ

APNA TV CHANNEL (PRIVATE) LIMITED through General Manager and 3 others----Petitioners

Versus

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

Constitutional Petition No.D-53 of 2012, decided on 28th November, 2016.

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

----Ss. 29 & 30---Pakistan Electronic Media Regulatory Authority Rules, 2009, Sched.A---Constitution of Pakistan, Art.199---Show-cause notices---Constitutional petition against issuance of show-cause notice by an Authority---Maintainability and scope---Show-cause notices were issued to Television channels by the Pakistan Electronic Media Regulatory Authority ("PEMRA"), for airing health related advertisements in violation of its Code of Conduct for Advertisements---Television channels impugned show-cause notices on the ground that the same were illegal and void ab initio---Validity---Channels impugned mere show-cause notices issued by PEMRA when no final order whatsoever had been passed nor any demand against the channels had been raised by the Authority---Show-cause notices, in the present case, had been issued by PEMRA, which had jurisdiction in the matter wherein certain queries had been made and channels had been provided opportunity of hearing to respond to said show-cause notices---High Court observed that the channels were at liberty to file a detailed reply to the show-cause notices and raise legal objections therein, which shall be decided by the Authority in accordance with law, after providing an opportunity of hearing to the channels---Constitutional petition was therefore premature as no cause of action had accrued to the petitioners (channels) that may justify filing of a Constitutional petition---Constitutional petition, was dismissed, in circumstances.

Hamid Mir and another v. Federation of Pakistan and others PLD 2013 SC 244; AL-Jehad Trust and another v. Federation of Pakistan and others PLD 2011 SC 811; Chittaranjan Cotton Mills Ltd. v. Staff Union 1971 PLC 499; Rashid Ahmad v. The State PLD 1972 SC 271; 886 The Royal British Bank Turquand (1856) 6 Ellis and Blackburn 327; Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited 2000 SCMR 506; The Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474; Muhammad Zubair v. The State 2013 PCr.LJ 745; The State through Advocate General, High Court of Sindh, Karachi v. Iqbal Ahmed Khan 1996 SCMR 767; Messrs Salimco Laboratories and others v. The Drug Inspector, Lahore Division (Industries), Directorate of Health, Lahore 1989 PCr.LJ 566; Shaukat Hayat v. The State 1982 PCr.LJ 48; State through Advocate General, Sindh v. Abdullah Shamim and another 1987 MLD 2160; Abida Rashid v. The Secretary, Government of Sindh PLD 1995 Kar. 587; Independent Music Group, SMC (Pvt.) Ltd. and another v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2011 Kar. 494; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. and others 2009 PTD 1392; Col. (Retd.) S. Maqbul Illahi through Attorney v. Pakistan Defence Officers Housing Authority 2009 YLR 282; The Murree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279; Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and The Federation of Pakistan PLD 1959 SC 177; Messrs AL-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; A.R. Khan and Sons (Pvt.) Ltd. through Authorized Officer and 3 others v. Federation of Pakistan 2010 CLD 1648; Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692; Messrs Maritime Agencies (Pvt.) Ltd. through Company Secretary v. Assistant Commissioner-II of SRB and 2 others 2015 PTD 160; Pakistan Broadcasters Association and 10 others v. Pakistan Electronic Media Regulatory Authority through Chairman and another PLD 2014 Sindh 630 and Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Messrs Pakistan Mobile Communications Ltd. v. Sindh Revenue Board through Chairman, Karachi and 2 others 2014 PTD 2048 rel.

Ali Almani for Petitioners.

Kashif Hanif for Respondent No.1.

Muhammad Javaid K.K. Standing Counsel for Respondent No.2.

2017 C L C 244

[Sindh]

Before Mahmood Ahmed Khan, J

SHELL PAKISTAN LIMITED through duly constituted Attorney----Applicant

Versus

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

C.M.As. 14210, 14430, 14665, 14654 and 14985 in Suit No.1875 of 2015, decided on 3rd June, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Lease of land for establishing Petrol/CNG station---Temporary injunction, grant of---Scope---Parties could not have more than what they had bargained---Court of law could not be utilized to acquire a position not bargained for by the parties---Parties having agreed to lease for a period of ten years and thereafter the agreement transformed into a license requiring consent of the lessor for holding on to the possession---No one could give a better title to what he was holding---Plaintiff could not claim any better treatment from the defendant---Plaintiff could avail the option available to him at the terms for which it might be given to anyone else---Plaintiff should be given first option of refusal to acquire the suit property at the terms and conditions as being offered to any other party---High Court directed that plaintiff should pay the outstanding amount up to the date of handing over of the possession as was being paid earlier and option of refusal should be subject to the said payment---Petition for temporary injunction was dismissed in circumstances.

PLD 1971 Kar. 35; PLD 1962 Kar. 663; 2007 YLR 228; PLD 1957 (W.P) Kar. 781; 1995 SCMR 459; 1993 CLC 1606; 2000 SCMR 1305; PLD 1974 SC 134; 1996 CLC 570; 2006 CLD 674; 2003 MLD 9; 1985 CLC 2309; 1984 CLC 3019; 1994 MLD 527; 2010 CLC 354; PLD 1975 SC 37; PLD 1967 Dacca 190; 2010 CLC 1843; 1997 MLD 848; PLD 1966 SC 684; 2014 MLD 1186; PLD 1993 Kar. 700; 1995 MLD 883; 2004 SCMR 113; PLD 1976 SC 785; PLD 1965 SC 671; PLD 1997 SC 3; 2015 MLD 1688; PLD 1964 SC 106; 2002 MLD 1673; 1997 SCMR 1, 2008 CLD 239; PLD 1981 SC 137 and PLD 2001 SC 131 ref.

Saeed Ahmad v. Cantonment Board Malir 2005 CLC 388; Malik Muhammed Majeed v. Government of Pakistan PLD 2002 Lah. 290; Khursheed Bhutto v. Civil Aviation Authority 2001 MLD 1591; Airport Support Services v. Airport Manager Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; D.G. Pakistan Coast Guards v. Zarina Jamshed 1998 MLD 1879; Saeed Ahmad Malik v. Navel Estate Officer 1989 CLC 1204; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122 and Government of Sindh v. Muhammed Shafi and others PLD 2015 SC 380 rel.

Salahuddin Ahmed for Plaintiff.

M. Umer Riaz for Defendant No.1.

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

Syed Haider Imam Rizvi for Defendant No.3.

2017 C L C 291

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

Messrs GERRY'S INTERNATIONAL (PVT.) LTD. through Manager----Appellant

Versus

Messrs AERO FLOT A RUSSIAN INTERNATIONAL AIRLINES----Respondent

H.C.A. No.239 of 1999, decided on 8th April, 2016.

Arbitration Act (X of 1940)---

----Ss. 29 & 34---Award of future interest by arbitrator---Scope---Award was made rule of the court---Arbitrator did not enjoy the power of the court and could not award future interest---Only court could award such interest---Interest at the rate of 6% per annum from the date of award to the date of realization of decretal amount was allowed---Appeal was dismissed in circumstances.

The Upper Ganges Volley Electricity Supply Co. Ltd. v. The UP. Electricity Board AIR 1973 SC 683; Sujant Sing v. Seth Mohinder Paul AIR 1964 Punjab 395; Muhammad Saleem Butt v. Messrs Trading Corporation of Pakistan, Karachi 1986 CLC 254; Mackinnon Mackenzie & Co. v. The Secretary to the Government of Pakistan, Ministry of Labour, Manpower and Overseas Pakistanis Labour Division and 2 others PLD 1986 Kar. 21; Dampskibsselskabet Norden Aktieselskale, Copenhagen K. Denmark v. Ahmed Shipping Lines Limited PLD 1983 Kar. 247 and Province of Balochistan and another v. Malik Hail Gul Hassan PLD 1982 Quetta 52 ref.

Tarsem Singh v. Sukhminder Singh 1998 SCC 471; Khardah Company Ltd. v. Raymon & Co. (India) Private Ltd. AIR 1962 SC 1810; Waverly Jute Mills Co. Ltd. in C.As. Nos. 389 and 390 of 1960; Kelvin Jute Co. Ltd, in C.As. Nos.391 and 392 of 196(sic); Raymon & Co. (India) (Pvt.) Ltd. (in all appeals) AIR 1963 SC 90; Messrs. Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39; The Union of India v. Shri Om Prakash AIR 1976 SC 1745; S. Sibtain Fazli v. Star Film Distributors and Muhammad Ali Khan PLD 1964 SC 337; Amin Jute Baling Co. Ltd. v. Aminpur Union Cooperative Multi-purpose Society Ltd. PLD 1961 Decca 102; Syed Sibte Raza and another v. Habib Bank Ltd. PLD 1971 SC 743; Bijoy Singh v. Bilasroy and Co. AIR 1952 Calcutta 440; Messer Jaffer Bros. Ltd. v. Islamic Republic of Pakistan and another PLD 1978 Kar. 585; M/s Emirates Airlines v. Daoud Shami and others PLD 2003 Lah. 358; Government of Pakistan v. Al-Farooq Roller Flour Mills Ltd. 2000 MLD 1130 and Umar Din v. Shaikh Bibi 2009 SCMR 29 distinguished.

Shahan Karimi for Appellant.

Jawaid Asghar Awan for Respondent.

2017 C L C 317

[Sindh (Larkana Bench)]

Before Nadeem Akhtar, J

RAFIQUE AHMED----Applicant

Versus

ASHOK KUMAR and 5 others----Respondents

Civil Revision Application No.50 of 2011, decided on 15th May, 2016.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Scope---Document, sought to be utilized as additional evidence was to support a specific plea that suit property was mutated in the name of respondent as per statement of his mother---Such plea was not taken before the Trial Court and was raised for the first time before the appellate court (without any application) which was allowed without deciding its validity and legality---Validity---Production of additional evidence was not intended to allow an unsuccessful litigant in lower court to patch up weak part of his case and fill up omission in court of appeal---Such evidence could not be allowed to be admitted in evidence in appeal.

Mad Ajab and others v. Awal Badshah 1984 SCMR 440 and Parshotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 PC 143 rel.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Conditions required to be satisfied---Additional evidence could be allowed if appellate court required any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause, which was an exception to the principle, that the appellate court could not record fresh evidence.

Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 rel.

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

----O. XLI, R.27---Production of additional evidence at appellate stage---Discretion of Court---Scope---Power to allow additional evidence was discretionary in nature circumscribed by the limitation specified in R.27(b) of O.XLI, C.P.C.

Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 rel.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Conditions required to be satisfied---Party had to establish that evidence to be produced was of unimpeachable nature and its absence might result in miscarriage of justice; that in spite of all reasonable care and due diligence, it could not be produced at the relevant time and that such evidence had come into existence after completion of the trial---Discretion for allowing additional evidence in appeal could be exercised in circumstances.

Taj Din v. Jumma and 6 others PLD 1978 SC (AJ&K) 131 rel.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Conditions required to be satisfied---Party intended to bring additional evidence on record must convince the court with proof that such party could not lead evidence at proper stage due to some substantial cause.

Nazir Hussain v. Muhammad Alam Khan and 3 others 2000 YLR 2629; Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671; Nazir Ahmed and 3 others v. Mushtaq Ahmed and another 1988 SCMR 1653; Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430; Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 and Ejaz Muhammad Khan and others v. Mst. Sahib Bibi through Shahzad Khan and others 1996 SCMR 598 rel.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Scope---Trial Court dismissed the suit against which appeal was filed wherein additional evidence was produced without moving any application for permission to produce additional evidence---Appellate court admitted the documents produced as additional evidence without recording any reason---Validity---Appellate court could allow additional evidence either on application of the parties or suo motu, however, in any event, the appellate court was duty bound to record reasons for admitting additional evidence, as recording of such reasons was a mandatory requirement of law.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Conditions required to be satisfied---Additional evidence could be allowed only to enable the appellate court to pronounce a satisfactory and complete judgment---Such permission could not be granted to enable the court to pronounce judgment in favour of a particular party---Order XLI, R.27, C.P.C., could legitimately be invoked by allowing additional evidence only in cases where it was impossible for the appellate court to pronounce judgment on the basis of evidence available on record.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Findings of the two courts below in the present case, were at variance; conflict in the assessment of comparative merits of the findings in the light of facts of the case and reasons in support of two different findings given by two courts on question of fact---Findings of the appellate court were not supported by evidence on record and same were found to be without logical reasons, arbitrary or capricious---Such findings could be interfered with in revision.

Karim Bakhsh through L.Rs and others v. Jindwadda Shah and others 2005 SCMR 1518 and Abdul Rashid v. Muhammad Yasin and another 2010 SCMR 1871 rel.

Abdul Hameed Khan for Applicant.

Abdul Rehman Bhutto for Respondent No.1.

Mukhtiarkar (Revenue) Taluke Larkano, Station House Officer P.S. Market Larkano, Deputy Commissioner Larkano/D.O. (Revenue) Larkano, City Surveyor Larkano and Province of Sindh through Akbar Kalhoro State Counsel.

2017 C L C 418

[Sindh]

Before Mahmood A. Khan, J

MCB BANK LIMITED through duly constituted Attorney----Plaintiff

Versus

SAJIDA NAQI RIAZ and 8 others----Respondents

Suit No.67 and C.M.A. No.3006 of 2014, decided on 10th November, 2016.

Civil Procedure Code (V of 1908)---

----O. I, R. 10 & O. VII, R. 11---Banking Companies Ordinance (LVII of 1962), Ss.82-A & 82-E(4), (7)---Federal Ombudsman Institutional Reforms Act (I of 2013), S.18---Suit for declaration, recovery of compensation and damages---Rejection of plaint---Banking Mohtasib, proceedings against---Plaintiff Bank was aggrieved of the order passed by Banking Mohtasib and sought recovery of compensation as well as damages---Validity---Special law only provided complainant an opportunity to approach civil court but not the Bank---Matter decided by special forum could not be allowed to be re-agitated before civil court except by available exception or for want of jurisdiction by special forum and/or mala fides which were not only required to be merely alleged the same were to be referred also in the plaint, failing which the same could not even be brought up in evidence before civil court---In absence of any reference to any alleged mala fide and collusion or connivance in plaint any allowance to mere allegation would be sufficient to treat the whole purpose of creation of special forum redundant---Dispute between plaintiff and defendants stood decided in accordance with and by a special forum created by law---Such exercise was legal and protected by law, and did not warrant any claim of damages against Banking Mohtasib and State Bank of Pakistan---Plaintiff failed to show required exception as such had no cause of action in law as far as the such officials were concerned and they could not be a party to such proceedings and their names were deleted from the list of defendants---Application was disposed of accordingly.

Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal heirs 2002 SCMR 338; Messrs Rohi Ghee Industries (Pvt.) Ltd. and others v. Collector of Customs and others 2007 PTD 878; Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Karachi Catholic Cooperative Housing Society Ltd v. Mirza Jawad Baig PLD 1994 Kar. 194; Muhammad Asif and another v. Haji Fazal Ahmed and 2 others 2004 CLC 965; Journalist Publication (Pvt.) Ltd., Karachi v. Federation of Pakistan through Secretary, Ministry of Labour and Manpower, Islamabad and 3 others 1992 MLD 465; Hakim Hafiz Muhammad Ghaus v. Province of Punjab 1996 CLC 1382; United Bank Limited through Manager v. Banking Mohtasib Pakistan and another 2006 CLD 1226; Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3; Shahab-ud-Din and others v. Mariam Bibi 1995 MLD 45; Amber Ahmed Khan v. Pakistan International Airlines Corporation, Karachi Airport, Karachi PLD 2003 Kar. 405; International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasim Authority through Secretary, Bin Qasim Authority PLD 1992 Kar. 65; Shahzad and another v. IVth Additional District Judge, Karachi (East) and 5 others PLD 2016 Sindh 26; Messrs Sakhi Dattar Cotton Industries and Oil Mills through Authorized Partner v. Messrs Mahmood (Pvt.) Ltd and 4 others 2006 CLD 191; Moinuddin Paracha and 5 others v. Sirajuddin Paracha and 22 others 1994 CLC 247; Babau Rahim Bux v. Wali Mohammad 1992 CLC 1025; Mst.Khursheed Jehan v. Syed Aziz Ahmed Naqvi and 2 others 1990 CLC 1132; Abdul Rahim v. Karachi Development Authority 1988 CLC 1207; Imran Raza Shaikh and 5 others v. Mst. Zarina Gul and 4 others 2003 YLR 943; Province of Punjab through Secretary Excise and Taxation, Punjab, Lahore and others v. Muhammad Ishaq 2001 YLR 2754; Ahmed Ali v. Manzoor Hussain and 8 others 2008 YLR 109; Syed Ikhlaque Hussain Shah v. Sh. Muhammad Bashir and others 2007 CLC 872 and Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 ref.

Zaheer-ud-Din Minhas holding brief for Ghulam Rasool for Plaintiff.

Noman Jamali for Defendants Nos.1 and 2.

Khalid Hayat for Defendant No.7.

Abdul Razzak for Defendant No.8.

2017 C L C 429

[Sindh]

Before Syed Muhammad Farooq Shah, J

Messrs SARO TEXTILES REGISTERED through Partner ----Applicant

Versus

REGENT TEXTILE INDUSTRIES LTD. through Chief Executive and 3 others----Respondents

Civil Revision Application No.128 of 2014, decided on 5th October, 2016.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3, O. XV, R. 4 & O. VII, R. 2---Limitation Act (IX of 1908), S.14---Money suit---Closure of evidence---Word "forthwith"---Scope---Contention of plaintiff was that due to inadvertent mistake he and his counsel did not appear in the Court for recording evidence on the specific date of hearing---Validity---Suit was dismissed without dilating upon the merits of the case as averred in the pleadings of the parties---Order XVII, R.3, C.P.C. was not mandatory---Trial Court was supposed to proceed to the suit on merits in the light of entire material on record and after hearing arguments of the parties---Impugned judgment had been passed by the Trial Court hurriedly in a slipshod manner without affording opportunity of hearing or argument to the parties---Provisions of O.XVII, R.3, C.P.C. were penal in nature and in order to attract the said provisions time must be granted by the Trial Court to a party for doing certain acts---Time must have been granted at the request of defaulting party---If time was not granted at the instance of a party against whom order was required to be made then penal provision of O.XVII, R.3, C.P.C would not apply---Non-appearance of plaintiff before the Trial Court for recording of his evidence on the specific date was not deliberate---Matters should be decided on merits rather than on technical knockouts---Judgment without discussing merits of the case could not be termed a "judgment on the merits'---Court might proceed with the suit notwithstanding either party failed to produce evidence---Where a party to suit failed to do a specific act then next step required to be taken should be initiated---Word "forthwith" was meant without any further adjournment yet it could not be equated with the words "at once pronounce judgment"---Judgment pronounced by the courts below were prima facie `void'---Appellate Court dismissed the appeal on the sole ground of being time barred without discussing or considering the contents of affidavit along with application under S.14 of Limitation Act, 1908---Appellate Court had exceeded beyond limits prescribed by law and judgment passed by it was coram-non-judice and inoperative---Orders passed by the courts below were not sustainable which were set aside---Trial Court was directed to proceed with the suit after providing due opportunity to the parties to produce evidence in accordance with law---Revision was disposed of in circumstances.

2008 SCMR 942; PLD 1987 SC 447; 2001 SCMR 424; Sujawal Khan v. Wali Muhammad and others 2002 SCMR 134; Chudhury Ghulam Ghaus through Legal Heirs v. Saifullah and another 2001 SCMR 159 and Imran Shareef and 7 others v. Muhammad Din and another 2000 SCMR 440 ref.

2002 SCMR 122; PLD 2004 Kar. 652; PLD 2002 SC 408; 2004 SCMR 1611 and Amanullah Khan and 3 others v. Mst. Akhter Begum 1993 SCMR 504 rel.

Aminuddin Ansari for Applicants.

Muhammad Sharif for Respondent No.1.

Muhammad Nisar holding brief for Muhammad Jawaid Farooqui for Respondent No.2.

2017 C L C 452

[Sindh]

Before Muhammad Iqbal Kalhoro, J

INAYAT RASOOL----Petitioner

Versus

MANAGING DIRECTOR and another----Respondents

Misc. Appl. Nos.6654 and 6655 of 2016 in Constitutional Petition No.D-1500 of 2010, decided on 10th October, 2016.

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

----O. XLVII, R. 1 & S. 114---Limitation Act (IX of 1908), Art.162---Review of High Court judgment---Scope---Limitation-Condonation of delay---Scope of review was limited and confined to the aspects of the case that were shown to have not been considered in the judgment---Entire matter could not be re-opened in review proceedings---Review petition, in the present case, had been filed after 41 days which was time barred---Delay of each day had not been explained for condonation---Pleas taken by the petitioner had been considered and decided in the judgment sought to be reviewed---Petitioner had not brought any new material suggesting that findings under review were result of mis-appreciation or non-appreciation of record---No error apparent in the impugned judgment to justify its review had been pointed out---Review petition was dismissed in circumstances.

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

----S. 114---Review---Scope---Scope of review was limited and confined to the aspects of the case that were shown to have not been considered in the judgment.

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

----Art. 162---Judgment of High Court---Review---Limitation---Limitation for review of judgment passed by the High Court was 20 days.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Facts could not be resolved in constitutional jurisdiction of High Court.

Petitioner in person.

Khalid Jawed for Respondent No.1.

Muhammad Qasim, D.A.G. for Government of Pakistan.

2017 C L C 495

[Sindh]

Before Arshad Hussain Khan, J

MUHAMMAD AKRAM QURESHI and another----Plaintiffs

Versus

PAKISTAN DEFENCE HOUSING AUTHORITY----Defendant

Suit No.45 of 1998, decided on 31st August, 2016.

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

----O. I, R.9---Non-joinder or misjoinder of a party as defendant---Effect---Plaintiff could not be denied relief on ground of mis-joinder or non-joinder of a party--- Duty of court was to do justice and not to knock out parties on technical grounds.

Mst. Jannat Bibi v. Saras Khan 2011 SCMR 1460 and Shanmukam v. Nachu Ammal AIR 1937 Madras 140 rel.

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

----Art. 118---Contention of defendant was that documents produced by the plaintiff were either forged or collusively obtained by him---Validity---Such contention was of no consequence without positive attempt on the part of defendant to substantiate the same---Whoever alleged any fact, should be the first one to prove the same---Suit was decreed in favour of plaintiff in circumstances.

Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70 rel.

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

----Arts. 72, 117 & 120---Registered documents---Presumption of truth---Plaintiffs sought declaration about the title of property on the basis of registered documents---Defendants asserted that documents produced by the plaintiffs in the case were either forged or collusively obtained by him---Validity---Documents relied by the plaintiffs were registered or certified copies issued by the concerned authorities---Presumption of truth was attached to said certified copies---Such documents could only be rebutted through strong and cogent evidence---Defendants failed to bring any such evidence on record---No reason, cause and justification were available to hold the said documents otherwise---Suit was decreed in favour of plaintiffs.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462 and Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342 rel.

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

----O. XIII, Rr. 1 & 4---Documents available on record, but not produced in evidence and exhibited---Admissibility and evidentiary value---Non-production of documents according to provisions of C.P.C. would be merely an irregularity---In the present case, certified copies of such documents were available on record---Nothing in law prevented court from looking into such documents even if they were not exhibited, provided these had been placed on record by party concerned---Such documents were admissible in evidence.

Imam Bux and others v. Daim and others PLD 2007 Kar. 358 and Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) BJ 96 rel.

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

----Art. 132---Cross-examination---Deposition made in examination-in-chief, if not subjected to cross-examination, would be deemed to be admitted as correct. [p. 510] E

M/s. Akbar Brothers v. M. Khalil Dar PLD 2007 Lah. 385 rel.

The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725; Muhammad Sidik and others v. Ghulam Hyder and others PLD 1961 (W.P) Kar. 511; Abdul Khaliq v. Board of Revenue, West Pakistan and others PLD 1962 (W.P) Kar. 147 and Ch. Ilam Din v. Lahore Development Authority PLD 1993 Lah. 233 ref.

Muhammad Azam Khan for Plaintiffs.

Raja Sikandar Khan Yasir for Defendant.

2017 C L C 516

[Sindh]

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

Mst. ROHEELA YASMIN----Appellant

Versus

Ms. NEELOFAR HASSAN and 6 others----Respondents

High Court Appeal No.175 and C.M.A. No.1656 of 2014, decided on 18th August, 2015.

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

----S. 7---Divorce---Husband died before completion of 90 days of divorce---Effect---Held, during the period of 90 days, if husband was alive, he would have had the option to revoke the divorce pronounced by him---Procedure provided under law required reconciliation proceedings to be initiated and only on expiry of 90 days, divorce was to become effective---On the date husband died, divorce having not become effective in terms of S.7, Muslim Family Laws Ordinance, 1961, wife committed to be his widow and was entitled to inherit his property.

Mushtaq Ahmed v. Mst. Sat Bharai 1994 SCMR 1720; Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC 51 and Mst. Maqbool Jan v. Arshad Hassan PLD 1975 Lah. 147 ref.

Malik Muhammad Qayyum along with Rizwan Ahmed Siddiqui for Appellant.

Abdul Sattar Pirzada for Respondents Nos. 1 to 4.

2017 C L C 564

[Sindh]

Before Nazar Akbar, J

JUMA KHAN through L.Rs.----Applicant

Versus

TAHIR ALI and others----Respondents

R.A. No.149 of 1992, decided on 3rd October, 2016.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.17---Suit for specific performance of agreement to sell---Proof---Procedure---Preponderance of evidence---Scope---Agreement of sale was required to be proved by two witnesses of execution of agreement---Rule of production of two witnesses as proof of execution of a document was not an absolute rule to be applied in every case---Every case had to be decided on its own merits both of facts and law---Need to provide proof of execution of agreement would arise when the denial had come from the executant of said agreement---Executant of agreement to sell, in the present case, had admitted the same and also the sale consideration---Each and every aspect of documents produced by the parties was to be assessed while evaluating the evidence---Preponderance of evidence had to be gathered from oral statement with reference to the documents produced by the parties---Trial Court had not examined the evidence properly---Appellate Court had rightly set aside the findings of Trial Court and decreed the suit---Revision was dismissed in circumstances.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 ref.

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

----S. 12---Suit for specific performance---Maintainability---Suit for specific performance would be maintainable only when either of the party had refused to perform his part of contract---Once the two sides of a contract even during the course of litigation agreed to perform their respective obligations under the contract, court would cease to have jurisdiction and it could not pass any order except the order that the suit was dismissed for having become infructuous.

K.B. Bhutto and Syed Sikandar for Applicant.

Abdul Mujeeb Pirzada for Respondents.

2017 C L C 588

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. through Chairman----Appellant

Versus

AMANULLAH KHAN and another----Respondents

High Court Appeal No.146 of 1997, decided on 22nd April, 2016.

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

----Ss. 30 & 39(1)---Law Reforms Ordinance (XII of 1972), S.3---Intra court Appeal---Arbitration award---Objections, setting aside of---Principle---Duty of Court---Objections against award announced by umpire were dismissed by single Judge of High Court and the award was made rule of the Court---Validity---While examining validity of award, Court was not to act as court of appeal---Court hearing objections to an award could not reappraise evidence recorded by arbitrator, which otherwise was legally and sound---Award which was made rule of the Court, had no apparent error or legal infirmity, which warranted interference by High Court---All relevant pieces of evidence and documents were thoroughly examined and discussed in the award by umpire and the same was rightly made rule of the Court---Division Bench of High Court did not find any illegality in the order of Single Judge of High Court---Appellants failed to demonstrate that umpire mis-conducted himself or proceedings of the award had been conducted in an illegal manner or award made by umpire was unreasonable or had improperly been procured or invalid---Umpire discussed each and every aspect of the case by giving detailed reasons and after providing ample opportunity of hearing to appellants announced the award and the same did not require any interference---Division Bench of High Court upheld the order passed by Single Judge of High Court---Intra Court appeal was dismissed in circumstances.

The Textile Trading Co. v. Habib and others PLD 1956 Sindh 17; Qasim Ali Rajab Ali v. Municipal Corporation of Karachi PLD 1964 (W.P.) Kar. 108; Neelum Flour Mills through Kafayat Hussain Naqvi, Managing Director, Asgharabad, Muzaffarabad, A.K v. Government of the State of Azad Jammu and Kashmir through Chief Secretary and 2 others PLD 1991 Azad J&K 26; Punjab National Bank Ltd. and another v. S.B. Chaudhry AIR (30) 1943 Oudh 392; Ali Mohammad and 2 others v. Bashir Ahmad through Legal Heirs 1989 CLC 2194; Muhammad Amin Khan v. General Public, and others 1991 CLC 394; State of Rajasthan v. M/s. Nav Bharat Construction Co. AIR 2005 SC 4430; Pakistan through Secretary, Ministry of Industries v. Messrs Asian Associated Agencies PLD 1974 Kar. 155; Dev Kinandas and Co. v. Union of India AIR 1961 Punjab 136 and Samar Puri v. Shyam Narain Gir and others AIR 1954 Patna 586 distinguished.

WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak and Company PLD 1990 SC 359 and Sh. Saleem Ali v. Sh. Akhtar Ali and 7 others PLD 2004 Lah. 404 rel.

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

----S. 17---Judgment in terms of award---Principle---While making an award rule of the Court, the Court has to examine validity of award in a limited scope, without deeply examining the same---If from the surface any error or infirmity is apparent only then the award is to be interfered with.

Syed Ashfaq Hussain Rizvi for Appellant.

Javed Farooqui for Respondents.

2017 C L C 626

[Sindh]

Before Zafar Ahmed Rajput, J

NAEEM NOOR MUHAMMAD alias Naeem Cyclwala----Petitioner

Versus

The IIND ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 4 others----Respondents

C.P. No.S-239 of 2009, decided on 15th December, 2015.

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

----Ss. 15, 10 & 18---Ejectment of tenant---Lease agreement---Default in payment of rent---Determination of---Procedure---No mutual agreement was reduced to writing between the parties for payment of rent---Landlord purchased the demised premises and notice was served upon the tenant for change of ownership on 15-07-2006---Period stipulated for payment of rent under S.18 of Sindh Rented Premises Ordinance, 1979 would expire on 14-08-2006---Default within the purview of S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979 would arise if tenant had failed to pay rent in absence of mutual agreement within sixty days after the rent had become due for payment---Tenant tendered rent through money order to the landlords within stipulated period when it was due but same was not received---Tenant thereafter deposited rent through Rent Controller which was again within stipulated period---No default in payment of rent had been committed by the tenant in circumstances---Judgment passed by the Appellate Court was contrary to law and settled principles of administration of justice---Impugned judgment was set aside and order passed by the Rent Controller dismissing the eviction petition was restored---Constitutional petition was allowed in circumstances.

Hirjibhai Behrana Dar-e-Meher through Attorney v. Messrs Bombay Steel Works, Partnership Firm, through partner 2001 SCMR 1888; Messrs Wymco Traders and She Makers v. Hafeezuddin 1999 YLR 746; Mst. Sadia Awan v. Daniyal Pervaiz and another 2007 SCMR 174; Sir E.H. Jaffar and Sons Ltd. v. Sultan Karam Ali and others 1995 SCMR 330; Saleem Zafar v. Mst. Aleema Begum 1994 CLC 1139; State Life Insurance Corporation of Pakistan, Karachi v. M/s Siddique Tailors through its sole proprietor, Karachi PLD 1993 Kar. 642 ref.

Muhammad Essa Godil through L.Rs. v. Mst. Sitara Jamil and 2 others 2014 YLR 1901; Abdul Aziz Mysorewala v. Manvadar Sadragh Memon Jamat through President and 2 others 2013 YLR 1405; Muhammad Iqbal v. Muhammad Zubair and 2 others 2012 YLR 2246; Hameed and 3 others v. Jitendra and 2 others 2010 CLC 561; Shahid Ahmed alias Shahid Mukhtar and 9 others v. Mst. Rasheeda Khatoon and 12 others 1997 CLC 1186; M/s Jodhpur Rajasthan Cooperative Housing Society Limited v. Mst. Yasmeen Aziz 1996 MLD 1141; Rameshlal v. Munoharlal 1991 MLD 349; Salamat Jan v. Chotey Khan 1987 MLD 2971; Mst. Yasmeen Khan v. Abdul Qadir 2006 SCMR 1501; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction could not be invoked as substitute of another appeal against the order of appellate court which was final authority in the hierarchy of relevant law---Where appellate court had taken incorrect view due to mis-reading or non-reading of evidence or had failed to determine the right of the parties in lis under the governing law and as per settled principles of administration of justice, High Court could exercise jurisdiction under Article 199 of the Constitution to rectify the wrong.

Naeem Sulleman for Petitioner.

Nemo for Respondent No.1.

Irfan Ahmed Usmani for Respondents Nos.2 to 5.

2017 C L C 644

[Sindh]

Before Yousuf Ali Sayeed, J

Mst. RAZIA BEGUM----Petitioner

Versus

MUHAMMAD AFZAL KHAN----Respondent

S.M.A. No.183 of 2016, decided on 23rd December, 2016.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Grant of Letter of Administration---Non-contentious matter---Widow of deceased sought Letter of Administration in respect of immovable properties of her deceased husband ---Deceased had left behind a widow (petitioner) and a minor son, and original death certificate and Family Registration Certificate had been put in the record which evidenced their relationship with deceased---Application for appointment of petitioner as guardian-ad-litem of minor had already been allowed and witnesses had also stated on record that petitioner and minor son were heirs of the deceased---Report of Deputy Registrar High Court revealed that original title documents of property had been seen and publication in newspapers had also been effected---Matter was therefore, non-contentious and no impediment existed to grant Letter of Administration in favour of petitioner---High Court directed that Letter of Administration be issued to the petitioner subject to execution of Administration Bond, furnishing of surety and fulfilment of all codal formalities---Petition was allowed, accordingly.

2017 C L C 656

[Sindh]

Before Muhammad Humayon Khan, J

SHAHID HUSSAIN----Petitioner

Versus

MOHAMMAD YOUNUS GONDAL and 2 others----Respondents

Constitution Petition Nos.S-1205 to S-1230 of 2016, decided on 29th July, 2016.

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

----S. 15---Ejectment of tenant---Default in payment of rent---Scope---Eviction petition was accepted concurrently---Validity---Appellate authority was the final authority under Sindh Rented Premises Ordinance, 1979---Constitutional jurisdiction could not be invoked as a substitute to another appeal against the order of Rent Controller---No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the courts below---Both the courts below had correctly appreciated the evidence on record---Constitutional petition was dismissed in circumstances.

Abdul Kadir and another v. Muhammad Yaqoob 1991 SCMR 1029 and Moizur Rehman v. Mrs. Fakhra Javed PLD 1991 Kar. 452 distinguished.

Messrs Habib Bank Limited v. Sultan Ahmed and another 2001 SCMR 678; Hameed and 3 others v. Jitendra and 2 others 2010 CLC 561; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 and Messers Atif Ali and another v. Mst. Noor Jahan through Attorney and 2 others 2015 CLC 310 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court under constitutional jurisdiction could only interfere in concurrent findings of courts below if such findings were based on non-reading or mis-reading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction.

Abdul Aziz Mysorewala v. Manvadar Sadargh Memon Jamat, through President and 2 others 2013 YLR 1405; Mst. Rehana Hafeez v. Muhammad Ali alias Ehsan through L.Rs. 2014 CLC 1242 and Muhammad Sanawar Khan v. Akhtar Khan and 2 others 2015 CLC 1253 rel.

S.A. Waheed for Petitioner.

Nemo for Respondents.

2017 C L C 676

[Sindh]

Before Abdul Rasool Memon, J

MOHD. YAHYA MOHD. YOUSUF BARI----Petitioner

Versus

ROOMANA YOUSUF ALI and 2 others----Respondents

C.P. No.S-150 and C.M.A. No.661 of 2012, decided on 19th April, 2016.

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

----S. 15---Ejectment of tenant---Personal bona fide need of landlady---Scope---Landlady, in order to prove bona fide of her personal need was not required to establish that she was not doing any business---Neither tenant nor the Rent Controller had any option to choose or select the premises for starting the business by landlady at any particular place---Choice of selecting the premises was prerogative and discretion of landlady---Tenants were directed to handover the vacant possession of demised premises to the landlady within a period of four months subject to payment of usual rent and other charges---Constitutional petition was dismissed in circumstances.

Muhammad Shafi v. Muhammad Adam Khan 1983 CLC 2657; Muhammad Yousaf v. District Judge 1987 SCMR 307; Muhammad Ilyas v. Mst. Khursheed Begum 1989 CLC 506; Ahmad v. Khair Muhammad 1992 CLC 2504; Farkhunda Jawaid v. IInd Additional District Judge 2008 CLC 362 and Almas Khan v. Bano PLD 2009 Kar. 268 ref.

Muhammad Abdullah v. Sughra Begum 1988 CLC 2078; Fasahat Ali v. Noor Jehan Begum 1991 CLC 1902; Pak. Food Manufacturers v. Sadiq Ishaque 1992 CLC 482; United Bank Ltd. v. Abdul Razzak & Co. 1993 MLD 2575; Sardar Nabeel Wali v. Addl. District Judge PLD 2000 SC 829; Ghulam Muhammad Khan v. Muhammad Khalid 2000 CLC 764 and Allies Book Corporation v. Sultan Ahmad 2006 SCMR 152 distinguished.

Pakistan Institute of International Affairs v. Naveed Merchant 2012 SCMR 1498 rel.

Mrs. Sarwar Jahan for Petitioner.

2017 C L C 687

[Sindh]

Before Yousuf Ali Sayeed, J

KHURSHEED BEGUM widow of Abdul Jabbar: In re

S.M.A. No.231 of 2016, decided on 6th December, 2016.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Grant of Letter of Administration---Non-contentious matter---Petition for grant of Letter of Administration in respect of movable and immovable properties of deceased in favour of widow of deceased---Legal heirs, all of whom were sui juris, had individually filed sworn affidavits wherein they stated that they had no objection for grant of Letter of Administration in favour of the petitioner and witnesses had also stated that there were no other legal heirs of deceased---Original Death Registration Certificate of the deceased and photocopies of immovable properties in respect of which the petition was filed, had been seen and returned by the Administrative Side of the High Court along with a report which confirmed that notices inviting objections were published in newspapers and no objection was forthcoming---All formalities therefore had been completed and no impediment existed to the grant of the Letter of Administration---High Court directed that Letter of Administration be issued in favour of the petitioner subject to execution of a administration bond and furnishing of deposit as surety and security along with other compliances in accordance with the applicable rules---Petition was allowed, accordingly.

2017 C L C 694

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

ABDUL HUQ and another----Petitioners

Versus

The PROVINCE OF SINDH and 10 others----Respondents

Constitution Petition No.D-846 of 2014, decided on 26th April, 2016.

(a) Constitution of Pakistan---

----Art. 199---Specific Relief Act (I of 1877), S.42---Constitutional petition---Maintainability---Suit for declaration and injunction---Claim of the petitioners about property was disputed by the respondents and Revenue Authorities---Questions of title of property and possession thereof could not be decided without recording of evidence---Such exercise could not be undertaken by High Court under its constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Adequate and efficacious remedy available---Claim of the petitioners about property was disputed by the respondents and Revenue Authorities---Revenue authorities had also filed suo motu reference before the concerned authority for cancellation of entries in revenue record about the ownership of petitioners---If such entries were ordered to be cancelled, same could be challenged under the relevant revenue laws---Constitutional jurisdiction of High Court could not be invoked where adequate and efficacious remedy had been provided under law---Constitutional petition was dismissed accordingly.

Federation of Pakistan and others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 rel.

(c) Constitution of Pakistan---

----Arts. 4 & 199---Constitutional petition---Claim of petitioner was disputed by respondents and Revenue Authorities---Due process of law---Applicability---Due process of law was of wide import and its applicability varied from case to case in accordance with the set of facts and circumstances---Due process of law was also directly related to the rights, interest and entitlement of a person as recognized by law---Petitioners could not make out a prime facie case of their legal entitlement of possession of suit property---Entries in the revenue record about their alleged claim were under scrutiny before the concerned authorities---Term "due process of law" was not applicable in circumstances---Constitutional petition was dismissed accordingly.

David Lawrence for Plaintiffs.

Shahryar Imdad Awan, Assistant Advocate General Sindh and Shafique Ahmed Leghari State Counsel representing Official Respondents.

Aftab Ahmed Shar for Respondent No.11.

2017 C L C 752

[Sindh]

Before Abdul Rasool Memon, J

HUSSAIN ALI MERCHANT----Appellant

Versus

The ISMAILIA GARDEN COOPERATIVE HOUSING SOCIETY through Chairman and another----Respondents

IInd Appeal No.141 of 2012 with C.M.As. Nos.4794, 4795 and 4796 of 2015, decided on 10th May, 2016.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr.17 (1) & 19---Limitation Act (IX of 1908), S.5, Arts.168 & 188---Appeal---Dismissed for non-prosecution---Restoration---Limitation---Condonation of delay---Second appeal filed by appellant was dismissed for non-prosecution---Contention of appellant was that under Art.188 of Limitation Act, 1908, restoration could be sought within three years---Validity---Contention of appellant was misconceived as time for readmission of appeal for non-prosecution was 30 days as provided under Art.168 of Limitation Act, 1908---In the present case, after about 14 months, application for restoration was filed and nothing had come on record if the court-fees amount was paid to advocate---Affidavit of counsel for the appellant showed that brothers and sisters of appellant were ready to pay court fee, which legally could not be allowed after a long period of about more than three years from the date of preferring appeal---For seeking condonation of delay sufficient cause was to be shown for default and each day's delay was to be explained before the court which had not been done---High Court declined to condone the delay in filing restoration application and consider application filed by appellant for payment of court-fee---Application was dismissed in circumstances.

Amanullah Soomro v. P.I.A. through Managing Director/ Chairman and another 2011 SCMR 1341; Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others PLD 1972 Kar. 103 and Muhammad Nazir Chaudhry v. Punjab Province and others PLD 1978 Lah. 1350 distinguished.

Lal Dino and others v. Deputy Commissioner and others 1982 SCMR 201; Mst. Safia Siddiq v. Haji Afzal-ur-Rehman and 2 others 2009 CLC 262 and PLD 1987 SC (AJ&K) 5 rel.

Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218; Ch. Muhammad Ali v. Haji Feroz Din 2003 CLC 1218; Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority PLD 1991 SC 250; Province of Punjab and others v. Registrar, Firm Nasarul Haq Associates and others 1998 MLD 2062; Khadim Hussain Agha v. Muhammad Ashraf 1980 CLC 621; Mst. Wilayat Khatun v. Khalil Khan and another PLD 1979 SC 821; Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan 2010 SCMR 1899; Province of Punjab in its Ministry of Communications and Works through Collector, Multan and 2 others v. Registered Firm Nisarul Haq Associates Government Contractors and another 1998 MLD 589; Nawab Din v. Basharat Ali 1986 MLD 692; The Muslim Commercial Bank Ltd. Hyderabad v. Agha Shahabuddin and 7 others 1986 MLD 952; H.H.S. Feldman v. The Province of East Bengal PLD 1970 Kar. 295; Ghulam Farid and 4 others v. Sultan 1985 MLD 1619 and Muhammad Suleman v. Ehsan Ali (represented by legal heirs) PLD 1983 Kar. 537 ref.

Muhammad Ramzan and Mazhar Iqbal Tabasum for Appellant.

Raja Ali Asghar for Respondent No.2.

2017 C L C 769

[Sindh]

Before Aqeel Ahmed Abbasi and Rasheed Ahmed Soomro, JJ

GHULAM MUHAMMAD----Petitioner

Versus

PROVINCE OF SINDH and 8 others----Respondents

Constitutional Petition No.D-2441 of 2007, decided on 10th November, 2016.

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

----Ss. 3 & 4---Contempt petition---Maintainability---Constitutional petition was disposed of by consent of the parties that order passed by the Member Land Utilization Department, Board of Revenue was tentative in nature and would not come in the way of the title of petitioner and any party aggrieved by the impugned entry could approach to Civil Court for redressal of his grievance---Petitioner approached the Member Land Utilization Board of Revenue who passed order that and of petitioner stood already cancelled and record-of-right was of no legal value---Petitioner had challenged the said order by filing the contempt petition---Validity---Petitioner could not obtain any favourable relief in the constitutional petition which was disposed of by consent of parties---Impugned order passed by the Member Land Utilization Board of Revenue was neither set aside nor any direction had been issued by the High Court requiring the respondents to restore the impugned entry in favour of petitioner---Impugned order had been held to be tentative in nature---Petitioner was to approach the proper forum or the Civil Court for redressal of his grievance---Petitioner instead of seeking redressal of his grievance by approaching the relevant forum sought second endorsement in the impugned entry which was clarified by the Member Land Utilization Board of Revenue---Petitioner instead of challenging the said order had moved the present contempt petition which was not maintainable---Contempt petition was dismissed in circumstances however dismissal of the same would not affect merits of the case or entitlement of either party.

Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217 and Ram Sarup and others v. King Emperor AIR 1924 Oudh 345 rel.

Asadullah Memon for Petitioner.

Ovais Ali Shah, Ahmed Pirzada and Saifullah AAG for Respondents.

2017 C L C 800

[Sindh]

Before Arshad Hussain Khan, J

S.M. YOUSUF and 3 others----Plaintiffs

Versus

The SECRETARY, GOVERNMENT OF PAKISTAN MINISTRY OF WORKS AND REHABILITATION DIVISION, ISLAMABAD and 4 others----Defendants

Civil Suit No.1176 of 1997, decided on 23rd December, 2016.

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

----S. 11---Suit for declaration and injunction---Res judicata, principle of---Applicability---Defendant claimed that suit filed by plaintiff was barred under the principle of res judicata---Plea raised by plaintiff was that decision in earlier suit was coram non judice---Validity---Most important condition that needed to be satisfied was that matter in issue in subsequent suit was in issue, directly and substantially, in the former suit---Where there were findings on several issues or where Court had rested its decision on more than one points, findings on all issues or points were res judicata---No appeal was filed by defendant against judgment and decree passed in earlier suit and that decision could not be declared as coram non judice in subsequent suit by High Court in exercise of its original civil jurisdiction---Suit filed by plaintiff was hit by principle of res judicata within the contemplation of S.11, C.P.C.---Suit was dismissed in circumstances.

Khusi Muhammad and 2 others v. The Province of the Punjab through Secretary to Government of the Punjab and 2 others 1999 SCMR 1633; Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281; Mustafa Kamal and others v. Daud Khan and others PLD 2004 SC 178; Izzat Un-Nisa Begam and another v. Kaniz Fatima and others AIR 1916 Oudh 6; Sri Gopal Jew Thakur through Narendra Nath Mondal v. Radha Biode Mondal and others AIR 1925 Cal 996; P.Das Muni Reddy v. P Appa Rao AIR 1974 SC 2089; Shankarlal Patwari v. Hiralal Murarka and others AIR 1950 PC 80 and Defence Housing Authority Lahore v. Messrs Builders and Developers (Pvt.) Ltd. and another 2015 SCMR 1799 ref.

(b) Words and phrases---

----"Suit"---Connotation---Suit is a civil proceeding that is instituted by presentation of a plaint.

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

----S. 11---Res judicata---'Former suit'---Scope---Expression 'former suit' denotes a suit that has been decided earlier in time than suit in question, that is subsequent suit, regardless of whether suit decided earlier was instituted subsequently to suit in question or not---If two suits are instituted one after the other and both relate to the same question in controversy, bar of res judicata applies even in the cases where subsequently instituted suit was decided first.

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

----S. 11---Res judicata---`Party'---Scope---Party is a person whose name appears on the record at the time of decision---Party may be plaintiff or defendant.

Shahenshah Hussain for Plaintiffs.

S. Irtaza Hussain Zaidi for Defendant No.4.

S.M. Raza for Defendant No.5.

2017 C L C 860

[Sindh]

Before Sajjad Ali Shah, C.J. and Muhammad Junaid Ghaffar, J

ATTOCK PETROLEUM LIMITED through Authorised Representative and others----Appellants

Versus

UMER FAROOQ and others----Respondents

High Court Appeals Nos.227 and 228 of 2014, decided on 23rd February, 2016.

Contract Act (IX of 1872)---

----S. 202---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & O.XLIII, R.3---Interim injunction, setting aside of---Interest of agent in property---Proof---Defendant company was aggrieved of order passed by Single Judge of High Court restraining it from cancelling/ withdrawing offer of dealership---Validity---Where agent had an interest in property which formed subject matter of the agency, then under S.202 of Contract Act, 1872, unless the contract between the parties so provided, it could not be terminated to the prejudice of such interest---Plaintiff had no interest in suit property as such, though he could have made efforts in procuring the lease but such efforts could be compensated and plaintiff could not be held as an agent or having interest in suit property which formed the subject matter of the agency---Defendant company had yet to construct petrol pump/CNG station for his dealer who would purchase petroleum products/CNG from defendant company and would sell the same---Such act had not created relationship of "principal and agent" between parties as a dealer who purchased petrol and would sell the same on a margin of profit neither could represent his principal in dealing with third person nor there created legal relationship between his principal and third party---Plaintiff had no interest whatsoever in the property which formed subject matter of the agency and therefore, was not entitled to interim relief---Division Bench of High Court set aside restraining order passed by single Judge of High Court---Appeal was allowed in circumstances.

Bolan Beverages (Pvt.) Limited v. Pepsico Inc. and others PLD 2004 SC 860; Media Max v. ARY Communication (Pvt.) Ltd. PLD 2013 Sindh 555; Caltex Oil (Pakistan) Limited v. Sheikh Rehan PLD 1958 Lahore 63; Mrs. Dino Manekji Chinoy v. Muhammad Mateen PLD 1983 SC 693; M/s. Cooperative House Building Society Limited Lahore v. Messrs Trust Leasing Corporation Limited PLD 2000 Lah. 232; Syed Shafiq Hussain v. Syed Abul Qasim PLD 1979 Kar. 22; Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588; Zubair Ahmed v. Pakistan State Oil Company Limited PLD 1987 Kar. 112; Salahuddin v. Syed Mansoor Ali Shah 1999 SCMR 414 and Sikandar Trading Company (Pvt.) Ltd. v. Habib Bank Limited 2008 CLD 326 rel.

Rehmatullah Khan v. Government of Pakistan and others 2003 SCMR 50; Roomi Enterprises (Pvt.) Ltd v. Stafford Miller Ltd. 2005 CLD 1805; Karachi Building Control Authority v. Sufi Muhammad Ismail 1989 MLD 2987; Ali Asbestos Ltd. v. Bank of Credit and Commerce 1997 MLD 2003; Zulfiquar Ahmed Butt v. Asad Dar 2006 CLC 787; M/s. Worldwide Trading v. Sanyo Trading Company Ltd. PLD 1986 Karachi 234; SITE v. M/s. Noorani Enterprises 1996 CLC 570; Caltex Oil (Pvt.) Ltd. Karachi v. Shaikh Rehanuddin PLD 1958 (WP) Lah. 63 and Media Max v. ARY Communication (Pvt.) Ltd. PLD 2013 Sindh 555 ref.

Muhammad Umar Lakhani for Appellant.

Mushtaq A. Memon for Respondents (in H.C.As. Nos.227 and 228 of 2014).

Muhammad Junaid Farooqui for Respondent No.2.

Nemo present for Respondents Nos.3 to 8.

2017 C L C 966

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

SAAD ASLAM KARIMI----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 9 others----Respondents

Constitutional Petition No.D-6849 of 2016, decided on 15th December, 2016.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Petitioner, a licensee/dealer seeking direction for oil company to allow him to operate a petrol station---Petitioner had raised disputed question of fact which could not be decided in extra-ordinary jurisdiction of the High Court---Constitutional jurisdiction was intended primarily, for providing an expeditious remedy in a case where illegality of impugned action of an executive or other authority could be established without any elaborate enquiry into complicated or disputed facts---Petitioner being licensee had no locus standi to maintain constitutional petition---Constitutional petition was dismissed accordingly.

(b) License---

----Scope---"License" and "easement"---Distinction---"License" was a personal privilege to do some particular act or series of acts on the land without possessing any estate or interest therein, and was ordinarily revocable at the will of licensor and is not assignable--License was not a contract between licensor and licensee but a mere personal permit therefore a license was distinguishable from an "easement" which implied an interest in the land and a "lease" or right to take profits of land---License with respect to property was a privilege to go on premises for a certain purpose, but did not operate to confer on, or vest in, licensee any title, interest, or estate in such property.

Zafar Ali v. The State 2008 YLR 2071 and Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 rel.

Abdul Baqi Lone for Petitioner.

2017 C L C 979

[Sindh]

Before Muhammad Junaid Ghaffar, J

HAKIM ALI----Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Coal Mines Development Department and 6 others----Defendants

Suit No.2076 of 2016 and C.M.A. No.13560 of 2016, decided on 18th November, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit or declaration, injunction and recovery of damages---Interim injunction, grant of--- Auction proceedings--- Transparency---Requirements---Petitioner was aggrieved of handing over the rights for collection of royalty on coal mines to defendant---Plea raised by petitioner was that auction proceedings were not transparent---Validity---Not incumbent upon government to always accept the highest bid but then it was responsibility of government to come and satisfy that award to person other than the highest bidder had been done in a fair and diaphanous manner---In absence of such satisfaction acceptance of such offer and sought to be substantiated could amount to arbitrariness and exercise of discretion unfairly---Act of fixing three different dates for open auction in question was bewildering in nature and the same should not have been done as it had gone against the mandate of open auction---Reason assigned for postponing auction for two dates did not find any mention in auction notice and could not have been done---Alleged award of contract to defendant was an attempt to frustrate status quo order passed earlier as record did not justify that any award was made in reality---High Court set aside the auction proceedings as well as award of contract allegedly given to defendant---High Court directed the authorities to re-auction rights for collection of royalty on coal and to take back possession if handed over to defendant---Application was disposed of accordingly.

Lanvin Traders v. Deputy Administrator Evacuee Trust Property and others 1993 SCMR 1707; Kasturi Lal Lakshmi Reddy v. The State of Jammu and Kashmir and another AIR 1980 SC 1992; Ramana Dayaram Shetty v. The International Airport Authority of India and others AIR 1979 SC 1628 and Javaid Iqbal Abbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433 ref.

Khalid Javed for Plaintiff.

Ziauddin Junejo, AAG for Defendants Nos.1 to 3.

Zaheerul Hassan Minhas for Defendant No.5.

2017 C L C 1023

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

Messrs I.S.M. HOSPITAL through authorized person----Petitioner

Versus

PROVINCE OF SINDH and 3 others through Chief Secretary----Respondents

C.P. No.D-4490 of 2013, decided on 2nd February, 2017.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Petitioner, status of---Non-legal entity---Constitutional petition was filed by a hospital challenging demand notice for payment of certain municipality charges---Hospital in question was neither a firm nor a registered body---Constitutional petition could not be filed by a hospital, which was neither a company nor an association and as such was not a legal entity---Constitutional petition was dismissed accordingly.

Hakim Ali Khan for Petitioner.

Iqbal Khurram for KMC.

2017 C L C 1090

[Sindh (Sukkur Bench)]

Before Muhammad Humayon Khan, J

MOHAMMAD URIS----Applicant

Versus

ZAWAR HAJI and 3 others----Respondents

Civil Revision No.13 of 2010, decided on 7th November, 2016.

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

----Arts. 75, 76, 78, 103 & 129(g)---Document, proof of---Procedure---Sale deed---Secondary evidence, production of---Conditions---Contention of plaintiff was that he was owner of suit property---Suit was dismissed concurrently---Validity---Neither original sale deed nor its certified copy was produced by the plaintiff in his evidence---Sale deed did not show the description of suit property nor its sale consideration---Neither independent witness nor official witness was examined to prove the said sale deed---Rule of evidence did not fetter the powers of Court to unveil the real transaction---Admissibility of document was to be distinguished from proof required for determining the execution and genuineness of the same--- Registered sale deed by itself without proof would not confer any right---If neither original sale deed was produced nor permission was obtained for production of secondary evidence or any witness was examined then sale deed was not proved---No steps were taken to prove the contents of sale deed by leading primary or secondary evidence---Said document could not be taken into consideration---Mere tendering a document in evidence would have no evidentiary value unless its contents were proved according to law---Court was competent to look into the document and to command upon its true nature or otherwise---Non-production of witness to prove document was fatal to the case of the party with the legal consequence that the recitals of document could not be said to have been proved---Simply because no objection was raised to the production of document would not render the same as proved---Presumption of truth was attached to registered document but if its contents were challenged, the onus would shift on the beneficiary to prove the same by examining attesting witnesses---Evidentiary value of certified copy of sale deed without seeking prior permission from the Court would lose its importance---Copy of said document would not be sufficient to prove the same---No presumption of correctness could be attached to the certified copy of sale deed which was not admissible in evidence as condition precedent to the admission of secondary evidence had not been fulfilled---Beneficiary of sale deed was bound to examine marginal witnesses, identifier and Sub-Registrar was to prove valid execution of disputed sale deed---Beneficiary would not succeed to prove his case in absence of such evidence---Where execution of registered document was disputed, no presumption of truth would attach to said document and its valid execution had to be proved---If best evidence was withheld by the beneficiary inference had to be drawn against him---Entire case of plaintiff was based upon sale deed but he neither pleaded the same in his plaint nor produced it with his plaint or claimed any specific relief on the footing of said sale deed---Evidence on non-pleaded case could not be looked into and should be ignored---Alleged sale deed had not been proved in circumstances---No illegality or irregularity had been committed by the courts below---Both the courts below had exercised jurisdiction vested in them on sound reasons which was neither perverse nor arbitrary for inequitable---Revision was dismissed in circumstances.

Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473; Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others 2015 SCMR 799; Muhammad Ittayat Khan v. Mst. Rehmat Khatoon and others 2001 MLD 1083; Fayyaz Ali v. Syed Islam Ahmed Kalimi PLD 2001 Kar. 403 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 ref.

Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996 and Ms. Uzma Masood and another v. Orient Communication (Pvt.) Ltd. and another 2013 YLR 284 distinguished.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Fakhar-ud-Din through L.Rs. v. Muhammad lqbal and others 2015 CLC 994; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Hyderabad Development Authority through M.D., Civil Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Mst. Akbar Jan through L.Rs. and 9 others v. Mst. Kalsoom Bibi and 6 others 2015 CLC 549; Farzand Ali and others v. Bashir Ahmad 2016 YLR 1233; Muhammad Bux v. Muhammad Ali 1984 SCMR 504; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 rel.

(b) Pleadings---

----Party could not be allowed to lead evidence contrary to its pleadings nor could a party be permitted to take a plea different than the plea which he had taken in his pleadings---Any part of evidence which was beyond the pleadings was to be over looked and ignored---No relief could be granted beyond pleadings and judgment could not be based upon on non-pleaded case.

Zahida Mahmood v. Muhammad Sabir Khan and 5 others 2000 YLR 1011; Muhammad Naib v. Amirullah and 39 others 2002 MLD 1243; Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. and another 2004 MLD 361; Ehtezaz Asgher and another v. Ch. Muhammad Sajawal and 2 others 2012 YLR 1580; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698 and Hafiz Muhammad Abid v. Azad Government of the State Jammu and Kashmir through Chief Secretary and 4 others 2015 PLC (C.S.) 232 rel.

Kalander Bakhsh M. Phulpoto for Applicant.

Manzoor Hussain N. Larik for Respondents.

2017 C L C 1123

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Muhammad Iqbal Mahar, JJ

Mst. MALOOKAN----Petitioner

Versus

BACHO MAL and 4 others----Respondents

Constitution Petition No.D-2045 of 2011, decided on 7th September, 2016.

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

----Ss.161 & 164---Constitution of Pakistan, Art.199---Cancellation of allotment of land---Land allotted in favour of petitioner was cancelled by the Executive District Officer Revenue---Contention of petitioner was that she was condemned unheard---Validity---Impugned order was passed after hearing the petitioner and in her presence---Alleged order could not be held to have been passed malafidely or in a partial, unjust and oppressive manner---Board of Revenue had jurisdiction to entertain revision petition against the order passed by any revenue officer subordinate to it---High Court, under its constitutional jurisdiction, could not step in where an adequate remedy to aggrieved person was available by way of appeal or revision---Petitioner having preferred constitutional petition within forty-one days from the date of impugned order, she could approach the concerned Revenue forum to redress her grievance---Benefit of excluding time consumed in pursuing the remedy before High Court was directed by High Court to be considered sympathetically---Constitutional petition was dismissed in circumstances.

Mst. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 and Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135 distinguished.

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

Habibullah G. Ghouri for Petitioner.

Gulab Rai Jessrani for Respondent No.1.

Naimatullah Bhurgari, State Counsel for Respondents Nos.2 to 5.

2017 C L C 1129

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

RUKHSANA YAHYA----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 4 others----Respondents

Constitutional Petition No.D-4747 of 2016, decided on 18th October, 2016.

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

----Ss. 217 & 220---Water supply, maintenance of---Fundamental Right---Right to life---Scope---Contention of petitioner was that she had fulfilled all the formalities but authorities had not installed water supply meter at her house---Validity---Authorities were bound to supply/provide water to the petitioner when they were charging and collecting water tax from her---Cantonment Board was to ensure adequate and continuous water supply throughout the year not only to the petitioner but also to all the residents within its territorial jurisdiction in consideration of water tax paid by them---Cantonment Board might disentitle itself from charging, claiming or collecting water tax from the residents in case of failure to discharge its statutory duty and function with regard to supply of water---Cantonment Board, in the present case, had not, issued any notice to the petitioner to obtain water from a source of public water supply nor taken necessary steps in that behalf---Constitution had guaranteed fundamental rights to every citizen and also equal treatment vis-a-vis such rights---High Court observed that citizens who were already enjoying such Fundamental Rights should not be deprived of their rights nor such right be curtailed or restricted on the pretext of granting such rights to the new applicants/consumers---Authorities should ensure that permissions and approvals for fresh construction and new water connections were granted without disturbing, restricting or curtailing the rights of all those residents who were already enjoying such rights---Public functionaries should perform their functions and duties for safety, wellbeing and betterment of general public with prudence, vigilance and full responsibility---Question involved in the present case was of Fundamental Right to 'life' and human existence and enjoyment of amenities and facilities which a person born in a free country was entitled to enjoy with dignity, legally and constitutionally---Authorities had stated that they had arranged for additional water bowsers for the residents to whom water was not being supplied on regular basis in the water supply lines and five water bowsers per month would be issued to the residents who applied on line for the same---Constitutional petition was disposed of by High Court on such statement with the direction that Cantonment Board should file compliance report on monthly basis to the High Court and it should not charge water tax from those residents to whom water was not supplied or provided and it should display its said statement on Website and Notice Boards which should not be removed without permission of the Court.

Ms. Shehla Zia v. WAPDA, PLD 1994 SC 693 rel.

(b) Public functionaries---

----Public functionaries to perform their functions and duties for safety, well being and betterment of general public with prudence, vigilance and full responsibility.

(c) Administration of justice---

----Justice should not only be done but it should be seen to have been done.

Syed Muhammad Yahya for Petitioner.

Mir Hassan, Standing Counsel for Respondents Nos.1 and 2.

Abdullah Munshi along with Arfeen Minhas, Additional CEO, Cantonment Board Clifton for Respondents Nos.3 to 5.

2017 C L C 1140

[Sindh]

Before Muhammad Ali Mazhar, J

MTW PAK ASSEMBLING INDUSTRIES (PVT.) LTD.----Plaintiffs

Versus

SHAHZAD RIAZ and others----Defendants

C.M.A. No.8750 in Suits Nos.1297 of 2016 and C.M.A. No.2473 in Suit No.660 of 2017, decided on 17th May, 2017.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for cancellation of documents, declaration and injunction---Sale of tractors by agent---Annulment of specific clause pertaining to sale of tractors by the agent by an addendum by the Principal---Scope---Interim injunction, grant of---Scope---Plaintiff in the capacity of agent, lost exclusive rights, if any, whereas the principal company entered into contract with defendant, much after the date of Addendum in question---Plea raised by plaintiff was that all other terms and conditions of agreement in question were saved---Validity---Such could be so for residual clauses but end result and aftermath of Addendum in question which annulled specific clause pertaining to selling of tractors, could not be overlooked and disregarded---All pragmatic and business like raison d'eter, plaintiff at such juncture was not entitled to claim any exclusivity or exclusive rights to sell tractors in the territory of Pakistan---Such was a distinctive façade that not only plaintiff signed Addendum in question and all the moreso they never denied actuality and or authenticity of the document---Plaintiff failed to make out any prima facie case warranting confirmation of ad-interim order---Balance of convenience and or inconvenience was in favour of defendant i.e. greater damage would arise to defendant by granting injunction in the event of its turning out afterwards to have been wrongly granted---No irreparable injury, was possible, and if at any later stage plaintiff was able to prove and substantiate any violation or defilement of alleged exclusivity clause or its wrongful annulment by their principal, which triggered some losses and impairments then plaintiff could ask for damages and compensation in accordance with law---Application was dismissed in circumstances.

Karachi Development Authority v. Hadi Bux Memon and another 1992 CLC 1036; Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387; Pak China Chemicals v. Department of Plant Protection and another 2006 CLD 210; Al-Tamash Medical Society v. Dr.Anwar Ye Bin Ju and others 2017 MLD 785; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers' Housing Authority and others 2010 MLD 1267; Naseem-ul-Haq v. Raees Aftab Ali Lashari 2015 YLR 550 and Ilyas Ahmed v. Muhammad Munir PLD 2012 Sindh 92 ref.

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

----S. 42---Suit for declaration---Maintainability---Pre-condition---Provisions of S.42 of Specific Relief Act, 1877, are attracted to a case in which plaintiff approaches court for safeguard of his right to legal character or property but where right to his own legal character or property is not involved the suit is not maintainable.

Muhammad Jamshid Malik for Plaintiff.

Khawaja Shams-ul-Islam for Defendant No.1 (in Suit No.1297/2016 and for Defendant No.2 in Suit No.660/2017).

Nemo for other defendants.

2017 C L C 1204

[Sindh]

Before Aqeel Ahmed Abbasi and Arshad Hussain Khan, JJ

MAL PAKISTAN LTD. through Chief Financial Officer and Company Secretary----Petitioner

Versus

PAKISTAN through Secretary Revenue Division and Ex-Officio Chairman, Federal Board of Revenue and another----Respondents

C.Ps. Nos.D-1089 along with D-1720, 1950, 2839, 5033 and 5039 of 2016, decided on 27th February, 2017.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Pleadings---Amendment in pleadings---Allowing amendment to a plaint in a suit---Exercise of discretion by the courts under O.VI, R.17, C.P.C.---Principles and scope---Under O.VI, R.17, C.P.C. a court enjoyed vast discretionary powers to allow amendments in a plaint at any stage of the proceedings if the court was of the opinion that the same were just and necessary for final disposal of a case---Court, however, was bound to exercise such discretion in accordance with settled judicial principles, and while allowing a request for amendment in plaint, no prejudice could be caused to the other side, and it had to be seen whether an amendment was necessary for accurate determination of the dispute between the parties and while allowing an amendment in the plaint, the defendants' right should also be kept in view and no amendment should be allowed, which aimed to change the complexion of the case altogether or introduce a new case based on a new cause of action---Amendment in plaint could be allowed to seek consequential relief arising from cause of action originally incorporated in plaint or to add additional relief available to a plaintiff even before the higher courts of jurisdiction, including the High Courts and the Supreme Court and furthermore, the same could also be allowed so as to base a plaint on a different title---Rights accrued in favour of one party could not be allowed to be snatched away by allowing amendment in a causal manner, and an amendment to a plaint cannot be allowed if it was not moved in good faith, likely to result in injustice or if the period of limitation had run since the accrual of the actual cause of action.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Pakistan Molasses v. The Collector of Customs and others PLD 1989 SC 340; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Sakhi Muhammad and another v. Fateh Muhammad and 3 others 1992 CLC 182; The City District Government v. Samiullah Jung and others Appeal No.619 of 2008 rel.

Dr. M. Frough Naseem for Petitioners.

Ms. Ismat Mehdi for Petitioner (in C.Ps. Nos.D-1950 and 1720 of 2016).

Ammar Yasser for Petitioner (in C.Ps. Nos.D-5038 and 5039 of 2016).

Sarfraz Ali Metlo and Muhammad Aqeel Qureshi for Respondents.

Manzoor Elahi holding brief for Ms. Afsheen Aman for Respondents.

Mir Hussain Standing Counsel.

2017 C L C 1227

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD SHAHID FAROOQ and 2 others----Petitioners

Versus

JAMSHED ALI KHAN and another----Respondents

S.M.A. No.Nil Computer Code No.S.M.A. No.38 of 2010, decided on 23rd August, 2016.

(a) Defence Savings Certificate Rules, 1966---

----Rr. 13 & 16---Mahana Amdani Accounts Rules, 1983, R.29---Behbood Savings Certificate Rules, 2003, R.18---National Saving Certificates---Nomination---Scope---Deceased had purchased Behbood Savings Certificates and nominee encashed the same after her death---Validity---No muslim could make such a nomination through which he could deprive his legal heirs from inheriting his tarka'---Defence Savings Certificate Rules could not give an absolute right and authority to 'nominee' to receive thetarka' without any mechanism to ensure that amount collected had been distributed among legal heirs as per their legal entitlement---Said Rules were in direct conflict with substantial laws/rights and could not be allowed to continue---Financial institution could not frame its rules or forms in a manner or fashion which otherwise resulted in depriving the rightful persons even by taking the consent of purchaser in shape of `nomination'---Said Rules were illegal, void and against the substantial rights and should be struck off or at least amended in a manner so as to bring the same in conformity with law of inheritance---Nominee, in the present case, had received the amount of certificates but had not discharged his obligations i.e. distribution thereof among the legal heirs---Nominee was directed to surrender such received amount along with profit if any in the Court within two months which should be distributed among the legal heirs of the deceased according to their legal entitlement---High Court issued necessary directions to bring the Rules and Regulations in conformity with law.

Following directions were issued by the High Court to bring the Rules and Regulations of National Saving Centers and other financial institutions in conformity with settled definition of "nominee" keeping in view the law of inheritance mechanism of which should include:--

(i) a mechanism through which the holder of certificate completely understands that 'nomination' shall not earn any other right in him except that of distribution of amount among the legal heirs:

(ii) a mechanism through which the 'nominee' consents to discharge his obligations as nominee, as per decided principle by honourable Apex Court.

(iii) a mechanism through which the details of 'legal heirs' comes to knowledge of National Saving Center (NSC) and other financial institutions, which however shall not prejudice the right of any other person who subsequent to purchase of certificates, earns status of legal heirs;

(iv) a mechanism whereby NSC and other financial institutions ensure satisfaction of distribution of amount among legal heirs even through 'nominee';

(v) a mechanism whereby NSC and other financial institutions ensure that amount of minor legal heirs is either invested in his name or allowed to be received under proper guardianship certificate;

(vi) NSC and other financial institutions shall ensure that list of legal heirs is submitted by the person investing any amount in profitable scheme;

(vii) NSC and other financial institutions shall ensure that prescribed form(s) do contain relevant column(s)/information(s) with regard to faith or sect of purchaser/holder of certificate so as to deal with applicable affair(s) within light of personal faith or sect;

(viii) With regard to already invested amount and nomination made, the NSC and other financial institutions shall ensure that holder of certificates be informed about meaning and purpose of 'nominee' and a written consent for continuity thereof be obtained from them and nominee (s);

(ix) At the time of investments in any scheme, NSC shall offer to depositor to transfer interest on maturity automatically to his account;

(x) All payments shall be made through cross-cheque;

(xi) All centers shall be computerized and shall be connected with each other and all facilities of modern technology including ATM shall be provided;

(xii) On maturity profit with principal shall be transferred automatically without any delay in the account of depositor.

Ameeran Khatoon v. Shamim Akhtar 2005 SCMR 512 and Malik Safdar Ali Khan v. Public at large 2004 SCMR 1219 ref.

Amtul Habib v. Musarrat Parveen PLD 1974 SC 185; Bushra Farooq v. Shabana Rafiq 2002 CLC 1502; Imtiaz Shamim v. Muhammad Irfan-ul-Haq 2006 CLC 1189 and Erum v. Ameena PLD 2015 Kar. 360 rel.

(b) Constitution of Pakistan---

----Arts. 8, 5(2) & 2-A---Laws inconsistent with Fundamental Rights---Scope---Person including an organization could frame Rules and Regulations to run its affairs/business but same should not be in conflict or inconsistent with Fundamental Rights.

(c) Words and phrases---

----'Substantial law'---Meaning.

Black's Law rel.

(d) Words and phrases---

----'Owner'---Meaning.

Black's Law rel.

Petitioner No.1 in person.

Shamshad Ali Qureshi for Respondent No.1.

Salman Talibuddin, Additional Attorney General.

Khawaja Shamsul Islam and Adnan Iqbal Choudhri (Amici Curiae).

2017 C L C 1294

[Sindh (Larkana Bench)]

Before Nazar Akbar, J

GHULAM SAJJAD----Applicant

Versus

Mst. TOOBA----Respondent

Civil Transfer Application No.S-9 of 2016, decided on 20th January, 2017.

Contempt of Court Act (IV of 2003)---

----Ss. 3 & 17---Family Courts Act (XXXV of 1964), Ss.12-A & 25-A---Contempt of court---Show-cause notice, issuance of---Transfer application---Frivolous allegations made against Judge---Family Court passed ex-parte decree in favour of wife as husband had not pursued the case properly after his appearance---Appellate court remanded the case to decide the matter on merits by Trial Court within stipulated time with direction that parties shall not ask for any unnecessary adjournments---Appellate court also inflicted costs on the husband for not vigilantly persuing his case and causing delay in disposal of case---During remand proceedings, at the instance of husband his counsel refused to continue cross-examination and declared to file transfer application and continued taking dates on this ground---Generally, such allegations against Judges were levelled before Member Inspection Team designated for monitoring lower courts---Husband had not given any reason as to what prompted the Judge to behave in the manner alleged while recording evidence---Husband was guilty of contempt of court by hurling wild and unbelievable allegations---Husband by making unnecessary adjournment applications was also guilty of 'defying' order of appellate court---Contempt notice was issued to husband on basis of contents of transfer application---Show-cause notice of contempt of court was issued to husband/applicant---Transfer application was dismissed accordingly.

PLD 1961 Dacca 153 ref.

2017 C L C 1322

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

Messrs TUWAIRQI STEEL MILLS LTD. through Authorized Representative----Petitioner

Versus

IIIrd SENIOR CIVIL JUDGE (SOUTH), KARACHI and another----Respondents

C.P. No.D-5879 of 2016, decided on 13th January, 2017.

Civil Procedure Code (V of 1908)---

-----O. XXXVIII, R. 5---Attachment before judgment---Suit for recovery of money was filed against petitioner in which Trial Court passed an order to attach the accounts of petitioner---Validity---Before exercising power under O.XXXVIII, R.5. C.P.C., court had to be satisfied that there was reasonable chance of a decree being passed in suit against defendant and that plaintiff had a prima facie case---If averments in plaint and documents produced in support of the same, did not satisfy court about existence of a prima facie case, the court would not go to the next stage of examining whether interest of plaintiff should be protected by exercising power under O.XXXVIII, R.5, C.P.C.---Trial Court after issuing notice of application under O.XXXVIII, R.5, C.P.C., filed by plaintiff and after giving opportunity to petitioner to rebut the contention raised therein, passed order in question upon its satisfaction, such order was not passed in violation of proposition of law---Constitutional Petition was dismissed in circumstances.

Mohiuddin Molla v. The Province of East Pakistan and others PLD 1962 SC 119 and Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 ref.

Khadim Hussain Thaheem for Petitioner.

2017 C L C 1353

[Sindh (Sukkur Bench)]

Before Muhammad Humayon Khan, J

Molvi MUHAMMADIN----Applicant

Versus

MUHAMMAD BACHAL and another----Respondents

Civil Revision Application No.106 of 2009, decided on 27th January, 2017.

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

-----S. 114 & O. XLVII---Review---Principles---Repetition of same grounds---Scope---Both the parties to the revision moved the court to review the judgment/order---Validity---Review petitioner(s) had repeated same grounds which were argued at the time of hearing main revision petition and pleaded in review application---Petitioner had failed to point out any error in the judgment---Review petition was misconceived and not maintainable in law.

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

----S. 114 & O. XLVII, R. 3---Review---Form of draft of review petition---Provisions as provided in R.3 of O.XLVII, C.P.C. were mandatory and the review petition should be drafted in the manner on which appeal was drafted---Review petition, in the present case, was not drafted in the form as provided in O.XLVII, R.3, C.P.C., the same was not maintainable in law---Where a particular procedure was prescribed for doing something, that thing must be done according to that procedure, otherwise, the entire proceedings would be illegal or irregular---Courts while interpreting the law would not read anything, which was not provided in the law, which had to be interpreted as it stood in the statute book.

Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842; Hafeezullah and others v. Abdul Latif and others PLD 2002 Kar.457; Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60; Imran Saeed v. The State 2001 PCr.LJ 1365 and Qamar ul Islam and another v. District and Sessions Judge/Chairman Election Tribunal, Nawabshah and others PLD 2005 Kar. 591 ref.

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

----S. 114 & O. XLVII---Court Fees Act (VII of 1870) Sched.I Item 5---Review---Court fee for review petition---Scope---Review petitioner had affixed court fee of Rs.5/- only---Validity---Petitioner was required to pay court fee upon review petition one-half of the fee leviable on the memorandum of appeal as provided in Item 5 of Sched.-I of Court Fees Act, 1870.

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

----S. 114 & O. XLVII---Review---Principles---Power of court---Scope.

Power of court to review its order or judgment was subject to provisions of O.XLVII, C.P.C. Principles of law to decide the review application were:- (i) Every order or judgment pronounced by the court was presumed to be a considered, solemn and final decision on all points arising out of the case; (ii) If the court had taken a conscious and deliberate decision on a point of fact or law, a review petition would not lie; (iii) View canvassed in the review petition was more reasonable than the view found favour with the court in the judgment/order of which review was sought, was not sufficient to sustain a review petition; (iv) Simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie; (v) Simpliciter the fact that the conclusion recorded in a judgment/order was wrong did not warrant review of the same but if the conclusion was wrong because something obvious had been overlooked by the court or it had failed to consider some important aspect of the matter, a review petition would lie; (vi) if the error in the judgment/order was so manifest and was floating on the surface, which was so material that had the same been noticed prior to the rendering of the judgment the conclusion would had been different, in such as case a review petition would lie; (vii) The power of review could not be invoked as a routine matter to re-hear a case which had already been decided; (viii) Review was not a re-hearing of the main case and hence re-arguing a case fell outside the scope of the review; (ix) The scope of review was very limited and it could not be used as a substitute for a regular appeal.

Review petitioner, in the present case, had failed to point out any error of law or fact in the judgment or to show any misinterpretation of law or to show that the High Court had over-looked important aspect of the matter; entire arguments were on the merits of main case which the High Court had already decided and accordingly power of review could not be invoked to re-hear the matter which had already been decided. Review petition was dismissed accordingly.

Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Abdul Rauf and others v. Qutab Khan and others 2006 SCMR 1574; Malik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 146; Government of Punjab and others v. Aamir Zahoor-ul-Haq and others PLD 2016 SC 421; Engr. Inam Ahmad Osmani v. Federation of Pakistan and others 2013 MLD 1132; Dr. Masroor Ahmed Zai v. Province of Sindh through Chief Secretary and 2 others 2016 CLC 1861; Maqbool Hussain alias Jamala Dogar v. Federation of Pakistan and others 2016 CLC 219; Nazakat Hussain Shah and 5 others v. Muhammad Ali and 3 others 2016 MLD 1651; Shabbir Ahmad Zaffar v. Member Board of Revenue (Consolidation) and others 2016 CLC 1655; Mst. Rani Fareeda v. Tahir Saleem 2016 MLD 1771; Mst. Gul Safia Bibi and another v. Al-Haj Muhammad Nazir and 2 others 2016 CLC 10 ref.

Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 and Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 distinguished.

Abdul Rasheed Kalwar for Applicant.

Nemo for Respondent No.1.

Shaikh Amanullah for Respondent No.2.

2017 C L C 1366

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Mrs. ROQUAIYA FARID----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and another----Respondents

C.P. No.D-498 of 2014, decided on 19th December, 2014.

National Database and Registration Authority (Pakistan Origin Card) Rules, 2002---

----R. 16---Incorporation of change in card---Petitioner's father's name was wrongly written in the registration form issued by NADRA for attestation---Said fact was pointed out by petitioner who was directed to obtain a decree form the court of competent jurisdiction---Validity---Computerized National Identity Card issued to other members of the family of petitioner disclosed that petitioner's father name had been wrongly written in registration form---Seeking of declaration or rectification for a court was not a proper remedy in circumstances---NADRA was directed to make necessary changes in registration form---Constitutional petition was disposed of accordingly.

Tanveer Ashraf for Petitioner.

Dilawar Hussain Standing Counsel.

2017 C L C 1379

[Sindh (Sukkur Bench)]

Before Muhammad Humayon Khan, J

Syed ABDUL GHANI SHAH----Applicant

Versus

Syed ALI AKBER SHAH and 4 others----Respondents

Civil Revision Application No.60 of 2016, decided on 17th April, 2017.

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

----Ss. 115, 15 & O. VII, R. 10---Revision---Scope---Revision petition against the order of civil court was filed before the High Court instead of District Judge---Validity---District Court was empowered to entertain revision application which the High Court was competent to entertain---High Court and District Court had concurrent jurisdiction to entertain revision petition---Revision applications against the orders or judgments of Senior Civil Judge or Civil Judge should be filed before the District Judge and against the orders or judgments of District Judge or Additional District Judge should be filed before the High Court---Present revision petition should have been filed before the District Judge---High Court could not touch the merits of the present matter---Revision petition along with enclosures were returned to the applicant for presentation before the District Judge, applicant would be at liberty to file along with petition certified copies of documents which were necessary according to law.

(b) Interpretation of statutes---

----Courts should give effect to the legal provisions but not to make them ineffective---Courts of law could never be a party to putting legal provisions to disuse or discard the same but it is one of the obligations of every Court to give effect to each and every provisions of each and every law.

Mst. Banori v. Jilani through Legal Heirs and others PLD 2010 SC 1186 rel.

Shakeel Ahmed Kalwar for Applicant.

Zafar Ali Eidan Mangi for Private Respondents and Abdul Ghaffar Memon, AAG.

2017 C L C 1387

[Sindh]

Before Muhammad Faisal Kamal Alam, J

TRADING CORPORATION OF PAKISTAN (PVT.) LTD.----Plaintiff

Versus

Haji KHUDA BUX AMIR UMAR (PVT.) LTD. and others----Defendants

Suits Nos. No.1052 to 1062, 1066 to 1073, 1075 to 1078, 1081 of 1988, 270 to 274, 291 to 293 of 1989, 30 to 32 of 1990, decided on 16th September, 2016.

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

----O. XIII, R.2---Production of additional documents---Permission---Principle---Plaintiff sought filing of additional documents at belated stage after conclusion of evidence---Validity---Plaintiff filed application under O.XIII, R.2, C.P.C. many years after conclusion of evidence and the same was not acceptable---No one could be allowed to take undue advantage of Procedural law (Civil Procedure Code, 1908), which could result in delaying the matter instead of deciding it expeditiously, and tantamount to abuse of process of Court--- No good cause was shown by plaintiff for not producing listed documents earlier either with their pleadings or during evidence, particularly when all listed documents were always in possession and custody of plaintiff---Application was dismissed in circumstances.

Case law referred.

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

----Art. 117 & 120---Suit for damages---Price in international market--- Proof---Onus to prove---Price prevailing in international market was to be proved as a question of fact---Onus was on plaintiff to prove such fact by producing at least relevant pages of some well recognized international bulletin.

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

----O. XXIX, R. 1---Suit by corporation---Board resolution, absence of---Effect---Plaintiff company filed suit for recovery of damages for failure to supply goods by defendants---Validity---No Board resolution was passed nor the same was filed which could confirm that all such suits were instituted on behalf of plaintiff---Plaintiff attempted to fill up such lacuna by placing on record a resolution of Board of Directors, which resolution was in favour of officers of plaintiff authorizing them for initiating legal proceedings and to adduce evidence---No Board Resolution was filed or produced by plaintiff's side at the time of filing of all consolidated suits or in the evidence to show and prove that persons/officers who had instituted / filed consolidated suits were duly authorized and competent for initiating the proceedings---As an alternative, the Articles of Association were also not produced in order to refute plea of defendant and to demonstrate that all suits on behalf of plaintiff were duly filed by an authorized and competent person---Suit was dismissed in circumstances.

Case law referred.

Malik Muhammad Riaz for Plaintiff.

Syed Arfsar Ali Abidi for Defendant.

2017 C L C 1406

[Sindh]

Before Nazar Akbar, J

ABDUL HAKEEM----Applicant

Versus

AMEENUDDIN through Legal Heirs and 3 others----Respondents

R.A. No.52 and C.M. No.1311 of 2009, decided on 3rd November, 2016.

Civil Procedure Code (V of 1908)---

----S. 115 & O. VII, R. 11---Specific Relief Act (I of 1877), S.9---Suit for possession of immovable property---Revision---Competency---Phrase "no appeal lies" in S.115, C.P.C."---Scope---Plaint was rejected by Trial Court but Appellate Court converted the suit for declaration and permanent injunction into a suit for recovery of possession---Validity---Law had specifically barred an appeal against the dismissal of suit under S.9 of Specific Relief Act, 1877---Revision against the impugned appellate order was not maintainable as appeal had been barred by law---Revisional Court could not find any jurisdictional defect in the order passed by the appellate court when appeal was barred by law---Revision would lie when no appeal lay---Phrase "no appeal lies" in S.115, C. P. C could not be equated with the phrase "no appeal shall lie" used in S.9 of Specific Relief Act, 1877---Right and entitlement of the parties could not be determined in the suit under S.9 of Specific Relief Act, 1877---Lawful claimant could file a civil suit for his title and recovery of possession thereof---Revision was dismissed in circumstances.

Late Mst. Majeedan through LRs and another v. Late Muhammad Naseem through LRs and another 2001 SCMR 345 rel.

Iftikhar Javed Qazi for Applicant.

Muhammad Raghib Baqi for Respondent No.1.

2017 C L C 1417

[Sindh]

Before Nazar Akbar, J

Mst. SHAHIDA RANI through Legal Heirs----Decree Holder

Versus

MUHAMMAD CHUTTAL KHAN----Judgment Debtor

Ex.No.15 of 2009, C.M.As. Nos.362,37, 320 and 265 of 2015, decided on 1st November, 2016.

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

----S. 47 & O. XXII, R. 2---Execution petition---Objections---Death of decree holder---Legal representative---Scope---Contention of judgment debtor was that applicant was not legal heir of decree holder---Validity---Neither Nazir of the Court was directed to give up possession obtained by him nor applicant was entitled to take over possession of suit property---Nazir should immediately recover/take possession of suit property from the applicant and seal the same pending the actual legal heirs and claimants come forward to claim benefit of decree---Applicant would not be entitled to the possession of suit property since her share subject to clearance of her status should be limited according to Islamic Law in the benefits of the decree---Objections were disposed of accordingly.

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

----S. 151---Inherent powers---Scope---Court was bound to decide all the issues raised by a party---Inherent powers of Civil Court were unlimited to pass order to meet the 'ends of justice or prevent abuse of process of Court'.

(c) Counsel and client---

----Failure to discharge duty by counsel---Effect---Counsel failed to appear in the Court to protect the interest of his client---Chairman Bar Council was directed to initiate inquiry and action against the counsel for his failure to discharge his duty as an advocate.

Mehmood A.H. Baloch for Decree-holder.

Wasif Riaz for Judgment debtor.

2017 C L C 1431

[Sindh (Sukkur Bench]

Before Khadim Hussain M. Shaikh, J

Mst. GUL ZAMEERAN and 3 others----Applicants

Versus

Mst. AASIA----Respondent

Civil Revision Application No.86 of 2015, decided on 21st April, 2017.

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

----S. 7---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Talaq (Divorce)---Proof---Judgments at variance---Plaintiff claimed that divorce deed executed one day prior to death of her husband was illegal and she was entitled to inherit from the estate of deceased---Trial Court dismissed the suit but Lower Appellate Court allowed appeal and decreed suit in favour of plaintiff---Validity---In a case involving conflicting judgments and findings of lower courts, the judgment of Lower Appellate Court being the court of re-appraisal of evidence, if was based on evidence and logical reasons, would prevail---Talaq in question could not legitimately deprive plaintiff of her inheritance in the estate of her deceased husband, for its effectiveness---Entire exercise was to be done in the manner provided under the provisions of S.7 of Muslim Family Laws Ordinance, 1961---Copy of divorce deed was to be sent to Union Council concerned which had to issue notice thereof to wife for holding reconciliation proceedings and on failure thereof certificate for effectiveness of Talaq was to be issued on expiry of 90 days---Neither such proceedings were held nor there was any question of such proceedings as husband of plaintiff had died within one day of alleged Talaq---Plaintiff was entitled to share from estate of her deceased husband according to Shariah---Findings of facts rendered by Lower Appellate Court in favour of plaintiff after proper appreciation of evidence were based on proper reappraisal of evidence on record---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as it did not suffer from any illegality or jurisdictional defect--- Defendants failed to point out any misreading or non-reading of evidence by Lower Appellate Court nor any jurisdictional defect was pointed out---Revision was dismissed in circumstances.

Muhammad Nasir Mehmud and others v. Mst. Rashidan Bibi 2000 SCMR 1013 ref.

Asadullah Nrejo for Applicants.

Mehboob Ali Wasan for Respondent.

2017 C L C 1461

[Sindh]

Before Nadeem Akhtar, J

CIVIL AVIATION AUTHORITY----Plaintiff

Versus

Messrs AER RIANTA INTERNATIONAL and 3 others----Defendants

Suit No.1380 and C.M.A. No.1424 of 2012 of 2007, decided on 2nd December, 2014.

Civil Procedure Code (V of 1908)---

----O. VI, R.4 & O. VII, R.11---Suit for recovery of damages and compensation---Rejection of plaint---Fraud and misrepresentation---Proof---Arbitration proceedings---Defendant contended that no details of fraud were given in plaint and the suit was barred by limitation as Umpire had earlier rendered award on 31-8-2002 and suit was filed on 25-10-2007---Validity---If defendant had promised and was liable to bear, discharge and satisfy obligations and liabilities of another company towards plaintiff, the plaintiff immediately upon acquiring such knowledge, ought to have sued defendant for recovery of amount that was liable to be paid by the company---If maximum benefit was given to plaintiff and limitation for instituting suit against defendant was reckoned not from plaintiff's knowledge during arbitration proceedings but from the date of award, even then suit/claim was to have been instituted / made by plaintiff latest by 30-8-2005---Suit instituted on 25-10-2007 was barred by limitation---Where plaintiff levelled allegation of misrepresentation or fraud, it must specify and mention details of fraud, including dates---Fraud was required to be proved beyond reasonable doubt and not on the basis of surmises, conjectures or suspicion---Plaint was barred by limitation and not compliant of the mandatory requirements of O.VI, R.4, C.P.C.---Plaint was rejected ire circumstances.

General Investment Limited v. Karachi Municipal Corporation and 3 others 1993 MLD 1550; Parnamchand Chandiram Marwadi v. Kashinath Deorarm Lonari and others AIR 1922 Bombay 257(1); Javed Iqbal v. Passco and another, 2004 CLC 478; Pak American Commercial (Pvt.) Ltd. through Director v. Humayoun Latif and 7 others PLD 2008 Kar. 540; Arshad Saleem v. Civil Aviation Authority through Airport Manager and another 2011 CLD 1171; Ehtesham Ghazi v. Izharuddin and another 2001 YLR 526; Habib Bank Limited v. Shafiq Textile Mills Ltd. and others 2000 CLC 787; Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 1989; Mst. Khalida Khatoon and another v. Askari Bank Limited and 2 others 2012 CLD 194; Government of NWFP and others v. Akbar Shah and others 2010 SCMR 1408; Haji Abdul Karim through attorney and 4 others v. Messrs Florida Builders (Pvt.) Ltd. Karachi 2009 YLR 451; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Muhammad Shafi v. Punjab Province through Collector, Vehari and another 1982 CLC 55; Abdul Zahid v. Mir Muhammad and 10 others, 1999 CLC 246; M. Moosa v. Mahomed and others PLD 1954 Sindh 70; Fakir Spinning Mills Ltd., Karachi v. Abdul Aziz Khan and others 1972 SCMR 129; Mohammad Hussain v. Firm Andani Co. AIR 1959 Madhya Pradesh 30; Ghulam Shabbir v. Mst. Nur Begum and others PLD 1977 SC 75; Bal Ganadhar Tilk and others v. Shrinivas Pandi and others AIR 1915 Privy Council 7; Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 and Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 ref.

Zahid F. Ebrahim and Liaquat Hussain Khan for Plaintiff.

Sajid Zahid, Mansoor Shaikh and Safdar Mehmood for Defendants.

2017 C L C 1484

[Sindh]

Before Syed Muhammad Farooq Shah, J

SHAKIR ALI SIDDIQUI----Petitioner

Versus

The PROVINCE OF SINDH through Home Secretary and 6 others----Respondents

C.P. No.S-1449 and C.M.A 6313 of 2016, decided on 28th September, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Alternate remedy---Nature and Scope---Civil dispute could not be looked into or considered in exercise of jurisdiction of High Court under Art.199 of the Constitution and invoking of such jurisdiction instead of availing remedy provided for under the relevant law, would only be justified when impugned order/action was palpably without jurisdiction---Exercise of extraordinary jurisdiction of High Court under Art.199 of the Constitution was equitable and discretionary which was to be exercised only where substantial rights of a party had been invaded in flagrant violation of law, which could be established without any comprehensive inquiry into the facts.

2017 C L C 1508

[Sindh]

Before Muhammad Junaid Ghaffar, J

MUHAMMAD AQIL----Plaintiff

Versus

ABDUL KHALIQ and 3 others----Respondents

C.M.A. No.12257 of 2014 in Civil Suit No.635 of 2000, decided on 24th December, 2016.

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

----O. XII, R.6 & O.VIII, R.1---Judgment on admission---Non-filing of written statement---Plaintiff sought passing of judgment in his favour as defendants failed to file written statement---Plea raised by plaintiff was that non-filing of written statement was an admission of averments made in plaint---Validity---Non-filing of written statement did not amount to any admission as contemplated under O.XII, R.6, C.P.C. enabling Court to examine the same and pass judgment and decree thereof---Mere debarring defendants from filing written statement did not ipso facto disentitle defendants to proceed further in suit, including cross-examination of plaintiff's witness as and when the witness would come for his examination-in-chief, including arguing before Court either on application or at the time of final disposal---Where written statement was not filed, Court was a little more cautious in proceeding under O.XII, R.6, C.P.C. as contended by plaintiff, which otherwise was not relevant and before passing a judgment---Court must have ensured that even if the facts set out in plaint were treated to have been admitted, a judgment and decree could not possibly be passed without proving of the facts so pleaded in plaint---Such was only when for Court for recorded reasons was fully satisfied that there was no fact which needed to be proved, Court could conveniently pass a judgment and decree against defendants who had not filed written statement---Application was dismissed in circumstances.

Col. (R.) Syed Mukhtar Hussain v. Chairman, Federal Land Commission Islamabad and 3 others 2004 CLC 1019; Nisar Ahmed and another v. Habib Bank Limited 1980 CLC 981; Messrs Al-Pak Ghee Mills through Managing Partner v. Zeeshan Traders through Proprietor 2008 CLC 120 and Balraj Taneja and another v. Sunil Madan and another AIR 1999 SC 3381 ref.

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

----O. IX, R.6--- Ex parte proceedings---Court, duty of---When ex parte proceedings are being carried on, the Court has an additional burden and duty cast upon it to ensure that ends of justice are met and interest of the party who has not been able to defend its case for any reason whatsoever, should be protected and must be dealt in accordance with law.

Aminuddin Ansari for Plaintiff.

2017 C L C 1530

[Sindh]

Before Syed Muhammad Farooq Shah, J

Mst. BACHAAN and another----Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department and 11 others----Respondents

C.P. No.S-1588 and C.M.As No.6847, 6848 of 2016, decided on 29th September, 2016.

Constitution of Pakistan---

----Arts. 9, 35 & 199---Constitutional petition---Security of person---Protection of family---Scope---Petitioners, a married couple, sought protection of life, honour and property, on the ground that they were being antagonized and threatened by their relatives on account of their contracting marriage---Validity---Major and sane persons, both male and female had a right to contract marriage with their own free will guaranteed under Art.35 of the Constitution and tribal customs, social taboos and things done on account of barbarism had to yield to Constitutional commands, law and Islamic Injunctions---Article 9 of the Constitution stood violated when a married couple was compelled towards separation through coercive measures by the police or any other person---Article 9 of the Constitution inhered that a married couple was entitled to live together without fear or hindrance and if spouses were deprived of such right, then the same was a violation of said fundamental right---High Court observed that the duty of the police was to act in aid of the Constitution and the law and neither the police nor any other state functionary had any right to cause harassment to a married couple with a view to cause separation between spouses---High Court directed the police and other officials to conduct themselves in accordance with law and to provide necessary protection of life, honour and liberty to the petitioners---Constitutional petition was disposed of accordingly.

Maher Ali Shah for Petitioners along with Petitioners.

Fareed Azam State Counsel on Court notice.

2017 C L C 1539

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

SHAHZAIBUL HASSAN KHAN----Appellant

Versus

Mian MUHAMMAD AHMED and 2 others----Respondents

2nd Appeal No.48 of 2006, decided on 27th May, 2016.

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

----S. 114 & O. XLVII, R. 9----Review---Second review application against order passed in first review application---Maintainability/ permissibility---Second review application, having been filed against the order passed on a review application, was not maintainable in terms of O.XLVII, R.9(1), C.P.C. which provided that 'no application to review an order made on an application for a review of a decree or order passed or made on a review, shall be entertained'---Second review application was, therefore, liable to be dismissed---Fact, that a point on which the previous order or judgment was silent, could not be regarded as a mistake much less a mistake apparent on the record; no review was competent on such point---No review lay on the ground of apparent mistake, where the court, after discussing the matter had arrived at a decision by process of conscious reasoning and after applying its mind and considering pros and cons of the case---Second review application was dismissed with cost in circumstances.

Muhammad Ali v. Malik Bashir Ahmad and 2 others 1997 SCMR 622 ref.

Azad Government v. Abdullah and others PLD 1969 AJ&K 30 rel.

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

----S. 114 & O. XLVII, R. 9---Review---Scope, conditions and limitations---Review jurisdiction, as visualized by S.114, C.P.C., is traced to O.XLVII, C.P.C., which contains the prescribed conditions and limitations in terms of the requirements of that section---Scope of review is very limited and restricted to some mistake or error apparent on the face of record, discovery of new or important matter or evidence, which despite due diligence, is not within the knowledge of applicant, when order is passed, or for any other sufficient reason.

Azad Government v. Abdullah and others PLD 1969 AJ&K 30 rel.

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

----S. 94(e)---'Interlocutory order'---Meaning and scope-interlocutory order' may be interpreted as one which does not finally determine a cause of action, but the same only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on merits---Legislature, under S.94(e), C.P.C. has vested the court with vast powers to make such 'interlocutory order' as may appear to the Court to be just and convenient, in order to prevent the ends of justice from being defeated---Interlocutory order exists on file till final determination of the cause, even after the same has been acted upon---Orders, granting temporary injunction, appointing a receiver, attaching a property before judgment, and other interlocutory orders, passed by the court and acted upon during proceedings of a case, do not exhaust and the same survive on file of a case, till the final determination of the case by Trial Court---'Interlocutory order' exhausts and becomes merged into final order made in the case.

Roshan Din v. S.M. Badruddin PLD 1969 Kar. 546 rel.

Muhammad Khalid for Appellant.

Nemo for Respondents.

Muhammad Ali Waris Lari for Applicants Nos.1 and 2.

2017 C L C 1571

[Sindh]

Before Nadeem Akhtar and Aziz-ur-Rehman, JJ

Mst. ZAMRAD BEGUM and another----Petitioners

Versus

MUHAMMAD RAFIQ CHOUDHARY and 2 others----Respondents

Constitutional Petition No.D-6660 of 2014, decided on 10th May, 2016.

(a) Establishment of the Office of Ombudsman for the Province of Sindh Act (I of 1991)---

----Ss. 2, 9, 10 (3), 11, 29 & 32---Constitution of Pakistan, Art.10-A---Jurisdiction, powers and functions of Ombudsman---Scope---Representation to Governor--- Effect--- 'Maladministration', determination of---Complaint before Ombudsman---Scope---Dispute of civil nature, existence of---Fair trial, right to---Ombudsman, upon complaint directed registration of FIR against the petitioner/Deputy Superintendent of Police for misusing his official capacity regarding the subject shop which was in the ownership of his wife/petitioner, and to recover from him the monthly rent with interest and to hand over the possession of the subject shop to the complainant---Validity---Petitioner had already filed a representation under S.32 of Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991, before the Governor of Sindh; however, merely for and on that account, it could not be contended that the filing of the present constitutional petition was either incompetent in law and/or otherwise, the same was not maintainable for the reason that the dispute/controversy involved was not only of civil nature but also pertained to year 2008---Under S.10(3) of Act, complaint would not be made later than three months from the date/day on which the person aggrieved for the first time had notice of the matter alleged in the complaint---Complaint made before the Ombudsman was not solemn affirmation or oath as required under S.10(1) of the Act---Ombudsman, while exercising its jurisdiction on the complaint filed by the respondent later than three months' time, had not mentioned the special circumstances as referred in S.10(3) of the Act---Issue pertaining to the existence of any relationship of landlord and tenant and/or the alleged claim of the respondent on the basis of Pugri amount could not have been properly adjudicated upon without resolution of the said controversy---Impugned decision of the Ombudsman was coram non judice---Petitioner had never performed any action in his official capacity which might come within the scope of maladministration---Dispute involved, in the present case, was of civil nature and as such the same could not have been looked into by the Ombudsman under the Act---Ombudsman had passed the impugned decision without giving any opportunity of hearing to the petitioner and the new tenant of the subject shop, which was against the principles of natural justice and in violation of Art.10-A of the Constitution---Ombudsman should have directed the parties to settle their dispute before a civil court regarding payment of the Pugri amount and/or interest as claimed and payable thereon---Present case was not a case of maladministration as defined under the Act---Section 9 of the Act did not conferred jurisdiction upon the ombudsman in respect of matter of civil nature---Under S.9 read with S.2 of the Act, the Ombudsman had no jurisdiction in respect of a dispute of civil nature regarding recovery of the Pugri amount and interest payable thereon and/or the alleged claim of ownership of the respondent in respect of the subject shop on the strength of the Pugri amount paid to the petitioner---Petitioner was although a police officer but on the face of the record he had done no wrong in his official capacity and his role did not fall within the ambit of 'maladministration'---Section 29 of the Act although barred the jurisdiction of the High Court, but that was in respect of a valid order and not an order having been passed without jurisdiction and/or under the colourable exercise of jurisdiction---Ombudsman, in a controversy of pure civil nature could not have extended its jurisdiction in respect of the person and controversy other than mentioned in S.9(1) of the Act---Ombudsman could not have exercised its jurisdiction in respect of contractual obligation between the private parties as the same was not a case of maladministration of any agency or its employee---High Court set aside the impugned order of the Ombudsman with cost---Constitutional petition was allowed in circumstances.

Wharton's Law Lexicon Fourteenth Edition p.260; Prem's Judicial Dictionary Volume II of 1962 p.925; Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; State Life Insurance Corporation of Pakistan v. Wafaqi Mohtasib, Federal Ombudsman Secretariate, Islamabad and another 2000 CLC 1593 and Farman Ullah Khan v. Agricultural Development Bank of Pakistan through Manager, Tank Branch, District Tank and 2 others PLD 2000 Pesh. 10 rel.

(b) Establishment of the Office of Ombudsman for the Province of Sindh Act (I of 1991)---

----S.9----Jurisdiction, powers and functions of Ombudsman---Object---Object for which the officer of Provincial Ombudsman has been created ex-facie, is not intended to give any powers to the Provincial Ombudsman for and/or to interfere in the matters of civil nature---Manifestly, the appointment of Provincial Ombudsman under the Act is only to diagnose, investigate, redress and rectify any injustice done to a person through mal-administration on the part of any agency or any of its officers or employees.

(c) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---After incorporation of Art.10-A of the Constitution, a fair trial and due process now has become a fundamental right of every person---Protection of law and/or to be treated in accordance with law has now become an inalienable right of every Pakistani---No action detrimental to the life, liberty, body, reputation or property of any person under the Constitution is permissible save and except in accordance with law---All citizens of Pakistan under law are entitled to have equal treatment as well as protection---Under law, one cannot be denied and/or deprived of their legitimate right by violating law of natural justice---Any order passed or action taken by any forum/authority in violation of fair trial and due process would be null and void.

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

(d) Interpretation of statutes---

----Preamble----Scope---Preamble is a gateway to any statute for and to discover its object, scope and purpose.

(e) Words and phrases---

-----'Coram non judice'----Definition and scope.

Wharton's Law Lexicon Fourteenth Edition p.260 rel.

(f) Words and phrases---

----'Jurisdiction'---Definition and scope.

Prem's Judicial Dictionary Volume II of 1962 p.925 rel.

Muhammad Zahid Khan for Petitioners.

Waseem Ahmed Memon for Respondent No.1.

Miran Muhammad Shah, Addl. Advocate General Sindh for Respondents Nos.2 and 3.

2017 C L C 1650

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

HAJI KHAN BHATTI----Petitioner

Versus

PROVINCE OF SINDH and 4 others----Respondents

C.P. No.D-2199 and C.M.A. No.5984 of 2016, decided on 3rd June, 2016.

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

---Ss. 35 & 18-A---Election for the seat of Member District Council---Candidate being voter of Municipal Committee---Nomination papers, rejection of---Scope---Candidate being voter of Municipal Committee submitted nomination papers for the seat of District Council but same were rejected---Validity---Local Government representatives were closest to the communities as they had to work at grass root level---Purpose of local government was to empower such representatives of the people---If a candidate was a voter registered in an urban area then he could only be elected for Council falling within an urban area of a District including Town Committees and Municipal Committees---If a person was not registered in a Union Council or such other category of rural area then he was disqualified to represent a rural area irrespective of the fact that a candidate was a voter of the same district---Petitioner was not qualified to contest election of District Council which in fact comprised of rural area---Impugned orders did not suffer from any illegality or error---Constitutional petition was dismissed in circumstances.

(b) Administration of justice---

----What law did not permit directly could not be allowed to be achieved indirectly.

Shahid Orakazi v. Pakistan through Secretary Law and another PLD 2011 SC 385 rel.

Shabir Ali Bozdar for Petitioner.

Noor Hassan Malak, AAG along with Muhammad Imran Election Officer, Sukkur and Muhammad Aslam ARO for Respondents.

Mian Mumtaz Rabbani D.A.G.

2017 C L C 1660

[Sindh]

Before Munib Akhtar and Abdul Maalik Gaddi, JJ

PROCON (PVT.) LTD. through Chief Executive----Petitioner

Versus

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

C.P. No.D-2352 and Miscellaneous No.11233 of 2016, decided on 1st June, 2016.

(a) Public Procurement Regulatory Authority Rules, 2004---

----Rr. 27 & 28(2)---Bidding process---Extension in time---Grievance of petitioner company was that it could not file its bid within the stipulated time and extension in time was not allowed, resultantly the petitioner could not participate in bidding---Validity---If petitioner was allowed to participate in bidding process after expiry of stipulated time, serious prejudice would be caused to those bidders who were already available in time in 'tender room'---Tossing allegation without proof of tainted exercise on authorities in order to screen the fault just to annihilate entire process of awarding contract for its own good at the cost of public exchequer, was not proper---Petitioner failed to show on record that authorities made any hindrance in reaching the petitioner to 'tender room' for submission of bid---Petitioner also failed to point out any discrimination with it by authorities---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

(b) Administration of justice---

----When a thing is to be done in a particular manner it must be done in that way and not otherwise.

Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437; Hakim Ali v. Muhammad Saleem and others 1992 SCMR 46 and Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286 rel.

Shahab Sarki for Petitioner.

Aslam Butt, DAG for Respondent No.1.

Sajid Zahid and Jawad Dero for Respondent No.2.

2017 C L C 1671

[Sindh]

Before Aqeel Ahmed Abbasi and Zafar Ahmed Rajput, JJ

HABIB BANK LIMITED and another----Appellants

Versus

Haji RIAZ AHMED and another----Respondents

High Court Appeal No.204 of 2011, decided on 26th August, 2015.

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

----Ss. 120, 16, 17 & 20 & O. VII, R. 10---Original jurisdiction of High Court in civil matters---Scope---Contention of defendant was that cause of action had accrued at place 'A' and plaint should be returned for filing the same in the court having jurisdiction---Validity---Restrictions contained in Ss.16, 17 & 20, C.P.C. were not applicable to the High Court in the exercise of its original civil jurisdiction---Defendant was having its head office at place 'B' Jurisdiction in the present matter could not be questioned merely on the ground that Ss.16, 17 & 20, C.P.C. were not applicable to the present proceedings---Accrual of cause of action even partly within the territorial jurisdiction of a court would create jurisdiction to grant relief to the plaintiff---Appeal was dismissed in circumstances.

Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450; Majeed A. Tahir v. United Bank Limited through President and 3 others 2008 CLD 1162; Abdur Rahim Baig and anther v. Abdul Haq Lashari and 3 others PLD 1994 Kar. 388; M/s. Merck Marker (Pvt.) Ltd. v. M/s United Pakistan (Pvt.) Ltd. and another 2010 MLD 573; Wajid Hussain Faruqui v. Shahida Shahnawaz and another SBLR 2007 Sindh 858 and M/s Sh. Muhammad Amin & Co. v. The Provincial Industrial Development Corporation 1991 CLC 684 ref.

Muhammad Naveed Aslam and others v. Ayesha Siddiqui and others 2011 CLC 1176 and M/s West Pakistan Industrial Development Corporation v. Fateh Textile Mills Limited PLD 1964 W.P. Kar.11 rel.

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

----Ss. 16, 17, 20 & 120---Civil jurisdiction of High Court---Classes and scope.

The Civil jurisdiction of the High Court is divided into four classes (i) ordinary, (ii) original, (iii) appellate and (iv) those special matters which are the subject of special provision. Ordinary jurisdiction embraces all such jurisdiction as is exercised in the ordinary course of law without any additional steps being necessary to assume it, as opposed to extraordinary jurisdiction which the Court may assume in its discretion upon special occasions and by special order. C.P.C. is applicable in exercise of civil jurisdiction by the High Court except the exercise of civil original jurisdiction. Restrictions contained in sections 16, 17 and 20 are not applicable to the High Court in the exercise of its original civil jurisdiction.

Nabeel Kolachi for Appellants.

Raja Muhammad Maroof Khan for Respondent No.1.

2017 C L C 1683

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

SHABBIR ALIBHAI and another----Petitioners

Versus

PAKISTAN EMPLOYEES' CO-OPERATIVE HOUSING SOCIETY through Secretary and 2 others----Respondents

C.P. No.D-1888 of 1997, decided on 26th May, 2016.

(a) Co-operative Societies Act (VII of 1925)---

----S. 17-B----Co-operative Societies Rules 1927, R.4---Pakistan Employees' Co-operative Housing Society Bye-laws Nos.7, 8 & 12-A---Constitution of Pakistan, Arts.4 & 25---Exclusion of members---Matters in respect of which society shall or may make laws---'Member'---Definition and scope---Right of an individual to be dealt with in accordance with law---Equality of citizens---'Equal protection of law'---Scope--Petitioners, being the residents of Co-operative Housing Society, applied for membership of the Society, but the same was refused on the ground that the petitioners did not qualify for the membership under Bye-Laws Nos.7, 8 and 12-A of the Society, and the petitioners were also denied the right to vote---Question before the High Court was whether the Bye-Laws of the Society were arbitrary and discriminatory, which had been put in operation in such a manner so as to violate the guarantees contained in Arts.4 & 25 of the Constitution, and that whether the petitioners could be placed in the same set of circumstances in their relation to those who were the members of the Society pursuant to the Bye-Laws of the Society---Expression 'Member' included a person joining in the application for the registration of a society or a person admitted to membership after registration in accordance with the Rules and Bye-Laws applicable to such society---Bye-Law No.7 of the Society provided that all persons who had signed the application for registration were the original members of the Society and that other members would be elected by the Committee, provided that all members were employees of Pakistan Government---Petitioners had not been granted the membership of the Society, as they were not the employees of Pakistan Government---Section 17-B of Co-operative Societies Act, 1925 provided that persons acquiring interests in the immovable property in the Society from the existing members would be admitted as a member of the Society subject to the rules of the Society, which meant that the transfer would be subject to rules and if under the rules, the membership of the Society was not restricted, the person acquiring the interest could become a member of the Society, but in case the membership was restricted under the rules, as in the present case, the interest could be transferred in favour of the purchaser so far as the immovable property was concerned, but he would not become the member of the Society---Under R.4 of Co-operative Societies Rules, 1927, one of the matters in respect of which every society would make bye-laws was the name and address of the society and its branches, the tribe, class, caste or occupation of its members if the membership was proposed to be so restricted and the area for which it was to be registered as well as the purpose to which its funds were applicable, the terms of admission of members, and their right and liabilities etc.---Bye-Laws Nos.7, 8 and 12-A of the Society were, therefore, neither violative of S.17-B of Co-operative Societies Act, 1925 nor ultra vires the constitutional rights guaranteed under Arts.4 & 25 of the Constitution---Said Bye-Laws were also not arbitrary and discriminatory for the reason that 'the equality should not be in terms of mathematical calculation and exactness'---Equality must be among the equals---Equality has to be between the persons who were placed in the same set of circumstances---Petitioners, being not the employees of the Government of Pakistan, could not avail the status of the member of the Society as contained in the Bye-Laws of the Society---Constitutional petition was dismissed in circumstances.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; Shahid Rahim v. Board of Trustees of Karachi through Chairman, Karachi and another 2015 PLC (C.S.) 1235; M.Q.M. and others v. Province of Sindh and others 2014 CLC 335; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Secretary Economic Affair Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Defence Housing Authority Lahore v. Messrs Builders and Developers (Pvt.) Ltd. and another 2015 SCMR 1799 distinguished.

Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163; Asim Qureshi, Chief Editor, Haftroza Roshan, Gujranwala v. Farooq Ahmad Khan Leghari, President, Islamic Republic of Pakistan and another PLD 1999 Lah. 76 and Flying Cement Co. Ltd. and others v. Government of Pakistan through Secretary, Ministry of Water and Power and others PLD 2015 Lah. 146 ref.

Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 and Bahadur Yar Jang Cooperative Housing Society Ltd. v. Feroze Shamsi and others PLD 2010 SC 1058 rel.

(b) Constitution of Pakistan---

----Art. 25----Equality of citizens---`Equal protection of law'---Meaning and scope---Phrase 'equal protection of law' envisaged in Art.25 of the Constitution means that no person or class of persons would be denied the same protection of law, which is enjoyed by person or other class of persons in like circumstances in respect of their life, liberty or property---Persons similarly situated or in similar circumstances are to be treated in the same manner---Concept of equality before law does not involve the idea of absolute equality among human being which is a physical impossibility.

Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 rel.

(c) Constitution of Pakistan---

----Art. 25----Equality of citizens---'Equal protection of law'---Scope---Article 25 of the Constitution guarantees a similarity of treatment and not identical treatment.

Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 rel.

(d) Constitution of Pakistan---

----Art. 25----Equality of citizens---`Equal protection of law'---Scope---Protection of equal laws does not mean that all laws must be uniform, rather, it means that among equals the law should be equal and should be equally administered and that like should be treated alike.

Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 rel.

Abid Shahid Zuberi for Petitioners.

Irtaza Hussain Zaidi for Respondent No.1.

Nemo for Respondent No.2.

Asim Mansoor, Deputy Attorney General for Pakistan for Respondent No.3.

2017 C L C 1697

[Sindh]

Before Sajjad Ali Shah, C.J. and Muhammad Junaid Ghaffar, J

MUHAMMAD IRFAN GHAZI----Appellant

Versus

IZO (SPA) and 4 others----Respondents

HCA No.284 of 2015, decided on 11th January, 2016.

(a) Jurisdiction---

----Consent of parties---Scope---Jurisdiction of High Court or any other Court cannot be ousted by agreeing to such clause in the agreement---If such clause agreed upon by parties is to be treated as arbitration clause with a necessary corollary that the suit filed before that Court jurisdiction of which is intended to be ousted must be stayed and not dismissed.

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

----Ss. 20, 21, 22 & O. XXXIX, Rr. 1 & 2---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Interim injunction, grant of---Jurisdiction by consent---Procedure---Suit filed by plaintiff was dismissed under O.XXXIX, R.2(3), C.P.C., by Single Judge of High Court---Plea raised by plaintiff was that as there was question of jurisdiction of foreign Court, suit should have been stayed---Validity---By staying the proceedings, Court retained its jurisdiction as well as has respected the agreement between parties as being permissible to choose a forum of their convenience to settle the dispute---By dismissing the suit as not maintainable, Court had ousted itself from lawful jurisdiction it had----Dealership agreements in question were signed outside Pakistan and there was always a likelihood that a part of cause of action could accrued within territorial jurisdiction of Pakistan---Division Bench of High Court modified order passed by Single Judge of High Court as suit could not be dismissed and it was more appropriate to keep it pending by staying proceedings till such time issue was resolved by parties from the forum chosen by them for settlement of dispute in agreement or otherwise---Intra-court appeal was allowed accordingly.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; M.A. Chowdhry v. Mitsui O.S.K. Lines Ltd and 3 others PLD 1970 SC 373; Messrs Raziq International (Pvt.) Limited v. Panalpina Management Limited PLD 2014 Sindh 175; Light Industries (Pvt.) Ltd. v. Messrs ZSK Stickmaschinen GmbH and another 2007 CLD 1324; Light Industries (Pvt.) Ltd. v. Messrs ZSK Stickmaschinen GmbH through Attorney and another 2009 CLD 1340; CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528 and Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174 ref.

Noman Jamali for Appellant.

Z.U. Mujahid for Respondent.

2017 C L C 1718

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Mst. MUNEEZA WAQAR through Attorney----Petitioner

Versus

CIVIL AND FAMILY JUDGE AT KARACHI EAST and another----Respondents

C.P. No.S-68 and C.M.A. No.2418 of 2016, decided on 1st June, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5. Sched Ss.10 & 18---Suit for dissolution of marriage by wife---Failure of wife to appear before the Family Court in pre-trial proceedings---Effect---Wife failed to appear before the Family Court in pre-trial proceedings and her suit was dismissed---Validity---Plaintiff-wife was a Canadian citizen and she did not reside in Pakistan---Wife had filed suit through her attorney who was her maternal uncle---Appearance in the Family Court through agent was permissible and if plaintiff did not appear before the Family Court then no adverse inference could be drawn against her---Even if plaintiff did not appear in spite of direction by the Family Court for the participation in reconciliation proceedings her suit could not be dismissed for non-prosecution---Family Court could presume from such conduct of wife that she was not interested in reconciliation proceedings---If Family Court was of the view that wife's wish with regard to reconciliation proceedings should be found out by asking her personally then it could have proceeded to ascertain such fact through video link---Family Court had misdirected itself while dismissing the suit of the wife in default on account of her failure to appear in the pre-trial proceedings---Impugned order being illegal and against natural justice was set aside---Matter was remanded to the Family Court with the direction to adopt proper procedure of law and decide the same on merits within specified period---Constitutional petition was disposed of in circumstances.

Noreen Rehman v. Raja Javed Akhtar 1997 CLC 142 rel.

Saadat Yar Khan along with Abdul Hayee Shaikh for Petitioner.

Nemo for Respondents.

2017 C L C 1727

[Sindh]

Before Nazar Akbar, J

MANZOOR AHMED and 11 others----Petitioners

Versus

SHOUKAT PAPER MART through Proprietor and 2 others----Respondents

Constitutional Petition No.S-309 of 2004, decided on 20th April, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition dismissed for non-prosecution---Restoration of---Sufficient cause---Affidavit of counsel---Scope---Affidavit of counsel for showing 'sufficient cause' for restoration of a lis dismissed for non-prosecution to explain his absence on a particular date was not enough---Petitioner and his counsel had to show whether their conduct was fair and they were honestly vigilant---Counsel for the petitioner was neither careful nor he had been vigilant to pursue the present constitutional petition---Affidavit of the counsel alone could not be treated as a 'sufficient cause'---Restoration application was dismissed in circumstances---Nazir of the Court was directed to ensure recovery of cost imposed on the petitioner.

Abdul Latif v. Muhammad Yousuf and 2 others PLD 1996 Kar. 365 distinguished.

Mst. Haleema Tahir and 5 others v. Mst. Naheed Ijaz and 3 others 2010 MLD 554 and Muhammad Feroz Punjani v. Syed Badshah Hussain PLD 2014 Sindh 70 rel.

Naeem Suleman for Petitioners.

Respondent No.1 in person.

2017 C L C 1736

[Sindh]

Before Salahuddin Panhwar, J

FARIDULLAH KHAN----Plaintiff

Versus

MASOOD ASGHAR MIAN----Defendant

Summary Suit No.723 of 2005, heard on 29th March, 2016.

(a) Counsel and client---

----Advocate and pleader---Scope---Pleader is entitled to appear for 'another' and not for himself---If one wants to represent his/her client as 'advocate' then he (advocate) is not legally entitled to examine himself in place of his party (client), as for such purpose he has to unclothe his status as 'advocate' and has to clothe with 'attorney/authorized agent'.

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

----O. XXXVII, Rr. 1 & 2---Negotiable Instruments Act (XXVI of 1881), S. 4---Suit for recovery of money---Agreement---Suit for summary trial was filed by plaintiff on the basis of agreement---Validity---Negotiable instrument under S.4 of Negotiable Instruments Act, 1881, required that it should be an unconditional promise for making payment---Agreement had its own meaning and definition and if there was a promise to pay certain amount with reference to 'agreement' it was sufficient to bring such document out of the scope of S.4 of Negotiable Instruments Act, 1881---Such was not a short cause within the ambit of O.XXXVII, C.P.C. and holder of such document (plaintiff) was required to file a regular suit in the Court having jurisdiction---Suit was dismissed in circumstances.

Muhammad Aqil and Arif Dawood for Plaintiff.

Munawwar Malik for Defendant.

2017 C L C 1741

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

SAIFUDDIN----Appellant

Versus

ZAINUDDIN and another----Respondents

H.C.A. No.199 of 1991, decided on 4th March, 2016.

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

----O XLI, Rr.17 & 19 (1)---Limitation Act (IX of 1908), Arts. 168 & 181---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Re-admission of appeal dismissed for non-prosecution---Limitation-Appellant was aggrieved of the order passed by single Judge of High Court, whereby application to restore appeal dismissed for non-prosecution was dismissed---Validity---Period for limitation for re-admission of appeal under O.XLI, R.19(1), C.P.C. was thirty days under Art.168 of Limitation Act, 1908---Time had begun to run from the date of "dismissal" of appeal and not from the date of "knowledge"---If application was governed by any other Article of the Schedule to Limitation Act, 1908 (as application under O.XLI, R.19(1), C.P.C. was governed by Art.168 of Limitation Act, 1908) then provisions of Art.181 of Limitation Act. 1908, being residuary Article was not applicable---Division Bench of High Court declined to readmit appeal as application to restore was filed after expiry of prescribed period---Intra court appeal was dismissed in circumstances.

Ghulam Qassim v. Ghulam Hussain PLD 1992 SC 577; Ahmed Ali v. Registrar, Co-operative Societies PLD 1971 Kar. 182; Sabitri Bala v. Rohini Kanta Mondal PLD 1953 Dacca 23; S.J. Shah v. S.M. Alam 1982 CLC 622; Totomal and 6 others v. Deputy Commissioner and Additional Settlement Commission, Khairpur and 3 others PLD 1972 Kar. 116; Allah Ditta v. Muhammad Afzal 1995 CLC 292; Muhammad Afzal v. Muhammad Sharif 1994 CLC 2310; Sindh Industrial Trading Estate v. West Pakistan Water and Power Development Authority, PLD 1991 SC 250; Lal Dino v. Deputy Commissioner and others, 1982 SCMR 201; Haji Ghulam Sarwar v. Daya Ram, 1975 SCMR 179 and Mst. Halima Tahir and 5 others v. Mst. Naheed Ejaz and 3 others 2010 MLD 554 distinguished.

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

----S. 151---Inherent jurisdiction of High Court---Applicability---Inherent jurisdiction under S.151, C.P.C. can only be invoked when no specific provision to meet a particular situation is available in Civil Procedure Code, 1908---Provisions of S.151, C.P.C. cannot be invoked to defeat the provisions of C.P.C., nor can they be invoked to condone gross negligence of a party in a matter.

R.F. Veerji for Appellant.

Ahmed Fazeel for Respondent No.1.

Muharram Ali G. Baloch for Respondent No.2.

2017 C L C 1755

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

MUJEEBUR REHMAN ALVI and 11 others----Appellants

Versus

ALVIA TABLIGH TRUST and others----Respondents

C.M.As. Nos.1223, 1224, 294, 295, 324 and 52 of 2016 in H.C.A. No.39 of 1983, decided on 9th June, 2016.

Civil Procedure Code (V of 1908)---

----O.XXVI, R.1---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---High court appeal---Fact alleged---Onus to prove---Inspection of site---Local Commission, appointment of---Plaintiffs were aggrieved of transfer of company in question by defendants in the name of a firm to which they were partners---Single Judge of High Court decreed the suit in favour of plaintiffs---Validity---Defendants were not having sufficient funds to purchase company in question, though it was stated that earnest money of Rs.150,000/- was paid from the amounts received from abroad, however a link between the amounts received from abroad and payments made for the purchase of company was not established through documentary evidence---Defendants were not having substantial security to obtain Bank guarantee, which was obtained by plaintiffs through their sources by furnishing security in the shape of property documents, and such aspect was not denied by defendants---Question with regard to purchase of company in question from funds arranged by defendants, when there was an admission that one of the defendants was working as manager in another company of plaintiffs remained unproved---Various documents furnished by plaintiffs with regard to time to time withdrawal of amounts by defendants either from his own funds or from the funds of the Trust or another company of plaintiffs established a link that the funds for purchase of company in question were from two units and when plaintiffs had come to know about the situation that defendants managed to transfer company in question in the name of a firm to which defendants were partners, the plaintiffs became annoyed and thereafter not only the partnership firm was dissolved on their instructions but possession of company in question was also handed over to the Trust owned by plaintiffs---Single Judge of High Court appointed local Commissioner to apprise the Court about affairs of the company and to furnish his report who, after inspection, on the site pointed out a number of anomalies and misappropriations made by defendants---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court---High court appeal was dismissed in circumstances.

Sardar Muhammad v. Pakistan PLD 1961 Kar. 232; Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Anwar Ahmad v. Mst. Nafis Bano 2005 SCMR 152; Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Iftikhar v. The State PLD 1983 SC 334; Mst. Sughran and another v. Rehmat Ali PLD 1965 Lah. 580; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; Syed Wajihul Hassan Zaidi v. Government of Punjab and others PLD 2004 SC 801 and Asif Ali Zardari and another v. The State PLD 2001 SC 568 distinguished.

Qadir Hussain Khan for Appellants Nos.1, 2 and 4 to 12.

Appellant No.3 in person.

Saadat Yar Khan for Respondents Nos.1 to 4.

Respondents Nos.5 and 6 absent.

2017 C L C 1783

[Sindh]

Before Muhammad Faisal Kamal Alam, J

HABIB JUTE MILLS LIMITED----Plaintiff

Versus

The ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Industries, Islamabad and another----Defendants

Suit No.378 of 1987, decided on 26th February, 2016.

Tender---

----Non-issuance of acceptance of tender documents by authorities---Suit for damages---Claim for risk sale of goods---Scope---Plaintiff could succeed to claim risk sale if there was an enforceable agreement between the parties and same had been breached by the authorities---No contract existed between the parties and claim of risk sale was not tenable---Nothing was on record that plaintiff took measures to mitigate its losses before arranging or manufacturing the requisite goods for authorities---Plaintiff should have addressed a notice or other type of communication to defendants with regard to the fact that it was about to make preparation or commence production of subject goods in order to supply them to the authorities---Intention of the parties could be determined either through covenants or by their conduct when such conduct was not objected by either of the contracting parties---Plaintiff had knowledge that a contracting obligation did not exist in the present case---Contracts awarded under tender inquiries should have definite time lines and prescribed set of rules regulating the award of tender---Such factors were missing in the present case---Plaintiff was not entitled for any damages---Suit was dismissed in circumstances.

Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202; Major (Retd.) Ahmad Khan Bhatti v. Mst. Masooda Fatimi PLD 1981 Kar. 398; House Building Finance Corporation v. Shahinshah Humayun Cooperative Housing Building Society and others 1992 SCMR 19 and Messrs Arif Builders and Developers v. Government of Pakistan and 4 others PLD 1997 Kar. 627 ref.

Province of West Pakistan through the Secretary v. Gammon's Pakistan Ltd, Karachi PLD 1976 Kar. 458; Punjab Vegetable and General Mills Ltd. v. Hussain Brothers and another PLD 1967 Kar. 38 and House Building Finance Corporation v. Shahinshah Humayun Cooperative Housing Building Society and others 1992 SCMR 19 distinguished.

Syed Saeed Kirmani v. Muslim Commercial Bank (MCB), 1993 SCMR 441 and Arif Majeed Malik v. Board of Governors, Karachi Grammar School 2004 CLC 1029 rel.

. Rajendar Kumar Chhabria for Plaintiff.

Peer Riaz Mohammad, Standing Counsel for Defendants.

2017 C L C 1

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

PAKISTAN FOOTBALL FEDERATION----Petitioner

Versus

The GOVERNMENT OF PAKISTAN and others----Respondents

Writ Petitions Nos.21071 of 2012 and 15481 of 2015, decided on 3rd May, 2016.

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

----Ss. 1, 3 & 4---Constitution of Pakistan, Art.268(1)---Promulgation of Sports (Development and Control) Ordinance, 1962---Validity---Sports (Development and Control) Ordinance, 1962, was validly promulgated by the then President of Pakistan in exercise of powers conferred upon him in terms of Constitution of Pakistan, 1962---Said Ordinance continued to be protected by every succeeding Constitutional set up and as such was still in force.

(b) Constitution of Pakistan---

----Art. 29---Policy making---Scope---Policy making is a function which is exclusively in the domain of Federal or Provincial Government as the case may be-- Even Courts do not intervene in the policy matters unless such policies are perverse, ab initio void or against Constitutional guarantees---Where Federal Government or Provincial Government formulate a policy in accordance with law and under the mandate of the Constitution but not in an conformity with any policy of a private body, may it be an international body, the policy promulgated in Pakistan by its Government would prevail upon statute, policy, direction etc. of such international body.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

(c) Sports (Development and Control) Ordinance (XVI of 1962)---

----Ss.3 & 4---Constitution of Federation Internationale de Football Association, Art.17---Constitution of Asian Football Confederation, Arts.31.8 & 37---National Sports Policy, 2005---Election of President of Football Federation---Tenure of term---Petitioner, Pakistan Football Federation (PFF) was aggrieved and wanted to get its candidate for the post of President elected for fourth term after completing his earlier three terms of 4 years each---Validity---Two private sector sports bodies controlling football internationally with which PFF was affiliated, had restricted a person from holding office of the President for more than three terms thus providing a certainty in the maximum period that could be availed by that particular person in holding the post of President---Government in its National Sports Policy, 2005, had rightly held that certain office bearers would not be electable for more than two terms on a particular appointment/designation and the same did not tantamount to interference or intervention in the working/ functioning of any such body including PFF as the Policy was not aimed at petitioner specifically rather it was formulated to be applicable to all sports bodies across the board---Candidate of petitioner after completing his initial two tenures in office was elected for the third term 2011-2015 as President of PFF and that he was desirous of continuing for a fourth tenure for the period of 2015-2019---Such act of the candidate of PFF was not only in direct contravention of the statutory bar of two terms provided in National Sports Policy, 2005, but was also in conflict with restriction placed by AFC and FIFA on holding the office of President by any particular person for more than three terms of four years each---High Court declined to interfere in National Sports Policy, 2005---Petition was dismissed in circumstances.

Bakhtawar and others v. Amin and others 1980 SCMR 89 ref.

Muhammad Afzal Khan for Petitioner.

Muhammad Muzammal Akhtar Shabbir, Deputy Attorney General for Pakistan.

Munir Ahmed Paracha for Pakistan Sports Board, Islamabad.

Siraj-ul-Islam Khan, Addl. A.G. with Shahid Mahmood Nizami and Shafqat Mahmood, Law Officers of Sports Board, Punjab.

Ch. Zulfiqar Ali for Respondents Nos.8 to 10 (in W.P. No.15481 of 2015).

Sardar Ilyas Kaleem for Colonel (Rtd.) Farasat Ali.

2017 C L C 45

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ZAFAR ALI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PAKPATTAN and another----Respondents

Writ Petition No.1096 of 2011, heard on 7th October, 2016.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 13, 10 & Preamble----Civil Procedure Code (V of 1908), S.9---Defamation resulting from malicious prosecution---Suit for damages---Ultimate jurisdiction of civil court under the CPC---Defamation Ordinance, 2002 does not oust the jurisdiction of the civil court under CPC--- Question before the High Court was whether a suit for damages on account of defamation resulting from alleged malicious prosecution was maintainable before the court of ultimate jurisdiction under S.9 of the C.P.C. or the same could only be adjudicated under S.13 of the Defamation Ordinance, 2002---Held, that S.13 of the Defamation Ordinance, 2002 prescribed the remedy to enforce a right before the District Court, however, the same did not contain any repealing or ouster clause regarding jurisdiction of civil court to entertain a suit under the general law, that was S.9 of the C.P.C.---Remedy/right against defamation was already recognized and actionable under general law even prior to promulgation of the Defamation Ordinance, 2002 hence without a clause ousting general jurisdiction of the civil court, any person aggrieved by an act of defamation could avail said remedy either by filing a suit before the civil court under S.9 of the C.P.C. or by making complaint under provisions of the Defamation Ordinance, 2002 before District Court, and neither avenue was closed for such an aggrieved person---Impugned order was set aside---Constitutional petition was allowed, accordingly.

Ch. Zulfiqar Ali Cheema v. Farhan Arshad Mir PLD 2015 SC 134 rel.

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

----S.9---General jurisdiction of the civil court under CPC---Scope---Door of the civil court, being the court of ultimate jurisdiction, could be knocked at in respect of all civil matters, unless its jurisdiction was expressly or impliedly barred by statute regarding any specific matter.

A.D. Naseem for Petitioner.

Arshad Ali Chohan for Respondent.

2017 C L C 66

[Lahore]

Before Shahid Waheed and Ali Akbar Qureshi, JJ

ANWAR-UL-HAQ CHAUDHRY----Appellant

Versus

DISTRICT OFFICER (REVENUE), NAROWAL and 4 others----Respondents

R.F.A. No.275 of 2013, heard on 26th September, 2016.

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

----S. 18---Reference---Limitation, determination of---Jurisdiction of court---Principle---Once Collector had made reference, the court would be incompetent to go beyond the reference to see whether petition under S.18 of Land Acquisition Act, 1894, was filed within time prescribed in proviso to S.18 of Land Acquisition Act, 1894.

Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516 rel.

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

----Ss. 18, 30 & 31(2)---Acquisition of land---Reference to court---Landowner accepted compensation without any protest and a reference was filed for enhancing the same---Trial Court dismissed the reference on the ground that the same was barred by limitation--- Validity--- Landlord had accepted compensation without any protest and such aspect of the matter was important and could not be ignored---Landowner having received awarded compensation without protest had no lawful right even to file reference under S.18 read with Ss.30 & 31(2) of Land Acquisition Act, 1894---High Court set aside judgment and decree passed by Trial Court as the matter of landlord's receiving the compensation without protest was not considered by Trial Court---Matter was remanded for decision afresh.

Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408 ref.

Muhammad Zain Qazi for Appellant.

Naveed Saeed Khan, Addl. A.G. for Respondents.

2017 C L C 70

[Lahore]

Before Shahid Waheed, J

MANZOOR HUSSAIN----Appellant

Versus

Haji KHUSHI MUHAMMAD----Respondent

R.S.A. No.108 of 2006, heard on 21st May, 2015.

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

----Art. 129(g)---Withholding of best evidence---If best piece of evidence was withheld by party, it was to be presumed that said party had some sinister motive behind it---Presumption under Art.129(g) of Qanun-e-Shahadat, 1984 had to be drawn that said evidence if produced would have not been favourable to the party concerned.

Muhammad Rafique and others v. State and others 2010 SCMR 385 rel.

(b) Contract Act (IX of 1972)---

----S. 10---Contract---Scope---Where a contract was reduced in writing, not only it should be founded upon imperative elements of offer and acceptance but its proof was also dependent upon execution of contract by both contracting parties i.e. by signing or affixing their thumb impression so that it should reflect and establish their "consensus ad idem" which was the inherent and basic element of meeting of minds which connoted mutuality of assent and proved intention of parties.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

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

----S. 13---Agreement---Execution of---Requirements---Parties and witnesses though should execute document at the end, but parties must also sign each page if document was written out on more than one page.

N.S. Bindras' Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 322 rel.

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

----S. 13---Specific Relief Act (I of 1877), S.12---Specific performance of agreement---Party to agreement was required to bring on record evidence to connect two pages of document exhibited with each other---Failure of party to connect the pages---Effect---Such deficiency did not establish "consensus ad idem" and on basis of such type of document which was non-compliant of said principle of law, a decree for specific performance could not be issued.

Zafar Iqbal and others v. Mst. Nasim Akhtar and others PLD 2012 Lah. 386 rel.

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

----Art. 17(2)(a)---Agreement to sell, attestation of---According to Art.17(2)(a) of Qanun-e-Shahadat, 1984, agreement to sell was required to be attested by two male or one male and two female witnesses.

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

----Art. 79---Execution of agreement to sell---Proof---According to Art.79 of Qanun-e-Shahadat, 1984 agreement to sell could not be used as evidence until at least two attesting witnesses had been called for purposes of proving its execution, if there be two attesting witnesses alive and subject to process of court and capable of giving evidence.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 rel.

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

----Art. 79---"Attesting witness"--- Meaning---Attesting witness was person who in presence of executant of a document puts his signature or mark on it after he had seen executant or someone by executant's direction sign or affix his mark to it or after he had received from executant a personal acknowledgement of his signature or mark or his signature or mark of such other person.

Muhammad Tahir Chaudhry for Appellant.

Ch. Baleegh-uz-Zaman for Respondent.

2017 C L C 113

[Lahore]

Before Amin-ud-Din Khan and Shams Mehmood Mirza, JJ

AHSAN JAVED----Appellant

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 16 others----Respondents

I.C.A. No.888 of 2014, heard on 27th April, 2016.

(a) Constitution of Pakistan---

----Art. 9---Scope and ambit of Art.9 of the Constitution---Security of person---Right to life---Civil amenities---Civic amenities constituted a basic right of the citizens and said right had to be upheld on the touchstone of Art.9 of the Constitution.

Shehla Zia and another v. WAPDA PLD 1994 SC 693; New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority and others 2001 CLC 1589; Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.

(b) Constitution of Pakistan---

----Arts. 9 & 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional jurisdiction of High Court---Security of person---Right to life---Civic amenities---Factual controversy---Scope---Intra-court appeal---Appellant's constitutional petition impugning conversion of an open space designated as a park to another use, by the authorities was dismissed, inter alia, on the ground that the Constitutional petition involved disputed questions of fact---Validity---Civic amenities constituted a basic right of citizens and said right had to be upheld on the touchstone of Art.9 of the Constitution---Authorities had no power or authority under law to convert use of the open space and raise construction thereon, as the same had been in continuous use as a park, and had been maintained as such---High Court observed that it had been established that the status of the area which was the subject matter of the constitutional petition was for use as a park and said position was reinforced by various orders of the High Court in previous rounds of litigation, as well as by the stance of authorities in the said cases---Nature and existence of the park was therefore an undisputed fact, and thus it was disingenuous for the authorities to now take a contrary position---Finding recorded in the impugned order regarding disputed questions of fact, was therefore not valid, as the nature and existence of the park had been established by judicial orders and statements of the authorities---Impugned order was set aside, and authorities were directed to preserve and maintain the open space as a park, which was not to be converted to any other use under any circumstances---Intra-court appeal was allowed, accordingly.

Shehla Zia and another v. WAPDA PLD 1994 SC 693; New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority and others 2001 CLC 1589; Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.

Shahid Hamid for Appellant.

Waqar A. Sheikh for Respondent No.1.

2017 C L C 126

[Lahore]

Before Shams Mehmood Mirza, J

Messrs AIR CIRO through Senior Partner----Petitioner

Versus

CIVIL AVIATION AUTHORITY through Director-General and 5 others----Respondents

Writ Petition No.17223 of 2016, decided on 1st July, 2016.

Public procurement---

----Tender issued by the Civil Aviation Authority---Non-compliance of mandatory requirements of terms of the procurement document/tender by the bidders---"Mandatory requirements" and "ancillary requirements" of a procurement document/tender---Distinction, scope and effect---Petitioner participated in a tender issued by the Authority, and after submission of bids, the respondent bidder's technical offer was accepted despite existence of a deficiency in its bid as the respondent bidder had not enclosed the mandatory Technical Offer Form as required by the terms stated in the advertisement of the tender---Contention of the petitioner, inter alia, was that due to existence of said deficiency, the bid of the respondent bidder was liable to be rejected---Validity---Perusal of tender document revealed that the Technical Offer Form was a mandatory document to have accompanied the tender document---Authority committed a series of procedural missteps in opening of technical and financial offers by the bidders which had cast doubts on the transparency and validity of the entire process---Tender document clearly required the bidders to provide in an envelope, the Technical Offer Form, which was not done by the respondent bidder---Requirements contained in a tender notice could either be essential terms or ancillary terms (which were subsidiary to the main object), and while the former was mandatory, the latter could be deviated from and strict compliance thereof could be waived in appropriate cases---In the present case, the tender document clearly demonstrated that the Technical Offer Form was a mandatory requirement for which no relaxation could be awarded to the respondent bidder---Contention of the Authority that the same was not a material irregularity as it was inadvertently placed in the financial offer, was not therefore, tenable---Where there existed no power for relaxation, the same could not ordinarily be exercised and the parties must be held to strictly comply with essential conditions of the tender---Authority furnished no reasons as to why the lapse on part of the respondent bidder should not have operated as a competitive advantage to the petitioner, and the non-adherence to and relaxation from the prescribed condition resulted in discrimination to other bidders---Authority therefore treated the respondent bidder as qualified without making a determination on the deficiency in its bid/offer---High Court declared the letter issued by the Authority for opening of financial bids as issued without lawful authority, and the Authority was directed to hold the tender process afresh for seeking offers from the parties---Constitutional petition was allowed, accordingly.

Shahid Hamid and Ayesha Hamid for Petitioner.

Mushtaq Abbas and M. Usman Arif for Respondents Nos.1 to 5.

Rana Zia ur Rehman for the Respondents.

2017 C L C 158

[Lahore]

Before Shahid Karim, J

SHAUKAT ALI----Petitioner

Versus

Sheikh MUHAMMAD BASHIR through L.Rs. and another----Respondents

Writ Petition No.27630 of 2011, decided on 6th February, 2015.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Qanun-e-Shahadat (10 of 1984), Arts.114 & 117---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Burden of proof---Estoppel, principle of---Applicability---Tenant, had not denied the title of the landlord in respect of premises in question, but denied the relationship of landlord and tenant between the parties and had nothing to say regarding his status as an occupant of the premises---Tenant had made no attempt to claim the ownership of the premises, nor did he allege that there was any suit pending for claiming any right to the premises in question---Bald assertion of tenant denying relationship of landlord and tenant and signatures on the tenancy agreement, would only lead to an inference that entire defence was set up in order to prolong the agony of the landlord---He who asserted must prove---Party would bear a burden of proof of every matter, which was an essential part of the party's cause of action---Generally, there were exceptions, but plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he had sought---Once the burden had been determined, that would not shift during the course of trial---When the defence was set up by the tenant, he must also bear a burden of adducing evidence in order to bring home his good faith, and cogency of his defence---As a rule, there was an estoppel against the tenant in such matters---Underlying principle of estoppel in that a tenant who might not have got possession, but for the tenancy admitting the right of landlord, must not be permitted to put his landlord in an inequitable situation by taking undue advantage of the possession, that he got, and the probable defect in the title of his landlord---Positive obligation was on the tenant to spell out clearly the contours of his defence, the basis for it and the circumstances underlying it---Mere denial, would not do---Corresponding duty on the Rent Tribunal was to see that the denial was not based on frivolity, and was not a contraption---Denial of relationship by tenant, in the present case, was a sham and a subterfuge---To deny that fact would lead to unconscionable results, and the owner of the premises would be left into the prospect of another long-drawn litigation process in order to reclaim possession of his own property---Constitutional petition was accepted and consequently the ejectment petition also stood accepted with the result that tenant should vacate the premises within a period of two months.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and others 2007 SCMR 1692; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; H. (Minors) (1996) A.C. 563 at 586, HL and Halsbury's Laws of India, Vol. 3, at 200.023 ref.

Sardar Muhammad Ramzan for Petitioner.

Rana Surbuland Khan for Respondents.

2017 C L C 178

[Lahore]

Before Shezada Mazhar, J

A.M. CONSTRUCTION COMPANY (PVT.) LIMITED through Chief Executive Officer and another----Petitioners

Versus

NATIONAL HIGHWAY AUTHORITY through Chairman and 2 others----Respondents

W.P. No.33295 of 2013, decided on 24th January, 2014.

(a) Constitution of Pakistan---

----Art. 199---Territorial jurisdiction of (Lahore) High Court---Scope---Constitutional petition filed against the National Highway Authority ("NHA") before the Lahore High Court---Plea that all acts and documents in relation to contract between NHA and contractor were signed at Islamabad, therefore Lahore High Court did not have jurisdiction in the matter---Validity---National Highway Authority was a statutory authority performing functions in whole of Pakistan, therefore, any action or inaction on part of the statutory body could be challenged in any High Court of any Province---Lahore High Court did have territorial jurisdiction to adjudicate upon the present matter---Constitutional petition was allowed accordingly.

LPG Association of Pakistan v. Federation of Pakistan and others 2009 CLD 1498 and Messrs Sethi and Sethi sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Factual controversy---Scope---National Highway Authority ("NHA") projects---Tender floated by NHA---Tender documents, interpretation of---Controversy revolved around the interpretation of certain clauses of tender documents for periodic maintenance contract and application of some provisions of certain Public Procurement Rules, in such circumstances it could not be said that present case involved factual controversies---Constitutional petition was held to be maintainable accordingly.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional petition highlighting loss to the public exchequer/loss of public money ---Maintainability---High Court would have jurisdiction to consider the merits of such a constitutional petition.

Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510 rel.

(d) Public Procurement Rules, 2004---

----Rr. 4, 23 & 38---Constitution of Pakistan, Art. 199---Constitutional petition---National Highway Authority ("NHA") projects---Tender floated by NHA---Tender documents, interpretation of---Bid security, ambiguity in---"Non-responsive"/ "not acceptable" bid---Scope---Substantial but not complete compliance with bidding documents---Scope---NHA floated tenders for certain projects---Company/petitioner submitted bid security for said projects at 2% of the "Estimated Cost" of the projects mentioned in the tender notice---NHA contended that according to instructions provided in tender documents bid security had to be 2% of the "Bid value" and not 2% of the "Estimated cost" of the project, thus bid security submitted by company was deficient and could not be accepted---Contention of company was that no guidance was available in the tender documents as to whether bid security was to be 2% of the "Estimated Cost" or 2% of the "Bid value" submitted by the bidder---Validity---Tender documents showed that bidders were required to submit bid security at 2% of either "Bid Price" or "Bid value"---Neither words, i.e. "Bid Price" or "Bid value" were defined in the bidding documents, therefore there was an ambiguity in the bidding documents---Act of NHA of not clearly drafting the tender documents should not prejudice the company---Difference between bid security deposited by company at 2% of "Estimated cost" and bid security of 2% of "Bid value" which should have been allegedly deposited according to NHA was (only) Rs.1,876,081---On the other hand company was the lowest bidder and difference between its bid and the next lowest bid was of about Rs.35 million---NHA in such circumstances would suffer a minimum loss of over Rs.35 million in case bid of company was not considered by it---Submission of bid security by company at 2% of "Estimated cost" although a bit less than the amount allegedly required under the tender documents as per contention of NHA, it should still be considered as substantial compliance of the bidding documents---Shortfall in bid security was caused due to bona fide confusion/ambiguity in the tender documents, therefore rule of substantial compliance would apply and bid security submitted by company should not be considered as non-responsive---Constitutional petition was allowed and NHA was directed to consider bid of company for evaluation purposes along with other bidders.

Muhammad Ayub and Brothers v. Capital Development Authority Islamabad and 5 others PLD 2011 Lah. 16 distinguished.

(e) National Highway Authority Act (XI of 1991)---

----Preamble--- National Highway Authority ("NHA")--- Public organization---Custodian of public money/property---NHA being a public organization was the custodian of public money/property, and was required to protect and safeguard the same---NHA was required to obtain services at the best possible price.

(f) Public functionary---

----Acts---Nobody should be penalized for the acts of public functionaries.

Province of the Punjab through Collector District Khushab Jauharabad and others v. Haji Yaqoob Khan 2007 SCMR 554 and Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569 rel.

(g) Interpretation of documents---

----Tender document, interpretation of---Purposive and commercial interpretation---Scope---One should give purposive and commercial interpretation to tender documents and not restrictive or literal construction.

Data Steel Pipe Industries (Pvt.) Ltd. v. Sui Southern Gas Co. Ltd. 2012 CLD 832 rel.

(h) Public Procurement Rules, 2004---

----R. 4---Procurement by public authority---Terms of tender---Non-compliance with---Technical irregularity, waiving of---Scope---Public authority should not be bound to give effect to every term mentioned in the tender document, as it had the power to waive technical irregularity of little or no significance---Public functionaries had the power/ authority to deviate from and not insist upon strict compliance of a condition (in the tender).

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Messrs Nishat Mills Ltd. v. Superintendent of Central Excise Circle II and 3 others PLD 1989 SC 222 rel.

Uzair Karamat Bhandari and Mian Muhammad Kashif for Petitioners.

Muhammad Shabbir Ahmad for Respondents.

2017 C L C 196

[Lahore]

Before Shahid Waheed, J

IFTIKHAR----Petitioner

Versus

PROVINCIAL ELECTION COMMISSIONER ELECTION COMMISSION OF PAKISTAN, LAHORE and 2 others----Respondents

Writ Petition No.34965 of 2016, decided on 8th November, 2016.

(a) Jurisdiction---

----Bona fide proceedings in Court without jurisdiction---Effect---Presentation of appeal before wrong Authority is a rectifiable irregularity which can easily be removed by forwarding the same to proper authority.

(b) Public functionary---

----No one can be condemned or penalized on account of act of a public functionary.

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

----S. 14---Limitation---Exclusion of time---Bona fide proceedings in Court without jurisdiction---Nomination papers of respondent were rejected by Returning Officer---Respondent filed (election) appeal in time but it was fixed before Appellate Authority having no jurisdiction---Appeal was transferred to Appellate Authority of competent jurisdiction and order passed by Returning Officer was set aside--- Plea raised by petitioner was that when appeal was transferred to competent Authority, the same was barred by limitation---Validity---Date on which memorandum of appeal was presented, though before wrong Authority, would be taken into consideration to determine issue of limitation---Last date for filing of appeal before Appellate Authority against acceptance/rejection of nomination papers by Returning Officer was 20-10-2016 and appeal which was filed by respondent on 20-10-2016 against decision of Returning Officer, though before wrong forum, could not be treated as time barred---High Court declined to interfere in the matter as Appellate Authority had rightly declined objection raised by petitioner---Constitutional petition was dismissed in circumstances.

Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104 rel.

Khalid Jamil for Petitioner.

2017 C L C 264

[Lahore]

Before Mirza Viqas Rauf, J

SHAHID IFTIKHAR and another----Appellants

Versus

Mst. TASNEEM RANI and 4 others----Respondents

F.A.O. No.143 of 2011, heard on 3rd May, 2016.

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

---- O. VII, R. 11, O. XXXIX, Rr. 1 & 2 ---Punjab Land Revenue Act (XVII of 1967), Ss.172 & 53---Correction of entries in the revenue record---Rejection of plaint while deciding petition for temporary injunction---Scope---Trial Court while disposing of application for grant of temporary injunction rejected the plaint but Appellate Court remanded the case for decision afresh---Validity---Matter in issue was not restricted to correction of entries made by the revenue officer in ordinary course of his business but plaintiff had questioned the entries in the revenue record on the ground that such entries were made illegally which had affected his rights---Bar on jurisdiction contained in S.172 of Punjab Land Revenue Act, 1967 could not be pleaded as hurdle in exercise of jurisdiction by the civil court in such circumstances---Trial Court rejected the plaint while entertaining petition for grant of temporary injunction---No opportunity was afforded to the plaintiff to explain the competency of the plaint---Provisions of O.VII, R.11, C.P.C. were not meant to surprise the plaintiff by invoking the same in order to non-suit him---Appellate Court had rightly exercised its jurisdiction while setting aside the judgment and decree passed by the Trial Court---No illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and 6 others 2003 MLD 109; Ghulam Farid and others v. Province of Punjab and others 2013 MLD 77 and Iftikharul Haq v. District Canal Officer and others 2005 CLC 1740 rel.

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

----Ss. 172 & 53---Correction of entries in the revenue record---Bar on jurisdiction of civil court---Scope---Section 172 of Punjab Land Revenue Act, 1967 excluded the jurisdiction of civil court in the matter with regard to correction of any entry in the record-of-rights, periodical records or register of mutation---Whenever any such entry interfered with a right of a person pertaining to the land in question he could approach the civil court for declaration of his rights in terms of S.53 of Punjab Land Revenue Act, 1967.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Plaint could be rejected at any time in terms of O.VII, R.11, C.P.C if same was hit by any of the clauses mentioned therein---While resorting to O.VII, R.11, C.P.C. court must ensure that plaint was clearly hit by barring clauses mentioned in the said provision.

Ch. Rashad Abdullah Ahmad for Appellants.

Rana Muhammad Arshad Khan for Respondents Nos.1 to 3 and 5.

Nemo for Respondent No.4.

2017 C L C 273

[Lahore (Bahawalpur Bench)]

Before Shahid Mubeen, J

IFTIKHAR HUSSAIN----Petitioner

Versus

DISTRICT JUDGE, RAHIM YAR KHAN and others----Respondents

T.A. No.1 of 2016, decided on 6th January, 2016.

Civil Procedure Code (V of 1908)---

----Ss. 24 & 24-A----Transfer application---Mere utterances of opposite party/suspicion/artificial apprehension not sufficient ground for transfer---Allegations of partiality and bias to be supported with record---Petitioner filed application for transfer of petition and civil suit to any other court on the ground that trial court was partial towards him---Bias in a Court---Proof---Transfer application was dismissed by the District Judge on appeal---Utterances of the opposite party to the litigation made outside the court, could in no manner be termed as sufficient ground for transfer of the cases from one court to another---Presiding Officer would not be responsible for the irresponsible utterances of the litigants---Contention of the applicant that the trial court was partial against him was not supported by the record and the same appeared to be an afterthought---In order to sustain the bias against the judge, some act or expression of the judge must be shown to have been available or visible on record---Petitioner had not placed on record some tangible evidence in support of the allegation---Mere suspicion or artificial apprehension was not sufficient for transfer of the cases---Bald statement containing the allegations was not sufficient to allow the transfer---Transfer of a case was deemed expedient whenever the attitude and conduct of the Presiding Officer was noticed or apprehended to be prejudicial---If the Presiding Officer thought that he would not be able to do justice in a given situation, then, he might decline to take up the case, but if he did not decline to do that, then, he would be answerable if he did not perform his duty dispassionately---Lapse or otherwise of the Presiding Officer/decision maker, however, was to be judged from the decision itself and not from other circumstances---Presiding Officer had denied the allegations levelled against him before the court below and had not declined that he would not be able to do justice in the given situation---Transfer application was, therefore, dismissed in limine in circumstances.

Farooq Ahmad Khan Leghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another PLD 1981 Lah. 159 rel.

2017 C L C 305

[Lahore (Multan Bench)]

Before Shahid Karim, J

MUHAMMAD HAYAT----Petitioner

Versus

Raja GHULAM MUSTAFA and others----Respondents

Writ Petition No.2257 of 2007, decided on 25th May, 2015.

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

----S. 12---Suit for specific performance of contract to sell immovable property---Role of attorney---Scope---In matters relating to sale and purchase of immovable property, role of an attorney had always been looked upon with suspicion and skepticism by courts and it was obligatory upon courts below to have made fuller inquiry regarding authenticity of attorney---High Court observed that it was beyond comprehension as to why a decree was necessary to be passed in haste upon statement of an attorney when attendance of original allottee could easily be procured.

(b) Power of attorney---

----Construction by court---Scope---Duty of court in construction of power of attorney granting power to concede and compromise a suit, to alienate a property and recitals to that effect contained in that power of attorney.

Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 and Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs. and others PLD 2005 SC 705 rel.

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

----O. I, R. 10 & S.12(2)---lmpleadment as party---Filing of application to be impleaded as party or its rejection did not preclude the petitioner to file an application under S.12(2), C.P.C. nor did it take away his right to pursue the remedy which was available to him under law.

Eden Developers Ltd. v. NAB and others PLD 2011 Lah. 48; Dilawar Ali Khan through his legal heirs and others v. Mrs. Zohra Javed and others 1997 CLC 152; Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65; Sher Muhammad and others v. Khawaja Mazhar 2009 YLR 1609; Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Muhammad Abdullah v. Muhammad Aslam 2014 CLC 1205 and Dilawar Khan v. Mst. Badshah Zadi and another PLD 2011 Pesh. 208 ref.

Kafayat Hussain Khan Daha and Ch. Muhammad Zulfiqar Chheena for Petitioner.

Sardar Sher Khan for Respondents.

2017 C L C 342

[Lahore]

Before Faisal Zaman Khan, J

Raja HAROON RASHID----Petitioner

Versus

DEFENCE HOUSING AUTHORITY through Secretary----Respondent

Writ Petition No.2789 of 2014, heard on 6th April, 2016.

Constitution of Pakistan---

----Arts. 23, 24 & 10-A---Protection of property rights---Right to fair trial---Defence Housing Authority---Agreement for sale of land against exempted plot---Non-fulfilment of contractual obligations by the land owner---Non-issuance of no demand certificate by the Housing Authority---Audi alteram partem, principle of---Applicability---Articles 23 & 24 of the Constitution had provided protection to the citizens qua acquiring, using and holding a property save as in accordance with law---If any obligation was not fulfilled then Housing Authority had alternate efficacious remedies by way of approaching the civil court of competent jurisdiction for enforcement/specific performance of agreement/conveyance deed or else sought damages from the landowner---Non-fulfilment of a contractual obligation did not invest the Housing Authority to mark caution/place embargo on the rights of landowner from acquiring, using and holding a property---Authority had placed a rider on the rights of landowner without any lawful authority which was in violation of Arts.23 & 24 of the Constitution---No opportunity of hearing had been provided to the petitioner prior to taking any action against him which would militate the principle of audi alteram partem---No adjudication had been made by a court of law declaring that landowner had not fulfilled his obligations as per agreement/conveyance deed---Authority was not invested with any authority under the law to mark caution on the rights of land owner---Marking caution by the housing authority was declared to be without any lawful authority and same was set aside---Housing Authority was directed to issue no demand certificate to the land owner---Constitutional petition was allowed in circumstances.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Choudhry and 2 others PLD 1961 SC 531; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Muhammad Ibrahim and 44 others v. Fateh Ali and 30 others 2005 SCMR 1061 and Ghulam Hussain and others v. Muhammad Yousaf and another PLD 1981 Lah. 11 rel.

Abid Saqi for Petitioner.

Altaf ur Rehman Khan for Respondent.

2017 C L C 352

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ISFIAAN HAIDER----Petitioner

Versus

MUHAMMAD HUSSAIN and 2 others----Respondents

Civil Revision No.3444 of 2010, heard on 26th April, 2016.

Gift---

----Maxim: "secundum allegata et probata---Applicability---Donor died within a period of 43 days from the date of attestation of gift deed---Donor apprehended death at the time of attestation of impugned instrument---Death certificate was admissible in evidence and contents thereof attained presumption of truth---No objection was raised by the rival party at the time of exhibition of death certificate and same could not be objected thereafter---Donor was not healthy when instrument of gift was attested---Donor required an independent advice for making a declaration of gift and execution of instrument which was missing in the present case---No date, time, venue or names of witnesses were mentioned in the written statement to explain as to when, where and in whose presence alleged declaration of gift was made by the donor which was accepted by the donee followed by delivery of possession---Donee failed from the very inception of suit to prove the transaction of disputed gift---Party had to first plead facts and pleas in the pleadings and then to prove the same through evidence---No one could be allowed to improve its case beyond what was originally set up in the pleadings---Donee had failed to plead and prove the transaction of gift as well as execution/attestation of gift deed in his favour---Whenever execution or validity of a registered document was denied then same would lose sanctity of being presumed to be correct and its lawful veracity would depend upon quantum and quality of evidence to be produced to prove its execution---Nothing was on record that donor at the relevant time did not have cordial relations or had strained relations with the other legal heirs to exclude them from his property to be devolved upon them after his death---Written statement could not be read as a piece of evidence in favour of defendant---Donee had failed to prove as to for what reasons other legal heirs were deprived of their due shares in the property of donor---Impugned judgment and decree passed by the Appellate Court were nullity in the eye of law and could not be sustained and were set aside and those of Trial Court were restored---Revision was allowed accordingly.

Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Farooq v. Abdul Waheed Siddiqui and others 2014 SCMR 630; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Haider Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another 2012 SCMR 254; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Gopal Das v. Siri Thakir Gee and others AIR 1943 P.C. 83; Siraj Din v. Jamila and another PLD 1997 Lah. 633 and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 rel.

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

----S. 60---Certificate of registration---Scope---Only a restricted presumption was attached that registration proceedings were regularly and honestly carried out by attesting officer but said presumption attached to its certificate was always rebuttable---Whenever execution of an instrument was denied, the presumption would be deduced to have been sufficiently rebutted and onus would be upon the person who had alleged execution to prove that document was executed and transaction did take place---Presumption in favour of a registered instrument did not dispense with the necessity of showing that person who admitted the execution before the attesting officer was not an imposter but the genuine one.

Gopal Das v. Siri Thakir Gee and others AIR 1943 P.C. 83 and Siraj Din v. Jamila and another PLD 1997 Lah. 633 rel.

(c) Pleadings---

----Evidence led beyond the scope of pleadings was liable to be ignored.

(d) Maxim---

----"Secundum allegata et probata"---Applicability---Scope.

Shakeel Farooq Chishti and Anwaar Hussain Janjua for Petitioner.

Hafiz Khalil Ahmad and Aftab Hussain Qureshi for Respondents.

2017 C L C 375

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD AWAIS----Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN and another----Respondents

Writ Petition No.4939 of 2016, decided on 26th October, 2016.

Civil Procedure Code (V of 1908)---

----Ss. 47 & 104---Punjab Civil Courts Ordinance (II of 1962), S.18 [as amended by S.6 of Punjab Civil Courts (Amendment) Act, (XXXVIII of 2016]---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Conversion of proceedings---Alternate and efficacious remedy---Petitioner was aggrieved of order passed under S.47, C.P.C. and instead of availing remedy of appeal, invoked Constitutional jurisdiction of High Court---Plea raised by petitioner was that non-filing of appeal was not fatal as order in question was illegal and was passed without any lawful authority---Appeal lay in the matter under the provisions of S.104(1)(ff), C.P.C. and petitioner failed to prove that the same was neither efficacious nor speedy---High Court directed the office to convert Constitutional petition into appeal as the same had been filed within the period of limitation and remit the appeal to concerned Court for decision---Constitutional petition was disposed of accordingly.

Mehboob Alam v. Federation of Pakistan through Secretary Finance and 2 others 2003 CLC 1705; Precision Engineering Ltd. and others v. The Grays Leasing Limited PLD 2000 Lah. 290; Pakistan through Military Estates Officer, Military Estate Office, Rawalpindi v. Abdul Aziz and another 2001 CLC 1086 and Abdul Basit Zahid v. Modaraba Al-Tijarah through Chief Executive and 2 others PLD 2000 Kar. 322 ref.

Syed Waqar Hussain Naqvi for Petitioner.

Muhammad Mahmood Khan, Deputy Attorney-General for Pakistan.

2017 C L C 389

[Lahore]

Before Muhammad Khalid Mehmood Khan and Mamoon Rashid Sheikh, JJ

Mian TARIQ MAQSOOD and others----Appellants

Versus

PROVINCE OF PUNJAB and another----Respondents

R.F.A. No.162 of 2010, heard on 29th October, 2014.

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

----Ss. 4, 18 & 23---Acquisition of land---Compensation---Determining factors---Delay in decision---While assessing compensation of land/property, Land Acquisition Collector and also the Courts are to bear in mind that under S.23 of Land Acquisition Act, 1894, market value of land alone is not to be considered---Potential value of land/property has to be calculated and/or figured out---If there is a considerable delay between notification under S.4 of Land Acquisition Act, 1894, and date of announcement of Award, then delay is also to be factored in whilst calculating potential value of land/property as prices of land/property may have escalated during intervening period---High Court observed that it would be unjust to owner of land if he is not given the benefit of escalation.

Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 rel.

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

----Ss. 4 & 18---Acquisition of land---Compensation---Delay in decision---Land owned by appellant was acquired by authorities for public purpose---Reference filed by appellant was dismissed by Referee Court---Plea raised by appellant was that there was delay of more than 17 years between acquisition of land and announcement of award---Validity---Prices of land had escalated during intervening period---Such escalation was not factored into the potential value of land as determined by Land Acquisition Collector---High Court set aside the award and order passed by Referee Court and remanded the matter to Referee Court for decision afresh---Appeal was allowed accordingly.

Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Government of N.-W.F.P. v. Mst. Taj Begum 2003 MLD 1865 and Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407 ref.

Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 rel.

S.M. Mohsin Zaidi for Appellants.

Malik Abdul Aziz Awan, A.A.-G., Zahoor Ahmad, DFO, Lahore/Sheikhupura and Ishtiaq Yunus SDFO, Jallo for Respondents.

2017 C L C 411

[Lahore]

Before Mamoon Rashid Sheikh, J

SUI NORTHERN GAS PIPELINES LTD. through Authorized Attorney----Petitioner

Versus

NASIR MEHMOOD KHAN and 2 others----Respondents

Writ Petitions Nos.8862, 8857 to 8860, 8863, 12987 and 12988 of 2015, decided on 30th June, 2015.

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

----S. 42(e)---Complaint Resolution Procedure (for Natural Gas Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Redefined Oil Products) Regulations, 2003---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Arts.2(2) & 11---Wafaqi Mohtasib, Jurisdiction of---Scope---Complaint before Wafaqi Mohtasib (Ombudsman)---Sui Northern Gas Pipelines Company was aggrieved of assuming of jurisdiction by Wafaqi Mohtasib (Ombudsman) in the matters pertaining to issuance of detection bills to consumers---Validity---Executability of an order or decree could be raised and it was open to the party against whom it was sought to be executed to show that it was null and void or had been made without jurisdiction or that it was incapable of execution--- Petitioner company had not raised question of jurisdiction of Wafaqi Mohtasib (Ombudsman) earlier yet petitioner was not estopped from raising the question of lack of jurisdiction for the first time before High Court---High Court directed consumers to approach Oil and Gas Regulatory Authority for redress of their respective grievances and set aside the orders passed by Wafaqi Mohtasib (Ombudsman)---Constitutional petition was allowed in circumstances.

SNGPL v. Wafaqi Mohtasib and others 2015 MLD 1029; M/s Rana Textiles Limited v. Sui Northern Gas Pipelines Limited and others 2016 YLR 1 and Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 rel.

(b) Jurisdiction---

----Consent of parties---Waiver/estoppel---Scope---Where a Court or forum lacks inherent jurisdiction, no amount of consent or acquiescence in the proceedings can invest such court or forum with requisite jurisdiction---Question of waiver or estoppel does not arise in such situations---Jurisdiction of court or Tribunal is to be conferred by law and not by consent of parties express or implied---Parties to a lis by way of their consent cannot take away or confer jurisdiction upon a court and/or forum.

Muhammad Hussain and another v. Muhammad Shafi and others 2004 SCMR 1947; Munawar Hussain and 2 others v. Sultan Ahmed 2005 SCMR 1388 and Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328 rel.

Umer Sharif for the Petitioner-SNGPL.

Muhammad Zikria Sheikh, Deputy Attorney-General for Pakistan.

Raja Asif Ali for respondent No.1.

Rana Muhammad Yasin for respondent No.1 (in W.P.No.8857/2015).

2017 C L C 450

[Lahore (Bahawalpur Bench)]

Before Amin-ud-Din Khan, J

Mst. RUKHSANA SAJJAD----Appellant

Versus

Syed MUHAMMAD AREEB----Respondent

S.A.O. No.4 of 2010, heard on 6th March, 2012.

Punjab Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 2 (i)---Ejectment petition---Death of tenant---Effect---Ejectment petition was allowed against which appeal was filed---Tenant died during pendency of appeal and his wife filed application for impleadment being sole legal heir but same was dismissed---Appellate Court found that appeal had abated---Validity---Widow, after the death of her husband, had become tenant---Findings of Appellate Court that appeal had abated were against law---Impugned order passed by the Appellate Court was set aside---Case was remanded by the High Court to the lower Appellate court with the direction to implead widow as appellant and then decide the appeal---Second appeal was allowed in circumstances.

Shafique Ahmad and others v. Ch. Muhammad Ashraf Civil Judge and others 1988 SCMR 1656 and M. Amjad Bhutta & Co. and others v. Malik Abdul Majid Tiwana District Judge, Sialkot and others PLD 1990 Lah. 412 distinguished.

Majid Hussain and 5 others v. Muhammad Rafique and another 1980 CLC 154 and Fazal Ahmed v. Ramzan Bibi 1984 CLC 2196 rel.

Aejaz Ahmad Ansari for Appellant.

Respondent in Person.

2017 C L C 463

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ALI MUHAMMAD----Petitioner

Versus

MALKA HUSSAIN----Respondent

Civil Revisions Nos.763, 762 of 2011, 726 and 727 of 2016, heard on 30th November, 2016.

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

----S. 13(3)---Suit for pre-emption---Notice of 'Talb-i-Ishhad', sending of---Proof---Pre-emptor had claimed that vendee refused to receive the notice of 'Talb-i-Ishhad'---Heavy onus was placed upon the pre-emptor in such circumstances to prove that he had not only dispatched the said notice through registered post but also that vendee refused to receive the same---Postal receipt clerk was not examined by the pre-emptor---Testimony of postman revealed that he did not depose a single word that he had tried to deliver registered post containing the notice of 'Talb-i-Ishhad'---Postman conceded in his cross-examination that he did not visit the residence of pre-emptor to deliver the registered post---Pre-emptor thus failed to prove that registered post containing the notice of 'Talb-i-Ishhad' was ever served upon the vendee or that the vendee refused to receive the same---Suit for pre-emption was rightly dismissed by the trial court---Revision petition was disposed of accordingly.

Shaigan Ijaz Chadhar for Petitioner.

Ch. M. Lehrasib Khan Gondal for Respondent.

2017 C L C 513

[Lahore]

Before Mamoon Rashid Sheikh, J

Dr. SHAMSHAD HUSSAIN SYED----Petitioner

Versus

MUHAMMAD YASEEN and another----Respondents

Transfer Application No.253 of 2016, decided on 3rd November, 2016.

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

----S. 24---Transfer of case---Pre-condition---Superior Court cannot pass an order of transfer of suit under S.24, C.P.C., unless the Court from which transfer of suit is sought to be made has pecuniary as well as territorial jurisdiction to try.

Mst. Razia Shafi v. Major M.S. Malik PLD 1971 SC 247 rel.

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

----Ss. 19, 24 & O.VII, R.10---Transfer of case---Principle---Defendant sought transfer of suit pending before Court at place "B" to Court at place "L"---Plea raised by defendant was that Court at place "B" had no jurisdiction to adjudicate upon the suit---Validity---Upon defendant's own showing, Civil Courts at place "B" did not have jurisdiction in the matter, therefore, application under section 24, C.P.C. was not competent---Defendant could first move application under O.VII, R.10, C.P.C. for return of plaint before Trial Court at place "B"---High Court directed Trial Court at place "B" to first decide question of territorial jurisdiction, if such application was filed---Application was dismissed accordingly.

Mst. Razia Shafi v. Major M.S. Malik PLD 1971 SC 247 rel.

Ashfaq Qayyum Cheema and Morris Nadeem for Petitioner.

2017 C L C 518

[Lahore]

Before Mamoon Rashid Sheikh, J

Messrs SIXON PAKISTAN PRIVATE LIMITED----Petitioner

Versus

GHULAM FAREED ZAHID----Respondent

Transfer Application No.232 of 2016, heard on 13th December,2016.

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

----Ss. 9 & 20---Transfer of Property Act (IV of 1882), S.28---Concurrent jurisdiction of Trial Court---Consent of parties---Principle---When two or more Courts have concurrent jurisdiction in the matter and parties to a contract/dispute choose to confer jurisdiction upon one of such Courts, then such agreement is not violative of law---Court so chosen assumes jurisdiction in the matter.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 rel.

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

----Ss. 19, 24 & O.VII, R.10---Transfer of case---Principle---Defendant sought transfer of suit pending before Court at place "M" to Court at place "L"---Plea raised by defendant was that Court at place "M" had no jurisdiction to adjudicate upon the suit---Validity---Territorial jurisdiction of Trial Court, before whom the suit sought to be transferred was pending, had to be determined before the suit was transferred---Suit could only be transferred under S.24, C.P.C., from a Court competent to try it---Territorial competency/jurisdiction of Trial Court at place "M" was a contentious issue, which could not be determined in such proceedings---High Court directed that Trial Court at place "M" should first determine question of its territorial jurisdiction before proceeding further in the matter---Application was dismissed accordingly.

Standard Insurance Co. v. Pak Garments Ltd. 1998 SCMR 1239 ref.

Mst. Razia Shafi v. Major M.S. Malik PLD 1971 SC 247 rel.

Muqtedir Akhtar Shabir for Petitioner.

Ch. Saleem Akhtar Warraich for Respondent.

2017 C L C 523

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Shahid Jamil Khan, JJ

MUHAMMAD KHALID QURESHI----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Excise and Taxation Department, Lahore and another----Respondents

Writ Petition No.26223 of 2014, decided on 19th October, 2016.

(a) Constitution of Pakistan---

----Art. 25---Equality, doctrine of---Scope---Intelligible differentia---Court, duty of---Legislature has been authorized to make classification on the basis of an intelligible differentia between distinct persons and things grouped together and from those who have been left out, provided it is not arbitrary or capricious---Court cannot demand scientific accuracy for the classification so created by the Legislature---Intelligible classification of persons, things or houses is not repugnant to the equality doctrine as long as the same is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the objection of the Legislation.

Case law referred.

(b) Punjab Finance Act (XVII of 2014)---

----S. 8(9)---Constitution of Pakistan, Art.25---Luxury House Tax---Exemption---Scope---Legislature had empowered competent authority to exempt certain individuals/area from payment of luxury tax---Such provisions of law are in consonance with the mandate of the Constitution.

Case law referred.

(c) Punjab Finance Act (XVII of 2014)---

----S. 8---Punjab Urban Immovable Property Tax Act (V of 1958), S.3(2)---Constitution of Pakistan, Arts.142, 260 & Fourth Schedule, Federal Legislative List, Entry 50---Taxation---Provincial authority---Immovable property---Luxury House Tax, vires of---Double taxation---Petitioners were aggrieved of levy of tax under Punjab Finance Act, 2014, on Luxury Houses---Plea raised by petitioners was that levy of such tax was ultra vires the Constitution---Validity---Provincial Legislature was given exclusive powers under Art.142 of the Constitution, on the subjects not included in Federal Legislative List---Language of Entry No.50 of Federal Legislative List gave the Parliament power to levy taxes on capital value of assets and specifically excluded Parliament to levy taxes on immovable property---Provincial Assembly was vested with exclusive power to levy taxes on immovable property---Federal Legislature, under Entry 50 of the Fourth Schedule to the Constitution, read with Art.142(c) of the Constitution, could tax only capital value of assets---Provincial Legislature was made competent to tax remaining all aspects of immovable property---Interpretation of any legislative entry in Constitution itself had to be broad and liberal---Definition of "taxation" available in Art.260 of the Constitution manifested that competence of Province to tax an immovable property could not be given restricted meaning---Taxation included imposition of any tax or duty, whether general, local or special---High Court declined to interfere with Luxury House Tax levied by Provincial Government---Constitutional petition was dismissed accordingly.

Case law referred.

(d) Punjab Finance Act (XVII of 2014)---

----S. 8---Punjab Urban Immovable Property Tax Act (V of 1958), S.3(2)---Luxury House Tax, vires of---Double taxation---Petitioners assailed show-cause notices issued by authorities for recovery of Luxury House Tax, as imposed under S.8 of Punjab Finance Act, 2014---Plea raised by petitioners was that levy of such tax was double taxation as authorities were already recovering property tax under Punjab Urban Immovable Property Tax Act, 1958---Validity---Two levies in question were charged neither for the same purpose nor on the same basis---Tax sought to be imposed by provision in question could not be termed "double taxation"---Marked distinction existed in both the levies, as tax in question was one time levy on the land and superstructure, whereas property tax under S.3(2) of Punjab Urban Immovable Property Tax Act, 1958, was levied, charged and paid on annual value of buildings and lands in rating areas---All statutory authorities or bodies derived their powers from statutes which created them and from the rules and regulations framed thereunder---Any action taken or exercise of powers by a statutory authority or body, which was in derogation of the statute/rules could be assailed and declared ultra vires---High Court declared show-cause notices issued to petitioners without lawful authority as no assessment was carried out in terms of S.8(1) of Punjab Finance Act, 2014---Constitutional petitions were allowed accordingly.

Case law referred.

(e) Interpretation of statutes---

----Retrospective effect---Scope---Legislature is fully competent to pass legislation with retrospective effect, even to the extent of taking away a vested right.

Case law referred.

(f) Taxation---

----Levy of tax---Vires---Power of court---Scope---Power to levy taxes is a sine qua non for the State insofar as the same is essential for the purposes of generating financial resources and utilization of those resources for welfare of people at large---Legislature enjoys plenary power to impose taxes within the framework of the Constitution and such power rests on necessity as it is an essential and inherent attribute of sovereignty belonging to a matter of right to every independent State or government---By exercising such powers, mala fide cannot be attributed to legislature.

Case law referred.

(g) Legislature---

----Wisdom of legislature---Scope---Wisdom of legislature should not be questioned by Courts, as long as the law in question is not violative of fundamental rights guaranteed by the Constitution----As long as Legislature has competence to legislate grounds or wisdom of Legislature remains its exclusive prerogative---Legislature is not debarred from promulgating provisions of law under the Constitution.

Case law referred.

(h) Statute, vires of---

----Two interpretations---Effect---Where validity of a statute or provision thereof is questioned and there are two interpretations, one which makes the law valid, is to be preferred over the other which renders it void---Criteria before Court, for determining vires of a provision of law is that Court must be able to hold beyond any iota of doubt that violation of Constitutional provisions was so glaring that Legislative provision under challenge could not stand---Without such violation of Constitutional provisions, law made by Parliament or a State Legislature cannot be declared bad.

Case law referred.

Salman Mansoor, Taffazul H. Rizvi, Zahoor Ali Nasir Tagga and Noshab A. Khan, argued the case on behalf of all the Petitioners. The names of remaining lawyers representing and appearing on behalf of the petitioners are mentioned in Schedule-A.

Khawaja Haris Ahmad, Tahir Mehmood Ahmad Khokhar, Standing Counsel for Pakistan, Shan Gull Additional Advocate General assisted by Muhammad Hammad Khan Rai, Barrister Khalid Waheed Khan, Omar Farooq and Muhammad Ejaz, A.A.G's for Respondents.

2017 C L C 561

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

NABEEL AKHTAR CHAUDHRY and others----Appellants

Versus

LAHORE DEVELOPMENT AUTHORITY and 5 others----Respondents

Intra Court Appeal No.1155 of 2016, decided on 2nd February, 2017.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art. 199---Intra Court appeal---Constitutional petition---Appellant impugned order whereby appellant's Constitutional petition was disposed of, with direction to the competent authority to consider and decide application of appellant within a period of eight weeks---Contention of appellant, inter alia, was that impugned order was passed summarily without considering legal and factual points of the matter---Validity---Perusal of impugned order revealed that direction to decide application of appellant / petitioner within a period of eight weeks was passed in accordance with law and appellant had been granted an opportunity of hearing as well---No reason existed to interfere in the impugned order---Intra-court appeal was dismissed, in circumstances.

Amir Mahmood for Appellants.

Waqar A. Sheikh and Mian Aman Ullah Khan for Respondents.

2017 C L C 664

[Lahore]

Before Ali Akbar Qureshi, J

SIKANDAR HAYAT KHAN through L.Rs. and others----Petitioners

Versus

Mst. KHATOON alias AMEER KHATOON through L.Rs. and others----Respondents

Writ Petition No.7034 of 2004, heard on 13th January, 2016.

(a) Islamic Law---

----Whole property could not be bequeathed in favour of anyone by way of will---Alleged deed of will was in-executable, invalid and contrary to Islamic Law---Legal heirs had been deprived from their right of inheritance on procedural technicalities---Nothing was on record that alleged deed of will was executed with the consent of legal heirs---Respondents had failed to prove the validity of the deed---Impugned order passed by the courts below were set aside and case was remanded for its disposal on merits within specified period---Constitutional petition was allowed in circumstances.

Mst. Amir Khatun and another v. Sikandar Khan PLD 1967 W.P. (Rev.) 67; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Shams-ud-Din v. Mst. Jevan and others 1986 MLD 764; Ghulam Akbar Khan v. Haji Sher Jan and others 1989 CLC 1789; Muhammad Aslam Rashid and 2 others v. Dr. Muhammad Anwar Saeed and 4 others 1997 CLC 2012; Mst. Faiz Elahi v. Muhammad Anwar 2001 YLR 2174; Hayderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Maeed and others PLD 2002 SC 84; Ibrahim and 4 others v. Rehmat Ali and 6 others PLD 2002 SC 741; Mst. Reshman Bibi v. Amir and others 2004 SCMR 392; Mst. Janntan and others v. Mst. Taggi through L.Rs. and others PLD 2006 SC 322 and Mst. Suban v. Allah Ditta and others 2007 SCMR 635 ref.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078; Mst. Mumtaz Begum and others v. Abdur Rashid and others 1988 CLC 2023; Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511; Masoom Akhtar v. Rent Controller, Lahore and another 1994 CLC 149; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890; Ehsan Ullah v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others 1998 SCMR 2079; Messrs Western Brand Tea, Karachi v. Messrs Tapal Tea (Pvt.) Limited, Lahore and another PLD 2001 SC 14; Collector Land Acquisition Abbottabad and 2 others v. Lal Khan and 11 others PLD 2002 SC 277; Sameen Khan and 4 others v. Haji Mir Azad and others 2002 CLC 754; Khalid Mehmood Butt and another v. Managing Director, AKLASC and 4 others 2004 CLC 937; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Rehmat Ali and 12 others v. Abdul Hameed and 16 others 2006 YLR 2808 distinguished.

The Punjab Province (Now West Punjab) v. Latif Ahmad Khan PLD 1958 SC (Pak.) 195; Zakir Ullah Khan and others v. Faiz Ullah Khan and others 1999 SCMR 971; Muhammad Asghar and others v. Muhammad Din and others 2000 YLR 2937; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Muhammad Hussain and others v. Mst. Hanaf Ilahi and others 2005 SCMR 1121; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Ghulam Ali and 2 others v Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

(b) Islamic Law---

----Will---Scope---Will could be executed only to the extent of 1/3rd share of the total property.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Trial Court could decide the maintainability of plaint at any stage irrespective of the fact whether defendant appeared or not.

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

----S. 115---Revision---Scope---Revisional court had jurisdiction to look into and take the cognizance of the legal infirmity, illegality and jurisdictional defect if committed by the court of first instance.

(e) Islamic law---

----Inheritance---Law of limitation was not applicable in the matter of inheritance.

Abdul Wahid Chaudhry for Petitioners.

Ahmad Waheed Khan for Respondents.

2017 C L C 689

[Lahore (Multan Bench)]

Before Shahid Karim and Muzamil Akhtar Shabir, JJ

Messrs DOCTOR AGRO CHEMICAL and others----Appellants

Versus

PAKISTAN through Secretary Ministry of Food, Agriculture and Live Stock and others----Respondents

I.C.As. Nos.206, 201, 202, 203 and 204 of 2009, heard on 9th January, 2017.

Agricultural Pesticides Rules, 1973---

----Rr. 9(5)(c) & 11(a) [as amended through SRO No.790(I)/2005 dated 05.08.2005]---Distributor of pesticides---Requirement of maintaining qualified technical staff/agricultural graduates as prescribed in R.9(5)(c) of the Agricultural Pesticides Rules, 1973---Such requirement had not been made applicable to the distributors of pesticides who themselves were not importers---Only a distributor who was also an importer was liable to comply with the requirement of maintaining agricultural graduates under R.9(5)(c) of the Agricultural Pesticides Rules, 1973---Intra-court appeal was allowed accordingly.

M/s A.N. Pesticides, and another v. Federation of Pakistan and others I.C.A No.79/2008 in W.P.No.3519/2008 distinguished.

Malik Ghulam Haider Awan and Muhammad Zawar Shah Qureshi for Appellants.

Wajid Ali Bhatti, Standing Counsel for Respondent No.1.

Rana Muhammad Hussain, Asst. A.G. for Respondents Nos.2 to 7.

2017 C L C 716

[Lahore High Court]

Before Shahid Karim, J

WATER AND POWER DEVELOPMENT AUTHORITY through Director Services and Estates----Petitioner

Versus

EXCISE AND TAXATION DEPARTMENT, GOVERNMENT OF THE PUNJAB through Director General and 4 others----Respondents

W.P. No.25605 of 2014, decided on 2nd December, 2016.

(a) Constitution of Pakistan---

----Arts. 165, 98, 157, 90, 154, 153 & Fourth Sched.---Punjab Urban Immovable Property Tax Act (V of 1958), S.16(4)---Water and Power Development Authority Act (XXXI of 1958) Ss.3, 21 & Preamble---Constitutional exemption of certain public property from taxation under Art. 165 of the Constitution---Property owned by, and in use of, Water and Power Development Authority ("WAPDA") as an instrumentality of the Federal Government---Test to determine whether benefit of Art. 165 of the Constitution should be extended to an instrumentality of the Federal Government---Constitutional mandate for functions performed by and authority over, WAPDA---Scope---Petitioner/Water and Power Development Authority ("WAPDA"), impugned notice under S.16(4) of the Punjab Urban Immovable Property Tax Act, 1958 wherein it was held liable for payment of Provincial property tax---Contention of the petitioner WAPDA was that, per Art.165 of the Constitution, as an instrumentality of the Federal Government, it was entitled to exemption in respect of property tax levied by the Provincial Government---Validity---For the purposes of invoking Art.165 of the Constitution, what had to be shown was that the instrumentality owning property performed functions of the Federal Government, and that it was a virtual monopoly and a department of the Federal Government---Provisions of the Constitution clearly showed that it was the sovereign function of the Federal Government to construct or cause to be constructed hydroelectric or thermal power installations and said function was exclusively devolved upon the Federal Government by the Constitution and must be performed by it to the exclusion of all others---Although, the Provinces had a limited scope of activity in the area however, scale of construction of hydroelectric and thermal power was unique and so enormous that no other entity including a Province could compete with WAPDA in such activity---WAPDA therefore, exercised the sovereign powers of the Federal Government in the performance of its functions in terms of Art.157 read with Art.98 of the Constitution and was for all practical purposes, a department of the Federal Government---Part II of the Fourth Schedule to the Constitution referred to WAPDA as being administrated and managed by the Federal Government and there could be no clearer expression of the intention in no less a document than the Constitution that WAPDA was administered and managed by the Federal Government, which also was the intention that was also gathered from an entire reading of the Water and Power Development Authority Act, 1958---Constitutional provisions relating to the power of Federal Government to construct in any province or cause to be constructed inter alia, hydroelectric or thermal power installations were to be performed by WAPDA as an authority of the Federal Government and thus WAPDA performed a Constitutional function and had exclusively been set up to undertake such function by the Federal Government under the mandate of the Constitution---Per the Constitutional mandate as expounded in Art.154 of Constitution, Council of Common Interests (CCI), formulated and regulated policies in relation to matters in Part II of the Federal Legislative List and exercised supervision and control over related institutions---WAPDA, therefore, for all its independence as a body corporate and an instrumentality of the Federal Government, was not only subject to the administrative and management control of the Federal Government but was also subject to the CCI which exercised supervision and control over it and to such extent, the executive power of the Federal Government stood abridged and curtailed and had come to vest in the CCI---Water and Power Development Authority was therefore, not an ordinary instrumentality but was a Constitutional public utility provider and, the mere fact that the said authority had been set up by a statute did not detract from the said conclusion to be drawn---Impugned notices / challan forms demanding payment of property tax from WAPDA were held to be issued without lawful authority and of no legal effect, and furthermore the Provincial Government was permanently restrained from imposing or charging property tax on WAPDA---Constitutional petition was allowed, accordingly.

National Bank of Pakistan v. Executive District Officer (Revenue) Multan and another 2015 CLC 1618; Union Council Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468; Province of N.-W.F.P. through Secretary Local Government and Rural Development Peshawar and others v. Pak Telecommunication through its Chairman and others PLD 2005 SC 670; Islamabad and another v. WAPDA and another PLD 2014 SC 766; Karachi Development Authority v. Central Board of Revenue through Members Central Excise and Land Customs, Islamabad and others 2005 PTD 2131; Messrs Gadoon Textile Mills and others v. WAPDA and Federation of Pakistan 1997 SCMR 641; A Biography of Pakistan Federation, Unity in Diversity by Mian Raza Rabbani; Federation of Pakistan v. United Sugar Mills Ltd. PLD 1977 SC 397; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Corpus Juris Secundum, Volume 81A rel.

(b) Words and phrases

----"Sovereignty"---Meaning and concept explained.

Major Law Lexicon, vol. 6, by P. Ramanatha Aiyar; Sovereign Power in Words and Phrases volume 39A (West Publishing Co.); Harold J. Laski, in The Foundation of Sovereignty and other Essays (1921) and The Grammar of Politics, (1941) rel.

(c) Words and phrases

----"Sovereign power"---Meaning and concept, explained.

Sovereign Power in Words and Pharases Volume 39A (West Publishing Co.) rel.

(d) Water and Power Development Authority Act (XXXI of 1958)---

----S.3---Constitution of Pakistan, Arts.165, 98, 157, 90, 154, 153 & Fourth Sched.---Constitution of the Authority as instrumentality of the Federal Government---Object and scope.

Umer Sharif for Petitioners.

Nasar Ahmad, D.A.G. Anwar Hussain and Muhammad Jamal ud Din Mamdot, A.A.Gs. along with Abid Zia, Law Officer for Respondents.

2017 C L C 745

[Lahore]

Before Mirza Viqas Rauf, J

SUI NORTHERN GAS PIPELINE LIMITED through authorised Attorney----Petitioner

Versus

MUHAMMAD RIAZ BHATTI and 2 others----Respondents

Writ Petition No.29702 of 2015, heard on 23rd November, 2015.

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

----Ss. 11 & 43---Complaint Resolution Procedure (for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Redefined Oil Products) Regulations, 2003, Reglns.3 & 9---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Arts.2(2) & 9---Natural Gas Company was aggrieved of assuming of jurisdiction by Wafaqi Mohtasib (Ombudsman) in the matter pertaining to levy of tampering charges to consumer---Validity---Matter fell within the domain of the Authority designated for the purpose in terms of Oil and Gas Regulatory Authority Ordinance, 2002, and Complaint Resolution Procedure (for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Redefined Oil Products) Regulations, 2003---Ombudsman was vested with no jurisdiction either to entertain complaint or to decide the same by way of order in question---Parties to a lis by way of their consent could not take away or confer jurisdiction upon a Court or forum---High Court set aside the order passed by Wafaqi Mohtasib (Ombudsman)---Constitutional petition was allowed in circumstances.

Sui Northern Gas Pipeline Ltd. through Authorized Attorney v. Wafaqi Mohtasib and 3 others 2015 MLD 1029; 2016 YLR 1 and Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328 rel.

Umar Sharif for Petitioner.

Mohammad Younas Khan Noul for Respondent No.1.

2017 C L C 767

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

MUHAMMAD ASIF----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

I.C.A. No.1137 of 2016, decided on 2nd February, 2017.

Federal Ombudsman Institutional Reforms Act (XIV of 2013)---

----S. 18 & Preamble---Vires of S.18, Federal Ombudsman Institutional Reforms Act, 2013---Petitioner contented that legislature was not competent to make any amendment to the Constitution in defiance of the nine commands mentioned therein---Validity---Federal Ombudsman Institutional Reforms Act, 2013 had been made to make institutional reforms for standardizing and harmonizing the laws related to Federal Ombudsmen institution and the matters ancillary or akin thereto---Purpose was to provide speedy and expeditious relief to citizens by redressing their grievances to promote good governance---Contention of petitioner therefore, was not instructive---Parliament had, under the Constitution, power to set-up administrative Tribunals and quasi-judicial forums for the adjudication of disputes---Section 18 of the Act did not mean any amendment in the Constitution rather it only barred the jurisdiction of other forums in the matters exclusively fell within its domain---Constitutional petition was dismissed accordingly.

SNGPL v. Wafaqi Mohtasib 2015 MLD 1029 ref.

2017 C L C 794

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. NABEERA SHAFIQUE (Minor) through her next friend----Petitioner

Versus

ADDITIONAL DISTRICT JDUGE and 3 others----Respondents

Writ Petition No.4892 of 2013, decided on 12th May, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Suit for recovery of maintenance allowance---Family Court fixed maintenance allowance of minor at the rate of Rs.25,000/- per month with 10% annual increment---Appellate Court reduced the same to Rs.15,000/- per month---Contention of plaintiff (wife) was that maintenance allowance fixed by the Appellate Court did not commensurate with the financial status of father---Validity---Minor was legitimate daughter of defendant who was suffering from Down's Syndrome disease since her birth---Person having inhumanitarian attitude did not deserve any leniency from the court while exercising constitutional jurisdiction---Minor was unable to look after herself properly due to disease and she required a permanent attendant; she was heart patient whose treatment was expensive and minor was getting education and father was bound to maintain her---Father was drawing handsome salary which would increase with the passage of time---Maintenance allowance fixed by the Appellate Court was nominal qua financial status of father---Minor was at growing stage and she required money for her medical treatment and other personal needs---Maintenance allowance fixed by the Appellate Court did not correspond to the needs of minor which needed modification---Impugned judgments and decrees passed by the courts below were modified by the High Court in the terms that minor was entitled to recover maintenance allowance at the rate of Rs.33,000/- per month from the date fixed by the Family Court till her entitlement with 10% annual increase---Constitutional petition was allowed in circumstances.

Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 and Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

Sh. Usman Karim-ud-Din for Petitioner.

2017 C L C 831

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA through Chairman----Appellant

Versus

Sardar ASGHAR ALI through L.Rs. and another----Respondents

F.A.Os. Nos.216 to 219 of 2016, heard on 25th April, 2016.

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

----S. 47---Land Acquisition Act (I of 1894), Ss.18 & 28(2)---Reference to court---Recovery of compound interest---Execution petition---Objection petition---Scope---Execution petition was moved for recovery of compound interest wherein objection petition was filed which was dismissed---Contention of objector was that no compound interest had been awarded and execution petition was liable to be dismissed---Validity---Decree could be executed in the light of terms and conditions mentioned therein---Executing Court was bound to dispose of objections filed by the objector in the light of terms and conditions of decree---Executing Court could neither go beyond the decree nor grant a relief not awarded in the judgment and decree---If no decree of compound interest and compulsory acquisition charges had been passed then Executing Court could not modify same---Executing Court had to calculate the amount in terms of decree passed by the Trial/Appellate Court---Executing Court could not entertain application which might change and alter the terms of decree---Party aggrieved of the decree could only assail it before the appropriate appellate forum---Appeal was allowed in circumstances.

Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122; Sheikh Muhammad Ilyas Ahmed and others v. Pakistan through Secretary Ministry of Defence, Islamabad and others PLD 2016 SC 64; Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; 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; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Ch. Ahmed Nawaz v. Province of Punjab through Land Acquisition Collector, Jhelum and others 2015 SCMR 823; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Sh. Ghulam Mohammad and another v. The Bank of Bahawalpur Ltd. and 21 others 1971 SCMR 148; Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40; Mst. Nasreen Zahra and others v. Multan Development Authority, Multan and others 2015 SCMR 1440 and Land Acquisition Collector and 6 others v. Muhammad Nawaz and 6 others PLD 2010 SC 745 ref.

Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472 distinguished.

Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481; Ch. Ahmed Nawaz v. Province of Punjab through Land Acquisition Collector, Jhelum and others 2015 SCMR 823 and Abdul Habib v. Fazal Muhammad and 2 others 2012 MLD 1856; Province of Punjab through Collector, Bahawalpur v. Ghulam Rasool and others 1990 SCMR 1106; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760; Abdul Habib v. Fazal Muhammad and 2 others 2012 MLD 1856; Habib Bank Limited through Authorized Attorneys v. Pak Poly Products (Pvt.) Ltd. and 3 others 2013 CLD 1661 and Government of Khyber Pakhtunkhwa and others v. Mst. Zubaida 2013 YLR 372 rel.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding effect---Scope---Principle of law enunciated by the Supreme Court would have binding effect on all the courts in Pakistan---Such pronouncement of law could not be treated as mere obiter dictum---Even obiter dictum of Supreme Court enjoyed a respected position.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel.

(c) Administration of justice---

----Courts should not be impressed with technicalities.

Ali Masood Hayat for Appellant.

Asjad Saeed and Muhammad Jehangir Asif for respondents.

2017 C L C 857

[Lahore (Multan Bench)]

Before Ibad-ur-Rehman Lodhi, J

ALI ASSOCIATES through Managing Director----Appellant

Versus

NOOR HUSSAIN and 24 others----Respondents

F.A.O. No.31 of 2016, decided on 12th April, 2016.

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

----O. XLIII, R. 1(r) & O.XXXIX R. 3---Specific Relief Act (I of 1877), Ss.12 & 54---Suit for specific performance along with application for injunction---Direction to defendants to file written statement---Appeal under O.XLIII, R.1(r), C.P.C. lay only against an order under Rr.1, 2, 4 & 10 of O.XXXIX, C.P.C---Mere direction of issuing notice to the defendants came under the provisions of O.XXXIX, R.3 C.P.C. which was not appealable under O.XLIII R.1(r), C.P.C.---Trial court neither refused to grant injunction nor granted any relief in favor of plaintiff but passed an order/direction for issuance of notice on injunction application---Appeal, in law, could not proceed further and was dismissed accordingly.

(b) Words and phrases---

----"Direction"---Meaning.

Black's Law Dictionary, Sixth Edition; Concise Oxford Dictionary and Words Web Dictionary ref.

(c) Words and phrases---

----"Order"---Meaning.

Black's Law Dictionary, Sixth Edition; Concise Oxford Dictionary, Words Web Dictionary ref.

Syed Tajammal Hussain Bukhari for Appellant.

Malik Javed Akhtar Wains for Respondents Nos.1 to 3 and 13 to 17.

2017 C L C 892

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

MOHAMMAD ZAHEER and another----Petitioners

Versus

GHAFFAR AHMED and another----Respondents

C.R. No.36-D of 2010, heard on 22nd September, 2016.

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

----S. 13---Talbs performance of---Requirements---Pre-emptor was aware of the sale transaction much before the performance of alleged Talb-i-Muwathibat---Talb-i-Muwathibat was not performed in conformity with law---If pre-emptor had failed to perform the first talb i.e. Talb-i-Muwathibat which was condition precedent to the second talb i.e. Talb-i-Ishhad then his suit could not be decreed---Service of vendees' father could not be considered a valid service in the eye of law notwithstanding the fact that postman was produced---Notice of Talb-i-Ishhad, in circumstances, was sent to vendees through their father---Said notice was sent to attorney without having the regard that no power of attorney in favour of vendees' father was ever executed---No notice of Talb-i-Ishhad, in circumstances, was sent to the vendees and service of notice on their father did not meet the requirement of law---Both Talb-i-Muwathibat and Talb-i-Ishhad, therefore, were not validly performed by the pre-emptors---Right of pre-emption stood extinguished in circumstances---No illegality or irregularity had been committed by the courts below---Revision was dismissed accordingly.

Khan Afsar v. Afsar Khan and others 2015 SCMR 311 and Nawab Ali through General Attorney v. Javaid Iqbal Nabi and others PLD 2009 Lah. 49 rel.

Sheikh Zameer Hussain for Petitioners.

Raja Shahid Mehmood for Respondents.

2017 C L C 901

[Lahore]

Before Mehmood Maqbool Bajwa, J

Malik ABDUS SATTAR CHUGHTAI----Petitioner

Versus

MUHAMMAD AKRAM and others----Respondents

C.R. No.2308 of 2016, decided on 1st June, 2016.

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

----O. I, R. 10. O.XLIII, R.1 & O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Striking off a party---Appeal---Maintainability---Trial Court had reached to the conclusion that Province of Punjab, Tehsildar and Halqa Patwari were not necessary party and directed that their names be deleted from the array of defendants---Appellate Court directed the Trial Court to re-settle the matter with regard to arraying the defendants whose names were deleted---Validity---Appeal was creation of statute and same could not be inferred unless and until provided by the statute---Impugned order was under O.I, R.10, C.P.C. which did not fall within the ambit of O.XLIII, R.1, C. P. C---Appeal before the Appellate Court was not maintainable in circumstances---Impugned order passed by the Appellate Court was set aside---Revision was allowed accordingly.

City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 and Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358 ref.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

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

----O. XXXIX, Rr.1, 2 & O.XLIII, R. 1---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Ad-interim temporary injunction, grant of---Appeal---Scope---Trial Court granted ad-interim injunction against which appeal was filed--- Appellate Court did not make comment upon ad-interim temporary injunction but while disposing appeal issued direction to maintain status quo with regard to possession of suit property---Contention of plaintiff was that Trial Court had not decided the application for grant of temporary injunction and appeal was not maintainable---Validity---Appeal was creation of Statute and same could not be inferred unless and until provided by the Statute---Trial Court had granted only ad-interim temporary injunction and had not decided the application for grant of temporary injunction---Appellate Court should have passed direction to the Trial Court to decide the said application expeditiously without making any interference in the impugned order---High Court while exercising revisional jurisdiction decline to make comment upon the issuance of ad-interim temporary injunction as well as status quo order issued by the Appellate Court and observed that application for grant of temporary injunction should be decided expeditiously with the direction that Trial Court to decide the said application within a period of ten days---Revision was disposed of in circumstances.

Muhammad Ramzan Chaudhry for Petitioner.

2017 C L C 918

[Lahore]

Before Mirza Viqas Rauf, J

Messrs PAKISTAN ORDNANCE FACTORIES through Manager Legal, Wah Cantt. and 3 others----Petitioners

Versus

CHELSEA GLOBAL PRIVATE LIMITED through Managing Director----Respondent

Civil Revision No.3640 of 2016, decided on 7th September, 2016.

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

----S. 20(c) & O. VII, R. 2---Money suit---Application for return of plaint--- Cause of action--- Scope--- Territorial jurisdiction---Determination of---Procedure---Suit for recovery of money was instituted wherein an application for return of plaint was moved---Contention of applicant was that contract was neither executed at place "A" nor the performance of the same was made within the territorial limits of the Court at that place---Application for return of plaint was dismissed---Validity---Suit could be instituted in a court within the local limits of whose jurisdiction cause of action wholly or in part had arisen---Contract was completed at place "A"---Plaintiff had option to choose his forum for instituting the suit where the cause of action wholly or in part had arisen---Present suit was rightly instituted at place "A", application for return of plaint was not maintainable---No illegality or material irregularity was pointed out in the impugned order passed by the Trial Court---Revision was dismissed in limine.

(b) Words and phrases---

----'Cause of action'---Meaning.

Black's Law Dictionary Ninth Edition by Bryan A. Garner Editor in Chief; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 and M. Khurram Muggo v. Mst. Perveen Hameed Muggo and 3 others PLD 2007 Lah. 518 rel.

2017 C L C 950

[Lahore]

Before Shahid Bilal Hassan, J

Chaudhary ASGHAR ALI----Petitioner

Versus

MAQBOOL MASEEH and 3 others----Respondents

C.M. No.662 of 2017 in Writ Petition No.2635 of 2017, decided on 7th March, 2017.

Civil Procedure Code (V of 1908)---

----O.XVIII, R.17 & O.XIV, Rr.1, 5---Suit for specific performance---Hearing of the suit and examination of witnesses---Framing of additional issue--- Cross-examination/examination of already examined witnesses---Application of defendant/petitioner for cross-examination of already examined witnesses, to the extent of an additional issue framed, was declined by Trial Court---Validity---Under O. XVIII, R.17, C.P.C., Trial Court could summon any witness for examination or cross-examination even if the said witness was already examined---Additional issue, in the present case, was framed after recording of examination and cross-examination on the witnesses produced by the plaintiff and mere recording of statement of plaintiff with regard to reliance upon earlier recorded evidence did not prevent the defendant from conducting cross-examination on witnesses on the said additional issue, which was framed later on---Framing of the additional issue had opened a new horizon for the parties, therefore, Trial Court should have allowed the application for cross-examination of witnesses to the extent of the additional issue---Impugned orders were set aside, and application of defendant for cross-examination of witnesses to the extent of the additional issue, was allowed---Constitutional petition was allowed, accordingly.

Saleem Jan alias Salman Khan v. Abdul Manan and 2 others 2009 MLD 1127 rel.

Zahid Sikandar and Ahmad Qayyum for Petitioner.

2017 C L C 962

[Lahore Multan Bench]

Before Shahid Karim, J

Rana LIAQAT ALI KHAN and others----Petitioners

Versus

GOVERNMENT OF PAKISTAN and others----Respondents

Writ Petitions Nos.11116, 11117, 11118, 11119 and 11120 of 2015, decided on 14th February, 2017.

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

----S. 10(2)---Constitution of Pakistan, Art.199---Constitutional ptitiion---Lease---Renewal of---Fresh application---Requirement---"Competent authority"---Determination---Competent authority was Member (Colonies) Board of Revenue who was to adjudicate the matter with regard to grant or re-grant of lease---Matter was still pending before the Member (Colonies) Board of Revenue and had not culminated into a finding---Member, Board of Revenue would act on the recommendations of the Ministry of Defence to allot or resume the stud land---Such fact did not ipso facto take away the power from the Member (Colonies) Board of Revenue to adjudicate the matter and to return a final determination in that regard---Recommendations might come from the Ministry of Defence but the final order had to be passed by the Member (Colonies) Board of Revenue---Member (Colonies) Board of Revenue was directed to decide the matter within a specified period---Constitutional petition was allowed in circumstances.

Mian Muhammad Siddique Kamyana for Petitioners.

Asad Manzoor Butt and Ch. Imtiaz Ahmad Goraya for Respondents Nos.1 and 5.

Ch. Muhammad Rafique for Respondents Nos.2 and 3.

2017 C L C 996

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

NAZIR ABBAS through L.Rs.----Petitioners

Versus

GHULAM MUHAMMAD through L.Rs.----Respondents

Civil Revision No.2281 of 2006, heard on 9th June, 2016.

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

----S. 12---Suit for specific performance---Oral agreement---Plaintiff alleged that defendant had agreed to sell suit property in his favour on the basis of oral transaction---Validity---Neither any date, month or year of the bargain were feel mentioned in the plaint nor names of witnesses were provided therein to prove that as to when and where and before whom the said transaction was settled---Evidence if any led to prove the said fact was to be simply ignored---Suit was dismissed accordingly.

Hafiz Tassadiq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Visoount Dunedin, Lords Darling and Tomlin and Sir George Lowndes and Sir Binod Mitter Siddik Mahomed Shah v. Mst. Saran and others AIR 1930 PC 57; Lord Simonds, Sir John Beaumont and Sir Lionel Leach AIR 1950 PC 68; Choudhary Brothers Ltd, Sialkot v. The Jaranwala Central Co-Operative Bank Ltd., Jaranwala and others 1968 SCMR 804; Bashir Ahmad and others v. Abdul Latif and others 2005 YLR 2655; Nazir Ahmad and another v. Yousaf PLD 2011 SC 161 and Muhammad Nawaz through L.Rs. v. Haji Mohammad Baran Khan through L.Rs. and others 2013 SCMR 1300 rel.

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

----Arts. 17(2)(a) & 79 ---Execution of document---Proof---Attesting witnesses---Non-placing on record---Plaintiff alleged that receipt in respect of bargain was executed by the defendant but defendant denied the execution of said receipt while pleading it to be forged, fictitious and result of collusion---Validity---Admittedly, the receipt was not attested by any of the witness, whereas law provides that in the matter pertaining to financial or future obligation, if reduced into writing, the document should be attested by two men or one man and two women and such document could not be used as document until two attested witnesses were not examined---Revision petition was allowed accordingly.

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

----Art. 61---Signature, authenticity of---Comparison by expert---Scope---Where alleged executant/defendant denied his signature on the alleged receipt, plaintiff should apply to the court for getting the signature of defendant executant compared from the expert---Plaintiff having not done the same, incurred presumption against him---Revision petition was allowed accordingly.

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

----Art. 118---Version alleged---Proof---Whoever invoked the aid of law should be the first to prove his case---Anyone who alleged any fact in affirmative had to prove the same.

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

----Art. 79---Beneficiary of document---Proof and rebuttal---Scope---Beneficiary of the document was bound to produce positive evidence to prove the execution of the same---Stage of disproof or rebuttal would only come into play when the beneficiary of the transaction succeeded to produce positive evidence to prove his case.

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

----S. 12---Suit for specific performance---Oral agreement---Proof---Cogent and convincing evidence not produced---Effect---Plaintiff was duty bound to produce cogent, convincing and reliable evidence to prove oral agreement which was conspicuously missing---Relief could not be given to plaintiff in circumstances---Revision petition was allowed accordingly and suit was dismissed.

Shahid Mehmood Khan Khilji for Petitioners.

Zia Ullah Khan Niazi and Anwaar Hussain Janjua for Respondents.

2017 C L C 1032

[Lahore]

Before Amin-ud-Din Khan, J

ZAHUR AHMAD through L.Rs. and others----Petitioners

Versus

PAKISTAN CARGO SERVICES (PVT.) LIMITED through Chief Executive and 4 others----Respondents

Writ Petition No.4665 of 2006, heard on 7th June, 2016.

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

----S. 12(2)---Fraud alleged without giving details---Effect---For pressing fraud, the same was to be pleaded with full details---No details of fraud had been mentioned in the present case, therefore, requirement of law was not fulfilled---Constitutional petition was dismissed accordingly.

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

----S. 12(2)--- Misrepresentation--- Pleadings--- Petitioners appeared before the court and recorded their statement---Signatures upon the order sheet had not been denied---Matter of misrepresentation was not even pleaded---Misrepresentation had not been proved in circumstances---Constitutional petition was dismissed.

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

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Consent decree, setting aside of---Plaintiff had urged that he be declared owner in possession of property mentioned in the plaint---Suit was decreed on the basis of consenting statement---Defendant moved application for setting aside consenting judgment and decree on the ground of fraud, misrepresentation or want of jurisdiction---Application was accepted by the Trial Court and consenting decree was set-aside but the lower appellate court restored the consenting decree--- Validity---None of the necessary ingredients had been proved for invoking the jurisdiction of Court under S.12(2), C.P.C., other objections, raised on the surface during the proceedings and recording of evidence on application under S.12(2), C.P.C. on behalf of both the parties, were not relevant---Constitutional petition was dismissed accordingly.

(d) Administration of justice---

----Procedure of court---Where a party asked the court to adopt a specific procedure for determination of a lis pending before it, such party could not be allowed to use any deviation from the normal procedure by saying that it was detrimental to the rights of such party.

Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Limited 2006 SCMR 531 and Babu Jan Muhammad and others v. Dr. Abdul Ghakor and others PLD 1966 SC 461 ref.

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

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Main ground of attack by petitioners through filing application under S.12(2) of the C.P.C. against the judgment and decree was that the same had been procured with the connivance of court---No oral evidence had been or any documentary evidence had been produced to such effect---Presumption of truth was attached to the judicial proceedings---Strongest and unimpeachable evidence was required to displaced such presumption---Constitutional petition was dismissed accordingly.

Muhammad Zaman v. Abdul Ghaffar and 3 others PLD 1980 Lah. 582; Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68 and Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.

Taki Ahmad Khan, Ch. Ghulam Hussain and Malik Amjad Pervaiz for Petitioners.

Malik Noor Muhammad Awan for Respondents.

2017 C L C 1066

[Lahore]

Before Atir Mehmood, J

LAWYERS FOUNDATION FOR JUSTICE----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.20848 of 2013, heard on 17th April, 2017.

Constitution of Pakistan---

----Arts. 91 & 199---Constitutional petition---Petitioner sought direction for appointment of a "shadow cabinet" on the ground that the same was within the Constitutional requirements of Art.91 of the Constitution for a parliamentary form of Government---Petitioner further contended that "shadow cabinets" existed in other parliamentary governments across the world---Validity---Article 91 of the Constitution did not suggest forming of a shadow cabinet and the concept of a shadow cabinet had not been given anywhere in the Constitution---High Court observed that governance of Pakistan had to be conducted in accordance with the Constitution and any parliamentary practice in other parliamentary systems of the world may have persuasive value but it was not per se part of the legal system of Pakistan, unless incorporated through appropriate legislative interventions---Question as to whether there should be a "shadow cabinet" in Pakistan was a matter which could only be decided by political parties representing the citizens of the country in the Parliament and there was no legal inhabitation upon them in such regard---High Court further observed that to give directions to form a "shadow cabinet" did not come within the ambit of the powers of the High Court under Art.199 of the Constitution and the same could only be done through amendment in the Constitution and not by the High Court whilst exercising its Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Province of Sindh through Chief Secretary and others v. M.Q.M. Deputy Convener and others PLD 2014 SC 531 and Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 rel.

A.K. Dogar for Petitioner.

Sheraz Zaka for Respondent No.4.

Imtiaz Ahmed Kaifi, Addl. A.G. for the State.

2017 C L C 1078

[Lahore]

Before Faisal Zaman Khan, J

ALLAH DITTA----Petitioner

Versus

MUKHTIYAR AHMAD and 3 others----Respondents

Writ Petitions Nos.11565, 15646 and 21326 of 2011, heard on 6th October, 2016.

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

----S. 2(9)(14), O. XX, R. 4 & O. XLI, R. 31---General Clauses Act (X of 1897), S.24-A---Appellate judgment/order---Reasons to be recorded---Scope---Court/Authority/Forum, while passing a judicial order had to consider the facts narrated before it should peruse the record while deciding as an appellate court the judgment or finding rendered by the fora below; the arguments of the parties pro and contra and thereafter give its own independent reason/findings---No independent reasons/findings whatsoever had been given by the Revenue Officer for dismissing the revision petition---Nothing was mentioned about the basis of finding rendered by the Revenue Officer---Record had not been scanned while passing the impugned judgment nor reasons had been given---Impugned order was passed in violation of S.24-A of General Clauses Act, 1897, which was declared to have been passed in negation of law and set aside---Revision was to be deemed to be pending before Revenue Officer who would decide the same within a period of six months---Constitutional petition was allowed in circumstances.

Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550; Khadim Hussain v. Ch. Muhammad Ibrahim and others 1986 SCMR 1736; Mst. Sarwar Bano through Attorney v. Province of Sindh through Member Board of Revenue, Hyderabad and 5 others PLD 2015 Sindh 445; Ali Noor (Pvt.) Ltd. through Authorized person v. Trading Corporation of Pakistan (Pvt.) Ltd. through Chief Executive/Director PLD 2015 Sindh 451; Ghous Bakhsh v. Syed Ali Nawaz Shah and 8 others PLD 2014 Sindh 306; Muhammad Amin Muhammad Bashir Ltd., Karachi v. Government of Pakistan through Secretary Ministry of Finance Central, Secretariat, Islamabad and others 2015 SCMR 630=2015 PTD 1100 and Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511 rel.

(b) Judgment---

----Requirements---Judgment was to contain the concise statement of case; the points for determination; findings on each point pressed/argued by the parties and reasons for the decision.

Muhammad Siddique Kamyana for Petitioner (in W.P. No.11565 of 2011).

Ch. Tanveer Ahmad Hanjra for Petitioner (in W.P. No.15646 of 2011).

Malik Muhammad Afzal for Petitioner (in W.P. No.21326 of 2011).

Noor Ahmad Malik for Respondent No.1.

Faisal M. Butter, A.A.G.

2017 C L C 1109

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

AMEER AHMAD and others----Petitioners

Versus

Mst. FATIMA and 6 others----Respondents

Civil Revision No.325-D of 2001, heard on 21st September, 2016.

(a) Power of attorney---

----Gift by the attorney--- Gift, ingredients of---Inheritance---Limitation---When two attorneys had been appointed jointly through single document powers were to be used jointly---Three gift deeds were made by one attorney only and other attorney had not joined him---Exercise of powers on behalf of the principal by one attorney without joining the other was defective one and could not create right in favour of the transferee---Attorney himself had transferred the property for his own love and affection on behalf of principal---Attorney could not transfer the suit property through gift/Tamleek which was to be made only by the principal and just to incorporate that Tamleek in favour of donee the power-of-attorney could be used only for performance of codal formalities of the transfer document---Attorney could not transfer the property of the principal through Tamleek by his own wishes despite the fact that powers of transfer through Tamleek had been given in the power-of-attorney---Presumption in favour of execution of power-of-attorney could not be drawn in absence of adequate and strong evidence---Ingredients of gift i.e. offer, acceptance and delivery of possession had to be proved---When a person asked the Court to believe a particular fact then it was his duty to prove the said fact---Beneficiary of power-of-attorney was bound to prove the same as well as gift deeds---Power-of-attorney and gift deeds had not been proved in the present case---Judgments and decrees passed by both the courts below were nullity in the eye of law---Legal heir of a person would become joint owner at the time of death of a propositus---Party claiming adverse rights to the legal right of a propositus was bound to prove the ouster of legal heir from the rights receivable by that legal heir from the property of propositus---Previous suit was not by the plaintiffs of the present suit---If one of the legal heirs of the propositus was not joined to the previous litigation on the move of only one legal heir then on his suit the transaction could be declared null and void---Findings recorded by the courts below were against law and not sustainable---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed---Suit property was to be distributed in accordance with law by the revenue authorities in favour of legal heirs of the deceased who were to inherit at the time of his death--Revision was allowed, in circumstances.

Fateh Muhammad and 2 others v. Din Muhammad and 2 others PLJ 2015 Lah. 1103; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676; Peer Bakhsh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Messrs Noorani Travels, Karachi v. Muhammad Hanif and others 2008 SCMR 1395 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 rel.

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

----S. 11---Res judicata---Scope---Matter should have been finally decided on merits after discussing evidence to invoke the principle of res judicata.

Syed Muhammad Ali Gillani for Petitioners.

Ch. Muhammad Riaz Jahanian for Respondent No.1.

Nemo for Respondents Nos.2-5.

Muhammad Shahid Khan Sherwani for Respondents Nos.6 and 7.

Muhammad Ramzan Khalid Joiya for Respondent No.7.

2017 C L C 1137

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh and Jawad Hassan, JJ

BURHAN UD DIN QURESHI----Applicant

Versus

The BANK OF PUNJAB and others----Respondents

Review Application No.05 of 2017 in W.P. No.14685 of 2014, decided on 10th April, 2017.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), S.5---Review---Scope--Limitation---Condonation of delay---Sufficient cause---Scope of review was limited and only the error floating on record could be seen while reviewing the order impugned---Error which could be ground of review must be one which should be apparent on the face of record---Incorrectness of a conclusion arrived at after a conscious perusal of record and in depth examination of evidence could not be made a ground for review---Court could not re-hear appeals against its own order---Factum that a material irregularity was committed by the Court would not be adequate enough to review judgment unless such irregularity was of a nature so as to convert the process of acting in aid of justice to a process of injustice---Applicant had failed to point out an error in the impugned order floating on the face of record so as to justify interference in exercise of review jurisdiction---Where review of any lis would change its foundation the same was not permitted---No reason or justification, in the present case, had been extended justifying delay in filing review petition---Departmental correspondence was neither cogent nor confidence inspiring to extend favour for condonation of delay---Delay in filing of review petition was not condonable when the applicant failed to show any sufficient reason---Review petition being not maintainable was dismissed in circumstances.

Mehmood Hussain Lark and others v. Muslim Commercial Bank and others 2010 SCMR 1036; Shamim ur Rahman v. Fauji Foundation, Rawalpindi and another 1992 SCMR 1496 and Mst. Khalija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 rel.

Muhammad Suleman Bhatti for Applicants.

2017 C L C 1150

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh and Jawad Hassan, JJ

Dr. NAIK PARVEEN and another----Appellants

Versus

DISTRICT CO-ORDINATION OFFICER, MULTAN and 4 others----Respondents

Intra-Court Appeal No.327 of 2013 in W.P. No.9566 of 2013, decided on 3rd May, 2017.

(a) Punjab Healthcare Commission Act (XVI of 2010)---

----S. 4(7)(d)---Functions of the Commission---Scope---Investigation into allegations of maladministration, malpractice or failures on the part of a healthcare service provider, or any of its employee---Powers of the Supreme Court and High Court to order an inquiry into such allegations---Scope---Perusal of S.4(7) of the Punjab Healthcare Commission Act, 2010 showed that the Commission may on a complaint by any aggrieved person or healthcare service provider undertake investigation into allegations of maladministration, malpractice or failures on the part of a healthcare service provider, or any of its employee---Commission had discretion to undertake such investigation on complaint of any aggrieved person or healthcare service provider, however, it was obligatory on the Commission to undertake investigation into such events on reference by the Government or the Provincial Assembly or on motion of the Supreme Court or the High Court made during the course of any proceedings before it---Commission, therefore, has no choice under the Act but to undertake investigation on motion of the Supreme Court or High Court made during any proceedings.

(b) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 2(xii), 4(7)(d) & 19(1)---Constitution of Pakistan, Art.199---Medical negligence by a healthcare service provider or any of its employees---Constitutional jurisdiction of the High Court to direct the Provincial Healthcare Commission to conduct an inquiry against the healthcare service provider or any of its employees---Scope---Registered gynecologist and lady health visitor ("appellants") were negligent in their treatment of a pregnant patient which caused her to have a miscarriage---District Health Officer/ Inquiry Officer opined that it was case of medical negligence and it came within the purview of Provincial Healthcare Commission---Single Judge of High Court gave directions to the Provincial Health Care Commission to conduct an inquiry regarding the allegations pertaining to the appellants' negligence in the matter strictly on merits and in accordance with law---Question as to whether the High Court in its Constitutional jurisdiction had powers to direct the Provincial Healthcare Commission to conduct such inquiry; held, that S.4(7)(d) of the Punjab Healthcare Commission Act, 2010 ("the Act") provided that it was obligatory on the Provincial Health Commission to undertake investigation into allegations of maladministration, malpractice or failures on the part of a healthcare service provider, or any of its employee on motion of the High Court made during the course of any proceedings before it---Any negligence or omission on the part of doctors had to be discouraged, which was also the clear intention of the legislature in enacting the Punjab Healthcare Commission Act, 2010---Single Judge of High Court had, therefore, rightly directed the Provincial Healthcare Commission in terms of S.4(7)(d) of the Act to conduct inquiry into the negligence of the appellants, and the Commissions was obliged to conduct such inquiry---Intra-court appeal was dismissed accordingly.

(c) Punjab Healthcare Commission Act (XVI of 2010)---

----S. 4(1)---Functions of the Provincial Healthcare Commission---Scope---Section 4(1) of the Punjab Healthcare Commission Act, 2010 empowered the Commission to improve quality of healthcare services and clinical governance, and ban quackery---Intention of the legislature for improvement of quality of healthcare services and clinical governance had to be kept in mind while interpreting the Punjab Healthcare Commission Act, 2010.

Syed Muzammil Hasan Bukhari for Appellant.

M.A. Hayat Hiraj and Malik Ali Muhammad Dhol for Respondents.

Rana Muhammad Hussain, Asst.A.G.

Dr. Kazi Abdullah, DHO (HRM), Allah Ditta, DLO O/C, Health Multan.

2017 C L C 1199

[Lahore]

Before Shahid Bilal Hassan, J

SHAMSHAD BIBI----Petitioner

Versus

RIYASAT ALI and others----Respondents

Civil Revision No.1748 of 2013, decided on 22nd December, 2016.

(a) Administration of justice---

----Party has to prove his/her case at its own and by using tool of court, party cannot be assisted or helped to create any evidence in his/her support---When one fails to prove his stance directly, he/she cannot be allowed to do the same indirectly.

Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551 ref.

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

----S. 42---Suit for declaration---Expert opinion---Necessity---Scope---Application for DNA test to check legitimacy of an heir of deceased---Scope---Petitioner assailed order of Trial Court by way of which application of appellant for DNA test of the petitioner along with three others except respondent was allowed---Petitioner contended that she had been deprived of her share from the inheritance of her father who contracted three marriages and court had rightly decreed her suit for declaration---Petitioner further submitted that DNA test was a third person opinion and such application was never moved when full-fledged trial was conducted before the civil court---Validity---Parties had to prove their cases at their own and by using tool of court they could not be assisted or helped to create any evidence in their support; when one failed to prove his stance directly, could not be allowed to do the same indirectly---Respondent had not made any effort by way of moving application for DNA test to bring on record any evidence before Trial Court and when Trial Court after thwarting and evaluating evidence brought on record by the parties recorded its findings, all of a sudden, that too, not at the time of filing of appeal, but during pendency of appeal, the respondent moved application for DNA test of the plaintiff along with three others but he kept himself away from that process, which spoke volumes against him as he was also from the blood of the deceased father---While passing the impugned order no consent from the petitioner and others with regard to sending them to the laboratory for DNA test, was obtained by appellate court, which was necessary, therefore, an irregularity was committed by appellate court---When the direct evidence to prove a fact was available in the shape of oral as well as documentary evidence, there was no need to seek expert opinion, which otherwise was a third person opinion and could not undo the direct evidence of the parties---High Court observed that tendency had been noticed that in order to deprive a legal heir from the legacy of deceased propositus, his/her legitimacy was called into question and he/she was dumped to get himself/herself cleaned from that stigma, that too through unskilled experts as any mistake or malpractice committed in the course of DNA test tantamount to stigmatize the child from the rest of his/her life, therefore, such practice could not be allowed to be carried on, especially when the parties enjoyed the liberty of producing direct evidence, oral as well as documentary, which had been done in the present case---Opinion of third person, not related to the parties, could not undo the direct evidence and law did not give a free license to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers---Appellate court while passing the impugned order had wrongly construed law on the subject and had reached to a wrong conclusion---Impugned order was set aside, consequent whereof the application for DNA test of the petitioner and three others, filed by respondent stood dismissed---Revision petition was allowed accordingly.

Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551; Qazi Abdul Ali and others v. Khawaja Aftab Ahmad 2015 SCMR 284; Mst. Shamim Akhtar v. Additional District Judge, Gujranwala PLD 2015 Lah. 500; Khizar Hayat v. Additional District Judge, Kabirwala and 2 others PLD 2010 Lah. 422; Aman Ullah v. The State PLD 2009 SC 542 and Ghazala Tehsin Zhora v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 ref.

Ghulam Farid Sanotra for Petitioner.

Rana Maqsood Ul Haq for Respondents Nos.1 and 2.

Malik Muhammad Wasim Mumtaz, Addl. A.G.

2017 C L C 1254

[Lahore]

Before Shahid Waheed, J

MUHAMMAD ARSHAD----Petitioner

Versus

MUHAMMAD NAWAZ----Respondent

Civil Revision No.3543 of 2014, decided on 9th February, 2017.

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

----O. XVII, Rr. 1(3) & 3 & S. 115---Limitation Act (IX of 1908), S.12---Punjab Pre-emption Act (IX of 1991), S. 13---Suit for possession through pre-emption---Closure of evidence---Revision, filing of---Requirements---Limitation---Condonation of delay---Scope---Trial Court granted adequate opportunities to the plaintiff to produce evidence in support of his claim---Conduct of plaintiff was not only carefree or negligent but also contumacious---No reason had been disclosed which caused hindrance in the way of plaintiff to produce evidence before the Trial Court---When plaintiff was not ready with his evidence then Trial Court under O.XVII, R.1(3), C.P.C. could close his evidence so as to get to the next stage in the trial---Evidence of plaintiff was rightly closed by the Trial Court---Revision petitioner was not bound to furnish certified copies of judgments along with petition---Benefit of S.12 of Limitation Act, 1908 could not be extended to the plaintiff---Court below was bound to provide a copy of impugned decision within three days thereof which might be uncertified---Plaintiff should have approached the court below to obtain copy of impugned decision---Once application was made to the court below and there was failure to provide copy within prescribed period of three days then revision petitioner could have sought condonation of delay on the ground that it was beyond his control to obtain a copy---Revision petitioner had not filed an application before the court below for compliance of mandate of second proviso of S.115(1), C.P.C.---Revision was dismissed in circumstances.

Pirzada Amir Hassan and others v. Mrs. Shamim Shah Nawaz and others 1984 CLC 3080; The Administrator, Lahore Municipal Corporation, Lahore v. Abdul Hamid and others 1987 CLC 1261; Province of Punjab through District Officer Revenue Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358; Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546 and Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918 rel.

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

----S. 115---Revision, filing of---Requirements---Revision petitioner had to furnish copies of pleadings, documents and order of subordinate Court along with revision petition.

2017 C L C 1272

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD RAMZAN SHAHID----Petitioner

Versus

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

Writ Petition No.10894 of 2016, decided on 19th January, 2017.

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

----Ss. 5, Sched., Ss.7 & 17---Civil Procedure Code (V of 1908), Ss.10 & 1l---Suit for recovery of personal belongings after disposal of suit for gold ornaments---Res judicata, principle of---Applicability---Wife filed suit for dissolution of marriage and recovery of dowry articles which was decreed and thereafter another suit for recovery of gold ornaments was instituted which was also decreed and thereafter another suit for personal belongings was instituted which was dismissed---Validity---Plaintiff-wife was aware with regard to gold ornaments at the time of filing of suit for recovery of dowry articles---Wife could file multiple claims before the Family Court however once she had filed a suit with regard to specific subject matter then she could not be allowed to file a subsequent suit for the same relief---Facility of composite suit for dissolution of marriage along with other ancillary claims including personal property and belongings had been created for the wife---Wife was not bound to claim all the said reliefs in one suit but when she failed to claim in entirety in the second suit then principle of constructive res judicata would apply against any subsequent suit on the same subject---Impugned judgments and decrees passed by both the Courts below were set aside---Constitutional petition was allowed in circumstances.

Muhammad Saleem and others v. Rashid Ahmed and others 2004 SCMR 1144; Malik Hashim Amir Khan v. Mst. Saadia Tabassum and another 2015 MLD 89 and Mumaraz Khan v. Rakhshanda Bibi 2012 CLC 517 ref.

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

----S. 17---Proceedings before Family Court---Applicability of---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908---Scope---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were not applicable to the proceedings before the Family Court except Ss.10 & 11 of Civil Procedure Code, 1908.

Sheikh Sakhawat Ali for Petitioner.

2017 C L C 1278

[Lahore]

Before Shujaat Ali Khan, J

Messrs Shaikh NAVEED IKHLAS and 2 others----Petitioners

Versus

Shaikh ABDUL HAFEEZ and 6 others----Respondents

W.P. No.23511 of 2016, decided on 15th March, 2017.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 10 & 15---Transfer of Property Act (IV of 1882), Ss.49 & 117--- Registration Act (XVI of 1908), S.17---Eviction petition---Wilful default of monthly rent by tenant---Denial of tenancy by the occupant who claimed possession through lease in perpetuity---Authenticity of unregistered lease in perpetuity---Scope---Tenants contended that eviction petition was not maintainable as they were enjoying possession through lease in perpetuity; that they were not given opportunity to be heard properly by the appellate court and that S.10 of Punjab Rented Premises Act, 2009 was only applicable when tenancy agreement was already in existence between the parties---Landlord contended that appellate court had rightly ordered the ejectment of tenant for non-payment of monthly rent; that petitioners adopted inconsistent pleas that after admitting tenancy agreement they took U-turn about lease agreement, that they filed suit for specific performance and claimed that lease deed was not even registered and had no legal force---Validity---Record showed that the tenants were accommodated by the appellate court to the maximum, for four months, and after coming to the conclusion that they were delaying the matter unnecessarily opted to decide the appeal in absence of their counsel---Interim orders of the appellate court showed that it was a direction case, plea of the tenants that neither they nor their counsel was aware about the fact that it was a direction case, could not be given any weight---Entire case of the tenants hinged upon a document exhibited by them and by virtue of said document a tenancy agreement was purportedly converted into a lease in perpetuity for 99 years---Document in question specified that in case of failure of landlord, the tenants were given option to claim, through court, its shares/benefits etc---Amount paid by the tenants to landlord was considered as Pagri---Any amount paid by the tenant at the time of renewal of tenancy in addition to security amount was considered "Pagri"---Such facts also affirmed that at the most exhibited document by the petitioners could be treated as renewal of tenancy---If the exhibited document by petitioners, was purportedly executed for 99 years, the same was compulsorily registerable under the Registration Act, 1908---In absence of proper execution and registration of lease in perpetuity the claim of the petitioners was rightly discarded by the appellate court---Tenants while submitting reply to the ejectment petition categorically admitted that they were tenants of the respondents since the year 1972, one of the tenants while appearing in the witness box, admitted that the premises in question were given to them on rent in the year 1972---Exhibited document by the tenants which was a communication by landlord making a priced one of the tenants that he had gifted a portion of his share to his daughter, one of the landlords who would receive rent in future, made it clear that it was tenancy and not lease in perpetuity, otherwise there was no necessity to clarify about the payment of rent in future to the daughter of landlord---Said communication, instead of lending any support to the claim of the tenants went against them---Admittedly, tenancy agreement was executed in the year 1997 so it could not be believed that exhibited lease was not hit by S.10 of Punjab Rented Premises Act, 2009, more importantly when the petitioner had already filed a suit for specific performance of agreement---Such aspect also confirmed that the tenants were aware that there was an agreement between the parties and not a lease in perpetuity---Constitutional petition was dismissed accordingly.

Government of Sindh through Secretary and Director General, Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380 and Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396 ref.

Abdul Karim v. Mirza Bashir Ahmad PLD 1974 SC 61; Muslim Commercial Bank Ltd. v. Abdul Ghaffar and 2 others 2013 YLR 344; Muhammad Bakhsh through Representatives and 5 others 2005 YLR 2464; Muhammad Rafi and others v. Khalid Rauf Ahmad and another 1986 MLD 722; Ali Muhammad v. Mst. Azeemun Nisa Begum 1986 CLC 576 and The Pakistan Employees Co-operative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474 distinguished.

Muhammad Hussain Awan for Petitioners.

2017 C L C 1328

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ABDUL GHAFOOR----Petitioner

Versus

ALLAH MAAFI and others----Respondents

W.P. No.8604 of 2016, decided on 18th March, 2016.

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

----S. 5, Sched.---Recovery of dowry articles---Wife could not be non-suited merely for the reasons that Rukhsati had not taken place---Dispute had arisen between the parties on the day of Barat---Generally, dowry articles were delivered to the house of bridegroom a few days prior to Rukhsati---Both the courts below had rightly arrived at a conclusion that dowry articles were delivered prior to the date of Rukhsati---Decree had been passed with regard to dowry articles which were of daily use and usually given to a daughter at the time of marriage by the parents even having unsound financial background---Alternate price of dowry articles assessed by the Family Court and affirmed by the Appellate Court was reasonable---Husband was trying to drag the wife in frivolous litigation and creating hurdles in the process of justice---Court was not to allow any party to abuse the process of court---Imposition of suitable cost might be one of the modes to curtail unnecessary and frivolous litigation---Husband had filed present constitutional petition to achieve ulterior motives which was required to be dismissed with exemplary costs---Constitutional petition was dismissed with cost of Rs.20,000/-to be deposited by the husband with the Family Court within 30 days and wife would be entitled to draw the same---If husband failed to deposit the cost then Family Court should recover the same as arrears of land---Constitutional petition of husband was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not interfere with the concurrent findings of facts in the absence of any illegality or irregularity.

Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 rel.

2017 C L C 1335

[Lahore]

Before Shahid Karim, J

ADNAN NAZEER ALVI----Appellant

Versus

M. ZAFAR IQBAL AWAN and 2 others----Respondents

Election Appeal No.8 of 2016, decided on 3rd April, 2017.

Punjab Local Governments (Conduct of Elections) Rules, 2013---

----Rr. 64, 62, 58 & 68---Punjab Local Government Act (XVIII of 2013) Ss.42, 41. 46 & 47--- Election petition--- Election Tribunal, procedure and jurisdiction of---Grounds for declaring election of returned candidate void---Recount of votes---Scope---Appellant impugned order of Election Tribunal whereby recount of votes was ordered and respondent was subsequently declared as the returned candidate, in place of appellant---Contention of appellant, inter alia, was that impugned order was ultra vires the powers of the Election Tribunal and proceedings for recount suffered from material irregularities---Validity---Perusal of the election petition of the respondent in light of R.64 of the Punjab Local Governments (Conduct of Elections) Rules, 2013, made it clear that relief claimed by respondent was diametrically opposed to one which could be granted by the Election Tribunal by way of declaration, which aspect was not dilated upon in the impugned order---Only ground which weighed in the impugned order was that the difference of votes of the two candidates was small and on said ground it was stated that recording of petitioner's evidence would be exercise in futility, which was insufficient ground in arriving at a conclusion that recount should be ordered---Impugned order, therefore, lacked in material particulars and did not take into account special procedures and essential pre-conditions before a recount of votes could be ordered---High Court observed that per S.42 of the Punjab Local Government Act, 2013, election of a returned candidate could not be declared void on flimsy grounds and care should be taken in holding by the Election Tribunal that corrupt or illegal practice was committed by the returned candidate---Recount must be permitted by Election Tribunal within the well settled parameters of exercising jurisdiction in such regard and in the present case, order for recount had been passed without regard to the essential pre-conditions---High Court further observed that the impugned order was clearly ultra vires the powers of the Election Tribunal and was set aside---Appeal was allowed, in circumstances.

Jam Madad Ali v. Asghar Ali Junejo and others 2016 SCMR 251; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 and Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others 2016 SCMR 998 rel.

Sh. Jamshed Hayat for Appellant.

Mian Abbas Ahmad for Respondent No.1.

2017 C L C 1348

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

NASIM BASHIR and 8 others----Petitioners

Versus

NAZIR AHMAD and others----Respondents

C.R. No.291 of 2006, heard on 21st March, 2016.

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

----S. 42---Contract Act (IX of 1872), S.202---Suit for declaration---Agreement of sale---Proof of---Power of attorney---Plaintiff sought declaration that agency created by defendant in favour of plaintiff vide deed of general power of attorney coupled with interest in the property, was irrevocable and could not be terminated---Plaintiff had failed to prove the execution of sale agreement as he had not produced second witness as well as stamp vendor to show that stamp was actually purchased by the defendant---Power of attorney in question had been revoked even before the filing of suit---Provision of S.202, Contract Act, 1872 was not applicable in circumstances---Concurrent findings of fact recorded by the courts below could not be interfered with by the High Court---Revision was dismissed in circumstances.

Muhammad Rafique v. Muhammad 1989 CLC 1318; Baisnab Das Mohanta v. Nani Gopal Das and others PLD 1963 Dacca 504; Syed Shafique Hussain v. Syed Abul Qasim PLD 1979 Kar. 22; Hakim Ali and another v. Atta Muhammad and others 1981 SCMR 993 and Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555 ref.

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

----S. 12---Agreement to sell---Scope---Agreement to sell did not create or confer right in the property except a right to file a suit for specific performance in the court of competent jurisdiction.

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

----S. 12---Civil Procedure Code (V of 1908), S.16---Suit for specific performance, institution of---Scope---Suit for specific performance would be competent before the court where immovable property was situated.

Agha Tariq Mahmood Khan for Petitioners.

Abdul Hameed Baloch for LRs of Respondents Nos.1 to 4.

Malik Shaukat Hayat for LRs of Respondents Nos.6 and 7.

2017 C L C 1361

[Lahore]

Before Tariq Iftikhar Ahmad, J

MUHAMMAD SARWAR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 5 others----Respondents

W.P. No.1104 of 2011, decided on 4th January, 2017.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches, doctrine of---Applicability---Scope---Petitioner contended that he was not effected by the principle of laches as respectable of his area tried to rescue the dispute through private arrangement and due to that constitutional petition had been filed with some delay---Petitioner had submitted that he might not be non-suited under the principle of laches, and the petition be decided on merits after hearing both the parties---Validity---Two legal modes were provided to see as to whether the lis/judicial matter was brought before the court of competent jurisdiction within the prescribed period of limitation: According to the Limitation Act, 1908 hard and fast rules were provided to approach the court for redressal of grievances within stipulated/given time and if it was not done so and no reasonable cause was shown to justify the delay, the party approaching court with delay could be non-suited; law of limitation was subservient law as compared to constitutional provisions, therefore constitutional petition had to be taken up under the principle of laches---Principle of laches was based on the principle of equity, good conscious and natural justice---Laches, according to its simplest meaning, was negligence committed by person in observance of duty or opportunity, undue delay in asserting legal right or privileges---Failure of litigant to do something which had not been done within reasonable time must be justified---Justification put forward for the petitioner was not even plausible and reasonable cause to avoid implication of laches---Continuous non-applicability of counsel for the petitioner, during the pendency of constitutional petition, also showed non-seriousness of the petitioner---Petitioner by his conduct during the pendency of the constitutional petition and by adopting another mode of private arrangement for redressal of his grievances had disentitled him to claim or seek that the petition was not hit under the principle of laches---Constitutional petition was dismissed accordingly.

Khursheed Latif and others v. Federation of Pakistan and others 2010 SCMR 1081; Mst. Lal Khatoon v. Judge, Family Court, Hasilpur, and others 1998 MLD 850 and Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana PLD 1976 SC 410 ref.

Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 distinguished.

(b) Laches, doctrine of---

----Definition---Laches is a French term which has been derived from (Law French, "remissness, slackness"); unreasonable delay in pursuing a right or claim; always an equitable one and in a way that prejudices party against whom relief is sought.

(c) "Laches"---

----Definition---Laches or lashesis, old French word for slackness or negligence, or not doing---Laches in law is neglect to do something which by law a man is obliged to do.

(d) Laches, doctrine of---

----History---Chancery developed the doctrine that where the plaintiff in equity delayed beyond the period of the statute applicable at law, relief would be refused on the ground of laches even though no specific prejudice to the defendant was shown---Statutes of limitation in most states applying to suits in equity; despite, however, the doctrine still holds that even if the delay is for a shorter period of time than that of the statute, it may still bar equitable relief, if it is unreasonable and prejudicial to the defendant.

2017 C L C 1368

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

ALTAF ANJUM----Petitioner

Versus

BUSHRA BEGUM and 2 others----Respondents

C.R. No.1548-D of 2016, decided on 27th October, 2016.

Specific Relief Act (I of 1877)---

---S. 8---Transfer of Property Act (IV of 1882), S.53-A---Suit for possession of immovable property---Agreement to sell---Part performance of contract---Protection under S.53-A of Transfer of Property Act, 1882---Scope--¬Agreement to sell with regard to immovable property did not create or confer any right except to file a suit for specific performance---Even a decree granted in a suit for specific performance in favour of plaintiff was a declaration of maturity of his right to get the property and the right conferred upon the decree holder in execution of decree and not through mere passing of decree---Even though the possession under the agreement to sell had been transferred to the transferee, yet he could not protect his possession or defend the same if suit for possession was filed by the owner i.e. the other party to the agreement on the basis of S.53-A of the Transfer of Property Act, 1882---Protection given under S.53-A of Transfer of Property Act, 1882 would be available to the person who possessed an instrument of transfer which had legal defect in it---Transferee should have performed his part of contract to take benefit of S.53-A of Transfer of Property Act, 1882---Defendant had not performed his part of contract and no suit for specific performance had been filed by him---Defendant could not take benefit of S.53-A of Transfer of Property Act, 1882---Second appeal was dismissed in liminc.

Akbar Ali and others v. Lal and others PLD 1997 Lah. 709 ref.

2017 C L C 1371

[Lahore (Rawalpindi Bench)]

Before Mujahid Mustaqeem Ahmed, J

ZAHID MEHMOOD and another----Petitioners

Versus

SHABBIR UL HAQ and 2 others----Respondents

Civil Revision No.1213 of 2010, heard on 13th December, 2016.

Specific Relief Act (I of 1877)---

----Ss. 54 & 55---High Court (Lahore) Rules and Orders, Volume I, Chp.I-M---Suit for permanent and mandatory injunction---Demarcation of area---Requirements---Plaintiffs neither in the plaint nor in the site plan had specified the area which was encroached upon/left by them for drainage purpose---Nothing was on record as to how much area or land had been encroached upon by the defendants---Demarcating Officer was required to measure the properties subject of demarcation from three permanent places and he was required to show such measurement in his report by erecting boundaries of each intervening khasra number---Measurement shown in the demarcation report had to be made according to 'Shajra Aks' or `Masavi' without which the Demarcating Officer could not find out the spot whether the measurement done by him was according to the revenue record or not---Local commission had not conducted demarcation proceedings in accordance with law---Trial Court had not examined the report of Local Commission, objections of defendants and evidence in support of such objections and had not specified the encroached area from which encroachment was to be removed by the defendants---No executable decree had been passed in the present case---Impugned judgments were result of misreading and non-reading of evidence---Courts below failed to exercise jurisdiction vested in them---Impugned judgments and decrees and report of Local Commission were set aside---High Court recast an issue and remanded the case with the direction to afford a fair opportunity of evidence to the parties---Trial Court was directed to appoint honest Local Commission with the concurrence of the parties and their counsel and decide the suit in accordance with law---Revision was allowed accordingly.

Muhammad Azam v. Muhammad Abdullah through L.Rs 2009 SCMR 326 ref.

Sheikh Allah Ditta v. A.F. Ahmad & Co. and others PLD 1954 Lahore 608; Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue), Kharian, District Gujrat and 6 others 2005 MLD 814 and Mst. Hajran Begum v. Kh. Muhammad Yousaf and Legal Heirs 2005 MLD 592 rel.

Raja Muhammad Amin for Petitioners.

Raja Ahmad Khan for Respondent.

2017 C L C 1381

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi, J

BENAZIR BHUTTO HOSPITAL, RAWALPINDI through Medical Superintendent----Petitioner

Versus

KHALID PERVEZ and 8 others----Respondents

Civil Revision No.601-D of 2013, heard on 13th May, 2016.

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

----S. 96---Limitation Act (IX of 1908), S.12(2)---Appeal---Limitation--Commencement of limitation---Words "time requisite for obtaining copy"---Scope---Non-impleadment of necessary party in the appeal---Effect---Appellate Court dismissed appeal being time-barred---Validity---Appellant moved copying agency on 12-01-2012 wherein date for supply of copies was given as 14-01-2012---Nothing was on record whether appellant either on 14-01-2012 or at subsequent stage approached the copying agency and any further date for supply of copies was endorsed---Required copies were prepared on 29-05-2012 but appellant received the same on 12-06-2012---Had the appellant approached the copying agency on 14-01-2012 then there would have been any endorsement by it intimating any future date for supply of copies---Starting date in order to calculate the limitation for filing an appeal would be considered as 29-05-2012 when required copies were prepared by the copying agency---Appellant had failed to justify the delay caused in filing the appeal which was filed on 37th day of limitation---Appellant had not arrayed the other defendants in the line of respondents---Either the original defendant nor the other one had ever filed any appeal---Appeal was not competent due to non-impleadment of necessary parties---No illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Gul Muhammad v. Allah Ditta PLD 1960 (W.P) Lah. 443; Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31; Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others PLD 1990 Lah. 229; Shujahat Hussain v. Muhammad Habib and another 2003 SCMR 176 and Mirza Muhammad Ishaq and others v. Additional Settlement Commissioner Lands and others 2005 SCMR 973 distinguished.

Muhammad Qasim v. VIth Additional District and Sessions Judge, Karachi Central and 2 others 2008 CLC 446; Sher Muhammad and 27 others v. Muhammad Mumtaz-ul-Islam through Legal Heirs and 6 others 2001 MLD 1964; Mst. Maqbool Begum etc. v. Gullan and others PLD 1982 SC 46 and Faquir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commissioner and 4 others PLD 1993 Lah. 439 rel.

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

----S. 12(2)---"Time requisite for obtaining copy"--Scope---"Time requisite for obtaining copy" would mean only the interval between the date of application for supply of copy and the date when it was ready for delivery.

Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157 rel.

Tariq Mehmood for Petitioner.

Raja Tauqeer Ahmad Satti and Raja Maqbool Hussain and Shahid Mehmood Abbasi, Additional Advocate-General, Punjab for Respondents.

2017 C L C 1411

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ZAHID PERVEZ----Petitioner

Versus

BOARD OF REVENUE through Secretary Colonies, Lahore and others----Respondents

W.P. No.3233 of 2009, decided on 10th November, 2015.

General Clauses Act (X of 1897)---

----S. 24-A--- Constitution of Pakistan, Arts.2-A, 4, 9, 14, 23, 24 & 25--- Fundamental rights, violation of--- Inaction of public functionaries--- Grievance of petitioner was that authorities leased out a plot to him and despite completion of all formalities, possession of the same was not handed over--- Validity--- Petitioner, under Art.23 of the Constitution, was entitled to hold property---By signing lease deed, petitioner had acquired a valid, lawful, vested and enforceable right in the property--- Non-delivery of possession was in breach and violation of Art.23 of the Constitution--- No third party right could be created over the leased premises at the expense of petitioner--- Lease deed had created valuable rights in favour of petitioner which could only be cancelled in terms of the document itself and not otherwise--- Petitioner under Art.18 of the Constitution had a right to practice any lawful trade or business--- Unfair and unjust action of authorities was against the provisions of Arts.2-A, 4, 9, 14, 23, 24 & 25 of the Constitution---Authorities were public functionaries and under S.24-A, of General Clauses Act, 1897, were obliged to act equitably, fairly, justly, transparently, reasonably and without any taint of mala fide--- Inaction and refusal to hand over possession of alternate plot, on the part of authorities, after having signed lease deed, were illegal and without lawful authority-- High Court directed the authorities to ensure vacant possession of plot in question to petitioner--- Petition was allowed in circumstances.

Province of Punjab through Secretary Irrigation, Government of the Punjab, Lahore and 2 others v. Abdur Rehman Shaukat 1999 SCMR 2610; Javed Hayat and another v. The State PLD 2006 Lah. 167 and Malik Salah-ud-Din and 6 others v. Collector, Land Acquisition, Peshawar and 3 others 1999 CLC 776 rel.

Mehmood A. Sheikh for Petitioner.

Muhammad Ejaz, Assistant Advocate General, along with Hassan Raza Jafari, Member (Colonies) Board of Revenue, Punjab, Lahore and Qamar Abbas Sultan, Assistant Director (M&A), B.O.R. for respondents.

2017 C L C 1426

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD HUSSAIN and 2 others----Petitioners

Versus

Mst. ZARINA AKBAR and 6 others----Respondents

W.P. No.38404 of 2016, decided on 8th February, 2017.

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

----O. IX, R. 13 & O. I, R. 10---Limitation Act (IX of 1908), Arts.181 & 164---Constitution of Pakistan, Art.199---Constitutional petition---Ex parte decree, setting aside of---Limitation---Void order---Effect---Suit was fixed for arguments on the application under O.I, R.10, C. P. C---Applicants-defendants did not appear and Trial Court initiated ex parte proceedings against them and passed ex parte decree---Application moved for setting aside of ex parte decree was dismissed being time-barred---Validity---Applicants-defendants joined the proceedings and submitted their written statement---Provision of Art.181 instead of Art.164 of Limitation Act, 1908 would attract in the present case---Period for filing application for setting aside of ex parte judgment and decree was three years---Trial Court had failed to appreciate law on the subject properly---Application for setting aside of ex parte judgment and decree was within time---Application filed under O.I, R.10, C.P.C. was fixed for arguments when ex parte proceedings were initiated against the applicants-defendants---Trial Court ought to have proceeded and decided the said application in absence of applicants rather to initiate ex parte proceedings against them in the suit---Said order for initiation of ex parte proceedings and subsequent ex parte judgment and decree could not be said to be legal one rather it was without jurisdiction and void---When order was illegal and had been passed in violation of law then High Court had powers to rectify the same while exercising its constitutional jurisdiction---When initial order was void and against the mandatory provision of law, then subsequent superstructure could not stand---High Court had power to rectify such jurisdictional error---Impugned orders passed by the Courts below were declared illegal and void as well as without jurisdiction and were set aside---Case was remanded to the Trial Court with the direction to decide application under O.I, R.10, C.P.C. on merits---Constitutional petition was allowed accordingly.

Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another 2006 CLC 92; Messrs Eastern Steels v. National Shipping Corporation 1984 CLC 2778; Assistant Controller of Imports and Exports and 2 others v. Muhammad Iqbal Bhirviya 1989 CLC 398; Qazi Laeeq v. Najeebur Rehman and others 2012 MLD 50; Muhammad Anwar v. Muhammad Masood Akhtar and others 1993 MLD 1889; Syed Qaim Ali Shah through Attorney v. Election Commission of Pakistan through Secretary and 3 others PLD 2015 Sindh 408; Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Secretary Education Department, Government of N.-W.F.P., Peshawar and others v. Asfandiar Khan 2008 SCMR 287 ref.

Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949; Hashim Khan v. National Bank of Pakistan 1992 SCMR 707 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When order was illegal and had been passed in violation of law, High Court had powers to rectify the same while exercising its constitutional jurisdiction.

Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949 rel.

(c) Administration of justice---

----Each and every case had its peculiar facts and circumstances and Court had to evaluate and adjudge the same with an independent mind.

(d) Void order---

----When initial order was void and against the mandatory provision of law then subsequent superstructure could not stand.

Rana Muhammad Anwar for Petitioners.

Aftab Hussain Bhatti for Respondents Nos.1 to 4.

2017 C L C 1452

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD SHARIF and 8 others----Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB and 14 others----Respondents

W.P. No.22153 of 2012, heard on 20th January, 2016.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 163---Review---Scope---Court could rectify any clerical or arithmetic mistake going to the roots of the case while exercising its power of review but said power could not be used for re-hearing of a matter when a remedy of appeal/revision was available to the aggrieved party.

Abdul Majeed Khan through L.Rs and others v. Ms. Maheen Begum and others 2014 SCMR 1524; Nazar and others v. Member (J-II), BOR 2010 SCMR 1429; Muhammad Nawaz and others v. Fateh Sher and others 2008 SCMR 1658; Allah Ditta v. Ghulam Muhammad and 3 others 2008 SCMR 1021; Shahra and others v. Member, Board of Revenue, Punjab and others 2004 SCMR 117; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Abdul Majid and another v. Qazi Abbas Hussain Shah 1995 SCMR 429; Mian Abdul Quddous v. Mst. Surrya Mir and 3 others PLD 2015 Lah. 687 and M/s Modern Continental Business (Pvt.) Ltd. through Chief Executive v. Government of Pakistan through Secretary, Ministry of Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another 2002 CLC 233 ref.

Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Ittehad Chemicals Ltd. v. VIIth Additional District and Sessions Judge and others 2010 CLC 599; Mughla and others v. Jafar and others 2001 CLC 1410; Mst. Sharifan Bibi and others v. Member, Board of Revenue, Lahore and others 1996 CLC 644 and Javed Manzoor and others v. Member, Board of Revenue 1980 CLC 1196 distinguished.

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

----S. 54---Sale---Scope---Second sale deed could not be registered in presence of a sale deed qua a property and if it was done then the junior vendee had to suffer when he was aware with regard to pendency of proceedings before a court of law qua the same property.

(c) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court---Binding effect---Judgment of Supreme Court had binding force upon all the organs of the State.

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

----S 52---Lis pendens, principle of---Scope---Transaction entered during pendency of proceedings before a court of competent jurisdiction would be inconsequential irrespective of the fact that any subsequent court decree had been passed on the basis thereof or not.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Muhammad Iqbal and others v. Khair Din through LRs and others 2014 SCMR 33; Basit Sibtain through LRs v. Muhammad Sharif through LRs 2004 SCMR 578; Ikram Elahi v. The Settlement and Rehabilitation Commissioner (Lands) Lahore and 2 others 1976 SCMR 143; Col. (R) Sadiq Hasan Sheikh v. Abdul Rashid and another 1993 MLD 486; Malik Jahangir Khan v. Syed Sibtul Hassan and others 1990 CLC 1659; Muhammad Sharif and others v. Lahore Development Authority and others 1989 MLD 95 and Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426 rel.

Ghulam Farid Sanotra for Petitioners.

Rana Shamshad Khan, Additional Advocate General for Respondents Nos.1, 14 and 15.

Muhammad Sharif Chohan for Respondents Nos.2 to 13.

2017 C L C 1488

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi, J

ATIQ-UR-REHMAN and another----Petitioners

Versus

RETURNING OFFICER, U.C. Nos.57 to 63 and 6 others----Respondents

W.P. No.3354 of 2015, decided on 11th December, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 38, 62 & 53---Recounting of votes---Loss of ballot papers---Effect---Recounting of votes were ordered by the Returning Officer and as a result of such recounting votes of a polling station were reduced and some votes were found missing---Validity---Conduct adopted by the election staff did not show that free, fair and just election was conducted in their supervision---Neither there was any discipline maintained during polling time at polling station nor the polling staff was careful while preparing the final result---No trust could be attached with such counts---Nothing was on record as to where the missing ballot papers had gone---Election which was to be challenged before the Election Tribunal by way of an election petition was only the declaration notified by means of notification---Such stage was still to come as by now no such notification had ever been issued---High Court had every jurisdiction to redress the grievance of any party before the elections were notified and authorities were amenable to its constitutional jurisdiction with regard to their acts or proceedings performed or taken prior to issuance of notification of election---Election staff could not claim immunity from any challenge to their illegal or unauthorized acts before publication of election and an aggrieved person would be competent to invoke the constitutional jurisdiction of High Court---Acts and proceedings taken by the respondents were without lawful authority and of no legal effect---Proceedings carried out by the respondents in conduct of election of union council after recounting were of no legal effect and same were set aside---Such process should be taken afresh for which purpose Election Commission would issue a fresh schedule according to law---Constitutional petition was allowed in circumstances.

(b) Constitution of Pakistan---

----Art. 199(1)(a)(ii)---Punjab Local Government (Conduct of Elections) Rules, 2013, Rr. 38, 62 & 53--- Constitutional petition---Maintainability---Challenge to election proceedings---Scope.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court had jurisdiction to make an order on the application of any aggrieved party declaring that any act done or proceeding taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation a Province or a local authority had been done or taken without lawful authority and same was of no legal effect. [p. 1492] B

Sheikh Ahsan-ud-Din, Mohammad Ilyas Sheikh and Mohammad Taimoor Malik for Petitioners.

Tanveer Iqbal Khan and Malik Fazal-ur-Rehman for Respondents.

2017 C L C 1533

[Lahore]

Before Atir Mahmood, J

MUHAMMAD ABBAS----Petitioner

Versus

MUHAMMAD ISMAIL and 2 others----Respondents

Civil Revision No.1360 of 2009, heard on 9th February, 2016.

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

----S 12---Qanun-e-Shahadat (10 of 1984), Arts.17, 79 & 82---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of contract---Limitation---Agreement to sell attested by only one witness---Effect---Document, proof of---Procedure---Article 82 of Qanun-e-Shahadat, 1984---Applicability---Plaintiff was bound to produce cogent evidence including two marginal witnesses of agreement to sell before the court in order to prove his assertion---Every document was hit by the provisions of Art.17 of Qanun-e-Shahadat, 1984---Agreement to sell, in the present case was neither executed as required under Art.17 of Qanun-e-Shahadat, 1984 nor it could be proved as per requirement of Art.79 of the said Order---Document required to be proved must be attested by two witnesses and it could not be proved until and unless two attesting witnesses appeared before the court and testified such document---If initial requirements were completed then the provision of Art.82 of Qanun-e-Shahadat,1984 would be applicable---Alleged agreement to sell was attested by one marginal witness only and there existed no other marginal witness of the said document---Article 82 of Qanun-e-Shahadat,1984 might be relevant in a case where two attesting witnesses existed but not in the case of a document where there was only one marginal witness---Witness which did not exist could not be presumed that he had denied or failed to recollect execution of the document---Plaintiff could not be allowed to get benefit from the weaknesses of the other side and he had to stand on its own legs---Plaintiff filed suit for permanent injunction on 17-01-1994 wherein it was asserted that cause of action had accrued prior to 15 days before filing of said suit---Present suit was filed on 21-06-1997 which was beyond the period of three years and was time barred---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others PLD 2011 SC 241 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 agreement to sell could be filed within three years from the day when cause of action accrued.

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

----Arts. 17, 79 & 82---Document, proof of---Procedure---Document required to be proved must be attested by two witnesses and it could not be proved until and unless two attesting witnesses appeared before the court and testified such document---If initial requirements were completed then the provision of Art.82 of Qanun-e-Shahadat, 1984 would be applicable.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere in the concurrent findings of law and fact until and unless there was some illegality, irregularity, misreading or non-reading of evidence.

(e) Affidavit---

----Mere presentation of an affidavit was not a valid piece of evidence until and unless it was tendered in evidence by the deponent and cross-examined by the other side.

(f) Administration of justice---

----No one could be allowed to get benefit from the weaknesses of the other side---Party had to stand on its own legs.

A.K. Dogar for Petitioner.

Rana Mahmood Khan for Respondent.

2017 C L C 1554

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

SAMI ULLAH and another----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and 8 others----Respondents

W.P. No.36970 of 2015, decided on 7th December, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 25(1)(2)---Election for local government---Re-polling---Scope---Neither there was any hurdle during polling hours nor any of the ballot boxes was taken away unlawfully from the custody of Presiding Officer---Result had already been prepared prior to the occurrence of taking away the ballots---Even Presiding Officer knew as to how many ballots were taken away by the culprits---No justification, in circumstances, existed for the Returning Officer to recommend re-polling in the disputed ward---Presiding Officer was not hampered in forwarding the already compiled results---Recommendation of Returning Officer for re-polling in the ward could not be allowed to sustain---Returning Officer was directed to issue notification of result of union council---Constitutional petition was accepted in circumstances.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 25(1)(2)---Constitution of Pakistan, Art.199---Constitutional petition--- Election for local government--- Recounting of votes---Scope---Presiding Officer submitted report that polling agents of the candidates-petitioners had forcibly took away rejected votes and thereafter included some ballot papers in the polling bags---Effect---As to how many votes were included in the polling bags by the polling agents of the candidates-petitioners could not be ascertained---No one could be allowed to take advantage of its own wrong---Act of candidates'-petitioners' polling agents was illegal, unlawful---Such an unruly attitude and a criminal act of a contesting candidate or its polling agents could not be condoned---Person having such a conduct was not entitled for discretionary relief under Art.199 of the Constitution from the High Court---District Police Officer was directed to personally pursue the FIR registered on the complaint of Presiding Officer---Constitutional petition was dismissed in circumstances.

(c) Administration of justice---

----No one could be allowed to take advantage of its own wrong.

Syed Qamar Ali and Pir Masood Chishti for Petitioners.

Shafqat Mehmood Chohan for Respondents.

2017 C L C 1601

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. KAUSAR BIBI----Petitioner

Versus

Mst. AYESHA BIBI and 6 others----Respondents

W.P. No.34536 of 2015, decided on 11th November, 2015.

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

----S. 12(2)---Inheritance--Fraud and misrepresentation---Decree, setting aside of---Scope---Decree was passed without impleading necessary party in the suit---Effect---Application moved under S.12(2), C.P.C. was accepted concurrently---Validity---If applicants were minors at the relevant time even then they were necessary party to be impleaded through their guardian---Decree with regard to the property owned by the applicants could not be passed without impleading them in the proceedings---Impugned decree was result of fraud and misrepresentation which could not be justified by conceding statement from some of the affectees of the same---When impugned decree was obtained by practicing fraud and misrepresentation then any part thereof could not be allowed to remain intact---Islam had determined the share of women and children in the inheritance---Islam did not only give women a social and legal personality with men but also give the rights of inheritance as mother, daughter, sister, grandmother and granddaughter etc by mentioning their relations/shares separately---Such rights could not be taken away from them through deceitful and fraudulent act---Instrument, deed, judgment or decree based on fraud being nullity in the eye of law had to collapse---When fraud was apparent and visible from the record then it was not necessary to record evidence for deciding application filed under S.12(2), C.P.C.---Constitutional petition was dismissed in circumstances.

Surah Al-Nisaa (the fourth Chapter) verses 11 and 12, verse 176; Surah Baqarah, chapter 2 verse 180; Surah Baqarah, chapter 2 verse 240; Surah Nisa, chapter 4 verse 7-9; Surah Nisa, chapter 4 verse 19; Surah Nisa, chapter 4 verse 33; Surah Maidah, chapter 5 verses 106-108; Muhammad Younas Khan and 12 others v. Government of N.W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618 rel.

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

----S. 12(2)---Fraud and misrepresentation---Decree, setting aside of--Procedure---When fraud was apparent and visible from the record then it was not necessary to record evidence for deciding application filed under S.12(2), C.P.C.

(c) Islamic law---

----Inheritance---Islam had determined the shares of women and children in the inheritance---Islam does not only give women a social and legal personality with men but also gives the rights of inheritance as mother, daughter, sister, grandmother and granddaughter etc. by mentioning their relations / shares separately---Such rights could not be taken away from them through deceitful and fraudulent act.

(d) Fraud---

----Fraud would vitiate all the proceedings.

2017 C L C 1644

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

SAGHIR AHMAD----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power, Islamabad and 3 others----Respondents

W.P. No.9967 of 2015, decided on 16th November, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy decision---Contractual employment---Vested right---Petitioner was working with respondent company on temporary basis till the selection of a suitable candidate on the relevant post---Petitioner was aggrieved of the press advertisement made by respondent company regarding post in question---Validity---High Court while exercising jurisdiction under Art.199 of the Constitution, could not interfere in the transparent policy decision of executive, aimed at achieving the best possible result in managing its affairs---High Court had very limited jurisdiction for examining such criteria and such exercise of power could not be interfered with---Petitioner was not in possession of any appointment letter issued by respondent company assigning job to him to the effect that he had become permanent employee of respondent company---Petitioner failed to bring on record any evidence to show that he had at any point of time become employee of respondent company, therefore, he could not be held to be a regular employee---In absence of statutory rules as to terms and conditions of service of an employee. Constitutional petition filed by such employee was not maintainable---Any servant having entered into a contract of service had no vested right to seek regularization of his employment which was discretionary with the master---Master was within his right to retain or dispense with the service of a servant on the basis of satisfactory or otherwise performance---Contract employee had no right to invoke Constitutional jurisdiction where his services were terminated on completion of period of contract---Petition was dismissed in circumstances.

Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144; Chief Executive, Ayub Medical Institution, Abbotabad and another v. Dr.Waqar-ur-Rehman Qureshi and 3 others 2007 SCMR 1442; Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2008 SCMR 773; Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Muhammad Zahir Raja v. Federation of Pakistan and others 2012 SCMR 971; Khurram Iqbal v. Deputy Director Food, D.G. Khan and another 2013 SCMR 55; Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others 2014 SCMR 949; Javed Iqbal Chattha v. Secretary, Government of the Punjab, Agriculture Department, Lahore and 2 others 2008 PLC (C.S.) 1308; Engr. Ghazanfar Ali Khan and others v. F.O.P. and others PLD 2014 Lah. 375; Bashir Ahmad Butt and others v. The State and others PLD 2014 Lah. 394; Syed Shahid Aleem and others v. Pakistan Defence Officers Housing Society through Administrator and others 2005 CLC 1624 and Engineer Ghazanfar Ali Khan and others v. F.O.P. and others 2014 CLD 664 ref.

Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545 and Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 rel.

Muhammad Shahzad Shaukat for Petitioner.

Akhtar Ali Kureshi, Standing Counsel for Pakistan, Akhtar Ali Monga, Adil Bandial and Muhammad Yasin Badar for Respondents.

2017 C L C 1667

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD ZOHAIB----Petitioner

Versus

JUDGE FAMILY COURT, JARANWALA and 2 others----Respondents

W.P. No.9891 of 2016, decided on 29th March, 2016.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance, petition for---D.N.A. test by father---Mother filed suit for recovery of maintenance allowance for the minor wherein husband moved application for conducting D.N.A. test---Contention of husband was that he was not capable of becoming a father---Petition for conducting D.N.A. was dismissed by the Family Court---Validity---Father had neither objected the parentage of minor while filing the written statement nor before any other authority---Petition for conducting of D.N.A. test was moved only to avoid the payment of maintenance allowance---Father, in a casual and leisure manner had levelled a serious allegation upon the mother of minor who remained with him as a wife---Minor who was legitimate son of defendant in view of such allegation would have to live for all time with allegation and title of illegitimacy---Constitutional petition of husband was dismissed in limine with cost of Rs.50,000/- which should be paid to the mother of minor.

Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir PLD 2015 SC 327 rel.

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

----O. VIII, R. 5---Evasive reply---Scope---Evasive reply would amount to admission of claim.

2017 C L C 1679

[Lahore (Multan Bench)]

Before Ali Akbar Qureshi, J

FAZAL CLOTH MILLS LIMITED through authorized Representative and 14 others----Petitioners

Versus

FEDERATION OF PAKISTAN, MINISTRY OF WATER AND POWER through Secretary and 3 others----Respondents

W.P. No.6978 of 2015, decided on 7th January, 2016.

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

----S. 31(4)--- Tariff--- Regulatrory Authority's approval---Notification---Scope---Electricity distribution companies were legally entitled to make recommendation for consumer end tariff and send the same to the Authority/NEPRA for approval---Where the Authority approved the same, the Federal Government had no option but to notify the consumer end tariff, determined by NEPRA, in the official gazette---If the Federal Government had not notified the recommendation in official gazette then it could be held that the same was done, with an intention not to forward the benefit to the public at large given by NEPRA---High Court directed Federal Government to issue notification within specified time accordingly---Constitutional petition was allowed accordingly. .

Malik Muhammad Tariq Rajwana, Barrister Malik Kashif Rafique Rajwana, Sajjad Hussain Tangra, Syed Riaz-ul-Hassan Gillani, Tariq Mehmood Dogar and Rao Qasim for Petitioners.

Sh. Muhammad Naeem Goreeja, Deputy Attorney General for Pakistan.

Aamir Aziz Qazi, Furqan Naveed, Ch. Saleem Akhtar Warraich, Muhammad Maalik Khan Langah, Muhammad Amin Malik and Bilal Amin for Respondents.

2017 C L C 1695

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SAIMA ZAMEER----Appellant

Versus

MUHAMMAD JAVED IQBAL----Respondent

F.A.O. No.419 of 2011, heard on 14th April, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3 & Form 4 of Appendix B---General Clauses Act (X of 1897), S.9---Punjab General Clauses Act (VI of 1956), S.8---Suit on the basis of cheque---Application for leave to appear and defend the suit--- Limitation---Commencement and termination of time---Scope---Trial Court dismissed application for leave to appear and defend the suit being time barred---Validity---Service of summons in summary suit was to be effected through summons available in the Appendix 'B' of Form IV, C.P.C.---Defendant had to obtain leave to appear and defend the suit 'within 10 days from the service'---Service of defendant was effected on 15-04-2011 therefore, within 10 days would mean excluding 15-04-2011---Last date for obtaining leave to appear and defend was 25-04-2011---Application for leave to appear and defend the suit had been filed within prescribed period of limitation---Trial Court had fell in error while holding that application for leave to appear and defend the suit was time barred---Impugned order passed by the Trial Court was set aside---Trial Court was directed to decide the application for leave to appear and defend the suit afresh on merits in accordance with law---Appeal was allowed in circumstances.

Rana Mushtaq Ahmed for Appellant.

Nemo for Respondent.

2017 C L C 1711

[Lahore]

Before Mirza Viqas Rauf, J

GHULAM RASOOL----Petitioner

Versus

ABDUL GHAFOOR and 8 others----Respondents

Civil Revision No.1337 of 2009, heard on 18th October, 2016.

(a) Islamic law---

----Inheritance---Exclusion, principle of---Limitation---Father of defendant (nephew) died prior to the death of his uncle---Mutation of inheritance was sanctioned in favour of nephew and other brother of the deceased in equal share---Validity---Had father of defendant been alive at the time of death of deceased brother then inheritance mutation would have been sanctioned in his favour along with the other brother who was alive at that time---Defendant being nephew of deceased was remote in relation as compared to his other brother---Defendant was not entitled to any share in the estate left by the deceased as nearer in degree would exclude the more remote---Every Court of law was bound to take notice of the question of limitation even if it was not raised by any of the party---Inheritance mutation was wrongly sanctioned depriving the plaintiffs from their legal shares---Plaintiffs being co-sharers would be deemed to be in constructive possession of the property---Rights arising out of the inheritance could not be defeated on account of limitation---Appellate Court had rightly decreed the suit filed by the plaintiffs---No illegality or material irregularity had been pointed out in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed in circumstances.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 distinguished.

United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380; Saadullah and others v. Mst. Gulbanda and others 2014 SCMR 1205; Waris Ali and others v. Rasoolan Bibi PLD 2014 SC 779; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905; Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704 and Mohsin Khan and 3 others v. Ahmad Ali and 2 others PLD 2004 Lah. 1 rel.

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

----O. VIII, R. 5---Specific denial---Scope---Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of defendant should be taken to be admitted.

Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119 and Bashir Ahmed and 3 others v. Muhammad Aslam and 6 others 2003 SCMR 1864 rel.

(c) Pleadings---

----Evidence could only be led with regard to a fact which was specifically asserted in the pleadings and no such evidence was admissible which was beyond the pleadings.

Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 and Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914 rel.

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

----S. 115---Revision before High Court---Variance between Appellate Court and Trial Court regarding findings of fact---Preference---Preference and regard should be given to the findings of Appellate Court if same were not suffering from any legal infirmity.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Mst. Saeeda through her son Muhammad Abid v. Muhammad Naeem and 3 others PLD 2013 Sindh 39 rel.

Rai Shafiq Ahmad Bhatti for Petitioner.

Ch. Ehsan-ul-Haq Virk for Respondents Nos.1 to 8.

Nemo for Respondent No.9.

2017 C L C 1720

[Lahore]

Before Mirza Viqas Rauf, J

Raja KARAM DAD KHAN----Petitioner

Versus

FAIZ AHMAD through Special Attorney and others----Respondents

Civil Revision No.1518 of 2010, heard on 31st March, 2016.

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

----S. 14---Filing of award by one of several arbitrators---Principle---Two arbitrators were appointed to settle the dispute between the parties, submission of award by one of them was of no legal value.

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

----S. 17---Judgment in terms of award/making award rule of court---Duty of court receiving the award for the purpose of making same the rule of court was to see as to whether it was fit to be maintained or suffered from illegality or any perversity floating on the face of the record, was attached, rendering the same nullity in the eye of law.

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

----S. 26-A---Award to set out reasons---Duty of arbitrator---Arbitrator had to set out reasons for the award in sufficient detail enabling the court to consider any question of law arising out of the same---Award which did not disclose any reasons qua the decision of arbitrator was to be rejected and was not to be approved by Civil Court so as to make it rule of court---In the present case, the manner of proceedings conducted by the arbitrator and submission of court if analyzed in view of objections raised by the petitioner left no room to hold that the same was arbitrary, non-speaking and sketchy which was sufficient to render the award invalid---Revision was allowed.

Umar Din through L.Rs. v. Mst. Shakeela Bibi and others 2009 SCMR 29 rel.

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

----S. 115---Revision---Scope---Conflict in decision of lower courts---Principle---In case of conflict of decision in the Courts below preference was to be given to the decision of lower appellate court, but it was neither a principle of universal application nor inflexible---High Court while exercising revisional powers had to analyze both the decisions independently and to lean in favour of decision which was more appropriate and in accord with law.

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

----Art. 132 ---Deposition not challenged in cross-examination---Principle---When deposition was made to a particular fact and the same was not challenged in cross-examination, the same shall be deemed to be admitted to be true.

Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

Muhammad Naveed Sheikh for Petitioner.

Muhammad Arif Gondal for Respondent No.1.

2017 C L C 1731

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD MUKHTAR and 4 others----Petitioners

Versus

Mst. ZUBAIDA and 2 others----Respondents

C.R. No.2897 of 2010, heard on 13th May, 2016.

(a) Gift---

----Proof---Memo of gift---Basic ingredients with regard to date, venue and names of witnesses to disclose as to when, where and before whom, declaration of gift was made by donor, were missing on the memo. of gift---Intention of oral gift as well as its acceptance had taken place prior to the execution of memo.--Non-disclosure of the ingredients with regard to time, venue and witnesses in the memo. of gift as well as in the plaint would create a serious doubt about declaration of gift---No evidence was led on such points---Basic ingredients of valid gift had not been proved in circumstances.

Pakistan v. Abdul Ghani PLD 1964 SC 68 and Hyder Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another 2012 SCMR 254 rel.

(b) Gift---

----Essentials---Essential features of a valid gift were declaration, its acceptance and delivery of possession in lieu thereof---Where any of the said ingredient was found missing, such transaction could not be declared a valid gift---Prerequisites for valid gift i.e. offer, acceptance and delivery of possession were not proved in the present case---Donees had not proved the essential features of a valid gift in circumstances.

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

-----Arts. 17(2)(a) & 79 ---Gift---Execution of memo. of gift---Proof---Attesting witnesses---Petitioners alleged that their father had gifted suit property in their favour through memo. of gift but respondents alleged the same to be forged, fictitious and result of collusion---Validity---Admittedly, the memo. of gift was attested by two witnesses---Memo. of gift could not be used until two attested witnesses were examined---Petitioners got examined only one attesting witness who failed to depose as to the contents of the document and could not verify his signature or thumb impressions thereon---Said witness could not be treated as an attesting witness---Requirements of law with regard to a valid gift were not fulfilled, in circumstances.

(d) Gift---

----Gift made in favour of some (but not all) legal heirs of donor---Scope---Donor was free to gift out his property to any person of his choice, but when some of the legal heirs were deprived, it was imperative upon the beneficiary to bring on record the special circumstances/motive for depriving other heirs of their due share in the property---Petitioners had failed to provide the required motive in the present case --Petitioners were rightly non-suited in circumstances.

(e) Administration of justice---

----Production of false and forged document by a party in a court---Judicial Officer having found a document to be result of fraud and forgery could have taken suo motu cognizance for committing forgery by the party---High Court observed that if such action was not initiated by the court at appropriate time, other party could approach the concerned quarter for initiating criminal proceedings against the delinquents.

Syed Iqbal Hussain Shah Gillani for Petitioners.

Zahid Hussain Khan for Respondents.

2017 C L C 1747

[Lahore]

Before Mudassir Khalid Abbasi, J

MEMOONA ILYAS----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No.8132 of 2017, heard on 2nd June, 2017.

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

----Ss.12, 25 & 47---Family Courts Act (XXXV of 1964), S.5, Sched. & S.14---Suit for custody of minors by father---Visitations rights of the father---Scope---Guardian Court granted visitation rights to father for meeting children twice a month-- Father moved the Court again for handing over interim custody of children during school summer vacations---Guardian Court partially accepted the application against which father preferred appeal---Appellate Court passed order regarding interim custody to father adding considerable period of summer, winter and spring vacations and also on occasions of Muharram, both Eids and birthdays of minors as well as father's---Mother objected both revised schedules passed by Trial Court as well as Appellate Court---Order passed on application under mien S.12 of Guardians and Wards Act, 1890---Extent---Jurisdiction of Family Court---Scope---Right of appeal---Scope---Petitioner/mother contended that earlier order of visitations rights of father to meet twice a month passed under S.12 of Guardians and Wards Act, 1890 was final, which being interim in nature, was neither reviewable nor appealable in terms of S.47 of Guardians and Wards Act, 1890---Father asserted that Trial Court had ample powers to modify or review its earlier order in the interest of justice and provisions of Guardians and Wards Act, 1890 could not be read in isolation and combined reading of Family Courts Act, 1964 had made the decision of Family Court under Family Courts Act, 1964 appealable in terms of S.14 of the said Act---Validity---Provisions of Guardians and Wards Act, 1890 could not be read in isolation because the legislature, by design, had brought the disputes relating to the guardianship, within the purview of First Sched. of S.5 of the Family Courts Act, 1964, therefore, all the affairs relating to the guardianship would be exclusively triable by the Family Court under the Family Courts Act, 1964 because the statute which was later in time would prevail---In terms of S.14 of Family Courts Act, 1964 while excluding an interim order, a decree or decision given by the Family Court would be appealable---High Court observed that order passed by Family Court/Guardian Court under S.12 of the Guardians and Wards Act, 1890 was appealable under S.14 of Family Courts Act, 1964---Family Court had parental jurisdiction and there was no scope of such jurisdiction for any undue adherence to technicalities and Family Court being quasi-judicial forum could follow its own procedure which was not to be against the principles of fair trial---No legal infirmity or jurisdictional defect having been noticed, constitutional petition was dismissed accordingly.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Aley Nabi and others v. Chairman, Sindh Labour Court and another 1993 SCMR 328; Mst. Zaibun Nisa v. Muhammad Mozammil PLD 1972 Kar. 410; Syed Shamim Ahmad v. Mst. Riaz Fatima PLD 1975 Kar. 448; Muhammad Deen Malik and another v. IInd Additional District Judge, Karachi and 2 others 1982 SCMR 1223; Sakhawat Ali and another v. Mst. Shui Khelay PLD 1981 SC 454; Malik Khizer Hayat Khan Tiwana and another v. Mst. Zainab Begum PLD 1967 SC 402 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore 2014 SCMR 1365 ref.

Mst. Sabira Sultana v. Asif Firdous 2011 YLR 1453 distinguished.

Mushtaq Ahmad Mohal for Petitioner.

Fahad Ahmad Siddiqui for Respondent No.2.

Muhammad Hammad Khan Rai, AAG on Courts call.

2017 C L C 1773

[Lahore (Multan Bench)]

Before Habib Ullah Amir, J

KHIZAR YASEEN and others----Petitioners

Versus

Mst. KHADIJA BIBI and others----Respondents

C.R. No.304 of 2004, heard on 23rd January, 2017.

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

----Ss. 188 & 215---Qanun-e-Shahadat (10 of 1984). Arts.117 & 120---Principal and attorney---Relationship---Transaction by attorney in favor of his legal heir---Onus to prove---Plaintiffs in suit for declaration and permanent injunction, assailed General Power of Attorney executed in favour of defendant and transfer of property in favour of his son and brothers---Suit and appeal were concurrently decided in favour of plaintiffs by Trial Court and Lower Appellate Court respectively---Validity---Once there was transaction of sale, defendants were bound to establish as burden was on attorney to prove that such sale was genuine---No such evidence was produced by defendants who were beneficiaries and were burdened with to prove the fact---Specific allegation was that General Power of Attorney was prepared by committing fraud and on the basis of the same, subsequent mutations of exchange and sale were entered and attested---Findings of two courts below were according to law and evidence produced by parties--- Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction under S.115, C.P.C., exercised by High Court was attracted only in cases where lower courts had exercised a jurisdiction not vested in it by law or it had failed to exercise jurisdiction so vested in it or while exercising jurisdiction to courts below acted illegally or had committed material irregularity---High Court while exercising revisional jurisdiction could not disturb finding of fact arrived at by lower court in proper exercise of jurisdiction vested in court and upon consideration of relevant evidence on record---Finding of facts by lower court could only be disturbed in revisional jurisdiction by High Court if it was found to be fanciful, perverse or arrived at by a process which had rendered exercise of jurisdiction vested in court defectively.

Zafar Yasin and 2 others v. Abdur Rashid Khan and others PLJ 2002 Lahore 1982; Akhtar Zaman v. Additional District Judge and others 2003 YLR 696; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Maqsood Ahmad and another v. Muhammad Razzaque and 9 others PLD 2009 SC (AJ&K) 13; Muhammad Yousaf v. Muhammad Ramzan and another 2010 YLR 3222; Khushi Muhammad and 2 others v. Jannat Bibi 2004 CLC 1747 ;Asif Raees Ahmad v. Mst. Zubaida Bibi and another 2005 YLR 2761; Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618; Muhammad Ishaq v. Member (R), Board of Revenue, Punjab, Lahore and 18 others 1994 MLD 2254; Faqir Taj and others v. Mst. Shamsho and others 2003 YLR 894 and Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 ref.

Mian Muhammad Akram for Petitioners.

Syed Muhammad Ali Gillani for Respondents.

2017 C L C 1793

[Lahore]

Before Amin-ud-Din Khan, J

BAHRIA TOWN (PVT.) LIMITED through Administrator----Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 11 others----Respondents

Writ Petitions Nos.26529 of 2015, 2580, 2587, 2590 of 2016, 1743, 2449, 2575, 22396 and 26752 of 2017, heard on 14th July, 2017.

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

----O. XXVI, R. 9---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Art.199---Appointment of Local Commission in constitutional jurisdiction of the High Court---Scope---Provincial Government acquired land belonging to a private housing society for construction of a road---Application was made by petitioner-Housing Society for appointment of a Local Commission to suggest alternate routes for the road that did not cut through the housing society; held, that the matter agitated before the High Court was through its jurisdiction under Art.199 of the Constitution, therefore, the court could not go into the factual controversy and also could not create evidence for the benefit of any of the parties---Further it was the prerogative of the court, in case of need, to get information or local investigation for the assistance of the court---In the present case the court did not feel any necessity for appointment of Local Commission to get information about the alternate routes---Application was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Fair trial and due process was a right of every citizen---Even where an 'Act' did not provide such right, the same could be read into the "Act".

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

----Ss. 4, 5, 5-A & 17---Constitution of Pakistan, Arts.10-A & 23---Reasonable restrictions upon acquisition and holding of property---Scope---Land belonging to a private Housing Society acquired by the Provincial Government for construction of a road---Plea of petitioner-Housing Society that Ss.4, 5, 5-A & 17 of the Land Acquisition Act, 1894 were in contradiction to the right of fair trial provided under Art.10-A of the Constitution---Validity---Reasonable restriction upon proprietary rights could be imposed by law in the public interest [Art.23 of the Constitution]---Petitioner had admitted that the purpose of acquisition was for a public purpose---In such circumstances the imposition of reasonable restriction upon the acquisition and holding of the land was constitutional---Constitutional petition challenging vires of Ss.4, 5, 5-A & 17 of the Land Acquisition Act, 1894 were dismissed accordingly.

Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another PLD 2008 SC 335 and Anjuman Mutasareen Garments City Sheikhupura and others v. Government of the Punjab through Chief Secretary, Civil Secretariat Lahore and others C.Ps. Nos.400 and 401 of 2014 ref.

(d) Interpretation of Constitution---

----Principles.

Principles of interpretation (of Constitution) were as follows:

(i) The Constitution was a fundamental or organic or supreme law standing on a somewhat higher position than the other laws of the country.

(ii) The Constitution was the source from which all government power emanated and it defined its scope and ambit so that each functionary should act within his respective sphere.

(iii) The Courts were creatures of the Constitution; they derived their powers and jurisdictions from the Constitution and must confine themselves within the limits set by the Constitution.

(iv) Under a Constitution prescribing a system where there was a trichotomy of sovereign powers, the judicial power, must from the very nature of things, be vested in the judiciary.

(v) Judiciary had the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it was a provision seeking to oust its own jurisdiction.

(vi) Ouster of jurisdiction of courts was not to be readily inferred, because, the consistent rule was that provisions seeking to oust the jurisdiction of superior Courts, even a constitutional provision, were to be construed strictly with a pronounced leaning against ouster.

(vii) It was not, however, the function of the judiciary to legislate or to question the wisdom of the law-giver if the law had been competently made without transgressing the limitations of the Constitution. If a law had been competently made the judiciary could not refuse to enforce it even if the result was to nullify its own decisions.

(viii) The law-giver also had every right to change, amend or clarify the law if the judiciary had found that the language used conveyed an intent different from that which was sought to be conveyed by the law-giver.

(ix) The Constitution had to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution.

(x) As far as possible each provision of the Constitution should be construed so as to harmonize with all the others."

Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Hamad Khan and others PLD 1974 SC 151 quoted.

(e) Notification---

----Publication of notification in official gazette---Presumption---Notification issued in the official gazette had a presumption of notice to all.

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

----S. 17(4)---Special power in cases of urgency---Land belonging to a private Housing Society acquired by the Provincial Government on urgent basis under S. 17(4) of the Land Acquisition Act, 1894 for construction of a road---Legality---Petitioner-Housing Society had admitted that the acquisition of the land was for a public purpose---When a party did not dispute the acquisition of land for public purpose, no other valid objection remained with the party, except the delay in process of acquisition---Land in dispute belonging to the Housing Society was 501-kanals 6-marlas 105-square foot, whereas the total land acquired for the road project was 3098-kanals 14-marlas and 86-square foot---Share of land of petitioner came to less than 1/6th of the total acquired land---Other fourteen Housing Societies, whose land was also acquired for the construction of the road, had not challenged the process of acquisition and most of them had settled the matter through negotiation with the acquiring agency---When most of the Societies or the land owners had consented to the acquisition, the issuance of notification under S.17(4) of the Land Acquisition Act, 1894 was beneficial for the owners---Petitioner-Housing Society had itself acquired the land after issuance of notification under S. 4 of the Land Acquisition Act, 1894 and prepared a housing scheme in clear violation of the relevant law and rules---Even otherwise most of the land in dispute was allotted for roads and other public amenities which became the ownership of Development Authority under the law being utility plots---Petitioner transferred such utility plots to private persons for construction of residential houses---No illegality, in circumstances had been committed while setting in motion the emergency/urgency provisions of S. 17(4) of the Land Acquisition Act, 1894---Notification issued by the acquiring agency under the said section had not prejudiced the petitioner---Constitutional petition was dismissed accordingly.

Sardar Dildar Ahmad Cheema v. Board of Revenue, Punjab through Member (Revenue) and others PLD 2013 Lah. 565 ref.

(g) Equity---

----Person who sought equity, must do equity and must come to the court with clean hands.

Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28 and Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388 ref.

(h) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Disputed question of fact could not be resolved by the High Court in exercise of such jurisdiction.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 ref.

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

----S. 4---Land acquisition---Question as to which particular land was to be acquired---Determining the suitability of the land was the prerogative of the acquiring agency.

Muhammad Shafi and 8 others v. Multan Development Authority, Multan through Director-General, Multan and 7 others 2010 YLR 1161 ref.

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

----S. 4---Land acquired for a project---Priority of project---Determining the priority of a project fell within the exclusive domain of the Government.

Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167 ref.

Kh. Ahmad Tariq Rahim, Muhammad Azhar Siddique, Agha Abul Hassan Arif, Kh. Hassam Tariq Rahim, Abdullah Malik, S. Parveen Mughal, M. Rizwan Gujjar, Syed Shahbaz Shah, Shahzad Maqsood and Mafia Kousar for Petitioners.

Ms. Samia Khalid, Additional Advocate-General Punjab assisted by Syed Tassadaq Mustafa Naqvi, along with Abdullah Khan Sumbal, Commissioner Lahore Division, Suhail Khawaja, Director (Estate Management) LRRA, Sh. Farooq Hussain, Deputy Director (Legal) LRRA and Wajid Iqbal, Land Officer LRRA for Respondents Nos. 1, 2, 5, 7, 9, 10 and 12.

Ch. Mushtaq Ahmad Khan, Rizwan Mushtaq, Ahmad Awais, Ashfaq Qayyum Cheema, Syed Moazzam Ali Shah, Waheed Ahmad, Ali Ahmad, Moeen Ahmad, Rai Shahid Saleem Khan for Respondents Nos.3 and 4.

Salman Mansoor for Respondents Nos.6 and 8.

Muhammad Zakariya Sheikh, Deputy Attorney General for Pakistan and Mian Muhammad Ayyub, Assistant Attorney General for Pakistan for Respondent No.11.

2017 C L C 84

[Peshawar]

Before Yahya Afridi, J

SAIFULLAH KHAN BANGASH----Appellant

Versus

JASEEM KHAN and 6 others----Respondents

R.F.A. No.11 of 2007, decided on 14th March, 2016.

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

----Ss. 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.79---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Bona fide purchaser---Protection envisaged under S.41 of Transfer of Property Act, 1882---Conditions---Ostensible owner---Pardanasheen lady---Reasonable care---Scope---One person could not transfer to another a title or a right greater than what he himself possessed---Vendee could not take more than what the vendor could sell---Purchaser/vendor/transferee of an immovable property could only avail the protection provided under S.41 of Transfer of Property Act, 1882 if he fulfilled the conditions---Transferor of suit property, in the present case, was neither true owner nor the ostensible owner of the same but was identifier of Pardanasheen ladies who were true owners and sellers of the disputed property---Fact that consideration amount did not reach the true owners would not affect the transferee's position of making payment of sale consideration for the disputed property---Plaintiff was not bona fide purchaser of suit property and he did not exercise reasonable care for availing protection provided under S.41 of Transfer of Property Act, 1882---Plaintiff had not been able to prove the condition precedent for being entitled to avail the protection provided under S.41 of Transfer of Property Act, 1882---If a single condition precedent was not fulfilled then the purchaser could not avail the protection provided under S.41 of Transfer of Property Act, 1882---Plaintiff had failed to prove agreement to sell as per mandate of Art.79 of Qanun-e-Shahadat, 1984---Plaintiff was not entitled for exercise of discretion in his favour for specific performance of contract---Impugned judgment and decree passed by the Trial Court were based on correct appreciation of evidence---Appeal was dismissed in circumstances.

Syed Asif Shah's case PLD 1991 SC 905 ref.

Kanwal Nain's case PLD 1983 SC 53; Muhammad Afzal's case PLD 2006 SC 84; Haji Abdul Ghafoor Khan's case PLD 2007 SC 433; Mst.Bilqees Begum and others' case PLD 2003 SC 899; Maulana Riazul Hassan's case 1991 SCMR 2513; Mst. Noor-un-Nisa's case 1994 SCMR 2087; Muhammad Bashir's case 2003 SCMR 774; Moulvi Abdul Qadir and others' case 2010 SCMR 1877; Noor Hassan and others' case 2015 SCMR 452 and Hafiz Tassaduq Hussain's case PLD 2011 SC 296 rel.

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

----S. 41---Ostensible owner---Protection under S.41 of Transfer of Property Act, 1882---Conditions---Principles.

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

----S. 41---"Ostensible"---Meaning.

Oxford English Dictionary; Black's Law Dictionary and Mitra's Legal and Commercial Dictionary rel.

(d) Maxim---

----"Nemo dat qui non habet"---Meaning.

(e) Maxim---

----"Nemo plus juris tribuit quam ipse habet"---Meaning.

(f) Maxim---

----"Nemo plus juris in alium transferre potest quam ipse habet"---Meaning.

Abdul Sattar Khan for Appellant.

Zia-ur-Rehman Khan for Respondents.

2017 C L C 256

[Peshawar]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

MALAK NAZ----Petitioner

Versus

BOARD OF GOVERNORS through Secretary and 4 others----Respondents

Writ Petition No.105-P of 2015, decided on 22nd March, 2016.

(a) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Conditions---Appointment of Principal of Medical College---Plea of petitioner was that appointment of respondent as Principal of the College was without lawful authority and of no legal effect---College was a private educational institution---Words "person" and "public office" mentioned in Art.199 of the Constitution---Scope---Medical College did not fall within the ambit of "person" as provided in Art.199(1)(a)(iii) & (1)(b)(iii) of the Constitution as it was neither creation of any statute nor regulated by any Rule or Regulation framed by the Federal or Provincial Government or any local authority---For issuance of writ of quo warranto petitioner was bound to establish that respondent was holding a "public office" and he was not qualified to hold the said office and appointing authority was not competent to appoint him and his appointment was illegal or irregular being in violation of prescribed rules---Any employee of the College could not be deemed to hold a "public office"---Person holding an office in connection with his business entrepreneur or any private institution could not be termed as "holding the public office"---Since respondent was Principal of Private College so he did not hold or occupy a "public office"---Eligibility of respondent for holding the post of the Principal had neither been questioned nor challenged---Writ of quo warranto could not be issued in factual controversy---No rule, regulation or statute had been violated in appointment of respondent as Principal of the College---Petition for writ of quo warranto was dismissed in circumstances.

Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157; Dr. Khalil ur Rehman v. Government of Punjab through Chief Secretary and 5 others 2015 PLC (C.S.) 793; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Arbab Imtiaz Khan v. Assim Jamil Zubedi and another 2011 PLC (C.S.) 482; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Sajid Hussain v. Shah Abdul Latif University Khairpur through Registrar and 4 others PLD 2012 Sindh 232 and Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah. 568 ref.

Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 2 others PLD 1975 SC 244 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto, issuance of---Conditions.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could not be resolved in constitutional jurisdiction.

(d) Constitution of Pakistan---

----Art. 199---'Public office'---Meaning---Term 'public office' would relate to an authority, either executive, administrative or judicial conferred by the Statute.

Naveed Maqsood Sethi for Petitioner.

Syed Arshad Ali for Respondent No.4.

2017 C L C 269

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

NASEEM AKHTAR----Petitioner

Versus

NAVEEDULLAH----Respondent

Writ Petition No.282-B of 2012, decided on 22nd May, 2014.

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

----S. 5, Sched---Constitution of Pakistan, Art.199---Constitutional petition---Suit for jactitation of marriage---Dissolution of marriage on the basis of khula---Scope---Suit for jactitation of marriage was dismissed but marriage was dissolved on the basis of khula---Validity---Wife had not prayed for dissolution of marriage in the plaint but she was not ready to live with the husband as a wife---Claim of wife with regard to jactitation of marriage was found false---Parties had reached to such climax that they could not live as husband and wife together due to refusal of wife to live with husband at any cost and her desertion as well as registration of criminal case---Family Court had rightly come to the conclusion that dissolution of marriage was the only just option to part ways between the parties on basis of khula---Both the courts below had rightly exercised their jurisdiction according to law and attended to all the material aspects of the case and had considered each and every important piece of evidence---No illegality, material irregularity, misreading or non-reading of material evidence had been pointed out---Constitutional petition was dismissed, in circumstances.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Ali Jan v. Mst. Akbar and others 2001 CLC 507; Mst. Naseem Akhter v. Muhammad Rafique and others PLD 2005 SC 293 and Muhammad Akram v. Senior Civil Judge, Family Court and others 2006 YLR 2204 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, while exercising constitutional jurisdiction had to see as to whether courts below had committed jurisdictional error, not condonable in nature or had committed legal error causing miscarriage of justice---High Court, in exercise of constitutional jurisdiction, could not decide the matter as court of appeal, by making reappraisal of evidence and could not form a different opinion from the one concurrently held by the courts below.

Muhammad Husain Munir and others v. Sikandar and others PLD 1974 SC 139 and Bakht Zada v. Mst. Joomreza and 2 others 2007 MLD 570 rel.

Asghar Ali Khan for Petitioner.

Malik Akhtar Nawaz for Respondent.

2017 C L C 277

[Peshawar]

Before Mazhar Alam Khan Miankhel, CJ

NADIR KHAN and 5 others----Petitioners

Versus

MUQADAR KHAN and 13 others----Respondents

Civil Revision No.872-P of 2010, decided on 22nd February, 2016.

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

----Arts. 49, 79, 80 & 117---Suit for declaration---Execution of sale deed---Document---Proof---Transaction with Pardanasheen lady---Long standing entries in the revenue record--- Scope---Contention of plaintiffs was that they were owners in possession of suit property and alleged mutation in favour of defendants was based on fraud---Suit was decreed concurrently---Validity---Whoever desired court to give judgment as to any right or liability dependent on existence of fact must prove such facts---Plaintiff had failed to prove the alleged sale as well as execution and contents of sale deed--If a document was required by law to be attested, same should not be used as evidence until two attesting witnesses at least had been called for the purpose of proving its execution---If no such attesting witnesses were found, it must be proved that witnesses had either died or could not be found and document was executed by the person who purported to have done so---Mere production of sale deed would not absolve the plaintiffs from proving the contents of the same---Mere statement of plaintiffs with regard to death of witnesses of disputed sale deed would not absolve and exonerate them of their obligation to prove the contents of the same---Burden of proof would lie on the person claiming benefit and title from the transaction with old infirm, illiterate persons, women under influence of elders of family and parda observing ladies---Plaintiffs being beneficiaries of disputed sale had to discharge their burden but they had failed---Defendants being co-owners and co-sharers were owners in every inch of joint property till partitioned--Plaintiffs had failed to prove sale deed through cogent and tangible evidence---Long standing entries in the revenue record were in favour of defendants and plaintiffs had failed to rebut the said entries through evidence---Long standing entries in the register of record of rights would carry presumption of truth and could not be controverted by mere oral evidence unless proved otherwise by sufficient evidence---Courts below had ignored the facts and circumstances of the case reflecting from the record and evidence---Findings recorded by the courts below were illegal, result of misreading and non-reading of evidence---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Revision was allowed in circumstances.

Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704 ref.

Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Dawa through L.Rs and others v. Muhammad Tayyab 2013 SCMR 1113 and Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---When concurrent findings of facts recorded by the courts below were result of misreading and non-reading of evidence and there was violation of law then High Court should rectify such error by interference in such illegal findings.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 and Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

Muhammad Asif for Petitioners.

Waheed-ur-Rehman for Respondents.

2017 C L C 366

[Peshawar (Abbottabad Bench]

Before Muhammad Ghazanfar Khan, J

GHAZI KHAN and others----Petitioners

Versus

AZIZ-UR-REHMAN----Respondent

Civil Revision No.206-A of 2012, decided on 19th October, 2016.

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

----Art. 84---Registered deed---Comparison of thumb impression---Scope---Original deed was never produced before the Trial Court---Courts below had relied upon the report of Fingerprint Expert---Trial Court had examined the thumb impression of defendant on the impugned deed with the thumb impression taken by the Court during proceedings of a criminal case---Validity---Trial Court should have either sent the original deed along with admitted thumb impression to the Fingerprint Expert or could have itself examined the difference or otherwise between the thumb impressions---When original deed was available before the Trial Court, it was imperative upon the Court to have compared the thumb impression with the admitted thumb impression available on the original deed---Statement of one of the witnesses was not completed---Nothing was on record as to why statement of Fingerprint Expert was relied upon which was recorded in a criminal case---Impugned judgments and decrees passed by the courts below were set aside---Case was remanded to the Trial Court for decision afresh after giving an opportunity to produce original deed and if so needed comparison of thumb impression with admitted thumb impression was to be undertaken---Revision was allowed in circumstances.

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

----Art. 47---Reading evidence of a witness recorded in the previous proceedings---Requirements---Court could read evidence of a witness recorded in previous judicial proceedings if he was dead or could not be found or incapable of giving evidence or kept out of way by the adverse party or his presence could not be obtained without delay or expense.

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

----S. 151---Inherent powers---Scope---Court could make such orders as might be necessary for the ends of justice or to prevent the abuse of process of Court.

Mehboob Ali for Petitioners.

Muhammad Nawaz Khan for Respondent.

2017 C L C 378

[Peshawar]

Before Mazhar Alam Khan Miankhel, CJ and Muhammad Younis Thaheem, J

SHER SHAH----Petitioner

Versus

ALAM SHER----Respondent

C.M. 312-P of 2015 in R.F.A. No.96-P of 2014, decided on 24th February, 2016.

Civil Procedure Code (V of 1908)---

----Ss. 96, 151, 153, 107, O. I, R. 10 & O. XLI, Rr. 20, 33---Impleadment of party to the appeal---Power of appellate court---Scope---Contention of appellant was that one of the plaintiff could not be impleaded in the appeal due to inadvertence and over-sight---Validity---One of the plaintiff was not arrayed as a party in the appeal inadvertently---Appellate court had same powers which were exercised by the court in its original jurisdiction with regard to suits as appeal was continuation of suit---Appellate Court could pass order to implead a person as party to the appeal if inadvertently it had not been arrayed therein---Office was directed to enter the name of said plaintiff as respondent in the original appeal whose name was not mentioned therein---Application for impleadment was allowed in circumstances.

1993 SCMR 2149; 1999 SCMR 1060 and M/s AIMS Corporation (Pvt.) Ltd. and others v. Habib Bank Ltd. 2014 CLD 107 ref.

PLD 1993 SC 418 and PLD 1989 SC 532 rel.

Ghulam Mohyuddin Malik for Applicant/appellant.

2017 C L C 436

[Peshawar (D.I. Khan Bench)]

Before Haider Ali Khan, J

Mst. JANAT BIBI through L.Rs.----Petitioner

Versus

ASLAM KHAN and 13 others----Respondents

Civil Revision No.42-B of 2010, decided on 20th April, 2016.

(a) Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 3---Succession---Limitation---Custom---Whenever dispute had come before the court of law with regard to succession to the estate of deceased Muslim he would be deemed to have died under the domain of Muslim Law even if death had taken place before coming into force of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935---Daughters of deceased could not be deprived on the basis of custom rather they would be entitled to their shari share as provided in Islamic Law---Plaintiffs being daughters of deceased were entitled to their shari legal share under the divine law which could not be extinguished by any instrument of mutation---Plaintiffs became co-sharers in the property on the death of propositus---Possession of one co-heir/co-sharer would be deemed to be held on behalf of all co-heirs/co-sharers---Limitation would not run against co-sharer---Every successive adverse entry in the revenue record would give a fresh cause of action---Suit of plaintiffs being a matter of inheritance was within time---No illegal act or wrong entry could be legitimized with efflux of time howsoever long it might be---Appellate Court had committed illegality while setting aside the judgment and decree of Trial Court---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Suit filed by the plaintiffs was decreed---Revision was allowed in circumstances.

Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 and Mst. Suban v. Allah Ditta and others 2007 SCMR 635 rel.

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

----O. VIII, R. 5---Evasive denial---Scope---Evasive denial would amount to admission.

(c) Islamic law---

----Inheritance---Co-sharer---No limitation would run against co-sharer.

Sardar Naeem Khan for Petitioner.

Respondent: Ex parte.

2017 C L C 458

[Peshawar (D.I. Khan Bench]

Before Muhammad Younis Thaheem, J

HABIBULLAH KHAN and another----Petitioners

Versus

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

C.R. No.30-B of 2010, decided on 18th September, 2015.

Gift---

----Ingredients---Plaintiff had failed to prove the factum of gift from her mother---Possession of suit property was not with the plaintiff---Mother of plaintiff was not owner of suit property---Person who was not owner of property could not transfer the same through gift or sale---Plaintiff had failed to substantiate her claim by producing cogent and coherent evidence---Appellate Court had committed illegality while passing the impugned judgment---Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed---Revision was accepted in circumstances.

Abdur Rasheed Marwat for Petitioners.

Sheikh Fazlur Rehman for Respondents.

2017 C L C 617

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Ikramullah Khan, J

Air Marshal (R) Syed QAISER HUSSAIN----Appellant

Versus

SAJID HUSSAIN TOORI and 4 others----Respondents

Election Appeal No.4 of 2014, decided on 3rd November, 2016.

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

----Ss. 55(3) & 63(a)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Procedure---Election for the seat of Member National Assembly---Election Tribunal dismissed the election petition on the grounds that same was not signed and annexures were not attested---Validity---Each page of election petition, in the present case, had been signed by the petitioner; verification of the petition had also been signed by the petitioner duly attested by the Oath Commissioner; annexures were also signed by the petitioner and at the end of an affidavit/verification had been given on a separate page---Memo of appeal had signatures of the appellant---Appellant, in circumstances, could not be ousted on the alleged short coming which could be termed as a hyper technicality---Law required that each and every schedule and annexure had to be verified on oath but single verification on a separate page verifying all the annexures would be substantial compliance of the law---Impugned judgment passed by the Election Tribunal was set aside and election petition was sent back to the Election Commission for entrusting the same to Election Tribunal for decision on merits---Appeal was allowed in circumstances.

Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 and Ch. Muhammad Ayaz v. Asif Mehmood and others 2016 SCMR 849 ref.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; S.M. Ayub v. Syed Yousaf Shah and others PLD 1967 SC 486; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza PLD 2005 SC 600; Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others 2010 SCMR 1877; Hussain Warraich v. Amir Iqbal and others 2015 SCMR 1186 and Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others 2016 SCMR 750 rel.

(b) Administration of justice---

----Technically should not be allowed to be a stumbling block in the way of dispensation of justice.

Taipu Sultan Makhdoom and Syed Abuzar Pirzada for Appellant.

Ghulam Mohyuddin for Respondents.

2017 C L C 764

[Peshawar]

Before Nisar Hussain Khan and Muhammad Younis Thaheem, JJ

BEHRAM KHAN and 3 others----Appellants

Versus

DISTRICT OFFICER REVENUE AND ESTATE/COLLECTOR DISTRICT NOWSHERA and others----Respondents

R.F.A. No.154-P of 2010, decided on 8th December, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference---Market value determination of---Procedure---No sale mutation had been attested in the mouza in which land was acquired till the initiation of acquisition process which could be one of the factors to determine just and fair market value of acquired land--- Evidence produced by the plaintiffs was not sufficient to determine the market value of suit property---Plaintiffs moved application for appointment of local commission but said application was dismissed---Just and appropriate price for compensation in absence of one year average price in the same mouza or adjacent mawazat could only be determined by appointing local commission---Impugned judgment and decree passed by the Referee Judge was set aside---Case was remanded to the Trial Court with the direction to appoint local commission with the consent of both the parties for ascertaining market value of acquired land with reference to its location, potentiality, proximity to road, building sites and other relevant factors should also be considered.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 rel.

Mazullah Barkandi for Appellants.

Rab Nawaz Khan, A.A.-G. for Respondents.

2017 C L C 784

[Peshawar (Abbottabad Bench]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

DISTRICT NAZIM, TORGHAR and another----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA LOCAL GOVERNMENNT, ELECTIONS AND RURAL DEVELOPMENT and others----Respondents

Writ Petition No.372-A of 2016, decided on 13th June, 2016.

Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 84---District Nazim and Naib Nazim---No-confidence motion---Contention of petitioners was that alleged no confidence notice was illegal, void and nullity in the eye of law---Validity---No-confidence motion was part of a democratic process---Elected representatives of Local Government should be prepared to face no-confidence and defeat the same through democratic process---Continuing confidence of District Council was sine qua non for smooth functioning of District Government---High Court, under constitutional jurisdiction, was not the forum to adjudicate upon the bona fide or mala fide on the part of petitioners---Courts were meant for adjudication of cases on merits in accordance with law and Constitution---Constitutional petition was dismissed in circumstances.

2004 YLR 1979 distinguished.

Rashid-ul-Haq Qazi for Petitioners.

Muhammad Naeem Abbasi, AAG, for Respondents Nos.1 to 5 and 8.

Junaid Anwar Khan for Respondents Nos.9 to 24.

2017 C L C 874

[Peshawar]

Before Nisar Hussain Khan, J

MEHBOOB ALI alias MAQBALI and another----Petitioners

Versus

ARBAB ATHAR KHAN and 3 others----Respondents

Writ Petition No.714-P of 2012, decided on 19th December, 2016.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 122--- Settlement of boundaries--- Ejectment proceedings---Procedure---Petitioner was aggrieved of proceedings initiated by Revenue authorities for recovery of excess land in his possession---Validity---Rules making power, by virtue of S.122(2) of Khyber Pakhtunkhwa Land Revenue Act, 1967, was vested in the Board of Revenue which had not been exercised nor invoked by Khyber Pakhtunkhwa Board of Revenue to frame Rules for the purpose of S.122 of Khyber Pakhtunkhwa Land Revenue Act, 1967---In absence of such Rules, in Khyber Pakhtunkhwa province, laws of other Province, not adopted by any statutory instrument, could not be applied---Order passed by Revenue authorities for eviction of petitioners and handing over possession to respondents was illegal and without jurisdiction, being not backed by any law and Rules---High Court set aside the orders passed, proceedings initiated and action taken without jurisdiction, as the same was amenable to judicial review under Constitutional jurisdiction---Constitutional petition was allowed in circumstances.

Abdul Sattar Khan for Petitioner.

Ghulam Mohyuddin Malik for Respondents.

2017 C L C 896

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

SADEEQ KHAN and another----Petitioners

Versus

EXECUTIVE DISTRICT OFFICER and 6 others----Respondents

Civil Revision No.72-B of 2014, decided on 25th January, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Money suit---Contract for construction---Claim for payment of escalation in price of material---Scope---Plaintiffs being government contractors completed construction work---Provincial Government due to high rise in the prices of building material gave relief package to the contractors but plaintiffs were not given the said relief---Plaintiffs filed suit for payment of "escalation amount" but same was dismissed---Validity---Provincial Government had issued notification for payment of escalation amount to the contractors as per schedule of rates for the year 1999 due to increase in the prices of building materials---Both the courts below had failed to appreciate and interpret the said notification in its true perspective---Impugned judgments passed by both the courts below were result of mis-reading and non-reading of evidence---Plaintiffs had a cause of action and locus standi who were deprived from the relief in the shape of payment of escalation amount---Judgments and decrees passed by both the courts below were set aside and suit was decreed along with profit at the rate of 6% to be calculated by the Trial Court---Plaintiffs were directed to deposit court fee according to decretal amount calculated during final decree---Revision was allowed accordingly.

Ziaur Rehman Kazi for Petitioner.

Qudrat Ullah Khan Gandapur, A.A.G. for Respondents.

2017 C L C 908

[Peshawar (Mingora Bench Dar-ul-Qaza]

Before Ikramullah Khan, J

PROVINCIAL GOVERNMENT OF N.W.F.P. through Chief Secretary and 5 others----Petitioners

Versus

MOHAMMAD RAZIQ and 13 others----Respondents

Civil Revision No.923-M and 835 of 2007, decided on 9th November, 2016.

(a) Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----Ss. 29, 25, 34, 10, 11 & 92---Protected forest---Bar of jurisdiction of Civil Court---Scope---Provincial Government declared forest land as protected forests---Validity---No one so far had claimed proprietary rights in or over forest declared to be State property---Provincial Government was justified to declare all the forest and waste land as protected forest subject to payment of royalty amount determined by it---Only those persons who were members of proprietary body of village Shamilat/land could claim their rights if any insofar as ownership over trees of forest was concerned---Right holders if they were not owners could also claim their rights declared by the Provincial Government under Khyber Pakhtunkhwa Forest Ordinance, 2002---S.92 of Khyber Pakhtunkhwa Forest Ordinance, 2002 excluded the jurisdiction of Civil Court in matters of implementation of said Ordinance or rules made thereunder---Plaintiff had failed to prove that he was a land owner or holder of any right declared by the Provincial Government---Present suit had been instituted in the year 2003 when Khyber Pakhtunkhwa Forest Ordinance, 2002 was applicable in the area---Civil Court had no jurisdiction to entertain or adjudicate upon the matters with regard to claim in or over the protected forest---Claimant who could claim any right in term of S.10 or 11 of Khyber Pakhtunkhwa Forest Ordinance, 2002 had to take recourse to the concerned authorities or Board constituted by the Provincial Government for the purpose---Any person aggrieved by any decision of the Board might invoke the jurisdiction of appellate or revisional authorities---Board could determine whether any land which was not declared as forest should be excluded therefrom---Claims of ownership and other rights should be determined by the Board in accordance with law and rules---Impugned judgments and decrees passed by the courts below were set aside---Plaint was returned to the plaintiffs for presentation before competent forum---Revision was allowed in circumstances.

Major Azam Khan Affandi v. Deputy Commissioner, Swat and 7 others 2000 SCMR 548; Government of NWFP and others v. Khair-ul-Bashar 2004 CLC 296 and Government of NWFP and others v. Bakht Jamal and others PLD 2004 Pesh. 801 rel.

(b) Administration of justice---

----Act to be performed either in accordance with law or not otherwise.

Nemo for Petitioners.

Nemo for Respondents.

2017 C L C 923

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

MUHAMMAD IDREES----Appellant

Versus

Hafiz MUHAMMAD YAQOOB and 2 others----Respondents

RFA No.49-D of 2011, decided on 22nd February, 2016.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad---Proof---Requirement---Case record showed that registered notice of Talb-i-Ishhad was not received by vendee/defendant or any lawful attorney---Admittedly, notice of Talb-i-Ishhad was received by a person alien to the present litigation---When Talb-i-Ishhad was not proved, further merits of the case were not to be discussed---Appeal was dismissed.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 34---Civil Procedure Code (V of 1908), Preamble---Suit for pre-emption---Applicability of Civil Procedure Code, 1908---Scope---Provisions of Civil Procedure Code, 1908 had been made mutatis mutandis applicable to Khyber Pakhtunkhwa Pre-emption Act, 1987, however, court could not apply every provision without application of judicial mind.

2013 SCMR 721; 2013 SCMR 866 and 2007 SCMR 1105 ref.

S. Mastan Ali Zaidi for Appellant.

Ahmad Ali Khan for Respondents.

2017 C L C 937

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

MUHAMMAD NAHEEM and others----Petitioners

Versus

The COLLECTOR and others----Respondents

Writ Petitions Nos.117-A of 2013, 851-A and 891-A of 2015, decided on 16th May, 2016.

Land Acquisition Act (I of 1894)---

----S. 18---Land acquisition---Enhancement of compensation---Execution petition by the landowners for payment of enhanced rate of compensation who were not party to the proceedings for enhancement---Scope---Petitioners-landowners who were not party to the proceedings for enhancement of compensation moved execution petition for payment of enhanced rate of compensation but same was dismissed by the Executing Court---Validity---Determination of compensation had attained finality---Benefit of enhanced rate of compensation was also to be extended to the petitioners-landowners (who were not party to the proceedings)---Impugned order passed by the Executing Court was set aside while restoring the execution petition---Execution petition filed by the petitioners-landowners should be deemed to be pending before the Executing Court for proceeding with the same in accordance with law treating the petitioners as decree holders in the case---Constitutional petition was disposed of accordingly.

PLD 2010 SC 878 rel.

Muhammad Ayub and Abdur Rauf Khan Jadoon for Petitioners.

Muhammad Naeem Abbasi, A.A.-G. and Aurangzeb Mughal, D.A.-G. for Respondents.

2017 C L C 969

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

AHMAD SAEED SHAH----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Education, Islamabad and 3 others----Respondents

Writ Petition No.1186-P of 2014, decided on 18th February, 2016.

Pakistan Engineering Council Act (V of 1976)---

----Ss. 14, 16(1) & 27---Petitioner-student got completed study from engineering college having no accreditation by the Pakistan Engineering Council---Petitioner-student approached the university for accreditation by Pakistan Engineering Council which was refused---Validity---Petitioner had remained student of the college which was affiliated with the University of Engineering and Technology---Petitioner-student had been awarded degree but neither his course nor the institution where they studied was accredited by the Pakistan Engineering Council---College from where petitioner-student completed engineering programme did not fulfil the criteria for establishment of the programme and was not recognized by the Engineering Council---Completion of studies and getting the degree in the program would neither confer vested right on the student to claim recognition as professional engineer nor Pakistan Engineering Council was bound to grant accreditation or registration---Pakistan Engineering Council had not acted against the law on the subject---High Court directed that University of Engineering and Technology should ensure that students of any engineering college in private sector should not be allowed to sit in the examination unless the authorities of the private affiliated college had provided certificate of accreditation/recognition by Pakistan Engineering Council and certificate of affiliation granted by the university that the private college had maintained the standard approved by the governing body of the university at the time of affiliation before allowing the students for examination; that Higher Education Commission should be provided representation in affiliation committee of the university while granting affiliation to a private engineering college and affiliated college should be liable to present annual report with regard to affiliated courses and its accreditation with Pakistan Engineering Council and that grant of affiliation must be in accordance with the parameters provided by the Pakistan Engineering Council and no college should be granted affiliation or renewal of affiliation for any academic session until and unless accredited by Pakistan Engineering Council---College authorities were directed by High Court to return the entire amount charged/received from the students on account of admission/tuition fee etc for all semesters within two months---Constitutional petition was disposed of accordingly.

Muhammad Siddique v. University of Sindh PLD 1996 SC 182 rel.

Ijaz Anwar for Petitioner.

Waseem Uddin Khattak for Respondent No.2.

Muhammad Ali for Respondent No.4.

2017 C L C 1160

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

AMJAD REHMAN and 3 others----Appellants

Versus

FAHAD ALI and another----Respondents

Cr. Appeal No.49-A of 2016, decided on 5th May, 2016.

(a) Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss. 13 & 15---Jurisdiction of Consumer Court---Scope---Complaint before Consumer Court---Maintainability---Respondent had challenged the act of appellant (Gas Company) by disconnecting the gas supply connection and demand of gas bill issued wrongly, by filing complaint before the Consumer Court---Said complaint was allowed by the Trial Court---(Gas Company) contended that Consumer Court passed order without jurisdiction, against law and facts---Validity---Matter in issue was directly and exclusively pertained to providing of services by the Gas Supply Company to its customer---Consumer Court could charge such a defaulter or a person responsible for causing any infringement of rights of consumer---In the present case, respondent had not registered any such grievance, which provided jurisdiction to the Consumer Court with regard to any defect in the goods or services provided to the respondent by the appellant---Matter pertained to dispute over, the gas bill, which could not be resolved by Consumer Court---Respondent on the one hand was stated to be defaulter while on the other hand, he had used unsanctioned excessive load, for which he had not paid---Such complicated and technical question could not be resolved by Consumer Court as jurisdiction conferred upon said court was not that of a civil court---Consumer Court, in circumstances, had passed order without jurisdiction---Appeal was allowed by setting aside the impugned order.

(b) Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

-----S. 17---Appeal against order---Maintainability---No bar was placed on appeal against any order passed by the Consumer Court.

(c) Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----S. 2(o)---Jurisdiction of Consumer Court---Scope---Jurisdiction of Consumer Court was not exhaustive but limited to the extent and manner as provided under the Act.

M/s. Nulab CNG Filling Station v. Managing Director, Sui Northern Gas Pipeline Limited and 4 others PLD 2013 Pesh. 9 and Sui Northern Gas Pipe Lines Limited through its General Manager v. Shahzada Khush Bakht Khan PLJ 2015 Lahore 183 rel.

(d) Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss. 13 & 15---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), S.43---Gas (Theft and Recovery) Act, (XI of 2016), S.6---Jurisdiction of Consumer Court---Complaint before Consumer Court---Maintainability---Respondent had challenged the act of petitioner (Gas Company) for disconnecting the gas supply connection and demand of gas bill issued wrongly, by filing complaint before the Consumer Court---Validity---Grievance of aggrieved person could be resolved through the mechanism provided by Oil and Gas Regulatory Authority Ordinance, 2002---Section 43 of the said Ordinance has excluded the operation of any other law---If consumer had a dispute regarding billing or monitoring against a gas utility company, consumer or gas utility company, as the case may be was to file complaint or suit before Gas Utility Court---Circumstances established that Consumer Court had no jurisdiction to entertain the complaint---Appeal was allowed by setting aside the impugned order passed by Consumer Court.

(e) Interpretation of statutes---

----Special law would exclude the application general law.

Inspector General of Police, Punjab Lahore v. Mushtaq Ahmad Warraich PLD 1985 SC 159 rel.

Muhammad Ashraf Hashmi for Appellant.

AAG and Khurram Ghias Khan for Respondent.

2017 C L C 1331

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

ABDUL HALEEM and others----Petitioners

Versus

HABIBULLAH KHAN and others----Respondents

C.R. No.16-B of 2007, decided on 14th September, 2015.

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

----S. 4---Specific Relief Act (I of 1877), Ss.42 & 54---Share of legal heirs of pre-deceased daughter---Scope---Plaintiffs contended that they being legal heirs of pre-deceased daughter were entitled of the share of the legacy of the predecessor/maternal father and inheritance mutations in favour of the defendants was collusive and illegal---Defendants contended that predecessor of plaintiffs was dead at the time when inheritance opened---Defendants further submitted that the provision of S.4 of Muslim Family Laws Ordinance, 1961 had been declared repugnant to the Injunctions of Islam by Federal Shariat Court---Validity---Record depicted that deceased/predecessor died leaving behind four sons and two daughters---One of his daughter and his son had already died in his life time, they were survived by the children when his inheritance mutation was attested---Children of his pre-deceased son and living daughter were given share in his legacy---Plaintiffs had claimed 1/8 shares in the plaint but it was not based on correct legal footing as being the children of pre deceased daughter like living daughter, they were also entitled to 1/9 shares in inheritance mutation---Trial court had fallen into error because of the ground that the plaintiffs were children of pre-deceased daughter and they were excluded from the legacy at the time of inheritance attestation and the judgment of Federal Shariat Court was pending before Supreme Court and its operation had been suspended---Provisions of S.4 of Family Laws Ordinance, 1961, in circumstances, were in existence and in the field and were applicable on all score to the present case---Appellate court below had rightly appraised the evidence brought on record by properly applying the law in field and reached to a correct conclusion ---Moreover, the legal heirs of one pre-deceased son were given the share of the father, so pre-deceased daughter was at par with her brother---Judgment and decree of Appellate Court was upheld---Revision petition was dismissed accordingly.

PLD 2000 FSC 1 distinguished.

H. Zafar Iqbal for Petitioners.

Rustam Khan Kundi for Respondents.

2017 C L C 1597

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUHAMMAD ZAHEER----Petitioner

Versus

SAIMA BIBI----Respondent

W.P. No.177-A of 2015, decided on 24th February, 2016.

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

----S. 5, Sched---Dissolution of marriage---Scope---Wife having extreme aversion to live with the husband could not be compelled to live in the hateful union---No illegality or legal infirmity had been pointed out in the judgment and decree for dissolution of marriage---Constitutional petition was dismissed in circumstances.

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

----S. 5, Sched---Recovery of dower---Scope---Onus of payment of dower was on the husband who could not adduce evidence to prove the payment of the same to the wife---Finding recorded by both the courts were based on proper evaluation of evidence adduced by both the parties---Judgments and decrees passed by both the courts below were based on evidence available on record---Constitutional petition was dismissed in circumstances.

Sardar Muhammad Ashfaq for Petitioner.

Sardar Muhammad Mushtaq for Respondent.

2017 C L C 1622

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MEHMOONA RASHID----Petitioner

Versus

WOMEN MEDICAL COLLEGE and others----Respondents

W.P. No.1147-A of 2015, decided on 17th February, 2016.

Educational institution---

----Withholding of result of final year MBBS---Scope---Petitioner-student appeared in final year MBBS but her result was not declared---Validity---University could not withhold result after a candidate had been allowed to appear in the examination---No justification existed to withhold result of petitioner---University was directed to announce result without further loss of time---Constitutional petition was allowed in circumstances.

Yasir Zahoor Abbasi for Petitioner.

Niaz Khan Jadoon and Asad Tanveer Qureshi for Respondents.

2017 C L C 35

[Balochistan]

Before Muhammad Ejaz Swati and Mrs. Syeda Tahira Safdar, JJ

AMANULLAH-----Petitioner

Versus

SADIA SHAH and others----Respondents

C.Ps. Nos.884 and 885 of 2012, decided on 31st May, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dower amount and maintenance of wife and daughter---Plea of the husband, was that he had paid amount of dower in the shape of property---Trial Court, found that wife was not entitled for dower amount as the husband had proved that he had paid said amount to her in the shape of property---Appellate Court below reversed the findings of the Trial Court---Validity---Wife had herself admitted that property in question had been transferred in her name which fact had been mentioned in the divorce deed---Findings of the Trial Court had been discarded by the Appellate Court below on the ground that no evidence was available on record to show that the amount of dower was paid to the plaintiff, as divorce deed was not produced or exhibited---Findings of the Appellate Court below were based on misconstruction of evidence---Factum of divorce through divorce deed, arrived at between the parties, was neither in dispute, nor contents thereof, were under cloud---Question of non-exhibiting of divorce deed in evidence, would not affect the right of the party, as it was an admitted document---Non-production of divorce deed through evidence, would not change the admitted facts between the parties and it could be concluded that property was transferred in lieu of dower amount---Findings of Appellate Court, were reversed and that of the Trial Court, were upheld, in circumstances---Maintenance of daughter, which had been fixed by the Trial Court having not been assailed were not disturbed---Findings of the Appellate Court below that daughter of the plaintiff, was entitled for maintenance till attaining the age of majority, was not proper as daughter was entitled for maintenance till her marriage---Issue of maintenance of daughter was modified accordingly.

Mohammadan Law by Mulla, para 370 fol.

Nemo for Petitioner (in Constitutional Petitions Nos.884 and 885 of 2012).

Mudasir Nadeem and Noor Jan Buledi for Respondents Nos.1 to 4 (in Constitutional Petitions Nos.884 and 885 of 2012).

2017 C L C 221

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J

Messrs MANDOKHAIL BROTHERS COMMERCIAL TRADING AND GOVERNMENT CONTRACTOR----Petitioner

Versus

CHAIRMAN CIVIL AVIATION and 4 others----Respondents

C.P.No.770 of 2016, decided on 7th November, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Public procurement---Rejection of bid---Natural justice---Vested right---Scope---Petitioner impugned rejection of its bid by the procuring authority on ground, inter alia, that petitioner had been declared the lowest bidder, and therefore a vested right accrued to the petitioner---Validity---Mere acceptance of the lowest bid would not constitute a concluded contract, therefore, principle of natural justice would not be attracted in such a case, in absence of any vested right of the petitioner---Bid of petitioner had not been confirmed finally and contract therefore, could not be said to be completed---Constitutional petition was dismissed, in circumstances.

Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 and Babu Pervez v. Settlement Commissioner, Multan and Bahawalpur Divisions Multan and 2 others 1974 SCMR 337 rel.

Masoom Khan Kakar for Petitioner.

Shams-ud-Din Achakzai and Muhammad Hassan Mengal Standing Counsel for Respondents.

2017 C L C 347

[Balochistan]

Before Zaheer-ud-Din Kakar, J

SHAKEEL AHMED----Appellant

Versus

ABDUL JALIL and others----Respondents

F.A.O. No.48 of 2014, decided on 8th November, 2016.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 11---Civil Procedure Code (V of 1908), S. 2 (2)---Ejectment of tenant---Bona fide personal need of landlord---Scope---Contention of tenant was that landlord had died during the proceedings and ground of personal bona fide need was not available to his legal heirs---Validity---Decree in favour of landlord did not abate on his death and entitled the heirs to get the possession of demised premises ---Once a right was accrued in favour of decree-holder, it would automatically devolve upon his legal heirs even after his death and they had the right to defend the decree and were entitled to contest the appeal---Eviction petition contained an averment with regard to the need of landlord for use of the demised premises for commercial purposes---No specific permission of Rent Controller, for conversion of residential property into non-residential was required---Plea that eviction petition with regard to residential premises for non-residential purposes had been accepted would be deemed to be sufficient compliance of S.11 of Balochistan Urban Rent Restriction Ordinance, 1959---Evidence produced by the landlord was not only consistent but also in conformity with the contents of eviction petition---Witnesses of landlord were firm and were not shaken despite lengthy cross-examination---If landlord failed to get the possession of demised premises in the stipulated period or after getting the possession re-let the same to someone else within a period provided by law then tenant had the right to recover the possession of said premises---Impugned judgment and decree passed by the Trial Court were just and proper---Tenant had failed to point out any illegality or irregularity in the impugned order---Tenant was granted two months' time to vacate the premises and handover the possession to the landlord---Appeal was dismissed in circumstances.

K.H. Hiramanek v. Shafqat Aslam 1997 MLD 1800; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 and 2004 MLD 587 rel.

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

----S. 2(2)---"Decree"---Meaning---Decree was a declaration of right of a party which entitled him to get such right.

Mudasar Nadeem for Appellant.

Muhammad Ali for Respondent.

2017 C L C 382

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

AKHTAR HUSSAIN----Petitioner

Versus

WIDOW OF MALIK NAEEM ULLAH and 3 others----Respondents

C.P. No.813 of 2016, decided on 21st November, 2016.

Civil Procedure Code (V of 1908) ---

----O. XXII, R. 1 & O. IX, R. 13---Suit against dead person---Scope---Suit against dead person was decreed ex parte wherein execution proceedings were also completed---Application for setting aside ex-parte decree was moved which was accepted and both the suit and execution petition were dismissed---Validity---Suit against dead person was not valid and could not proceed---Where a person was dead at the time of filing of suit, such defect could not be cured by bringing on record his legal heirs---Both the courts below were correct in the findings that neither the suit nor the execution petition were maintainable---No illegality had been pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed with cost.

Muhammad Yar v. Muhammad Amin 2013 SCMR 464 rel.

Zahid Malik for Petitioner.

Nemo for Respondents.

2017 C L C 426

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

ZAHID HUSSAIN----Petitioner

Versus

The CHAIRMAN SELECTION COMMITTEE/CHAIRMAN BALOCHISTAN PUBLIC SERVICE COMMISSION and 4 others----Respondents

C.P. No.488 of 2016, decided on 14th November, 2016.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Private institution---Respondent being private medical institution---Constitutional petition did not lie with regard to the institutions/bodies which did not have statutory rules or against private entities---Respondent, in the present case, was a private organization and was being run without any statutory rules---Relief under Article 199 of the Constitution was a public law remedy which was not available as remedy against private wrongs---Constitutional jurisdiction could be used for enforcement of Fundamental Rights of the citizen connected with public functionaries or to compel the public/statutory authorities to discharge their duties and to act within their bounds or to refrain them from an act beyond their domain---Constitutional jurisdiction was equipped to serve as judicial control over the administrative actions---Constitutional petition was not maintainable for resolution of private dispute---Respondent being not a person performing function in connection with the affairs of Federation or Province and was not controlled under statutory rules---Constitutional petition was not maintainable and was dismissed in limine.

Pakistan Red Crescent Society and another v. Syed Nazir PLD 2005 SC 806 and Praga Tools Corporation v. Shri C.A. Imanual and others AIR 1969 SC 1306 rel.

Nadir Ali Chalgari for Petitioner.

Abdul Latif Kakar, Addl. Advocate General for Respondent No.3.

2017 C L C 646

[Balochistan]

Before Muhammad Ejaz Swati, J

MURAD BAKHSH and 4 others----Petitioners

Versus

Mst. Syeda ASHRAF JAHAN and 4 others----Respondents

Civil Revisions Nos.221 of 2015 and 390 of 2014, decided on 25th November, 2016.

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

----S. 42---Limitation Act (IX of 1908), S.3 & Art.120---Suit for declaration---Limitation---Plaintiffs challenged mutation entries recorded in the revenue record---Suit was dismissed being time barred---Validity---Suit filed in the year 2009 to challenge the mutation entries of 1979 was barred by time---High Court observed that aggrieved person had to pursue his legal remedy with diligence---If a suit was filed beyond limitation then each day's delay had to be explained---No explanation had been given in the present case---Plaintiffs had not specified the date when they came to know about the impugned mutations---No issue was framed with regard to limitation but suit was dismissed on the ground of limitation---Plaint could be rejected if suit was filed after the period of limitation---No material piece of evidence had been ignored or excluded out of consideration by the courts below while passing the impugned judgments and decrees---Revision was dismissed in circumstances.

Muhammad Raz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397 and Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Limitation to file a declaratory suit was six years.

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

----S. 3---Suit instituted after the period of limitation was to be dismissed, even if limitation had not been pleaded as defence.

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

----S. 144---Restitution---Scope and object---Where a decree passed by a Court of first instance had been varied or reversed, said Court on the application of any party entitled to any benefit should cause such restitution and place the parties in a position which they had prior to the decree---Question of restitution would arise where a decree was passed in favour of one party and the decree holder obtained subject matter of the decree in execution of the same but decree on appeal or revision was reversed or varied---Object of restitution was to place the parties in the same position which they would have occupied prior to the decree---Court to whom such application was filed had powers to order for restitution and for refund of costs and for payment of interest, damages, compensation and mesne profits which were consequential on such variation or reversal---Party who suffered a loss on account of wrong decree must be compensated---Initial decree of Trial Court was liable to be set aside---Any benefit received by the decree holder under the decree refundable or returnable and parties were entitled to benefit of restitution on the variance or reversal of the decree.

(e) Administration of justice---

----Party not to be prejudiced by the act of the Court.

Nasratullah Baloch and Abdul Razaq Shar for Petitioners (in Civil Revision Petition No.221 of 2015).

Habib Tahir for Respondents Nos.1 to 5 (in Civil Revision Petition No.221 of 2015).

Farooq Sarwar, Asstt. A.G. for Respondent (in Civil Revision Petition No.221 of 2015).

Habib Tahir for Petitioner (in Civil Revision No.390 of 2014), Nasratullah Baloch and Abdul Razaq Shar for Respondents Nos.1 to 5 (in Civil Revision No.390 of 2014).

Farooq Sarwar, Asstt. A.G. for Official Respondents (in Civil Revision No.390 of 2014).

2017 C L C 699

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

MUHAMMAD UMAR and others----Petitioners

Versus

HAMID HAMZA and 4 others----Respondents

C.P. No.(T)468 of 2013, decided on 29th December, 2016.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction wherein applicant was not made party---Acceptance of petition under S.12(2), C.P.C. on the ground of fraud and misrepresentation---Revival of main suit---Scope---Trial Court accepted application under S.12(2), C.P.C. without framing issues and recalled the decree---Plaintiffs contended that application under S.12(2), C.P.C. had raised factual controversy, which required consideration after adducing evidence---Applicant who had filed the application under S.12(2), C.P.C. claimed that in earlier suits applicant was made party but the said suits were withdrawn with permission to file fresh suit---Applicant, with application under S.12(2), C.P.C. had annexed documents/previous suit filed by the predecessor of plaintiffs in respect of disputed property which was judicial record of the court---Consideration of Trial Court in respect of concealment of facts and fraud on the part of predecessor of plaintiffs were based on the documents to which presumption of truth was attached---Applicant being necessary party in the suit, was not impleaded---When there were controversy of facts or that of law between the parties in main suit, the suit could not be dismissed while accepting application under S.12(2), C.P.C., but the court, after revival of suit, should proceed with the matter by impleading the applicant under S.12(2), C.P.C. as a party and after providing opportunity to parties decide the case on merits---Trial court neither revived the suit nor made any direction to implead applicant under S.12(2), C.P.C. as party nor proceeded the suit on merits, therefore, to such extent, findings of Trial court were contrary to law, thus void---Order setting aside judgment and decree was sustained, however, main suit was revived and remanded to Trial Court---Order accordingly.

Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 ref.

Khalid Ahmed Kubdani for Petitioners.

Abid Sherazi for Respondent No.4.

2017 C L C 1170

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

NAEEM SHER TAREEN----Petitioner

Versus

BEENISH ALI and 4 others----Respondents

C.P. No.951 of 2016, decided on 14th March, 2017.

Family Courts Act (XXXV of 1964)---

----S. 10(4) & Schd. S.5---Constitution of Pakistan, Arts.199, 203-D & 203-G---Constitutional petition---Repugnancy to Injunctions of Islam---Scope---Dissolution of marriage---Petitioner challenged the validity of S.10(4) of the Family Courts Act, 1964 and impleaded the Parliament---Validity---Government, through Secretary concerned, was relevant if some legislation was in question---Vires of legislation could be subject to judicial review by Superior Courts, but such power was subject to jurisdiction as conferred by the Constitution---In the present case, petitioner had questioned S.10(4) of the Family Courts Act, 1964 alleging the same to be contrary to the Injunctions of Islam---Petitioner missed relevant provisions of the Constitution which specifically placed bar on the jurisdiction of High Court in such matter---Article 203G of the Constitution placed a bar on jurisdiction of any court, including Supreme Court or High Court, to entertain any proceedings or exercise any power or jurisdiction in respect of any matter lying within the power or jurisdiction of the Federal Shariat Court---Article 203D of the Constitution dealt with the powers and jurisdiction vested with the Federal Shariat Court---Power to examine and decide the question whether or not any law or provision of law was repugnant to Injunctions of Islam or Holy Quran or Sunnah were included in Art.203-D of the Constitution---High Court lacked jurisdiction in the matter---Constitutional petition was dismissed accordingly.

Surat Khan Khethran for Petitioner.

Nemo for Respondents.

2017 C L C 1195

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

BALOCHISTAN MEDICAL ASSOCIATION through President----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Health and others----Respondents

C.P. No.64 of 2013, decided on 16th May, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---"Aggrieved person"---Scope---Petition under Art.199 of the Constitution can only be made by an aggrieved person---Person cannot be said to be aggrieved unless he has a right in performance of statutory duty by a person performing functions in respect of any right which he may have in relation to performance of such function---Any person invoking Constitutional jurisdiction of High Court must establish a direct or indirect injury to himself and substantial interest in subject matter of proceedings.

Ahbab Cooperative Housing Society Ltd. v. Commissioner, Lahore Division PLD 1978 Lah. 273 and Jan Muhammad v. Government of NWFP 1993 CLC 1067 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Public interest litigation---Scope---Petitioner assailed selection process for training of candidates in post-graduate institutes---Validity---To invoke Constitutional jurisdiction of High Court, one was required to first qualify test of being aggrieved person and then to show that his case fell in any of the categories so defined by Art.199 of the Constitution that there was no alternate legal remedy except the petition---To satisfy requirements of an aggrieved person in public interest litigation under Art.199 of the Constitution, petitioner was required to disclose a personal interest in performance of legal duty owed to him which if not performed would result in loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise except in relief in the nature of Habeas Corpus or Quo Warranto the person had to show that he was an aggrieved person; it was also imperative for petitioner to show that any of his proprietary or personal right as recognized by law was invaded or denied---Any person who failed to demonstrate such prerequisites as recognized by law had no locus standi or any cause of action to seek any relief under Art.199 of the Constitution---Petitioner remained unable to meet the requirements and had no locus standi to file petition---Constitutional petition was dismissed in circumstances.

Ardeshir Kowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi 1999 SCMR 2883 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

Zahid Malik for Petitioner.

Zahid Muqeem Ansari for Respondents Nos.3 to 20.

Saleem Baloch, A.A.G. for Respondents Nos.1 and 2.

2017 C L C 1298

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Education Department----Appellant

Versus

Messrs CAMPAIGNER ASSOCIATES (PVT.) LTD. through Chief Executive and 2 others----Respondents

R.F.A. No.22 of 2009, decided on 2nd May, 2017.

Arbitration Act (X of 1940)---

----Ss. 20 & 33---Award by umpire made rule of the court---Agreement between the parties for completion of construction project---Appointment of empire in wake of disagreement between the parties to appoint Arbitrators and no objections was raised by the appellant (Provincial Government) in the proceedings of the Court---Scope---Appellant/Provincial Government contended that no claim of payment of extra work could be agitated as per the undertaking of the respondent/contractor and thus award of the umpire was unjustified---Respondent/contractor contended that they completed work to the entire satisfaction of the Government but was denied payment without reason---Respondent/contractor further submitted that the award by the umpire was justified and the umpire was appointed with consent as parties had failed to appoint Arbitrators---Validity---Record revealed that parties had suggested names of Arbitrators, but agreement was not arrived at, thus under the circumstances, Trial Court with consent of the parties nominated the umpire to make award independently within 30 days by providing opportunities to both the parties in accordance with law---Record further transpired that both the parties had put their claims before the umpire who, after hearing both the parties, passed award---Award was submitted before the Trial Court and the parties were directed to file their objections, if any, however, counsel for the respondent appeared before the Trial Court and raised no objection over the final award and despite of several opportunities, the appellant (State) had failed to file any objections as required under S.33 of Arbitration Act, 1940---Said order of the Trial Court was not assailed by the appellant before the appellate forum which attained finality, as such, the contentions of appellant with regard to non-providing opportunity of filing of objections was not tenable---In view of provisions of S.33 of Arbitration Act, 1940 the appellant had failed to comply with the provision of law---Findings of the umpire showed that the respondent/contractor had completed the work to the entire satisfaction of the department---Department had never raised any objection regarding the performance of work---Contract agreement being in existence, the work was completed on the instructions of Provincial Government through its department, therefore, Government could not absolve itself from the liability---Impugned judgment and decree passed by the Trial Court did not suffer from misreading or non-reading of evidence---Appeal was dismissed accordingly.

Muhammad Saleem Baloch for Appellant.

Ms. Shehnaz Rana and Rehmatullah Barech for Respondent No.2

2017 C L C 1443

[Balochistan]

Before Abdullah Baloch, J

LAL MUHAMMAD and others----Petitioners

Versus

Nawabzada ABDUL GHAYAS and others----Respondents

Civil Revisions Nos.222 and 458 of 2010, decided on 21st April, 2017.

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

----Ss. 42 & 54---Suit for declaration, permanent injunction and recovery of Haq Maalkaana---Plaintiffs claimed ownership of suit property under cultivation of defendants as Mouroosi Buzgars---Defendants denied entries in revenue record showing them as Mouroosi Buzgars--- Effect--- Entries in revenue record--- Scope---Petitioners/defendants denied that they were Mouroosi Buzgars and contended that they were not liable to pay 1/4th share to the plaintiffs of the income of crops---Respondents/plaintiffs contended that their predecessors being Nawab was owner of suit property which subsequently devolved upon them through inheritance and partition; therefore they were entitled to get 1/4th income of crops---Validity---Record showed that respondents/plaintiffs produced three witnesses in support of their contention as well as recorded statements of their attorneys, who in support of claim of respondents/plaintiffs produced and exhibited documents with regard to the ownership of the property belonging to former Nawab which remained in the custody/possession of Court of Ward for an indefinite period and during the course of that period the predecessor of petitioners along with other Mouroosi Buzgars had paid Haq Maalkaana to the Court of Ward i.e. Deputy Commissioner as per exhibited document---Disputed property was in the name of Deputy Commissioner being custodian of the property of Nawab, which later on devolved and transferred in the revenue record in the name of respondents/plaintiffs, bearing certain Khata numbers and names of the petitioners were entered as Mouroosi Buzgars---Property in question was distributed amongst the legal heirs of Nawab i.e. respondents/plaintiffs in the year 2000, copy whereof was annexed with the suit---Petitioners/defendants produced only four witnesses and got recorded the statements of attorneys, wherein most of the witnesses had shown their ignorance and knowledge regarding the ownership of the property in dispute---Respondents/plaintiffs, therefore, had succeeded to prove their case of ownership, as such, Trial Court as well as the appellate court had rightly decided both the issues of ownership and title in favour of respondents/plaintiffs---Documentary evidence prevailed and overrode upon the oral evidence---Respondent/plaintiffs having succeeded to prove the issue by producing oral as well as documentary evidence---No illegality or irregularity was found in the concurrent findings of courts below---Revision was dismissed accordingly.

(b) Balochistan Tenancy Ordinance (XXI of 1978)---

----S. 10---Payment of Haq Maalkaana of land---Determination---Jurisdiction--- Record had revealed that respondents/plaintiffs had failed to prove their case to the extent of non-payment of Haq Maalkaana w.e.f. 2004 to 2008 through any cogent evidence, as such, the same was decided against them---Contention of the petitioners/ defendants as well as State Counsel with regard to the issue of non-payment of Haq Malkhaana was that alternate remedy was available to the respondents/plaintiffs to invoke the jurisdiction of Revenue Authorities under the Balochistan Tenancy Ordinance, 1978 for recovery of payment of Haq Maalkaana, but said issue having been decided against the plaintiffs/respondents they did not challenge the same which attained finality, as such, there would be no occasion for the plaintiffs/respondents to agitate upon---High Court observed that plaintiffs/respondents were at liberty to invoke the jurisdiction of Revenue Court under the Balochistan Tenancy Ordinance, 1978 for Haq Maalkaana, if so advised.

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

----S. 11---Correction of mutations in revenue record---Earlier suit between the parties---Principle of res judicata---Applicability---Record revealed that earlier suit was contested by the same parties on the same subject matter and petitioners had failed to challenge mutation entries---Main issue regarding ownership and mutation entries having already been decided in the earlier suit, as such, the second suit on the same subject-matter between the same parties was hit by the principle of res judicata as contemplated under S.11, C.P.C.

Tahir Ali Baloch for Petitioners.

Ehsan Rafiq Rana for Respondents Nos.1 to 10.

Farooq Sarwar and Abdul Rahim Mengal for State.

2017 C L C 1485

[Balochistan]

Before Zaheer ud Din Kakar and Jamal Khan Mandokhail, JJ

ALL QUETTA BALOCHISTAN ARMS DEALERS ASSOCIATION and 9 others----Petitioners

Versus

SECRETARY HOME AND TRIBAL AFFAIRS, CIVIL SECRETARIAT QUETTA----Respondent

Constitutional Petition No.69 of 2016, decided on 6th April, 2017.

Arms Ordinance (XX of 1965)---

----S. 11(b)--- Constitution of Pakistan, Art.199--- Constitutional jurisdiction of High Court---Scope---Policy matter---Renewal fee, fixation of---Petitioner was an Arms Dealer and he was aggrieved of increase in renewal fee of Arms Dealership License---Validity---Law had not debarred authorities to increase renewal fee nor was there any maximum limit of the increased amount but the same should be reasonable---Increase in question was not that much high to be considered as unreasonable---Policy making was the domain of the Executive and interference in such domain was not the function of High Court while exercising jurisdiction under Art.199 of the Constitution, unless same was violative of the Constitution, law or was product of mala fide---No mis-exercise of jurisdiction, illegality or irregularity was found in the notification in question---Interference was declined by High Court---Constitutional petition was dismissed in circumstances.

Institute of Chartered Accountants of Pakistan Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679 and Dossani Travells (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt) Ltd. and others 2013 SCMR 1749 rel.

Muhammad Akram Shah for Petitioners.

Zahoor Ahmed Baloch, A.A.G. for Respondent.

2017 C L C 1593

[Balochistan]

Before Nazeer Ahmed Langove, J

ZONAL MANAGER CANTEEN STORE DEPARTMENT, QUETTA CANTT.----Petitioner

Versus

ABDUL REHMAN----Respondent

Civil Revision No.163 of 2015, decided on 23rd June, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Suit for declaration and injunction---Rejection of plaint---Principles---Plaintiff claimed that he was running a shop in the Canteen Store Department (Cantonment) under an agreement and due to his old age he had to employ his two nephews in shop so as to run the affairs of business---Canteen Store Department (CSD) issued a notice to plaintiff to vacate shop in question---Trial Court allowed application filed by CSD and rejected the plaint but Lower Appellate Court set aside the order and remanded matter to Trial Court for decision afresh after affording opportunity to produce evidence by the parties---Validity---For rejection of plaint, material available on record had intrinsic value and same was rightly appreciated by Trial Court, who had buried meritless litigation at its inception and no serious exception could be taken to such course---Lower Appellate Court erred in law by holding that order passed by Trial Court was not sustainable under law and matter was liable to be tried on merits---Trial Court passed a well-reasoned and speaking order which did not suffer from any illegality or irregularity and same was not open to any exception, hence was maintained---High Court set aside order passed by Lower Appellate Court being without any jurisdiction and based on non-appreciation of evidence and record---Revision was allowed in circumstances.

1999 SCMR 394; 2002 SCMR 338; PLD 2013 SC 239; 1994 CLC 1248 and PLD 1995 Lah. 181 ref.

Waseem Akbar Dumar for Petitioner.

2017 C L C 1624

[Balochistan]

Before Abdullah Baloch, J

HABIB BANK LIMITED through Manager----Appellant

Versus

Haji KARIM DAD and another----Respondents

F.A.O. No.42 of 2013, decided on 19th May, 2017.

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

----S. 17---Eviction of tenant---Bona fide personal need of landlord---Objection by the tenant was that previous eviction petition was dismissed for non-prosecution--- Fresh eviction petition---Maintainability---Appellant/tenant contended that it was a financial institution (Bank) and its long standing business would be uprooted in case of eviction and that it was not a bad paymaster and landlord had failed to prove his personal requirement---Respondent/landlord contended that several opportunities to vacate the demised property had been given to the tenant since long---Landlord produced confidence inspiring evidence for personal need to establish own business before the Rent Controller---Issue was framed regarding maintainability of the suit, as the objection was raised by the tenant that prior to the present application, the landlord had already filed an application against the tenant, which was dismissed by the Rent Controller in 2010 on non-prosecution and the same was not challenged before the next higher forum, as such, the application of the landlord was hit by the principle of res judicata---Rent Controller had rightly decided the said issue that earlier application was not dismissed on merits, rather it was dismissed for non-prosecution, since the earlier application was with regard to the non-payment of monthly rent as such, the present application was for personal bona fide requirement of landlord, and a fresh cause of action had accrued to the landlord and the landlord was at liberty to file application for ejectment at any stage for its personal bona fide requirement---Landlord produced three witnesses and also recorded the statement of attorney---Statements of all the witnesses supported the contention of landlord that the property in question was required for personal bona fide use of landlord---Averments of eviction application were supported by the statement on oath of the landlord---Contention of tenant was that its long standing business would be uprooted on account of ejectment, but the fact remained that rehabilitating a landlord, the tenant must make available premises for the owner and find out an alternate accommodation---In the present case, the tenant had enjoyed tenancy rights for almost thirty years, it could not claim a lifelong tenancy rights in the said property---View of the Rent Controller, on the face of record, appeared to be well-reasoned and in consonance with the spirit and object of law---Landlord had the right to pick and choose the property for his personal bona fide need---Tenant had failed to point out any illegality or irregularity in the impugned judgment---Tenant was directed to vacate the premises to the landlord within six months---Appeal was dismissed accordingly.

Iqbal Book Depot and others v. Khatib Ahmed and others 2001 SCMR 1197 and Muhammad Naseem Khan v. United Bank Limited PLD 2002 SC 753 ref.

Adnan Ejaz for Appellant.

Zakriya Khan Nasar for Respondent No.1.

Amir Rana for Respondent No.2.

2017 C L C 1637

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

Malik WALI MUHAMMAD and 40 others----Appellants

Versus

AC/SDM AND COLLECTOR SADDAR SUB-DIVISION, QUETTA and another----Respondents

First Appeal No.28 of 2000, decided on 17th April, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 4, 5 & 18---Acquisition of land---Reference against award---Ground of market value higher than compensation awarded---Proper valuation of land---Scope---Appellants/landowners contended that valuation of their acquired land was not assessed on market value---Authorities contended that proper valuation was assessed as per prevalent market value and that appellants could not agitate as they had received the compensation money, though under protest---Validity---High Court, in the light of directions of Supreme Court, perused the documentary evidence produced by appellants before District Judge which were sale deeds and revenue record but the same were of no avail to appellants because value shown in the exhibited documents were lesser than the market value as asserted by the attorneys of the appellants in the Trial Court---Referee Judge in order to ascertain the exact market value of the acquired land, himself visited the site in presence of all the landowners and at that time the landowners failed to produce any evidence in support of their claim---Referee Judge observed that land acquired was uneven and never cultivated and mentioned that all the mutations on the basis whereof the average had been ascertained were of the lands which had given some yield whereas the acquired land was located around "lake" which was completely uneven and mountainous---Contention of the authorities was that amount assessed had already been received though under protest, and by receiving the amount the matter attained finality---High Court observed that under the law the appellants had every right to raise objection on the award even after receiving amount, under protest---Perusal of material available on record revealed that Trial Court, after attending all legal as well as factual aspects of the case, passed a well-reasoned and speaking judgment which did not suffer from any illegality, irregularity, omission or inherent defect, hence was not open to any exception---Appeal was dismissed accordingly.

Province of Punjab and others v. Basheer Ahmed Shah and others 2007 MLD 336 ref.

Syed Mumtaz Hanfi Baqri for Appellant.

Naseer Ahmed Bangulzai, A.A.G. and Syed Shabir Shah Standing Counsel for Respondents.

2017 C L C 214

[Shariat Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and Sadaqat Hussain Raja, J

ABDUL HAMEED KHAN and others----Appellants

Versus

SAKEENA BEGUM and others----Respondents

Family Appeals Nos.110 of 2015 and 33 of 2016, decided on 1st November, 2016.

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

----Ss. 5, Sched., 14 & 15---Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982, Rr.40 & 41---Suit for recovery of dower amount and maintenance allowance---Appeal without affixing court-fee on memo. of appeal---Two suits, one for recovery of dower amount, and the other for maintenance allowance were decreed by the Trial/Family Court; defendants feeling dissatisfied from the judgment of the Family Court filed appeal, without affixing court-fee on the memo. of appeal---Objection was raised regarding maintainability of appeal without affixing court-fee---Validity---Under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal was provided to an aggrieved person from a decision or decree passed by a Family Court---No specific procedure for filing appeal was provided in the Act---Constitution of Shariat Court and procedure for filing of appeals and other proceedings before the Shariat Court, was provided under Azad Jammu and Kashmir Shariat Court Act, 1993---For regulating procedure of the Act, Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 had been enforced; which dealt with form and contents of appeal and its presentation, and no court-fee was required on those appeals---Provisions of the Court Fees Act, 1870, were applicable to the proceedings before the Shariat Court to the extent of Rr.40 & 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982---Fixation of court-fee on the memo of appeal and other documents, had been impliedly excluded---Family Court, though was a civil court, but plaint before such court, was exempted from the court-fee under S.19 of the Azad Jammu and Kashmir Family Courts Act, 1993---No court-fee was required to be paid on the memo of appeal, in circumstances. Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.

Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.

Mirza Daud Baig v. Additional District Judge Gujranwala and others 1987 SCMR 1161; Pervaiz Ahmad v. Tahra Shaheen alias Balquees Shahzadi 1988 CLC 1644; Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 and Muhammad Shafqat Baig's case 1995 SCMR 1720 ref.

Miss Kanwal Raheem for Appellants (in Appeal No.110 of 2015).

Sardar Khalid Mehmood Khan for Respondents (in Appeal No.110 of 2015).

Sardar Masood Ibrahim Khan for Appellant (in Appeal No.33 of 2016).

Sardar Javed Nisar for Respondents (in Appeal No.33 of 2016).

2017 C L C 1070

[Disciplinary Tribunal of the Sindh Bar Council]

Before Justice Salahuddin Panhwar, Chairman, Amanullah Yousufzai and Syed Haider Imam Rizvi, Members

AKBAR ALI AND QURBAN and another----Complainants

Versus

NAEEM QURESHI and another----Respondents

P.M.C. No.46 of 1993, Reference No.12 of 1995, decided on 23rd April, 2016.

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

----S. 41--- Misconduct--- Awarding of punishment--- Per-condition---Disciplinary Tribunal, under S.41 of Legal Practitioners and Bar Councils Act, 1973, may award punishments of reprimand, suspension, removal from practice or payment of compensation---Before awarding punishment, Tribunal must firstly be satisfied that "professional or other misconduct" has been committed.

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

----S. 41---Misconduct---Necessary ingredient---Moral turpitude was a necessary element for misconduct.

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

----S. 41---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Misconduct---Onus to prove---Principle---Burden of proving allegations of misconduct rests upon complainants who are required to independently establish the same beyond reasonable doubt irrespective of defence (or lack thereof) put up by accused.

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

----S. 41--- Reference--- Misconduct--- Proof--- Complaint against advocate on allegation of misconduct---Validity---Complainants' testimonies when compared against each other and against their earlier complaints/applications led to the conclusion that they were not to be regarded as witnesses of truth---Tribunal held that without any independent corroboration of allegations in question, it was not safe to base an adverse finding against an advocate merely upon the say-so of complainants particularly when their statements and testimonies were rife with inconsistencies---Corroboration of independent witnesses was not always an essential pre-requisite in such cases---Complainants were convicted criminals having substantial cause to harbor a grievance against advocate who remained their lawyer in trial which ended in their conviction---Complaint was dismissed in circumstances.

Muhammad Shafiq, Advocate PLD 1960 W.P. Lah. 720; Black's Law Dictionary (10th Edition); Muhammad Saeed v. Election Petitions Tribunal, West Pakistan PLD 1957 SC 91; Mohd. Yousuf v. S.M. Ayub PLD 1973 SC 160; Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Qutub Ahmed v. Faisal Ali Subzwari 2007 CLC 1682; Wella Aktineesellschaft v. Shamim Akhtar 2015 SCMR 1274; Kamran Industries v. Collector Customs, Karachi PLD 1996 Kar. 68 and CIT v Kamran Steel Re-rolling Mills 1989 PTD 521 ref.

2017 C L C 59

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

M. ABID----Appellant

Versus

AHMED AZAD and 96 others----Respondents

Civil Appeal No.59 of 2014, decided on 28th April, 2016.

(On appeal from the judgment of the High Court dated 29.05.2012 in Revision Petition No.58 of 2012).

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Production of additional evidence before the Appellate Court---Scope---Trial Court dismissed the suit against which appeal was filed wherein an application for production of additional evidence was moved which was dismissed---Validity---Additional evidence at appellate stage could not be allowed to be produced as of right rather it was discretion of the court to determine whether such evidence was illegally refused to be admitted by the trial court or appellate court, at its own had reached to the conclusion that any document was required to be produced or any witness was to be examined to enable the court to pronounce judgment or for just decision of the case---Additional evidence must be requirement of the court and not of a party---Initially plaintiff had moved application for production of additional evidence which was allowed by the Trial Court and suit was decided---Documents which the plaintiff wanted to produce as additional evidence were not necessary to pronounce judgment or for any other substantial cause---Appellate Court, in circumstances, was justified to disallow the application for production of additional evidence-- Additional evidence was not to be permitted at appellate stage to enable one of the parties to remove lacuna in its case---Sufficient cause and reason for production of additional evidence must exist---Plaintiff had failed to furnish any sufficient cause or reason in the application for production of additional evidence---Case could not be reopened in the guise of production of additional evidence---High Court had not committed any illegality while upholding the judgment of first appellate court---Appeal was dismissed by the Supreme Court, in circumstances.

Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35, Abdul Rashid v. Abdul Ghani and others 2006 SCR 188 and Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15 ref.

Zarait Ullah Khan v. Fazal Ahmed and 29 other PLD 2004 SC (AJ&K) 35 and Muhammad Sadiq v. Allah Ditta and 6 others 2014 SCR rel.

Raja Hassan Akhtar, Advocate for Appellants.

Raja Inamullah Khan, Advocate for Respondents Nos.1, 4, 5, 8, 9, 11, 27, 31 to 36, 43 to 45 and 50 to 72.

2017 C L C 96

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Masood A. Sheikh, J

TAHIRA ZAIB----Appellant

Versus

GHAFFAR AHMED and 2 others----Respondents

Civil Appeal No.189 of 2015, decided on 25th May, 2016.

(On appeal from the judgment of the Shariat Court dated 26-06-2015 in Family Appeal No.58 of 2015).

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

----Ss. 17 & 25---Custody of minor---Welfare of minor---Choice of minor---Scope---Mother moved application for custody of minor which was dismissed---Validity---Minor was of nine years of age and remained in the custody of mother---Father had never paid maintenance charges/expenses to the minor---Minor was intelligent enough to form an opinion while determining the question of custody and welfare---Opinion of minor should be considered in circumstances---Father had contracted second marriage and from the said marriage he had children---Handing over the custody of minor to the father was against the welfare of minor---Welfare of minor was custody with the mother---Impugned orders passed by the courts below were bad in law and not sustainable---Mother was entitled for custody of minor---Mother was appointed as guardian of minor however father would be at liberty to meet the minor through Family Court at mutually agreed place---Impugned order passed by the Shariat Court was set aside and appeal was allowed.

Marina Pussong v. Derick Noel Pushong PLD 1975 Lah. 793; Muhammad Younus v. Sajida Parveen 1994 SCR 7; Bashir Bibi v. Ghulam Rasool and 2 others 2005 YLR 547; Mst. Sajida Parveen v. The Additional District Judge Rawalpindi and 2 others 1991 MLD 745; Shafique-ur-Rehman v. Mst. Fazeelat Begum 1995 SCR 136; Maqsood Ahmed v. Mahmood Khalid, Additional District Judge, Rawalpindi and another 1995 SCMR 1225 and Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 ref.

Mst. Talat Nasira v. Munawar Sultana and 2 others 1985 SCMR 1367 rel.

Khalid Rasheed Chaudhary, Advocate for Appellant.

Abdul Majeed Mallick, Advocate for Respondent No.1.

2017 C L C 145

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia, J

ZAINAB BIBI through L.Rs.----Appellants

Versus

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

Civil Appeal No.212 of 2014, decided on 24th June, 2015.

(On appeal from the judgment and decree of the High Court dated 29.01.2014 in Civil Appeal No.530 of 2009).

Land Acquisition Act (I of 1894)---

----Ss. 18, 30, 11, 9 & 10---Civil Procedure Code (V of 1908), O. VII, R.11---Land acquisition---Inquiry for determination of compensation by the Land Acquisition Collector---Suit filed before the determination of compensation---Maintainability---Plaintiff filed suit that she was owner to the extent of her share in the suit property---Plaint was rejected on the ground that remedy was provided under Ss.18 & 30 of Land Acquisition Act, 1894---Validity---Complex and complicated factual and legal proposition including fraud, tampering and misrepresentation were involved in the present suit---Section 18 of Land Acquisition Act, 1894 would come into operation after issuance of award and not before that---Land Acquisition Collector could refer the matter of apportionment of amount of compensation to the Court after assessing the same---Present suit was subjudice before the Trial Court before the determination of compensation by the Land Acquisition Collector---Section 30 of Land Acquisition Act, 1894 would attract only when the stage of inquiry for determination of compensation had reached and not before that---Provision of S.18 of Land Acquisition Act, 1894 would operate prospectively from the issuance of award---Present suit was filed on 09-04-2007 whereas the stage of inquiry under S.11 of Land Acquisition Act, 1894 was fixed on 14-05-2007---Provisions of Ss.18 & 30 of Land Acquisition Act, 1894 were not attracted in the present case---Courts below had not made proper appreciation of statutory provisions in the light of peculiar facts of the case---Impugned orders passed by the courts below were set aside and matter was remanded to the Trial Court for proceeding according to law and fresh decision on merits.

Mian Sultan Mehmood, Advocate for Appellants.

Muhammad Rafique Dar, Ch. M. Suleman and Arshad Mehmood Mallick, Advocates for Respondents.

2017 C L C 234

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD SAJID----Appellant

Versus

Mst. SAJIDA RASHEED and another----Respondents

Civil Appeal No.21 and Civil Miscellaneous No.1 of 2015, decided on 26th July, 2016.

(On appeal from judgment and decree of the Shariat Court, dated 23-7-2014 in Civil Appeal No.50 of 2013).

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

----S. 5, Sched.---Suit for recovery of dower---Once dower was paid and subsequently snatched by the husband, wife could not file suit under Azad Jammu and Kashmir Family Courts Act, 1993 for recovery of dower---Family Court had no jurisdiction to entertain such a suit---Suit to the extent of recovery of dower allegedly snatched by the husband was not maintainable---Suit was maintainable to the extent of deferred amount of dower---Decree of Family Court and Shariat Court were modified and plaintiff was declared entitled for deferred amount of dower---Appeal was partially allowed accordingly.

Madhia Aftab and 2 others v. Khawar Hanif 2006 SCR 190 rel.

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

----S. 5, Sched.---Qanun-e-Shahadat (10 of 1984), Art.128---Suit for recovery of maintenance allowance---Legitimacy of a child---Presumption of truth---Scope---Contention of father was that minor daughter was not legitimate child and she was not entitled for maintenance allowance---Suit was decreed concurrently---Validity---Legal presumption was in favour of legitimacy of a child unless it was proved otherwise, provided the child was born during the continuance of a valid marriage notwithstanding that child was born within 180 days after first coitus between the couple---Such presumption could be inferred from the surrounding circumstances---Mere denial could not take away the status of legitimacy as 'child follows the bed'---Evidence of a woman would be sufficient to prove the parentage of a child---Defendant had failed to pay maintenance charges to the wife and the child---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Appeal was dismissed in circumstances.

Muhammad Aslam v. Additional District Judge and others PLD 2003 Lah. 264; Pavitri v. Katheesumma AIR 1959 Kerala 319; Muhammad Azhar v. The State PLD 2005 Lah. 589 and Ghazala Tehsin Zohra v. Mehr Ghulam Dastgir Khan PLD 2015 SC 327 ref.

Muhammad Iqbal v. Master Muhammad Maqbool and others 2003 YLR 154; Ghazala Tehsin Zohra v. Mehr Ghulam Dastgir Khan PLD 2015 SC 327; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073; Bashir Ahmed v. Ilam Din and others PLD 1988 SC 8 and Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275 rel.

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

----Art. 132---Cross-examination---Scope---If a portion of statement of a witness was not challenged in cross-examination then same would be deemed to have been admitted as correct.

Muhammad Asif Kiyani, Advocate for Appellant.

Syed Habib Hussain Shah, Advocate for Respondents.

2017 C L C 329

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

SECRETARY, AZAD JAMMU AND KASHMIR COUNCIL, ISLAMABAD and another----Petitioners

Versus

SAJJAD HUSSAIN SHAH and 22 others----Respondents

Civil P.L.A.No.250 and Civil Miscellaneous No.358 of 2013, decided on 16th December, 2015.

(On appeal from the judgment of the High Court dated 20-06-2013 in Writ Petitions Nos.2318, 2432 of 2012 and 101 of 2013).

(a) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XIII, R. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.21(7)(13)---Civil petition for leave to appeal by Azad Jammu and Kashmir Council---Requirements---Impugned judgment was passed against Azad Jammu and Kashmir Council---Azad Jammu and Kashmir Council could be termed as an "aggrieved person" to challenge the said judgment---Authority of Azad Jammu and Kashmir Council was to be exercised in the name of the Council by the Chairman who might delegate any of its functions to the officer or authority subordinate to it---Secretary Azad Jammu and Kashmir Council had been delegated with the powers only to sign and verify the plaint, written statement and instrument in any suit by or against the Council on behalf of Azad Jammu and Kashmir Council, its Chairman or any public officer or appointment of counsel on behalf of the Council in such court---Secretary had not been authorized to substitute himself with the Council or Chairman of Azad Jammu and Kashmir Council---Secretary Azad Jammu and Kashmir Council could act on behalf of the principal but could not be treated as substitute of the principal---Secretary Azad Jammu and Kashmir Council was an independent party in the impugned judgment---Power-of-attorney tendered in the civil petition for leave to appeal did not speak that it had been signed on behalf of Azad Jammu and Kashmir Council or its Chairman through Secretary---Counsel had been engaged and authorized only on behalf of Secretary Azad Jammu and Kashmir Council in the petition for leave to appeal---Power of attorney filed by the Secretary Azad Jammu and Kashmir Council in the present case could only be deemed to be executed and signed on his behalf and not on behalf of any other party---Present civil petition for leave to appeal was filed only on behalf of Secretary Azad Jammu and Kashmir Council and none of the others had executed the power of attorney or authorized any counsel to file the same on its behalf---Civil petition for leave to appeal was treated by the Supreme Court to have been filed only on behalf of Secretary Azad Jammu and Kashmir Council and not on behalf of Chairman Azad Jammu and Kashmir Council or the Council---No civil petition for leave to appeal having been filed by Azad Jammu and Kashmir Council, civil petition for leave to appeal was not competent which was dismissed in circumstances.

WAPDA and another v. Muhammad Iqbal and 10 others 2015 SCR 35; Muhammad Malik v. Karam Elahi and others 2011 SCR 431 and Raja Nasim and 2 others v. Ehtesab Bureau AJ&K 2004 YLR 2292 ref.

Ghazanfar Hussain v. Rehmat Bibi and 5 others 1989 CLC 310 rel.

(b) Power of attorney---

----Power of attorney should be interpreted strictly.

Khalid Rasheed Chaudhry, Advocate for Petitioner.

Arshad Mahmood Mallick, Advocate for Respondent No.6.

Sardar Karam Dad Khan, Advocate as Probono Publico.

2017 C L C 440

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

SABIR HUSSAIN and others----Appellants

Versus

COLLECTOR LAND ACQUISITION UPRAISING MANGLA DAM PROJECT, MIRPUR and others----Respondents

(On appeal from the judgment and decree of the High Court dated 13.02.2013 in Civil Appeals Nos.162, 169, 184, 205 and 235-A of 2008).

Civil Appeals Nos.128, 129, 130 of 2013, decided on 29th April, 2015.

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

----Ss. 18 & 4---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Referee Judge enhanced compensation price to the extent of Rs.100,000/- Banjer Qadeem, Rs.75,000/- Ghair Mumkin Rs.5,50,000/- for Ghair Mumkin School, per kanal along with 15% compulsory acquisition charges---Validity---Collector Land Acquisition had himself observed that the prices of the land in the village were much higher and people were ready to pay maximum price which any one could demand---Compensation assessed by the Collector Land Acquisition appeared to be erroneous---Market value of the land had to be determined keeping in view not only the sale deeds registered during the period of one year before the issuance of notification under S.4 of Land Acquisition Act, 1894 but also the sale deeds registered after issuance of the said notification---Market value of the land should not be valued merely by reference to the use for which it was being acquired at the relevant time but also the use to which it could reasonably be put in future---Referee Judge as well as the High Court had not considered the evidence properly which was misreading and non-reading of evidence---Market value of the land was such price on which the owner of the same was ready to sell and willing buyer was ready to purchase---Supreme Court observed that Referee Judge as well as the High Court should have considered the oral evidence and sale deeds to determine that acquired land could be utilized for residential and commercial purpose---Landowners were entitled to the compensation at the rate of Rs.10,00,000/- per kanal irrespective of the land, with 15% compulsory acquisition charges---Appeal was allowed accordingly.

Ejaz Ahmed Mir v. Collector Land Acquisition and 3 others 2013 SCR 603; Abdul Aziz v. Azad Government and 2 others PLD 2010 SC (AJ&K) 37; Maqsood Bibi and 6 others v. Collector Land Acquisition, Mangla Dam Raising Project Mirpur (Zone-I) and 2 others 2013 SCR 973 and Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696 ref.

Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, (Zone-I) and 2 others 2013 SCR 1224; Muhammad Mehrban v. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project, and 3 others 2013 SCR 635; Akhtar Hussain and 2 others v. Azad Government of the State, of Jammu and Kashmir through its Chief Secretary Muzaffarabad and 2 others 2014 MLD 179; Fazal-ur-Rehaman and others v. General Manager S.I.D.B. and another PLD 1986 SC 158; Faiz Akbar Khan and others v. Azad Government and others 1996 SCR 132 and Azad Government and 2 others v. Mst. Razia Farooqi and others 1996. SCR 136 rel.

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

----Ss. 18 & 4---'Market value'---Meaning---Market value of the land was such price on which the owner of the same was ready to sell and willing buyer was ready to purchase.

Sardar Muhammad Azam Khan and Ch. Shah Wali, Advocates for Appellants (in Civil Appeals Nos.128, 129 and 130 of 2013).

Mirza Ziadullah, Advocate for Respondents (in Civil Appeals Nos.128, 129 and 130 of 2013).

2017 C L C 487

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia ad Raja Saeed Akram Khan, JJ

ABDUL KHALIQ----Appellant

Versus

SIDRA KHALIQ and 3 others----Respondents

Civil Appeal No.11 of 2013, decided on 31st May, 2013.

(On appeal from the judgment of the Shariat Court dated 20.10.2012 in Civil Appeal No.91 of 2012).

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

----S. 5, Sched & S.13---Suit for recovery of maintenance allowance---Grant of maintenance allowance enhancement/alteration in monthly allowance by minor---Powers of Family Court---Scope---Procedure---Ex parte decree---Execution petition, withdrawal of---Fresh suit on same cause of action---Maintainability---Enhancement of maintenance---Procedure---Plaintiffs filed suit for recovery of maintenance allowance which was decreed ex parte and execution petition was moved but same was withdrawn---Plaintiffs again instituted another suit for recovery of maintenance allowance which was ex parte decreed against which defendant moved an application for setting aside the said decree which was dismissed concurrently---Validity---Plaintiffs in presence of previous decree were estopped from filing subsequent suit on the basis of same cause of action---Decree passed in the previous suit had attained finality---Previous ex parte decree was issued in favour of minors and also their mother who was not party in the present round of litigation---Mother withdrew the execution petition on the ground that her grievance had been redressed out of the Court and execution proceedings were disposed of---Only mother was barred from claiming the maintenance as she had already withdrawn from the proceedings---Compromise to the extent of minors was not valid and withdrawal from the execution of decree was not effected under the law which could only be done with the permission of the Court---Court was bound to watch the interest of minors---Decree passed in the previous suit was effective and operative only to the extent of minors---Family Court had rightly declared that minors were entitled to maintenance allowance in the light of previous decree---Fresh suit on the same cause of action was not maintainable---Previous decree was enforceable and minors could approach the Family Court for payment of maintenance allowance accordingly---Family Court was directed by the Supreme Court to enforce the decree passed in the previous suit to the extent of minors without any further delay---No limit existed on the Family Court to fix or determine the rate of maintenance allowance---Family Court could grant appropriate maintenance allowance according to facts and demand of justice in each case---Maintenance was continuous process and the person entitled to be maintained had right to approach the Court for adequate maintenance allowance---Family Court was vested with exclusive jurisdiction to entertain and adjudicate upon the matters specified in the Schedule---If maintenance allowance granted by the Family Court was insufficient and inadequate then institution of fresh suit was not necessary rather Family Court might entertain application for alteration in the rate of maintenance allowance---Minors, in the present case, could apply to Family Court for enhancement/alteration in per month rate of maintenance allowance however said application would not bar the execution of decree already granted for maintenance allowance---Appeal was disposed of accordingly.

Muhammad Ajaib v. Tasleem Wakeet 2013 MLD 305 rel.

Sh. Masood Iqbal, Advocate for Appellant.

Nazir Ahmed Ghouri, Advocate for Respondents.

2017 C L C 704

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J

ZAHOOR AHMED----Appellant

Versus

MOHAMMAD SIDDIQUE----Respondent

Civil Appeal No.131 of 2014, decided on 17th August, 2015.

(On appeal from the judgment of the High Court dated 13.6.2014 in Civil Appeal No.72 of 2003).

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

----S. 42---Compromise in court---Suit for declaration and cancellation of compromise deed---Fraud---Proof of---Procedure---Principle of estoppel and waiver---Applicability---Suit was filed wherein gift deed was challenged---Trial Court decreed the said suit and appeal was filed by the defendant---Compromise was effected between the parties and appeal was dismissed restoring the gift deed---Plaintiff instituted another suit that compromise was obtained fraudulently---Suit was dismissed by the courts below and confirmed by the High Court---Validity---Plaintiff had failed to prove fraud and deception in his evidence---Statement of father of plaintiff appeared to be genuine and was made with his free-will without any influence by the Appellate Court---Said statement had been recorded correctly by the Appellate Court in his official capacity---Father of the plaintiff had not denied his appearance before the Appellate Court on the date of filing of application for compromise as well as his signatures/thumb impression affixed on the said application---Plaintiff had failed to prove the allegations levelled in the plaint through cogent evidence---Plaintiff could not be allowed to turn round and assail the said judgment which was passed after due course of law---Plaintiff was estopped to re-open the matter subsequently through suit before the Civil Court to obtain judgment and decree according to his own choice---Plaintiff was aware of the matter of compromise and he could not claim to be ignorant of contents of application for compromise---Act of plaintiff was against the principle of estoppel and waiver---Plaintiff was bound to prove that fraud was played upon him by the defendant---Plaintiff had said nothing with regard to the facts/events of fraud---Plaintiff had failed to discharge the burden of proof of allegation levelled in the plaint which was sufficient to disentitle him for the prayed relief---No illegality or infirmity had been pointed out in the impugned judgment of High Court---Appeal was dismissed in circumstances.

Akhtar Khan and 9 others v. Sarwar Khan and 12 others 2003 YLR 2812; Muhammad Rasheed and another v. Muhammad Bashir and another 2009 SCR 237 and Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88 ref.

Haq Nawaz v. Shera and others 1985 MLD 494; Haji Muhammad Idrees v. Ch. Mehmood Ahmed and another 2000 SCR 166 and Noor Muhammad v. Jamal Din and others 2000 CLC 305 rel.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XIII, R. 3---Civil petition for leave to appeal---Scope---Concurrent findings of facts recorded by the courts below and confirmed by the High Court could not be disturbed on mere general allegation of mis-reading or non-reading of evidence.

Akhtar Hussain and others v. Raja Muhammad Zarin Khan 1993 SCR 114 rel.

(c) Pleadings---

----Statement of party recorded in evidence if was found against the pleadings or it did not favour the pleadings of the party then said statement could not be appreciated in favour of said party.

Khalid Yousaf Chaudhry, Advocate for Appellant.

Muhammad Reaz Alam, Advocate for Respondent.

2017 C L C 758

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Civil Appeal No.259 of 2014

TANVEER ASLAM DAR----Appellant

Versus

Mst. RASHIDA----Respondent

Civil Appeals Nos.259, 260 and 261 of 2014, decided on 11th June, 2015.

(On appeal from the judgment and decree of the Shariat Court, dated 1-7-2014 in Civil Appeal No.37 of 2012).

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

----S. 5, Sched---Suit for recovery of maintenance allowance---Contention of husband was that wife had voluntarily opted for desertion and she was not entitled for maintenance allowance---Suit of wife was decreed concurrently---Validity---Spouses had lack of confidence, mutual respect, harmony, sacrifice and sympathy between them---Absence of such ingredients had created atmosphere unsuitable for wife, desertion in such circumstances was natural---Wife could not be blamed that she had voluntarily opted for desertion and failed to discharge her matrimonial obligations amounting to disentitle for maintenance allowance---Concurrent findings recorded by the courts below were based on proper appreciation of evidence---Husband had forced the wife to opt for desertion and she was entitled for maintenance allowance---Appeal was dismissed in circumstances.

Mst. Amreen v. Muhammad Kabir 2015 YLR 170 distinguished.

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

----S. 5, Sched---Suit for recovery of dower---Scope---Nothing was on record to show the handing over of dower to the wife---Husband admitted that the ornaments given in lieu of dower had been taken from the wife by him---Trial Court had ignored the material aspect while appreciating the evidence on record---Husband had failed to prove that dower was paid or satisfied---Whole amount of dower was unsatisfied---Suit for recovery of dower was rightly decreed in circumstances---Appeal was allowed accordingly.

Mrs. Bilqees Rasheed Minhas, Advocate for Appellant (in Civil Appeals Nos.259 and 260 of 2014).

Raja Shujaat Ali Khan and Raja Tariq Bashir Khan, Advocates for Respondent (in Civil Appeals Nos.259 and 260 of 2014).

Raja Shujaat Ali Khan and Raja Tariq Bashir Khan, Advocates for Appellant (in Civil Appeal No.261 of 2014).

2017 C L C 776

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Ch. ALLAH DITTA----Petitioner

Versus

MUHAMMAD AZEEM BHATTI and 15 others----Respondents

Civil Appeal No.73 of 2006, decided on 26th March, 2013.

(On appeal from the judgment of the High Court dated 10.6.2005 in Writ Petition No.67 of 2003).

Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971---

----Ss. 48, 53 & 66---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Maintainability---Minister for transport---Issuance of route permits for motor vehicles---Delegation of powers---Nature and scope---Contract carriage---Minister for transport had issued route permits which were cancelled by the High Court---Validity---Delegatee could not go beyond the powers delegated to him nor the delegator could delegate the powers which were not vested in him---Minister for transport was delegated the powers of government vested in it under S.50(1) of Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971---Minister while exercising said powers was only authorized to order the Transport Authority for introduction of new routes or any number of additional permits for existing route of stage carriage and granting the same to any particular party or parties---Minister for transport could not directly sanction the route permits himself or grant sanction for contract carriage permits---Neither the provision of S.50 of Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971 dealt with the matter of contract carriage permits nor any powers with regard to contract carriage permits had been delegated to the Minister---Section 50 of Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971 dealt with the matter of stage carriage permits---Route permits issued were not of stage carriage but were of contract carriage---Minister for transport had granted contract carriage permits but powers delegated to him were with regard to stage carriage---Minister for transport had nothing to do with contract carriage route permits---Said routs permits issued were without lawful authority---Petitioners had no alternate, efficacious or adequate remedy---No order, proceedings or any act of the Provincial or Regional Transport Authority was called in question---Controversy in the present case was with regard to the notifications issued by the Minister for transport who was neither Provincial nor Regional Transport Authority---Only remedy available to the petitioners was to approach the High Court for exercising the powers in extraordinary writ jurisdiction---No illegality had been pointed out in the impugned judgment passed by the High Court---Appeal was dismissed in circumstances.

M/s Ashraf and Akbar and another v. Kh. Abdul Khaliq and others 1995 SCR 196 and Muhammad Chacha v. Azad Government and 4 others 2006 SCR 232 rel.

Khalid Rashid Chaudhary, Advocate for Appellants.

Farooq Hussain Kashmiri, Advocate for Respondents.

2017 C L C 788

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

KHURSHID BEGUM----Appellant

Versus

SABIR HUSSAIN----Respondent

Civil Appeal No.96 of 2012, decided on 28th March, 2013.

(On appeal from the judgment of the Shariat Court dated 25-5-2012 in Civil Appeal No.96 of 2011).

(a) Azad Jammu and Kashmir Family Courts Procedure Rules, 1998---

----R. 13---Civil Procedure Code (V of 1908), S.141---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5, Sched & S.17---Guardians and Wards Act (VIII of 1890), S.25---Custody of minor---Ex-parte order, setting aside of---Limitation---Applicant moved application for setting aside of ex parte decree which was dismissed being time barred---Validity---When case was transferred from one Court to another in presence of counsel of the parties, no fresh notice was required for summoning the parties---Application for setting aside of ex-parte decree was presented after a period of five months and seven days which was beyond the period of limitation---Azad Jammu and Kashmir Family Courts Act, 1993 did not provide procedure for disposing of applications for appointment of guardian and restoration of minor---When no procedure was provided, by necessary implication provisions of S.141, C.P.C. were applicable which were applicable in all the proceedings in a court of civil jurisdiction---Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the proceedings before Family Court---Application for setting aside the ex parte order being beyond the period of limitation was rightly dismissed by the Family Court---Appeal was dismissed in circumstances.

(b) Azad Jammu and Kashmir Family Courts Procedure Rules, 1998---

----R. 13---Ex parte proceedings, setting aside of---Limitation---Limitation for setting aside ex parte decree or ex parte proceedings was 30 days.

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

----S. 17---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908---Applicability---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were not applicable to the proceedings before the Family Court.

(d) Interpretation of statutes---

----Where a specific procedure had been laid down in an Act, general provisions were not applicable.

Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 rel.

Sh. Masood Iqbal, Advocate for Appellant.

Respondent in Person.

2017 C L C 822

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

SHABINA KOUSAR----Appellant

Versus

NARGIS KHATOON and 11 others----Respondents

Civil Appeal No.73 of 2009, decided on 18th February, 2013.

(On appeal from the judgment of the High Court dated 2.9.2009 in Revision Petition No.14-A of 2009).

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1---Filing of subsequent suit during pendency of an earlier one---Withdrawal of earlier suit---Bar on instituting fresh suit---Applicability---Plaintiff during pendency of earlier suit filed fresh suit and thereafter moved petition for withdrawal of earlier suit which was accepted---Defendants raised preliminary objection with regard to maintainability of subsequent suit---Trial Court treated the subsequent suit maintainable but High Court declared that said suit was incompetent and not maintainable---Validity---If a suit was already pending and after filing of subsequent suit the first one was withdrawn, provision of O.XXIII, R.1(3), C.P.C. precluding the plaintiff from instituting fresh suit was not applicable---Non-suiting a party was penalty and for imposing the same there must be some clear statutory provision---Party could not be non-suited on presumptive non-speaking wisdom of the legislature in absence of any provision---Impugned judgment passed by the High Court was set aside and that of Trial Court was restored---Appeal was allowed in circumstances.

Muhammad Akram and others v. Member, Board of Revenue and another 2007 SCMR 289; Jeewan Shah v. Muhammad Shah and others PLD 2006 SC 202; Naeem Ahmed Khan v. Government of the Punjab through Secretary, Home Department, Civil Secretariat Lahore and 7 others 2006 YLR 1504, Islamic Republic of Pakistan and another v. Mst. Raeesa Begum and another 2003 SCMR 1701; Faqir Bakhsh and others vs. Jindwadda and others 2005 YLR 2882; Ghulam Shabbir v. Commissioner Rawalpindi Division, Rawalpindi and 4 others 2003 YLR 2640 and Muhammad Maqbool v. Muhammad Shafi and 9 others 2012 YLR 1794 ref.

Muhammad Bashir's case 2005 CLC 1359; Mangi Lal and another v. Radha Mohan and another AIR 1930 Lah. 599(2); Mrs. Razia Ahmed's case PLD 2000 Kar 288; Faqir Bakhsh and others v. Jindwada and others 2005 YLR 2882 and Vimlesh Kumari Kulshrestha v. Sambhajirao and another AIR 2009 Supreme Court 806 rel.

Karamat Ali Khan and others v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30 per incuriam.

M. Riaz Tubassam, Advocate for Appellant.

M. Yunas Arvi and M. Ayub Sabir, Advocates for Respondents.

2017 C L C 926

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Justice Retired ABDUL RASHID SULEHRIA----Appellant

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 3 others----Respondents

Civil Appeal No.100 of 2015, decided on 12th June, 2015.

(On appeal from the judgment of the High Court, dated 25.02.2015 in Writ Petition No.1757 of 2014).

(a) High Court Judges (Leave, Pension and Privileges) Order (P.O. 3 of 1997)---

----Paras. 16, 29 & 14---Azad Jammu and Kashmir Civil Services Pension Rules, 1971, Rr.5.1 & 5.2---Finance Department of AJ&K Regln.FD/R/(33)/81 dated 23-09-1986---Pension to a Judge of High Court, Elevated from judicial service, having less than five years of service as a Judge of High Court---Calculation of---Procedure---Phraseology "had he not been appointed as Judge"---Scope---Petitioner being District and Sessions Judge was elevated as Judge of High Court and retired after more than 4-1/2 years period of his elevation as a Judge of High Court---Petitioner filed writ petition before High Court for seeking direction to calculate his pension on the basis of last pay drawn as a Judge of High Court---High Court dismissed the writ petition holding that his pay was to be determined after calculation of increments admissible as District and Sessions Judge for the purpose of service in the High Court---Validity---Judge of High Court who did not fulfill the condition laid down in paragraph 14 of High Court Judges (Leave, Pension and Privileges) Order, 1997 was entitled to pension as would have been admissible to him in service or post had he not been appointed as a Judge of High Court---Service of said Judge had to be treated as service for the purpose of calculating the pension---Phraseology "had he not been appointed as Judge" would connote the intention to avoid the anomaly of break in the service for the purpose of calculation of pension---Elevation as a Judge of High Court would not result into break in his service rather he would be treated in service as not being appointed as Judge of High Court for the purpose of continuation of service---Calculation for pension as Judge of High Court had to be made in favour of a person who fulfilled the condition prescribed in paragraph 14 of High Court Judges (Leave, Pension and Privileges) Order, 1997---Pension of a Judge not covered by the said paragraph 14 of High Court Judges (Leave, Pension and Privileges) Order, 1997 might be calculated according to law dealing with the civil service pension---Pension of a person in civil service who retired after 1st July, 1986 should be calculated at the existing rate of last pay and emoluments drawn provided he was holding the post on regular basis---Petitioner in the present case, held the post of Judge of the High Court on regular basis and his service as Judge of High Court had to be treated as service for the purpose of calculation of pension---Pension of petitioner should be calculated on the basis of last pay drawn by him as Judge of High Court and not on the basis of presumptively determined pay as District and Sessions Judge---Judge of the High Court was entitled for the privileges and rights admissible to an officer holding the rank of Secretary to the Government---All the subsidiary privileges and rights admissible according to paragraph 29 of High Court Judges (Leave, Pension and Privileges) Order, 1997 were to be granted to the petitioner---Pension of petitioner had not been finalized since last more than a year which was against the spirit of law---Concerned authorities were bound to sanction the pension a month before the date of retirement---Authorities were directed to take immediate actions and finalize the pension matter of petitioner within one month---Appeal was accepted accordingly.

Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829; Bostan Chaudhary v. Audit and Accounts Department and 6 others 2011 SCR 279 and Muhammad Ramzan v. Muhammad Latif and 34 others 2014 CLC 248 ref.

Bashir Ahmed Mughal v. Azad Govt. and others PLD 2015 SC (AJ&K) 31 distinguished.

M.L. Jain and another v. Union of Indian AIR 1985 SC 619 rel.

(b) Words and phrases---

----'Last pay drawn'---Means "actual pay drawn".

(c) Interpretation of statutes---

----Unambiguous and clear statutory provision does not require any further interpretation.

Raja Muhammad Hanif Khan, Advocate for Appellant.

M. Noorullah Qureshi, Advocate for Respondents.

Mansoor Pervaiz Khan, Advocate-General Friend of the Court.

2017 C L C 989

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD IQBAL and others----Applicants

Versus

MUHAMMAD YOUNIS and others----Respondents

Civil Miscellaneous Nos.65 and 66 of 2006, decided on 13th February, 2013.

(Applications under section 12(2) of the Civil Procedure Code)

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

----S. 12(2)---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.I, Rr.5 & 2(1)---Decree, setting aside of---Application under S.12(2) of Civil Procedure Code, 1908 filed before the Supreme Court---Maintainability---Civil Procedure Code, 1908 was not applicable to the proceedings before the Supreme Court---Application under S.12(2) of Civil Procedure Code, 1908 for setting aside the decree or judgment of Supreme Court was not maintainable---Such application was competent only before the Court which passed the final decree and judgment and not before the Supreme Court which had affirmed the judgments and decrees of subordinate Courts---Such petition should have been filed before the Court which passed the final judgment and decree---Petition for setting aside of judgment and decree was dismissed by the Supreme Court, in circumstances.

Rang Baz Khan v. Raja Muhammad Azam Khan and others, 1995 SCR 189; Faisalabad Development Authority and others v. Raja Jehangir Nasir and others 2004 SCMR 1247; Muhammad Yousaf Siddiqui v. Haji Sharif Khan through L.Rs. and others PLD 2005 SC 705; Mst. Ghausia Hussain and others v. Mst. Munawar Jahan and others PLJ 2007 SC 395 and Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas 1999 SCMR 1516 ref.

Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564 rel.

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

----S. 12(2)---Application under S.12(2) of C.P.C.---Scope---Application under S.12(2), C.P.C. could only be filed in the Court or Tribunal to which the provisions of C.P.C. were applicable.

Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247 rel.

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

----S. 42-A---Inherent powers of Supreme Court---Scope---Inherent powers of Supreme Court could only be exercised in the pending cases and not independently for entertaining the applications to reopen the final settled cases or call into question the past and closed transactions.

Khawar Abbas Sikander v. State through Advocate General Mirpur (AJ&K) 2012 PCr.LJ 1650 rel.

Ch. Jehandad Khan for Applicants.

Raja Hassan Akhter, Advocate for non-Applicants.

2017 C L C 1025

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

IRFAN QURESHI----Appellant

Versus

Chaudhry SHAUKAT AZIZ, ADVOCATE----Respondent

Civil Appeal No.144 of 2012, decided on 20th December, 2013.

(On appeal from the order of the High Court dated 03.08.2012 in Revision Petition No.15 of 2008).

Civil Procedure Code (V of 1908)---

----Ss. 152 & 153---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Correction in the judgment and decree with regard to description of property---Principles---Suit was decreed whereafter petition for correction of judgment and decree was moved which was accepted---Validity---Court had power to correct any clerical or arithmetical mistake in the judgment, decree or order arising therein from any accidental slip or omission at any time even on its own motion or application of the parties---Such amendment should be made for the purpose of determining the real issue raised by or depending on such proceedings---Amendment in the description of property or parties could also be made under Ss.152 & 153, C.P.C.---Demarcation and boundaries of the suit property had been mentioned in the deed of agreement and only dispute was with regard to survey number of suit property---Court had power to correct such discrepancy---Order for amendment to be based upon appreciation of some material and not in vacuum---Spot inspection was necessary for ascertainment of survey number of suit property---Court, if deemed necessary could exercise power for determination of the on-spot position to avoid any injustice caused to any of the parties or any other mistake---No valuable right could accrue to the parties on the basis of mistake---Amendment urged by the plaintiff had rightly been granted which could not be recalled---Appeal was disposed of in circumstances.

Muhammad Anwar and 8 others v. Muhammad Ashraf PLD 2001 SC 209 and Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451 rel.

Sardar Karam Dad Khan, Advocate for Appellant.

Tahir Aziz Khan, Advocate for Respondent.

2017 C L C 1040

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, J

MUHAMMAD SADIQ----Appellant

Versus

ALLAH DITTA and 6 others----Respondents

Civil Appeal No.73 of 2012, decided on 20th November, 2013.

(On appeal from the judgment of the High Court dated 2.1.2012 in Civil Revision No.44 of 2010).

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Production of additional evidence before Appellate Court---Requirements---Appellate Court, in the present case, dismissed petition for production of additional evidence which was maintained by the High Court---Validity---Sufficient cause and reason for production of additional evidence at appellate Stage had to exist---No reason or justification had been advanced by the applicant as to why documentary evidence had not been produced at the stage of proceedings of recording evidence of the parties---Parties had to be vigilant while prosecuting their cases before the Courts---If any party was careless and at proper time failed to take necessary steps while recording evidence, case could not be reopened at appellate stage in the garb of production of additional evidence---Permission for additional evidence could only be granted if Trial Court had refused to admit the evidence which ought to have been admitted or if the appellate Court required any document to be produced or witness to be examined to enable it to pronounce judgment or for any other substantial cause---Application of a party for filling the lacunas or reopening the proceedings could not be allowed in casual manner---No sufficient cause or reason and justification for production of additional evidence had been advanced---Orders passed by the Courts below were speaking orders and consistent with the statutory provisions as well as principles of law and justice---Appeal was dismissed in circumstances.

Ch. Muhammad Afzal, Advocate for Appellant.

Raja Saadat Ali Kiani, Advocate for Respondents.

2017 C L C 1102

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD JAVED----Petitioner

Versus

MUHAMMAD NAJEEB and 4 others----Respondents

Civil Review Petition No.22 of 2012, decided on 9th December, 2013.

(In the matter of review from the judgment of the Supreme Court dated 10-7-2012 in Civil Appeal No.60 of 2009).

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

----S. 42-D---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLVI, Rr.9 & 1---Review of judgment by the Supreme Court---Scope---Points raised seeking review of judgment had already been dealt with by the Supreme Court---Supreme Court while deciding the review petition could not go beyond the relevant provisions of law---Review was only possible when there was an error apparent on the face of record---Review could not be argued like an appeal and allowed on the ground that a party was dissatisfied from the judgment or another view was possible---Review petition was dismissed.

Sabir Hussain and others v. Muhammad Taj and others 2010 SCR 65 rel.

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

----S. 11 & O. II, R. 2---Bar to the subsequent suit---Conditions---Subsequent suit would be barred if previous and present suit had arisen out of the same cause of action; both the suits must be between the same parties or their representatives and previous suit must have been decided on merits---Defendant was not to be vexed twice for the same cause---Provisions of O.II, R.2, C.P.C were penal in nature and same precluded the plaintiff to sue for the portion of claim or for the remedy so omitted---In the present case, ground of possession of house was available at the time of filing of first suit but plaintiff omitted the same---Trial Court had rightly applied the provisions of O.II, R.2, C.P.C. along with S.11 of the Code---Plea which could be taken in the first suit could not be taken in the subsequent suit.

Abdul Karim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 and Pardool and 3 others v. Gulzada and others PLD 1995 SC 410 rel.

(c) Words and phrases---

----Cause of action---Meaning.

Abdul Ghafoor and Brothers, Contractors v. Natural Food and Beverage (Pvt.) Ltd. and 2 others 2001 YLR 3243 rel.

Ch. Muhammad Mumtaz, Advocate for Petitioner.

Ch. Muhammad Anwar, Advocate for Respondents Nos.1 and 2.

2017 C L C 1115

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

DILNAWAZ BEGUM and others----Appellants

Versus

MUHAMMAD AKBAR KHAN AFRIDI and others----Respondents

Civil Appeal No.181 of 2010, decided on 22nd March, 2013.

(On appeal from the judgment and decree of the High Court dated 5.8.2010 in Civil Appeal No.67 of 2008).

Civil Procedure Code (V of 1908)---

----O. II, R. 2, O. VII, R. 7 & O. VIII, R. 7---Suit to include the whole claim---Scope---Party could claim as much remedies as could spell out and if same were proved, Court could grant more than one remedies in one suit---Suit was to include the whole of the claim which the plaintiff was entitled to make with regard to the cause of action---If a person was entitled to more than one relief with regard to same cause of action, he could sue for all or any of such reliefs but if he had omitted except with the leave of the Court to sue for all such reliefs then afterwards he could not sue for any relief so omitted---Every plaint was to state specifically the relief which the plaintiff claimed either simply or in the alternative and it should not be necessary to ask for general or other relief which might always be given as the Court might think just as if it had been asked for---Same rule would apply to the written statement.

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

----S. 100---Second appeal---Scope---Concurrent findings recorded by the Courts below on the question of facts could not be disturbed in second appeal.

Ghulam Rasool v. Muhammad Khan and another 1999 MLD 883; Farooq Ahmad v. Capt. (R) Munshi Khan and 5 others 2004 SCR 510; Muhammad Riaz v. Muhammad Riyasat and 8 others 2008 SCR 308 re1.

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

----S. 52---Lis pendens, doctrine of---Scope---Any transaction of suit property during the pendency of suit would not create any right or interest---Party in whose favour such transaction had been made was not necessary to be impleaded as party.

Muhammad Sharif v. Muhammad Ilyas and 23 others 2000 MLD 1633; Darul Aman Cooperative Housing Society Limited Karachi v. The Secretary Government of Pakistan, Ministry of Works and Rehabilitation Division and 3 others 1995 MLD 1553; Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 1995 Lah. 405 and Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419 rel.

Kh. Muhammad Nasim, Advocate for Appellants.

M. Yaqoob Khan Mughal, Advocate for Respondent No.1.

2017 C L C 1184

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD SABIL KHAN and others----Appellants

Versus

SAIMA INSHAD and others----Respondents

Civil Appeals Nos.81 and 82 of 2012, decided on 3rd July, 2013.

(On appeal from the judgment and decree of the Shariat Court dated 19-9-2011 in Appeal No.43 of 2010).

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

----S. 5, Sched---Dissolution of marriage---Cruelty---Scope---Proof---Mode---Family Court dissolved the marriage on the basis of cruelty but Shariat Court modified the decree and dissolved the marriage on the ground of 'khula'---Validity---When both the parties had produced evidence, Court should examine the whole evidence to draw conclusion for determination of factual issue---Standard of proof was different in civil matters unlike criminal cases and Court could record findings on the basis of preponderance of probability drawn from appreciation of whole evidence---Shariat Court had not dived deep while making appreciation of evidence---Preponderance of probability was in favour of plaintiff-wife---Cruelty by conduct of a spouse would also justify the grant of divorce---Shariat Court had not considered the whole evidence and material brought on record---Impugned judgment passed by the Shariat Court was result of misreading and non-reading of evidence---Only persons who were closely related and inmates or family friend could be relevant witnesses to prove cruelty---Statements of such persons could not be ignored merely being relative or interested persons unlike the other cases---Physical assault or injury was not required to be proved for proof of cruelty rather some time conduct and behaviour without physical assault could be treated as cruelty---Even mental torture suffered by the wife due to behaviour of her husband could be treated as cruelty---Impugned judgment passed by the Shariat Court was not sustainable which was recalled and judgment passed by the Trial Court was restored---Appeal was allowed in circumstances.

Zeeshan Butt v. Jamila Shafi 2007 SCR 187; Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others 2011 SCR 233; Mst. Faiza Firdous v. Ghulam Shabbir 2002 CLC 1801; Muhammad Younas v. Shahnaz Begum PLD 2004 SC (AJ&K) 17; Dr. Muhammad Ali Chohan v. Mst. Fakhr-un-Nisa and another 2009 CLC 255; Shaukat Hayat v. Mst. Shabnam Akhter 2008 YLR 1124 and Bibi v. Ghulam Rasool alias Sulla and another PLD 1997 Lah. 108 ref.

Sub Rtd. Muhammad Aziz Khan v. Muhammad Hanfi and others 2012 CLC 1521; Haji Muhammad Idrees v. Mehmood and another, 2000 MLD 1813; Muhammad Said Khan and 32 others v. Abdul Qayyum Khan, 2000 SCR 594; Black's Law Dictionary (Eighth Edition) word cruelty; Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others 2011 SCR 233; Muhammad Shariful Islam Khan v. Mst. Suraya Begum and others PLD 1963 Dhaka 947 rel.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2 (viii) (a)---`Cruelty'---Meaning.

Black's Law Dictionary (Eighth Edition) word cruelty and Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others 2011 SCR 233 ref.

Sardar Shamshad Hussain Khan, Advocate for Appellants (in Civil Appeal No.81 of 2012).

Syed Habib Hussain Shah, Advocate for Respondent (in Civil Appeal No.81 of 2012).

Syed Habib Hussain Shah, Advocate for Appellants (in Civil Appeal No.82 of 2012).

Sardar Shamshad Hussain Khan, Advocate for Respondents (in Civil Appeal No.82 of 2012).

2017 C L C 1288

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 2 others----Appellants

Versus

MUHAMMAD DIN through L.Rs. and 12 others----Respondents

--Civil Appeal No.40 of 2015, decided on 12th April, 2017.

(On appeal from the judgment of the High Court dated 21.03.2014 in Civil Appeal No.57 of 2007)

Land Revenue Act (XVII of 1967)---

----Ss. 53 & 172---Specific Relief Act (I of 1877), S.42---Suit for declaration---Maintainability---Correction of entries in the revenue record---Scope---Trial Court decreed the suit which was upheld by the Appellate Court and High Court--- Validity---Judgment passed by the Trial Court was well reasoned and consistent with the evidence produced by the parties---Every repeated wrong entry in successive revenue record furnished a fresh cause of action---Civil Court was vested with the jurisdiction to resolve controversy under the provisions of S.53 of Land Revenue Act, 1967---If name of an owner did not appear in the subsequent revenue record, such person could establish his right by filing a declaratory suit---Appeal was dismissed in circumstances.

Kh. Muhammad Akbar and others v. Kh. Fateh Muhammad and others 2000 SCR 211 and Sardar Khan v. Ghulam Hussain and others 2003 YLR 1788 ref.

Maqsood Kousar v. Revenue Department and others 2015 SCR 929; Ghulam Rasul v. Hidayat Ullah 1987 MLD 35 and Mir Rehman Khan v. Sardar Asdullah Khan PLD 1983 Quetta 52 rel.

Muhammad Hanif Khan Minhas, Advocate for Appellants.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.

2017 C L C 1519

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, and Raja Saeed Akram Khan, JJ

Messrs CHINA MACHINERY ENGINEERING CORPORATION (CMEC) through Project Manager, Member of Association, Principal Officer and Chief Executive Neelum Jhelum Project and another----Appellants

Versus

AZAD JAMMU AND KASHMIR COUNCIL BOARD OF REVENUE and others----Respondents

Civil Appeals Nos.110 and 111 of 2016, decided on 4th June, 2016.

(On appeal from the judgment of the High Court dated 31.03.2015 in Writ Petition No.2181 of 2014).

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

----Art. 95---Registration Act, (XVI of 1908) Ss.32 & 33---Stamp Act (II of 1899), S.2(21)---Power-of-attorney---Execution and valid attestation/ authentication of --- Essential requirements---Presumption as to power-of-attorney---Power-of-attorney in cases where principal was not based in or resided in Pakistan---Power-of-attorney executed in foreign country---Mandatory nature of attestation requirements---Scope---Provisions of Art.95 of the Qanun-e-Shahadat, 1984 were mandatory in nature and court could only presume a power of attorney to be valid if all necessary requirements for execution of the same had been duly fulfilled and where power of attorney was executed or authenticated by functionaries as envisaged in Article 95 of the Qanun-e-Shahadat, 1984 then Court was bound to presume that the same had been executed by the executant---Definition of "power of attorney" provided in S.2(21) of the Stamp Act, 1899, a power of attorney may be connoted to be a written authorization by which a principal appointed another person as his agent and conferred upon him authority to perform specified act(s) on behalf of such principal---Primary object of an instrument of such nature was to evidence the authority of the agents to third parties with whom the agent dealt and a power of attorney must be strictly construed and perused---Authentication of power of attorney was not merely an attestation of the power of attorney but implied that the person authenticating the same must satisfy himself not only about the identity of executant but also about factum of authentication---Power of attorney executed in a foreign country must be authenticated by any of the authorities mentioned in Art.95 of the Qanun-e-Shahadat and should also fulfill requirements provided under Ss.32 & 33 of the Registration Act, 1908; and could be attested by a competent officer of the Pakistan Embassy in such country---In absence of such requirements being fulfilled, court could not assume that said power of attorney was validly executed and any proceedings initiated on strength of such power of attorney would be nullity in the eye of the law and a person who acted on strength of such power of attorney could be said to be unauthorized person.

Dr. Muhammad Iqbal Qureshi v. Azad Government and others 1993 SCR 111; Abdul Rehman and another v. Mukhtar Ahmad and another 1985 CLC 1072; Muhammad Mehrban v. Sadruddin and another 1995 CLC 1541; Aki Habara Electric Corporation (Pte.) Limited through Authorized signatory v. Hyper Magnetic Industries (Private) Limited through Chief Executive/ Director/Secretary PLD 2003 Kar. 420; National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260; Abdul Sattar and another v. Mian Muhammad Atique and another 2010 YLR 616; Muhammad Rashid Khan v. Noor Muhammad Khan and 2 others 2002 CLC 749; Shahida Khadim v. Secretary Education AJ&K and 5 others 2004 PLC (C.S.) 1074; Abdul Shakoor v. Mrs. Shamim Khalid and 5 others 2004 PLC (C.S.) 7; Azad Jammu and Kashmir Council and 3 others v. Muhammad Ikram and 3 others 2007 SCR 155; Muhammad Riaz Khan v. Inspector General of Police and 19 others 2010 SCR 131; The Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad PLD 1969 SC 60; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121 and Dr. Mobashir Hussan and others v. Federation of Pakistan and others PLD 2010 SC 265 ref.

Muhammad Aslam v. Mst. Gulraj Begum 1989 SCMR 1; Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1572; Qurban Hussain and 2 others v. Hukam Dad PLD 1984 SC (AJ&K) 157; Abdul Sattar and another v. Mian Muhammad Attique and another 2010 YLR 616 and Muhammad Reaz Akhtar Chaudhary v. Sardar Karam Dad Khan and 14 others 2015 SCR 92 rel.

Mirza Zahidullah, Advocate for Appellant (in Civil Appeal No.110 of 2016).

Raja Muhammad Hanif Khan and Haji Muhammad Afzal Advocates for Respondents (in Civil Appeal No.110 of 2016).

Raja Muhammad Hanif Khan, Advocate for Appellant (in Civil Appeal No.111 of 2016).

Mirza Zaidullah, Advocate for Respondents (in Civil Appeal No.111 of 2016)..

2017 C L C 1546

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

FAZAL-UR-REHMAN and 2 others----Appellants

Versus

PARVEEN AKHTAR and 3 others----Respondents

Civil Appeal No.75 of 2016, decided on 7th June, 2016.

(On appeal from the judgment of the High Court dated 30.10.2014 in Writ Petition No.(sic) 30.10.2014).

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

----S. 42---Civil Procedure Code (V of 1908), S.12(2) & O.VII, R.11---Suit for declaration for cancellation of compromise decree---Conversion of suit into application under S.12(2), C.P.C.---Scope---Trial Court rejected the plaint and Appellate Court dismissed the appeal with the observation that remedy of filing an application under S.12(2), C.P.C. was available---Applicants filed application under S.12(2), C.P.C. and challenged the legality of compromise decree---Trial Court rejected the said application under O.VII, R.11, C.P.C. but Appellate Court remanded the case for disposal on merits---High Court set aside the judgment of Appellate Court with the observation that same had been passed without lawful authority having no legal effect---Validity---If Court was competent to hear the matter, it might convert appeal into revision, revision or appeal into writ petition or suit into application under S.12(2), C.P.C.---Supreme Court observed that if conversion of lis from appeal into revision or suit into application was necessary for the ends of justice, Court should exercise such powers even without request or application---Suit should have been initially converted into application under S.12(2), C.P.C.---Trial Court failed to act according to law which generated unnecessary litigation---Supreme Court converted suit into an application under S.12(2), C.P.C. remanded the case to the Trial Court where parties had to raise their point of view---Exercise of writ jurisdiction in circumstances was unwarranted---Impugned judgment passed by the High Court was not sustainable which was recalled---Trial Court was directed to proceed with the matter according to law and decide the same on merit---Appeal was allowed accordingly.

Neelum Valley Development Board and another v. Muhammad Saddique and another 2009 CLC 763; Noorul Amin and others v. Muhammad Hashim and others 1992 SCMR 1744; Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. and another 1979 SCMR 32; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; Abdul Aziz v. Abdul Rahim PLD 1984 SC 164; Latif-ur-Rehman v. Haji Farmanullah PLD 2014 Pesh.1; Amir Muhammad and another v. Mst. Begum Jan and others PLD 2011 Pesh. 224 and Syed Sadaqat Sultan v. Bahadur and another 2007 YLR 2905 rel.

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

----S. 44---Writ jurisdiction---Scope---Writ jurisdiction could not be exercised like appeal or for pre-empting the jurisdiction of other Courts.

Rasib v. Mst. Maqsood Begum 2011 SCR 59; Ghulam Mustafa v. Azad Government and others 1996 MLD 355 and Nazir Ahmed and others v. Riaz Ahmed and others 2013 SCR 1069 rel.

Abdul Rashid Abbasi, Advocate for the Appellants.

Raja Amjid Ali Khan, Advocate for Respondents.

2017 C L C 1608

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

EJAZ AHMED MIR and others----Appellants

Versus

COLLECTOR LAND ACQUISITION and others----Respondents

Civil Appeals Nos. 96 of 2008, 19, 64, 66 of 2009, 23, 28, 90, of 2010, 76, 84, 24, 25 and 26 of 2011, heard on 28th November, 2012.

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

----Ss. 23, 24, 3 (c) & 55---Azad Jammu and Kashmir Land Acquisition Rules, 1994, Rr.10 & 12---Land acquisition---Collector Land Acquisition assessing compensation under Azad Jammu and Kashmir Land Acquisition Rules, 1994---Scope---Collector Land Acquisition assessed compensation of land in the light of Rr.10 & 12 of Azad Jammu and Kashmir Land Acquisition Rules, 1994 without adverting to Ss.23 & 24 of Land Acquisition Act, 1894---Validity---Government had powers to make rules consistent with Land Acquisition Act, 1894---Any rule inconsistent with Land Acquisition Act, 1894 should have no force of law---Provisions of R.10 of Azad Jammu and Kashmir Land Acquisition Rules, 1994 had no nexus and application for determination of market value for the purpose of award---Compensation assessed by the Collector Land Acquisition in the light of notification issued by Commissioner under R.10 of Azad Jammu and Kashmir Land Acquisition Rules, 1994 was against the legal provisions---Compensation could only be assessed under Ss.23 & 24 of Land Acquisition Act, 1894---Collector Land Acquisition had been vested with the powers of acquisition of land---Rights of State subject in the land acquired were affected by the awards issued by the Collector Land Acquisition---Amendment in S.3(c) of Land Acquisition Act, 1894 came into force on 28-07-2008 which was published on 01-08-2008---Impugned awards were issued prior to amendment in the definition of Collector---Amended definition of 'Collector' was not retrospective and it was not applicable to the awards issued before the amendment---Amended definition of 'Collector' had not affected his powers---Collector Land Acquisition was bound to assess the compensation while issuing award keeping in view the provision of Ss.23 & 24 of Land Acquisition Act, 1894---Collector instead of keeping in view the provisions of Ss.23 & 24 of Land Acquisition Act, 1894 had relied upon the notification issued by the Commission under R.10 of Azad Jammu and Kashmir Land Acquisition Rules, 1994 which was against the provisions of Act---Alleged awards had not been issued in a lawful manner---Original compensation had been paid to the interested persons---Quashing of proceedings/awards would create hardships for the litigants as well as the State machinery---Supreme Court instead of directing the Collector to issue fresh award decided to hear and decide the appeal on merit---Review petitions were accepted in circumstances.

AIR 1939 PC 98; 1928 Bombay Law Report 779 and 1964 Indian Cases 103 ref.

(b) Interpretation of statutes---

----Rules under statute---Scope---Rules were made to regulate the procedure and implement the provision of Act---Rules had to be consistent with the parent Act---Any provision of rules repugnant or inconsistent to the Act should have no force of law---Provisions of Act should prevail in case of conflict between the provision of rules and Act.

Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K) 41; Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Ziauddin Hospital Trust through Trustee and Medical Director v. Director General/ Commissioner, Excise and Taxation Sindh, Karachi and another PLD 2001 Kar. 52 and Loilongbam Chaomaoha Singh and others v. Chief Commissioner of Manipur AIR 1858 Manipur l (V 45 C 1) rel.

(c) Interpretation of statutes---

----If an Act touches the rights of a person, it could not be retrospective rather its operation would be prospective unless otherwise provided.

Sardar Muhammad Azam Khan, Advocate, Ch. Shah Wali, Advocate, Ch. Muhammad Reaz Alam Advocate, Raja Hassan Akhtar Advocate, Ch. Khalid Yousaf Advocate, Ch. Muhammad Mumtaz Advocate and Ch. Muhammad Siddique Advocate, for Petitioners.

Haji Munsif Dad Advocate, Haji Ch. Muhammad Afzal Advocate, Ch. Muhammad Jameel Advocate, Sardar Muhammad Raziq Khan Advocate and Muhammad Zakria Bhatti Advocate for WAPDA.

Abdul Majeed Mallick, Advocate Amicus curiae.

2017 C L C 1629

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ

Syed RAZA HUSSAIN SHAH and 7 others----Petitioners

Versus

Syed FIDA HUSSAIN SHAH and 6 others----Respondents

Civil Miscellaneous No.148 of 2017 in Civil PLA No.238 of 2017, decided on 21st June, 2017.

(On appeal from the judgment of the High Court dated 29.03.2017 in Civil Appeal No.42/2017).

Azad Jammu and Kashmir Land Revenue Act (XVII of 1967)---

----Ss. 141 & 147---Private partition---Scope---Suit for declaration was instituted during pendency of petition for partition of land before Revenue Officer---Plaint was rejected on the ground that suit was not maintainable---Validity---Partition proceedings before the Revenue Court were pending with regard to suit property---Revenue Court was not only vested with the power of partition but question of title could also be determined by Revenue Officer as a Civil Court or same might be referred to the Civil Court---Partition privately effected, was subject to affirmation by the Revenue Officer---Any of the parties might approach the Revenue Officer for affirmation of such partition---Petition was dismissed by the Supreme Court in circumstances.

Lakhi Zaman Khan, Advocate for Petitioner.

Mir Sharafat Hussain, Advocate for Respondents.