CLC 2018 Judgments

2018 C L C 36

[Gilgit-Batltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umar, JJ

PROVINCIAL GOVERNMENT GILGIT-BALTISTAN through Chief Secretary and 2 others----Petitioners

Versus

HAIDER SHAH and 20 others----Respondents

W.P. No.154 of 2015, decided on 21st June, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 34 & 18---Civil Procedure Code (V of 1908), O. VII, Rr. 2 & 11 & S.9---Money suit---Land acquisition---Recovery of interest---Plaint, rejection of---Scope---Land was acquired and compensation was paid to the land owners---Plaintiffs-land owners filed suit for recovery of interest at the prevailing Bank rate till payment was made to them---Authorities moved application for rejection of plaint on the ground that matter fell within the domain of Collector Land Acquisition and civil court had no jurisdiction to entertain the suit---Application for rejection of plaint was dismissed---Validity---Claim of interest did not fall within the purview of S.18 of Land Acquisition Act, 1894---Aggrieved party had independent remedies by way of filing a suit or by invoking writ jurisdiction of Chief Court---Interest was an additional relief which was not included in the compensation---Aggrieved party would be at liberty to seek remedy to file a regular suit in civil court or to invoke jurisdiction of Chief Court if Collector Land Acquisition failed to disburse the amount to the land owners or to deposit same in the Court---Chief Court directed the Chief Secretary to ensure speedy and expeditious disposal of matter with regard to payment of compensation to the land owners---No infirmity had been pointed out in the concurrent findings recorded by the courts below---Writ petition was dismissed in circumstances.

2005 MLD 168 ref.

PLD 1860 (W.P.) Lah. 972 and 2008 CLC 1247 rel.

Additional Advocate General for Petitioners.

Mir Zeshan Akhlaq for Respondents.

2018 C L C 73

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

BAHADUR SHAH----Appellant

Versus

Contractor REHMAN SHAH----Respondent

C.F.A. No.34 of 2013, decided on 5th April, 2017.

Civil Procedure Code (V of 1908)---

----S. 47---Execution of compromise decree---Default of one of the parties---Questions to be determined by the Executing Court---Scope---Primary duty of executing court was to carefully look upon the contents of the compromise deed arrived at between the parties; vide which both the parties to the suit were under obligation to act upon the terms of the compromise deed and to ascertain as to which of the rival parties of the compromise deed had actually defaulted the compromise---Execution petition should have been decided in the light of the same as the Executing Court had powers to adjudicate the matter in the light of available record, with special reference to the executibility of the alleged compromise decree, in the particular circumstances of the case under S.47, C.P.C.---Impugned order was set aside by remanding the matter to the lower court with the direction to proceed with the matter under the provisions of S.47, C.P.C.

Sharif Ahmed for Petitioner.

2018 C L C 224

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

Dr. PARVEEN ASHRAF and 3 others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior and 3 others----Respondents

W.P. No.56 of 2013, decided on 3rd August, 2016.

Gilgit-Baltistan (Employment and Self-Governance) Order, 2009---

----Art. 71(2)---Anti-Terrorism Act (XXVII of 1997), Ss.11-A(e), 11-B, 11-C & 11-E---Writ petition---Maintainability---Danish Gah---Khana-e-Hiqmat, an organization---Involvement in terrorist activities---Order for proscription---Administrative order---Interference by Court---Scope---Government had power to pass the order for proscription---Said order had been passed after ascertaining that organization was involved in the activities as described in the Anti-Terrorism Act, 1997---Administrative order passed by the Government was that of State of Pakistan---Government had power to declare any organization as a terrorist outfit---Chief Court under its writ jurisdiction was supposed to interfere sparingly in the administrative acts of State machinery and had to ascertain before any such interference as to whether liberty of citizen had curtailed without exercising the authority of State lawfully-Petitioners, however, were free to challenge the administrative acts of the government in any civil court as question raised through present petition were question of fact and required to be proved through evidence---Petitioners, individuals, had not been restrained from professing and practicing any established religion or sect---Petitioners were not members of any organization registered under any law governing the registration of any organization---Writ petition was not competent which was dismissed in circumstances.

Amjad Hussain for Petitioners.

Dy. Attorney General for Respondents Nos.1 and 2.

2018 C L C 40

[High Court (AJ&K)]

Before Mohammad Sheraz Kayani, J

AZMAT DEEN----Petitioner

Versus

DISTRICT JUDGE, HATTIAN BALA, AZAD KASHMIR and 12 others----Respondents

Writ Petition No.1094 of 2015, decided on 21st September, 2017.

Civil Procedure Code (V of 1908)---

----S. 12(2), O. IX, R. 13 & O. VII, R. 11---Fraud and misrepresentation---Application under S.12, C.P.C. for setting aside of ex parte decree---Maintainability---Grounds for setting aside an ex parte decree under O.IX, R.13 & S.12(2), C.P.C.---Distinction---Respondents moved application under O.VII, R.11, C.P.C. which was dismissed by the Trial Court but Appellate Court accepted the same on the ground that application under S.12(2), C.P.C. was not competent for setting aside of ex parte decree---Validity---When it had been alleged in the application that by practicing fraud upon the Court or through misrepresentation a decree was obtained, Court was competent to set the same at naught irrespective of the fact whether decree was passed ex parte or otherwise---Grounds for setting aside of an ex parte decree under O.IX, R.13, C.P.C. were different from those mentioned in S.12(2), C.P.C.---Under O.IX, R.13, C.P.C. applicant/defendant had to show a sufficient cause for his absence from the Court and if Court came to the conclusion that absence of defendant was not wilful or deliberate or he was not duly served with summons, the Court could set aside the ex parte decree---If decree was passed without jurisdiction or some fraud had been practiced upon the Court or through misrepresentation decree was obtained then Court should set it aside under S.12(2), C.P.C.---If fraud was committed between the parties even then decree passed upon such fraud could be set at naught---Facts alleged in the present petition were questions of facts which could be resolved after recording evidence---Order passed by the Appellate Court was set aside---High Court held that application under S.12(2), C.P.C. was to be deemed to be pending and directed the Trial Court to decide the application on merits---Writ petition was allowed in circumstances.

2008 CLC 75; 1998 CLC 1229; 2008 SCMR 236; 1996 SCMR 1528; 2006 SCMR 531; 2005 SCMR 296 and 2007 CLC 1865 ref.

2004 SCMR 843 and 1993 MLD 1617 rel.

Shahzad Shafi Awan for Petitioner.

2018 C L C 217

[High Court (AJ&K)]

Before Muhammad Sheraz Kayani, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 2 others----Appellants

Versus

Syed FAIZ ALI SHAH----Respondent

Civil Appeal No.125 of 2016, decided on 20th October, 2017.

Azad Jammu and Kashmir Waqf Properties Act (IX of 1960)---

----Ss. 7, 6 & 2(d)---Administrator of Auqaf---Control of Waqf property---Graveyard---Use and character---Administrator Auqaf took-over control of Waqf property---Applicant moved application for cancellation of impugned notification whereby control of the property was taken by Administrator Auqaf, which was accepted---Validity---District Court could decide controversy where it was claimed that property under notification was not a Waqf property---Property in question 'shrine and its attached property' was a Waqf property---Any property notwithstanding the fact as by whom it had been built or brought up if stood on the expense of the shrine would be included in the Waqf property---Land of graveyard was reserved for the Muslims of the area and could not be declared the property of any individual or institution---Only shrine and its connected property was taken over through the impugned notification---Said notification did not mention anything with regard to graveyard---Graveyard could not be declared as attached or part of shrine due to its different use and character---Azad Jammu and Kashmir Waqf Properties Act, 1960 was not intended to take control of the general graveyard---Inclusion of graveyard in the impugned notification was against the law and ineffective---Administrator Auqaf must have assumed the control of Waqf property only by excluding the land of graveyard---Impugned notification to the extent of land of shrine had been issued rightly and competently and to the extent of remaining land, same was bad in law---Prior to the promulgation of Azad Jammu and Kashmir Waqf Properties Act, 1960 all religious properties were in the control of relevant Muslim families or the individuals---Azad Jammu and Kashmir Waqf Properties Act, 1960 had been enforced to regulate such properties---Beneficiary of such properties howsoever old might be did not have any right to claim his ownership on such property rather same had been declared as Waqf property---Impugned notification had been wrongly and illegally set aside to the extent of Masjid, Madarsa and shops by the Trial Court---Notification to the extent of remaining land reserved for graveyard was bad in law and was declared ab-initio void---Impugned judgment passed by the Trial Court was modified in circumstances---Order accordingly.

Muhammad Ramzan v. The State and others 2013 SCMR 737 rel.

Muhammad Akhlaque Kayani, Additional Advocate General for Appellants.

2018 C L C 259

[High Court (AJ&K)]

Before Mohammad Sheraz Kayani, J

MOHAMMAD AFSAR----Appellant

Versus

Mst. NAZIR BEGUM and 20 others----Respondents

Civil Appeal No.191 of 2008, decided on 26th September, 2017.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), S.16---Suit for specific performance of agreement to sell---Limitation, commencement of---Suit was dismissed being time barred---Validity---Limitation was a mixed question of law and facts and could be decided only after recording evidence---Limitation for suit for specific performance of contract would start from the date of refusal of defendants ---Agreement to sell, in the present case, was executed at place "A" and refusal was also made at place "A"---Suit for specific performance of agreement to sell could be filed in the Court at place "A"---Impugned judgments and decrees passed by the Courts below were set aside and case was remanded for decision afresh on merits---Second appeal was allowed in circumstances.

1999 CLC 954 rel.

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

----S. 16---Suit to be instituted where subject matter situated---Suit with regard to immovable property was to be filed in the Court within the local limits of whose jurisdiction the property was situated---If suit was filed for foreclosure, sale or redemption regarding immovable property then same could be filed on the place where cause of action as a whole or partly arose.

Ch. Mohammad Riaz Alam for Appellants.

2018 C L C 313

[High Court (JA&K)]

Before Muhammad Sheraz Kiani, J

REGISTRAR, COOPERATIVE DEPARTMENT AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 4 others----Petitioners

Versus

MUHAMMAD MAQSOOD BUTT and 8 others----Respondents

Civil Appeal No.110 of 2009, decided on 26th May, 2017.

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

----Ss. 9, 43, 44 (E), 47, 50, 51, 57 & 70(A)---Civil Procedure Code (V of 1908), O. II, R. 2---Co-operative Development Corporation converted into a Banking Society---Fraud by the Banking Society---Money suit---Bar on jurisdiction of civil court---Liquidation of Society--- Award, issuance of--- Requirements--- Co-operative Development Corporation was not registered and without any security approval was granted for Banking business---Banking society looted money of the people through illegal and fraudulent Banking business--No legal formalities had been fulfilled before registration of the Banking Society---No property or other assets of the members of the Society were taken into consideration or any charge was created upon any property by the Registrar of Co-operative Societies---Functionaries of the department had collided with the officers of the Society---No action was taken by the Registrar of Co-operative Societies with regard to illegalities committed by the same---Registrar should have taken steps by entering and searching the premises of the Society, by seizing the books of accounts and other documents---When registration of Society was doubtful, transactions by the officers of said Society were not in accordance with law---Fraud had been committed on the statute in the present case---Formation of Society was not meant to do Banking transactions but to fetch the money of people by playing tactics---Jurisdiction of civil court could not be ousted in circumstances---When there was bar of jurisdiction then barring statute was to be interpreted so as to lean in favour of conferment of jurisdiction on the civil court or special tribunal---Functionaries empowered in the statute must act within the four corners of their jurisdiction---When public functionaries had stepped out of their jurisdiction, civil court would function as court of corrective process to undo the wrong done by such functionaries---On winding up of the Society, Registrar of Cooperative Societies should have appointed liquidator; issuance of award by the Registrar without specifying the dues and liabilities of individuals/members was not sufficient---No action under S.50(A) of Co-operative Societies Act, 1925 had been taken by the Registrar of Cooperative Societies---Nothing was done by the Registrar of Co-operative Societies in accordance with law---When neither members/officers of the Society nor officers of the Department had acted with bonafide in accordance with law, jurisdiction of civil court could not be ousted---Chief Executives, Manager Accounts, Secretary of the respective Branches of Banking Society (defendants) could not be exonerated from the laibilites having occurred due to embezzlement and illegalities of officers/members of the society; they were liable for payment of looted money---Trial Court had rightly passed by decree---No illegality or irregularities had been pointed out in the impugned judgment and decree passed by the Trial Court---Impugned order was well-reasoned and comprehensive enough---Appeal was dismissed in circumstances.

[Case-law referred]

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

----O. XLI, R.1---Form of appeal---When requirements of O.XLI, R.1, C.P.C by annexing the copy of decree sheet had been fulfilled, mere non-mentioning of the word 'decree' did not invalidate the appeal.

[Case-law referred]

Ch. Jahandad Khan for Appellants.

2018 C L C 349

[High Court (AJ&K)]

Before Mohammad Sheraz Kiani, J

MOHAMMAD AKHLAQ ABBASI----Appellant

Versus

ABDUL HAMEED and 2 others----Respondents

Civil Appeal No.18 of 2017, decided on 18th October, 2017.

Civil Procedure Code (V of 1908)---

----S. 92 & O.VII, R.11---Suit for declaration-cum-perpetual injunction---Dispute as to breach of trust of waqf property---Pre-requisites---Non-obtaining permission from the Advocate-General---Effect---Defendant contended that requisite permission was not obtained by the plaintiff so his case was liable to be dismissed---Plaintiff contended that as the matter related to administration of mosque and adjacent property so there was no need to get permission from the Advocate-General---Validity---Wisdom of the Legislature was clear that where any waqf/trust property was involved and everybody was allowed to litigate the matter there would be no end to litigation and everybody would like to build his case according to his own interest and preferences---Infringement of any exclusive right of an individual was not comprehendible and such properties were for the benefit and use of public-at-large or for particular community as a whole---Institution of suit for protection of waqf property had been conditioned with the prior approval of the Advocate-General---When mandatory requirements provided in S.92, Civil Procedure Code, 1908 had not been fulfilled, suit was barred by law and plaint was liable to be rejected under O.VII, R.11, C.P.C.---Once the property was donated for religious or charitable purpose, the ownership of private person extinguished at that moment and he had no right upon such dedicated or donated property---Mosque came in the category of waqf/trust property and came into ownership of Allah Almighty and no person had any right to claim its ownership---High Court inferred that it was only the Mosque which was real bone of contention between the parties, so just to attach some other property in the plaint was not sufficient for the maintainability of the suit---If any cause of action had arisen in respect of the land which was not the part of the Mosque, plaintiff would be at liberty to file fresh suit---No illegality or infirmity having been noticed, appeal was dismissed accordingly.

2013 SCMR 737 and 2015 SCR 845 ref.

Barrister Adnan Nawaz Khan for Appellant.

2018 C L C 411

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, CJ

MUHAMMAD ISRAIL and 30 others----Petitioners

Versus

PATREEND HYDRO ELECTRIC PROJECT PATREEND, MUZAFFRABAD through Managing Director Incharge and 13 others----Respondents

W.P. No. 2532 of 2015, decided on 30th November, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Land acquisition---Claim for financial loss---Scope---Contention of petitioners was that government acquired their land but no amount for the structure and financial loss was paid---Validity---Two Water Mills of petitioners were acquired by the government and compensation for the same had been paid---If petitioners had any grievance against the award then they could prefer Reference before the concerned Reference Court---Petitioners had alternate and efficacious remedy and writ petition was not maintainable---Writ petition was dismissed in limine.

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Subah Sadiq and others v. Secretary and others 2011 YLR 2500 and Messrs Muhammad Ali and brothers v. Director General, L.D.A. and 3 others 2005 MLD 768 rel.

Jahandad Khan Mughal for Petitioners.

Muhammad Noorullah Qureshi for Respondents Nos.1 and 2.

2018 C L C 494

[High Court (AJ&K)]

Before Mohammad Sheraz Kiani, J

MUNIR ATTA SHEIKH and 12 others----Petitioners

Versus

DEPUTY COMMISSIONER/COLLECTOR DISTRICT MUZAFFARABAD and 4 others----Respondents

W.P. No.686 of 2013, decided on 14th November, 2017.

Land Revenue Act (XVII of 1967) ---

----Ss. 43, 44 & 163---Mutation---Scope---Cancellation of mutation by the Revenue Officer---Correction of entries in the revenue record---Scope---Contention of petitioners was that they were owners in possession of suit land and Revenue authority intended to cancel the mutation without observing law and rules on the subject---Validity---Mutation could not be treated as sacrosanct and untouchable---Revenue authority was competent to make correction of any wrong entry at any time even on his own motion---Competent authority could not be stopped from making any lawful act---When law had vested powers upon the revenue officials to make correction through prescribed mode in the entries recorded in any mutation or even in periodical record then there was no justification for High Court to issue a prohibition from doing a lawful act---Only an unlawful act could be restrained under the writ jurisdiction--If any correction was made by the revenue authority then aggrieved party would have remedy by way of appeal or revision before the higher forum--Writ petition was dismissed in circumstances.

2018 C L C 502

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J. and Muhammad Sheraz Kiani, J

MUJAHID HUSSAIN NAQVI----Petitioner

Versus

AZAD GOVERNMENT OF THE JAMMU AND KASHMIR through Chief Secretary/Secretary Services and General Administration Department, Muzaffarabad and 4 others----Respondents

Review Petition No.132 of 2017, decided on 13th November, 2017.

Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 43---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of judgment by the High Court---Scope---Petitioner did not invoke jurisdiction of High Court with clean hands and he was imposed special costs---No illegality had been pointed out in the impugned judgment---Scope of review petition was limited and case of petitioner did not fall in any of the eventuality as postulated under O.XLVII of Civil Procedure Code, 1908 read with R.43 of Azad Jammu and Kashmir High Court Procedure Rules, 1984---Review petition could be entertained only if there was an apparent mistake or error on the face of record---No review could be entertained on the points which had already been resolved---Petitioner was directed to act upon the impugned judgment with regard to payment of special costs---Review petition was dismissed in circumstances.

Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336 and Akhtar Ali Khan v. Dilawar Khan and 5 others 2015 CLC 872 rel.

Petitioner in person.

2018 C L C 608

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

LATIF KHAN----Appellant

Versus

ALTAF KHAN and 9 others----Respondents

Civil Appeal No.149 of 2015, decided on 22nd November, 2017.

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

----S. 147---Transfer of Property Act (IV of 1882), S.44---Specific Relief Act (I of 1877), Ss.42 & 39---Suit for declaration---Sale-deed---Co-sharer---Private and family partition---Scope---Khewat---Scope---Contention of plaintiff was that he was owner in possession of suit land on the basis of private partition and impugned sale deed was executed beyond fractional share of defendant---Suit was dismissed concurrently---Validity---If a co-sharer was in possession of a particular survey number then he could alienate that land validly to another person provided it did not exceed his overall share in the Khewat---Co-sharer could not transfer the land from a particular Khewat beyond his share in the relevant Khewat---Plaintiff and defendant were real brothers and co-sharers in the suit land---Impugned sale deed was executed in excess of share of the vendor/defendant which was not sustainable and was liable to be set aside to that extent---Both the Courts below had failed to appreciate the evidence in its true perspective---Impugned judgments and decrees were result of mis-reading and non-reading of evidence---Khewat being a different entity, its share could not be amalgamated and converted into the other Khewat---Vendor was not competent to transfer the land beyond his share in the relevant Khewat---One could not be allowed to transfer the land of other share co-sharers, whether they were in possession or not---Co-sharer would be deemed to be in possession of every inch of joint land---Findings recorded by the Courts below were not maintainable in the eye of law---Private and family partition would be recognized only when same was affirmed by a Revenue Officer---Nothing was on record that family partition took place and was affirmed by the Revenue Officer---No party could claim any exclusive right on the basis of such possession due to family partition---Family arrangement for the purpose of cultivation would be considered for the convenience of co-sharer---Any such arrangement did not oust and exclude the ownership of other co-sharers from the relevant Khewat---Co-owner could only be excluded from a particular survey number by way of regular partition or private partition affirmed by the Revenue Officer----Co-sharer even in exclusive possession of a specific property could not be permitted to alienate or transfer such property which might change its joint character or otherwise damage the right of other co-owners---Co-sharer could alienate only his share not beyond that---Impugned judgments and decrees were also set aside---Sale deed executed in excess of share of vendor/defendant was also set aside---Second appeal was allowed in circumstances.

Mst. Nazir Begum v. Muhammad Ayyub and another 1993 SCR 321 and Syed Musarrat Shah and another v. Syed Ahmed Shah alias Lal Bacha and 8 others PLD 2012 Pesh.151 rel.

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

----S. 100---Second appeal---Scope---Concurrent findings of facts recorded by the Courts below could be interfered with if same were result of any mis-reading or non-reading of evidence ended in wrong conclusion or contrary to law.

Mst. Nazir Begum v. Muhammad Ayyub and another 1993 SCR 321 rel.

(c) Co-sharer--

----Co-sharer would be deemed to be in possession of every inch of joint land---Principles.

(d) Co-sharer---

----Mere possession of co-sharer did not extinguish the right of other co-sharers no matter how long same might be---Principles.

Ch. Muhammad Manzoor for Appellant.

Muzaffar Hussain Mughal for Respondents Nos.1 to 6.

2018 C L C 678

[High Court (AJ&K)]

Before Muhammad Sheraz Kayani, J

Haji SAID MEER and others----Appellants

Versus

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

Civil `Appeals Nos.8 and 15 of 2016, decided on 16th November, 2017.

(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 amount from Rs.1,00,000/- per kanal to Rs.4,00,000/- per kanal along with 15% compulsory acquisition charges---Validity---Land under reference had been acquired for commercial purpose---Land in the same village had been alienated in consideration of Rs.10,00,000/- per kanal within two months later to the notification issued in the present case which transaction was relevant---Referee Judge was not justified to discard the said transaction on flimsy grounds---Price of acquired land as Rs.20,00,000/- per kanal could not be proved as no documentary evidence was produced by the land owners---Location of disputed land should have been compared with the land on the basis of its use and potentiality---Nothing was on record that land sold in the area was superior to the land under reference---Acquired land was situated at a prime location which could fetch the price manifold presently---Future potential value and its use could also be taken into consideration while determining the compensation amount---Compensation of land under reference should have been fixed according to the prevailing average price of the village which was Rs.8,00,000/- per kanal---Impugned judgment and decree passed by the Trial Court was modified in terms that land owners would be entitled to receive compensation of land under reference @ Rs.8,00,000/- per kanal along with 15% compulsory acquisition charges---Appeal was allowed accordingly.

2008 SCR 505 and 2000 SCMR 870 ref.

1996 SCR 132; 2013 SCR 1224; 2010 SCR 47 and 1999 SCMR 1647 rel.

(b) Land Acquisition Act (I of 1984)---

----Ss. 18 & 4---Land acquisition---'Market value'---Meaning.

'Market value' under law is meant for a price of the land to be acquired, that can be fixed by a willing buyer and is acceptable by a willing purchaser.

Syed Mehar Ali Bukhari for land owners/Appellants/ Respondents.

AAG for Azad Government Respondents.

2018 C L C 13

[Islamabad]

Before Aamer Farooq, J

FATIMA ENERGY LIMITED----Petitioner

Versus

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

W.P. No.3858 of 2016, decided on 6th September, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review of administrative action---Judicial review of decision/order of quasi-judicial public bodies---Scope---High Court under Art.199 of the Constitution could not act as a court of appeal against decision of a public body but rather was to examine whether there was any illegality or jurisdictional error committed by executive or a quasi-judicial body, which could be interfered with under its Constitutional jurisdiction.

case-law referred.

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

----Ss. 31 & 7---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R.16---Constitution of Pakistan, Art. 199---National Policy for Power Co-Generation by Sugar Industry---Determination of Tariff---Powers and functions of the National Electric Power Regulatory Authority ("NEPRA")---Guidelines/policy issued by Federal Government vis-a-vis tariff---Scope---Petitioner, a private power unit made tariff petition before NEPRA for determination of its tariff under the National Policy for Power Co-Generation by Sugar Industry, which was dismissed by NEPRA---Contention of petitioner, inter alia, was that denial of benefit of National Policy for Power Co-Generation by Sugar Industry, was illegal, discriminatory and arbitrary, whilst contention of NEPRA was that the National Policy for Power Co-Generation by Sugar Industry was a guideline issued by Federal Government, which was not binding on it---Validity---Guidelines were not binding on NEPRA, but the same also could not be ignored---NEPRA, if it was of the view that such guidelines were inconsistent with the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 then proprietary demanded that reasons for not following such policy/ guidelines should be highlighted, which was not done in the present case---Neither initial determination nor the impugned decision in review spelt out reasons for not following the National Policy for Power Co-Generation by Sugar Industry---Such Policy was in existence and the Federal Government had advised NEPRA to apply the same till such time it was amended---Impugned orders of NEPRA were set aside, and the tariff petition of the petitioners was remanded to NEPRA, with direction to decide the same in accordance with law---Constitutional petition was allowed, accordingly.

case-law referred.

Rashid Anwar for Petitioner.

Sikandar Bashir Mohmand and Mustafa Sherpao for Respondents.

2018 C L C 227

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ABDUL LATIF----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and another----Respondents

W.P. No.2499 of 2017, decided on 26th October, 2017.

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

----Ss. 36(1) (i) (2) (b) & 46---Representation of the People Act (LXXXV of 1976), S.103-AA---Civil Procedure Code (V of 1908), O.VIII, R.4--- Constitution of Pakistan, Art. 199---Cetiorari, writ of---Considerations for issuing writ of cetiorari---Local Bodies' elections---Election for the seat of Member, Municipal Committee---Candidate being contractor of Municipal Committee---Effect---Jurisdiction of Election Commission to disqualify any person-having been elected- -Evasive denial---Scope---Petitioner being contractor of Municipal Committee contested the elections of Local Body and was declared as returned candidate---Election Commission accepted application against the notification of petitioner as a returned candidate, due to his being contractor supply of goods the Municipal Committee---Contention of petitioner was that election could only be challenged through election petition before the Election Tribunal---Validity---Evasive denial in a written statement or a reply could be interpreted as an admission to the contents of plaint or petition---Petitioner's reply to the pleadings in respondent's application before Election Commission was evasive---Respondent's averments/pleadings had been admitted by the petitioner in circumstances---Petitioner had filed undated certificate and supply order along with the constitutional petition to show that he was not under a contract for work with the Municipal Committee at the time of elections---Said documents were not brought on record before the Election Commission---No premium could be drawn by the petitioner by bringing on record of High Court the documents which were not produced before Election Commission---High Court was to confine its consideration to the record of the subordinate Court or Tribunal while deciding whether impugned order suffered from an error of law---High Court while exercising its jurisdiction for issuing a writ of certiorari could not take into consideration the documents which were not on record of the subordinate Court or Tribunal---Documents which were sought to be relied upon by the petitioner did not form part of record of Election Commission---Writ of certiorari could not be issued on the basis of such documents---High Court would not be justified in setting aside the impugned order on the basis of documents sought to be produced for the first time in the constitutional petition---Election Commission had jurisdiction to disqualify any person having been elected as a member of the Council or who was a holder of an elective office of the Council if found to have contravened the provisions of S.36(1) of Sindh Local Government Act, 2013---Petitioner was under contract for work to be done or goods to be supplied to the Municipal Committee at the time of election---Petitioner had contravened the provisions of S.36(1) of Sindh Local Government Act, 2013---Respondent had not contested elections for the seat of member Municipal Committee and he could not have filed election petition before Election Tribunal---Election Commission had jurisdiction under S.36(2)(b) of Sindh Local Government Act, 2013 to give a finding that a person elected as a member of a Council having contravened the provision of S.36(1) of the Act would cease to be an elected member and stood disqualified from being a candidate in an elections to a Council for a period of four years---No jurisdictional infirmity had been pointed out in the impugned order passed by the Election Commission---Petitioner having contravened the provisions of S.36(1) of Sindh Local Government Act, 2013 had ceased to be an elected member of Municipal Committee---Constitutional petition was dismissed in circumstances.

Syed Ibrar Ali Shah v. Chief Election Commissioner SBLR 2016 S.C. 70 and Haji Ghulam Ali v. Election Commissioner of Pakistan 2016 YLR 2132 ref.

Bashir Ahmed v. Muhammad Aslam 2003 SCMR 1864; Haji Abdul Ghafoor Khan v. Ghulam Sadiq PLD 2007 SC 433; Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Ghulam Abbas v. Manzoor Ahmed and others PLD 2004 Lah. 125; Hafiz M. Sadiq v. Muhammad Rashid 2003 YLR 717; United Bank Limited v. Ali Muhammad B. Rajani 1994 CLC 173 and Karnani Properties Ltd. v. State of West Bengal AIR 1990 SC 2047 rel.

(b) Constitution of Pakistan---

----Art. 199--- Writ of certiorari---Scope.

Writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ of certiorari means calling for the record of the subordinate Court or Tribunal by the High Court and rendering a decision after considering the material placed before such Court or Tribunal. Ordinarily, the High Court must confine its consideration to the record of the Court or Tribunal while deciding whether the impugned order suffers from an error of law. Court while exercising its jurisdiction for issuing a writ of certiorari, cannot normally take into consideration, documents which were not on the record of the Court or Tribunal.

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

----O.VIII, R.4---Pleadings---Evasive reply amounted to admission---If a statement of fact contained in a plaint or a petition was not specifically controverted in a written statement or a reply and an evasive answer was given then it would amount to an admission.

Bashir Ahmed v. Muhammad Aslam 2003 SCMR 1864; Haji Abdul Ghafoor Khan v. Ghulam Sadiq PLD 2007 SC 433; Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Ghulam Abbas v. Manzoor Ahmed and others PLD 2004 Lah. 125; Hafiz M. Sadiq v. Muhammad Rashid 2003 YLR 717 and United Bank Limited v. Ali Muhammad B. Rajani 1994 CLC 173 rel.

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

----S. 46---'Candidate'---Scope.

Words "subject to Act" in section 46(1) of the Sindh Local Government Act saves the authority of the Election Commission under section 36(2) of the said Act to give a finding that a person elected as a member of a Council had contravened the provisions of section 36(1) of the said Act. Such a finding against an elected member results in such a member ceasing to be an elected member. The words "a candidate may" in section 46(4) of the said Act implies that only a candidate who had contested elections against the Member whose election is challenged can file an election petition before an election Tribunal.

Dr. Babar Awan and Raja Tajammal Hussain for Petitioner.

Nisar Ahmed Bhanbhro for Respondent No.2.

Respondent No.2 in person.

2018 C L C 392

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

FARHAT NIGAR----Appellant

Versus

The AUDITOR GENERAL OF ISLAMIC REPUBLIC OF PAKISTAN and 3 others----Respondents

I.C.A. No.406 of 2016 in W.P. No.960 of 2015, decided on 12th September, 2017.

Inheritance---

----Tarka of deceased---General Provident Fund, Benevolent Fund, Group Insurance and Assistance Package--- Deceased left behind two widows, four daughters and a son, after his demise controversy had arisen with regard to distribution of his Tarka (legacy)---Petitioner (widow) and her daughter invoked constitutional jurisdiction of High Court seeking direction for release of pension and other benefits of deceased and same was allowed---Other widow and her children assailed order passed by the single Judge of High Court on the plea that General Provident Fund, Benevolent Fund, Group Insurance and Assistance Package did not fall in definition of Tarka and were to be paid to nominee only---Validity---Widow with one daughter inherited pension benefits and similar payments including Group Insurance and Benevolent Fund which she, along with her daughter, was entitled to share with other widow and her children---Division Bench of High Court directed the authorities to make payments of benefits and claims of deceased to both the widows along with other heirs; in case any payment was received by one widow and her children in excess of their share same would be recovered for payment to other widow and her minor daughter--- Intra court appeal was allowed accordingly.

Federation of Pakistan v. Public at Large PLD 1991 SC 731; Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Succession of the Assets, Securities, Properties and Accounts of Late Javed Iqbal Ghaznavi in the matter of: PLD 2010 Kar.153 and Dr. Safdar Hussain and another v. Flt. Lt. Nadia Latif and 5 others 2014 YLR 1553 rel.

Raja Rizwan Abbasi and Sohail Akhtar for Appellant.

Khurram Mahmood Qureshi, Ch. Abdul Khaliq Thind, AAG with Abdul Waris Senior Auditor (Legal), AGPR and Nazir Ahmad Deputy Director (Coord.) FEB&Gif.

Date of hearing: 15th June, 2017.

JUDGMENT

AAMER FAROOQ, J.--- The facts, leading to the filing of instant Appeal, are that one Tahir Sajjad, who while serving as Additional Director General of Pakistan in the Office of Auditor General of Pakistan, died on 10.07.2007. He left behind two widows i.e. appellant and respondent No.4 as well as four daughters and a son. After his demise, the controversy arose regarding the marriage of the deceased with respondent No.4 and her right of inheritance including that of her minor daughter. In this behalf, civil litigation between the parties ensued however, the issue of validity of marriage of deceased with respondent No.4 as well as legitimacy of the daughter from said wedlock was finally decided and stood settled. Respondent No.4, in her capacity as one of the widows of deceased Tahir Sajjad, filed an application before respondents Nos.1 to 3 for release of pension and other benefits. When no action was taken by the above respondents on the request of responder No.4 she preferred a petition under Article 199 of the Constitution before this Court (W.P. 960-2015), which was allowed by the in Chambers vide the impugned judgment dated 20.07.2016.

1. Raja Rizwan Abbasi, Advocate/learned counsel for the appellant, inter alia, contended that not all the benefits, which accrued on the demise of deceased Tahir Sajjad, fall in 'Tarka' to be distributed amongst all the legal heirs. In this behalf, it was contended that the pensionary benefits, undoubtedly, are to be shared by the two widows equally, however, the amounts paid under different heads including General Provident Fund, Federal Government Benevolent Fund and Group Insurance as well as Assistance Package, do not fall in the definition of Tarka' and are to be paid to the nominee. In support of his contentions, learned counsel placed reliance on cases reported as 'Federation of Pakistan v. Public at Large' (PLD 1991 Supreme Court 731),Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others' (2005 SCMR 512), 'In the matter of: Succession of the Assets, Securities, Properties and Accounts of Late Javed Iqbal Ghaznavi (PLD 2010 Karachi 153) and 'Dr. Safdar Hussain and another v. Flt. Lt. Nadia Latif and 5 others' (2014 YLR 1553).

2. Learned counsel for respondent No.4, inter alia, contended that all the benefits which have accrued upon demise of late Tahir Sajjad, fall in the definition of 'Tarka' hence are to be distributed amongst all the legal heirs in accordance with their share of inheritance.

3. The facts, leading to the filing of instant Appeal, have been mentioned with brevity hereinabove therefore need not be reproduced.

4. The sole controversy between the appellant and respondent No.4 is with respect to their entitlement regarding pension and other benefits of the deceased Tahir Sajjad. The Hon'ble Supreme Court of Pakistan in a case reported as 'Federation of Pakistan v. Public at Large' (PLD 1991 SC 731), defined the word 'Tarka'. In this behalf, the word `Tarka' was explained as follows:-

The said definition was adopted and followed by the august Apex Court in its decision reported as 'Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others' (2005 SCMR 512) and it was held that the Benevolent Fund and Group Insurance devolve upon legal heirs of the deceased as 'Tarka'. Similar view was taken by the Hon'ble Sindh High Court 'In the matter of: Succession of the Assets, Securities, Properties and Accounts of Late Javed Iqbal Ghaznavi (PLD 2010 Karachi 153), wherein, it was observed as follows: -

"Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remain unpaid during his lifetime when the same becomes heritable and is to be distributed amongst all his heirs. However, a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer, then whatever amount that become payable after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service. It is the discretion of the employer to make rules and regulations in relation to any grant or concession that is intended to give to an employee or after his death to any member of his family".

1. The above judgments categorically lay down the criteria regarding the benefits which are heritable and inherited by the heirs of the deceased, however, in light of the decision in case reported as (PLD 2010 Karachi 153) supra, the grant or concession do not fall in the heritable category.

2. In view of above facts and law, respondent No.4 and her daughter, have inherited the pensionary benefits and similar payments including Group Insurance and Benevolent Fund, which she along with her daughter is entitled and share with the appellant other heirs.

3. For the foregoing reasons, instant appeal is allowed and the impugned judgment is set aside; consequently, petition under Article 199 of the Constitution, filed by respondent No.4, shall stand disposed of with direction to respondents Nos.1 to 3 to make payments of the benefits and claims of the deceased Tahir Sajjad in light of law laid down above, which have been inherited by the appellant and respondent No.4 along with other heirs. In case, any payment has been received by the appellant in excess of her share along with shares of three daughters and a son born out of wedlock between the appellant the deceased Tahir Sajjad, which she was not entitled exclusively, respondents Nos.1 to 3 shall recover the same for payment to respondent No.4 and her minor daughter.

MH/106/Isl. Appeal allowed.

2018 C L C 452

[Islamabad]

Before Aamer Farooq, J

MAHAM SHABBIR and another----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, WEST, ISLAMABAD and 2 others----Respondents

W.P. No.2918 of 2016, decided on 27th October, 2017.

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

----S. 25---Suit for guardianship of minors by father---Mother had contracted second marriage--- Non-impleadment of maternal grandmother as necessary party---Effect----Welfare of minors---Consideration---Mother of minors contended that father of the minors had not impleaded maternal grandmother who was proper and necessary party when mother had remarried---Father contended that Family Court had granted guardianship to him on merits---Validity---While considering the custody of minor children of the estranged and or/divorced parents, the welfare of the minors was of prime consideration---Mother had contracted second marriage and the daughter had almost reached the age of puberty hence, under the circumstances, mother would loose her right of Hizanat---Appellate Court, while allowing appeal of father, had discussed the evidence led by the parties in detail and had rightly come to the conclusion that the welfare of children was that they should live with their father---Mother was unable to point out any misreading or non-reading of evidence on the part of the Appellate Court---Contention of the mother that maternal grand - mother was proper and necessary party where the mother had lost her right of Hizanat, was without substance---Where the father was capable of looking after the minors being the natural guardian, there was no justification for handing over the custody of children to the maternal grandmother---No illegality or infirmity having been noticed, constitutional petition was dismissedop accordingly.

Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others PLD 2003 SC 877; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Mst. Ammara Waseem v. Syed Khawar Hussain and another 2011 SCMR 148; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Riasat Mehmood v. Mst. Nadia Parveen and another 2014 MLD 374; Mst. Ayisha Bibi v. Safdar Ali Shah and another 2005 CLC 894 and Dr. Ruqia Shaukat v. Addl. District and Sessions Judge and others 2003 CLC 1310 ref.

Muhammad Munir Paracha and Nauman Munir Paracha for Petitioners.

Sardar Muhammad Latif Khan Khosa, Sardar Shahbaz Ali Khan Khosa, Malik Javed Iqbal Wains and Naz Gul Shah for Respondents.

2018 C L C 506

[Islamabad]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

MINHAAJ SAQIB and others----Appellants

Versus

NAJAM-US-SAQIB and others----Respondents

I.C.A. No.316 of 2017, decided on 16th November, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Interim maintenance for minor---Adjudication of matter on merits by the High Court under Art.199 of the Constitution---Scope--- Mother contended that High Court after declaring constitutional petition of father as not maintainable, had wrongly interfered to reduce interim maintenance allowance of minors fixed by the Family Court---Validity---Single Judge of High Court, after holding that constitutional petition by the father was not maintainable, interfered with interim order of the Family Court by reducing the quantum of maintenance allowance for minors---Division Bench of High Court observed that once it was held that constitutional petition was not maintainable, Single Judge of High Court could not have gone into merits of the case by reducing the interim maintenance fixed by the Family Court---Division Bench, set aside the impugned order passed by Single Judge only to the extent of modification made in the interim order passed by the Family Court---Intra-court appeal was allowed accordingly.

Chief Executive FESCO Ltd. v. Additional District and Sessions Judge, Sargodha PLD 2005 Lah. 709; Muhammad Naeem Kasi v. Abdul Latif 2005 SCMR 1699; S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Ministr of Housing and Works and others 2013 SCMR 338; Humayun Saifullah Khan v. Federation of Pakistan PLD 1990 SC 599 and Yousuf A. Haroon v. Custodian of the Karachi Hotel Project 2004 CLC 1967 ref.

Ijaz Janjua for Appellants.

2018 C L C 585

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

MUHAMMAD KHALID----Appellant

Versus

MUHAMMAD ADNAN QURESHI----Respondent

R.F.A. No.92 of 2014, decided on 26th October, 2017.

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

----O. XXXVII, Rr. 2 & 3, O. VIII, Rr. 6 & 9 & O. VII, R. 1---Money suit on the basis of cheque---Claim of set-off made in the written statement---Scope---Equitable set off, doctrine of---Applicability---Scope---Dismissal of suit for non-prosecution---Effect---Defendant submitted written statement and made claim of set-off therein---Trial Court dismissed suit due to non-prosecution without determining the claim of set-off---Validity---Claim of defendant with regard to set-off had been made in the written statement to counter the claim of plaintiff---Rules relating to written statement against the claim of set-off would apply in this regard---Plaintiff had not submitted any rejoinder or written statement to counter the claim of set-off in any manner on record---Trial Court while passing the impugned judgment and decree had not considered the law in its true perspective---Claim of set-off was maintainable even in case suit was dismissed on merits or due to non-prosecution---Claim made in written statement under set-off had to be treated as independent plaint---Plaintiff was bound to submit his written statement against the written statement of defendant who had raised the claim of set-off failing which it would be treated that plaintiff had no defence---Claim of set-off had to be placed in written statement at the first instance---If defendant failed to submit his claim of set-off in written statement then he would be barred from raising such defence which was not claimed in the written statement---Claim of set-off could be represented at a subsequent stage after leave of the court---Doctrine of equitable set-off could be permitted on an equitable consideration of defendant to raise a plea of set-off even with regard to unascertained sum of money---Set-off could be claimed subject to condition that if there be some connections between plaintiff's claim for a debt and defendant's claim to a set-off then it would be inequitable for the defendant to prove the same through separate suit---Such kind of equitable set-off should be claimed by the parties arising out of same transactions or to a cross demands which were connected in their nature and circumstances---Set-off was a counter claim for a specific amount and same could be claimed where defendant and plaintiff were reciprocally debtors of each other---When a party claimed set-off then it had to comply with the rules of pleadings contained in Civil Procedure Code, 1908---Defendant while claiming set-off with regard to any amount which was beyond the claim of plaintiff had in fact pleaded to write-off plaintiff's claim and claimed for decree for the balance amount---Defendant must state the particulars and basis of the claim in detail applying the principles of pleadings---Claim of set-off when suit had been dismissed in default or withdrawn or dismissed on the basis of evidence would survive and same required separate adjudication even where plaintiff had failed to prove his case---Trial Court was bound to frame separate issue of set-off raised in the written statement by the defendant and adjudicate upon the matter---Trial Court was required to adjudicate upon the claim of set-off independently by treating it an independent suit on the basis of evidence---Principles of Civil Procedure Code, 1908 to prove the claim in terms of Qanun-e-Shahadat, 1984 would apply in letter and spirit---Impugned judgment and decree had been passed in violation of law which were set aside---Matter was remanded to the Trial Court to record evidence of defendant and decide the matter within specified period---Appeal was allowed in circumstances.

Civil Aviation Authority, Quaid-e-Azam, International Airport, Karachi v. JAPAK International (Pvt.) Limited, Lahore 2009 SCMR 666; Jyanti Lal and another v. Abdul Aziz and another AIR 1956 Patna 199; Jamnadass Nagindass v. Beharilal Bishweshwarlal Zunzunwalla AIR 1941 Nagpur 258 and Bansi Dhar Kunji Lal v. Lalta Prasad and another AIR 1934 Allahabad 543 rel.

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

----O. VIII, Rr. 6, 9 & O. VII, R. 1---Set-off---Requirements---Doctrine of equitable set off---Applicability---Scope---Claim made in written statement for set-off had to be treated as independent plaint---Plaintiff was bound to submit his written statement against the written statement of defendant who had raised the claim of set-off failing which it would be treated that plaintiff had no defence---Claim of set-off had to be placed in written statement at the first instance---If defendant failed to submit his claim of set-off in written statement then he would be barred from raising such defence which was not claimed in the written statement---Claim of set-off could be represented at a subsequent stage after leave of the court---Doctrine of equitable set-off could be permitted on an equitable consideration of defendant to raise a plea of set-off even with regard to unascertained sum of money---Set-off could be claimed subject to condition that if there be some connections between plaintiff's claim for a debt and defendant's claim to a set-off then it would be inequitable for the defendant to prove the same through separate suit---Such kind of equitable set-off should be claimed by the parties arising out of same transactions or to a cross demands which were connected in their nature and circumstances---Set-off was a counter claim for a specific amount and same could be claimed where defendant and plaintiff were reciprocally debtors of each other---When a party claimed set-off then it had to comply with the rules of pleadings contained in Civil Procedure Code, 1908---Defendant while claiming set-off with regard to any amount which was beyond the claim of plaintiff had in fact pleaded to write-off plaintiff's claim and claimed for decree for the balance amount---Defendant must state the particulars and basis of the claim in detail applying the principles of pleadings---Claim of set-off when suit had been dismissed in default or withdrawn or dismissed on the basis of evidence would survive and same required separate adjudication even where plaintiff had failed to prove his case.

Appellant in person.

Nemo for Respondent.

2018 C L C 627

[Islamabad]

Before Aamer Farooq, J

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

Versus

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

F.A.O. No.14 of 2015, decided on 12th January, 2018.

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

----S. 30---Award---Objection against---Court, jurisdiction of---Scope---Court while hearing objections does not act as court of appeal and cannot undertake reappraisal of evidence recorded by arbitrator.

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

----Ss. 30, 33 & 39---Award---Objection against---Court, jurisdiction of---Scope---Objections against award were dismissed by Trial Court---Validity---Evidence tendered by parties was duly considered and on basis thereof, arbitrator reached conclusion that respondent was entitled to the award---Entire evidence, as well as factual and legal aspects of the matter were duly taken into account---Neither any legal error was floating on surface of record nor arbitrator had failed to take into consideration the material evidence adduced by parties---Arbitrator, in circumstances, committed no misconduct within meaning of Ss.30 & 33, Arbitration Act, 1940---High Court declined to interfere in the matter---Appeal was dismissed in circumstances.

[Case-law referred]

Rai Ali Nawaz Kharal, Rehan Seerat and Barrister Bilal Akbar Tarar for Appellants.

Barrister Babar Ali Khan for Respondents.

2018 C L C 648

[Islamabad]

Before Mohsin Akhtar Kayani, J

SAEED ULLAH KHAN----Petitioner

Versus

MUHAMMAD KHALID and 3 others----Respondents

Civil Revision No.493 of 2015, decided on 22nd November, 2017.

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

----S.27---Postal certificate--- Delivery of letter--- Presumption--- Certificate of post is an official document whereby address of addressee on such certificate, being correct, presumption arises of letter having been received by addressee unless contrary has been proved---Such document of postal certificate is a public document signed by government functionaries therefore, presumption of its correctness cannot be doubted.

[Case-law referred].

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

----Art. 84---Signature---Comparison by court---Scope---Signatures can be proved by other modes but High Court can also exercise such power.

[Case-law referred].

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

----O. XX, R. 5 & O. XLI, R. 31---Judgment of Appellate Court---Mandatory requirements---Scope---Judgment passed by Lower Appellate Court which does not qualify test and requirements of law and there is no decision with regard to each point which is main requirement, has no effect.

[Case-law referred].

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

----Ss. 12 & 22---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell---Concurrent findings of facts by two courts below---Agreement not enforceable---Scope---Plaintiff entered into agreement to sell plot by defendant on basis of provisional allotment---Plaintiff paid partial amount but did not make remaining payments within time---Defendant issued legal notice stating cancellation of agreement for committing default by plaintiff---Suit filed by plaintiff was decreed in his favour by Trial Court and Lower Appellate Court also maintained the same---Validity---Subject matter of agreement to sell was not in existence at time of execution of agreement to sell and no plot number, street number or sector was determined, mentioned or available---All such issues pertained to objectivity of agreement and without existence of suit property performance could not be claimed nor even any legal enforcement be made---Although eligibility of allotment of defendant was in existence yet it did not create any substantive right even in his own favour---Trial Court, through its judgment, did not consider law on the subject of specific relief, the Specific Relief Act, 1877, nor even considered admissibility of legal notice, postal receipt, legal notice for termination of agreement, its postal receipt, acknowledgement due cards bearing signatures of plaintiff and basic conditions of agreement for deposit of development charges---Trial Court wrongly exercised jurisdiction with material defects and passed judgment which was not sustainable in eyes of law---Lower Appellate Court did not discuss evidence in its true perspective and passed final judgment in appeal which did not qualify to be called as reasons---Both courts below evidently committed mistake which was material for conclusion of matter and if such findings were not disturbed, in revisional jurisdiction, it would materially effect on merits of case--- High Court in exercise of jurisdiction under S.115, C.P.C. set aside judgment and decrees passed by two courts below as those were result of misreading of evidence and were based on controversial facts and wrong parameters--- High Court directed defendant to return earnest money to plaintiff and keeping in view depreciation of money and increase in value of plot, enhanced earnest money of Rs.100,000/- to Rs.1,000,000/- as petitioner had kept amount with him for 13 years---Revision was allowed accordingly.

[Case-law referred].

Saeed Khurshid Ahmed and Muhammad Anwar Bhawar for Petitioner.

Muhammad Nazir Jawwad for Respondent No.1.

2018 C L C 793

[Islamabad]

Before Aamer Farooq, J

CITY SCHOOL (PVT.) through Manager Administration----Petitioner

Versus

RUBINA HABIB and others----Respondents

Civil Revision No.184 of 2015, decided on 21st November, 2017.

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

----Ss. 117, 161 & 164---Specific Relief Act (I of 1877), S.8---Demarcation of land by the Revenue Officer---Suit for possession---Seeking fresh demarcation of suit land through local commission---Scope---Revenue Officer prepared demarcation report/Naqsha Tajawaz on the basis of which suit for possession was filed---Defendant moved application for fresh demarcation of suit property which was accepted by the Trial Court---Validity---Demarcation was conducted by the revenue officer and Naqsha Tajawaz was prepared on the application of plaintiff-- Demarcation report was prepared after issuance of notices to the parties of adjacent properties---Demarcation of land situated within the revenue estate was exclusively within the domain of revenue authorities---Defendant had remedy of appeal and/or revision which they did not avail---Defendant by seeking appointment of a local commission for demarcation afresh impliedly sought to assail Naqsha Tajawaz which was not permissible under the proceedings before the Trial Court---Any challenge to the demarcation report/Naqsha Tajawaz could have been made before the hierarchy under land revenue laws---Trial Court while appointing Tehsildar as local commission or ordering fresh demarcation of suit property had committed material irregularity in exercise of jurisdiction---Even otherwise defendant during the course of evidence could challenge the veracity of Naqsha Tajawaz---Impugned order passed by the Trial Court was set aside and application filed by the defendant was dismissed---Revision was allowed in circumstances.

Dilawar Khan and 2 others v. Mst. Mehrun Nissa and 8 others 2011 YLR 872; Anwar Club and another v. Muhammad Sarwar PLD 1992 Lah. 63 and Badal and another v. Mansoor Ahmad Awan and 7 others 2010 CLC 1968 rel.

Muhammad Ishtiaq Ahmad Raja for Petitioner.

2018 C L C 856

[Islamabad]

Before Shaukat Aziz Siddiqui, J

FAIZ AHMED CHEEMA----Petitioner

Versus

FEDERATION OF PAKISTAN through M/o Interior Islamabad and 3 others----Respondents

W.P. No.3844 of 2016, decided on 31st October, 2016.

Constitution of Pakistan ---

----Arts. 15, 16 & 19---Freedom of members of a political party to hold a sit-in protest---Scope---Freedom of assembly, movement and expression was the right of every citizen guaranteed by the Constitution, but said freedoms were not unbridled---Content of speeches of the leader of the political party that sought to protest clearly suggested that intent and object of the protest was not merely lodging of protest but apparently a move to stop the elected Government from functioning and performing its day to day affairs and also to keep away the citizens from enjoying their Fundamental Rights, which obviously tantamount to abridgment of the Constitutional rights of citizens---High Court directed that in order to ensure the protection of life, security, person, property and other Fundamental Rights of the citizens of the city where the protest was scheduled to take place, the State was duty bound to protect said rights and take all remedial steps in accordance with law; that if any attempt was made to block or lock down the city or any effort was made to disrupt the normal life of the city, the administration had the authority to deal with the situation as per mandate of law.

Barrister Jehangir Jadoon, Inam-ur-Rahiem, Malik Muhammad Siddique Awan, Adil Aziz Qazi, Mir Farooq Sulehria, Ch. Naeem Ali Gujjar, Arshad Mehmood, for Petitioners in their respective Writ Petitions.

Abdur Rashid Sheikh Petitioner in person.

Raja Zubair Hussain, and Syed Nauman Shah, for Petitioners (in W.P. No. 3914/2016).

Mian Muhammad Faisal, Advocate, for Petitioner (in W.P. No.3931/2016).

Muhammad Nasir Shehzad, for Petitioner in person.

Mian Abdul Rauf, Advocate General, ICT.

Afnan Karim Kundi, Addl. Attorney General.

Arshad Mehmood Kiani, DAG, Arshad Jadoon, DAG, Fazal-ur-Rehman Khan Niazi, DAG and Ch. Abdul Khaliq Thind Standing Counsel.

Zulfiqar Haider, Chief Commissioner, ICT, Islamabad, Cap. (R) Mushtaq Ahmed, District Magistrate/Deputy Commissioner.

Tariq Masood Yasin, IG, ICT, Islamabad.

Sajid Mehmood Kiani, SSP Operation, Azhar Shah, DSP (Legal), Abdul Rauf, Inspector.

Haji Adam, D.G (Monitoring), PEMRA.

Ali Zeshan Gondal, Incharge (Litigation) PEMRA.

S. Naeem Bukhari, Dr.. Babar Awan ASC, Jalil Shah, Ajmal Ghaffar Toor, Mubashir Najib, Malik Naseem Abbas Nasir, Basharat Ullah, Raja Haider Ali, Saira Mehreen Abbasi, Ch. Zaheer Ahmad, Shoukat Mehmood Khan, Maqsood Ali Khan, Mirza Asim Baig, Ch. Asif Nasim Abbas and Niaz Ullah Khan Niazi, Advocates for Respondent No. 4..

2018 C L C 877

[Islamabad]

Before Athar Minallah, J

PAKISTAN STONE DEVELOPMENT COMPANY LIMITED through Chief Executive Officer----Appellant

Versus

MUHAMMAD YOUSAF and another----Respondents

F.A.O. No.90 of 2015, decided on 16th January, 2018.

Arbitration Act (X of 1940)---

----S. 34---Civil Procedure Code (V of 1908), O. VII, R. 2---Money suit---Stay of proceedings---Requirements---Tender for supply of machinery---Contract containing arbitration clause---Dispute with regard to implementation of contract---Word "step in the proceddings in S.34, Arbitration Act, 1940---Scope---Defendant appeared before the Trial Court and filed his power of attorney---Suit was adjourned for filing of written statement---Defendant instead of submitting written statement moved an application seeking stay of proceedings but same was dismissed---Validity---Plaint was filed by the plaintiffs on 05-06-2015 wherein summons were issued---Defendant appeared on 18-06-2015 and submitted his power of attorney on 25-07-2015 and obtained copy of plaint on the same day---Defendant after obtaining copy of plaint and other documents got knowledge for the first time with regard to cause of action---Defendant moved application for stay of proceedings promptly in circumstances---Court had to be satisfied on the basis of facts and circumstances in each case that conduct of the party seeking stay of proceedings displayed an unequivocal intention to proceed with the suit and give up the right to have the matter disposed of through arbitrator---Court should examine the facts in each case so as to determine whether conduct of party seeking stay would amount to pursuing the suit---Conduct of party seeking stay of proceedings ought to reflect willingness to participate in the same and factor of acquiescence must not be in doubt---Requesting a single adjournment would not tantamount to stepping in the proceedings by the party seeking stay of the same---Impugned order passed by the Trial Court was set aside---Application moved by the defendant should be deemed to be pending---Trial Court was directed to decide the said application after affording an opportunity of hearing to the parties---Appeal was allowed in circumstances.

Hamad Raza v. Sajid Hussain 2014 CLC 1057; Province of Punjab through Secretary to Government of Punjab, Communication and Works Department and 04 others v. Ehsan Fazal and Company, Lahore 1986 CLC 2800; Infospan (Pvt.) Limited v. Messrs Telecom Foundation 2017 CLC 131; Muhammad Idris and others v. Tobarak Hossain PLD 1965 Dacca 260; Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196; Board of Intermediate and Secondary Education, Sargodha and another v. Messrs Akhtar Brothers 1981 CLC 221, Abdul Quddoos Dost Muhammad Momin and another v. Abdul Gani Abdul Rahman and another AIR 1954 Nagpur 332 and Deluxe Film Distributors Ltd. v. Sukumar Kumar AIR 1960 Calcutta 206 ref.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196 distinguished.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 and M/S Uzin Export and Import Enterprises for Foreign Trade v. M/S M. Iftikhar Company Limited 1993 SCMR 866 rel.

Muhammad Asif Khan for Appellant.

Sardar Haroon Sami for Respondents.

2018 C L C 919

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SOHAIL AHMED JAN----Petitioner

Versus

SIRAJ AHMED JAN and 9 others----Respondents

C.R. No.73 of 2016, decided on 2nd October, 2017.

(a) Gift---

----Oral gift--- Ingredients--- Pleadings--- Requirements--- Fraud--- Family transfer of property---Contradictory facts---Effect---Gift in favour of daughter--Scope---Contention of plaintiff was that he was entitled to inherit his share in the suit properties and documents of transfer were false and manipulated, without free will and consent of the donor---Suit was dismissed by the Trial Court---Validity---Where fraud, undue influence or coercion was alleged, essential particulars were to be given instead of making general allegations---Bald or vague statements to that effect were of no legal consequence---Court must scrutinize the pleadings to find out that plea had been made out and that full particulars thereof had been given---Plaintiff's pleadings in the suit with regard to falsehood and manipulation of transferred documents were not so appealing so as to invalidate the validity of oral gift of suit land duly recorded in records of Development Authority---Plaintiff's testimony regarding his mother's health was not in consonance with his pleadings in the suit---Transfer of suit properties could not be held unlawful or void in absence of any independence proof as to the mental incapacity of the donor---Donor in order to establish gift must either in the presence of witnesses or otherwise make a statement that he or she had gifted property in favour of donee and that he divested himself of the ownership of property by delivering possession to the donee who accepted it---Gift of suit property, in the present case, was made in the office of Development Authority---Donor submitted an application for transfer of suit property in favour of donee and appeared before the officers of Development Authority---Transfer documents of suit property were executed with free consent of donor---Transfer of suit property was a 'family transfer' which was a recognized mode of transfer of property under the law---Inconsistent positions taken in the pleadings and evidence were not worthy of any consideration---Party/witness who took inconsistent position would lose credibility---Writing was not essential for the validity of a gift either of movable or immovable property---Gift could be made orally---Gift would be complete if offer was made by the donor and accepted by the donee and possession of subject matter was delivered to the donee---Donor made gift in favour of her daughter orally and no question for registration would arise---Appearance of donor and donee in the offices of Development Authority for transfer of suit property was ample proof of declaration of oral gift and its acceptance by the donee---Donee was in possession of the suit property---Essential ingredients for a valid gift had been satisfied in circumstnaces---Donor and donee both resided in the suit property after its transfer till death of donor---When donor gifted a property to a child/donee in which both the donor and donee resided then constructive possession of gifted property should be given to the donee---Plaintiff's mother had gifted and transferred suit property in favour of defendant during her lifetime---Holder of a property could gift the whole or any part of his property to one of his children in his lifetime---No mis-reading, non-reading or jurisdictional infirmity had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed in circumstances.

[Case-law referred]

(b) Islamic law---

----Gift---Ingredients.

Under Islamic law, all that is necessary is declaration, acceptance and delivery of possession. A gift can be made orally. Gift by a Muslim would be complete, even if there is no writing, but the three ingredients have to be proved. It is not necessary that there should be a deed of gift to make it a valid gift.

(c) Pleadings---

----Pleadings had to be treated as a foundation in civil matters---Point having not been taken regarding factual position could not be allowed to be taken at subsequent stage or during evidence---Party could not make a departure from its pleadings and was bound by the same---No evidence contrary to the pleadings could be permitted to be adduced by a party to the suit.

[Case-law referred]

(d) Maxim---

----"Allegans contraria non est audiendus"---Meaning: A person alleging contradictory facts should not be heard.

Taufiq Asif for Petitioner.

Ch. Liaqat Ali for Respondent No.1.

Mian Abdul Razzaq for Respondents Nos.2 to 4.

Syed Masood Ahmed for Respondent No.10.

2018 C L C 947

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PARK VIEW ENCLAVE (PVT.) LTD. Through Chief Financial Officer----Petitioner

Versus

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

W.P. No.2739 of 2016, decided on 27th December, 2017.

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

----Ss. 11 & 51---Islamabad Capital Territory (Zoning) Regulations, 1992, Zone-IV---Constitution of Pakistan, Art. 199---Constitutional petition---No Objection Certificate, cancellation of---Petitioner company established a private housing scheme in Zone-IV of Islamabad Capital Territory---No Objection Certificate issued to petitioner company was cancelled but petitioner company did not stop development work in its scheme and sought issuance of "No Objection Certificate" which was declined by the authorities---Validity---Any party establishing housing scheme within Islamabad Capital Territory had to show respect to provisions of Capital Development Authority Ordinance, 1960, as well as rules and regulations made thereunder---Petitioner took a calculated risk in continuing with development work in face of continued warnings from planning wing of Capital Development Authority---Consequences of risk that petitioner took was something that it had to face---One such consequence was that petitioner would not be entitled to relief in discretionary/equitable jurisdiction of High Court---Regulations made by Capital Development Authority making issuance of "No Objection Certificate" as an essential prerequisite for development works could not be given a go-bye because of magnitude of petitioner's housing scheme or financial benefit that petitioner was aiming to gain from sale of plots in said housing scheme---High Court declined to validate construction during period when "No Objection Certificate" stood cancelled---Such construction was not permissible under terms on which layout plan was approved as well as law---Petitioner assailed notification in question on 04-07-2016 whereby Capital Development Authority had cancelled/ withdrawn "No Objection Certificate" i.e., more than one year and seven months after issuance of notification dated 07-11-2014---Such indolence on part of petitioner could not be ignored---High Court declined to interfere in the matter in equitable/discretionary jurisdiction under Art.199 of the Constitution in view of conduct of petitioner in continuing with development work despite cancellation of "No Objection Certificate"---Constitutional petition was dismissed in circumstances.

PLD 2008 SC 673; Al-Haaj Raees Ahmad Qureshi v. Water and Sanitation Agency (W.A.S.A.) 2005 YLR 326 and Gouriet v. Union of Post Office Workers [1977] 1 All ER 696 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Powers of High Court---Scope---Power of High Court under Art.199 of the Constitution to issue an appropriate writ, order or direction is discretionary---One of the grounds on which relief can be refused by High Court exercising Constitutional jurisdiction is when petitioner is guilty of delay and laches---When petitioner invokes extraordinary remedy under Art.199 of the Constitution he should come to the court at earliest possible opportunity---Inordinate delay in making motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of petitioner---When petitioner is guilty of laches or undue delay in approaching High Court, principle of laches or undue delay disentitles such petitioner from discretionary relief under Art.199 of the Constitution from High Court, particularly when there is no plausible explanation on petitioner's part for his blame worthy conduct of approaching High Court with undue delay---Courts cannot come to rescue of persons who are not vigilant regarding their rights; it is unjust to give petitioner a remedy whereby his conduct could fairly be regarded as equivalent to a waiver---No period of limitation is prescribed for High Court to exercise its powers conferred under Art.199 of the Constitution---Nothing can prevent the High Court from interfering in a matter after passage of a certain length of time; it is only those cases where order assailed is wholly without jurisdiction, coram non judice or void ab initio---High Court in exercise of its jurisdiction under Art.199 of the Constitution can overlook delay on petitioner's part in approaching the High Court---High Court can refuse exercise of extraordinary power under Art.199 of the Constitution in cases where petitioners do not approach it expeditiously for relief.

Mujeeb-ur-Rehman Kiani and Syed Qamar Hussain Sabzwari for Petitioner.

G. Shabbir Akbar and Kashif Ali Malik for C.D.A.

Ms. Sitwat Jehangir, Assistant Attorney-General for Respondents.

2018 C L C 1006

[Islamabad]

Before Mohsin Akhtar Kayani, J

QURBAN HUSSAIN RAJA---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

W.P. No. 2935 of 2014, decided on 23rd April, 2018.

Constitution of Pakistan---

----Art. 199---Recovery of person missing in foreign country---Duty of State---Scope---Petitioner contended that his son, who was employed in a foreign country, went missing and his whereabouts were not known, and that the matter was also reported to the local police station in the foreign country but no recovery had been made till date---Held, that the State was responsible for their citizens anywhere in the world---High Court directed that the Ministry for Foreign Affairs and Ministry of Interior should make all efforts to take up the matter with the authorities in the foreign country and manage recovery of missing son of petitioner with the Consulate of Pakistan as well as Pakistan High Commission; that Secretary of Ministry of Foreign Affairs and Ministry of Interior should write down letters of request to the Consulate of the foreign country in Pakistan as well as concerned authorities of foreign country to trace whereabouts of the missing son of petitioner, and that any such information, if received, from the authorities should be conveyed to the petitioner---Constitutional petition was allowed accordingly. [p. 1009] A

Barrister Afzal Hussain and Arslan Binyamin for Petitioner.

Haseeb Chaudhry, Deputy Attorney-General for Respondents.

2018 C L C 1040

[Islamabad]

Before Aamer Farooq, J

Chaudhry ASAD-UR-REHMAN----Petitioner

Versus

The ELECTION COMMISSION OF PAKISTAN and 17 others----Respondents

W.P. No.2691 of 2017, decided on 11th December, 2017.

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

----Ss. 56(2), 58, 63, 67(3) & 103-AA---Civil Procedure Code (V of 1908), O.IX, R.9---Dismissal of election petition for non-prosecution---Remedy---Election petition filed by respondent was dismissed by Election Tribunal for non-prosecution---Application for restoration of election petition was entrusted by Election Commission to another Tribunal to decide application as well as election petition on merits after hearing the parties---Validity---Procedure laid down by Election Commission did not give or provide Election Tribunal any power/jurisdiction which was akin to O.IX, R.9, C.P.C.---No power of review was provided to Election Tribunal under Representation of the People Act, 1976 meaning thereby that any decision rendered or order passed could not be recalled by Election Tribunal either in exercise of review or powers similar under O.IX, R.9, C.P.C.---No appeal was provided against order passed by Election Commission, however, same could be assailed if it suffered from illegality or jurisdictional error---Order in question suffered from jurisdictional error inasmuch as Election Commission had no jurisdiction to entrust application for restoration to any other Tribunal---High Court set aside order passed by Election Commission consequently application for restoration of election petition stood dismissed---Constitutional petition was allowed in circumstances.

Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others' 1987 SCMR 1107; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Shehzad Khan Khakwani v. Aamir Hayat Hiraj and others 2011 CLC 25 and Asif Nawaz Fatiana v. Walayat Shah and others 2007 CLC 610 rel.

Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad and 5 others PLD 1989 SC 760; Dur Muhammad Khan Nasir and others v. Muhammad Shafiq Tareen and others PLD 2014 Bal. 152; Muhammad Raza Hayat Hiraj v. Election Commission of Pakistan and others 2015 SCMR 233; Muhammad Asim Kurd v. Mir Lashkari Khan Riasani PLD 1998 Bal. 1; Salahuddin Tirimizi v. Election Commission of Pakistan PLD 2008 SC 735; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Aftab Shaban Mirani v Muhammad Ibrahim Jatoi PLD 2008 SC 779; Nur Muhammad v. Mst. Sardar Khatoon PLD 1951 Sindh 1 and Mian Sharif Shah v. Nawab Khan PLD 2011 Pesh. 86 ref.

Mustafa Ramday and Zaafir Khan for Petitioner.

Sardar Abdul Raziq Khan for Respondents.

2018 C L C 1056

[Islamabad]

Before Mohsin Akhtar Kayani, J

Mst. AZRA GULZAR---Petitioner

Versus

MUHAMMAD FAROOQ and another---Respondents

Civil Revision No.210 of 2014, decided on 29th September, 2017.

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

----S. 12---Suit for specific performance of agreement---Compromise before court---Plaintiff alleged that whole earlier litigation was settled between the parties on basis of compromise arrived at between parties before court but defendant failed to perform his part of agreement---Suit was decreed in favour of plaintiff by Trial Court but Lower Appellate Court reversed findings and dismissed the suit---Validity---Defendant did not bring on record any circumstances through which it could be proved that he was under duress and coercion, especially when nine other cases referred in compromise deed were withdrawn by plaintiff and even criminal case was also settled down between parties---Not a single criminal or civil suit was in field rather all were withdrawn---Plaintiff and her husband had complied with terms of agreement and defendant had taken a belated plea in order to deprive them from their rights---Agreement recorded by court of law was a valid agreement and undertaking given during pendency of suit had a binding effect---Lower Appellate Court exercised jurisdiction not vested in it and figured the entire findings on hypothetical assumption which was actually based on no evidence---High Court set aside judgment and decree passed by Lower Appellate Court as jurisdiction was not exercised diligently---Judgment of Trial Court was restored---Revision was allowed in circumstances.

[Case-law referred]

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

----Art. 129, Illustration (e)---Judicial proceedings---Presumption---Statement of an individual--- Scope--- Sanctity attached to judicial proceedings is much higher than statement of individual wherein presumption of truth is always attached to judicial proceedings.

[Case-law referred]

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

----S. 115---Revisional jurisdiction of High Court---Judgments at variance---Effect---In case of conflicts of Trial Court and Lower Appellate Court, decision of Lower Appellate Court has to be preferred in revisional jurisdiction---Preference of appellate judgment of Lower Appellate Court can only be sustainable if same is not in violation of principles of administration of justice and is not arbitrary or fanciful---Where such qualifications are apparent on record, judgment of Lower Appellate Court was not to be considered.

[Case-law referred]

Syed Javed Akbar and Ch. Mushtaq Ahmed Khan for Petitioner.

Tahir Iqbal for Respondent No.1.

Barrister Jahangir Khan Jadoon for C.D.A./Respondent No.2.

2018 C L C 1125

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD AFZAL KHAN---Petitioner

Versus

CHAIRMAN ARBITRATION COUNCIL and another---Respondents

W.P. No.470 of 2017, decided on 29th December, 2017.

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

----S.7---Arbitration Council, role of---'Divorce Effective Certificate'---Death of wife (applicant) during proceedings---Daughter of petitioner was married to respondent and she had right of delegated divorce in her favour pursuant to Column No.18 of Nikahnama---Daughter of petitioner, during her lifetime, exercised her right and issued divorce to respondent, copy of same was sent to Arbitration Council---Arbitration Council during proceedings, declined to issue 'Divorce Effective Certificate' on the grounds that daughter of petitioner did not appear before the Arbitration Council because of her death---Validity---Purpose of Arbitration Council was to hold reconciliation proceedings between spouses and if matter was not reconciled, Chairman Arbitration Council had to issue 'Certificate of Effectiveness of Talaaq', after expiry of 90 days---It was prerogative and authority of person, who had filed application along with notices of divorce for issuance of 'Certificate of Effectiveness of Talaaq' to withdraw same before expiry of 90 days---If the application was not withdrawn by applicant (whether applicant was husband or wife), Chairman Arbitration Council could not refuse to issue "Certificate of Effectiveness of Talaaq", especially in those cases when other side did not appear for reconciliation proceedings---If wife (in case of delegated right of divorce) approached the Chairman Arbitration Council for issuance of 'Certificate of Effectiveness of Talaaq' and notices were issued to other side but other side failed to appear before Chairman Arbitration Council and in the meanwhile, applicant (wife) or person, who applied, had died then it could only be presumed that the executor of notices of Talaaq had intention to pronounce Talaaq as same could be gathered from documents of Talaaq---High Court directed the Arbitration Council to issue 'Certificate of Effectiveness' of Talaaq in name of deceased daughter of petitioner when 90 days had completed from date of filing application---Constitutional petition was allowed accordingly.

Mst. Zahida Shaheen and others v. State and others 1994 SCMR 2098; Part-II, Chapt. 12, Section 101; Khawar Iqbal v. FOP 2013 MLD 1711; Sajid Hussain Tanoli v. Nadia Khattak and 3 others 2013 CLC 1625; Mst. Gul Zameeran and 3 others v. Aasia 2017 CLC 1431; Malik Khalid Riaz v. The Administrator, Arbitration Council, Hafizabad and another 2016 CLC 1522; M. Parnian Arooj v. Mehmood Sadiq and another 2010 CLC 258 and Mushtaq Ahmed and another v. Sat Bharai and 5 others 1994 SCMR 1720 rel.

Rashid Hanif for Petitioner.

Respondent No.1 in person.

Respondent No.2 ex parte.

2018 C L C 1160

[Islamabad]

Before Shaukat Aziz Siddiqui, J

FAIZ AHMAD CHEEMA---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

W.P. No.3844 of 2016, heard on 31st October, 2016.

(a) Constitution of Pakistan---

----Art. 16---Right to assemble---Principle---Need for regulation of right to assemble has been expounded by various judicial fora from across the globe who, whilst recognizing right to protest in democracy, have attached equal significance to such protests being made the contours of law to ensure that public does not suffer---Field cannot be left open to a group of protestors, especially in prevalent security environment to do as they may please sans any legal restriction.

Wattan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; D.G. Khan Cement Company Ltd. v. Federation of Pakistan and others PLD 2013 Lah. 693; (2012) 5 SCC l Ramlila Maidan. Incident, In Re: Appleby and others v. The United Kingdom (Application No.44306/98); 2003 ECHR 222; Austin and others v. The United Kingdom Applications Nos.39692/09, 40713/09 and 41008/09; Oya Ataman v. Turkey (Application No.74552/01 and Kivenmaa v. Finaland (Communication No.412/1990, U.N. Doc. CCPR/C/50/D/ 412/1990 (1994)) rel.

(b) Constitution of Pakistan---

----Art. 9---Protection to life and liberty---Scope---Provision of Art.9 of the Constitution does not merely constitute vegetative life, in fact, has to be construed widely.

Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

(c) Constitution of Pakistan---

----Arts. 9, 16 & 199---Constitutional petition---Right to assemble---Lockdown of city---Petitioner was aggrieved of the decision made by respondent political party to lockdown city (Islamabad) till fulfilment of their demands---Validity---By locking down or even intending to lock down a city or a part thereof contravened Fundamental Rights of public who were likely to be affected by such a move---Intent and motive of lock down ran afoul of provisions of the Constitution---Respondent (political party) though had a right to assemble and protest however the right was subject to legal restrictions which included prerogative of District Administration to earmark a particular place for a protest and to ensure that life of public remained unaffected---Respondent (political party) was bound to give prior notice to District Administration specifying details (time, date and duration) of proposed rally/protest and to ensure that it was conducted within the parameters of law---On the threshold of equality, Fundamental Rights of a particular person/party could not supersede the rights of the rest of the populace---High Court directed Federal Government to formulate a comprehensive policy outlining restrictions based on public policy on the right to assemble---Such restrictions should keep paramount Fundamental Rights of public at large whilst pursuing broader aims of national security and public safety---Constitutional Petition was disposed of accordingly.

Gohar Nawaz Sindhu v. Province of Punjab and others 2014 CLC 1558; Haji Lal Muhammad v. Federation of Pakistan and others PLD 2014 Pesh. 199 and Shaheen Cotton Mills, Lahore v. Federation of Pakistan and others PLD 2011 Lah. 120 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Objection to hearing by a particular Bench of the High Court---Scope---Respondent objected to hearing of petition by a specific Judge sitting on Bench of High Court---Validity---Objection was resisted by authorities as well as by petitioner---High Court observed that justice was to be dispensed with in absolute consonance with law, without fear or favour; practice of objecting to a particular Bench of High Court should be based on cogent reasoning rather than mere apprehensions or personal choices of party to the lis---Objection was overruled in circumstances.

The Federal Government of Islamic Republic of Pakistan v. General (R) Pervez Musharraf 2014 PCr.LJ 684 rel.

Barrister Jehangir Jadooan, Inam-ur-Rehiem, Malik Muhammad Siddique Awan, Adil Aziz Qazi, Mir Farooq Sulehria, Ch. Naeem Ali Gujjar, Arshad Mehmood, for Petitioners (in their respective Writ Petitions).

Abdur Rashid Sheikh-Petitioner in person.

Raja Zubair Hussain and Syed Nauman Shah for Petitioners (in W.P. No.3914/2016).

Mian Muhammad Faisal for Petitioner (in W.P. No.3931/2016).

Muhammad Nasir Shehzad-Petitioner in person.

Mian Abdul Rauf, Advocate General, ICT.

Afnan Karim Kundi, Addl. Attorney General.

Arshad Mehmood Kiani, DAG, Arshad Jadoon, DAG, Fazal-ur-Rehman Khan Niazi, DAG and Ch. Abdul Khaliq Thind Standing Counsel for Respondents.

Zulfiqar Haider, Chief Commissioner, ICT, Islamabad, Cap. (R) Mushtaq Ahmed, District Magistrate/Deputy Commissioner.

Tariq Masood Yasin, IG, ICT, Islamabad.

Sajid Mehmood Kiani, SSP Operation, Azhar Shah, DSP (Legal), Abdul Rauf, Inspector.

Haji Adam, D.G, (Monitoring), PEMRA.

Ali Zeshan Gondal, Incharge (Litigation) PEMRA.

S. Naeem Bukhari, Dr. Babar Awan ASC, Jalil Shah, Ajmal Ghaffar Toor, Mubashir Najib, Malik Naseem Abbas Nasir, Basharat Ullah, Raja Haider Ali, Saira Mehreen Abbasi, Ch. Zaheer Ahmad, Shoukat Mehmood Khan, Maqsood Ali Khan, Mirza Asim Baig, Ch. Asif Nasim Abbas and Niaz Ullah Khan Niazi, Advocates for Respondent No.4.

Date of hearing: 31st October, 2016.

JUDGMENT

SHAUKAT AZIZ SIDDIQUI, J.---Petitioners through their respective writ petitions invoked the constitutional jurisdiction of this Court challenging the proposed lockdown of Islamabad Capital Territory by the Pakistan Tehreek-e-Insaf, divulged through several statements of Respondent No.4 wherein an intent/motive was expressed to lockdown and paralyze life in the Islamabad Capital Territory and obstruct the functioning of the Federal Government (hereinafter referred to as "the Lockdown").

1. A general theme across all the writ petitions was that the Lockdown would result in the public of Islamabad in particular being held hostage to the whims and desires of a political party notwithstanding the merits/demerits of such political measures. The challenge was based on the impact, the Lockdown would have on the fundamental rights of the public at large, including Petitioners, enshrined in the Constitution of the Islamic Republic of Pakistan including inter alia:

• Article 9 - The right to life, which encompasses more than mere mortal existence and has been held to include the freedom to enjoy the amenities of life;

• Article 14 -The right to dignity including prohibiting the encroachment of any person's fundamental rights by a unilateral decision or desire of another;

• Article 15 - Freedom of movement which ostensibly would be compromised in the event of a Lockdown;

• Article 18 - The right to engage in lawful trade, business or profession which too would be adversely affected upon the Lockdown of a city and the blockage of main arteries of the road network of a city leading to important governmental establishments;

• Article 25A -The right to education as yet again due a Lockdown of a city, it will become increasingly difficult for schools to remain open; and

• Article 26 Non-discrimination in respect of access to public places.

1. Petitioners pleaded that the aforementioned constitutionally guaranteed rights would be stalled and trampled if Respondent No.4 was permitted to proceed with the Lockdown. As such, it was prayed that Respondent No.4 may be stopped in his tracks by ensuring that the protests were carried out at a designated place so that normalcy remained in rest of Islamabad. It was further submitted that a blatant threat was made to an elected Government that it will not be allowed to function, instead, will be paralysed bordered on the profane in the presence of a constitutional scheme.

2. In response to this Court's preliminary order dated 26th October, 2016 the Special Secretary (Ministry of Interior), Chief Commissioner and Deputy Commissioner (Islamabad Capital Territory) and Inspector General of Police appeared before this Court stating that all efforts shall be made to ensure the smooth running of life in Islamabad and no fundamental rights of any citizen residing in Islamabad/Rawalpindi and/or outskirts thereof may be infringed because of the Lockdown. It was also submitted that pursuant to an earlier order of this Court dated 06.11.2015 passed in Writ Petition No.3727/2014 (Syed Nadeem Mansoor v. Federation of Pakistan and others), a place adjacent to the Islamabad Expressway with the name of "Democracy Park and Speech Corner" had already been notified for lawful protests, etc.

3. Conversely, it was contended by the learned counsel for Respondent No.4 that the right to assemble and protest was within the parameters of the Constitution and, in fact, cognizance should be taken of the measures resorted to by the Government in inter alia blocking entry points to Islamabad by placing barricades/containers. The latter argument being based on the premise that the right under Article 16 of the Constitution imposes a positive obligation on public authorities to secure the effective enjoyment of this right.

4. Some of Respondent No.4's statements were a part of the Court record by virtue of newspaper clippings having been appended to the writ petitions whereas other contents of speeches were placed on the record by the Pakistan Electronic Media Regulatory Authority pursuant to this Court's order dated 27th October, 2016 requiring for the needful to be done. Accordingly, during the course of proceedings, recording of speeches of Respondent No.4 were played in this Court in presence of his learned counsel and relevant extracts of some of the speeches are reproduced verbatim for the purposes of context

Clip 1

Date: 06-10-2016

Clip 2

Date: 09-10-2016

Clip 3

Date: 22-10-2016

Clip 4

Date: 24-10-2016

Clip 5

Date: 25-10-2016

Clip 1

Date: 30-09-2016

Raiwind

Clip 2

Date: 30-09-2016

Raiwind

Clip 3

Date: 15-10-2016

Lahore

Date: 15-10-2016

Clip 4

Date: 17-10-2016

Islamabad

Clip 5

Date: 06-10-2016

Islamabad

Clip 6

Date: 15-10-2016

Lahore

Clip 7

Date: 15-10-2016

Lahore

Clip 8

Date: 23-10-2016

D.I. Khan

Clip 9

Date: 24-10-2016

Malakand

Clip 10

Date: 25-10-2016

Islamabad

1. Neither the Petitioners have argued nor is it their contention that Respondent No.4 should not exercise his constitutional rights and be restrained from holding protests against the incumbent government, however, within the parameters of the law and the Constitution. The standpoint, hence, is narrowed to the following questions:

(a) whether an individual or a political party's right to assemble and protest, supersede the constitutionally guaranteed fundamental rights of other citizens of the state and, in particular, the residents of Islamabad and adjoining areas?

(b) whether any action whose stated object is to halt the functioning of an elected government -- an offence on its own-- be deemed to be the exercise of a democratic and fundamental right?

(c) whether a protest for which a designated place was duly earmarked by the local administration be allowed to transcend into a Lockdown of the city with the stated aim and aspiration to paralyze the functioning of the government?

1. Since the entire superstructure of the Lockdown revolved around Article 16 of the Constitution, therefore, it is pertinent that the same be reproduced herein for context:

"16. Freedom of assembly.---Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order." [Emphasis added]

Besides Article 16 of the Constitution, Article 21 of the International Covenant on Civil and Political Rights recognizes the right of peaceful assembly in the following terms:

"The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others." [Emphasis added]

1. A similar provision is also contained in Article 12 of the Charter of Fundamental rights of the European Union which reads as under:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests..."

In addition to the above, the right of assembly is recognised in the following terms in the United States:

"Article 15 - American convention on human rights:

The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedoms of others." [Emphasis added]

1. There is no cavil to the proposition that international and European conventions and Article 16 of the Constitution alike provide the right to assemble, however, subject to reasonable restrictions. It is ironic that those championing the cause of democratic rights and the Constitution tend to read it in isolation only to the extent of what supports their point of view and conveniently ignore the rest. It can be logically deduced that rights have to be regulated to ensure their consonant existence with other such rights as given in the Constitution and/or are necessary for smooth functioning of the state. Admittedly, the right to assemble and demonstration has been judicially acknowledged, recently by the honourable Lahore High Court in the judgment reported as 2014 CLC 1558 (Gohar Nawaz Sindhu v. Province of Punjab and others) herein it was held that:

"23. In view of the discussion made above, we hold as under:

(b) Peaceful protests and taking out processions, without carrying arms, by the disgruntled to voice their grievances are inherent in democracy. Unreasonable restrictions imposed by the Government such as blocking all roads, routes, highways, motorways by putting up barriers and placing containers are tantamount to denying, curtailing and abridging the fundamental rights enshrined in Articles 15 and 16 of the Islamic Republic of Pakistan, 1973. The wholesale blockades on roads, highway, motorway are unwarranted, unlawful and unconstitutional.

(c) Locking down a whole province and/or restricting the movements of the public at large, bordering on their confinement is contrary to the Constitutional guarantee contained in Article 15, besides being offensive to Article 9 of the Constitution, guaranteeing that "no person shall be deprived of life or liberty save in accordance with law".

[Emphasis added]

1. Judicial dicta in Pakistan generally emphasises on the need for regulation of the right to assembly. Such a view has been expounded by various judicial fora from across the globe who, whilst recognizing the right to protest in a democracy, have attached equal significance to such protests being within the contours of the law to ensure that the public does not suffer. The field cannot be left open to a group of protestors, especially in the prevalent security environment, to do as they may please sans any legal restriction. At this stage reference to the following case law on the subject would be appropriate:

• In the case of Wattan Party and others v. Federation of Pakistan and others reported as PLD 2012 SC 292, the honourable Supreme Court of Pakistan held that:

"Security of person is one of the most important fundamental rights. It is inextricably linked with the security of the State. If an when a person Islamabad performing functions in connection with the affairs of the Federation act in a manner which imperils the very existence of the State a writ of prohibition nor any other appropriate written, according to the circumstances of the case could be issued against him. A petition filed by a citizen asking for the issuance of an appropriate writ cannot be declined simply because his fundamental right has not yet been infringed A narrow and pedantic interpretation may lend support to the argument that security of person is not imperilled or infringed by a mere threat to the security of the State, but actually it is otherwise. Security of person in the absence of a strong, secure and stable State would be inconceivable. It would be as imaginary as drinking water from a mirage. Therefore, fundamental right of person would stand infringed the moment something tending to imperil the security of State is done...

Consent to connivance at or complicity in the infringement of security of person may not be so criminal, as an act, an omission or an attitude evincing the aforesaid attributes in the infringement of security of State. It is rather pedantic, perverse and preposterous to detach or disassociate security, solidarity and sovereignty of the State from fundamental rights.... Security of the State is like a ship. On cannot have a safe and smooth sailing into the ship by permitting others to drive a hole into that...."

• In the case of D.G. Khan Cement Company Ltd. v. Federation of Pakistan and others reported as PLD 2013 Lahore 693, the honourable Lahore High Court held:

"17. Fundamental rights and their protection is essential to a modern democracy. Take human rights out of democracy, and democracy has lost its soul ... However, even in a democracy fundamental rights have limitations, this is because "in a democratic society, a human right may be limited to ensure the very existence of the state; to ensure its continued existence as a democracy; to ensure public health; to ensure public education; as well as other national causes..."

1. "Laws could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests..."

[Emphasis added]

• The Indian Supreme Court in its verdict reported as (2012) 5 SCC l (Ramlila Maidan. Incident, In Re) held that the freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of democratic system. The Indian Supreme Court, however, proceeded to observe that it is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquillity, as it may disturb the social order.

• In the case of Rama Muthuramalingam v. The Deputy Superintendent of Mannargudi, Tiruvarur District etc., the Madras High Court held as under:

"... It may be mentioned here that Article 19(1)(a) of the Constitution, which guarantees to all citizens the right to freedom of speech and expression is subject to Article 19(2), which states: Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Similarly, the right under Article 19(1)(b) to assemble peaceably and without arms is subject to Article 19(3) of the Constitution, which reads as follows:

Nothing in sub-clause (b) of the said clause shall affect the operation of my existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. Thus, both the rights of freedom of speech and expression and the right to assemble peaceably are subject to reasonable restrictions from the point of view of public order, security of State, etc., and they are not absolute rights. The expression public order was added in Article 19(2) by the Constitution (First Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court decision in Romesh Thappar v. State of Madras (AIR 1950 SC 124). After this amendment reasonable restrictions from the point of view of public order can be placed on the right to freedom of speech and expression and to assemble peaceably. The term public order is synonymous with the public peace, safety and tranquility, vide Superintendent, Central Prison, Fategargh v. Ram Manohar (AIR 1960 SC 633), Madhu Limaye v. Sub Divisional Magistrate, Monghyr (AIR 1971 SC 2486), etc., It is thus evident that the right to freedom of speech and expression and to assemble peaceably without arms is subject to reasonable restrictions from the point of view of Public Order"

• In Appleby and others v. The United Kingdom (Application No.44306/98) reported as 2003 ECHR 222, it was held that everyone has the right to freedom of peaceful assembly and to freedom of association with others and no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. The relevant extract is reproduced verbatim hereunder:

"51. The relevant parts of Article 11 of the Convention provide:

1. Everyone has the right to freedom of peaceful assembly and to freedom of Association with others;

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

• The issue of reasonable restriction was further deliberated by the European Court of Human Rights which in the case of Austin and others v. The United Kingdom (Applications Nos.39692/09, 40713/09 and 41008/09), held as under:

"55. Given the context in which this containment measure took place in the instant case, the Court considers it appropriate to recall, for the sake of completeness, that Article 2 of Protocol No.4 to the Convention guarantees the right to liberty of movement. It is true that the applicants did not invoke this provision, since the United Kingdom has not ratified Protocol No.4 and is thus not bound by it. In the Court's view, however, taking into account the importance and purport of the distinct provisions of Article 5 and of Article 2 of Protocol No.4, it is helpful to make the following reflections. First, Article 5 should not, in principle, be interpreted in such a way as to incorporate the requirements of Protocol No.4 in respect of States which have not ratified it, including the United Kingdom. At the same time, Articles 2 and 3 of the said Protocol permits restrictions to be placed on the right to liberty of movement where necessary, inter alia, for the maintenance of public order, the prevention of crime or the protection of the rights and freedoms of others. In connection with Article 11 of the Convention, the Court has held that interferences with the right of freedom of assembly are in principle justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others where demonstrators engage in acts of violence (Giuliani and Gaggio v. Italy [GC], No.23458/02, § 251, ECHR 2011). It has also held that, in certain well-defined circumstances, Articles 2 and 3 may imply positive obligations on the authorities to take preventive operational measures to protect individuals at risk of serious harm from the criminal acts of other individuals (Giuliani and Gaggio, cited above, § 244; P.F. and E.F. v. The United Kingdom, (dec.), No.28326/09, § 36, 23 November 2010). When considering whether the domestic authorities have complied with such positive obligations, the Court has held that account must be taken of the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (Giuliani and Gaggio, cited above, 245; P.F. and B.F. v. The United Kingdom, cited above, 40)."

• In the case of Oya Ataman v. Turkey (Application No.74552/01), the European Court of Human Rights held as follows:

"30. The Court notes at the outset that there is no dispute as to the existence of an interference in the applicant's right of assembly. This interference had a legal basis, namely section 22 of Law No.2911 on assemblies and marches, and was thus "prescribed by law" within the meaning of Article 11 § 2 of the Convention. There remains the question whether the interference pursued a legitimate aim and was necessary in a democratic society

1. Legitimate aim.

2. The Government submitted that the interference pursued legitimate aims, including the prevention of disorder and protection of the rights of others.

3. The Court considers that the disputed measure may be regarded as having pursued at least two of the legitimate aims set out in paragraph 2 of Article 11, namely the prevention of disorder and the protection of the rights of others, specifically the right to move freely in public without restriction.

4. Necessary in a democratic society

5. ... In those circumstances, and taking into account the margin of appreciation afforded to States in this sphere, the Government considered that the risk of disruption to civilians who were in the park at a busy time of day and the demonstrators' resistance justified the dispersal of the gathering in question....

6. .... It goes without saying that any demonstration in a public place may cause a certain level of disruption to ordinary life and encounter hostility; this being so, it is important that associations and other organizing demonstrations, as actors in the democratic process, respect the rules governing that process by complying with the regulations in force..."

• In Kivenmaa v. Finaland (Communication No.412/1990, U.N. Doc. CCPR/C/50/D/412/1990 (1994), the United Nations Human Rights Committee held as follows:

"9.2 ... A requirement to pre-notify a demonstration would normally be for reasons of national security or public safe, public order, the protection of public health or morals or the protection of the rights and freedoms of others..."

1. Hence, there is no doubt that the imposition of reasonable and lawful restrictions are an embedded feature of the right to assemble. More so, jurisdictions across the world have emphasised that demonstrations must be within the ambit of the law not reeking of hostility and being time, place and manner specific.

2. Considering Petitioners vide the titled writ petitions have apprehended the violation of rights guaranteed under the Constitution, this Court has a duty to strike a proper balance between the freedom to peacefully assemble and the competing rights of those who live, work, shop, trade and carry on business in the locality affected by an assembly. This balance should ensure that other activities taking place in the same city/region may remain unaffected if they themselves do not impose unreasonable burdens.

3. It is an admitted fact -- duly corroborated from Respondent No.4's statements -- that some of the public's constitutional rights would be obstructed on account of the Lockdown although the afore-stated obstruction has been referred to by Respondent No.4 as a "sacrifice" made in the purportedly larger interest of the country.

4. It is apparent that by hoarding political workers and supporters from across the country in Islamabad for the purposes of the Lockdown, Respondent No.4's protest, bordered on infringing the rights of the public residing in Islamabad and surrounding areas (at least of those disagreeing with the agenda of the Lockdown) entailed in the Constitution in general and Article 9 (Right to life) in particular, which was the first fundamental right likely to be stymied by the Lockdown.

5. It is judicially acknowledged that Article 9 does not merely constitute vegetative life, in fact, has to be construed widely. Reference is drawn to the judgment of the august Supreme Court of Pakistan rendered in the case of Shehla Zia and others v. WAPDA reported as PLD 1994 SC 693 wherein it was held that:

"Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally..."

1. Interestingly so, some of the statements of Respondent No.4 also fall within the scope of the provisions of section 6 of the Anti-Terrorism Act, 1997 which elaborates on the definition of terrorism and includes actions the purpose of which is designed to coerce and intimidate or overawe the Government. The statements of Respondent No.4 which have been reproduced herein verbatim clearly reflect the intent which was to intimate the duly elected sitting government. Thus, whilst restraining myself from declaring it an act of terrorism as no such contention was put forth by the parties, it is observed that coercion of an elected government cannot be condoned and the Federal Government should formulate a coherent policy to ensure the interest of the state is not compromised or cajoled.

2. Further, from the very outset, it is evident that the right to freedom of movement of the public contained in Article 15 of the Constitution will be severely hindered by the Lockdown. This right besides being enshrined in the Constitution is also duly acknowledged in the Universal Declaration of Human- Rights as proclaimed by the United Nations General Assembly (Resolution 217A), Article 13(1) whereof reads as:

"Everyone has the right to freedom of movement and residence within the borders of each state."

1. By locking down or even intending to lock down a city or a part thereof contravenes the fundamental rights of the public who are likely to be affected by such a move. As such, it can be deduced that the intent and motive of the Lockdown ran afoul of the provisions of the Constitution. I am fortified by the view taken by the Hon'ble Peshawar High Court in the judgment reported as PLD 2014 Peshawar 199 (Haji Lal Muhammad v. Federation of Pakistan and others) wherein it was observed that:

"15. In England, the right to use a highway and the obstruction thereon is dealt with, as "trespass", "public nuisance" and "private nuisance" under the Law of Tort."

1. In the same judgment, the Hon'ble Peshawar High Court referred to and relied upon the following extract from Lord Scarman's Report on the. Red Lion Square Disorders:

"English law recognizes as paramount the right of passage; a demonstration which obstructs passing along the highway is unlawful. The paramount right of passage is, however, subject to the reasonable use of the highway by others. A procession, therefore, which allows room for others to go on their way is lawful, but it is open to question whether a public meeting held on a highway could be lawful for it is not in any way incidental to the exercise of the right of passage ... I think the priority that the law gives to the right of passage is sound."

1. Parliamentarians being the custodians of the mandate of the people's will are arguably expected to act within the four contours of the Constitution, conceivably agitate their agenda within the parliament and/or act for furtherance of the rights enshrined in the Constitution. Although the right to assembly remains a constitutional option besides being indicative of a working democracy, reasonable and legal restrictions are an inherent omnipresence thereof. In advancing an agenda, no one, including Respondent No.4, ought to circumvent the constitutional rights of others, which was apparently the intended end-product of the Lockdown, whereby the public would become hostage to a political agenda and have their guaranteed constitutional rights under the Constitution trampled. The quest for a political agenda without prejudice to the merits thereof does not confer the right on any individual or a political party to disembark the constitutional rights of unsuspecting citizens. Much like the right of protest and assembly, the right not to protest and the choice to continue life in accordance with the Constitution and without any forced deviations/hindrances should also be respected. It was in this context that this Court observed that a designated place be marked (which was accordingly done) where political parties, rights' activists, etc. can assemble and register their protests. However, as has been noted in preceding paragraphs, Respondent No.4 was steadfast n the use of the word "Lockdown" with the intent and motive of paralyzing the system and the city. In no way can Respondent No.4's right to assemble his supporters and protest be given preference over another citizen's right to freedom of movement, trade, education etc.

2. Even the Constitution recognises equality of citizens as a fundamental right pursuant to Article 25 thereof. Therefore, it is only legal as also logical that Respondent No.4's right to assemble and protest cannot be preferred or held sacrosanct vis-à-vis the fundamental rights of other citizens. I deem it apt to refer to the judgment of the Hon'ble Lahore High Court reported as PLD 2011 Lahore 120 (Shaheen Cotton Mills, Lahore v. Federation of Pakistan and others) wherein it was held as under:--

"29. However, limitation may be imposed by law on the right to undertake any trade or business in order to harmonize the said right with a competing fundamental right or another person also guaranteed by the Constitution or to fulfil a positive command of the Constitution, say to give effect to Article 3 or in an endeavour to achieve the high goals and aspirations of the people of Pakistan as mentioned in the Constitution including the Principle of Policy or for public security and safety or for the advancement of public health or morality and for the welfare of the people or to create a balance between the rights of individuals and the interest of the community and the State. Needless to say that such limitations must be rational and proportionate to the end sought to be achieved."

1. Thus, in conclusion, it is held that that though Respondent No.4 had the right to assemble and protest, however, that right was subject to legal restrictions which included the prerogative of the District Administration to earmark a particular place for a protest and ensure that life of the public remains unaffected. So much so, it was mandatory upon Respondent No.4 to give prior notice to the District Administration specifying the details (time, date and duration) of the proposed rally/protest and ensure that it was conducted within the parameters of the law. On the threshold of equality, the fundamental rights of a particular person/party cannot supersede the rights of the rest of the populace.

2. Therefore, in view of the foregoing, the Federal Government is directed to formulate a comprehensive policy outlining restrictions based on public policy on the right to assemble. Such restrictions should keep paramount the fundamental rights of the public at large whilst pursuing the broader aims of national security and public safety.

3. Moreover, in the future, all political and/or religious protests/rallies etc. in Islamabad should be confined to the "Democracy Park and Speech Corner" without any discrimination, fear or favour. Such an action would enable those willing to join such calls to be a part thereof whilst also protecting the fundamental rights of those who disagree with such protests/rallies. If protesting is a choice so is the option not to protest, which must be equally protected with no one having the right to impose their will of protesting onto another. Civic agency i.e. CDA is directed to develop the notified place by providing basic necessities like toilets, water filtration plants etc. and plantation of different plants/trees.

4. Needless to state, this would ensure protection and enforcement of the constitutional rights of the public of Islamabad who have already suffered immensely in the recent past on account of political activities in the midriff of the city. A blanket policy will help to regulate the right to assemble indiscriminately and in a more cohesive manner leaving little room for exercise of discretion based at the desires, likes and whims of those in the corridors of power.

5. Before parting with this judgment, I deem it appropriate to mention that during the course of proceedings, an objection at this particular Bench being seized of the matter was raised by Syed Naeem Bukhari, Senior ASC - the learned Counsel for Respondent No.4. It was pleaded that I recuse myself from hearing these writ petitions, which objection, however, was resisted by the learned Advocate General, Mian Abdul Rauf, and the learned Additional Attorney General, Afnan Karim Kundi, as well as the learned counsel for Petitioners. Since the objection was based merely on an apprehension, thus, the same was overruled.

6. It goes without saying that justice has to be dispensed in absolute consonance with the law without fear or favour. It is emphasised that the practice of objecting to a particular bench should be based on cogent reasoning rather than mere apprehensions or the personal choices of a particular party to the lis.

7. In the case of The Federal Government of Islamic Republic of Pakistan v. General (R) Pervez Musharraf reported as 2014 PCr.LJ 684, a similar objection was raised to one of the honourable Judges who formed part of the Special Court seized of the lis. Certain cardinal principles were laid in the supra judgment where a judge should recuse himself from hearing the case, which did not arise herein. Neither did any legal, constitutional or statutory bar exist for this Court to recuse from hearing the matter.

8. In fact, in terms of the supra judgment, a judge is duty bounden to adjudicate upon a matter before him if there is no real apprehension of bias. By merely passing the buck on to another Bench in the midst of a hollow objection, this Court would be failing in its duty to discharge the sacred trust of justice entrusted by the oath of office of a judge.

9. These are the detailed reasons based whereon the short order dated 31st October, 2016 was passed by this Court the operative part whereof held as under:

"In this view of the matter, for he reasons to be recorded later on, instant petition with all connected Writ Petitions i.e W.P Nos.3845, 3846, 3847, 3860, 3909, 3910, 3914, 3926, 3927, 3930, 3931, 3932, 3937, 3938, 3939, 3940, 3948, 3972 and 3919 are disposed of with the following declaration and direction:-

(i) That freedom of assembly, movement and expression is right of every citizen guaranteed by the organic law of the country i.e. Constitution of Islamic Republic of Pakistan as enshrined under Part-II, Chapter I thereof. But these rights are not unbridled. If to lodge a protest is right of any citizen, not to lodge or partake a protest is also the right of every citizen. Nobody can be compelled to do which is not permissible under the law and no one can be deprived to do which is permissible under the law. All these Petitioners apprehend(ed) serious threat to their fundamental rights guaranteed by the Constitution under Articles 9, 14, 15, 16, 18 and 19 of the Constitution of Islamic Republic of Pakistan. The speeches of the Respondent No.4, Mr. Imran Khan, Chairman, Pakistan Tehreek-e-Insaaf played in Court clearly suggest that intent and object is not merely lodging of protest but apparently a move to stop the elected Government from functioning and performing its day to day affairs and also to keep away the citizens from enjoying their fundamental rights, which obviously is tantamount to abridgment of the constitutional rights of citizens.

(ii) In light of order passed by this Court, finally decided on 6th November, 2015, a place with the name of "Democracy Park and Speech Corner" is a notified place for these type of activities, therefore, District Magistrate in compliance of the order of this Court dated 27th October, 2016 informed Respondent No.4 (of the same). Copy of the letter addressed to Respondent No.4 has been placed on record and according to the District Magistrate the letter has not been responded to. It is directed that if Respondent No.4, Mr. Imran Khan, shows his willingness to stage the protest or hold sit-in at designated place, the Federal Government and District Administration may allow such activity.

(iii) In order to ensure the protection of life, security of person, property and other fundamental rights of the citizens of ICT, the State is duty bound to protect these rights and take all remedial steps in accordance with the law. If any attempt is made to block or lock down the ICT or any effort is made to disrupt the normal life of the city, the Administration has the authority to deal with the situation as per mandate of law.

1. Let copies of this judgment be remitted to the Secretaries, Ministry of Interior, Ministry of Law and Parliamentary Affairs, Cabinet Division and Chief Commissioner ICT as well as Chairman CDA.

2. The office is directed to place attested copy of instant judgment in all the connected files mentioned in para-6 of short order (reproduced above) and disposed of.

MH/108/Isl. Order accordingly.

2018 C L C 1275

[Islamabad]

Before Athar Minallah, J

FARRUKH NAWAZ BHATTI---Petitioner

Versus

FEDERAL GOVERNMENT through Prime Minister of Pakistan and 3 others---Respondents

W.P. No. 3481 of 2016, decided on 29th December, 2017.

(a) Words and phrases---

----"Conflict of interest"---Defined.

[Case-law referred]

(b) Administration of justice---

----What cannot be done directly can also not be done indirectly.

(c) Interpretation of statutes---

----Reading in, principle of---Scope---High Court can neither add anything to the statute nor read into it something not provided therein.

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

----Preamble--- Establishment of Authority---Object, purpose and scope---Authority established under Capital Development Authority Ordinance, 1960 was intended by legislature to be an independent and autonomous regulatory authority to plan, develope and regulate all matters in connection with establishing capital of Pakistan.

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

----Ss. 6 & 8---Ex-officio Chairman, appointment of---Scope---Criteria and conditions prescribed under S. 6 read with S. 8 of Capital Development Authority Ordinance, 1960 left no ambiguity that neither can an ex-officio member be appointed nor can a person be directed to discharge functions of Chairman of Board on part-time basis in absence of exceptional circumstances.

(f) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo Warranto, writ of---Preconditions---For issuance of writ of Quo Warranto, firstly, an application has to be made by 'any' person, who need not to be aggrieved, secondly, person against whom a writ is being sought must be within territorial jurisdiction of High Court before which petition has been filed, thirdly, application must be in respect of requiring such a person to show that as to under what authority of law he claims to hold that office---Writ in the nature of Quo Warranto can only be issued if such conditions are fulfilled.

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

----Ss. 6 & 8---Islamabad Capital Territory Local Government Act (X of 2015), Ss. 2(z), 3 & 12---Constitution of Pakistan, Art. 199---Constitutional petition---Writ of Quo Warranto---Chairman of Capital Development Authority---Additional charge---Dispute was with regard to appointing Mayor of Metropolitan Corporation of Islamabad with additional charge as Chairman Capital Development Authority---Validity---Jurisdiction vested in High Court in respect of writ of Quo Warranto was inquisitorial in nature---High Court had to consider whether person who was holding a public office fulfilled necessary qualifications prescribed under relevant law and legal provisions relating to such appointment were not violated--- Jurisdiction vested in High Court was discretionary in nature therefore, it could be exercised in an appropriate case despite being satisfied that person who had brought matter might be having personal interest or his bona fide could appear to be suspect---Technicalities or minor irregularities could not render an appointment to public office as invalid---Appointment of Mayor of the Corporation was made in violation of S. 6 read with S. 8 of Capital Development Authority Ordinance, 1960 and settled law---Positions of member and Chairman of Board of Capital Development Authority fell within ambit of expression 'public office'---High Court declared both notifications in question ultra vires, illegal, without lawful authority and jurisdiction and set aside same having been issued in violation of provisions of Capital Development Authority Ordinance, 1960--- Constitutional petition was allowed in circumstances.

[Case-law referred]

G.M. Chaudhry, Advocate Supreme Court, Raja Muhammad Shafaqat Khan Abbasi, Advocate Supreme Court, Husnain Ibrahim Kazmi, Advocate Supreme Court and Ch. Shafiq Ur Rehman, Advocate Supreme Court for Petitioner.

Afnan Karim Kundi, Additional Attorney-General, Kh. Muhammad Imtiaz, Assistant Attorney-General, Kashif Ali Malik, Advocate Supreme Court, Tariq Mehmood Jehangiri, Advocate Supreme Court and Muhammad Nazir Jawad, Advocate Supreme Court for Respondents.

2018 C L C 1337

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Syeda MEHWISH through Mother/Attorney and another---Petitioners

Versus

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

Civil Revision No. 102 of 2016, decided on 23rd January, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S. 10(4)---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), Ss. 2(a) & 5---Dissolution of marriage on the basis of khula---Suit for recovery of gold ornaments by ex-husband---Personal property and belongings of wife---Scope---Question as to jurisdiction of Family Court or civil court---Bridal gifts---Scope---Petitioner/ex-wife contended that only Family Court had exclusive jurisdiction to entertain and adjudicate upon "Personal property and belongings of wife " being one of the nine subjects/items in the Schedule of the Family Courts Act, 1964---Respondent/ex-husband contended that he moved the civil court in wake of the judgment passed by the Family Court when petitioner moved the civil court for dissolution of marriage---Validity---All gifts (not limited to bridal gifts) given to wife during the subsistence of the marriage became her personal property and belongings, therefore, a suit with respect to personal property and belongings of wife was to be filed before a Family Court---Conjoint reading of Ss. 2(a) & 5 of Dowry and Bridal Gifts (Restriction) Act, 1976 showed that presents and gifts given to the bride at or after marriage by the bridegroom or his parents absolutely vested in bride---Bridal gifts given by a husband were the absolute property of wife and could not be taken away from her---Bride could always recover the articles of bridal gifts, wari, and presents given to her by bridegroom or his family at the time of marriage---However, husband would be well within his rights to institute a suit for recovery of gifts from the wife which were given to her in lieu of dower and entered as such in the Nikahnama---Admittedly, in the present case, gold ornaments the recovery whereof was sought by the husband were not given in lieu of dower but as gifts---Previously, petitioner ex-wife had obtained decree for dissolution of marriage on the basis of khula, consequently, she would be bound to return the haq Mahr/dower (as specified in the Nikahnama) received by her from the husband---Under the proviso to subsection (4) of S. 10 of the Family Courts Act, 1964, Family Court could pass decree for dissolution of marriage and restore Haq Mahr received by wife in consideration of marriage---Wife was not required to return the gifts to the husband when decree for dissolution of marriage was passed----Family Court committed a jurisdictional error by holding that wife having obtained decree for dissolution of marriage on the basis of Khula, was bound to return the gifts received from husband at the time of marriage---High Court set aside the judgments and decrees passed by the Appellate Court as well as civil court---Revision petition was allowed accordingly.

Major Muhammad Khalid Karim v. Mst. Saadia Yaqoob PLD 2012 SC 66; Ejaz Naseem v. Fareeha Ahmad 2009 SCMR 484; Shamim Akhtar v. District Judge 2016 MLD 242; Taimoor Aslam Satti v. Mst. Aalia Bibi 2016 YLR 765; Mst. Nomail Zia v. Adnan Riaz 2014 CLC 87; Dawlance United Refrigeration Industries Private Ltd. v. Muhammad Asim Chaudhry PLD 2016 Lah. 425; Abdul Sattar v. Chairman Railways 2011 YLR 1033; Gul Sher v. Maryam Sultana 2011 YLR 1000; Tariq Mehmood v. Farah Shaheen 2010 YLR 349; Muhammad Nawaz v. Mst. Abida Bibi 2010 MLD 352; Babar Shahzada v. Basharatan Bibi 2015 CLC 808; Abdul Sattar v. Mst. Kalsoom PLD 2006 Kar. 272; Shakeel Saood Khan v. Rizwana Khanum PLD 2012 Lah. 43; Mussarat Iqbal Niazi v. Judge Family Court 2013 CLC 276 and Tania Naseer v. Muhammad Zubair 2017 YLR 1481 ref.

Muhammad Hussain v. Mukhtar Ahmad 2007 YLR 2228 and Muhammad Akram v. Hajra Bibi PLD 2007 Lah. 515 distinguished.

Arif Khan for Petitioners.

Ms. Qudsia Kazmi for Respondent No.2.

2018 C L C 1387

[Islamabad]

Before Shaukat Aziz Siddiqui, J

CAPITAL DEVELOPMENT AUTHORITY, through Chairman, CDA Secretariat, Islamabad----Petitioner

Versus

Sufi MUHAMMAD SAGHEER KHAN and 2 others----Respondents

Civil Revision No.116 of 2013, decided on, 15th January, 2018.

Specific Relief Act (I of 1877)---

----S. 54---Suit for injunction---Encroachment over land---Plaintiffs were aggrieved of reduction in plot of mosque---Plea raised by authorities was that plaintiffs had illegal encroachment over the land which was included in the mosque---Trial Court dismissed suit but Lower Appellate Court decreed the same in favour of plaintiffs---Validity---Act of raising any construction over a public lane was contrary to Quranic Injunctions and examples and sayings of the Holy Prophet (May Peace Be Upon Him)---Civic body holding title of any property had authority to alter, change and adjust the same in larger interest of public--- Size of public street was 25' wide out of which an area measuring 13'x135' was encroached upon for construction of shops etc.--- Intervener purchased a commercial plot in open auction and had approved siteplan and demarcation report---Any person who had purchased plot from Development Authority by paying almost Rs.9 crores could not be deprived of passage of 25' wide lane on one side of his plot, therefore, stance of plaintiffs was feeble and without plausible justification---Lower Appellate Court failed to appreciate pleadings, evidence and conduct of parties, misreading and non-reading of evidence was visible, application of judicial mind lacked and facts were misconstrued---High Court directed the Development Authority to place matter before its Board in order to evolve a proper procedure for management of affairs of mosque---Possession with permission to raise construction for Masjid must not be handed over to any person without evolving a prescribed procedure and final approval by the Board---Plot allocated for Masjid did not mean that whosoever had started construction, same would be presumed to be allotted to that person---High Court set aside judgment and decree passed by Lower Appellate Court and suit filed by plaintiffs was dismissed---Revision was allowed in circumstances.

Kashif Ali Malik for Petitioner.

Muhammad Munir Paracha ASC for Respondent No.1

2018 C L C 1505

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Chaudhry MUHAMMAD KHAN and another----Petitioners

Versus

CIVIL JUDGE, 1ST CLASS (EAST) ISLAMABAD and another----Respondents

W.P. No.600 of 2018, decided 29th March, 2018.

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

----Ss. 12 & 35 (c)---Civil Procedure Code (V of 1908), S. 148---Decree in suit for specific performance---Preliminary in nature---Sale consideration, deposit of---Extension in time for deposit of sale consideration without notice to the opposite party---Scope---Modification of decree by the court issuing such decree---Competence---Scope---Enlarging time for deposit of remaining amount of sale consideration---Sufficient cause---Natural justice, principles of---Applicability---Judicial order---Presumption of correctness---Order without reasons---Effect---Defendants made statements that if remaining consideration amount was paid by the plaintiff in accordance with terms of agreement, they would have no objection in decreeing the suit---Suit was decreed subject to payment of remaining sale consideration within a period of thirty days failing which the suit would be deemed to have been dismissed---Plaintiff moved application for extension of time for the deposit of remaining sale consideration which was allowed without issuing notice to the defendants---Contention of defendants was that Trial Court had become functus officio after passing the order and decree---Validity---Once court passed a decree it became functus officio and could not modify the decree---Only higher court could either set aside the decree or modify the same---Since Court after passing a decree had become functus officio, it had no power under S.148, C.P.C. to extend the time for depositing the sale consideration by modifying the terms of decree---Exception to said rule was a decree passed by a Court in a suit for specific performance of agreement---Court in such a suit would neither lose its jurisdiction after grant of a decree for specific performance nor became functus officio---Court retained its power and jurisdiction to deal with the decree of specific performance till the sale deed was executed in execution of decree---Court in such matter had power to enlarge the time to pay an amount or perform the conditions mentioned in the decree for specific performance---Decree passed in a suit for specific performance of contract would be treated as a preliminary decree---Trial Court after passing the order and decree had not become functus officio---Trial Court continued to retain control over the lis and could either pass an order rescinding the agreement or enlarge time fixed for payment of remaining sale consideration---Order to extend time fixed in a decree for payment of remaining sale consideration could not be passed in routine---Such order ought to be passed in exceptional circumstance when conscience of the Court was satisfied that default to deposit amount within the time was for sufficient cause or for reason beyond the applicant's control---Order to grant such an extension of time could not be passed without notice to the other side---Impugned order was passed in absence of defendants which was violation of principles of natural justice---Inability on the part of plaintiff/purchaser to pay remaining sale consideration in accordance with the terms and conditions of agreement to sell or a decree would disentitle him for the grant of equitable relief of specific performance---Even if a plaintiff during pendency of suit for specific performance did not show compliance with an interim order passed by the Court for deposit of remaining sale consideration then suit was liable to be dismissed due to such a default---Presumption of correctness was attached to the judicial orders---Every litigant was presumed to be aware of the contents of orders that were passed by a Court or a Tribunal in a lis to which he was a party---Reasoned order must exist so as to ascertain the process of thought and reasoning that a Court or a Tribunal came to for its findings---Extension in time for payment of remaining sale consideration was granted 'in the interest of justice'---Interest of justice did not serve when impugned order was passed without issuing notice to the other party---Principle of maxim: audi alteram partem was not confined to proceedings before Courts but it would extend to all the proceedings by whomsoever held which might affect the person or property or other right of parties in the dispute---Violation of said principle would be enough to vitiate even the most solemn proceedings---Party to proceedings were to be given reasonable notice of the nature of the case to be met---Impugned orders were passed in violation of the requirement of principles of natural justice---Impugned orders were declared unlawful and were set aside---Application for extension of time was to be deemed to be pending before the Trial Court---Trial Court was directed to decide the said application after hearing the parties---Constitutional petition was allowed in circumstances.

Rehman-ud-Din and another v. Sahibzada Jehanzeb 2004 SCMR 418; Mirza Zahoor Hussain v. Mirza Munawar Hussain and 2 others 2002 YLR 2834 and Ghulam Murtaza and others v. Ghulam Jillani and others 2000 YLR 1798 ref.

Shabbir Ahmed v. Zahoor Bibi PLD 2004 SC 790; Abdul Shaker v. Abdul Rahiman AIR 1923 Madras 284; Nizam-ud-Din v. Ch. Muhammad Saeed 1987 CLC 1682; Nisar Ahmed v. Muhammad Yousaf PLD 1994 Lah. 280; Asraf Ali alias Asrafuddin Mondal v. Bayla Hazda PLD 1967 Dacca 557; Mst. Samira Butt v. Hasnain Ahmed Nasir 2009 MLD 942; Mirza Zafar Iqbal Baig v. Mirza Ayub Baig 2010 YLR 386; Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953; Adil Tiwana and others v. Shaukat Ullah Khan Bangash 2015 SCMR 828 and Mst. Fatima v. Sardara PLD 1956 Lah. 474 rel.

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

----S. 12---Suit for specific performance of agreement---Non-payment of sale consideration---Effect---Plaintiff in a suit for specific performance of agreement must be ready, willing and able to perform his part of contract by paying the sale consideration---Inability on the part of plaintiff/purchaser to pay remaining sale consideration in accordance with the terms and conditions of agreement to sell or a decree would disentitle him for the grant of equitable relief of specific performance---Even if plaintiff during pendency of suit for specific performance did not show compliance with an interim order passed by the Court for deposit of remaining sale consideration, suit was liable to be dismissed on account of such a default.

Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953 and Adil Tiwana and others v. Shaukat Ullah Khan Bangash 2015 SCMR 828 rel.

(c) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 115---Conversion of Constitutional petition into revision petition---Scope---Constitutional petition could be converted into revision petition and vice versa.

Muhammad Ayub v. Obaidullah 1999 SCMR 394 and Lal Zaman alias Lalono Zargar v. Asfandyar Khan PLD 2012 Pesh. 75 rel.

Chaudhry Adil Mushtaq for Petitioners.

Adil Aziz Qureshi for Respondents Nos.2.

2018 C L C 1542

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ZAVER PETROLEUM CORPORATION LIMITED through Company Secretary----Petitioner

Versus

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

Writ Petitions Nos.2106 and 1401 of 2009, decided on 15th March, 2018.

(a) Regulation of Mines and Oilfields and Mineral Development (Government Control) Act (XXIV of 1948)---

----S. 3B---Petroleum Policy, 1997, Cl. 2.1.5(a)---Petroleum exploration ---Petroleum Concession Agreement---Additional share in working interest of Government---Scope---In terms of the subject Petroleum Concession Agreement ("the agreement"), petitioner-company had 5% working interest in the agreement, whereas the respondent-company which was wholly owned and controlled by the Government also had 5% working interest---'Agreement' provided inter alia that as of the date of commercial discovery, respondent-company shall have a right to increase its working interest up to a maximum of 25% in any discovery area, and it will reimburse the expenditure corresponding to 5% carried working interest related to such discovery area up to the date of commercial discovery out of the commercial production in five annual instalments in accordance with the provisions of the Petroleum Policy, 1997---Subsequently when commercial discovery of petroleum took place respondent-company exercised its right to increase its working interest from 5% to 25% in accordance with the agreement---Petitioner-company called upon respondent-company to grant 5% working interest out of respondent's share in accordance with Cl. 2.1.5(a) of the Petroleum Policy, 1997---Respondent-company denied the petitioner's claim by contending that there was no provision in the agreement for an increase in the petitioner's working interest after commercial discovery; that incentive given to local companies in para. 2.1.5 (a) of the Petroleum Policy, 1997 had not been incorporated in the subject agreement; and that the petitioner-company was affiliated with another company, which was a foreign working interest owner; held, that although petitioner-company did have a foreign based subsidiary, but such subsidiary was neither claiming nor was it entitled to the benefit envisaged under Cl. 2.1.5 (a) of the Petroleum Policy, 1997---Such benefit was only meant for the local petroleum exploration and production companies, like the petitioner-company---Denial of the benefit under Cl. 2.1.5 (a) of the Petroleum Policy, 1997 to the petitioner-company on the ground that it was affiliated to a foreign entity was, thus, not tenable---Indeed, the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948 [as amended by S.R.O. No.86(KE)2000, dated 27.04.2000] did provide that the incentives "shall be as specified in the Petroleum Policy in vogue and as incorporated in any agreement with the Federal Government", but the respondent-company lost sight of the fact that such amendment/requirement was inserted in the said Act after the execution of the subject agreement and the grant of licence---Said amendment/requirement could not be given retrospective effect---Furthermore since the petroleum policy in vogue was the Petroleum Policy, 1997, providing for the incentives to the local companies contained in clause 2.1.5 (a), the petitioner's entitlement to an additional share out of respondent's working interest could be said to be based not just in a policy of the Federal Government, but a policy which was given statutory recognition---Essential factor and incidence in respondent's participation as a working interest owner in the subject agreement was that an additional share out of its working interest had to be given to a local company having a minimum of 5% working interest during exploration phase, after commercial discovery; this was an explicit commitment of the Federal Government set out in a policy---Such commitment was made by the Federal Government to lure indigenous investment in the exploration and production of petroleum in the country---Denial by the Government to extend the benefit under its own policy to an individual/entity, who qualified for the grant of such benefit, engendered suspicion and distrust in Government policies---Petitioner-company was entitled to the benefit of the concession under Cl. 2.1.5 (a) of the Petroleum Policy, 1997, in the same manner and in the same quantum/percentage as extended by the Government to similarly placed local companies---High Court declared that petitioner-company had a legal right to claim, and the Government was under an obligation to grant the petitioner the benefit of an additional share in the working interest of the subject agreement out of respondent's working interest with effect from the date when commercial discovery took place; and that the respondents' denial of said right to the petitioner was not lawful---Constitutional petition was allowed accordingly.

(b) Notification/circular---

----Retrospective effect---Scope---Notifications, instructions, circulars, etc., issued by the Government or statutory bodies would operate prospectively and not retrospectively.

Gondicalo Hypolito Constancio Noronha v. Damp Devji and others PLD 1954 PC 22; Sh. Fazal Ahmad v. Raja Zia Ullah Khan and others PLD 1964 SC 494; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Income Tax Officer Investigation Circle-I Dacca v. Sulaiman Bhai Jiva PLD 1970 SC 80; Rafiuddin v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; Islamic Republic of Pakistan v. Mazhar-ul-Haq 1977 SCMR 509; Mahmood Shah and others v. Additional Settlement Commissioner Revenue and others PLD 1979 Lah. 709; Trustees of Port of Karachi v. Zafar Zaid 1988 SCMR 810; Army Welfare Sugar Mills Limited v. Federation of Pakistan 1992 SCMR 1652; Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC 315; Taj Mahal Hotel v. Karachi Water and Sewerage Board 1997 SCMR 503; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Secretary to the Government of Pakistan Ministry of Finance v. Muhammad Hussain Shah 2005 SCMR 675 and Imtiaz Ahmad v. Punjab Public Service Commission and others PLD 2006 SC 472 ref.

(c) Policy---

----Government policy, change in---Government was entitled to keep on changing its policies according to the socio-economic needs from time to time---When the Government was satisfied that change in a policy was necessary in the public interest, it would be entitled to revise the policy and lay down a new policy, however whatever the policy it must be applied uniformly and not in a discriminatory manner---Government could not be bound by a particular policy for all the time to come.

Shahzada Naeem Bukhari for Petitioner.

Mir Aurangzeb for Respondents.

2018 C L C 1569

[Islamabad]

Before Athar Minallah, J

Malik RIAZULLAH----Petitioner

Versus

Mst. DILNASHEEN and others----Respondents

C.R. No.160 of 2017, decided on 3rd April, 2018.

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

----O.XIV, R.5---Expression 'first hearing'---Connotation---Expression 'first hearing' has been interpreted as meaning date when issues are framed under O. XIV, C.P.C.

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

----O. VII, R. 14 & O. XIII, Rr. 1, 2, 3 & 9---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Suit for cancellation of documents, declaration and injunction--- Documentary evidence, de-exhibiting of---Defendant was aggrieved of order passed by Trial Court declining to de-exhibit documents from file which were produced by plaintiff---Plea raised by defendant was that documents in question were admitted in evidence in violation of O. XIII, Rr. 1 & 2, C.P.C. as same were neither produced with plaint nor were mentioned in any other document---Validity---Documents could be filed under O. VII, R. 14, C.P.C. along with plaint or written statement or under O. XIII, R.1, C.P.C. at first hearing of suit---No absolute bar existed regarding producing a document at a subsequent stage---Trial Court was empowered under O. XIII, R. 2, C.P.C. to receive a document even after stage of first hearing provided good cause was shown to its satisfaction---Court could reject a document at any stage which was found irrelevant or inadmissible---Expression 'de-exhibit' was not defined nor mentioned in C.P.C.---Expressions 'receive' or 'produce' in O. XIII, R. 3, C.P.C. referred to rejection of irrelevant or inadmissible documents---Scheme of provisions of law and legislative intent did not envisage removing of documents from record after those were received or allowed to be produced and thereafter marked as 'exhibits' except under O. XIII, R. 9, C.P.C.---No provision existed in C.P.C. for removing a document from record which had been marked as 'exhibit'---No prejudice was caused to defendant nor his right to a fair trial was compromised if documents in question remained part of record---Evidentiary value of documents was open to be questioned and same had not attained finality---Trial Court had rightly declined to 'de-exhibit' documents---Revision was dismissed in circumstances.

Muhammad Ashraf v. Muhammad Tahir Ismail and others 2011 MLD 1848; Nazir Ahmad and 05 others v. Ittefaq Textiles Mills Ltd. Lahore and another 2007 MLD 1311; Ghulam Qadir and another v. Mst. Kundan Bibi and another 1991 SCMR 1935; State Life Insurance Corporation of Pakistan v. Javaid Iqbal 2011 SCMR 1013; Nawabzada Malik Habibullah Khan v. The PAK Cement Industries Limited and others 1969 SCMR 965 and Muhammad Anwar and others v. Mst. Ilyas Begum, and others PLD 2013 SC 255 ref.

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

----O.XIII, R.4---Exhibiting of a document---Effect---Receiving a document in evidence and marking it as an exhibit does not debar the other party from questioning its admissibility later---Merely exhibiting a document does not dispense with onus to prove the same.

Sitaram v. Ram Charan and others AIR 1995 Madhya Pradesh 134; Benamali Das v. Rajendra Chandra AIR 1975 SC 1865; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 and Rab Nawaz and 8 others v. Muhammad Amir and another 1999 SCMR 951 rel.

Sh. Muhammad Khizar-ur-Rashid for Petitioner.

Abdur Rashid Awan for Respondent No.1.

Abdul Shakoor Paracha and Ms. Wajiha Pervaiz for Respondent/CDA.

2018 C L C 1588

[Islamabad]

Before Mohsin Akhtar Kayani, J

SAEED ABDI MAHMUD----Petitioner

Versus

NATIONAL DATABASE REGISTRATION AUTHORITY through Chairman and 3 others----Respondents

Writ Petition No.3030 of 2017, decided on 7th May, 2018.

(a) Pakistan Citizenship Act (II of 1951)---

----S.4---National Database and Registration Authority Ordinance (VIII of 2000), Ss.9 & 10---Citizenship by birth---Nationality, award of---Authorities declined to issue Computerized National Identity Card to petitioner on the ground that his parents were Somalian nationals---Plea raised by petitioner was that he was born, educated and was residing in Pakistan---Validity---No restriction existed on any individual, who was born in Pakistan, despite the fact that his parents were not citizens of Pakistan---Such individual could apply for grant of citizenship by birth in terms of S.4 of Pakistan Citizenship Act, 1951---Ministry of Interior, Government of Pakistan was competent authority to process the case by virtue of Application Forms in prescribed manner and an applicant was to submit details as required in said document---Any foreigner non-citizen of Pakistan or person from any other State born in Pakistan, except a refugee, was entitled to be dealt under Pakistan Citizenship Act, 1951, subject to his claim if he/she fell within five concepts provided under Pakistan Citizenship Act, 1951, for seeking citizenship of Pakistan---High Court directed the petitioner to approach Federal Government along with application Forms duly filled in whereafter the authorities would decide his application in accordance with law---Constitutional petition was allowed accordingly.

United States v. Wong Kim Ark. 169 U.S. 649 (1898); Ghulam Sanai v. The Assistant Director, National Registration Office, Peshawar and another PLD 1999 Pesh. 18; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 and PIAC Karachi v. Wafaqi Mohtasib 1998 SCMR 841 ref.

(b) Constitution of Pakistan---

----Art. 4---Protection of law---Applicability---Every individual has to be given protection of law in terms of Article 4 of the Constitution, whether he is citizen of Pakistan or not.

Umer Ijaz Gillani for Petitioner.

Haseeb Muhammad Chaudhry, Deputy Attorney General for Respondents Nos.1 to 3.

Syed Junaid Jaffar, Law Officer, NADRA.

Munir Ishaq Awan, Director Immigration and Passports, NADRA.

Jahanzeb Pitafi, Section Officer (Passport and Citizenship), Ministry of Interior.

2018 C L C 1613

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD SAMI-UL-HAQ----Petitioner

Versus

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

W.P. No. 2779 of 2017, heard on 1st June 2018.

(a) Punjab Local Government Act (XVIII of 2013)---

----Ss. 2(nnn), 27(1)(b) & 33(2)---Member District Council---Seat reserved for youth---Allegation of fraud in changing date of birth---Non-holding of enquiry before disqualification---Effect---Election Commission disqualified the petitioner as Member District Council on the ground that he was more than twenty five years of age on the last date fixed for the filing of nomination forms, and was, therefore, not qualified to be elected against the seat reserved for youth---Contention of petitioner was that according to his revised Computerized National Identity Card (CNIC) he was aged 24 years, 9 months and 14 days on the date of filing of the nomination papers, therefore, was eligible to contest the elections against the seat reserved for youth---Validity---Joint reading of S. 2(nnn) and 27(1)(b) of the Punjab Local Government Act, 2013 showed that a candidate for election against the seat reserved for youth must be more than twenty one years and less than twenty five years of age on the last day fixed for filing the nomination papers---Respondent was seeking the petitioner's removal from an elected office as well as his disqualification, therefore, it was obligatory upon the Election Commission to have strictly followed the procedure for a member's removal prescribed in S. 33 of the Punjab Local Government Act, 2013 ('the Act')---Admittedly the Election Commission did not order for an enquiry in the matter of petitioner---Furthermore, the Election Commission did not appoint any enquiry officer for the purpose of an enquiry, thus, there had been non-compliance with the requirement of S. 33(2) of the Act---Petitioner was alleged to have "fraudulently" procured a change of his date of birth on his CNIC so as to enable him to be qualified to contest the election---In such circumstances the standard of proof required in the petition filed by respondent was that of a criminal trial, therefore, penal measure of disqualification could not have been imposed on the petitioner without passing an order for an enquiry by an enquiry officer---Impugned order of disqualification of petitioner was a consequence of a procedural irregularity and impropriety---High Court set-aside the impugned order and the matter was remanded to the Election Commission to pass an order for an enquiry and appoint an enquiry officer in terms of S. 33(2) of the Act---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Writ of certiorari, issuance of---Scope---Judgment of a Tribunal---Writ of certiorari could be issued where a Tribunal committed an error of law or did not follow the procedure prescribed by law---Requirement to follow the procedure prescribed by law became all the more stringent when the proceedings in question resulted in a penal measure against the petitioner.

(c) Administration of justice---

----When a thing was required by law to be done in a particular manner, it must be done in that very manner or not at all.

Raja Hamayun Sarfraz Khan v. Noor Muhammad 2007 SCMR 307; State Life Insurance Corporation of Pakistan v. Director General, Military Lands and Cantonments, Rawalpindi 2005 SCMR 177 and Khalid Saeed v. Shamim Rizwan 2003 SCMR 1505 ref.

(d) Punjab Local Government Act (XVIII of 2013)---

----S. 33(2)---Removal/disqualification of Member---Enquiry---Holding of enquiry in terms of S. 33(2) of the Punjab Local Government Act, 2013 was obligatory before a penal measure such as removal and disqualification could be imposed on the Member---After holding such an enquiry if the Election Commission came to the conclusion that the charge/allegation against the Member had been proved or established beyond reasonable doubt, an order for his removal or disqualification could be made.

Saeed Hasan v. Pyar Ali PLD 1976 SC 6; Muhammad Yousuf Khan Khatak v. S.M. Ayub PLD 1973 SC 160; Muhammad Saeed v. Election Petitions Tribunal, West Pakistan PLD 1957 SC 91; Syed Mashooq Mohiuddin Shah v. Syed Fazul Ali Shah 2014 CLC 1181; Syed Qutub Ahmad v. Syed Faisal Ali Subzwari 2007 CLC 1682; Dr. Abdul Sattar Rajpar v. Syed Noor Muhammad Shah 2005 YLR 937; Capt. Syed Muhammad Ali v. Salim Zia 1999 CLC 1026; Badruddin v. Muhammad Sarwar Khan Kakar 1988 MLD 294; Sardar Muhammad Arif Khan, Advocate v. Noor Alam 1987 CLC 1353 and Pir Matook Ali v. Rais Muhammad Usufi 1986 CLC 1329 ref.

Syed Pervez Zahoor for Petitioner.

Barrister Muhammad Moazzam Sher for Respondent No.4.

2018 C L C 1666

[Islamabad]

Before Miangul Hassan Aurangzeb, J

OIL & GAS DEVELOPMENT COMPANY LIMITED, JINNAH AVENUE, ISLAMABAD, through Chairman and another----Petitioners

Versus

MUHAMMAD ILYAS MIAN----Respondents

C.R. No.273 of 2016, decided on 1st March, 2018.

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

----O.VII, R.2, O. XVII, R. 3, O. XLVII, R. 1, Ss. 114, 96 & 104---Limitation Act (IX of 1908), Art. 173---Money suit---Right to cross-examine the witness, closure of---Requirements---Appeal---Review of a judgment---Limitation---Revision against the order dismissing review petition---Maintainability---Merger, principle of---Applicability---Expression 'proceed to decide the suit forthwith' occurring in O.XVII, R.3, C.P.C.---Scope---Defendants' right to cross-examine the plaintiffs' witness was closed against which review petition was moved---Review petition was dismissed on the ground that impugned order was appealable and said petition was time barred---Validity---Trial Court did not decide the suit after passing order to close right of cross-examination and adjourned the matter for defendants' evidence---Order to close right of cross-examination was not appealable as no decree was passed by the Trial Court after defendants' right to cross-examine was closed---Appeal would lie from every decree passed by a Court exercising original jurisdiction to the Court authorized to hear appeal from the decisions of such a Court---Where Court had disposed of a suit by invoking the provisions of O. XVII, R. 3, C.P.C. then said decision would amount to a decree and same could be assailed through an appeal---Suit having not been disposed of and no decree was passed when right to cross-examine was closed, Trial Court was not correct in holding that order to close right of cross-examination was an appealable order---Mere fact that an appeal was competent against a certain order was no ground for refusing to entertain an application for review of such an order---Had the suit been decided and a decree passed then same would have been appealable under S. 96, C.P.C.---Review petition against order closing right to cross-examine the witness was maintainable---Limitation period for filing review application was ninety days from the said order---Application to review order dated 05-04-2016 was filed on 04-06-2016 which was within limitation period---Law did not obligate a party seeking review of an order to file review petition within the limitation period prescribed for filing an appeal---Impugned order passed by the Trial Court suffered from jurisdictional error which was liable to be set aside---Trial Court should have considered whether there was a mistake or error apparent on the face of record so as to review the order passed by it---Misconstruction of law, mis-reading of evidence and non-consideration of pleas raised before a Court would amount to an error floating on the surface of record---Present revision petition against the order closing right to cross-examine dated 05-04-2016 was filed on 29-06-2016 which was within limitation period---Mere fact that review petition against the said order was dismissed would not preclude High Court from entertaining revision petition against the said order---Question of merger would not arise where Trial Court had refused to entertain review petition and same was dismissed confirming the main order---Aggrieved person could challenge the main order as on dismissal of review petition principle of merger would not apply---Trial Court did not reverse, alter or modify the main order but confirmed the same by dismissing the review petition---Question of merger would not arise in circumstances and defendants could challenge the original order in revision petition---Provisions of O. XVII, R. 3, C.P.C. were penal in nature---Action under said provision was to be taken only if a party despite being given warning to perform an act necessary for the progress of the suit ignored such warning and did not perform such an act---No warning, in the present case, was given to the defendants to cross-examine the plaintiffs' witness---Adjournment for the date on which provisions of O. XVII, R. 3, C.P.C. were invoked was granted due to absence/leave of the Presiding Officer---Provisions of O. XVII, R. 3, C.P.C. were not attracted as adjournment should have been sought by the party concerned---Defendants were not given last and final opportunity for cross-examination of plaintiffs' witness---Impugned orders passed by the Courts below were set aside---Revision was allowed in circumstances.

Muhammad Khalid v. Principal, Government Higher Secondary School 2005 MLD 332; Muhammad Suleman v. Muhammad Shabbir Akhtar 1999 YLR 1653; Rehmatullah Khan v. Saadat Ali Khan 1991 MLD 1017; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through legal heirs PLD 2005 SC 311;Manohar son of Shankar Nale v. Jaipalsing son of Shivlalsing Rajput (2008) 1 Supreme Court 520; DSR Steel (Private) Limited v. State of Rajasthan (2012 ) 6 Supreme Court 782; Muhammad Ramzan Saifi v. Abdul Majid PLD 1986 SC 504; Mst. Nazima Batool v. Sabar Ali Shah 2004 CLC 1175 and Saeed Ahmad Malik v. Rana Muzaffar Ali 2004 MLD 859 rel.

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

----S. 96---Appeal---Scope---Appeal would lie from every decree passed by a Court exercising original jurisdiction to the Court authorized to hear appeal from the decisions of such a Court.

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

----O. XLVII, R. 1---Review of a judgment---Scope.

Under Order XLVII, Rule 1, C.P.C., a person aggrieved of an order from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed, can apply for a review of such an order to the Court which passed the order. The mere fact that an appeal is competent against a certain order is no ground for refusing to entertain an application for review of such an order.

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

----O. XLVII, R. 1---Limitation Act (IX of 1908), Art. 173---Review of a judgment---Limitation---Limitation period for filing review petition was ninety days from the date of the said order.

Khalil ur Rehman Abbasi for Petitioners.

Mushtaq Hussain and Muhammad Adil Umar for Respondent.

2018 C L C 1702

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mst. PERVEZ AKHTER and 6 others----Petitioners

Versus

Raja SHOAIB MALAL and 3 others----Respondents

C.R. No.328 of 2016, decided on 4th April, 2018.

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

----O.IX, R.13 & O.XXII, R. 4---Limitation Act (IX of 1908), Arts.164 & 177---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Ex-parte decree, setting aside of---Limitation---Condonation of delay---Death of defendant during pendency of suit---Impleadment of legal heirs---Requirement---Pleadings---Scope---Departure from pleadings---Effect---Defendants after submitting of written statement did not appear and ex-parte proceedings were initiated and suit was decreed---Application for setting aside of ex-parte decree was moved but same was dismissed on the ground of limitation---Validity---Defendants could file an application for setting aside ex-parte decree within thirty days from the date of decree---Where summons were not served upon the defendant then limitation period would commence when the decree came in the knowledge of defendant---Defendants, in the present case, submitted written statement and continued to appear before the Trial Court till 24-11-2009---Impugned judgment and decree were passed on 30-06-2010---Application for setting aside of ex-parte decree was moved on 19-06-2013 which was time-barred---No application for condonation of delay was moved with the application for setting aside of ex-parte decree---Where defendant died during pendency of suit, Court was to make the legal representatives of deceased party to the suit on application filed in that behalf---One of the defendants died and his legal heirs approached the Court for their impleadment as parties to the suit---Legal heirs of deceased defendant were already party to the suit and were represented by their counsel---Application for setting aside of ex-parte decree was rightly dismissed by the Court below being time barred---No one could take a position in the proceedings before appellate or revisional forum contrary to the one taken by their predecessor before the Trial Court---Factum of pre-purchase of suit land had not been pleaded by the defendants in their written statement---No one could be permitted to improve case and raise a new ground of attack by departing from the pleadings---No jurisdictional infirmity had been pointed out in the impugned orders/judgments passed by the Courts below---Revision was dismissed in circumstances.

Shahid Pervaiz v. Mohammad Ahmad Ameen 2006 SCMR 613; Secretary Education Department, Government of N.-W.F.P., v. Asfandiar Khan 2008 SCMR 287; Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. 2005 SCMR 609; Government of N.-W.F.P. through Secretary, C&W Department v. Khani Zaman 1995 CLC 516; Khayal Badshah v. Afzal Khan PLD 2015 Pesh. 59; Akram Rashid v. Hamid Ali Khan 2015 CLC 1290; Ciba Geigy (Pak.) Ltd. v. Mohammad Safdar 1995 CLC 461 and Bibi Khudeja (Deceased) through L.Rs. v. Pir Sarwaruddin Shah (Deceased) through L.Rs. 1992 MLD 490 rel.

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

----Art. 164---Civil Procedure Code (V of 1908), O. IX, R. 13---Ex-parte decree, setting aside of---Limitation---Defendant could file application for setting aside ex-parte decree within thirty days.

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

----Art. 177---Civil Procedure Code (V of 1908), O. XXII, R. 4---Death of one of the defendants during pendency of suit---Impleadment of legal heirs---Limitation---Application for impleadment as a party to the suit could be filed by the legal representatives of deceased defendant within ninety days from the date of his death.

(d) Pleadings---

----Scope.

Pleadings are treated as a foundation in civil matters, and a point having not been taken regarding a factual position cannot be allowed to be taken at a subsequent stage, whether in evidence or in arguments. A party is bound by its pleadings, and cannot be permitted to deviate therefrom. A Court cannot give a judgment on an unpleaded issue. If there is a contradiction or inconsistency in the pleadings and the arguments, the arguments to the extent of the contradiction or inconsistency have to be disregarded by the Court. Parties cannot be permitted to improve their case and raise a new ground of attack by departing from their pleadings in the joint written statement. Pleadings cannot be equated with evidence, but a party cannot be permitted to lead evidence or put up a case which is not in conformity with his/her pleadings.

Jannat Bibi v. Sher Muhammad 1988 SCMR 1696; Binyameen v. Hakim 1996 SCMR 336; Anwar Ali v. Manzoor Ahmad 1996 SCMR 1770; Province of Punjab v. Ibrahim and Sons 2000 SCMR 1172 and Din Muhammad v. Subedar Muhammad Zaman 2001 SCMR 1992 rel.

(e) Maxim---

----"Secundum allegata et probata": Party to a litigation can only succeed accordingly to what is alleged and proved.

Rai Azhar Iqbal Kharal for Petitioners.

Asif Irfan for Respondent No.1.

Sherazgul Abbasi for Respondent No.2.

2018 C L C 1818

[Islamabad]

Before Athar Minallah, J

MUNAWAR BAIG MUGHAL through L.Rs. and 2 others----Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman----Respondent

C.R. No.380 of 2016, decided on 7th March, 2018.

(a) Transparency, Principle of---

----Scope---Transparency cannot be compromised in any manner while dealing with assets which vest in the State---Law envisages strict liability in the case of disposal of State properties in the context of ensuring transparency.

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

----O.XXI, R.77 & S.115---Suit for declaration and injunction---Auction purchaser---Attorney of dead person--- Plaintiffs were highest bidders of plot in question but due to non-deposit of sale consideration the bid was cancelled---Suit filed by plaintiffs was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of plaintiffs---Both the parties were aggrieved of the judgment passed by Lower Appellate Court---Validity---Auction was held on 8-1-1991 and there was nothing on record to show that plaintiffs prior to 27-11-2002, had shown their willingness or bona fides to deposit bid amount in accordance with terms and conditions of auction or as specified in letter dated 19-6-1991---Lower Appellate Court reversed judgment and decree by misreading and non-reading of evidence, particularly the terms and conditions of auction read with letter dated 19-6-1991---Locus standi of attorney to file appeal on the basis of power of attorney executed by deceased was not considered---Lower Appellate Court was also required to have examined whether the conduct of plaintiffs entitled them to discretionary equitable relief---High Court set aside judgment and decree passed by Lower Appellate Court and remanded the matter for decision of appeal afresh---Revision was allowed accordingly.

Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 99; Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328; Muhammad Ikhlaq Memon v. Capital Development Authority through Chairman 2015 SCMR 294; Suo Motu Case No. 13 of 2009 PLD 2011 SC 619; Human Rights Cases No. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Capital Development Authority through Chairman and others v. Dr. Abdul Qadeer Khan and others 1999 SCMR 2636; Saad Mazhar and others v. CDA and others 2005 SCMR 1973; Moulvi Iqbal Haider v. CDA and others PLD 2006 SC 394; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 ; Raja Mujahid Muzaffar and others v. FOP and others 2012 SCMR 1761; Punnen Thomas v. State of Kerala AIR 1969 Kerala 81; Khawaja Muhammad Asif v. FOP and others PLD 2014 SC 206; Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274; Human Rights Cases Nos. 7734-G/2009, 1003-G/2010 and 56712 of 2010 2012 SCMR 773; Ram and Shyam Company v. State of Haryana and others AIR 1985 SC 1147; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Malik Atta Muhammad and another v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others 2007 SCMR 178 and Ali Sarwar and others v. Syed Shujat Ali Naqvi and others PLD 2011 SC 519 ref.

Niazullah Khan Niazi for Petitioner (in the instant petition as well as for the respondent in C.R. No.327 of 2016).

Tariq Mahmood Jahangiri for Respondent (in the instant petition as well as for the petitioner in C.R. No.327 of 2016).

2018 C L C 1858

[Islamabad]

Before Athar Minallah, J

MAHERA SAJID----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SHALIMAR and 6 others----Respondents

W.P. No.2974 of 2016, decided on 11th July, 2018.

(a) Interpretation of Constitution---

----Scheme of the Constitution---Scope---State through its instrumentalities and functionaries is absolutely and exclusively responsible for protecting and safeguarding Fundamental Rights which have been guaranteed under the Constitution to every citizen.

Habib Ullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 rel.

(b) Pakistan Commission of Inquiry Act (VI of 1956)---

----S. 8---Commission of Inquiry on Enforced Disappearances Regulation, Rgln. 2(d)---United Nations International Convention for Protection of All Persons from Enforced Disappearances (2006), Arts. 1(2), 2, 5 & 6(1)(b)(iii)---Inter-American Convention on Enforced Disappearances (1994)---Rome Statute of International Criminal Court (1998)---Expression 'enforced disappearance'---Object, scope and effect---Expression 'enforced disappearance' involves direct or indirect involvement of state through its organs and agencies---Positive Constitutional obligation of State is to protect Fundamental Rights and to prevent, investigate and punish any perpetrator in accordance with law is not only severely breached but simultaneously gives rise to an unimaginable paradox when state and its functionaries assume role of abductors---'Enforced disappearances' affect in a complex and profound manner because person subjected to disappearance is not the only victim/and his or her relatives, particularly those who are dependents, suffer most; their anguish and suffering cannot be comprehended because their loved ones are removed from protection of law---By removing a person from protection of law, gives captors freedom and license to do what they feel like; as such it creates an environment of uncertainty for dependents and other family members---Perpetrators get license to subject the victim to torture, which is otherwise strictly forbidden under law and in case of death, it enables them to cause body to vanish without a trace---Fundamental Rights of victims guaranteed under the Constitution become irrelevant and virtually suspended; it creates anguish, insecurity and fear for close relatives, exposing them to grave economic and social consequences particularly if abductee is sole breadwinner.

Human Rights Case No.29388-K of 2013 PLD 2014 SC 305 rel.

(c) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 35-A---Constitutional petition---Compensation, quantum of---Violation of Fundamental Rights---Effect---High Court, in an appropriate case, while exercising jurisdiction under Art. 199 of the Constitution can order the State to compensate a citizen for an established violation of Fundamental Rights guaranteed under the Constitution---Cost may be imposed in excess of amount prescribed under S.35-A, C.P.C.

Ali Ahmed v. Muhammad Yakoob Almani, Deputy Superintendent of Police, Qasimabad, Hyderabad and others PLD 1999 Kar. 134; Syed Hassan Ali Shah v. Station House Officer, Police Station Dadu and others PLD 2006 Kar. 425; Abid Hussain and another v. Chairman, Pakistan Bait-ul-Mal and others PLD 2002 Lah. 482; Dr Mehmood Nayyar Azam v. State of Chaattisgarh and others 2013 SCMR 66; 'Rudul Sah v. State of Bihar and another' AIR 1983 SC 1086; Sebastian M. Hongray v. Union of Inida AIR 1984 SC 1026; Bhim Singh, MLA v. State of J&K. and others AIR 1986 SC 494; Khurshid Ahmed Naz Faridi v. Bashir Ahmed and 3 others 1993 SCMR 639 and Muhammad Zia v. Ch. Nazir Muhammad, Advocate and 4 others 2002 CLC 59 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Fundamental Rights, violation of---Missing persons---Onus to prove---Responsibility of State---Petitioner invoked Constitutional jurisdiction of High Court against missing of his husband who was victim of 'enforced disappearance' by State machinery---Petitioner sought recovery of her husband and also sought recovery of compensation from the State functionaries---Validity---Enforced disappearance is one of the most cruel and inhuman acts and was categorized as a crime against humanity---Complaint which alleged or disclosed characteristics in nature of enforced disappearance would be treated by authorities as heinous act and thus had dealt with accordingly---Onus was on public functionaries to dispel any impression regarding involvement of State or its instrumentalities in alleged abduction---Such onus was to be discharged by establishing prompt, responsive and effective investigations---High Court directed the authorities to pay amount demanded by petitioner lady or such amount as could be determined pursuant to verification and that arrears would be calculated and paid to the petitioner with effect from date when her husband had gone missing---High Court further directed that monthly payment would be made to petitioner till state through its functionaries had traced whereabouts or fate of detenue---High Court also directed that concerned officials would pay costs through cross-cheques drawn in name of petitioner within 10 days of announcement of judgment---Constitutional petition was allowed accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Muhammad Yasin v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others PLD 2012 SC 132; Bazorkini v. Russia No. 69481/01, ECHR-2006; 139; Aslakhanova and others v. Russia, Applications Nos. 2944/06 and 8300/07, 5018/07, 332/08, 42509/10; Caracazo v. Venezuela, judgment dated 29-8-2002; Trujillo-Oroza v. Bolivia.; judgment dated 27-02-2002 and President Balochistan High Court Bar Association v. Federation of Pakistan and others 2012 SCMR 1958 ref.

Umer Ijaz Gillani, Muhammad Haider Imtiaz and Waleed Bin Usman for Petitioner.

Raja Khalid Mehmood, Deputy Attorney-General, Kh. Muhammad Imtiaz, Asstt. Attorney General and Umar Hanif Khichi for Respondents.

Ahmer Bilal Sufi, ASC (Amicus).

Babar Sattar, ASC (Amicus).

Tariq Mehmood Jehangiri, ASC (Amicus).

Sheikh Zubair, S.P. Investigations, Azhar Shah, DSP/Legal, Abid Ikram, SHO, PS Shalimar for Islamabad Capital Territory Police.

2018 C L C 1892

[Islamabad]

Before Aamer Farooq, J

SPORTS STAR INTERNATIONAL (PVT.) LTD. ("SSI") through Chief Executive Officer/Authorised Officer----Appellant

Versus

SHALIMAR RECORDING AND BROADCASTING COMPANY LTD. ("SRBC") through Chief Executive Officer/Director---Respondent

F.A.O. No.79 of 2018, decided on 24th July, 2018.

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

----Ss.20(1) & 39---Arbitration agreement, termination of---Principles---Appellant was aggrieved of dismissal of his application whereby application under S.20 of Arbitration Act, 1940 filed by appellant was dismissed---Validity---Where arbitration agreement had been entered between the parties and difference had arisen, any party to the agreement could apply under S.20(1) of Arbitration Act, 1940 to the Court having jurisdiction---Where no sufficient cause was shown, Trial Court was to order that agreement be filed and reference was to be made to arbitrator---If the agreement wherein the arbitration clause existed had been terminated, that did not affect arbitration agreement and matter could still be referred to arbitrators---High Court directed the parties to nominate their arbitrators by setting order passed by Trial Court---Appeal was allowed accordingly.

Messrs Sadat Business Group Ltd. v. Federation of Pakistan through Secretary and another 2013 CLD 1451 rel.

Mashreq Bank v. Messrs Nazir Cotton Mills and others 2004 CLD 542; Messrs Crescent Steel and Allied Products Limited v. Messrs Sui Northern Gas Pipeline Limited and another 2013 MLD 1499; Federation of Pakistan v. Messrs James Construction Company (Pvt.) Ltd. PLD 2018 Isl. 1; Pak. U.K. Association (Pvt.) Ltd. v. The Hashemite Kingdom of Jordan 2017 CLC 599; Al-Mukhlis (Pvt.) Ltd. Company v. Messrs Telecom Foundation and another 2017 YLR 1674 and Capita Insurance Services Limited v. Wood 2017 SCMR 1116 ref.

(b) Appeal---

----Jurisdiction of court---Appeal is continuation of original proceedings and High Court can pass any order which Trial Court was competent to do so.

Pakistan Real Estate investment and Management Company (Pvt.) Ltd. v. Sohail A. Khan, Associates and another PLD 2018 Isl. 115 rel.

Hassan Rashid Qamar for Appellant.

M/s Muhammad Amin Farooqi and Noman Amin Farooqi for Respondent.

2018 C L C 1910

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SENATOR TAJ HAIDER and others----Petitioners

Versus

GOVERNMENT OF PAKISTAN, through Secretary, Finance Division and others----Respondents

W.P. No. 3763 of 2017, decided on 17th July, 2018.

(a) State Bank of Pakistan Act (XXXIII of 1956)---

----Ss. 10(3) & 11---Constitution of Pakistan, Art.199---Constitutional petition---Writ of Quo Warranto---Appointment of Governor of the State Bank of Pakistan---President of Pakistan, jurisdiction of---Petitioners were Senators sitting on opposition benches who assailed appointment of Governor of the State Bank of Pakistan---Plea raised by petitioners was that such appointment was made by the President without advice of Prime Minister---Validity---Exclusive and absolute authority under S.10(3) of State Bank of Pakistan Act, 1956, to appoint the Governor of the State Bank of Pakistan vested with the President---No role had been assigned to the Federal Government in appointment of Governor of the State Bank of Pakistan---Where legislature intended to give Federal Government power to make appointments in State Bank of Pakistan, it clearly did so through relevant provisions---Only power that Federal Government could exercise with respect to Governor of the State Bank of Pakistan was to grant him leave under S. 10(11) of State Bank of Pakistan Act, 1956---Petitioners did not question qualifications or experience of Governor of the State Bank of Pakistan necessary for his appointment---Appointment of the Governor of the State Bank of Pakistan was not without authority of law or contrary to relevant statutory provisions---Essential prerequisite for issuance of writ of Quo Warranto was not satisfied---Constitutional petition was dismissed in circumstances.

Muhammad Iqbal Khattak v. Federation of Pakistan 2010 CLD 1572 distinguished.

Syed Mushahid Shah v. Federal Investment Agency 2017 SCMR 1218; Zarka Muzammal v. Provincial Ombudsman 2016 YLR 1739; Habibullah Energy Limited v. WAPDA through Chairman PLD 2014 SC 47; Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159; Ch. Nisar Ali Khan v. Federation of Pakistan PLD 2013 SC 568; M. Ashraf Azeem v. Federal Government of Pakistan 2013 PLC (C.S.) 1147; Dr. Altaf Hussain v. Federation of Pakistan 2013 PLC (C.S.) 1178; Muhammad Iqbal Khattak v. Federation of Pakistan 2011 PLC (C.S.) 65; Chief Secretary Punjab v. Abdul Raoof Dasti 2006 SCMR 1876; Mushtaq Ahmed Mohal v. The Hon'ble Lahore High Court 1997 SCMR 1043; Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC132 and Chief Secretary Punjab v. Abdul Raoof Dasti 2006 SCMR 1876 ref.

(b) Constitution of Pakistan---

----Art. 48(1)---Term 'exercise of functions'---Connotation---Term 'exercise of his functions' in Art. 48(1) of the Constitution is relatable to functions that the President exercises under specific provision of the Constitution as opposed to powers conferred upon him by statutes.

(c) Constitution of Pakistan---

----Arts. 48 & 91---Functions of the President---Constitutional/Statutory---Distinction---Distinction exists in Constitutional functions and statutory power of the President---Where the President performs his Constitutional functions, he is bound by advice of Cabinet or Prime Minister under Art. 48(1) of the Constitution.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.

(d) Constitution of Pakistan---

----Arts. 90 & 99---Rules of Business, 1973, Rr. 15-A & 16(j)---Federal Government---Exercise of powers---Principles---Federal Government has made Rules of Business, 1973 in exercise of powers conferred by Arts. 90 and 99 of the Constitution---Such rules are based on public policy and designed to effectively safeguard State's interest to act in consonance with these rules is clearly a duty is cast on all divisions and ministries of Federal Government.

Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Federal Government of the Islamic Republic of Pakistan v. General (R) Pervez Musharaf 2014 PCr.LJ 684; Amin Jan v. Director General, T&T PLD 1985 Lah. 81 rel.

(e) Interpretation of statutes---

----General and special laws---Conflict---When conflict exists between provisions of general law and special law, latter prevails.

Gulshan Textile Mills Ltd. v. Soneri Bank Limited PLD 2018 SC 322; State Life Insurance Corporation of Pakistan v. Mst. Sardar Begum 2017 SCMR 999; Syed Mushahid Shah v. Federal Investment Agency 2017 SCMR 1218 and Capt. Retd. Nayyar Islam v. Judge Accountability Court No.III 2012 SCMR 669 rel.

(f) Interpretation of statutes---

----Redundancy, principle of---Applicability---Redundancy cannot be attributed to statutory provisions.

Qaiser Javed Malik v. Pervaiz Hameed 2009 SCMR 846; Aftab Shahban Mirani v. Muhammad Ibrahim PLD 2008 S.C. 779; Shoukat Baig v. Shahid Jameel PLD 2005 SC 530; Collector of Sales Tax and Central Excise v. Mega Tech. (Pvt.) Ltd. 2005 SCMR 1166; Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219; D.G. Khan Cement Company Limited v. Federation of Pakistan 2004 SCMR 456 and M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225 rel.

(g) State Bank of Pakistan Act (XXXIII of 1956)---

----S.54-A---Banks (Nationalization) Act (XIX of 1974), S.2---Overriding effect---Since S. 54-A of State Bank of Pakistan Act, 1956 reflects latest intent of Legislature, it overrides non-obstinate clause in S. 2 of Banks (Nationalization) Act, 1974.

Syed Mushahid Shah v. Federal Investment Agency 2017 SCMR 1218 rel.

(h) Malice---

----Proof---Principle---Malice is to be pleaded with particularity and proved beyond reasonable doubt.

Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 and Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 rel.

(i) State Bank of Pakistan Act (XXXIII of 1956)---

----S. 10(3)---Governor, of the State Bank of Pakistan, appointment of---Casus Omissus---Applicability---No requirement exists to advertise post of the Governor of the State Bank of Pakistan as stipulated in S.10(3) of State Bank of Pakistan Act, 1956---High Court cannot supply casus omissus in circumstances.

Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630; Nadeem Ahmed Advocate v. Federation of Pakistan 2013 SCMR 1062; Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419 and Muhammad Ismail v. The State PLD 1969 SC 241 rel.

Sardar Muhammad Latif Khan Khosa and Shahbaz Ali Khan Khosa, Rai Mudassar Iqbal and Syeda Naz Gul of Petitioner.

Dr. Parvez Hassan and Asad Ahmad for Respondent No.2.

Ms Makhdoom Ali Khan and Saad Mumtaz Hashmi for Respondent No.3.

Rashid Hafeez, learned Deputy Attorney-General and Ms. Sitwat Jahangir, learned Asst. Attorney-General with Nadeem Arshad Section Officer Finance Division.

2018 C L C 31

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon, J

MUHAMMAD AIJAZ----Petitioner

Versus

Mst. HANIFA ANJUM and another----Respondents

Constitutional Petition No.S-923 of 2016, decided on 21st February, 2017.

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

---S. 15---Second eviction petition---Res judicata, principle of---Applicability---Bona fide personal need of landlady---Scope---Contention of tenant was that landlady had created false ground of personal use of demised premises for her married daughter---Eviction petition was allowed concurrently---Validity---Present ejectment petition had not been filed on the same ground of earlier petition---Earlier case would not come in the way of claim of personal bona fide need of demised premises for daughter of landlady---Principle of res judicata was not attracted in circumstances---Landlady had proved the bona fide need of her daughter to establish her office in the demised premises---Selection of area and nature of business was choice and prerogative of landlord/landlady which could not be interfered---"Requirement of children of landlady" would include the requirement of married daughter---Tenant was granted three months time to vacate and handover the possession of demised premises to the landlady---Constitutional petition was dismissed in circumstances.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Mohammad Deen v. Nazeer 1982 CLC 1916 and Mst. Amtul Begum v. Juma Khan 1996 MLD 853 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Scope of constitutional petition in matters relating to rent was limited and confined only to ascertain if the Court below had flouted the provisions of statute or failed to follow the law relating thereto.

Mohammad Sadiq and Company v. Dawat-Ehadiya Akbar Ali Hassan Ali Trust, Rawalpindiwala Building 1999 CLC 1102 rel.

Mohammad Imran Shamsi for Petitioner.

Asif Ali Bhatti for Respondents.

2018 C L C 50

[Sindh]

Before Adnan-ul-Karim Memon, J

Syed ZIA ABBAS----Petitioner

Versus

Mst. MAHIYA and 2 others----Respondents

C.P. No.S-1456 of 2017, decided on 20th July, 2017.

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

----Ss. 12 & 25---Family Courts Act (XXXV of 1964), S.14(3)---Suit for guardianship by mother---Interim custody of minor---Scope---Welfare of minor---Scope---Father, who had custody of minor after dissolution of marriage alleged that mother of minor was not of good character---Effect---Court allowed interim arrangement of meetings of minor with the mother---Appeal against interim order----Maintainability---Scope---Father contended that mother was of not good character, therefore, her meetings with the minor were against the welfare of minor---Mother contended that Trial Court had rightly allowed interim arrangement of meetings with the minor which order was not appealable and that factual controversy was to be decided by the Trial Court---Validity---Record revealed that interim arrangement was made by Trial Court by allowing interim custody of minor to his mother for 10 days, therefore, said interim arrangement could not be termed as illegal---Impugned order being interlocutory in nature was not a final order and could not be assailed in appeal in terms of S.14(3) of Family Courts Act, 1964 unless the said order was not in favour of welfare of the minor--- Appellate Court had rightly dismissed the appeal of father---Prime consideration in determining the custody of the minor under the law, was always the welfare of minor---Family Court had allowed interim custody of minor to the mother for limited period of time of 10 days which was neither illegal nor against the norms of justice as portrayed by the father---High Court observed that mother of minor being natural guardian could not be called alien, so if custody of child was given to her for interim period, the same did not prejudice the rights of the father and also was not against the welfare of minor---No illegality, infirmity or material irregularity having been noticed in the impugned orders, constitutional petition was dismissed accordingly.

Sardar Hussain and others v. Parveen Umar and others PLD 2004 SC 357 and Muhammad Younis Khan and others v. Government of NWFP and others 1993 SCMR 618 ref.

Messrs Trans Globe Shipping Service v. WAPDA and others 2016 SCMR 2023 distinguished.

Farhatullah and Syed Ahsan Imam Rizvi for Petitioner.

Respondent in person.

Ms. Yasmeen Sultana, State Counsel.

2018 C L C 99

[Sindh]

Before Khadim Hussain Tunio, J

Messrs BURHANI IRON AND STEEL COMPANY through Managing Partner----Plaintiff

Versus

Messrs PAKISTAN STEEL MILLS through Chairman----Defendant

Suit No.1485 of 1999, decided on 27th February, 2017.

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

----Arts. 117 & 120--- Damages, recovery of---Onus to prove---Principle---While insisting damages suffered due to breach of a contract, onus is upon plaintiff to establish the contract; breach thereof; and then details of damages suffered by him in result of such breach.

Syed Ahmed Saeed Kirmani's case 1993 SCMR 441 rel.

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

----Arts. 117 & 120---Suit for recovery of damages---Lump-sum damages---Waiver, principle of---Applicability---Tender---Plaintiff sought damages with reference to an earlier tender, if any, which he himself substituted with the fresh tender---Plaintiff opted not to sue for alleged breach and supplied the items under fresh tender at reduced price---Effect---Plaintiff, in circumstances, waived his right to object the breach, if any---Plaintiff though failed to prove any of the two tenders being sufficient to hold him entitled for damages, however, plaintiff also took the plea of hardship and mental agony but no details were furnished about the loss suffered/damages sustained by him at the hands of the defendant---Plaintiff did not give kind of loss/damages that he sustained "special" or "general damages" at the hands of defendant---Plaintiff did not examine any doctor in support of his plea that after causing of loss he became ill and got treated himself by any doctor--- Plaintiff claimed loss as well as damages in lump-sum without giving details as well as reasons for the same---Failure of plaintiff to discharge his burden resulted in declining what could have been declared as a 'right' on successful discharge of burden---Plaintiff failed to prove his case against the defendant---Suit was dismissed in circumstances.

Dr. Muhammad Javed Shafi v. Syed Rashid Ahmed and others PLD 2015 SC 212; RTS Flexible Systems Ltd. v. Molkerei Alois Muller 2012 SCMR 1027; Elahi Bakhsh v. Muhammad Iqbal 2014 SCMR 1217; 1985 CLC 2836; 1989 CLC 1671; 1989 CLC 1778; 2010 CLC 1100; 2010 YLR 952; 2014 CLC 718; Ch. Nazeer Ahmed v. Ali Ahmed and others 2016 CLD 338 and Province of West Pakistan and another v. Messrs Asghar Ali Muhammad Ali & Co. PLD 1968 Kar. 196 ref.

Muhammad Aziz Khan for Plaintiff.

M.G. Dastagir for Defendant.

2018 C L C 116

[Sindh]

Before Aqeel Ahmed Abbasi and Nazar Akbar, JJ

HABIB BANK LIMITED and others----Petitioners

Versus

CANTONMENT BOARD CLIFTON, KARACHI and others----Respondents

C.Ps. Nos.D-3539, D-1135 of 2016 and 2892 of 2014, decided on 15th July, 2017.

Cantonments Act (II of 1924)---

----Ss. 60 & 210---Constitution of Pakistan, Art.163---Professional tax, levy of---Scope---Petitioners were aggrieved of professional tax levied by Cantonment Board---Validity---Jurisdiction and authority to impose and collect professional tax was vested in Provincial Legislature in terms of Art.163 of the Constitution and not in a local government or Cantonment Board---Imposition and collection of professional tax from petitioners by Cantonment Board pursuant to impugned notifications and demand notices/challans issued by the Board in such regard were without lawful authority and legal basis---High Court declared recovery of professional tax by the Board to be illegal, without lawful authority as well as ultra vires the Constitution---Constitutional petition was allowed in circumstances.

Pakistan through Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37; Province of Punjab and others v. Sargodha Textile Mills Limited and others PLD 2005 SC 988; ICI Pakistan Limited v. Tehsil Council, Pind Dadan Khan and others PLD 2007 SC 428; Olympia Textile Mills v. Province of Punjab and others 2004 MLD 814; Fauji Sugar Mills v. Zila Nazim and others 2007 MLD 302; New Chaudhry Fibre through Sole Proprietor v. Excise and Taxation Department and others PLD 2015 Lah. 369 and Habib Jute Mills v. Province of Sindh and another 2012 PTD 901 ref.

Mrs. Saman Rafat Imtian for Petitioner (in C.P. No.D-3539 of 2016).

Asadullah Shaikh for Petitioner (in C.P. No.D-1135 of 2016).

Muhammad Arif for Petitioner (in C.P. No.D-2892 of 2014).

Abdullah Munshi for Respondent No.1 (in C.Ps. Nos.D-3539 of 2016 and 2892 of 2014).

Junaid Farooqui and Naeem Ahmed for Respondent (in C.P. No.D-3539 of 2016).

Abdul Waheed Khan for Respondent No.2.

Saifullah AAG for Province of Sindh.

Ghulam Shabbir Baloch, Assistant Attorney General for Federation of Pakistan.

2018 C L C 155

[Sindh]

Before Arshad Hussain Khan, J

ARK GARMENT INDUSTRY through Chief Executive----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad and another----Respondents

C.M.A. No.478 of 2015 in Execution Application No.71 of 2010, decided on 20th September, 2017.

Civil Procedure Code (V of 1908)---

----S. 151 & O.IX, R. 9 & O. XXI, R. 57 ---Execution proceedings---Executing Court had dismissed execution application in default as counsel of the decree holder failed to appear despite specific directions of the Court---Dismissal of execution application in default---Scope---Restoration of execution application---Sufficient cause---Scope---Non-appearance of counsel of decree holder---Effect---Judgment debtor contended that execution application could not be restored as the same was actually dismissed on merits against which order the decree-holder had not preferred appeal---Decree-holder contended that non-appearance of his counsel was due to his request for "general adjournment"---Validity---Record revealed that execution application was not decided on merits but was dismissed for non-prosecution---Decree by a competent civil court could not be dismissed in default and for an execution application there was no provision in C.P.C. under which it could be dismissed in default or for non-prosecution except under O.XXI, R.57, C.P.C. which related to the determination of attachment---Once the decree holder had invoked the execution of the decree within the prescribed time, then it was the duty and obligation of the Executing Court to ensure the complete enforcement of the same---In case of failure, on the part of decree-holder to appear before the Executing Court, application for execution could best be adjourned 'sine die' but could not be dismissed without complete satisfaction of the decree---Where O.IX, R.9 C.P.C. was not applicable, execution application could be restored under the inherent powers conferred upon the Court under S.151, C.P.C.---Expression 'sufficient cause' could not be confined to precise, identical, and invariable definition, nor any hard and fast rule could be propounded as to encompass all possible eventualities which could arise due to particular fact and circumstances of each case---High Court had inherent powers under S.151, C.P.C., to make such orders, necessary for the ends of justice and to prevent the abuse of process of the court and powers could be exercised by the High Court to cover ostensibly impossible situations for complete dispensation of justice---Counsel of the decree-holder, in the present case, had sworn his personal affidavit which clearly mentioned that counsel was on "general adjournment without exception" which was published before date of hearing---High Court, in circumstances, held that the same was "sufficient cause" for non-appearance of counsel of the decree-holder on the date when impugned order was passed---Order was recalled by the High Court and execution application was restored.

North West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 ref.

Mirza Sarfaraz Ahmed for Decree-holder/Applicant.

Umer Hayat Sandhu for Judgment Debtor/Respondent.

Saleemuddin A. Patoli, AAG.

2018 C L C 188

[Sindh]

Before Muhammad Junaid Ghaffar, J

CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION----Plaintiff

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA)----Defendant

Suit No.1325 of 1999, decided on 12th June, 2017.

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

----Ss. 3, 30 & 33---Award---Objection---Role of Court---Scope---High Court while hearing objections to award under Ss.30 & 33 of Arbitration Act, 1940, is not a court of appeal nor it is required to undertake reappraisal of evidence recorded by arbitrator in order to discover error or infirmity in award---Exception is available to such rule as well that if error or infirmity in award rendering it invalid is appearing on face of award and is discoverable by reading the award itself, then same can be looked into for either setting aside or modifying the award--- Award can also be interfered within certain exceptional circumstances when finding of arbitrator is not based on evidence on record.

[case-law referred].

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

----Ss. 20, 30 & 33---Award---Objection---Plaintiff company had alleged that defendant Authority had failed to make payment of bill within time---Matter was referred to sole arbitrator who passed award against which defendant Authority had filed objection---Validity---Last date for payment of bill in question, duly certified on 08-03-1997 by the engineer, was 21-06-1997 and not 20-06-1997 as concluded by arbitrator---First day i.e., 08-03-1997 was not to be included but was to be excluded for calculation of total period of payment (45+60=105 days) and therefore, payment could have been made by 21-06-1997 and cheque was duly issued on 20-06-1997---Cheque issued by authorities was accepted and encashed by plaintiff on 24-06-1997 without any obstacle and/or delay Bank---Date of payment was deemed to be 20-06-1997 on the date cheque was issued and was subsequently encashed---No default existed on the part of defendant in payment of bill in question and plaintiff had no cause of action to invoke or exercise option of termination of contract in terms of specific clauses of conditions of contract---Entire claim lodged on basis of such default fell on ground as contract could not have been terminated for such alleged default--- Consequently, no damages as claimed could have been granted or even considered--- Objections under Ss.30 & 33 of Arbitration Act, 1940 raised by defendant Authority were sustained---Award was set aside in circumstances.

[Case-law referred.]

Muhammad Amin Bandukda for Plaintiff.

Badar Alam for Defendant.

2018 C L C 245

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

ABDUL MAJEED and others----Applicants

Versus

TASSADUQ ALI and others----Respondents

Civil Revision Application No.S-34 of 2009, decided on 2nd June, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. XXIII, Rr. 3. & 2---Limitation Act (IX of 1908), Art.113---Specific Relief Act (I of 1877), S.12---Suit for specific performance with possession as an ancillary relief---Filing of fresh suit with permission of the court claiming no objection was raised by the defendant at the time of withdrawal of previous suit---Application under O.VII, R.11, C.P.C. filed by the defendant---Limitation---Accruing of cause of action---Averments of the plaints---Scope---Applicants/plaintiffs contended that present suit was filed with permission of the court while earlier suits were withdrawn and no objection was raised by the defendants/respondents at that time so the question of limitation was covered by the previous suits---Applicants/plaintiffs had submitted that there was no limitation for possession and limitation was a mixed question of fact and law which Trial Court should have resolved in the light of evidence adduced after framing of relevant issue---Defendant/respondent contended that main case of plaintiff related to specific performance and possession was an ancillary relief and application under O.VII, R.11, C.P.C. was rightly accepted and that no objection was given only to the extent of withdrawal of the previous cases---Validity---Held, while considering the application under O.VII, R.11, C.P.C., it was not necessary to take into consideration that defence set up by the defendant in his written statement or other documents---Question whether plaint disclosed any cause of action and whether it was barred by any law was to be decided by looking at the averments in the plaint itself without any prejudice from the defence set up in the written statement---While considering the application under O.VII, R.11, C.P.C., the strength or weakness of the case of the plaintiff was not to be examined---Court had to find out from the allegations made in the plaint itself and not beyond it as to whether the plaintiff had initiated any vexatious and frivolous litigation---Court could not take into account materials beyond the plaint to declare that the case of the plaintiff was trivial or was barred by any law---In the present case it could not be denied that the suit was filed for "Specific Performance" of an agreement and the claim of possession was the ancillary relief of the specific performance---Record established that possession of the disputed property was never handed over to applicants/plaintiffs in any manner---Plaint had to be looked as a whole to consider whether the plaint was liable to be rejected either on the ground of limitation or on the other reasons as enumerated under O.VII, R.11, C.P.C.---Limitation was a mixed question of law and fact; therefore, when the pleading in the plaint made it clear that the suit was barred by limitation, the plaint could be rejected on the ground of limitation; however, when there were allegations in the plaint, which required a roving enquiry to give a finding whether the suit was barred by limitation and in that context, the court should conduct a roving inquiry to find out whether the suit was barred by limitation---Plaint had alleged that the applicants/plaintiffs entered into an agreement in the year 1974 by paying earnest money and remaining amount was to be paid within short time i.e. on the date of registration of sale deed and that the cause of action arose in or about May, 1999 when allegedly ownership of suit property was challenged by one of the defendants---Prior to the present suit, the applicants/plaintiffs filed three different suits with the various prayers but subsequently all those suits were withdrawn by filing an application under O.XXIII, R.1, C.P.C. with the permission to file new suit covering the contents of all the suits previously filed---Record showed that defendants/respondents only gave no-objection to the extent of withdrawal of suits and the same was conditional, and defendants/respondents manifested the intention to challenge limitation of the proposed fresh suit---Question of limitation was admittedly a mixed question of facts and law, but it was necessary that the question of limitation remained an intricate issue because of the complexity of facts and law---In such cases, where the issue of the limitation was obvious and clear, there would be no need of roving enquiry by formulating a point or issue and leading evidence for the same---No enquiry was required if the question of limitation floated on the record without any proper explanation and no allegation was made in the plaint, which required evidence to determine the time for accruing of the cause of action for the plaintiff---Applicants/plaintiffs took a plea in the pleadings that since the new suit was filed after the permission of the court; therefore, the period of limitation would cover under the date of filing of the previous suits---High Court observed that no doubt O.XXIII, R.1, C.P.C. provided for the filing of the fresh suit with the permission of the court, however, under O.XXIII, R.2, C.P.C. the plaintiff was bound by the law of limitation in the same manner as if the previous suit had not been instituted and the plain interpretation of said Rule was that period of limitation would have started in accordance to the cause of action firstly accrued---In the present case, the agreement on which the applicants/plaintiffs had relied upon for the specific performance was executed in the year 1974 while the suit for the specific performance of the same was filed in the year 2006; as far as the cause of action was concerned, it was claimed that same accrued to the applicants/plaintiffs in the year 1999---Period of limitation under Art.113 of Limitation Act, 1908 was "three years"---Cause of action in view of contents of the plaint, was shown to have accrued in the year 1999 for the specific performance of the contract allegedly executed in the year 1974, as such the suit was badly time-barred---Two forums below upon consideration of the averments of plaint had rightly come to the conclusion that the suit was barred by limitation and no grounds were made by the applicants/plaintiffs warranting the interference ---Revision was dismissed accordingly.

Muhammad Khan v. Muhammad Amin through LRs and others 2008 SCMR 913; Akram Yaseen and others v. Asif Yaseen and others 2013 SCMR 1099 and Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144

Dr. Salahuddin Ahmed v. Ministry of Works and another 1983 CLC 457; Mst. Miraj Bibi v. Additional District Judge and others 1991 CLC 1405; Qazi Sher Muhammad and others v. Nazar Ali Shah and others 1985 CLC 2883; Messers Kashmirian (Pvt.) Ltd., through Shomaila Loan Marker and 6 others v. Ghulam Nabi Gujjar and another 2006 CLC 482 and Abdul Hamid and another v. Dilawar Hussain alias Bhalli and others 2007 SCMR 945 distinguished.

Ghulam Dastagir A. Shahani for Applicant.

Gulab Rai C. Jessrani for Respondents Nos.7 to 14.

2018 C L C 279

[Sindh]

Before Nazar Akbar, J

OPI GAS (PRIVATE) LIMITED through General Manager----Plaintiff

Versus

UNITED ENERGY PAKISTAN LIMITED through President and 4 others----Defendants

Suit No.1683 of 2017, decided on 10th August, 2017.

(a) Constitution of Pakistan---

----Art. 18---Sale purchase agreements---Creation of vested rights---"Freedom of trade"---Scope---Plaintiff sought to establish a vested right to be the sole supplier of LPG manufactured by defendants and sought to restrain the defendants from allowing any third-party to make such supply---Contention of plaintiff, inter alia, was that it had made a huge investment to enable such supply which had created a vested right in its favour---Validity----Investment of plaintiff had not created any vested right in its favour as the LPG itself belonged to the defendants prior to sale purchase contract between the parties and also upon termination of said contract---Huge investment in the business by a trader could not be considered as an investment to acquire any rights whatsoever in the product/property which was owned by the other contracting party beyond the limited extent incorporated in the written sale / purchase agreement---Plaintiff could also not interfere in the defendants' freedom of trade guaranteed by Article 18 of the Constitution---Suit was dismissed, in circumstances.

1994 CLC 728; Chitty on Contract (13th edition) page 56-57 from Volume.1 General Principles; AIR 1978 SC 798; AIR 2006 SC 40; Bank Alfalah Ltd. v. NEU Multiplex and Entertainment Square Company (Pvt.) Ltd. 2015 YLR 2141; Royal Foreign Company v. The Civil Aviation Authority and another 1998 CLC 374; Messrs World Wide Trading Co. v. Sanyo Electric Trading Co. Ltd. and another PLD 1986 Kar. 234 and Messrs Universal Business Equipment (Pvt.) Ltd., v. Messrs Kokusai Commerce Inc. and others 1995 MLD 384 ref.

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

----O. VI, Rr. 2 & 4---Pleadings generally---Practice of counsel/lawyers placing on record several documents which such counsel/lawyer did not even refer to during course of arguments or otherwise and such documents were not part of their own record needed in support of their pleadings---High Court observed that such practice was due to the reason that counsel/lawyer/ wanted to give an impression to the court that the case filed by them was an important one requiring immediate attention; which practice was against the basic principles of pleadings to be filed in court under O.VI, C.P.C. wherein emphasis of law makers/legislature was on "material facts" and "effect of material documents" in pleadings.

Tariq Bashir and Akhtar Ali Memon for Plaintiff.

Nemo for Defendant No.1.

Ali Almani, Samiur Rehman and Ghulam Hussain Shah for Defendant No.2.

Asim Iqbal and Farmanullah for Defendant No.3.

D.G. Gas Ministry of Petroleum and Natural Resources for Defendant No.4.

Secretary Ministry of Petroleum and Natural Resources for Defendant No.5.

2018 C L C 296

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui and Salahuddin Panhwar, JJ

SARWAN LAGHARI---Petitioner

Versus

VICE-CHANCELLOR, LUMS and others---Respondents

Constitutional Petition No.D-37 of 2014, decided on 5th September, 2017.

Pakistan Medical and Dental Council Rules, 2010---

----R. 9---Medical Student---First Professional Examination---Fifth attempt---Petitioner got admission in Medical College under 'University Development Program' against annual fee of Rs.400,000---Petitioner, despite maximum four attempts, could not pass his first Professional examination---Validity---Placing limit on number of attempts available to a student to clear sundry examination was with a view to improve quality of professional degrees of MBBS and BDS---Plea of petitioner i.e. readiness to pay fee could not help him to escape consequences of R.9 of Pakistan Medical and Dental Council Rules, under which petitioner himself availed maximum four opportunities---High Court observed that Pakistan Medical and Dental Council should not only take care of quality of future doctors but also to provide room in its Rules and Regulations for ethical and behavioral development of students of medicine so that after completing their courses to inculcate real humane traits in them---High Court declined to allow petitioner to appear in MBBS First Professional examination for fifth time as the same was not permissible under the Rules---Constitutional petition was dismissed, in circumstances.

Miss Asma Ghafoor v. Principal, King Edward Medical College, Lahore 2001 SCMR 1311 and Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 ref.

Willayat Ali Khan Magsi for Petitioner.

Kamaluddin for Respondents.

Anwer H. Ansari, State Counsel.

2018 C L C 328

[Sindh]

Before Syed Saeeduddin Nasir, J

SAMIN TEXTILE LIMITED through authorized Representative----Plaintiff

Versus

MUHAMMAD FAROOQ SUMAR----Defendant

Suit No.775 of 2012, decided on 3rd January, 2017.

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

----O. XXXVII, Rr. 1 & 3---Specific Relief Act (I of 1877), Ss.42 & 54---Limitation Act (IX of 1908), S.5---Suit for declaration and injunction and recovery of money---Application for leave to defend suit---Condonation of delay---Plaintiff sold goods to defendant and payment was made in shape of fourteen bank cheques---Cheques were dishonored by the Bank due to insufficient funds---Defendant did not file application for leave to defend the suit within time prescribed in law and sought condonation of delay---Validity---Case based on negotiable instruments for recovery of money under O.XXXVII, C.P.C. was always liable to be decreed when a cheque or a Bill of Exchange or any other negotiable instrument was dishonored---In the present case, upon filing suit for recovery of amount mentioned therein, defendant had failed to file application to obtain leave to defend the same or when defendant filed leave to defend application, same had not disclosed any plausible defence or triable issue or substantial question of fact or law which needed to be tried---Court, in such a situation, was justified in dismissing leave to defend application and passing a decree against defendant---High Court dismissed application under S.5 of Limitation Act, 1908 for condonation of delay---Suit was decreed in circumstances.

Case law referred.

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

----S. 80---Interest when no rate specified---Scope---In absence of any rate of interest mutually specified or fixed by parties or mentioned in instrument on amount due, same is chargeable @ 6% per annum until realization of amount due thereof.

Ms. Soofia Saeed Shah for Plaintiff.

Mujahid Bhatti for Defendant.

2018 C L C 390

[Sindh]

Before Nazar Akbar, J

ANEES VAYYANI----Plaintiff

Versus

Mst. ZARINA VAYANI and 6 others----Defendants

Suit No. 783 and C.M.A. No. 7108 of 2017, decided on 15th August, 2017.

Succession Act (XXXIX of 1925)---

----Ss. 295 & 278---Civil Procedure Code (V of 1908), O.XX, R.13 & S.114---Succession---Procedure in contentious cases---Decree in administration suit---Nature of order under S.295, Succession Act, 1925---Conversion of proceedings under Succession Act, 1925 to a suit of administration under O.XX, R.13, C.P.C.---Preliminary decree---Scope---Orders passed in absence of legal heirs could not be treated as orders passed on "objections" in order to treat an application for letter for administration as contentious, which could only be converted into a suit if the objections filed were prima facie tenable and objectors were to be treated as defendants in terms of S.295, Succession Act, 1925---When there was neither "objections" nor "objectors" on record, order under O.XX, R.13, C.P.C. could not be passed.

2018 C L C 443

[Sindh]

Before Adnan-ul-Karim Memon, J

SALEH MUHAMMAD----Appellant

Versus

Mst. RAHIMA BAI and others----Respondents

IInd Appeals Nos. 97 and 98 of 2011, decided on 15th August, 2017.

Specific Relief Act (I of 1877) ---

----Ss. 12 & 8---Suit for specific performance and possession---Plaintiffs filed suit for specific performance while the defendants instituted suit for possession of immovable property---Trial Court decreed suit of plaintiffs and dismissed suit of defendants but Appellate Court reversed the findings of Trial Court---Validity--- Plaintiffs had discharged their burden of proof and established their case of specific performance of contract for sale---Plaintiffs were enjoying uninterrupted possession of suit property till date and also had the title documents of said property---Defendants were bound to prove the contrary after discharge of burden of proof by the plaintiffs---Defendants had failed to provide any oral or documentary proof to substantiate their claim---Appellate Court had not appreciated and took into consideration the contradictory evidence of defendants on record---Impugned judgment and decree passed by the Appellate Court were based on mis-reading and non-reading of evidence which were set aside---Judgment and decree passed by the Trial Court were restored in circumstances---Appeal was allowed accordingly.

Muhammad Nawaz through LRs v. Haji Muhammad Baran Khan and others 2013 SCMR 1300 and Muhammad Ramzan v. Muhammad Qasi 2011 SCMR 249 distinguished.

Shaikh Liaqat Hussain for Appellants.

Naeem Akhtar Memon for Respondents.

2018 C L C 472

[Sindh (Sukkur Bench)]

Before Khadim Hussain M. Shaikh, J

ABDUL SATTAR RIND and another----Appellants

Versus

FEDERATION OF PAKISTAN through Secretary Election Commission of Pakistan, Islamabad and 9 others----Respondents

Election Appeal No.S-38 and M.A. No.924 of 2016, decided on 13th January, 2017.

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

----S. 54---Limitation Act (IX of 1908), S. 5---Appeal---Condonation of delay---Appellant sought condonation of delay of 4 days in filing of appeal against final order passed by Election Tribunal---Validity---Provisions of S.5 of Limitation Act, 1908 were not applicable to the appeals filed under S.54 of Sindh Local Government Act, 2013, which itself specifically provided period of limitation for filing of appeal to High Court against a final order passed by Election Tribunal---Appeal was filed on 30-11-2016, i.e., after 32 days of receiving of copy of judgment in question and 34 days of passing judgment and appeal was barred by 4 days---Ground urged by appellant was absurd and vague in nature and could not be a ground for appellant to seek condonation of delay for 4 days in filing appeal even in a case attracting provisions of S.5 of Limitation Act, 1908 as delay of each and every day with justification was to be explained---High Court declined to condone delay in filing of appeal---Appeal was dismissed in circumstances.

Messrs S. Malik Traders and another v. Saudi PAK Leasing Company Ltd. 2009 CLD 171 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

2018 C L C 478

[Sindh]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

FAHIM SAEED----Appellant

Versus

Mst. YASMEEN and 3 others----Respondents

High Court Appeals Nos.34 and 64 of 2003, decided on 31st March, 2017.

Specific Relief Act (I of 1877)---

----Ss. 8. 42 & 56---Qanun-e-Shahadat (10 of 1984), Art.129, Illustration (e)---Suit for recovery of possession of immovable property, declaration and injunction--- Registered sale deed--- Presumption--- Plaintiff claimed to be owner of suit house on the basis of registered sale deed executed against consideration by husband of defendant followed by a rectification deed--- Defendant was ex-wife of the seller who vacated the house--- Defendant resisted her possession on the basis of an unregistered relinquishment deed---Single Judge of High Court partially decreed the suit in favour of plaintiff but declared that possession of defendant was not unauthorized---Validity--- No convincing/cogent evidence was available to conclude that registered sale deed followed by rectification deed were collusive and result of fraud, therefore, the two deeds were valid, intact and still held the field--- Presumption of truth was attached to registered document as per Art.129 Illustration (e) of Qanun-e-Shahadat, 1984--- Relinquishment deed was not a legal document for the purpose of alienating share of co-owner of suit property to defendant--- Such relinquishment deed was not binding upon plaintiff because ownership could only be transferred under the law--- Division Bench of High Court reversed the findings of single Judge of High Court to the extent of retaining possession over suit property---Intra-court appeal was allowed in circumstances.

[case-law referred]

Syed Aijaz Hussain Shirazi for Appellant (in H.C.A. No.34 of 2003) and for Respondent (in H.C.A. No.64 of 2003).

Suleman Hudda for Appellants (in HCA No.64 of 2003) and for Respondent (in H.C.A. No.34 of 2013).

2018 C L C 523

[Sindh]

Before Irfan Saadat Khan, J

AKHLAQUE AHMED SOHAIL----Appellant

Versus

MUHAMMAD YAHYA----Respondent

First Rent Appeal No.62 of 2016, decided on 16th November, 2017.

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

----Ss. 17, 24, 27 & Preamble---Eviction petition---Wilful default---Interlocutory order--- Appeal--- Maintainability--- Applicability of C.P.C.---Scope---Appellant/tenant contended that Rent Controller had wrongly dismissed his application for production of witnesses to depose orally instead of relying on affidavit-in-evidence---Respondent/landlord contended that Rent Controller had rightly dismissed the application of tenant which order being interim in nature was not appealable---Validity---Record revealed that facts relating to eviction petition were yet to be determined---Issues had been framed when the tenant was present before the Rent Controller and he had raised no objection with regard to the issues so framed ---Final decision in the case was yet to be made after completing the other legal formalities which were necessary after framing of issues---High Court observed that tenant had approached the Court with sole intention to drag and linger on the matter on irrelevant ground---Only the final order passed by the Rent Controller was appealable and not the interim order---Preamble of the Cantonments Rent Restriction Act, 1963 stipulated that the Act was a special statute enacted with the purpose to control and regulate the dealings between the tenant and the landlord in the cantonment areas, hence, for all practical purposes the Act had to be construed to be a special law---Only S.27(2) of the said Act provided holding of an enquiry etc., wherein Code of Civil Procedure, 1908 had been made applicable, and for all other aspects the Cantonments Rent Restriction Act, 1963 , would prevail over the Code of Civil Procedure, 1908 being a special legislation---High Court directed the Rent Controller to proceed with the matter---First Appeal was dismissed.

Capt. (Retd.) Nayyar Islam v. Judge, Accountability Court No.III and others 2012 SCMR 669; Messrs Delite House Ltd. v. Fayyaz Akbar 1988 CLC 1363 and Mehmood Zaman Khan through Special Attorney v. Muhammad Anwar Farooq and another 2016 CLC Note 86 ref.

Khalid Latif for Appellant.

Iftikhar Javaid Qazi for Respondent.

2018 C L C 596

[Sindh]

Before Muhammad Faisal Kamal Alam, J

AL-RIAZ (PVT.) LTD. through Director and another---Plaintiffs

Versus

MUHAMMAD ISMAIL and 3 others---Defendants

Suit No.539 of 2000, decided on 14th July, 2017.

Civil Procedure Code (V of 1908)---

----S.9---Income Tax Ordinance (XXXI of 1979), Ss.93, 121 & 162---Suit for declaration, injunction and damages---Attachment of property---Misuse of authority---Civil Court, jurisdiction of---Plaintiff company was owner of the property which was attached by income tax authorities---Plea raised by authorities was that jurisdiction of Civil Court was barred under S.162 of Income Tax Ordinance, 1979---Validity---Jurisdiction of Civil Court as envisaged in S.9, C.P.C. had to be construed strictly and if it was found that government officials or authorities mentioned under particular statute, which was invoking statutory bar, had not acted fairly, justly and reasonably, then such bar could not be pressed into service---Procedure mentioned in S. 93 of Income Tax Ordinance, 1979, was never adhered to by income tax officials while passing attachment order in respect of suit property---Attachment order in respect of suit property was without any legal justification and was liable to be set at naught---High Court declared that suit property was owned by plaintiff company and income tax authorities illegally, wrongfully and by excessive use of power and authority had attached suit property---High Court directed government to initiate disciplinary proceedings against Income Tax officials forthwith and all officials were liable to pay damages to plaintiff company---Suit was decreed in circumstances.

Asia Petroleum Limited through Kh. Izz Hamid, Managing Director v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Government of Pakistan, Pak Secretariat, Islamabad and 3 others 1999 PTD 1313; Syed Raunaq Raza v. Province of Sindh through The Senior Member, Board of Revenue, Government of Sindh, Hyderabad and 2 others 1994 CLC 317; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Abdul Majeed Khan v. Tawseen Abdul Haleem and others PLD 2012 SC 80; Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 SCMR 1543; 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; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Independent Newspapers Corporation [Pvt.] Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal For Newspaper Employees, Government of Pakistan, Islamabad and 2 others 1993 SCMR 1533 and Karachi Transport Corporation v. Muhammad Hanif 2009 SCMR 1005 ref.

Arif Khan for Plaintiff No.1.

Masood Hussain Khan, Assistant Attorney General for Defendant No.4.

Nemo for Plaintiff No.2 and Defendants Nos.1 to 3.

Date of hearing: 30th May, 2017.

Case law cited by the Plaintiff's counsel

1. 1999 PTD Page-1313

(Asia Petroleum Limited through Kh. Izz Hamid, Managing Director v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Government of Pakistan, Pak Secretariat, Islamabad and 3 others)

1. 1994 CLC Page-317 [Karachi]

(Syed Raunaq Raza v. Province of Sindh through The Senior Member, Board of Revenue, Government of Sindh, Hyderabad and 2 others)

1. PLD 2006 Supreme Court Page-432

(Niaz and others v. Abdul Sattar and others)

1. PLD 2012 Supreme Court Page-80

(Abdul Majeed Khan v. Tawseen Abdul Haleem and others)

1. 1997 SCMR Page-1543

(Basharat Ali v. Director, Excise and Taxation, Lahore and another)

Case-law relied upon by Defendants' counsel

Other Precedents:

(1). PLD 1997 SC Page-03

(Abbasia Cooperative Bank [Now Punjab Provincial Cooperative Bank Ltd.] through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others)

(2). PLD 1999 Supreme Court Page-1026

(Federation of Pakistan and others v. Shaukat Ali Mian and others)

(3). 1993 SCMR 1533 [Supreme Court of Pakistan]

(Independent Newspapers Corporation [Pvt.] Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal For Newspaper Employees, Government of Pakistan, Islamabad and 2 others) [Independent Newspapers Case]

(4). 2009 SCMR Page-1005

(Karachi Transport Corporation v. Muhammad Hanif) under discussion:

Law under discussion:

(1) Income Tax Ordinance, 1979.

(2) The Code of Civil Procedure, 1908.

(3) Qanun-e-Shahadat Order, 1984.

2018 C L C 619

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

Messrs SULTAN MAHMOOD AND CO. through Partner----Petitioner

Versus

CANTONMENT BOARD CLIFTON through Chief Executive Officer and another----Respondents

Constitutional Petition No.D-1883 of 2017, decided on 22nd April, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Amenity plot---Petitioner was a contractor and he was aggrieved of recalling of order passed by authorities whereby possession of a playground was taken back from him which was to be used as his dumping site during construction of a public project---Validity---Purported permission granted by authorities whereby possession of playground was handed over to petitioner and use of playground was allowed to be changed for storing construction material, equipment, machinery, etc., and parking dumpers and heavy vehicles, was void ab initio---Petitioner's possession of playground pursuant to such void permission was illegal---High Court directed the authorities to immediately takeover possession if petitioner was still in possession of playground or any part thereof and to restore playground forthwith to its original condition failing which officers of the authorities will expose themselves to disciplinary action---Constitutional petition was dismissed in circumstances.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others, 1999 SCMR 2883 and Constitutional Petition No.D-1412/2017 ref.

Moulvi Iqbal Haider v. Capital Development Authority and others, PLD 2006 SC 394 rel.

Saim Hashmi for Petitioner.

Sohail H.K. Rana along with Arfeen Zubair Chaudhry, Addl. CEO CBC and Rao Nadeem Ahmed, Law Officer CBC for Respondent No.1.

Abdur Rahman Shaikh Project Manpower for Respondent No.2.

2018 C L C 639

[Sindh]

Before Adnan Iqbal Chaudhry, J

PETITION FOR GRANT OF LETTER OF ADMINISTRATION TO DR. MOHAMMAD SHARIF: In the matter of

S.M.A. No.68 of 2018, decided on 23rd February, 2018.

Succession Act (XXXIX of 1925)---

---S. 278---Letter of administration, issuance of---Pre-conditions for fixing a Succession Miscellaneous Application ("SMA") for hearing before the High Court---Family Registration Certificate ("FRC") issued by NADRA---Office raised objection that before registering the "SMA", the petitioner should produce a Family Registration Certificate ("FRC") issued by NADRA; held, that while 'FRC' was neither exclusive nor conclusive evidence of next-of-kin, it nonetheless facilitated the court in dealing with succession matters---High Court directed that while the office may register the 'SMA' for its further processing, it should not be fixed for hearing until the petitioner either filed a FRC or in the very least demonstrated that he had applied for one but was declined by NADRA---Petition was disposed of accordingly.

Ziauddin's case PLD 2012 Sindh 284 distinguished.

Muhammad Anwar Tariq for Petitioner.

2018 C L C 664

[Sindh]

Before Nazar Akbar, J

ABRAR HUSSAIN----Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and 13 others----Respondents

C.P. No.S-639 of 2010, decided on 24th November, 2017.

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

----Ss. 41(2)(4) Proviso, 42 & 55---Legal Practitioners and Bar Councils Rules, 1976, Chap. XII---Civil Procedure Code (V of 1908), Ss.151 & 153---Constitution of Pakistan, Art.199---Constitutional petition---Canon of professional conduct and etiquette of advocates---Misconduct---Dispute as to property---Constitutional petition filed for recalling an earlier order of dismissal of petition being not pressed, was not supported by affidavit---Application under Ss.151 & 153, C.P.C. was not filed on behalf of the petitioner by the advocate who also submitted his own affidavit---Validity---Lawyer earns a reputation worthy of some value by demonstrating his sincerity and honest conduct both towards his client and court in administration of justice---Upright lawyer is supposed to be an officer of court fairly assisting court in dispensing justice and not slave of his client nor greedy to serve him against law and facts---Lawyer has to contest cases on merit and merit alone, he was to adhere to standards of duties of lawyer explained in Chapt.XII (Canon of Professional Conduct and Etiquette of Advocates) of Legal Practitioners and Bar Councils Rules, 1976---Counsel for petitioner, in the present case, filed application in question on his own without any authority from anyone---High Court directed Pakistan Bar Council to initiate disciplinary proceedings against the counsel for professional misconduct by treating contents of order as complaint under S.41(2) of Legal Practitioners and Bar Councils Act, 1973---High Court further directed the Tribunal for decision in terms of proviso to S. 41(4) of Legal Practitioners and Bar Councils Act, 1973---Court official was directed to seal the property in question and locate respondents to hand over its possession to them after proper verification---Application was dismissed in circumstances.

Khaleeq Ahmad for Petitioner.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

2018 C L C 717

[Sindh]

Before Muhammad Junaid Ghaffar, J

Messrs N.N. TEXTILE MILLS (PVT.) LTD.---Plaintiff

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence and others----Defendants

Suit No.178 of 1990, decided on17th November, 2017.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Plaintiff was a unit of Open End Spinning Yarn Mill manufacturing cotton yarn from imported machinery under Pay As You Earn Scheme by plaintiff---Short Fall in export---Penalty, imposition of---Plaintiff was aggrieved of imposing compulsory penalty of 27% for having shortfall in export against remittance of principal amount and interest---Validity---Plaintiff had met the export target for payment to suppliers in foreign exchange---In subsequent years due to change in policies and implosion of export duty, export targets could not be met which resulted in shortfall of foreign exchange to make payments to foreign suppliers---Payments were made from foreign exchange reserves of Federal Government whereas plaintiff paid the same in equivalent amount in local currency---Plaintiff was not able to generate enough foreign exchange from its earnings of exports during a given year and allegedly burdened government to generate same---Authorities were required to come before High Court with some evidence so as to rebut the stance of plaintiff but it was in fact on the contrary---Documentary evidence in shape of government's own correspondence was a matter of record and was not controverted in any manner by authorities---Penalty could not be imposed in absence of a definite finding against a party and in any event it could only be imposed after taking into consideration facts and circumstances of a case whereas it was not case of authorities that any subjective analysis was made in such respect---Compulsory penalty of 27% was imposed for having defaulted but there was nothing on record in shape of material or evidence so as to justify that firstly default of plaintiff was willful and secondly any quantum of loss was ever sustained by authorities in case of plaintiff for default in generating foreign exchange---Suit was decreed in circumstances.

Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah.381; Dr. S.M. Rab v. National Refinery Ltd. PLD 2005 Kar. 478; Messrs Gulf Air v. Messrs Shakil Air Express (Pvt.) Ltd. PLD 2003 Kar. 156; SDA and others v. HBC 2014 MLD 1110; Messrs Razo (Pvt.) Limited v. Director, Karachi City Region Employees Old Age Benefit Institution and others 2005 CLC 1208; Rafiq Dawood and 4 others v. Messrs Haji Suleman Gowa Wala and Sons Ltd. and others 2009 CLC 1070; Messrs Cargil Incorporated and another v. Messrs Trading Corporation of Pakistan and another 2010 CLC 420; Gul Begum v. Muhammad Riaz and another 2006 MLD 480; Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1959 SC (Pak.) 258; Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433; (State Bank of Pakistan v. Neelum Textile Mills Limited, and others Civil Appeal No.528 of 2000; Ishtiaq Textile Mills Limited v. Islamic Republic of Pakistan (Suit No.1628 of 1999) and Suleman Spinning Mills Ltd. v. Federation of Pakistan PLD 2001 Lahore 324 ref.

Habib-ur-Rahman along with Ghulam Mujtaba Phull for Plaintiff.

Salimuddin Patoli, Assistant Attorney General for Defendants Nos.1 and 2.

H.A.Rehmani along with Ms. Naheed Akhtar for Defendant No.3.

2018 C L C 743

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

Messrs ANEESA FAROOQUI and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.Ps. Nos.D-867, D-868, D-869 and D-870 of 2015, decided on 31st March, 2017.

Building Control and Town Planning Regulations, 2011 [Pakistan Defence Officers Housing Authority Karachi]---

----Regln. 102---Commercialization of property---Principle---Petitioners sought directions to authorities to commercialize their properties---Validity---For declaring some property as commercial, it was necessary that surrounding arteries and available amenities were sufficient to cater requirement of commercial properties---Factual position was that properties of petitioners were meant for residential purpose only---Surrounding infrastructure and amenities were designed for residential units and the same were not suitable for commercial buildings unless entire infrastructure of vicinity was restructured and revamped---High Court declined to give any direction to authorities for issuing any "No Objection Certificate" or for changing use of their properties from residential to commercial, as properties of petitioners did not fall in a notified commercial area---Constitutional petition was dismissed in circumstances.

Arshad Abdullah and others v. Government of Sindh, through Secretary, Housing and Town Planning Department and others 2006 YLR 3209 ref.

Shafi Muhammadi for Petitioners.

Abdullah Munshi for Respondent No.4.

Shah Nawaz for Respondent No.5.

2018 C L C 758

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

ABDUL QADIR FAROOQUI ----Petitioner

Versus

The FEDERAL MINISTRY OF FINANCE through Secretary Central Board of Revenue, Islamabad and others----Respondents

C.P. No.D-5489 of 2017, decided on 5th October, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---"Aggrieved person"---Factual controversy---Petitioner alleged that respondent had usurped billions of rupees towards taxes and other revenues through forgeries, misappropriation and corruption and sought initiation of criminal proceedings against him---Validity---Petitioner himself at no stage made any complaint or otherwise asked for any inquiry vis-a-vis allegation of theft of taxes/other revenues, forgeries, misappropriation and corruption to authorities---Petitioner was not an "aggrieved person" who failed or avoided to seek any alternate remedy available or provided by law---Controversies involved were factual in nature and could not be settled in absence of undertaking of an intricate inquiry/recording of evidence for ascertaining true position---Such controversies were not cognizable by High Court under Art.199 of the Constitution---Extraordinary Constitutional jurisdiction was meant primarily for providing swift remedy in those cases where legality or illegality of executive/ authorities could be established/ascertained without intricate inquiry/ recording of evidence---Element of 'theft of taxes', 'other revenues', 'forgeries', 'misrepresentation', 'corruption' could not be established without conducting proper inquiry/investigation in appropriate proceedings and that too after providing proper or fair opportunity of hearing to accused persons in accordance with law--- High Court declined to interfere in the matter---Constitutional Petition was dismissed in circumstances.

Adamjee Insurance Company Ltd. v. Pakistan through Secretary of Government of Pakistan in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219; Mst. Umat ul Bano and others v. Ghulam Muhammad and others 2000 SCMR 81 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

(b) Constitution of Pakistan---

----Art, 199---Constitutional petition---Alternate remedy---Scope---Whenever there is an alternate remedy available, Constitutional jurisdiction under Art.199 of the Constitution cannot be invoked.

Indus Trading and Contracting Company v. Collector of Customs (Preventive). Karachi and others 2016 PTD 2355 rel.

Amanullah Lashari for Petitioner.

2018 C L C 779

[Sindh]

Before Zulfiqar Ahmad Khan, J

DAWLANCE PAKISTAN (PVT.) LIMITED through Director Admn. and another----Plaintiffs

Versus

G-FORCE COMMUNICATIONS through Owner and 2 others----Defendants

C.Ms. 14412 of 2013, 664, 2274, 3688, 16752 of 2014 in Suit No.1604 of 2013, decided on 30th March, 2017.

Copyright Ordinance (XXXIV of 1962)---

----S. 13---Specific Relief Act (I of 1877), Ss.42 & 56---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Copyright, ownership---Scope---Plaintiffs were manufacturers of home appliances and defendants were the advertisers---Plaintiff claimed ownership of taglines being used and displayed by them for selling their products---Defendants filed application seeking restraining orders against plaintiffs from using and displaying taglines in question---Validity---Plaintiffs could enjoy physical possession of work created by defendants and did not become owners of copyright in such works---High Court restrained the plaintiffs from using, displaying or selling their products under taglines in question and from using materials detailed in plaint from being reproduced before general public (both nationwide and international) through any forums of media as materials in question were created by defendants---Application was allowed in circumstances.

Atiqa Odho v. R. Lintas (Pvt.) Ltd. PLD 1997 Kar. 57; 2000 CLC 872; 2000 CLC 872 and Shakeel Adilzadah v. Pakistan Television Corporation Ltd. 1989 CLC 2447 ref.

Ali Aziz for Plaintiffs.

Muhammad Jaffer Raza for Defendants.

2018 C L C 827

[Sindh]

Before Zulfiqar Ahmad Khan, J

Hafiz MUHAMMAD ABDULLAH and 5 others----Applicants

Versus

Hafiz MUHAMMAD ADNAN and 3 others----Respondents

J.M.A. No.20 of 2012, decided on 5th June, 2017.

Arbitration Act (X of 1940)---

----Ss. 14, 16, 30 & 34---Award, setting aside of---Parties mutually agreed to resolve their dispute through arbitration in respect of their shares of inheritance in movable and immovable properties left behind by their predecessor-in-interest---Parties jointly signed salisnama (arbitration agreement) and appointed respondents as their arbitrators---Applicants assailed award given by arbitrators and sought same to be set aside on grounds that they did not receive award---Validity---Parties agreed to have their disputes adjudicated through salisnama and they agreed to be bound by award passed by arbitrators and not to approach courts even in case of any explanation---Where an award had already been made by duly appointed arbitrators and where no case was made out for remittal of award under S.16 of Arbitration Act, 1940 and award becoming a final adjudication by courts of parties' own choice, was conclusive upon merits of controversy submitted by parties---Until and unless parties intended that award would not be final (such was not in the present case) award attained all elements of vitality and was competent to be relied upon in disputes between parties relating to the same subject matter---Such award could not be challenged or re-arbitrated in manner as desired by applicants---High Court declined to interfere in matter as Arbitral Tribunal had filed its award---Application was dismissed in circumstances.

Sathish Kumar and others v. Surinder Kumar and others, AIR 1970 SC 833 and 2014 CLC 1519 ref.

Badar Alam for Applicants.

Ms. Mehmooda Suleman for Respondents.

2018 C L C 866

[Sindh]

Before Arshad Hussain Khan, J

MUHAMMAD SHAFI----Plaintiff

Versus

Syed CHAN PIR SHAH and 4 others----Defendants

Suit No.1342 of 2007, decided on 31st October, 2017.

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

----Ss. 42, 9 & 39---Suit for declaration, possession and cancellation of documents---Maintainability---"Legal character" or "right"---Utility connections---Scope---Contention of plaintiff was that he was owner of suit land---Defendants failed to file written statement and they were proceeded ex-parte---Validity---Plaintiff had filed the present suit for possession and cancellation of documents without seeking any declaration with regard to his ownership---Person entitled to any legal character or right to property could institute a suit for declaratory relief in respect of his title to such legal character or right to property---Section 42 of Specific Relief Act, 1877 would apply only to a case where a person had filed a suit claiming entitlement to any legal character or any right to property which was denied by the defendants or in the denial of which they were interested---Said provision did not apply where plaintiff had not alleged his entitlement to any legal character or any right to property or its denial by the defendants or where the entitlement to legal character or property of the defendant was denied by the plaintiff---Where right to his own legal character or property was not involved then suit under S.42 of Specific Relief Act, 1877 was not maintainable---Plaintiff in the present case, had challenged the defendant's pretension to a legal character and right to property---Section 42 of Specific Relief Act, 1877 did not permit unrestricted right of instituting all kinds of declaratory suit at the will and pleasure of the parties---Plaintiff in support of his claim of ownership with regard to suit property did not produce any title document---Claim of plaintiff for ownership of suit property, in the present case, was based upon utility bills only---Utility connections did not confer any title on the person on whose premises same had been installed---Utilities connections were provided to the occupants who might or might not be the owner of the property---Plaintiff had no legal character to maintain the present suit---Nobody could transfer a better title than that he himself possessed---Possession of defendant on the suit property was illegal as plaintiff himself had no right and title in the suit property to alienate the same to the defendant---Suit was dismissed in circumstances.

Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92; Muhammad Ismail v. Maqbool Ahmad and 8 others 2001 CLC 252 and Abdul Hameed through L.Rs. and others v. Shamsuddin and others PLD 2008 SC 140 rel.

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

----S. 42---Suit for declaration---Maintainabiility---Requirements---Legal character is mandatory requirement for maintainability of suit---Principles:

Section 42 clearly imposes an embargo on grant of mere a decree for declaration if a plaintiff fails to pray for consequential relief in his plaint, which he is otherwise able to pray for. In other words, if a person files suit for declaration without praying for consequential relief he shall definitely face dismissal of his suit. Under the provisions of Section 42, declaration prayed for must relate to legal character, title or right as to any property and if one prays for mere declaration in his plaint but does not opt to pray for the consequential relief, the one which he was able to pray for, the prayed declaration shall not be granted and his suit must fail.

2018 C L C 883

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Messrs AL-NASEEB WELFARE FOUNDATION INTERNATIONAL through Chairman----Plaintiff

Versus

Messrs LATIF MEMORIAL HOSPITAL WELFARE ASSOCIATION through President and others----Defendants

Suit No.2489 of 2016 C.M.As. Nos.16415 of 2016 and 662 of 2017, decided on 31st May,2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Cause of action, absence of---Defendant, a Welfare Association was dissolved and plaintiff, a Welfare Foundation, wanted to takeover the assets of the Association---Plea raised by plaintiff was that objectives contained in Memorandum of Association of both the organisations were similar, therefore after dissolution, Association was bound to donate its assets to any such organization---Validity---Held, in absence of any clause under the Memorandum and Articles of Association of defendant Association, that assets would be given/handed over or donated to any specific entity or any agreement between the organizations that was plaintiff and defendant, plaintiff could not as a matter of right claim the assets of dissolved entity should be handed over to plaintiff---Such was an undisputed factual position and in absence of any such document or undertaking by defendant Association, neither any right nor any interest had accrued in favour of plaintiff for bringing an action of such nature---Plaintiff did not have any legal character for instituting suit as no cause of action had accrued for filing the same and it was hit by S.42 of Specific Relief Act, 1877---Basic features to attract O.VII, R.11, C.P.C. were present---Plaint was rejected in circumstances.

Arif Majeed Malik and others v. Board of Governors Karachi, Grammar School 2004 CLC 1029 rel.

Muhammad Nazir Tanoli for Plaintiff.

Naveed Ahmed Khan for Respondents Nos.1 to 3.

Syed Aal-e-Maqbool Rizvi, Additional A.G. Sindh.

Ms. Naheed Akhtar State Counsel.

Pervez Ahmed Mastoi for KDA.

Ms. Rehmatunissa for KDA.

2018 C L C 896

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

LAKHRA COAL DEVELOPMENT COMPANY LTD. through Managing Director----Applicant

Versus

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

Civil Revision Application No.5, C.M.A. No.895 and M.A. No,45 of 2017, decided on 1st June, 2017.

Sindh Mining Concession Rules, 2002---

----Rr. 48 & 59---Specific Relief Act (I of 1877), S. 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Extension of lease---Interim injunction, grant of---Plaintiff company was holding a lease of a coal mine in its favour which was cancelled by the authorities---Plea raised by plaintiff was that lease was improperly cancelled in violation of R.59 of Sindh Mining Concession Rules, 2002---Validity---Plaintiff company made application for extension of lease and under R.48 of Sindh Mining Concession Rules, 2002, authority rested with Provincial Government to refuse, withdraw or grant extensions---Violations of terms of lease agreement were alleged wherefrom conduct of plaintiff was exposed not only with regard to having failed to enter into proper lease alone, rather selling coal to open market when coal was to be provided to WAPDA for power generation to an energy starved nation---Neither on merits nor prima facie right, balance of convenience or on anticipated exposure to irreparable loss, there was any ground existed to differ from findings rendered by two courts below---High Court declined to interfere in concurrent findings of two courts below as no ground was made under S.115, C.P.C.---Revision was dismissed in circumstances.

Arbab Ali Hakro for Applicant.

Ashfaq Nabi Qazi, Asstt. A.G.

Noorul Haq Qureshi.

2018 C L C 912

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

MUHAMMAD SULEMAN and others----Applicants

Versus

PROVINCE OF SINDH through Deputy Commission, Badin and 5 others----Respondents

Civil Revision Application No.288 of 2016, decided on 28th August, 2017.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XXIII, R. 1 (3), O.II, R.2 & O. VII, R. 11---Suit for declaration---Withdrawal of earlier suit---Subsequent suit---Plaint, rejection of---Compromise between the parties---Effect---Agreement was effected between the parties in the earlier suit, which was withdrawn on the basis thereof---Plaintiffs instituted subsequent suit but plaint was rejected under O.VII, R.11, C.P.C.---Contention of plaintiffs was that subsequent suit was filed on the basis of fresh cause of action in view of agreement between the parties---Validity---Plaintiff had prerogative to insist, waive, or surrender his claim (s) or part thereof even at the time of filing of suit---Such prerogative of plaintiff remained alive even during pendency of the lis---Consequence of abandoning a claim or part thereof while filing a suit would result in bringing an end to such abandoned claim in any subsequent suit---Once plaintiff chose to exercise his such prerogative then without permission of the Court he would be precluded from bringing a fresh suit against same defendant with regard to same subject-matter---Bringing same claim with regard to same subject matter against same defendants in different manner would not be sufficient to avoid the consequence of a waiver i.e. unconditional withdrawal of suit or part thereof---Plaintiff withdrew his earlier suit without permission to file fresh one therefore he had to face the consequence of his act---Withdrawal of suit would not preclude the plaintiff from entering into a fresh transaction with defendant with regard to same subject matter which should be dealt with according to remedies provided by law itself---Plaintiff deliberately abandoned his claim set in the earlier suit and confined his claim(s) so agreed in the compromise/faisla---Plaintiff was not competent to bring fresh suit with regard to said subject matter or claim---Findings recorded by the Courts below were proper with regard to application of O.XXIII, R.1(3), C.P.C.---Faisla/compromise, if any, was between the parties of earlier suit and remedy if any was against the defendant and not against anybody else---Status of a compromise/faisla was nothing more than that of 'agreement'---Plaintiff could not seek a relief which was likely to prejudice the interest of a third person---Plaintiff had sought declaration and mandatory injunction in the present suit but no cancellation of title of private defendants nor any relief of specific performance of agreement/'faisla' or breach of terms had been sought---Mere declaration with regard to 'faisla'/compromise without seeking further relief would render the present suit barred by S.42 of Specific Relief Act, 1877---Suit of plaintiff was incompetent and Courts below had rightly rejected the plaint---Revision was dismissed in circumstances.

Muhammad Yar v. Muhammad Amin 2013 SCMR 464 and Mst. Mehrunnisa v. Karachi Cantonment Board 1990 CLC 1334 rel.

Petitioner in person.

Abdul Hameed Bajwa for Respondents.

2018 C L C 940

[Sindh]

Before Mrs. Ashraf Jahan, J

MUHAMMAD AKRAM and another----Petitioners

Versus

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

Constitutional Petitions Nos.S-1260, 1262 and 1263 of 2017, decided on 13th February, 2018.

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

----S. 15---Ejecment application--- Appearance of landlady through attorney--- Scope--- Personal bona fide need of landlady---Scope---Petitioner/tenant contended that personal bonafide need of landlady could not be proved through attorney and she did not require the rented premises/shop for herself---Landlady contended that she needed rented premises for her son and Appellate Court had rightly passed eviction order---Validity---If landlady instead of examining for herself, examined her attorney in support of her case, it would not affect the case in any manner---Attorney, in the present case, was son of landlady who adduced confidence inspiring evidence which could not be shattered during cross-examination which was sufficient to prove the case of landlady regarding personal bonafide need---Even solitary statement of the landlady (or landlord through lawful attorney) would be sufficient to discharge the burden of proof, if such statement was consistent to the pleadings, steady and supported by the surrounding circumstances---If appearance through attorney was declined to a party who was residing abroad or incapacitated or pardanasheen same would cause great hardship to the party---Non-appearance of landlady, in the present case, was not fatal to her case---Attorney of landlady, who was her son, had categorically stated that he was working at some other shop and wanted to start his own business in the subject property/shop, therefore, findings of first appellate court was based on logical reason---High Court observed that evidence brought on record by the landlady could not be shattered in cross-examination so the same could not be challenged in constitutional jurisdiction---No illegality or infirmity having been noticed in the impugned judgments passed by Appellate Court, Constitutional petition was dismissed accordingly.

Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua PLD 2003 SC 277 and Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 ref.

Abdul Hameed Bhopali and Ms. Tabassum Hashmat for Petitioners.

Arif Khan for Respondent No.3.

2018 C L C 970

[Sindh]

Before Khadim Hussain Tunio, J

SHAUKAT ZAIB and 8 others---Plaintiffs

Versus

KHURAM ZAIB and 3 others---Defendants

Suit No.536 of 2004, decided on 16th March, 2017.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Administration suit---Scope---Plea of gift---Effect---Gift, proof of---Scope---Contention of defendants was that suit property was gifted by way of gift to them---Validity---Object of administration suit was to determine as to what estate the deceased had left and same could not be achieved without an inquiry---Mere denial that specific property was not owned by the deceased alone would not be sufficient to hold such a suit not maintainable nor the same could prevent the Court from an inquiry in that regard---Plea of gift by one of several legal heirs, about one of the properties in question could not disturb the competence of suit within meaning of O. XX, R. 13, C.P.C.---Said one defendant was bound to establish a valid gift---No cogent and confidence inspiring evidence had been produced in support of plea of gift as raised by the said defendant---Defendant had not disclosed the date, time and place when and where suit property in question was gifted to him and the property was still in the name of the deceased owner---Said defendant never attempted to get the title transferred in his favour during life time of alleged donor---Mere assertion or promise to make a gift was not sufficient to dress up such person as lawful donee nor such promise or assertion should attain status of a gift---Mere claim or a lis was not sufficient to deprive other legal heirs from their rights of inheritance---Legal heirs of the deceased would become co-owners in the suit property when the owner died---Suit property was liable to administration and could not possibly be partitioned---Nazir of the Court was appointed as Receiver with the power to auction the suit property---Suit was decreed accordingly.

[Case-Law refferred]

S.M. Bhukhari for Plaintiffs.

Fazlur Rahman for Defendants.

2018 C L C 1009

[Sindh]

Before Syed Saeeduddin Nasir, J

NIZAM AHMED CHAUDHARY through Attorney----Plaintiff

Versus

DEFENCE OFFICERS HOUSING AUTHORITY through Administrator----Defendant

Suit. No.846 of 2003, decided on 07th February, 2017.

Pakistan Defense Officers Housing Authority Order (7 of 1980)---

----Arts. 17(h)(i) & 18(1)---Bye-laws of Pakistan Defence Officers Cooperative Housing Society Limited, Karachi, Cl. 54(q)---Suit for declaration and injunction---Cancellation of plot---Executive Board of Housing Authority, powers of---Grievance of plaintiff was that plot allotted to him was wrongly cancelled by the Authority---Validity---Only the Managing Committee of the Society or Executive Board of Pakistan Defence Officers Housing Authority was competent under Bye-laws of the society to allot or cancel allotment of plots of land---Even Executive Board could not cancel allotment of a plot which was made by Managing Committee by a resolution which was not in contravention of Bye-Laws of the society---Role of Managing Committee of society while cancelling allotment of plaintiff's plot was nowhere defined either in written statement or in affidavit in evidence or in cross-examination of defendant's witness---Defendant failed to produce Minutes Book of the meetings of Managing Committee and resolution passed therein for cancellation of suit plot of the Pakistan Defence Officers Cooperative Housing Society for the year 1973, in order to establish that meeting of Managing Committee of the society was legally convened under Bye-laws of the society in which allotment of plaintiff in respect of suit plot was allegedly cancelled---No evidence was available on record that prior to the alleged cancellation of suit plot, a show cause notice was issued to plaintiff by defendant or an opportunity was afforded to plaintiff of being heard---High Court directed the Authority to hand over suit plot to plaintiff and/or duly constituted attorney of plaintiff and execute 'A' lease and all subsequent documents in accordance with the Bye-laws, in favour of plaintiff or his attorney after recovering dues in respect of suit plot from the plaintiff---Suit was decreed accordingly.

Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi 2008 SCMR 611; Mrs. Rosh Nak Nawab v. The Administrator Abandoned Properties Organization and 2 others 1989 CLC 800 and ANZ Grindlays Bank Limited v. Saadi Cement Company Limited and 2 others PLD 2001 Kar. 143 ref.

Shabbir Ahmed Sheikh for Plaintiff.

Munawar Malik, Ejaz Khattak and Salman Talibuddin, Additional Attorney-General for Defendants.

2018 C L C 1048

[Sindh]

Before Munib Akhtar and Omer Sial, JJ

TARIQ QURESHI and 2 others---Appellant

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Additional Registrar and 11 others---Respondents

H.C.A. No.9 of 2015, decided on 18th October, 2017

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Preliminary decree, passing of---Dispute pertained to estate left behind by parties predecessor-in-interest---Single Judge of High Court, during pendency of suit, passed preliminary decree and framed two issues for decision in suit---Validity---Dispute between legal heirs of deceased as to number of shares of company held by deceased at the time of his death (plaintiffs in proceedings claimed that deceased had 700 shares whereas, defendants claimed that he had only 70 shares having gifted 630 shares to them during his lifetime)---Determination of such question did not involve a stranger---Seeking cancellation of any document could not take the suit out of scope of administration suit and preliminary decree could be made---Preliminary decree did not tantamount to deciding the suit---Issues were framed and one such issue pertained to transfer of 630 shares of company was rightly recorded and evidence was yet to be led in such regard--- Intra court appeal was dismissed in circumstances.

Muhammad Zahid v. Ghazala Zakir and others PLD 2011 Kar. 83 ref.

Aziz ur Rehman Akhund for Appellants.

Mureed Shah For Respondent No.11.

2018 C L C 1082

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon, J

JURIO MAL through L.Rs and others---Petitioners

Versus

NANIK RAM and others---Respondents

C.Ps. Nos.S-127 of 2016, S-1094 of 2010 and M.A. No. 264 of 2016, decided on 4th May, 2016.

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

----S. 15---Ejectment of tenant---Civil suit, pendency of---Scope---Mere pendency of civil suit by tenant against landlord does not debar his ejectment till decision of the suit. [p. 1086] A

[Case-law referred]

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

----Ss. 15 & 22---Civil Procedure Code (V of 1908), S. 12(2)---Ejectment of tenant---Execution proceedings---Judgment on question of law, setting aside of---Execution of ejectment order was pending before Executing Court when petitioners filed application under S. 12(2), C.P.C., for setting aside of judgment on a question of law which application was dismissed and order was maintained by Lower Appellate Court---Validity---Contentions of petitioners related to a pure point of law and same could not be challenged under S. 12(2), C.P.C. as it had no relevancy with alleged fraud---Petition on law point had already been dismissed by Supreme Court and High Court could not dig and sit over such orders which had attained finality up to Supreme Court---High Court, in circumstances, declined to issue any direction regarding framing of any issue as application under S. 12(2), C.P.C. was not maintainable---Questions of relationship of landlord and tenant and default were decided on merits up to Supreme Court and same had attained finality---Executing Court in circumstances, rightly overruled objections raised by petitioners during execution proceedings---No appeal laid against order passed by Executing Court under S. 22 of Sindh Rented Premises Ordinance, 1979---No illegality or irregularity was found in the order passed by Lower Appellate Court being in accordance with law---Constitutional petition was dismissed in circumstances.

[Case Law referred]

Mukhtiar Ahmed Khoso and Habibullah G. Ghouri for the Petitioner (in C.P No.S-127 of 2016).

Prem Chand R. Sawlani, for respondents Nos. 1 to 4 (in C.P. Nos. S-127 of 2016).

2018 C L C 1099

[Sindh (Hyderabad Bench)]

Before Arshad Hussain Khan, J

Choudhry GHULAM RASOOL through L.Rs---Applicant

Versus

Mistri GHULAM RASOOL---Respondent

R.A. No. 105 of 2003, decided on 13th October, 2017.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revision is a matter between higher and subordinate courts---Right to move an application in such respect by an applicant is merely a privilege---Provisions of S. 115, C.P.C. have been divided into two parts: First part enumerates conditions under which Court can interfere and second part specifies type of orders which are susceptible to revision.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court, on entertaining a revision petition, exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction by courts below have been exercised properly and whether proceedings of subordinate court suffer or not from any illegality or irregularity.

[Case-law referred]

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

----S. 12---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell---Judgments at variance---Suit filed by plaintiff was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of plaintiff---Validity---Provisions of S. 115, C.P.C., envisaged interference by High Court only on account of jurisdiction alone, i.e., if a court subordinate to High Court had exercised jurisdiction not vested in it or had irregularly exercised jurisdiction vested in it or did not exercise such jurisdiction so vested in it---When a court had jurisdiction to decide a question, it had jurisdiction to decide the same rightly or wrongly both in fact and law---Mere fact that decision of court was erroneous in law did not amount to illegal or irregular exercise of jurisdiction---Applicant to succeed under S. 115, C.P.C., had to show that there was some material defect or procedure or disregard of some rule of law in manner of reaching that wrong decision---Some distinction must exit between jurisdiction to try and determine a matter and erroneous action of court in exercise of such jurisdiction---Erroneous conclusions of law or fact could be corrected in appeals and not by way of revision which primarily dealt with question of jurisdiction of court, i.e., whether Court had exercised jurisdiction not vested in it or had not exercised jurisdiction vested in it or had exercised jurisdiction vested in it illegally or with material irregularity---High Court, in exercise of revisional jurisdiction declined to interfere in judgment and decree as there was no illegality, irregularity or jurisdictional error in findings of Lower Appellate Court--- Revision was dismissed in circumstances.

[Case Law referred]

Abdul Jabbar Khaskheli for the Applicant.

Arbab Ali Hakro and Ghulam Abbas Sangi, Assistant A.-G., Sindh for the Respondent.

2018 C L C 1140

[Sindh]

Before Irfan Saadat Khan and Nazar Akbar, JJ

AGRO TRADE PRIVATE LIMITED and another----Petitioners

Versus

KARACHI PORT TRUST through Chairman and 2 others----Respondents

Constitutional Petition No.D-4089 of 2017, decided on 24th October, 2017.

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

----S. 20---Suit under S.20, Arbitration Act, 1940---Nature---Such suit was not a regular suit and civil court had no jurisdiction to adjudicate on the issues between the parties when the court was seized of their application under S. 20 of the Act.

Pakistan International Bulk Terminal Ltd., through Chief Finance Officer and other v. Maqbool Associates (Pvt.) Ltd., through Managing Director and others 2014 CLD 773 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioners sought direction to respondent authorities to transfer plot in question to one of the petitioners on the basis of compromise decree passed under arbitration wherein the authorities were not party to the proceedings---Petitioners willfully and with ulterior motive to earn financial benefit attempted to misuse fraudulently obtained compromise decree and on their failure to get their motive served, invoked Constitutional jurisdiction to obtain order of High Court for transfer of suit plot from the name of one petitioner to the name of other, as if it was their Fundamental Right---Petitioners had attempted to abuse Constitutional jurisdiction of High Court to coerce authorities to fulfill frivolous demand of petitions---Constitutional petition was dismissed in circumstances.

Khalid Mehmood Siddiqui for Petitioners Nos.1 and 2.

Moiz Ahmed and Rizwan Saeed for Respondent No.1.

Nemo for Respondent No.2.

Naheed Parveen D.A.G for Respondent No.3.

2018 C L C 1182

[Sindh]

Before Muhammad Junaid Ghaffar, J

COMMITTEE OF ADMINISTRATION FAUJI FOUNDATION---Applicant

Versus

INAMUR REHAMAN through his legal heirs---Respondents.

C.M.As. Nos.1618 of 1999 and 1332 of 2002 in Execution No.12 of 1999, decided on 13th November, 2017.

Civil Procedure Code (V of 1908)---

----O. XX1, Rr. 1(a), 23(2) & S. 151---Execution of decree---Decree in foreign currency---Scope---During execution of decree plea raised by judgment debtors was that rate of exchange prevailing at the time when amount became due was to be applied to pay decretal amount in Pounds (Sterling)---Validity---Decree passed by civil court meant formal expression of adjudication which so far as regarded the court expressing it, conclusively determined the rights of parties with regard to all or any of the matters in controversy in the suit---Judgment debtor was liable to make payment of decretal amount of Pound Sterling by converting the same at rate of exchange prevailing at the time of filing of suit plus interest at the rate of 12% per annum on decretal amount till it was realized and proportionate costs of suit as taxed and shown in the decree--- Application was allowed accordingly.

Terni S.P.A. v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238; Treasurer of Charitable Endowment for Pakistan v. Inamur Rehman Alvi 2000 CLC 135; Pakistan Industrial Credit & Investment Corporation Ltd., Karachi v. Mehboob Industries Ltd., Karachi and 10 others 1980 CLC 249; Mst. Khurshid Jamal v. Muhammad Asghar Qureshi PLD 1956 Sindh 47; Industrial Development Bank of Pakistan v. Messrs William Son & Co. Ltd., and 2 others PLD 1980 Kar. 576 and Industrial Development Bank of Pakistan v. Messrs William Sons & Co. Ltd. and 2 others PLD 1980 Kar. 576 ref.

Usman Shaikh for Applicant

H.A. Rehmani along with Naheed Akhtar for Respondents.

2018 C L C 1221

[Sindh]

Before Syed Hassan Azher Rizvi and Adnan-ul-Karim Memon, JJ

Messrs RAHAT AND COMPANY through Formerly Partner---Appellant

Versus

TRADING CORPORATION OF PAKISTAN STATUTORY CORPORATION through Secretary---Respondent

High Court Appeal No.137 of 2017, decided on 6th November, 2017.

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

----O. XXIX, R. 1---Subscription and verification of pleading---Scope---Where no specific objection has been taken by party regarding competency of person who signed and verified plaint in first instance, same cannot be done at final stage of a suit.

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

----O. XXIX, R. 1---Suit for damages---Resolution of company, absence of---Defendant assailed maintainability of plaint on grounds that it was not signed and verified by person duly authorized by the Board of Directors of the Company/Corporation as there was no resolution of Board available on record---Single Judge of High Court dismissed the objection---Validity---Veracity and authenticity of noting portion in file was not disputed and verification portion/clause of plaint itself mentioned name of the then Director (Technical) of plaintiff corporation meaning thereby that he was holding one of those offices which was within parameters of O.XXIX, R.1, C.P.C. for filing of suit---Absence of formal resolution could only be treated as technical omission and could not be regarded as incurable defect---Plaintiff corporation had filed a copy of Board resolution, ratifying act of person who filed suit on behalf of the Corporation---Division Bench of High Court declined to interfere in order passed by the Single Judge in Chambers of High Court as objections raised by defendant were not sustainable in law---Intra-court appeal was dismissed in circumstances.

Khan Iftikhar Husain Khan of Mamdot v. Ghulam Nabi Corporation Limited, Lahore PLD 1971 SC 550; Abu Bakar Saley Mayet v. Abbot Lab 1987 CLC 367; Razo (Pvt.) Ltd. v. Director Karachi City Region 2005 CLD 1208; Rafiq Dawood v. Haji Suleman Gowa Wala 2009 CLC 1070; Cargil Incorporated v. TCP 2010 CLC 420; Hassan Ali Co v. TCP (Pvt.) Ltd. 2017 CLC 169 and Government of Pakistan v. Premier Sugar Mills PLD 1991 Lah. 381 distinguished.

Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust and others 2009 SCMR 574; Trading Corporation of Pakistan v. Muhammad Alam 2016 CLD 2106 and Collector of Customs v. Shaikh Shakeel Ahmed 2011 PTD 495 ref.

Trading Corporation of Pakistan (Pvt.) Ltd. v. Merchant Agency 2007 CLC 1811 and Abdul Rahim v. United Bank Limited PLD 1997 Kar. 62 rel.

H.A. Rahmani and Ms. Naheed Akhtar for Appellant.

Ghulam Haider Shaikh for Respondent.

2018 C L C 1239

[Sindh]

Before Nadeem Akhtar, J

PERVAIZ IQBAL---Appellant

Versus

FAISAL AKRAM---Respondent

Second Appeal No.84 of 2014, decided on 30th August, 2017.

Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Limitation---No time fixed by the parties for performance of contract---Commencement of limitation---Procedure---Contention of plaintiff was that no date or time was fixed by the parties for performance of contract---Suit was decreed concurrently---Validity---If time or a date for performance of contract was fixed in the contract itself then limitation for a suit for its specific performance would start from such date irrespective of refusal of performance by the defendant and whether plaintiff had notice of such refusal or not---If no such date was fixed then limitation would start from the date when performance of contract was refused by the defendant or from the date when plaintiff had notice of such refusal---If no date or time for performance of a contract was fixed then there would be no question of time being essence of contract---Present suit ought to have been instituted by the plaintiff within three years from the date of refusal by the defendant or from the date of notice of such refusal---Starting point of limitation in the present case was the date of refusal by the defendant or the date on which plaintiff had first notice of such refusal---Such starting point of limitation could be ascertained only by the pleadings and evidence of the parties---Plaintiff had not disclosed any such date in his plaint and evidence---Plaintiff in his evidence had stated that he approached the defendant after three/four months of execution of sale agreement for registration of document by offering balance amount to him---Plaintiff was aware for the first time after three/four months of execution of sale agreement that defendant had refused to perform his part of contract---Starting point of limitation in the present case was January, 2005---Present suit was to be instituted by the plaintiff latest by January, 2008---Payment of alleged balance consideration by the plaintiff on 08-09-2008 was inconsequential as limitation for filing the present suit had already expired in January, 2008---Suit instituted by the plaintiff was barred by time in circumstances---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence---Discretionary relief of specific performance was granted to the plaintiff in absence of any material showing that he was ready and willing to perform his agreed part of contract---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Second appeal was allowed in circumstances.

Bomanshaw Burjorji Gazdar and another v. Mst. Mumtaz Begum and others 1985 SCMR 554; Zafar Iqbal v. Sher Muhammad and 3 others 2003 YLR 673; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Haji Muhammad Yaqoob through Legal Heirs v. Shah Nawaz 1998 CLC 21; Ghulam Muhammad Shah and others v. The United Bank Ltd. 1982 CLC 1898; Alamdar Hussain v. Nazir Hussain and others 2004 SCMR 595; Fazal-ur-Rehman v. Ahmad Saeed Mughal and 2 others 2004 SCMR 436; Abdul Bari v. Khushi Muhammad and others 1994 CLC 1576; Eidoo Khan v. Abdul Majeed and 3 others 2001 YLR 2634 and Rana Allah Bakhsh v. Ghulam Sakina, 2005 MLD 1700 ref.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 and Messrs Anwar Textile Mills Ltd. v. Pakistan Telecommunication company Ltd. and others 2013 SCMR 1570 rel.

Adnan Iqbal Chaudhry for Appellant.

S.M. Mustafa for Respondent.

2018 C L C 1268

[Sindh (Sukkur Bench)]

Before Syed Hassan Azhar Rizvi and Muhammad Humayon Khan, JJ

MUHAMMAD BACHAL and 6 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Revenue Department and 7 others---Respondents

C.P. No.D-2392 of 2013, decided on 29th March, 2017.

(a) Sindh Board of Revenue Act (XI of 1957)---

----S. 8---Review---Scope.

The scope of review under Section 8 of the Sindh Board of Revenue Act, 1957 is confined to the following matters:-

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

(b) Review---

----Scope.

Following are the principles for decision of a review application.

(i) Every order or judgment pronounced by the Court is presumed to be a considered, solemn and final decision on all points arising out of the case;

(ii) If the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;

(iii) The fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is 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 is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;

(vi) If the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie;

(vii) The power of review cannot be invoked as a routine matter to re-hear a case which has already been decided;

(viii) Review is not a re-hearing of the main case and hence re¬-arguing a case fell outside the scope of review;

(ix) The scope of review is very limited and it cannot be used as a substitute for a regular appeal.

[Case-law referred]

(c) Pleadings---

----Where a party who was required to deny a fact failed to deny the same, such fact should be deemed to have been admitted.

[Case-law referred].

T. David Lawrence for Petitioners.

Ahmed Ali Shahani, AAG for Respondents Nos.1 to 6.

Nemo for Respondent No. 7.

Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo for Respondent No.8.

2018 C L C 1320

[Sindh]

Before Zafar Ahmed Rajput, J

Syed MAQBOOL HUSSAIN SHAH---Petitioner

Versus

Sayeda FIRDOUS AZARA BUKHARI---Respondent

C.M.As. Nos.1132, 1133 and 1134 of 2015 in S.M.A. No.76 of 2002, decided on 11th May, 2017.

Succession Act (XXXIX of 1925)---

----S. 263--- Limitation Act (IX of 1908), S.5---Letter of administration---Application for revocation---Delay in filing application for revocation--- Effect--- Condonation of delay--- Letters of administration were issued in year 2002 in favour of petitioner with regard to property in question---Objector assailed letters of administration in year 2015 in respect of property in question on grounds that property did not belong to deceased predecessor-ininterest---Validity---Matter fell under Explanations (a), (b) and (c) of S. 263 of Succession Act, 1925 as subject property was not available as estate of deceased for distribution amongst his legal heirs---Petitioner had no locus standi to seek letters of administration in respect of property in question and proceedings were defective in substance from its very inception---Entire claim of petitioner was based on misrepresentation of facts and she deliberately committed fraud upon High Court by pleading such facts which were not correct even to her own knowledge and also by concealing such facts which were true but same were not disclosed by her before High Court---Delay per se in applying for revocation of grant of letters of administration was no bar to revocation in absence of any finding of acquiescence and waiver in such regard---High Court condoned delay in filing application seeking revocation of letters of administration which was recalled and revoked/annulled--- Application was allowed in circumstances.

Syed Mohsin Ali v. Mst. Hajra and others PLD 2014 Sindh 10 and Mt. Sheopati Kuer v. Ramakant Dikshit and others, AIR (34) 1947 Patna 434 rel.

Qamar Iqbal for Petitioner.

Abdul Wahab Mirza for Applicants/objectors.

2018 C L C 1357

[Sindh]

Before Muhammad Shafi Siddiqui, J

JACOB'S BAKERY LIMITED through Attorney---Applicant

Versus

ENGLISH BISCUITS MANUFACTURER (PRIVATE) LIMITED and 2 others---Respondents

R.A. No.166 of 2012, decided on 12th February, 2018.

Civil Procedure Code (V of 1908)---

----Ss.10 & 151---Clash of litigation(s)---Pendency of another suit on same subject-matter in issue in a suit or appeal---Stay of suit---Principles---No two adjudications were to be produced which may clash against each other, and whether such adjudications were made by ordinary courts or special courts was not of much consequence---Court, under its inherent powers, could stay its own proceedings where it was necessary in order to secure ends of justice and prevent abuse of process of the court---In order to determine if there existed clash in adjudication, form of litigation may not matter, and it was the substance of the litigation that counted.

M/s H & B General Trading Co. v. International Marketing Co. 2009 CLC 359; Salim Industries Limited v. Burhani Trading Co. 1982 CLC 973; Dr. Haider Ali Mithani v. Ishrat Swaleh PLD 1999 Kar. 81 and Black's Law Dictionary 10th. Edition ref.

Muhammad Amin v. Muhammad Yasin 1991 CLC 1298; Habib Bank Limited v. Ali Mohtaram Naqvi PLD 1987 Kar. 102; Amras Singh v. Behari Lal AIR 1930 Lah. 526; Makhan Lal Chaudhury v. Chandi Nath Majumdar AIR 1931 Cal. 779; Ch. Muhammad Afzal v. Mst. Sardar Begum PLD 1949 Lah. 16 and Kondapaneni Raghavaial v. Inguva Lakshminarayana AIR 1955 Andhra 04 rel.

Zahid F. Ebrahim and Ms. Nazia for Applicant.

Shaiq Usmani, Abdullah Munshi and Muhammad Ali Talpur along with Muhammad Azam Shakil, Company Secretary for Respondent No.1.

Nemo for Respondents Nos.2 and 4.

2018 C L C 1376

[Sindh]

Before Nazar Akbar, J.

Agha IMTIAZ ALI KHAN BABAR and 2 others----Plaintiffs

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Water and Power and 3 others----Defendants

Suit No.859 of 2017, decided on 31st July, 2017.

Companies Ordinance (XLVII of 1984) ---

----Ss. 178, 180, 181 & 183---Public Sector Companies (Corporate Governance) Rules, 2013, R. 5---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Electric Power Company---Board of Directors of company---Reconstitution of---Removal of a "Nominee Director"---Scope---Suit for declaration---Temporary injunction, grant of---Plaintiffs were nominated as Directors of Electric Power Company---Contention of plaintiffs was that they could not be removed except in accordance with the Companies Ordinance, 1984---Validity---Plaintiffs were not elected Directors of the Company---Notification with regard to appointment of defendant as Director of the Company was impugned in the earlier suit by one of the earlier Nominee Directors but plaintiffs despite having knowledge of the same did not contest the said suit nor attempted to become party in the same to protect their right, if any---Plaintiffs, therefore, had not approached the court with clean hands---Provisions of S.178, 180 or 181 of Companies Ordinance, 1984 were not applicable to the Directors appointed under S.183 of the Ordinance---Nominee Directors had no vested right to hold the office for any specified period---Powers of "removal" of a "Nominee Director" was inherent power of the Authority which nominated him---Nominee Director would hold the office "during the pleasure" of the Authority which nominated him---Plaintiffs having claimed a definite amount of damages as compensation on account of the alleged omissions or failure of discharge of duty by the Authority would lose their right to seek restraining orders (injunction) on the ground of irreparable loss---Application for grant of injunction to suspend the impugned notification was refused in circumstances.

Government of Pakistan and 3 others vs. Kamruddin Valika 1996 CLC 1086 ref.

Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad 2005 PLC (C.S) 1300; Syed Muhammad Ayyub (P.S.E.I.) Executive Engineer, Irrigation v. The Government of West Pakistan PLD 1957 (W.P) Lahore 487; The Province of the Punjab v. Ch. Nazir Hussain PLD 1956 (W.P) Lahore 556 and Mian Muhammad Anwar Monnoo and 2 others v. Kotri Textile Mills Ltd. and 5 others 1990 MLD 348 distinguished.

Bolan Beverages (Pvt.) Limited v. PEPSICO. INC. and 4 others 2004 CLD 1530 rel.

Abdul Salam Memon for Plaintiffs Nos.1 to 3.

Saleemuddin A. Patoli, Assistant Attorney General for Defendants Nos.1 and 2.

Ijaz Ahmed Zahid along with Sattar Bux Soomro Director (Legal), SEPCO, Sukkur.

2018 C L C 1409

[Sindh]

Before Aziz-ur-Rahman, J

Shaikh MUHAMMAD ASGHAR---Plaintiff

Versus

MUHAMMAD ABDULLAH and another----Respondents

Suit No.800 of 2013, decided on 29th May, 2017.

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance of contract---Failure of plaintiff to deposit balance sale consideration---Effect---Plaintiff was directed to deposit balance sale consideration in the court but he failed---Plaintiff had made averments in the plaint that he was ready to pay balance sale consideration to the defendant---Plaintiff had failed to deposit the requisite amount with the Nazir of the Court which had falsified/belied his averments made on oath---Plaintiff seeking equitable relief of specific performance of contract was bound to be ready and willing throughout the proceedings to perform his part of contract---Plaintiff being not serious to perform his agreed part of contract, thus disentitled himself to have a decree in his favour for specific performance---No decree for specific performance of contract could be passed in favour of plaintiff which was discretionary and equitable in nature---Suit was dismissed in circumstances.

Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953 and Syed Muhammad Waqar-ud-Din v. Owais Ahmed Idress 2015 MLD 49 rel.

Ch. Waseem Akhtar for Plaintiff.

Arshad M. Tayebaly for Defendant No.1.

Nemo for Respondent No.2.

2018 C L C 1437

[Sindh]

Before Mahmood Ahmed Khan, J

NTL (PRIVATE) LIMITED---Plaintiff

Versus

TNT (U.A.E.), LLC---Defendant

Suits Nos.407, 426, 427, 879 and 1063 and C.M.As. Nos.2288, 6533, 5025, 3438, 3436 of 2017, decided on 23rd April, 2018.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Suit for declaration, injunction and damages---Interim injunction, grant of---Necessary ingredients---Proof---Factual controversy---At the time of filing of suit, ad-interim injunction was granted in favour of plaintiff---Validity---Case of plaintiff was based upon allegations made in the plaint, the last agreement between the parties and contentions in pleadings, which all were not in consonance with one another, if not in contradiction---Plaintiff had the option to prove his case as the controversy between the parties was of factual nature whereon applicable law was dependent---Matter of interim injunction could not be left to the conclusions of evidence, where the same was obtained on the first date, on recording contentions of plaintiff's version only at the time of granting notice to the other side---Injunction order interim or of permanent nature had to be based upon record available before a Court of law, covering all three required aspects/ingredients of prima facie case, balance of convenience and irreparable loss---Case as made out by plaintiff at such point of time fell short of having a prima facie nature for injunction on the basis of record available (irrespective of the allegations made, which could not be the sole basis) as such the interim injunction was also not available---Denial being termed as evasive was not sufficient in presence of last agreement for any relief claimed by plaintiff in such regard---Case of plaintiff at such point of time was only maintainable for damages---High Court withdrew ad-interim injunction granted in favour of plaintiff at the time of filing of plaint---Application was dismissed in circumstances.

1997 CLC 1903; PLD 2011 Kar. 362; PLD 2004 SC 860; 2003 SCMR 1864; 2002 CLD 77; 2016 CLC 189; PLD 1965 SC 83; 2015 YLR 2141; 1995 MLD 384; PLD 2001 Kar. 185; 2013 PLC (C.S.) 768; 2010 MLD 800; 1974 SCMR 519 and Jamshoro Joint Venture Ltd. v. Sui Southern Gas Company Ltd. Suit No.1216/2016 ref.

Zahid F. Ebraim for Plaintiff.

Altamash Arab and Ali Ahmed Turab for Plaintiff (in Suit No.1063 of 2017).

Sajid Zahid and Zeshan Khan for Defendant.

2018 C L C 1471

[Sindh]

Before Khadim Hussain M. Sheikh, J

Dr. MASUMA HASAN----Petitioner

Versus

MUHAMMAD HAFEEZ and others ----Respondents

Constitutional Petition No.S-711 of 2014, decided on, 3rd February, 2017.

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

----S.15---Civil Procedural Code (V of 1908), S.12(2)---Application for setting aside eviction order---Allegation of fraud and misrepresentation against landlord---Effect---Tenant contended that the Court could not dismiss her application without framing issues and recording evidence---Landlord contended that matter had already been decided at all relevant available forums---Validity---Tenant after contesting the matter and having exhausted all the remedies available to her, could not re-agitate the same matter by filing the application under S. 12(2), C.P.C. and that too before the first forum, which amounted to review of the judgments and orders, depriving the decree-holder the fruits of the decree---Remedy provided under S. 12(2), C.P.C. would not be available like a regular suit, and the court could dispose off such application without framing of the issues and recording evidence of the parties---Remedy of filing application under S. 12(2), C.P.C. was not available to the tenant in circumstances---Tenant had filed application under S. 12(2), C.P.C. in order to retain the possession of the rented premises with herself by making absurd assertions---Record did not even remotely suggest that any fraud or misrepresentation was committed with the Court---Rent Controller had dismissed the application under S. 12(2), C.P.C. filed by the tenant, after proper application of mind and appreciating the record and, was justified in not framing the issues on such absurd assertions---No illegality or infirmity having been noticed in the impugned order---Constitutional petition was dismissed accordingly.

Mrs. Amina Bibi v. Nasrullah and others 2000 SCMR 296; Mst. Zarina Begum v. Muhammad Ali and others 2012 YLR 2681; Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company PLD 2006 SC 226 and Tanveer Siddiqui and another v. Muhammad Rashid 2010 YLR 1851 ref.

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

----S.12(2)---Application under S.12(2), C.P.C.---Nature and scope---Remedy of filing such application would not be available like a regular suit and court could dispose of such application without framing of issues and recording evidence of the parties.

Abdur Rehman for Petitioner.

Sardar Muhammad Yusuf for Respondent No.1.

2018 C L C 1487

[Sindh]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

MUHAMMAD ASLAM SIDDIQUI---Petitioner

Versus

BACHUBAI EDULJEE DINSHAW RELIEF FUND and 3 others---Respondents

C.P. No.D-1470 and C.M.A. No.6588 of 2016, decided on 19th April, 2017.

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

----O. I, R. 10 & O. XXII, R. 10---Transfer of Property Act (IV of 1882), S. 54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Necessary party---Legal right---Scope---Plaintiff died during pendency of suit---Petitioner/intervener moved application for impleadment as plaintiff on the ground that he had acquired all rights and interests of deceased plaintiff in respect of suit property on the basis of agreement to sell executed between him and deceased plaintiff---Validity---Nothing was on record that suit property had been transferred in the name of deceased plaintiff---Plaintiff had claimed right and title in the suit property on the basis of agreement of sale---Sale agreement did not confer any legal right or title until it was enforced through decree of the Court and sale deed was executed---No legal right devolved in favour of petitioner/intervener---Deceased plaintiff was not competent or qualified to transfer suit property to anyone including the petitioner---Execution of alleged agreement of sale/assignment on the part of deceased plaintiff in favour of petitioner/intervener was not enforceable under the law---Petitioner/intervener could not be accepted and recognized as necessary or proper party in absence of legal right and character---Petitioner/intervener could not be treated as a substitute of deceased plaintiff in the suit---No interest had been created in favour of petitioner/intervener---Petitioner was not legal heir of deceased plaintiff---No illegality or irregularity had been pointed out in the impugned order passed by the Revisional Court---Trial Court was directed to take legal action/steps as per law for joining the legal heirs of deceased plaintiff---Constitutional petition was dismissed in circumstances.

Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652; Rashid Ahmed v. Mst. Jiwan and 05 others 1997 SCMR 171; Metropolitan Corporation of Lahore through Administrator Syed Bhais (Pvt.) Ltd. through Managing Director and 5 others 2004 MLD 1395 and Muhammad Sharif v. Dr. Khurshid Anwar Man 1996 SCMR 781 distinguished.

Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416 and Muhammad Zubair v. Mrs. Arshad Begum and others 1999 CLC 1291 rel.

Words and phrases---

----'Legal right'---Meaning.

The word "legal right" means right or interest recognized and protected by laws of State. Such right alone a legal right and every legal right involves a duty or obligation.

Zahid F. Ebrahim for Petitioner.

Abdul Rehman for Respondents Nos.1 and 2.

Sibtain Mehmood, A.A.G.

2018 C L C 1524

[Sindh]

Before Arshad Hussain Khan, J.

AZIZ UR RAHMAN----Plaintiff

Versus

RASHID AHMED (Late) through L.Rs. and others----Defendants

Suit No.57 of 1995, decided on 31st October, 2017.

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

----O.VIII, R.1---Suit for declaration and permanent injunction---Written statement---Non-production of evidence in support of written statement---Effect---Contention of plaintiff was that he was owner in possession of suit property---Defendants submitted written statement but no one appeared in witness box to substantiate their stance in the case---Validity---Major part of the statement of plaintiff's testimony had not been subjected to cross-examination---Said part of testimony of plaintiff was to be deemed to have been admitted---Plaintiff's version was supported through his evidence while defendants despite opportunities did not lead any evidence in the matter---Written statement containing averments of a party was required to be proved through cogent evidence---If a party did not produce any evidence to support the contents of its written statement then in absence of any admission on the part of plaintiff the averments contained in the said written statement could not be treated as evidence---Contentions/assertions and evidence led by the plaintiff were deemed to be admitted by the defendants---General denial on the part of defendant in their written statement was of no evidentiary value---Defendants had failed to produce any evidence on the record to rebut the genuineness of documents produced by the plaintiff---Plaintiff had established his right over the suit property and he was entitled to raise construction thereat in accordance with the building plan approved by the concerned authority---Defendants were directed to remove the encroachment from the common street between the properties of both the parties---Suit was decreed in circumstances.

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

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

---O.VIII, R. 1---Written statement, averments in---Evidentiary value---Written statement containing averments of a party were required to be proved through cogent evidence---If a party did not produce any evidence to support the contents of its written statement then in absence of any admission on the part of plaintiff the averments contained in the said written statement could not be treated as evidence.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 and Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122 rel.

2018 C L C 1557

[Sindh]

Before Nazar Akbar, J

M/s. UNION NATIONAL BANK through Attorney----Plaintiff

Versus

BILAL AHMED QURESHI----Defendant

Suit No.1025 of 2003, decided on 12th March, 2018.

Civil Procedure Code (V of 1908)---

----O.XXIX, R.1---Suit by or against corporations---Persons authorized to file suits---Suits not competently filed---Power of attorney, construction of---Estoppel against plea that a suit was not competently filed---Scope---Contents of power of attorney had to be strictly construed and any argument of "moral estoppel" on ground that defendant had admitted documentary evidence against him hence defendant was estopped from agitating that suit was not lawfully instituted, was not a valid argument.

Khan Iftikhar Hussain Khan of Mamdot (represented by 6 others) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Messrs Pakistan Oil Mills (Pvt.) Ltd., v. Messrs Peter Shipping Co. Ltd. and others 2005 MLD 1745 and National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260 rel.

Habib-ur-Rehman for Plaintiff.

Zahid F. Ibrahim for Defendant.

2018 C L C 1564

[Sindh Sukkur Bench]

Before Muhammad Faisal Kamal Alam, J

Mst. HAJUL through L.Rs. and others----Applicants

Versus

NASARULLAH MALIK and others----Respondents

Civil Revisions Nos.S-45 of 2007 and S-59 of 2001, decided on, 20th November, 2017.

Civil Procedure Code (V of 1908)---

----O.XLI, Rr. 27 & 31---Limitation Act (IX of 1908), Arts. 91 & 113---Judgment in appeal---Points for determination, non-framing of---Effect---Defendant had denied agreement to sell and sale deed in his written statement---Issue with regard to applicability of Arts. 91 & 113 of Limitation Act, 1908 should have been framed---Appellate Court had not framed points for determination while recording findings in the impugned judgment---Judgment passed by the Appellate Court suffered from material irregularity in circumstances---Impugned judgment passed by the Appellate Court was set aside and case was remitted to the said Court for decision afresh---Appellate Court could allow the parties to produce additional evidence if it deemed necessary---Revision was disposed of in circumstances.

Raja Humayon Sarfraz Khan v. Noor Muhammad and others 2007 SCMR 307 and Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 rel.

Parya Ram for Applicants.

Mian Abdul Salam Arain for Respondent No.1.

2018 C L C 1578

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

GHULAM ALI----Applicant

Versus

DOST MUHAMMAD----Respondent

Civil Transfer Application Nos.07 and C.M.As. Nos.535 and 536 of 2018, decided on 15th March, 2018.

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

----S.24---Bias---Application for transfer of civil case---Grounds---Allegation of bias in judge---Proof---Merely alleging bias on the part of a Judge or restricting the assertion to generalized statement was not sufficient---Issue of bias in a judge was a very serious matter and in the very least cogent and specific particulars thereof must be pleaded by an applicant and the same may be bolstered with plausible corroboration.

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

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

----S.24---Administration of justice---Transfer of case---Grounds---Interests of justice---Transfer of a matter from one Court to another could only be granted in exceptional circumstances, where it was shown that the same would be in the interests of justice.

All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

2018 C L C 1632

[Sindh]

Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ

HUMAIR ALTAF----Petitioner

Versus

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

Constitution Petition No.D-3580 of 2014, decided on 6th March, 2017.

Constitution of Pakistan---

---Art. 199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Res judicata, principle of---Applicability---Earlier constitutional petition filed by the petitioner was dismissed on merits---Said order had attained finality in the earlier round of litigation---Petitioner could not institute a fresh petition with regard to same subject matter on the same cause of action---Principle of res judicata was applicable to the case of petitioner---Present constitutional petition having been filed on the same cause of action was not maintainable---Constitutional petition was dismissed in circumstances.

PIA v. Tanveer-ur-Rehman PLD 2010 SC 676; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Messrs Pakistan Steel Mills Corporation v. Nisar Ahmed Shar 2008 PLC 52; Raja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission Karachi 2008 SCMR 402 and Pakistan Defence Officers Housing Authority and others Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 ref.

Sanaullah Noor Ghori for Petitioner.

Muhammad Aslam Butt, D.A.G. for Respondent No.1.

Jawed Asghar Awan for Respondents Nos.2 to 4.

2018 C L C 1676

[Sindh]

Before Nazar Akbar, J

Sheikh MUHAMMAD JAVAID----Plaintiff

Versus

SARTAJ SAQLAIN and 5 others----Defendants

Suit No.1644 of 2013 and C.M.A. No.14259 of 2017, decided on 17th February, 2018.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Limitation Act (IX of 1908), Art. 113 & S. 22---Civil Procedure Code (V of 1908), O. I, R. 10---Companies Ordinance (XLVII of 1984), Ss. 290 & 309---Suit for specific performance of contract---Impleadment of party during pendency of suit---Limitation, commencement of---Agreement to sell by the Directors of a private limited company---Effect---Document---Proof---Procedure---Private limited company was impleaded as one of the defendants during pendency of suit on 07-09-2015---Suit against the said defendant was to be deemed to have been instituted from the date when company was impleaded as defendant---Plaintiff had stated in the plaint that cause of action had accrued on 26-08-2011---Present suit was time barred against newly impleaded defendant private limited company---Remaining defendants were not owners of the suit property---Suit to compel the said defendants to execute sale in favour of plaintiff was not maintainable---Plaintiff was bound to prove execution of agreement to sell with the lawful owner of suit property---Alleged agreement to sell was not executed by the company or any duly authorized person by the company in accordance with law---Managing Directors of a company had to act on the basis of authorization by the Board of Directors of company or on the basis of its Articles of Association---Even plaint/suit on behalf of a company could not be filed by the Director of a company for its benefit without proper authorization---Nothing was on record with regard to any meeting of the company to propose sale of its property---Even sale consideration was not paid to the company---Immovable property owned by a private limited company could not be sold by its Director---Suit property remained to be the property of company in the record of Security and Exchange Commission of Pakistan---Documents including alleged agreement to sell appeared to be forged and fabricated---Even legal heirs of Director of company could not step into the shoes of Director on his/her death to deal with the assets of a private limited company---Suit property belonged to a private limited company and possession of plaintiff on the suit property was result of fraud and mismanagement of the assets of private limited company---Plaintiff had not produced any of the marginal witnesses of agreement to sell and payment receipts---Photocopy of document was inadmissible in evidence---Business of registered company was to be transacted through Bank account held by the said company---Any transaction by or between the third party with any person who was even Director of company could not be treated as transaction binding on the company itself---Plaintiff had failed to establish contract with the lawful owner of suit property---Plaintiff had made attempt to misuse the process of court on the basis of forged documents---Court was bound to protect such immovable property owned by the company---Company had abandoned its business and its property should be dealt with in accordance with law---Suit property could only be protected or disposed of by winding-up of the company for the benefits of its affectees, if any---Security and Exchange Commission of Pakistan was directed to initiate proceedings against the company and wind-up the same---Nazir of the High Court was directed to inspect the suit property and take over possession of entire suit property till final order by the Court---Member Inspection Team was directed to examine affidavit filed by the plaintiff in his examination-in-chief on oath and file a complaint against him if any case was made out---Suit was dismissed in circumstances.

Bashir Dawood v. Haji Suleman Goawala and Sons Ltd. and others 2010 CLC 191 rel.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of contract---Limitation---Limitation for filing suit for specific performance of contract was three years from the date fixed for its performance, or, if no such date was fixed, when the plaintiff had notice that performance had been refused.

Wiqas Ahmed Khan for Plaintiff.

Nemo for all Defendants.

2018 C L C 1720

[Sindh]

Before Adnan Iqbal Chaudhry, J

Syed SHAFAAT ALI through his Legal Heirs----Plaintiff

Versus

Syed FEROZ ALI----Defendant

Suit No.1710 of 2015, decided on 26th March, 2018.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 3---Specific Relief Act (I of 1877), Ss. 39 & 9---Suit for cancellation of instrument---Death of plaintiff---Rights and liabilities of legal heirs---Scope---Dispossession of legal heirs of plaintiff by defendant---Plaintiff died during pendency of suit and his legal heirs were impleaded who moved application for restoration of possession of a portion of the suit property---Validity---Original plaintiff's 'right to sue' had survived to the legal heirs who became plaintiffs in the present suit---Legal heirs could only pursue those rights for which original plaintiff had sued unless plaint was capable of and was allowed to be amended to assert their rights---Where a party was joined in the suit under O. XXII, R. 3, C.P.C. on the death of original party, then it were the original party's rights and liabilities which were to be considered and not those of legal representatives' impleaded in place of deceased party---Remedy prescribed for relief against unlawful dispossession under S.9 of Specific Relief Act, 1877 having not been invoked within time, nor suit for partition/administration of the said portion of property had been filed to allow the legal representatives possession of said portion of property in the suit, it would be injudicious to allow the possession of said portion to the legal representatives where suit property as a whole would devolve on all the legal heirs of the original plaintiff including the defendant---Legal heirs of original plaintiff would be at liberty to file separate proceedings of partition/administration of the portion of suit property in circumstances.

Amina Begum v. Meher Ghulam Dastagir PLD 1978 SC 220 ref.

Sharif Khan v. Abdur Rahman 2000 CLC 4; Muhammad Iqbal v. Ghulam Ali Shah PLD 1975 Lah 1205; Sardar Ally v. Abdul Ghani PLD 1987 Kar 58; Abdul Sattar v. Ibrahim PLD 1992 Kar 323 rel.

Ms. Seema Waseem for Plaintiffs.

Muhammad Mushafay for Defendant.

2018 C L C 1744

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar and Muhammad Saleem Jessar, JJ

NAWABZADA SARDAR AHMED KHAN through Attorney----Petitioner

Versus

FRONTIER WORKS ORGANIZATION (F.W.O.) through its Director General F.W.O. and 3 others----Respondents

Constitutional Petitions Nos.D-551 of 2007, D-289, 1103 of 2010, D-882, 1203, 1467, 2464, 2550, 2640, 2641, 2643, 2699 of 2011, D-01, 123, 124, 605, 1035, 1105, 1117, 1236, 1280, 1325, 1384, 1409 of 2012, D-518, 745, 771, 1213, 1299 of 2013, D-290, 355, 356, 357, 358, 510, 582, 591, 696, 1102, 1328, 1329, 1330, 1331, 1377, 1378, 1379 of 2014, D-316, 397, 511, 613, 685, 913, 947, 979, 1076, 1173, 1393, 1435 of 2015, D-14, 15, 31, 130, 896, 931, 1243, 1296, 1297, 1298, 1299 of 2016, D-12, 136, 137 and 523 of 2017, decided on 12th October, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Contractual obligations---Enforcement---Scope---Petitioners being contractors were aggrieved of non-payment of amounts by authorities despite completion of work---Validity---Facts as averred by petitioners were disputed by respondents ---Relief sought by petitioners was primarily with regard to enforcement of contractual obligations between parties and same could not be enforced or granted while exercising discretionary jurisdiction of High Court under Art. 199 of the Constitution---Appropriate remedy for such matters was through suit before civil court of competent jurisdiction---High Court declined to interfere in the matter as petition was not maintainable for seeking directions of payment through enforcement of contractual obligation where there was serious objection regarding execution and completion of work---Constitutional petition was dismissed in circumstances.

Fida Hussain and others v. Secretary Local Government, Sindh and others C.P.No.D-546 of 2014; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 and Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 rel.

Muhammad Ashraf Ali v. Muhammad Naseer 1986 SCMR 1096; Chief Settlt. Commr. v. Mohd. Fazil PLD 1975 SC 331; Airport Support Services v. Airport Manager 1998 SCMR 2268; M.H. Abidi v. State Life Insurance Corpn. 1990 MLD 563; Mahmood Ali Butt v. Inspector General of Police, Punjab Lahore and 10 others PLD 1997 SC 823; Javaid Iqbal v. Pak. Agricultural Storage and Services Corp. 2004 CLC 478; Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi 2005 SCMR 678; Habibullah Energy Limited v. WAPDA 2008 YLR 2612; Muslimabad Cooperative Housing Society Ltd. v. Siddiqa Faiz PLD 2008 SC 135; Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd. PLD 2009 Kar. 112; Shaman Mal v. Executive Engineer Irrigation and 5 others 2011 MLD 1644; Habib-ur-Rehman Unar and others v. Government of Sindh PLD 2004 Kar. 728; M. Muzaffar-ud-Din Industries Ltd v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another 1968 SCMR 1136; Shamshad Ali Khan v. Commissioner Lahore and others 1969 SCMR 122; Messers Momin Motors Company v. The Regional Transport Authority Dacca and others PLD 1962 SC 108; SF Engineering Services v. Federation of Pakistan PLD 2014 Sindh 378 and Manzoor Ahmed Bhayo v. Government of Sindh 2014 MLD 1130 ref.

Ghulam Dastagir A. Shahani, Habibullah G. Ghouri, Rashid Mustafa Solangi, Faiz Mohammad Larik, Rafique Ahmed K. Abro, Abdul Rehman A. Bhutto, Ashfaque Hussain Abro, Safdar Ali Ghouri, Fida Hussain Shah, Imtiaz Ali Bhatti, Saleem Raza Jakhar and Mazhar Ali Bhutto for Petitioner.

Abdul Hamid Bhurgari, Addl. A.G assisted by Abid Hussain Qadri and Ameer Ahmed Narejo, State Counsels.

Mohammad Ashique Dhamraho for Respondents.

Nisar Ahmed G. Abro, D.A.G.

2018 C L C 1777

[Sindh]

Before Muhammad Ali Mazhar and Omar Sial, JJ

RAZA MUHAMMAD GORAR and others----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chairman and others----Respondents

C.P. Nos.D-3648, 3952 and 4169 of 2018, decided on 5th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 20, 21 & 19---Elections Rules, 2017, R. 10----Constitution of Pakistan, Arts. 17 & 199----General Elections---Delimitation of constituencies----Draft proposals for delimitation of constituencies---Principles of delimitation of constituencies---Preliminary delimitations---Representations against (or proposals for) delimitation(s) done by Election Commission---Role of the Election Commission---Vested right of candidate(s)/voters of a constituency vis-à-vis delimitation---Scope---Law provided right to submit proposals by means of representation before Election Commission for making changes and modifications in preliminary delimitation of a constituency but after considering all cognate factors, it was the sole responsibility of the Election Commission to finalise delimitation---No one could claim vested right that his/her representation to the Election Commission be accepted by the Election Commission nor any person could carve out/delimit a constituency according to his desires.

Kashif Paracha for Petitioners (in C.P. No.D-3952/2018).

M/S. Rasheed A. Razvi, Tahmasp Rasheed Rizvi and Abbas Rasheed Razvi for Petitioner (in C.P. No.D-3648/2018), Assisted by Shoaib Ali and Agha Mir Mustafa Durrani.

M. Luqman-ul-Haq for Petitioner (in C.P. No.D-4169/2018), assisted by Asadullah Shah.

Raja Jawad Ali Saahar for Respondent No.3 (in C.P. No.D-3648 /2018).

Murtaza Wahab for Interveners (in C.P. No.D-3648/2018, assisted by Asad Iftikhar.

Ms. Memona Nasreen for the Election Commission of Pakistan.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Abdullah Hanjra, Law Officer, Election Commission along with Sain Bux Channer, Director (H.Q.), Imtiaz Ahmed Kalhoro, District Election Commissioner, Hyderabad, Zaheer Ahmed Sehto, District Election Commissioner, Kashmore/Member Delimitation Committee.

2018 C L C 1786

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

UMER DARAZ----Petitioner

Versus

FAMILY JUDGE and 3 others----Respondents

C.Ps. Nos. S-279 and S-280 of 2018, decided on 26th March, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for recovery of maintenance allowance---Execution petition---Impleadment of party---Father being unable to pay maintenance allowance---Seeking impleadment of Bait-ul-Maal for payment of maintenance to the minors---Scope---Father being unable to pay maintenance allowance sought impleadment of Bait-ul-Maal for payment of his same to his minor sons---Validity---If father was not able to pay maintenance allowance to his minor sons then relevant organ or authority of the State including Bait-ul-Maal and Local Government would be liable to pay maintenance to the minors---Petition for impleadment of Director and District Officer Bait-ul-Maal as parties was allowed in circumstances.

PLD 1989 Kar. 404; 1998 MLD 1972; PLD 1976 Lah. 930; PLD 1991 SC 543; 1994 CLC 444; 2004 YLR 616 and 2005 SCMR 1293 ref.

PLD 2012 Lah. 445 rel.

Sikandar Ali Shar for Petitioner

Rukhshanda Waheed, State Counsel.

2018 C L C 1795

[Sindh]

Before Munib Akhtar and Arshad Hussain Khan, JJ

Mrs. SHAMSHAD BEGUM and another----Appellants

Versus

Syed IFTIKHAR HUSSAIN JAFARI and 5 others----Respondents

H.C.A. No.13 of 2014, decided on 17th August, 2017.

Civil Procedure Code (V of 1908)---

----Ss. 16, 17, 20 & 120 & O. VII, R. 10---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation, permanent injunction, recovery of damages and possession---Jurisdiction, determination of---Return of Plaint---Scope---Original jurisdiction of High Court (Sindh)---Determination of---Procedure---Suit property was situated in districts 'A' and 'B' but suit was instituted in the Court of district 'C'---Trial Court returned the plaint for presentation before the Court of appropriate jurisdiction---Validity---Matters falling within meaning of S.16 (a), (b), (d) to (f), C.P.C. could not be filed in the Court at any other place except within the local limits of whose jurisdiction property was situated---Discretion/choice had been given to the plaintiff with regard to the matter falling within the meaning of S.16 (c), C.P.C.---Relief claimed, in the present suit and its nature, fell within the purview of S. 16, C.P.C.---Such kind of suit was to be instituted in the Court within the limits of whose jurisdiction the property was situated---Original jurisdiction of High Court (Sindh) could not be extended to entire Province of Sindh irrespective of the fact that property in question was situated at Karachi or not---Original jurisdiction of High Court (Sindh) with regard to immovable property was only limited and confined to the districts of Karachi---Reliefs claimed in the present suit were with regard to immovable property situated in district 'A' and 'B' beyond territorial jurisdiction of district 'C'---High Court observed that present suit should have been instituted where the property was situated---Trial Court had rightly held that suit was not maintainable at place 'C'---Appeal was dismissed in circumstances.

West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Ltd. PLD 1964 Kar. 11; Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through its President and 2 others 2012 CLC 507; Messrs Moolji Jaith and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd. AIR 1950 Federal Court 83; Nur Muhammad v. Mst. Karim Bibi PLD 1959 (W. P.) Lah. 932; Messrs Sh. Muhammad Amin and Co v. The Provincial Industrial Development Corporation 1991 CLC 684; Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others PLD 2010 Kar. 261; Ismat Asad v. Pakistan Oxygen Limited and another 2010 CLC 1226; Muhammad Waseem Ghori and another v. Altaf Hussain Tunio and 6 others 2016 YLR 157 and Nittala Achyya and others v. Nittla Yellamma and others AIR 1923 Madras 109 ref.

Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176; 2003 SCMR 990 and 2003 CLC 1183 rel.

Shahanshah Husain for Appellants.

Masood Ghani for Respondent No.2.

2018 C L C 1838

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmed Khan, J

LUQMAN and another---Applicants

Versus

PROVINCE OF SINDH and 6 others---Respondents

Civil Revision Application No.S-58 of 2013, decided on 17th April, 2018.

(a) Islamic Law---

----Gift---Gift to family member---Delivery of possession---Overt act---Scope---Islamic Law, in order to make a valid gift required donor to perform any of the overt acts to disassociate himself from the property in order to let the surviving legal heirs know that the property would solely rest with the donee.

Muhammad Javed v. Nisar Ahmed 2012 YLR 1021; Ghulam Rasool v. Rasheeda Bibi 2006 CLC 531; Maqbool Alam v. Khodaija 66 ASC 1194; Ibrahim Haji Musa Haji Rasul Samol v. Sugra Bibi 1978 19 G.L.R.; S.M.S. Saleem Hashmi v. Syed Abdul Fateh 72 Pat. 279; Abdul Razzak v. Zainab Bi (1933) 63 Mad. LJ. 887; Haji Muhammad Yacioob Khan v. Muhammad Riaz Khan 2016 YLR 2492 and Muhammad Nawaz v. Abida Bibi 2010 MLD 352 rel.

(b) Islamic Law---

----Gift---Valid gift---Requisites---Delivery of possession---Overt act---Scope---In order to constitute a valid gift, there must be an offer (ijab), an acceptance (qabul) and transfer (qabza)---Public depiction of ijab and qabul was not required---Pivotal requirement was the markable delivery of possession by the donor and taking of the possession by the donee.

(c) Islamic Law---

----Gift---Delivery of possession---Overt act---Scope---Real test of the delivery of possession was to determine as to who reaped the benefits of the property after the gift---If the donor had not handed over the possession or if he was still reaping the benefits from the property, then the delivery conditionality was not met and gift remained invalid---Requirement of delivery of possession was so critical that gift could only take effect from the date on which possession was delivered and not from the date on which the declaration of gift was actually made---Delivery of possession was concomitant of the gift and without delivery of possession to the donee, the gift was void even if it was made through a registered document.

Zubair Ahmed Junejo for Applicants.

Rustam Khan Talpur for Respondent No.7.

2018 C L C 1885

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

M/s. HERBERTSONS PAKISTAN (PVT.) LTD----Petitioner

Versus

THE IIIrd RENT CONTROLLER AND SENIOR CIVIL JUDGE WEST KARACHI and 2 others----Respondents

Constitutional Petition No. S-126 of 2014, decided on 18th May, 2018.

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

----Ss. 2(h), 3 & 15---Sindh Government Notification No.VIII(3)SII/75 dated 15th March, 1981---Ejectment petition---Jurisdiction of Rent Tribunal---Scope---Petitioner / tenant / sub-lessee contended that as respondent/company was the lessee which rented the premises/property of Port Trust, the proceedings could not be initiated before the Rent Controller and notification issued in such regard had exempted such properties---Respondent/lessee contended that such plea was not taken by the petitioner before the Courts below---Validity---Although question of law so brought, in the present case, was neither taken before the Rent Controller, nor raised before the Appellate Court yet the same could be adjudicated as question of waiver, estoppel or limitation was not attracted---Lessee was not competent to file case against sub-lessee---Object of law behind the enactment of S.3 of Sindh Rented Premises Ordinance, 1979 that of Notification issued thereunder was to exclude properties owned by or belonging to the Federal Government or the Provincial Government from the operation of provisions of Sindh Rented Premises Ordinance, 1979---In the present case, there was, admittedly, no dispute with regard to relationship of landlord and tenant between the parties---Exemption as provided under S. 3 of Sindh Rented Premises Ordinance, 1979 could be extended to "premises", "building" or "rented land" as defined under S.2(h) of Sindh Rented Premises Ordinance, 1979 and such exemption or non-exemption was to be determined on the basis of status of the immoveable property---Record showed that in the year 1962, through tenancy agreement, petitioner sub-leased/rented the plot/ property originally leased to the respondent by the Port Trust but subsequently, by consent, the petitioner shifted to another property---Intent behind issuance of the notification was to safeguard the interests of the Port Trust and not to restrict or interfere the litigation between two private parties---Premises in question did not fall within the purview of the exemption---Constitutional petition was dismissed accordingly.

2004 SCMR 1947; 2005 SCMR 1388; 2006 YLR 2399; PLD 2007 Lah. 507; 1999 MLD 268; Mrs. B.S. Khan v. Pakistan State Oil Company Limited 1989 SCMR 75; Pakistan State Oil Company Limited v. Khaliq Raza Khan 1991 CLC 1866; Muhammad Asghar and another v. Khola Khan 1995 CLC 564 and M/s. Lalazar Enterprises (Pvt.) Limited, Karachi v. Messrs Oceanic International (Pvt.) Limited, Karachi and others 2006 SCMR 140 ref.

Iftikhar Javed Qazi for Petitioner.

S. Adnan Iqbal for Respondent No.3.

2018 C L C 1972

[Sindh]

Before Irfan Saadat Khan and Aziz-ur-Rehman, JJ

SAADABAD CO-OPERATIVE HOUSING SOCIETY LTD. through Secretary---Petitioner

Versus

GHULAM RASOOL BHATTI and others---Respondents

Constitution Petition No.D-1171 of 2013, decided on 28th November, 2017.

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

----Ss. 54-A, 56 & 57---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Alternate remedy---Award attaining finality---Petitioner was a Cooperative Housing Society and respondent was one of its members and an allottee of a residential plot---Dispute between parties was referred to arbitrator who gave award in favour of respondent---Petitioner Society failed to assail award before appellate forum within time prescribed---Validity---Constitutional jurisdiction under Art. 199 of the Constitution could only be invoked where law did not provide any other adequate and alternate remedy---Remedy of appeal was available under Co-operative Societies Act, 1925, against award passed on 13-9-2005 but petitioner Society in its own wisdom failed and/or neglected to avail such remedy---Award attained finality and petitioner Society was deemed as having accepted the 'Award'---Petitioner Society lost its locus standi to challenge the same---High Court declined to interfere in the award passed against petitioner Society---Constitutional petition was dismissed in circumstances.

Faiz Karim v. Multan Development Authority through Director-General and 4 others PLD 1995 Lah. 429 ref.

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

----S.115---Revision---Concurrent findings of facts by two courts below are immune from interference until there appears gross illegality, irregularity, misreading and/or non-reading of evidence.

Arshad Nawab for Petitioner.

Nemo. for Respondent No.1.

Asadullah Lashari State Counsel for Respondents Nos. 2 and 3.

2018 C L C 1999

[Sindh]

Before Irfan Saadat Khan and Aziz-ur-Rehman, JJ

ALI GOHAR----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Constitution Petition No.D-4613 of 2016, decided on 20th December, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Pending civil suit---Maintainability---Alternate remedy---Discretionary and equitable relief, grant of---Requirements---Dispute as to title of land---Contention of petitioner was that he was lawful owner of suit land---Validity---Disputed questions of facts between the parties could not be looked into or otherwise determined in constitutional petition---Petitioner had already availed alternate remedy by filing suit before Civil Court which was still pending---Dispute with regard to title of land could not be looked into or adjudicated upon while exercising discretionary jurisdiction under Art. 199 of the Constitution---Jurisdiction under Art. 199 of the Constitution was not only discretionary but also equitable---Person who sought equity must come to the Court with clean hands---Petitioner had failed and/or avoided to disclose the factum of pending suit/litigation---Non-disclosure of said fact had disentitled the petitioner from seeking the discretionary and equitable relief---Petitioner had not approached the High Court with clean hands---Constitutional jurisdiction under Art. 199 of the Constitution was not meant to render the available lower forum/fora redundant/non-functional---Article 199 of the Constitution did not vest in the High Court unlimited/unrestricted powers to either bypass or otherwise ignore legal remedies available under the law---Dispute between the parties could appropriately be adjudicated upon by the Trial Court in accordance with law---Petitioner could not avail two remedies before two different fora as no one could be vexed twice on the same cause of action/subject matter---Constitutional petition was dismissed in circumstances.

Mian Muhammad Yousaf and another v. Lahore Development Authority through Director-General, L.D.A. Plaza, Lahore and 5 others PLD 2001 SC 393; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Muhammad Amir v. Umer Hayat and 5 others 2010 CLC 1798; Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---'Writ petition' under Art. 199 of Constitution of Pakistan is for the enforcement of clear legal right and not otherwise, meant for establishing a right which in fact is not free from doubt---Doubtful/disputed question of fact cannot be seen and/or dealt with under the Constitutional Jurisdiction.

Waleed Khanzada for Petitioner.

Miran Muhammad Shah Addl. AG Sindh for Respondent No.1.

Nemo for Respondent No.2

Raja Basantani for Respondent No.3.

2018 C L C 1

[Lahore]

Before Amin-ud-Din Khan, Ibad-ur-Rehman Lodhi and Shahid Jamil Khan, JJ

FAISAL MIR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petitions Nos.64111, 65211 and 65192 of 2017, heard on 13th September, 2017.

Per Amin-ud-Din Khan and Shahid Jamil Khan, JJ agreeing, Ibad-ur-Rehman Lodhi, J. contra. [Majority view].

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

----S. 14 (2)---Election for the seat of Member National Assembly---Nomination papers---Objections---Returning Officer decided the objections only by accepting the nomination papers---Validity---Returning Officer was bound to decide the objections raised by the objectors in accordance with S.14(2) of Representation of the People Act, 1976---Objections were general in nature without any specific details---No material was produced before the Returning Officer to substantiate the objections---Present petition had been filed with delay; petitioners were ordered to deposit expenses of notices to be issued to the respondents but they failed---Petitioners had a right to file post election petition before the appropriate Tribunal where they could raise all the objections against the acceptance of nomination papers---No one had been disfranchised by acceptance of nomination papers---Constitutional petition being not maintainable was dismissed.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.158, Naushero Feroze and others 1994 SCMR 1299 rel.

Per Ibad-ur-Rehman Lodhi, J. dissenting with Amin-ud-Din Khan and Shahid Jamil Khan, JJ [Minority view]

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

----S. 14(2)---Election for the seat of Member National Assembly---Nomination papers---Objections---Returning Officer deciding the objections only by accepting the nomination papers---Non-speaking order---Effect---Administration of justice---Returning Officer decided the objections only through acceptance of nomination papers and no separate order was passed---Validity---Proceedings before Returning Officer in filing the nomination papers, scrutiny thereof and decision on the objections if raised were foundational steps for whole of the election process---Returning Officer had not recorded any reason except his decision of 'accepted' the nomination papers---Returning Officer had not performed his function in accordance with law by deciding the objections by means of non-speaking order and by not giving any reason for ignoring the objections raised before him---Returning Officer had arbitrarily accepted the nomination papers of the candidate without giving any reasons---Appellate Tribunal had also failed to take into consideration the arbitrariness in the conduct of Returning Officer---Orders passed by the Appellate Tribunal and Returning Officer accepting nomination papers were result of arbitrary exercise having no legal effect and same were set aside---Nomination papers of the candidate and objections raised thereon would be deemed to be pending before the Returning Officer who should conduct scrutiny within the meaning of S.14(2) of Representation of the People Act, 1976---Schedule for election of the Constituency was suspended from the stage of scrutiny and fresh schedule for fresh scrutiny process and subsequent activities including the last date for filing of appeals against decision of Returning Officer rejecting/accepting the nomination papers, providing the last dates for deciding the appeals by Appellate Tribunal, for withdrawal of candidature, publication of revised list of candidates and fixation of polling day---Constitutional petition was accepted accordingly. [Minority view].

Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 rel.

(c) Words and phrases---

----`Scrutiny'---Meaning.

Oxford Concise Dictionary rel.

(d) Words and phrases---

-----'Decision'---Meaning.

Oxford Concise Dictionary rel.

Ch. Zafar Hussain Ahmad for Petitioner.

Mirza Nasar Ahmad, DAG, Mehr Imtiaz Elahi Ch. AAG, Muhammad Amjad Pervaiz, Muhammad Nawaz Chaudhary, M. Aurangzeb, M. Naseem Saqlian for Respondent No.8.

Muhammad Shahid, Returning Officer.

Hafiz Adeel Ashraf, Assistant Law Officer, Election Commission of Pakistan.

2018 C L C 28

[Lahore]

Before Aysha A. Malik and Jawad Hassan, JJ

HAQ NAWAZ----Appellant

Versus

MINISTRY OF INFORMATION AND TECHNOLOGY and others----Respondents

I.C.A. No.464 of 2017, decided on 25th September, 2017.

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

----S. 26---Pakistan Electronic Media Regulatory Authority Rules, 2009, R.18---Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010, R.8---Pakistan Electronic Media Regulatory Authority Council of Complaints as a forum for redressal of complaints --- Scope --- Appellant impugned order of High Court, whereby his Constitutional petition seeking to restrain respondent television channel from preparing documentary film about life of a deceased person, was dismissed---Validity---High Court could not interfere in the matter when the appellant/petitioner bypassed the appropriate forum for redressal of his grievance, which was the Council of Complaints, provided for in S.26 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and the procedure for filing such complaints was provided for in R.8 of the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010---No illegality therefore existed in the impugned order---Intra-court appeal was dismissed, in circumstances.

2018 C L C 75

[Lahore (Rawalpindi Bench]

Before Mirza Viqas Rauf, J

MUHAMMAD EJAZ and 18 others----Petitioners

Versus

NOOR KHAN and 3 others----Respondents

Civil Revision No.891 of 2012, heard on 19th May, 2017.

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

----O. III, R. 4 & S. 96---Authority of Pleader---Scope---Suit dismissed as withdrawn on the statement of pleader---Restoration---Authority of a pleader---Consenting order/decree---Appeal---Maintainability---Judicial proceedings---Presumption of truth---Scope---Contention of petitioners was that their counsel, without any authority or permission got recorded his statement for withdrawal of the suit---Validity---Counsel for the applicants was duly appointed counsel in the suit, who was vested with the authority to do any act on their behalf---Statement of counsel was recorded who appended his signature in token of correctness of the same---Said statement was binding upon the applicants in circumstances---Authority of a pleader duly appointed by a person to act on his/her behalf in a Court would be deemed to be in force until determined with the leave of the Court by a writing signed by the client or pleader and filed in Court or until client or the pleader died or until all proceedings in the suit ended---Party was bound by the statement of his counsel unless there was contrary in the power of attorney placing restriction on the authority of counsel to compromise or abandon the claim on behalf of his client---Suit was decided with the consent of the parties on the basis of statement of counsel for the applicants---Such a consenting order/decree was not appealable in terms of S.96, C.P.C.---Appeal against the order of withdrawal of suit was not maintainable in circumstances---Nothing was on record that statement recorded by the counsel on behalf of applicants lacked authority---Presumption of truth was attached to the judicial proceedings which could not be altered or swayed at the whims of the parties---Applicants had approached the Court with mala fide intention and their act of accusing their duly appointed counsel would give a bad taste to the legal profession---Appellate Court had rightly dismissed the appeal filed by the applicants---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Revision was dismissed with costs in circumstances.

Hassan Akhtar and others v. Azhar Hameed and others PLD 2010 SC 657 and Afzal and others v. Abdul Ghani 2005 SCMR 946 rel.

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

----O.III, R.4 & S. 96---Consenting order/decree---Appeal against such order/decree not competent.

Omer Farooq Malik for Petitioners.

Ashiq Ali for Respondents.

2018 C L C 110

[Lahore]

Before Tariq Iftikhar Ahmad, J

MUHAMMAD ASLAM through Legal Heirs----Petitioner

Versus

MUHAMMAD ISHAQ and others----Respondents

C.R. No.139 of 2006, decided on 9th May, 2017.

Punjab Pre-emption Act (I of 1913)---

----S. 21---Punjab Pre-emption Act (IX of 1991), S.34---Pre-emption suit decreed on the basis of compromise---Setting aside of the decree holding that suit should be deemed to be pending and proceeded from the stage of compromise--- Abatement of suit---Contradiction between order of the Court and provision of law---Effect---Suit was decreed on the basis of compromise but said decree was set aside with the direction to the Trial Court to proceed from the stage of compromise---Trial Court decreed the suit but Appellate Court dismissed the same---Contention of defendant was that suit had abated after 01-08-1986---Validity---Law of pre-emption was changed when Punjab Pre-emption Act, 1991 was promulgated---If any decree or judgment was passed before 01-08-1986 then S.34 of Punjab Pre-emption Act, 1991 allowed the case to proceed further irrespective of repeal of Act of 1913 and if not then suit would stand abated---When order with regard to remand of case was passed then new law of pre emption i.e. Punjab Pre-emption Act, 1991 was in field and also its S.34---None of the parties raised question/objection or sought determination of jurisdiction of Court under the repealed Punjab Pre-emption Act, 1913---Proceedings were continued due to order of Court with regard to remand of suit---Specific provision of law and not the order of the Court would prevail---No decree remained in favour of plaintiff after setting aside of consent decree on the cut-off date i.e. 01-08-1986 and suit had to be abated---Decree by the Trial Court was hit by S.34 of Punjab Pre-emption Act, 1991---Proceedings conducted by the Courts below were not justified and revision stood abated by the operation of law---Revision was dismissed in circumstances.

Ali Muhammad and another v Muhammad Tufail and 3 others 2002 CLC 1900; Malik Ghulam Nabi and others v. Member III, Board of Revenue and 5 others PLD 1990 SC 1043 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

Akhtar Ali Rana for Petitioner.

A.K. Dogar, Senior Advocate for Respondents.

2018 C L C 129

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD IDREES and 12 others----Petitioners

Versus

MUHAMMAD YAMIN and others----Respondents

Civil Revision No.1058 of 2017, heard on 19th June, 2017.

(a) Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

----Ss. 2 & 3---Limitation Act (IX of 1908), Art.120---Suit for declaration--- Ownership of property declared by Consolidation Officer--- Inheritance--- Custom--- Scope--- Subsequent suit after withdrawal of earlier one---Limitation---Trial Court dismissed the suit holding that same was barred by time, bad for mis-joinder and non-joinder of necessary parties but Appellate Court decreed the same---Validity---Plaintiffs could not succeeded on the revenue side for their claim---Revenue officials as well as province of the Punjab having not been impleaded as defendants in the suit, order of consolidation officer could not be challenged without impleading Province of Punjab in the suit as party---Evidence of earlier suit which was with drawn as well as pleadings and judgment and decree passed could not be used in subsequent suit unless produced in evidence and proved in accordance with law---Certified copies of said record had been produced without their formal proof---Certified copy could not be read in favour of plaintiffs of subsequent suit when earlier suit was withdrawn by the plaintiffs of said suit---Allotment of land was made in the year 1951 and first suit was filed on 14-10-1980---Suit for declaration of title could be filed within a period of six years---When plaintiffs of the present suit joined the proceedings of earlier suit then filing of subsequent suit on 04-09-2002 was barred by time---Persons who were unable to challenge alienation of suit land for variety of reasons and legal objections including the one that suit was barred by limitation were given opportunity to file fresh suit within a period of one year---Present suit was barred by time---Suit even in the matter of inheritance must be filed within prescribed period of limitation---Question of limitation could not be considered a technicality in the matter of inheritance---Neither Provincial Government nor its officials had been impleaded as defendants in the present case---Act done by the said officials in their official capacity could not be set aside when Province of the Punjab had not been impleaded as party---Some portion of suit property was transferred through mutation of exchange and property received in exchange was further mutated through gift mutation and rest of the land was transferred through sale deed but sale deed had not been challenged in the present suit---Findings recorded by the Appellate Court were against record which were result of mis-reading and non-reading of evidence---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501; Faqir Hussain and others v. Ibrahim and others; PLD 2011 SC 648; Mst. Salamat Bibi through L.Rs. v. Yameen through L.Rs. and others 2006 CLC 726 and Riaz Hussain and others v. Mst. Aisha Bibi and others 2015 YLR 1903 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Suit for declaration of title could be filed within a period of six years.

Inam Ullah Hashmi for Petitioners.

Ghulam Farid Sanotra for Respondents.

Ch. Muhammad Ishaq Sipra for Applicants (in C.M. 2/C of 2017).

Imtiaz Hussain Khan Baloch for Applicants (in C.M.2/C of 2017).

2018 C L C 161

[Lahore]

Before Muzamil Akhtar Shabir, J

KABIR AHMAD----Petitioner

Versus

The ADDITIONAL DISTRICT JUDGE, LAHORE and another----Respondents

W.P. No.40510 of 2016, decided on 25th April, 2017.

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

----Ss. 7, 15 & 20---Ejectment petition---Ground of default in payment of rent---Disagreement between the parties regarding rate of monthly rent, security amount and duration of tenancy---Terms of rent agreement--- Effect--- Adjustment of monthly rent into security amount---Scope---Rent Tribunal partially allowed leave to defend by ordering vacation of demised property and called for evidence on rate of monthly rent and security amount---Appellate Court remanded the matter---Landlord contended that Appellate Court had wrongly remanded the case as tenant had committed wilful default in payment of monthly rent---Tenant contended that he could not be declared defaulter as his security amount could be adjusted in rent due---Validity---Rent Tribunal could adopt the procedure of deciding the matter on the basis of facts established on the record and there was no need of recording of evidence for determination of a fact established on the record---Under S.7(1) of the Punjab Rented Premises Act, 2009 the tenant was obliged to make payment of rent to the landlord in the mode and by the date mentioned in the rent agreement---Rent agreement did not provide that the due rent was to be adjusted from the security amount---Landlord was to refund the security amount at the time of vacation of premises by the tenant, therefore, availability of security amount with the landlord could not absolve the tenant to pay rent within time---Tenant had failed to show payment of rent to the landlord in accordance with the terms of agreement as per S.7 of the Punjab Rented Premises Act, 2009---Impugned order passed by Appellate Court being not sustainable in the eye of law, was set-aside and High Court restored the order passed by the Rent Tribunal---Constitutional petition was allowed accordingly.

Muhammad Tariq Khan v. Kh. Muhammad Jawad Asami 2007 SCMR 818; Muhammad Bashir v. Yaseen 2011 CLC 1464; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Syed Asghar Ali Imam v. Muhammad Ali PLD 1988 SC 228; Zarina Khawaja v. Mahboob Shah PLD 1988 SC 190 and Mirza Abdul Aziz Beg v. Mushtaq Ahmad Sheikh 1980 SCMR 834 ref.

Syed Ali Tahir Naqvi for Petitioner.

2018 C L C 172

[Lahore (Multan Bench)]

Before Mudassir Khalid Abbasi, J

MUHAMMAD JALAL KHAN DOLTANA and another----Petitioners

Versus

The ELECTION TRIBUNAL (LOCAL GOVERNMENT ELECTIONS), MULTAN and 2 others----Respondents

W.P. No.77 of 2017, heard on 24th January, 2017.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 70(b)---Constitution of Pakistan, Arts.199 & 10-A---Constitutional petition---Election petition---Bias in Election Tribunal---Effect---Audi alteram partem, principle of---Applicability---Application for dismissal of election petition was moved but same was rejected---Contention of petitioners was that impugned order was passed at their back without any opportunity of hearing---Validity---Personal bias against the petitioners floated on the surface of record with regard to manner in which the impugned order was passed---Exchange of hot words between the Presiding Officer and counsel present in the Court took place a day prior to the impugned order---Bias on behalf of Election Tribunal reflected in the manner in which impugned order was passed and observations made in the earlier order in the same case---Bias was linked with principle of natural justice i.e. audi alteram partem (hear the other side)---Arguments/stances of respondents had been fully incorporated in the impugned order in the absence of petitioners---Article 10-A of the Constitution protected the right of a party for free and fair opportunity of hearing---Elements of bias and partiality existed in the proceedings before the Election Tribunal High Court observed that application of petitioners for dismissal of election petition should be deemed to be pending before the Election Tribunal who should decide the same afresh on merits---Constitutional petition was allowed accordingly.

Asif Ali Zardari's case PLD 2001 SC 568 rel.

(b) Constitution of Pakistan---

----Art. 10-A---Fair trial---Scope---Article 10-A of the Constitution protects the right of a party for free and fair opportunity of hearing.

Muhammad Abbas Azeem for Petitioners.

Muhammad Bashir Bhatti for Respondents.

2018 C L C 176

[Lahore]

Before Shahid Waheed, J

GHULAM MUHAMMAD----Petitioner

Versus

SECRETARY HOUSING, URBAN DEVELOPMENT PUBLIC HEALTH ENGINEERING DEPARTMENT OF PUNJAB and 3 others----Respondents

W.P. No.15807 of 2016, heard on 13th September, 2017.

(a) Constitution of Pakistan---

----Arts. 199, 9, 10-A, 23, 25 & 201---Allotment of plot, cancellation of--- Show-cause notice---Requirement---Non-issuance of show-cause notice--- Effect---Order without reasons--- Scope--- Constitutional petition--- Maintainability--- Findings of fact by second appellate authority at variance with first appellate authority---Effect---Allotment of plot was cancelled due to non-fulfilment of conditions by the allottee---Contention of petitioner was that no show-cause notice was issued---Validity---If findings of fact by second appellate authority was at variance with that of first appellate authority then former would prevail---Findings of second appellate authority were immune from interference in constitutional petition if same were substantiated by evidence on record and supported by reasoning---If findings of second appellate authority could not be supported by evidence on record or the Authority had failed to take into account a material evidence on record or if it did not record a basis for differing from the findings of first appellate authority or was otherwise found to be arbitrary, then the same could be set aside in constitutional petition---First appellate authority set aside the order for cancellation of allotment which was made without issuing show-cause notice---Second appellate authority was bound to address all the issues of law and facts and decide the matter by giving reasoning---High Court had issued directions in the earlier round of litigation which were binding on the authorities---Authorities had not only disregarded the said directions but also passed the impugned order without appraising the record/evidence which was in excess of jurisdiction---Petitioner could not be refused relief by throwing him again on the mercy of authorities by remanding the case---Authorities were required to issue notice calling upon the petitioner to show-cause as to why his allotment was not cancelled---Show-cause notice must state the act complained of attracting adverse action to be taken, source of power under which said action was proposed and it must prescribe the date, time and place of hearing and period within which reply to the show-cause notice was to be filed---Show-cause notice issued to the petitioner did not contain the date, time and place of hearing which was an inadequate notice---Notice issued to the petitioner was received back to the authorities as undelivered---Authorities were required to effect of service of notice through publication in the local press in circumstances---No such notice was effected on the petitioner---Cancellation of allotment of plot could not be held to be valid as being violative of principles of natural justice---Authorities were not only required to record reasons or the cancellation of allotment but also to supply copy of said order to the petitioner---Authorities had only recorded 'issue cancellation order' without any reasons---Secretary Housing, Provincial Government, was final authority on the administrative side and was bound to check such malpractices and maladministration---Secretary Housing had failed to discharge his duty and he did not follow the directions of High Court---Impugned order was result of mis-reading and non-reading of record which was a misconduct---Non-completion of building within a period of four years could not be made basis for cancellation of allotment---Petitioner had been discriminated which was not permissible under Art.25 of the Constitution---Discrimination was a blemish which would not only eclipse the integrity of public Authority but also vitiate its action---Impugned order passed by the authorities being violative of Fundamental Right guaranteed under Art.25 of the Constitution was not valid---Valuable right having accrued in favour of the petitioner as he had not only paid the entire outstanding dues along with penalty but had also raised construction on the suit plot---Valuable right could not be allowed to be trampled on mere technicalities of law---Competent authority was directed by the High Court to initiate disciplinary proceedings against the delinquent officers and pay compensation as costs/exemplary damages to the petitioner---Order for cancellation of allotment was set aside---Constitutional petition was allowed in circumstances.

Balakotiah v. Union of India and others AIR 1958 SC 232; The Chairman East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway, Laksam PLD 1966 SC 725 and Muhammad Siddique v. Divisional Forest Officer, Okara 2014 PLC (C.S.) 253 ref.

Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 and Ambika Devi v. State of Bihar and others AIR 1988 Pat 258 rel.

(b) Constitution of Pakistan---

----Art. 10-A---Every person was entitled to a fair trial and due process for determination of his civil rights.

Muhammad Javed Umar for Petitioner.

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

2018 C L C 241

[Lahore (Multan Bench)]

Before Habib Ullah Amir, J

Mst. AILA NAWAZ----Petitioner

Versus

JUDGE FAMILY COURT, KHANEWAL and 2 others----Respondents

W.P. No.1216 of 2017, decided on 9th March, 2017.

Family Courts Act (XXXV of 1964)---

----Ss. 2(d), 5 & Sched.---Suit for recovery of dowry articles---Plaintiff impleaded her father-in-law as well as husband as defendants---Necessary and proper party in a family suit---Scope---Petitioner contended that her dowry articles were under the possession of both her husband and her father-in-law so Family Court had wrongly deleted the name of her father-in-law from the array of defendants---Husband contended that the suit for recovery of dowry articles was always inter se spouses and his father was not a proper party for the purpose---Validity---Section 2(d) of Family Courts Act, 1964, stipulated that 'party' would include any person whose presence as such was considered necessary for a proper decision of the dispute---Wife, in a suit for recovery of dowry articles was competent to file the suit not only against her husband but any other relative of the husband whose impleadment or addition as a party for comprehensive decision and effective enforcement of decree would be necessary---In the present case, petitioner/wife had specifically averred that her dowry articles and personal belongings were in possession of her husband and her father-in-law and prayed against both the defendants---Family Court by accepting the application of husband to delete the name of father-in-law had misinterpreted the law on the subject and being so had committed illegality---High Court set aside the order passed by Family Court by holding that father of husband was a necessary and proper party for adjudication of claim of plaintiff in respect to dowry articles---Constitutional petition was accepted.

Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591; Muhammad Anwar and another v. Additional District Judge, Lahore (Miss Uzma Akhtar Chughtai) and 2 others 2003 YLR 365 and Ayesha Bibi v. Muhammad Faisal and 2 others PLD 2014 Lah. 498 ref.

Zahid Lateef Rao for Petitioner.

2018 C L C 273

[Lahore]

Before Mudassir Khalid Abbasi, J

JAVED HASSAN----Petitioner

Versus

Mst. FARKHNDA YASMIN and others----Respondents

W.P. No.5828 of 2013, heard on 23rd May, 2017.

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

----S. 25---Petition for custody of minor daughter by father---Re-marriage of mother of minor daughter---Effect---Scope---Father alleged that living conditions of the mother were not appropriate for daughter---Welfare of the minor---Scope---Father had contended that in the wake of second marriage with a person alien to the daughter, custody of a grown up daughter with mother would affect her psychological well-being---Mother contended that plaintiff had also contracted second marriage and daughter would have to face cruelty of step-mother---Validity---Record revealed that father had laid much stress on re-marriage of the mother in his evidence whereas mother deposed that she was in service being educated and daughter was also studying, moreover, she had no children from her second marriage---Validity---Mere fact of re-marriage of a mother of the minor would not ipso facto disentitle her from retaining custody of minor---Evidence had shown that father was a labourer and an illiterate person whereas mother was an educated lady and Hafiza-e-Quran---Father had no permanent source of income while mother was getting fixed salary working in health department---Daughter was about 16 years of age and father had failed to produce any evidence before Trial Court from which it could be inferred that living conditions of minor with her mother were not favourable for the minor---No material could be brought on record which was adverse to the interest and welfare of the minor---Psychological and mental well-being of the minor was directly dependant on the love and affection imparted by a mother to her daughter---Father had failed to point out any illegality or infirmity in the impugned judgments---Constitutional petition was dismissed.

PLD 2000 Pesh. 23; 1998 MLD 1697; 1997 MLD 965 and Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 ref.

Malik Muhammad Zahid for Petitioner.

Abdul Rauf Farooqi for Respondents.

2018 C L C 292

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD KHAN----Petitioner

Versus

MUHAMMAD ABBAS and 15 others----Respondents

Civil Revision No.1386 of 2011, decided on 24th March, 2017.

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

----S. 172---Suit for declaration---Correction of entries in revenue record---Bar on jurisdiction of Civil Court---Scope---Application was moved to the Revenue Officer for correction of Revenue Record which was accepted---Plaintiff instituted suit against the order of Revenue Officer correcting mutation but same was dismissed concurrently---Validity---Excess land was entered in the impugned mutation by the Revenue Officer while implementing judgment and decree passed by the Civil Court---In the present case, only the entries of mutation were challenged and were sought to be incorporated in accordance with the judgment and decree passed in the earlier suit---When there was no controversy with regard to title of any of the party, jurisdiction would lie with the Revenue Court---Section 172(2), Punjab Land Revenue Act, 1967 barred jurisdiction of Civil Court in the matter---No illegality or irregularity had been committed by the Courts below while passing the impugned judgments and decrees---Revision was dismissed in circumstances.

Malik Muhammad Nawaz and others v. Malik Hameedullah and others PLJ 2001 Revenue 5 ref.

Sameen Khan and 4 others v. Haji Mir Zad and others 2002 CLC 754; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517 and Mst. Mumtaz Begum through Legal Heirs and others v. Muhammad Shafique and others PLD 2009 Lahore 418 distinguished.

Dilmir and others v. Member, Board of Revenue, Punjab, Lahore and 9 others PLD 1991 Lah. 314 and Dildar Ahmad and others v. Member (Judicial-III) BOR Punjab, Lahore and another 2013 SCMR 906 rel.

Taki Ahmad Khan for Petitioner.

2018 C L C 307

[Lahore (Multan Bench]

Before Ch. Muhammad Masood Jahangir, J

MUKHTAR AHMAD and 3 others----Petitioners

Versus

PROVINCE OF PUNJAB through District Collector, Sahiwal and others----Respondents

C.R. No.235-D of 2003, heard on 17th May, 2017.

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

----S. 30(2)---Transfer of Property Act (IV of 1882), S.41---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Cancellation of allotment---Non-framing of proper issues---Concurrent findings of facts by two courts below---Plaintiffs assailed order passed by revenue authorities revoking allotment of land in question---Trial Court as well as Lower Appellate Court concurrently dismissed suit and appeal filed by plaintiff---Plea raised by plaintiffs was that Trial Court omitted to frame proper issues with regard to protection provided under S.41 of Transfer of Property Act, 1882---Validity--- Plaintiffs did not press such issue before two courts below where protracted trial of suit was conducted---Trial Court was to settle issues as per pleadings of the parties and plaintiffs were also contributory towards such obligations who remained quiet---Entire pleadings were in knowledge of plaintiffs and they were under legal obligation to prove the same by production of best available evidence during trial of suit---Plaintiffs failed to lead inspiring evidence who for such lapse could blame themselves and not anybody else---Original allottee himself appeared before revenue authorities while claiming that he was already awarded land against his entitlement whereas, allotment of suit property was result of forgery and fraud---Neither any protection could be extended to subsequent purchaser of suit property nor a fraud could be perpetuated---Plaintiffs failed to pinpoint any misreading and non-reading of material evidence available on record to declare judgments and decrees passed by two courts below to be illegal, unlawful and without jurisdiction---High Court in exercise of its revisional jurisdiction declined to interfere in judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 (W.P.) Pesh. 81; Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 04; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Abdul Karim v. Haji Noor Badshah 2012 SCMR 212; Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Alhajj Shahzadi Mumtaz Jahan and 2 others v. Rana Akhtar Saeed and 13 others PLD 2000 Lah. 84; Muhammad Siddique v. Additional Settlement Commissioner and others 1993 CLC 1947; Muhammad Liaqat and 5 others v. Member Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953; Shahzadi Mumtaz Jehan v. Mst. Aqeela Parveen Ijaz and others 2001 CLC 1860; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Mst. Zulaikhan Bibi through L.Rs and others v. Mst. Roshan Jan and others 2011 SCMR 986 and Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862 ref.

Ch. Muhammad Riaz Jahania for Petitioners.

Mian Muhammad Siddique Kamyana for Respondent No.3.

Mubashar Latif Gill, A.A.G.

2018 C L C 342

[Lahore]

Before Abdul Rahman Aurangzeb, J

AMMAD ASLAM CHEEMA----Petitioner

Versus

TARIQ ALI SHEIKH and 2 others----Respondents

Writ Petition No. 37335 of 2015, decided on 7th April, 2017.

(a) Punjab Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(6) & 17---Execution petition for recovery of arrears of rent---Scope---Rent Controller passed order for payment of rent till decision of case but tenant did not comply with the said order---Rent Controller proceeded to accept the eviction petition---Landlord filed execution petition for recovery of arrears of rent but same was dismissed concurrently---Validity---Rent Controller had not finally determined the arrears of rent while passing the eviction order---Rent Controller was empowered to determine final amount of rent due from the tenant---Landlord was not dissatisfied by the eviction order and accepted the decision in toto without seeking any further remedy---Executing Court could not go beyond the decree---Decree of Rent Controller did not empower the executing court to become a civil court rather its status remained as persona designata---Decree must be executed in terms as it was derived---Rent Controller, in the present case, after passing the eviction order became functus officio and was precluded to add any other direction except the vacation of rented premises---Calculation of arrears of rent could not be treated as decree of Rent Controller to be implemented through executing Court for recovery of arrears of rent---Executing Court had no authority to recover arrears of rent---Impugned judgments passed by both the Courts below were well reasoned and had been passed in accordance with law---Constitutional petition was dismissed in circumstances.

Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate 1974 SCMR 504 and Tariq Ahmad Farooqi v. Additional District Judge, Lahore and another 2011 YLR 138 ref.

Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Khawaja Anwar Hassan v. Naveed Ahmad Chaudhry and 2 others PLD 2002 Lah. 355; Ghulam Rasool v. Said

Rasool and 2 others PLD 1990 Lah. 457 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

(b) Maxim---

----"A communi observentia non est recedendum"---Meaning.

Ch. Muhammad Amin Javed for Petitioner.

Ch. Muhammad Javaid Arshad for Respondent No.1.

2018 C L C 382

[Lahore]

Before Jawad Hassan, J

SITARA ASLAM----Petitioner

Versus

FAMILY JUDGE and others----Respondents

W.P. No.103773 of 2017, heard on 21st November, 2017.

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

----Ss. 12, 17 & 25---Custody of male minors---Second marriage of mother---Effect---Preferential right of father for custody of male minor--- Scope--- Welfare of minor--- Scope--- Mother/petitioner contended that two courts below had wrongly decreed custody of minors to the respondent/father as there was no substitute to mother's lap---Father/respondent contended that the minors were actually living with their maternal grandparents after second marriage of their real mother---Validity---Welfare of the minors to be determined while keeping in view their mental, intellectual, moral and spiritual well-being---Guardian Court had also to look into qualifications of parents, the age, gender, religion of the minor, the character and capacity of the proposed guardian and his/her nearness of kin to the minor as provided under S.17 of the Guardians and Wards Act, 1890---Welfare of the minor was to prevail and should be the supreme consideration for deciding the issue of her/his custody---Record revealed that as a consequence of suit for maintenance, the maintenance was being provided by the father during execution proceedings---Mother produced contradictory evidence pertaining to the education of the minors and two courts below had rightly observed that the mother who was living with her second husband was blessed with a daughter while said husband had also liability to other children from his first wife---Islamic Law mandated that father being natural guardian of minors had preferential right of custody especially when the minors were male and were above the age of seven years---In order to challenge the said preferential right of the father, the mother was bound to establish some exceptional circumstances which could lead the court to come to the conclusion that the welfare of the minors lay with the mother---Father, in the present case, was a young man of about 34 years and was doing a job but left his job and also by not contracting second marriage had devoted his life for his children---Father of the minors was living in city area in joint family system with the paternal grandparents of the minors, who could look after the minors well---Concurrent findings on fact recorded by both the courts below could not be interfered with by the High Court---No illegality or infirmity having been noticed---Constitutional petition was dismissed accordingly.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Mst. Ammara Waseem v. Syed Khawar Hussain and others 2011 SCMR 148; Khalid Mehmood v. Additional District Judge, Islamabad and others 2011 CLC 889; Mst. Zahida Kiani and another v. Capt. (Rtd.) Shahid Ali Khan 1993 SCMR 2303; Mst. Sharifan Bibi v. District Judge Bahawalpur and 2 others 1981 CLC 1835 and Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1243 ref.

Zahid Manzoor Awan for Petitioner.

Nazim Ali Awan for Respondents.

2018 C L C 415

[Lahore]

Before Shahid Karim, J

Malik MUHAMMAD SHAHID and another----Appellants

Versus

ELECTION TRIBUNAL, GUJRANWALA and others----Respondents

Election Appeal No.85359 of 2017, decided on 6th December, 2017.

(a) Punjab Local Governments (Conduct of Elections) Rules, 2013--

----Rr. 26(6) & 35(4)(c)---Punjab Local Government Act (XVIII of 2013), Ss.55, 56, 57(e) & 57(g)---Chairman and Vice-Chairman of Municipal Committee, election of---Ballot paper shown by voter to a polling agent---Secrecy of electoral process, infringement of---Respondents in their election petition had been able to prove that the act of the voter was in breach of secrecy of his vote---Entire act had been brought forth without any contradiction in the evidence of respondent's witnesses---Voter in question was not forthcoming with regard to the entire episode and his deposition was an amalgam of contradictions which could not be reconciled---Another eye-witness to the entire incident was the Presiding Officer who was less than truthful in his evidence---Presiding Officer contradicted himself by stating a different version in his cross-examination from the one which was brought forth in his report submitted in court---Despite clear evidence that the Presiding Officer had to rebuke the voter into folding his ballot paper, the Presiding Officer did not think it important enough to discard his ballot paper---Returning Officer admitted while appearing as a witness that he did not conduct any inquiry with regard to the incident although an application was promptly made to him, and he believed in toto the inquiry held by the Presiding Officer as well as the report made by him---Returning Officer had blatantly breached his duties by relying on the report of the Presiding Officer, since said report was biased and ought not to have been relied upon---Clearly, the officials were not aware of their duties under the law and in particular the duties cast by S.57(e) and (g) of the Punjab Local Government Act, 2013---Election Tribunal had rightly excluded the vote in question from the total count and declared respondents as Chairman and Vice-Chairman of Municipal Committee---Appeal was dismissed accordingly.

(b) Punjab Local Governments (Conduct of Elections) Rules, 2013---

----Rr. 35(4)(c)(ii) & 36(2)---Chairman and Vice-Chairman of Municipal Committee, election of---Ballot paper containing an ink-mark other than the official mark---Bona fides of Presiding Officer and Returning Officer---Section 35(4)(c) of Punjab Local Governments (Conduct of Elections) Rules, 2013, provided that the Presiding Officer was obliged to count the votes cast in favour of each contesting candidate and to exclude from the count the ballot papers which bore any writing or any mark other than an official mark---Such obligation was clearly not fulfilled by the Presiding Officer in the present case although an application was promptly made to the Presiding Officer which was transmitted to the Returning Officer---Where the voter was of the opinion or that the Presiding Officer thought that the ballot paper had been spoiled, the voter could have obtained another ballot paper and cast his vote by such a ballot paper and the Presiding Officer was to cancel the ballot paper returned to him---Voter, in the present case, did not apply for obtaining another ballot paper, therefore, the presumption would be that the said voter put a mark on the ballot paper deliberately and in order to identify his vote and did not at all consider it as a spoiled ballot paper---Prior to consolidating the result of the count, the Returning Officer too was obliged to examine the ballot paper---Record of present case did not show as to whether the Returning Officer on his part complied with such duty cast in terms of sub-rule (2) of R.36 of Punjab Local Governments (Conduct of Elections) Rules, 2013---Returning Officer merely asked for a report from the Presiding Officer and mechanically agreed with his conclusion that the ink-mark on the ballot paper was inadvertent---Presiding Officer tried to justify the act of casting of such a vote by putting the blame on the ink present on the thumb of the voter---Such conduct reflected on the bona fides of the Presiding Officer as well as the Returning Officer who were not required to offer any explanation and resort to a construction based on their whims but had to follow the letter of the law---Election Tribunal had rightly excluded the vote in question from the total count and declared respondents as Chairman and Vice-Chairman of Municipal Committee---Appeal was dismissed accordingly.

Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; Dr. Sher Afghan v. Aamar Hayat Khan and 2 others 1987 SCMR 1987; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713 and Sohail Akhtar Abbasi v. Syed Amir Ali Shah 2007 SCMR 18 ref.

(c) Punjab Local Governments (Conduct of Elections) Rules, 2013---

----R. 63(2)---Election petition---Maintainability---Parties impleaded---Election Commission and its officers impleaded as party in the election petition in breach of R.63(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Effect---Breach of the said rule was not visited with any penalty and, therefore, simply because the Election Commission or any of its officers had been made a party to the election petition would not render the election petition as incompetent and liable to be dismissed on such account.

(d) Punjab Local Governments (Conduct of Elections) Rules, 2013---

----Rr. 42(1)(c), 42(1)(d) & 42(2)---Ground for declaring election of returned candidate void---Corrupt or illegal practices---Interpretation of R.42(2)---Differences between Rr.42(1)(c) & (d) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 and how the same were to be reconciled with R.42(2)---Rule 42(1) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 delineated grounds for declaring election void while R.42(2) apparently created an exception---Said two Rules had to be reconciled---Rule 42(2) was relatable to R.42(1)(d) and that was the only way it could be reconciled in the scheme of R.42, as a whole---Rule 42(1)(c) dealt with a general situation where the election could be declared void because it had been procured or induced by corrupt or illegal practices---Candidate may or may not have been involved (and this was extraneous in respect of said provision)---More importantly, it may be that the element of mens rea or a deliberate attempt be completely missing in the whole act which constituted an illegality---Rule 42(1)(d) was a separate species of voidness and R.42 (2) merely elaborated upon the ground given in R.42(1)(d) which dealt with corrupt or illegal practice committed by the returned candidate or his election agent or any other person with the connivance of the candidate---Rule 42(2) merely said that the election shall not be declared void if another person committed the illegality or corrupt practice without the connivance of the candidate---Deliberate attempt on part of the other person may be apparent but that would not be sufficient to declare the election void---Crucial difference between Rr.42(1)(c) & 42(1)(d) was that in case of clause (c) the intention was not a relevant factor and it was enough if the election was induced by an illegality, pure and simple---Clause (d) on the other hand pre-supposed a deliberate act and an intention to commit the act.

Mubeen Uddin Qazi and Malik Muhammad Awais Khalid for Appellants.

Muhammad Ramzan Chaudhry and Anas Ghazi, for Respondents.

2018 C L C 468

[Lahore]

Before Jawad Hassan, J

IJAZ AHMAD MIRZA----Petitioner

Versus

CIVIL JUDGE and others----Respondents

W.P. No.53695 of 2017, decided on 30th November, 2017.

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

----S. 17---Ejectment petition---Compromise deed/agreement between landlord and tenant outside court---Scope---When a factual controversy had been settled between the parties through an agreement outside the court and the same had been given effect by an order of the court of competent jurisdiction, then the same could not be resiled subsequently and the parties were under a legal obligation to abide by the terms and conditions thereof.

Hasan Masud Malik v. Dr. Muhammad Iqbal and others 1995 SCMR 766 ref.

Azeem Akram for Petitioner.

2018 C L C 530

[Lahore]

Before Shahid Karim, J

MUNIR AHMAD----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

W.P. No.38449 of 2015, decided on 18th December, 2017.

(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007] ---

----Ss. 6(1), 6(2) & 9---Rules of Business, 1973, R.15(2)---Chairman of Pakistan Electronic Media Regulatory Authority ("PEMRA"), appointment of---Advertisement for the post and selection process---Non-transparency and non-objectivity---Eligibility and educational qualification criteria advertised for the post of Chairman PEMRA was subsequently watered down through a fresh advertisement, with ulterior motives, seemingly to accommodate the respondent (incumbent Chairman PEMRA)---In the earlier advertisement, the criteria of appointment was the guidelines laid down by the Supreme Court in different cases for appointments to regulatory bodies, but the subsequent advertisement provided that the selection was to be made in line with the Civil Establishment Code, 2007---Furthermore no record had been produced before the court which would shed any light on the respective academic qualifications of the candidates who appeared before the Selection Board and which were taken into consideration for the purposes of comparative analysis between the respondent and the other candidates---Record was lacking in any material particulars regarding the objective criteria followed by the Selection Board in order to show objectivity, transparency and due diligence---Composition of the Selection Board entirely consisted of members who were part of the Government and directly reported to the Prime Minister---None of the members of the Selection Board was specialized in the field of media or transmission---No proper summary was presented before the Prime Minister in terms of R.15(2) of the Rules of Business, 1973 to enable him to make the selection for the post in question---Salary package approved for the respondent was far in excess of the one which was mentioned in the advertisement and also much more than the salary due to an officer in the respondent's pay scale---No document was produced which would show that the salary package of respondent was approved by the President, as required under S.9 of the Pakistan Electronic Media Regulatory Authority Ordinance , 2002---High Court declared the appointment of the respondent as Chairman, PEMRA without lawful authority and of no legal effect and hence void ab initio and issued certain directions to undertake a fresh procedure to fill the vacant post and those of heads of departments and administrative agencies including regulatory authorities.

High Court recorded elaborate reasoning for allowing the Constitutional petition and issued directions for making the appointments of heads of departments and administration agencies including regulatory authorities; Appointments of heads of departments and administrative agencies including regulatory authorities must conform to settle principles of proprietary, transparency and objectivity. Regulators and supervisors needed a substantial degree of independence both from the government and the industry in order to fulfill their mandate and contribute to the achievement and preservation of financial and democratic stability. Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA) was not to speak the Government line, therefore, process of his appointment should be such as not to smack of exercising control in a manner that placed a premium on loyalty and ideological affinity. It should not be a tool of governmental control. Appointment process of the Chairman PEMRA must be consistent with the provisions and overall structure of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and the Constitution.

In the original advertisement for the post of Chairman PEMRA, qualification of the prospective candidates was mentioned as Masters from a Higher Education Commission (HEC) recognized university in the country or abroad. Another significant eligibility criteria was the requirement of the prospective candidates to provide written evidence of 15 years' experience in organization of governance, management, administration, financial management, media management and marketing. This had a direct nexus with the post of Chairman PEMRA which was primarily concerned with the administration and management affairs. Subsequent fresh advertisement for the post was issued wherein significant aspects of the previous advertisement were conspicuously absent. For example, the academic qualification was watered down from Masters degree to graduation in media sciences, business, management, finance, economics or law from HEC recognized local/foreign university. Prima facie, it seemed that there was no cause for the academic qualification to be lowered unless the appointing authority had a pre-disposition to appoint the respondent (incumbent Chairman PEMRA) and was therefore compelled to structure the advertisement in such a way that the respondent could be accommodated. The previous advertisement required written evidence of fifteen years' experience in organizations of governance, management, administration, media management and marketing etc. This condition in the subsequent advertisement was got varied in such a way that the advertisement merely required written evidence of twenty years' experience in media, business, management, finance, economics or law. Therefore, the more stringent requirement of experience in organizations of governance, media management etc. was toned down and the experience which was required to be furnished was merely with regard to any of the disciplines in general i.e. media, business, etc. Post of Chairman PEMRA by its very nature demanded administrative and managerial skills and for which evidence was to be furnished in terms of the earlier advertisement. That condition was suitably amended and the aspects of governance and media management were not provided in the subsequent advertisement which also pointed to an ulterior motive in amending the said condition in order to suit the qualifications of the respondent. There was no evidence that the respondent had any experience in matters of governance, media management, administration etc. but on the other hand he indeed had experience in media in general as he was a journalist previously and was associated with a television channel prior to his joining as Chairman PEMRA. The most significant change brought about in the subsequent advertisement was relating to the selection procedure and contrary to the earlier advertisement, the selection of the candidates was to be made in line with the prescribed procedure laid down by the Government in Civil Establishment Code-2007 (Volume-I, Chapter-II, Sr. Nos.140 and 141, pages 213-217). In the earlier advertisement, the criteria of appointment was the guidelines laid down by the Supreme Court to which no mention was made in the subsequent advertisement. Relevant provisions of the Civil Establishment Code did not lay down any guidelines or essential conditions to be considered for appointment to high posts of regulatory bodies of the Federal Government nor did it cater to the elements of independence and transparency which was at the heart of such appointment process.

Muhammad Yasin v. OGRA PLD 2012 SC 132 and Muhammad Ashraf Tiwana v. Federation 2013 SCMR 1139 ref.

Academic qualification for the appointment of Chairman PEMRA was laid down as graduation in the disciplines identified in the column relating to eligibility and qualification. It was not clear whether the respondent completed his graduation in either media sciences, business, management, finance, economics or law. It was common knowledge that graduation was not a professional degree and was a step towards acquiring a professional degree. A basic qualification was laid down for the appointment to the post of Chairman PEMRA who headed an authority which regulated the entire electronic media in the country and was tasked with the onerous responsibility of the standards of education and entertainment and to enlarge choice to the people in the media for news, current affairs etc. and to improve the access of the people to mass media at the local and community level.

Appointing authority and the respondent were extremely reluctant to produce the record of the selection process as directed by the High Court and went to the extent of stating that any such order requiring the production of the record was mala fide and beyond the authority of the High Court. Such position ran counter to the established principles of judicial review on administrative decisions on the ground that no procedural impropriety had crept in the entire process of selection of a candidate for a post such as the one in question. The least that was required of the respondent and appointing authority was to have produced the entire record by which it could be demonstrated without an iota of doubt that the process was fair and impartial and was in conformity with the settled principles for such appointments to be made. Number of candidates appeared for an interview, which was part of the selection process. At least four of the candidates possessed a doctorate degree and once again the record was lacking in respect of those candidates and the reasons which weighed with the Selection Board not to consider these candidates who had outstanding academic credentials. Likewise, the appointing authority had not produced any record relating to other candidates interviewed by the Selection Board so as to enable the Court to see that the discretion was properly exercised and an informed decision was made by the Selection Board. Thirty different questions were asked from candidates during the interview, therefore, a meticulous record should have been maintained with regard to each candidate and the answers to these questions furnished by that candidate. These answers must have been compared inter se by the Selection Board while making its decision to short-list the candidates. The analysis of those answers by the members of the Selection Board and the conclusions drawn on the basis of those answers had been conspicuously withheld by the appointing authority. The failure of the appointing authority to produce said record voluntarily and of its own motion before the High Court would give rise to an inference that the entire process was farcical and opaque and it was not certain that these questions were, in fact, put to the candidates and the decision was made by objectively making an assessment on the basis of the answers delivered by the candidates respectively. Record was lacking in any material particulars regarding the objective criteria followed by the Selection Board in order to show objectivity, transparency and due diligence.

No proper summary was presented before the Prime Minister to enable him to make the selection. Rule 15(2) of the Rules of Business, 1973 require a self-contained, concise and objective summary to be placed before the Prime Minster stating relevant facts and points for decision. No such summary was produced before the High Court.

Salary package ultimately approved for the respondent was far in excess of the one which was mentioned in the advertisement. Respondent relied on a caveat mentioned in the advertisement relating to the salary package being negotiable but the fact remained that in case of an exceptional salary package being approved in favour of a candidate, it had to be determined as a fact that the candidate possessed outstanding abilities and experience. No record has been produced on the basis of which it was concluded by the competent authority that the respondent possessed far more outstanding abilities and experience as compared to the other candidates deserving an inflated salary package which was beyond the normal salary package due to an officer in the respondent's scale. Competent authority under section 9 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was the President of Pakistan but no document was produced which would show that the salary package of respondent was approved by the President, therefore, it had to be presumed that there was no approval by the President which too offended the clear mandate of section 9 of the Ordinance.

Composition of the Selection Board entirely consisted of members who were part of the Government and directly reported to the Prime Minister. None of the members was an independent member who was not part of the Government or the Division which was the controlling Division of PEMRA and so could act in a bipartisan manner and who could exercise his discretion without any dictation or extraneous considerations. Also none of the members of the Selection Board was specialized in the field of media or transmission who could assess properly and with dexterity the merit and competence of the candidates who applied for the post. Setting up of such a Selection Board was a complete farce and a mockery of the entire process which was to follow. The natural inference to be drawn from the composition of such a Selection Board would be that the Board was likely to be influenced by the executive which had a bias in favour of a particular candidate and could exert pressure on the Selection Board to select a candidate more suited to the executive and the Government so as to further the political agenda of that Government in myriad of ways by exercising sway over the electronic media.

High Court declared the appointment of the respondent as Chairman, PEMRA without lawful authority and of no legal effect and hence void ab initio. As a consequence, the notification of his appointment was set aside and the position of Chairman, PEMRA was deemed to be vacant.

High Court directed that the position of Chairman PEMRA shall be filled and appointment made after adhering to a rigorous and transparent selection process undertaken with due diligence to accord with the standards and criteria indicated in the opinions of the Superior Courts; as well as the four-tier process for making appointments to key positions. Said four-tier process would be deemed to be incorporated in the Civil Establishment Code; that the concerned Division of the Federal Government shall, prior to a fresh appointment, draw up a set of rules to be followed in any future selection process; that the Selection Board shall comprise of bipartisan and independent nominees/members, and that a complete record of the appointment process shall be maintained and a comprehensive summary shall be submitted to the Prime Minister.

(b) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Judicial review of an appointment of a person to an administrative agency/regulatory body---Locus standi of petitioner---Scope---Jurisprudential connection was established between the citizens' rights guaranteed by the Constitution and the appointment process for posts to administrative agencies/ regulatory bodies---Power of judicial review conferred jurisdiction and authority on the court to control executive action in the matter of making appointments to public office against relevant statutory provisions---In seeking a relief under Art.199(1) (b)(ii) of the Constitution, there was no requirement that a party seeking (judicial) review must allege facts showing that he was himself adversely affected nor did it insulate executive action from judicial review, nor any public interest from being protected through the judicial process---Court would not seek proof of direct injury though it may enquire into the motives of the petitioner.

Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, (2014) 1 SCC 161 and Gorakhpur University Aff. College Teacher Asso. v State of U.P 2015 (9) ADJ 283 ref.

(c) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007] ---

----S. 6(1)---Constitution of Pakistan, Arts.19A & 199(1)(b)(ii)---Constitutional petition challenging appointment of Chairman Pakistan Electronic Media Regulatory Authority ("PEMRA")---Locus standi of petitioner---Legitimate expectation, doctrine of---Right to acquire information of the entire process (of selection of the Chairman PEMRA) could be culled out from Art.19A of the Constitution and thus enforced through the remedy of Art.199(1)(b)(ii) ---Petitioner was enforcing his right enshrined in Art.19A and thus had sufficient interest in maintaining present petition---Petitioner did not have to allege an injury in fact---Pakistan Electronic Media Regulatory Authority was a buffer between the Government and the right to information which impacted a vast majority of the people of the country, and its role as a gatekeeper would be seriously undermined if the appointment process under S.6 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was tainted and suffered from the vice of political intrusion---From the dicta of the superior courts read in conjunction with Art.19A of the Constitution, as also from the very nature of PEMRA as a regulator, procedural and substantive requirements on public authorities were imposed by the 'doctrine of legitimate expectation'---Appointment of the Chairman PEMRA generated a legitimate expectation and the public authority/ Executive was required to take the expectation into account---Constitutional petition was held to be maintainable accordingly.

Muhammad Yasin v. OGRA PLD 2012 SC 132 ref.

R. (on the application of Bibi) v Newhan LBC [2001] EWCA Civ 607 and [2002] 1 W.L.R 237).

Mohammad Azhar Siddique, Abdullah Malik, Munir Ahmad, Muhammad Iram, Mian Shabbir Asmail, S. Perveen Mughal, Muhammad Rizwan, Mafia Kausar and Adeel Hassan for Petitioners.

Ali Shah Gillani for Respondents Nos.2 and 4.

Bilal Ahmad for Respondent No.3.

Nadeem Mehmood Mian, Asstt. Attorney General for Respondents.

2018 C L C 641

[Lahore]

Before Ibad ur Rehman Lodhi, J

SHAHZADI UMERZADI TIWANA----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

W.P. No.7699 of 2013, decided on 15th December, 2017.

(a) Jurisdiction ---

----Consent of the parties could not confer jurisdiction (on any forum which otherwise did not have jurisdiction).

Shahul Hamid v. Tahir Ali 1980 SCMR 469; Sultan Ali v. Khushi Muhammad PLD 1983 SC 243 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 ref.

(b) Administration of justice---

----What was not permitted to be done directly could not be achieved through circumvention of law by indirect means.

Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Competency---Past and closed transaction---Acquisition of private water canal by the Provincial Government---Compensatory award---Decree was passed in favour of predecessor-in-interest of the petitioner by the High Court, but on account of amendments in the relevant Law, the Federal Court (former apex Court in Pakistan) proceeded to set-aside the said decree and held the predecessor-in-interest not entitled to any compensation---Relief which had been prayed for by the petitioner in the present constitutional petition, was in fact a closed and past transaction and the entitlement, which was being claimed by the petitioner, had already been refused to her forefathers on the same issue---Present constitutional petition was, thus, not competent and the same was dismissed.

Malik Noor Muhammad Awan for Petitioner.

Muhammad Hameed Khan Rai, Assistant Advocate-General Punjab for Respondents Nos.1 and 2.

Rana Muzaffar Hussain for Respondents Nos.3 to 8.

2018 C L C 685

[Lahore]

Before Atir Mahmood, J

FARKHANDA BIBI and others----Petitioners

Versus

MEHMOOD MUNIR and others----Respondents

Civil Revision No.3123 of 2015, decided on 15th November, 2017.

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

----S. 42---Suit for declaration---Limitation---Transaction in favour of minor---Benami transaction---Ingredients---Contention of plaintiffs was that their predecessor purchased suit property in the name of minor son being Benami and they were entitled for their legal shares---Suit was dismissed concurrently---Validity---Ingredients of Benami transaction were motive, consideration, possession of property and possession of original documents---Predecessor of parties after retirement from service purchased suit property with amount of pension and gratuity---When father of minor defendant purchased suit property from his own declared funds/money then there was no need to hide the same from any one or purchase the same in the name of minor son as a Benami transaction---Defendant at the time of sale deed was minor having no source of income and consideration amount was paid by the predecessor of the parties---Mere infancy or childhood of defendant did not make the sale transaction in his favour as Benami transaction---Possession of suit land was with the defendant---Plaintiffs could not discharge the onus to prove that impugned transaction was Benami transaction---Suit property was knowingly and deliberately purchased by the predecessor of the parties in favour of his only son due to love and affection---Suit property was purchased in the year 1940 and predecessor of the parties remained alive till 1967---Predecessor in his lifetime neither made any effort to get the suit property in his name nor challenged the same before any appropriate forum---Defendant had alienated some land through mutation of gift in favour of her sisters on 12-03-1973---Plaintiffs were aware that suit property was in the name of defendant since 1973---Mother of plaintiffs in whose shoes they had stepped into was alive at that time and remained alive till 2000 but she never challenged the disputed transaction in her life time---Plaintiffs had challenged the disputed transaction after eight years of the death of their mother---Suit was barred by time in circumstances---No illegality was pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816; Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829; Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others 2009 SCMR 124; Muhammad Sher and another v. Muhammad Sher and others 1986 SCMR 1592 and Chuttal Khan Chachar v. Mst. Shahida Rani and another 2009 CLC 324 ref.

Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 rel.

(b) Benami transaction---

----Ingredients---Ingredients of Benami transaction were motive, consideration, possession of property and possession of original documents. [p. 689] A

Ahmad Waheed Khan, Ali Masood Hayat and Muslim Abbas for Petitioners.

Naveed Shahryar Sheikh, Ms.Humaira Bashir Chaudhury, Talat Farooq Sheikh and Ms. Ayesha Jabeen for Respondents.

2018 C L C 702

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUBASHIR NADEEM----Petitioner

Versus

MEMBER (JUDICIAL-III), BOARD OF REVENUE PUNJAB, LAHORE and 3 others ----Respondents

W.P. No.317 of 2010, heard on 2nd October, 2017.

Punjab Land Revenue Rules, 1968---

----Rr. 17 & 19---Constitution of Pakistan, Arts.4, 25, 27 & 36---Lambardar, appointment of---Qualifications---Scope---Religion of the candidate---Effect---Performance as 'Sarbrah lambardar' as being son of permanent lambardar---Effect---Petitioner contended that respondent being member of the religious minority was not qualified to be permanent lambardar and that petitioner was more educated than the respondent---Respondent contended that he had performed well as 'Sarbrah lambardar' in the lifetime of his father who was permanent lambardar---Validity---Collector had appointed the respondent as permanent lambardar taking into consideration the fact that he had performed his duties as "Sarbrah lambardar" for a long period in accordance with law and was never defaulter in payment of land revenue and also owned 32 Kanals 9 Marlas land in the village, whereas the petitioner having no experience in the relevant field was not suitable---Member, Board of Revenue, had passed the order after affording full opportunity of hearing to the parties after considering merits and demerits of both the candidates for the post---Main thrust of the petitioner that he was more educated than the respondent and as such a better candidate for the post of lambardar, was misconceived, as R.17 of Punjab Land Revenue Rules, 1968 was silent on the subject---Rule 19 of Punjab Land Revenue Rules, 1968 stipulated that for appointment of lambardar the ground of proximity of relationship with late lambardar would be valid when there was nothing to indicate any reason which could have disqualified the successor lambardar to appointment and that under the said Rule power of appointment of lambardar was vested in hierarchy of the Revenue Officers created under Punjab Land Revenue Act, 1968 as revenue officers were better qualified to make a choice as against the court of general jurisdiction regarding appointment of lambardar---Mere fact that the respondent was member of minority community was not a disqualification under Punjab Land Revenue Rules, 1968 because lambardar was not required to perform any religious duty---Respondent's father had also successfully performed his job as permanent lambardar and the respondent in the life time of his father had performed duties as 'Sarbrah lambardar' and the residents of village had not objected to that---Constitution stipulated that there would be no discrimination between the citizens of the State mere on account of religion---Under Arts.4,25, 27 & 36 of the Constitution all citizens were equal before law and could not be discriminated on the basis of religion or sex and the Constitution had particularly guaranteed and safeguarded the legitimate rights and interests of minorities including their due representation in the Federal and Provincial services---No illegality or infirmity having been noticed in the impugned order passed by the Board of Revenue, constitutional petition was dismissed accordingly.

Bashir Ahmad v. Member (Judicial-III), Board of Revenue, Punjab, Lahore and others 2002 SCMR 1371; Muhammad Rafique v. Nazir Ahmed and others 2007 SCMR 287; Muhammad Saleem v. Member (Judicial-V), Board of Revenue, Punjab, Lahore and others 2007 MLD 349; Muhammad Jameel v. Member (Judicial-I), Board of Revenue, Punjab, Lahore and others 2004 YLR 440 and Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others PLD 1991 SC 531 ref.

Muhammad Masood Bilal for Petitioner.

Aziz-ur-Rehman Khan, Assistant Advocate General for Respondents Nos.1 to 3.

Mehr Haq Nawaz Humayun and Ch. Mudassar Sagheer for Respondent No.4.

2018 C L C 733

[Lahore]

Before Shahid Jamil Khan and Mudassir Khalid Abbasi, JJ

Messrs TANDLIANWALA SUGAR MILLS LTD.----Appellant

Versus

PROVINCE OF PUNJAB through Excise and Taxation and 5 others----Respondents

I.C.As. Nos.1219, 1220, 1224, 1225, 1221, 1223, 1227, 1222, 1226 and 1228 of 2016 in Writ Petitions Nos.18345, 18347, 18348, 18349, 18350, 18351 of 2012, 18378, 3913 of 2014 and 25447 of 2015, heard on 10th October, 2017.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3(2) & proviso---Punjab Excise Act (I of 1914), Ss.13 & 15---Intra-court appeal---Maintainability---Bar on filing of intra-court appeal in presence of remedy of appeal, revision or review---Word "proceedings" used in proviso to S. 3(2) of the Law Reforms Ordinance, 1972---Notifications/show-cause notices/demand notices under the Punjab Excise Act, 1914---Remedy of appeal and revision under the Punjab Excise Act, 1914---Scope---Question before the High Court was whether demand/show-cause notices under the Punjab Excise Act, 1914 fell within purview of the proceedings in which the law provided for an appeal, revision or review as envisaged in proviso to S.3(2) of the Law Reforms Ordinance, 1972---Held, that word "proceedings" would include every step taken towards further progress by which machinery of law was put into motion---Original order may be the order passed by the lowest officer or authority in the hierarchy; and test for S. 3(2) of the Law Reforms Ordinance, 1972 was whether original order passed in such proceedings was subject to appeal under the statute, irrespective of whether such appeal was availed or not---Original order was one under which statutory proceedings were commenced---Show-cause / demand notices under the Punjab Excise Act, 1914 were original orders and steps in proceedings, for which remedy under Ss. 14 & 15 of the Punjab Excise Act, 1914 were available, and therefore S. 3(2) of the Law Reforms Ordinance, 1972 would be attracted, and intra-court appeal would not be maintainable.

Deputy Commissioner/Administrator, District Council Attock and another v. Lawrencepur Woollen Textile Mills Ltd. 1999 SCMR 1357; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, NWFP and another PLD 1995 SC 66; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; Town Committee, Kot Abdul Malik District Sheikhpura through Administrator v. Province of Punjab through the Secretary, Local Government and Rural Development Department Punjab Lahore and another 2001 YLR 1032; Pakistan Telecommuni-cation Company Ltd. v. Federation of Pakistan 2016 PTD 1484 and Pakistan Oilfields Limited, Rawalpindi v. Province of Punjab, through Secretary Finance Department, Lahore and others 2010 SCMR 328 distinguished.

Pakistan Oilfields Limited, Rawalpindi v. Province of Punjab, through Secretary Finance Department, Lahore and others 2010 SCMR 328 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 rel.

(b) Appeal---

----Appeal was creation of a statute which remedy could not be taken away or made available except in accordance with the law providing for the same.

Ali Sibtain Fazli, Shazib Masud, Umer Tariq Gill, Hasham Ahmad Khan and Abad-ur-Rehman for Appellants.

Mrs. Asma Hamid, Addl. A.G. Punjab for Respondents.

Imran Aziz Khan, Deputy Attorney General for Pakistan for Respondents.

Ch. Imtiaz Elahi, Assistant Attorney General for Pakistan for Respondents.

Mian Abid Zia, Law Officer, Excise and Taxation Department.

2018 C L C 748

[Lahore (Rawalpindi Bench)]

Before Malik Shahzad Ahmad Khan, J

Mst. AMNA BI and 5 others----Petitioners

Versus

Mst. NASEEM AKHTAR----Respondent

Civil Revision No.646-D of 2012, heard on 16th June, 2017.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talbs, performance of---Attorney of Parda-Nasheen lady/plaintiff to adduce evidence on her behalf---Scope--- Execution of power-of-attorney after making of Talbs---Effect---Plea of plaintiff being a Parda-Nasheen lady was not taken in the plaint and power-of-attorney---Effect---Non-production of concerned postman as a witness---Effect---Defendants contended that Talb-i-Muwathibat was based on personal knowledge which evidence could not be adduced through an attorney so the two courts below had wrongly decreed the suit of the plaintiff---Validity---Plaintiff lady produced her husband as attorney who although mentioned the date and timing of making of Talb-i-Muwathibat by the plaintiff but did not mention the place of making of the said Talb---Plaintiff was duty bound to prove the specific date, time and place of making Talb-i-Muwathibat in order to establish that she made the Talbs in the same Majlis, before its dispersion, where she received information about the sale of property which she failed to do---Plaintiff though produced Registry Clerk and the Postmaster as witnesses but the concerned postman who stately effected the service of notice of Talb-i-Ishhad on the predecessor-in-interest of the defendants had not been produced in the witness box, which was fatal to the case of the plaintiff---Special power-of-attorney, showed that plaintiff had simply mentioned that she was a female, therefore, she had appointed her husband as her attorney to adduce evidence on her behalf and she had nowhere mentioned in the said document that she was Parda-Nasheen, sick or old lady---No such ground was taken by the plaintiff in her plaint, therefore, she could not lead evidence beyond her pleadings---Record revealed that special power-of-attorney was executed in favour of husband of the plaintiff after about two years from the making of Talbs---Husband of the plaintiff being not attorney of the plaintiff at the time of making of Talbs therefore, he could not prove the performance of Talbs, in the case, on the behalf of the plaintiff---High Court set aside impugned Judgment and decree passed by the two Courts below---Revision was accepted accordingly.

Mian Pir Muhammad and another v. Faqir Muhammad PLD -2007 SC 302; Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another 2000 SCMR 1172; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Salma and another v. Manzoor Hussain and another 1996 CLC 623; Mst. Salma Bibi v. Manzoor Hussain and others 1996 SCMR 1067; Mst. Waziran alias Faiq Elahi v. Abdul Sattar and others 1996 CLC 682; Muhammad Hanif v. Mst. Munawar Bi alias Munawar Noor1999 SCMR 2230; Falak Sher Khan and another v. Mir Qalam Khan and another 1995 CLC 1077 and Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193 ref.

Ms. Raheela Butt for Petitioners.

Nemo for Respondent.

2018 C L C 767

[Lahore]

Before Shujaat Ali Khan, J

NAGHMA RANI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRAT and 3 others----Respondents

W.P. No.9836 of 2016, decided on 27th September, 2017.

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

----S. 25---Custody of minors---Second marriage of the mother---Effect---Compromise between the parties---Relinquishment of right to custody---Scope---Growing age of minor daughter---Welfare of minor---Scope---Petitioner/mother contended that her second marriage had not disentitled her for the custody of minors and that as paternal grandmother of minors had died , there was no one to look after the minors---Respondent/father contended that owing to the compromise before Family Court, mother had waived off her right of custody of minors---Validity---When the mother contracted the second marriage with a person who did not fall within prohibitory degree with the minor, she lost her normal right of custody of minor---Record revealed that a compromise was produced before the Family Court which was signed by the mother who also got recorded her statement before the Court---Mother, after having made statement before the Court, was bound to abide by the same and any proceedings instituted by her were violation of the compromise---When the mother otherwise was not entitled for custody of minor, the question of compromise was inconsequential---Admittedly, minor daughter had crossed 8th year of her age and in view of her growing age her stay with second husband of her mother, who was alien to her, would be illegal---Minors, in the present case, were living with their father without any objection from any corner---Record established that in absence of father the minors were being looked after by real sister of their paternal grandmother who had no adverse interest against the minors---No illegality or infirmity having been noticed in the impugned judgment of Appellate Court, Constitutional petition was dismissed.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343 and Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200 ref.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533; Iftikhar Ahmad Chishti v. District Judge, Chakwal and others 2012 MLD 670; Muhammad Nazir v. Additional District Judge, Mianwali and another 2009 CLC 1010 and Ghulam Mustafa v. Mst. Manzooran Bibi and others 1994 MLD 1199 distinguished.

Faisal Toqeer Sial for Petitioner.

2018 C L C 771

[Lahore]

Before Jawad Hassan, J

SHAUQAT QAMAR----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

F.A.Os.Nos.111325, 111300, 111290, 111695, 1117703, 111690, 111683, 111684, 111342, 112879, 112898, 111283, 111311 and 111355 of 2017, heard on 8th February, 2018.

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

----Ss. 17, 24 & 29---Limitation Act( IX of 1908), S.5---Ejectment application---Wilful default---Expiry of tenancy---Effect---Appeal against order of Rent Controller---Maintainability---Limitation---Condonation of delay---Scope---Appellants /tenants contended that Rent Controller had wrongly passed eviction order against them as they had dispute over increase in monthly rent of rented premises---Landlords contended that tenants had never resorted in any way to pay them rent since long and their appeals were also time-barred ---Validity---Tenants, in the present case, had violated the provisions of law by not paying the rent to the landlords since September 2016 till filing of ejectment petition by landlords, and did not file any application before Rent Controller for depositing the rent, or brought the dispute of increase of rent before Rent Controller for deciding the same---Even otherwise, the tenancy agreement had expired in June 2016 and no fresh agreement was executed between the parties, therefore, tenants were liable to be evicted from the respective properties after the expiry of tenancy agreement---Appeal was maintainable only if the same be filed under S.24 of Cantonment Rent Restriction Act, 1963 within thirty days of the impugned order but appeal, in the present case, had been filed after expiry of 3 days allowed by S.24 of the Act with an application for condonation of delay under S.5 of Limitation Act, 1908---Since the time for filing appeal was provided in the special law i.e Cantonments Rent Restriction Act, 1963, and was not prescribed by Limitation Act, 1908, S.5 of Limitation Act, 1908 had no applicability to the matter---High Court maintained impugned eviction order passed by Rent Controller---Appeals were dismissed accordingly.

Government of Sindh and another v. Muhammad Shafi and others PLD 2015 SC 380; Nadeem Raza Abbasi v. Sardar Abu Bakar and 2 others 2016 CLC 1051; Muhammad Taufeeq v. Muhammad Nawaz and 2 others 2015 CLC 1187; Barkat Hussain v. Chief Administrator Auqaf and 5 others 2017 MLD 1885; Muhammad Afzal and others v. Fida Hussain and others 2017 CLC Note 51; Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300 and Province of Punjab through District Officer (Revenue) Bhakhar and another v. Noor Muhammad and 3 others 2016 MLD 1787 ref.

Nabeel Javed Kahloon for Appellant.

Asif Imran Awan and Ms. Sadia Malik, Assistant Attorney General for Respondents.

2018 C L C 784

[Lahore (Multan Bench)]

Before Shahid Karim, J

MUHAMMAD NAWAZ KHAN----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 5 others----Respondents

W.P. No.8675 of 2014, decided on 15th March, 2017.

Constitution of Pakistan---

----Arts. 62(1)(f) & 225---Member of National Assembly---Contradictions with regard to educational qualification in nomination papers---Personal motive and grudge---Effect---Honest and ameen---Declaration by the Member Election Commission---Scope---Nomination papers of respondent were accepted and he was declared as returned candidate---Contention of petitioner was that respondent had declared contradictory educational qualifications in his nomination papers submitted for different elections and Member, Election Commission had earlier held that he was not qualified to contest election---Validity---Declaration should have been made by a Court of law that a person was not sagacious, righteous, non-profligate, honest or ameen in order to hold that he was not qualified to be elected or chosen as member of Parliament---Disputed and controversial facts could only be resolved after awarding an opportunity to the parties to produce their witnesses---Respondent had mentioned his educational qualification in the general elections 2003 as religious studies and Matriculation and in 2005 as M.A. Arabic/Islamiyat---No contradiction existed in the educational qualification for the General Election, 2003 and the earlier one mentioned in the nomination papers for local government elections held in 2005---Criminal complaint was filed against respondent in which summons were issued by the Judicial Magistrate and he was declared as proclaimed offender---Mere fact that respondent was declared as proclaimed offender was sufficient to show that he did not have knowledge with regard to proceedings in the said complaint---No disqualification could be visited upon the respondent on said basis---Petitioner had personal bias and animosity against the respondent due to which present petition had been filed---Facts with regard to educational qualifications were known and on its basis his election to a local council had been voided by the Member Election Commission in 2005---Voters despite that returned him as their representative in the elections held thereafter---Will of voters could not be brushed under the carpet at the whim of a person---Constitutional petition was dismissed in circumstances.

Aziz. ur Rehman Ch. v. M. Nasir ud Din and others PLD 1965 SC 236; Dr. Kamal Husain v. Muhammad Siraj ul Islam PLD 1969 SC 42 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 rel.

Saghir Ahmad and Jamshed Hayat for Petitioner.

Rana Muhammad Asif Saeed, Tahir Mehmood, Syed Muhammad Ali Gillani and Malik Kashif Rafiq Rajwana for Respondents.

2018 C L C 801

[Lahore]

Before Jawad Hassan, J

MUHAMMAD AFZAL----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

W.P. No.39379 of 2016, heard on 12th June, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of maintenance allowance of wife---Execution proceedings---Modification of decree---Jurisdiction of Executing Court---Scope-Conditional order of the Court---Non-compliance---Effect---Petitioner/husband contended that Executing Court had no jurisdiction to go beyond the decree---Respondent/wife contended that Executing Court had rightly passed the order to pay her arrears of maintenance allowance---Validity---Appellate Court had passed the order of maintenance allowance subject to perform matrimonial obligations by wife---Decree could only be enforced and executed if the condition was fulfilled---Record revealed that wife had categorically denied to live with the petitioner and to perform her matrimonial obligations, therefore, Executing Court had to execute the decree in the manner the same had been passed---Petitioner, though had not challenged the judgment of Appellate Court but it did not give power to the Executing Court to go beyond the decree---High Court set aside impugned order of the executing Court being without jurisdiction---Constitutional petition was allowed accordingly.

Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122 ref.

Uzman Umar Khokhar for Petitioner.

Syed Samar Abbas Naqvi for Respondents.

2018 C L C 809

[Lahore]

Before Ayesha A. Malik, J

Syed KALEEM UR REHMAN and others----Petitioners

Versus

SECRETARY COOPERATIVES, GOVERNMENT OF PUNJAB and others----Respondents

W.Ps. Nos.156887, 154849 and 160181 of 2018, heard on 15th February, 2018.

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

----Ss. 17(b) & 64(a)---Bylaws of the Cooperative Model Town Society (1962) Limited, Lahore, Clause 13(i)&(ii)---Election of Co-operative Society---Election Sub-committee, powers of---Termination of membership---Scope---Petitioners were members of Cooperative Model Town Society and their grievance was against Election Sub-Committee of the Society which terminated their membership during scrutiny of voter list prepared for elections of the society---Validity---Election Sub-Committee could not adjudicate upon qualifications of a member and order to terminate his membership---Election Sub-committee could not pass orders on objections filed against voter list stating that petitioners were not qualified to be members of the society in terms of clause 13(ii) of Bylaws of the Cooperative Model Town Society (1962) Limited, Lahore---In order to determine whether petitioners stood terminated from membership consequent to qualification provided by bylaw number 13(ii) of Bylaws of the Cooperative Model Town Society (1962) Limited, Lahore, matter was to be placed before general body/Managing Committee which had to hear the matter and pass an order whereafter, right of appeal was available to such person before Registrar of Cooperatives---In terms of election schedule, last date for filing objections was 23-01-2018 and objections were to be decided within 2 days; in such a situation where an order was passed deleting name of petitioners from voters' list because they were not qualified to be members, had left petitioners remediless as they were unable to appeal against the order of Election Sub-Committee within required time as per election schedule---High Court set aside order passed by Election Sub-Committee and directed that petitioners could proceed with nomination process and participate in election for Managing Committee of the society---Constitutional petition was allowed accordingly.

Muhammad Javaid Iqbal Qureshi for Petitioner (in W.P. No.156887 of 2018).

Saad Rasool for Petitioner (in W.P. 154849 of 2018).

Khalid Ishaq for Petitioner (in W.P. 160181 of 2018).

Iftikhar Ahmad Mian and Ch. M. Ejaz Jamal for Respondent Society.

Kh. Salaman Mahmood, AAG with Muazzam Ali Butt, Assistant Registrar (Housing-III) Lahore and Farrukh Hayat Pannu, Convener Election Sub-Committee in person.

2018 C L C 814

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD RAMZAN----Petitioner

Versus

MUHAMMAD BASHIR and another----Respondents

Civil Revision No.3287 of 2010, heard on 12th October, 2017.

Civil Procedure Code (V of 1908)---

----S. 115---Revision, filing of---Requirements---Petitioner had not appended the complete documentary evidence with the present revision petition---Petitioner was bound to append certified copies of all the documents available on the file of Trial Court with the revision petition---Petitioner had not appended with all the documents with the revision petitions which were produced in the Trial Court---Revision petition could not be allowed due to fatal defect in filing the same---Revision was dismissed being not maintainable in circumstances.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Noor and others v. Mst. Sattan through Legal Representatives and others PLD 2013 Lah. 30; Mehmood Ahmad and 12 others v. Aziz and 2 others 1997 CLC 1163 and Sher Muhammad v. Muhammadi and others 1981 Law Notes (N.U.C.) (S.C.) 214 ref.

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

Muhammad Ikram Sheikh for Petitioner.

Naveed Shehryar Sheikh and Ms. Unaiza Siddiqui for Respondents.

2018 C L C 836

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

SHABBIR AHMAD----Petitioner

Versus

CHAIRMAN, ARBITRATION COUNCIL and others----Respondents

W.P. No.2932 of 2016, decided on 2nd June, 2017.

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

----S. 9(1-A)---Suit for recovery of dower and maintenance of minors---Parties, earlier had approached the Chairman Arbitration Council for resolution of the matter---Family Court---Jurisdiction---Scope---Father contended that matter in issue was resolved before Arbitration Council and mother of minors having not availed the remedy against such order, order of the Chairman Arbitration Council had attained finality---Validity---Section 9 of Muslim Family Laws Ordinance, 1961 stipulated that the same would come into play on failure of husband to maintain his wife adequately or where there were more wives than one and husband failed to maintain them equitably, the wife, or all or any of the wives could, in addition to seeking any other legal remedy available, apply to the Chairman who would constitute an Arbitration Council to determine the matter and Arbitration Council, in pursuance thereof, could issue a certificate specifying the amount which would be paid as maintenance by the husband---Subsection (1-A) of S.9 of Muslim Family Laws Ordinance, 1961 authorised the mother or grandmother of the minor children to seek the same remedy---So remedy available under S.9 of Muslim Family Laws Ordinance, 1961 neither imposed any embargo on institution of suit as was the present one nor any clog on the powers of the Family Court to proceed with such suit---Proceedings instituted in terms of S.9 of the Muslim Family Laws Ordinance, 1961 could not erode the suit instituted before the Family Court under the provisions of the Family Courts Act, 1964---No illegality or material irregularity having been noticed in the judgment/order, constitutional petition was dismissed in limine.

Sheikh Akhtar Javed for Petitioner.

2018 C L C 860

[Lahore ]

Before Ali Akbar Qureshi, J

MUHAMMAD SHAFI TARAR----Petitioner

Versus

FEHMIDA YASMIN and others----Respondents

Civil Revision No.70291 of 2017, heard on 14th September, 2017.

Islamic law---

----Inheritance---Father being murderer of his son---Entitlement of inheritance of deceased son---Acquittal on the basis of compromise---Effect---Plaintiff/father contended that as he had been acquitted from the charge of murder of his son, he was entitled to his share of inheritance of the deceased son---Validity---Plaintiff had claimed that he fell into the definition of "Wali" and was entitled to inherit the property of the son killed by him---Record showed that the plaintiff and the sister of deceased entered into compromise at criminal appellate forum whereby the plaintiff agreed to pay an amount of Rs.5,00,000/- as diyat in instalments---First appellate court below had rightly reached to the conclusion, that according to the terms of compromise, the plaintiff was to be released subject to the payment of diyat amount and in such way one portion of punishment awarded to the plaintiff would be executed---Murderer or his progeny could not be allowed to benefit by crime of murder---Plaintiff or his progeny, who was convicted by a competent court of law for the offence of murdering his son was not entitled to anything from the legacy of the deceased---Conduct of the plaintiff showed his callousness and greed who wanted to snatch the only source of living from the children of his deceased son---Plaintiff had failed to prove his case, thus, there was hardly any reason for inference by the High Court with concurrent findings---No illegality or infirmity having been noticed in the impugned orders of the two courts below---Revision petition was dismissed accordingly.

Mst. Beguman and 2 others v. Saroo and another PLD 1964 (W.P.) Lah. 451; Syed Muhammad v. Nawaz Shah and others v. Amir Hussain Shah and others 1978 CLC 1712; Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others 1993 SCMR 1073; Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 ref.

Barrister Ali Noman Shah for Petitioner.

Nemo for Respondents.

2018 C L C 965

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

ABDUL GHANI---Petitioner

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY and others---Respondents

W.P. No. 2461 of 2018, decided on 25th April, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition filed against a Government University with non-statutory service rules---Maintainability---Such non-statutory rules could not be enforced by means of a Constitutional petition.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and M/o IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573 rel.

M. Sohail Iqbal Bhatti for Petitioner.

2018 C L C 994

[Lahore]

Before Muhammad Ameer Bhatti, J

Messrs EXPEDITOR INTERNATIONAL PAKISTAN (PVT.) LTD.---Petitioner

Versus

Messrs SITARA TEXTILE INDUSTRIES LTD. and 2 others---Respondents

Civil Revision No.28129 of 2017, decided on 13th November, 2017.

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

----O. IX, R. 13 & O. VII, R. 2---Limitation Act (IX of 1908), Art. 164---Money suit---Application for setting aside decree---Limitation--- Condonation of delay--- "Sufficient cause"--- Scope---Defendant after filing written statement did not appear and suit was ex-parte decreed---Contention of defendant was that his counsel did not inform him with regard to ex-parte proceedings and decree---Petition for setting aside of ex-parte decree was dismissed being time barred---Validity---Application for condonation of delay was to be considered with due care and caution---Petition for setting aside of ex-parte decree was moved after two years from passing the said decree and four years from ex-parte proceedings---Valuable right had accrued in favour of respondent-plaintiff as role of limitation could not be ignored---Petitioner-defendant should have applied to set aside the ex-parte decree within thirty days from the date of passing of ex-parte order or at the most from ex parte decree---Petitioner-defendant after joining the proceedings absented himself for a long period of more than four years---Petitioner-defendant was bound by the Court proceedings and he should have pursued the lis lodged against him---Applicant-defendant did not contact the counsel so as to know the stage and progress of the case---Petitioner-defendant was required to explain each and every day of his absence beyond thirty days in a justifiable manner---Defendant was not entitled to count limitation from the date "when he acquired knowledge" of ex-parte decree---Revision was dismissed in circumstances.

[Case-law referred]

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

----Art. 76---Secondary evidence, production of---Requirement---Fact regarding loss of original document was required to be proved before leading secondary evidence and by not doing so even if secondary evidence was produced then it would become valueless vitiating all the proceedings built on such secondary evidence.

(c) Administration of justice---

----Law helps vigilant and not the indolent.

Asim Hafeez for Petitioner.

Muhammad Umar Malik for Respondent No.1.

2018 C L C 1032

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

ZAHOOR AHMAD SHAH alias PHOOL SHAH and another----Petitioners

Versus

ELECTION TRIBUNAL, SAHIWAL DIVISION and 8 others----Respondents

W.P. No.18036 of 2016, heard on 9th June, 2017.

Punjab Local Government Act (XVIII of 2013)---

----S. 38---Punjab Local Government (Conduct of Elections) Rules, 2013, Rr. 63 & 68--- Election petition--- Impleading of new respondents---Amendment of election petition---Petitioners were returned candidates for the post of Chairman and Vice Chairman and their election was assailed by respondents---Election Tribunal allowed respondents to implead two new respondents who also contested elections whereas application filed by petitioners for dismissal of Election Petition for not impleading proper parties was dismissed---Validity---Election Tribunal was competent to allow amendment of petition subject to terms and conditions it had thought fit provided no new ground of challenge to election was sought to be added---Election Tribunal imposed cost of Rs.10000/- upon respondents for allowing them to make contesting candidates in question as respondents in election petition---Permission to amend election petition was discretionary with election Tribunal and such discretion had been exercised by it on the basis of material available before it---High Court in Constitutional jurisdiction did not ordinarily interfere in discretionary orders passed by Court/Tribunal of competent jurisdiction unless the same suffered from illegality, perversity or erroneous exercise of jurisdiction---High Court declined to interfere in the orders passed by Election Tribunal, as petitioners failed to point out any illegality, infirmity, perversity or erroneous exercise of jurisdiction---Constitution petition was dismissed in circumstances.

Haji Khawand Bux Ghulam Muhammad Jahejo v. Sharjeel Inam Memon and 23 others PLD 2016 Sindh 92; Jaleel Ahmed v. Election Commission of Pakistan through Chief Election Commissioner and 8 others 2017 YLR 557; Zia ur Rehman v. Syed Ahmed Hussain 2014 SCMR 2015 and Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 ref.

Rana Asif Saeed for Petitioner.

Mian Arshad Ali Mahar for Respondents Nos.2 and 3.

Ex parte Respondents Nos.4 to 9.

2018 C L C 1070

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

ALLAH BAKHSH through L.Rs.----Petitioner

Versus

Mst. BAKHTAWAR and 3 others----Respondents

Civil Revision No.286-D of 2016, heard on 19th September, 2017.

(a) Inheritance---

----Mutation---Relinquishment on behalf of minor---Void order, setting aside of---Limitation---Relinquishment of right of inheritance on behalf of minor---Effect---Contention of plaintiffs was that impugned mutation of inheritance was against facts and law and ineffective upon their rights while the defendants contended that suit filed by the plaintiffs was time barred---Suit was decreed concurrently---Validity---Plaintiff had succeeded to prove that at the time of opening of succession/attestation of impugned mutation she was minor---Plaintiff being successor-in-interest of deceased was entitled to inherit his legacy and was co-owner/co-sharer of suit land---Plaintiff was not competent to make any transaction or enter into an agreement or even to make consent for relinquishment of her right---Any transaction made by her or on her behalf against her interest was liable to be declared void ab initio and struck down---Question of limitation would not arise in case of setting aside a void order---Void order had no legal worth in the eye of law---Impugned mutation was void ab initio for having been fraudulently entered and attested on behalf of minor during her minority---Plaintiff along with her other sister was deprived from the revenue estate of deceased on the ground that they had relinquished their right of inheritance in favour of defendants---Plaintiff did not appear before the revenue officer at the time of attestation of impugned mutation---Even if mother or paternal uncle of plaintiff-minor had made any consenting statement on her behalf same had no binding effect upon the rights of plaintiff---Limitation would not run against impugned Mutation of inheritance being ineffective qua right of plaintiff---Impugned judgments and decrees did not suffer from mis-reading or non-reading of evidence---Revision was dismissed in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

(b) Limitation---

----Void order---Question of limitation would not arise in case of setting aside a void order.

Azeem ul Haq Pirzada and Rana Zulfiqar Ali for Petitioners.

Malik Muhammad Shahzed Fareed Langerial for Respondent No.1.

Respondents Nos.2 to 4 proceeded ex parte.

2018 C L C 1087

[Lahore]

Before Atir Mahmood, J

Sardar LIAQUAT ALI DOGAR and another---Appellants

Versus

Sardar AHMAD DIN DOGAR and others---Respondents

Election Appeal No.13 of 2017, decided on 23rd November, 2017.

Punjab Local Government Act (XVIII of 2013)---

----S. 27---Election for the seat of Chairman/Vice-Chairman Union Council--- Transfer of vote from one Union Council to another---Effect---Election petition was allowed on the ground that returned candidate had transferred his vote to the concerned Union Council fraudulently---Validity---Application Form for transfer of vote did not carry any cutting or overwriting---Said application was accepted by the concerned authority accordingly---Vote of returned candidate was transferred and included in the voter's list of concerned Union Council---No objection was raised to the nomination papers filed by the returned candidate---Election Tribunal could not look into the aspect of transfer of vote which was the matter to be dealt with before announcement of election schedule and not thereafter---Transfer of vote was not a ground for disqualification of a returned candidate who before announcement of election schedule got transferred his vote to a particular constituency---Election Tribunal had incorrectly and illegally disqualified the returned candidate from being Chairman of the Union Council---Impugned judgment was against law which was set aside and election petition was dismissed---Election appeal was allowed in circumstances.

Sardar Akbar Ali Dogar for Appellants.

Rana Muzaffar Hussain for Respondents.

2018 C L C 1115

[Lahore]

Before Atir Mahmood, J

NUSRAT ABBAS---Petitioner

Versus

NIGHAT PARVEEN and others---Respondents

Writ Petition No.7852 of 2014, decided on 27th December, 2017.

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

----S. 12(2) & O. VII, R. 11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Inheritance---Limitation---Withdrawal of suit without permission to file fresh one---Application under S.12(2), C.P.C.---Scope---Fraud committed by the defendants with the plaintiffs---Effect---Misrepresentation---Plaintiffs-respondents filed suit for their shares in the inheritance of their parents---Suit was withdrawn alleging that defendants assured that they would give due share to the plaintiffs out of court---Contention of plaintiffs was that defendants backed out from their promise and committed fraud with the plaintiffs---Defendants moved an application for rejection of petition filed under S.12(2), C.P.C. which was accepted by the Trial Court but Appellate Court dismissed the same---Validity---Suit was withdrawn by the plaintiffs through their counsel without permission to file fresh one---Court was to record evidence first and then decide the matter when there were disputed questions of facts including the allegations of fraud, fabrication and misrepresentation---Application under S.12(2), C.P.C. could be decided without framing of issues and recording of evidence when situation was not so---Provisions of S.12(2), C.P.C. did not speak about misrepresentation within or outside the Court---Court was bound to take cognizance when alleged misrepresentation took place---Petitioners-plaintiffs had claimed their share in the inheritance left by their parents---No limitation would run in the matter of inheritance having recurring cause of action---Party having its right in the inherited property could claim the same at any time---Application under S. 12(2), C.P.C. required its decision on merits after recording of evidence and could not be dismissed summarily---No illegality had been pointed out in the impugned order passed by the Appellate Court--- Constitutional petition was dismissed in circumstances.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 and Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551 ref.

Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40 and Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 distinguished.

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

----S. 12(2)---Application under S.12(2), C.P.C. was a substitution of fresh suit and same was to be decided like that of a suit.

(c) Islamic law---

----Inheritance---No limitation would run in the matter of inheritance.

(d) Words and Phrases---

----'Misrepresentation'---Connotation.

Black's Law Dictionary rel.

Nadeem-ud-Din Malik and Intazar Hussain Panjuth for Petitioner.

Awais Kamboh for Respondents.

2018 C L C 1146

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD HANIF---Appellant

Versus

SNGPL and others---Respondents

R.F.A. No.85348 of 2017, decided on 30th November, 2017.

(a) Words and phrases---

----'Assignment'---Meaning.

Black's Law Dictionary, Stroud's Judicial Dictionary of Words and Phrases Eighth Edition; Baby Krishnan Parfulla c. Pant Words and Phrases Second Edition; Legal Terms and Phrases 1947-2012 by M. Ilyas Khan Advocate Supreme Court of Pakistan 2013 Edition; Oxford Advanced Learner's Dictionary International Student's Edition and Chambers Concise Dictionary rel.

(b) Gas (Theft Control and Recovery) Act (XI of 2016)---

----S. 2(1)(b)---Suit for declaration and injunction---Correction of Natural Gas bill---"Consumer" and "assignee of consumer"---Scope---Tenant, locus standi of---Plaintiff was running a small hotel in a rented shop where a commercial Natural gas meter was installed and he had been regularly paying gas bills---Plaintiff was aggrieved of exorbitant amount shown in a bill which did not commensurate with his actual consumption---Trial Court dismissed the suit on grounds that plaintiff who was a tenant was not covered under definition of 'consumer' so he could not file suit---Validity---Meanings of word 'Assignee of consumer' and characteristic/authorization of limited certain power upon tenant under rent agreement were quite akin to each other and a tenant was not ousted from definition of 'consumer'---Plaintiff fell with definition of 'assignee of consumer'---Even consumer empowered tenant (assignee) through registered rent agreement as well as special power of attorney to challenge any disputed bill of Sui gas---Such documents were available before Trial Court but it did not apply its judicial consideration to such significant documents while deciding suit---Appeal was continuation of suit and landlord/owner of property had appointed plaintiff as special attorney and also rectified filing of suit and appeal by plaintiff on his oral consent/instructions and plaintiff was competent to file suit against defendants---Plaintiff was consumer and landlord had also authorized him to file suit against department but such aspects escaped from judicial consideration of Trial Court and misconstrued provisions/definitions of 'consumer' as prescribed in section 2(1)(b) of Gas (Theft Control and Recovery) Act, 2016-High Court set aside judgment and decree passed by Trial Court and remanded case for decision afresh---Appeal was allowed accordingly.

Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781 and Mst. Surraya Begum and others v. Mst. Susan Begum and others 1992 SCMR 652 rel.

(c) Words and phrases---

----'Successor-in-interest'---Meaning.

Black's Law Dictionary rel.

Pervez I. Mir for Appellant.

Umer Sharif for Respondents.

2018 C L C 1195

[Lahore]

Before Amin-ud-Din Khan, J

BAHADAR ALI---Appellant

Versus

DARAY KHAN through L.Rs. and another---Respondents

R.S.As. Nos.97 of 2009, heard on 2nd October, 2017.

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

----S. 12---Suit for specific performance of agreement to sell---Suit filed in the last days of permissible period of limitation---Withdrawal of claim of specific performance by one of the vendees---Effect---Agreement having no bifurcation of property---Scope---One of the vendees during pendency of the suit withdrew his claim of specific performance and his name from the array of plaintiffs was deleted---Suit was dismissed by the Trial Court but Appellate Court decreed the suit to the extent of other vendee-plaintiff---Validity---One of the marginal witnesses of agreement to sell had not been produced---Lease agreement was prepared between the parties and not the agreement to sell---Nothing was on record that plaintiff purchased any land and sale consideration was paid---Present suit was filed in the last days of permissible period of limitation of three years---When time was permitted for filing a suit under Limitation Act, 1908, that did not mean that plaintiff must wait till the last day of limitation to file the suit---Period of limitation was permissive one and its use as a device to get benefit from the transaction by filing and lodging any suit or claim in the end of permissive period of limitation would speak against the plaintiff if no valid reason was advanced---No valid reason having been given by the plaintiffs as to why they waited till the end of period of limitation---When property as well as consideration amount in favour of each vendee was not mentioned with bifurcation, suit was not further proceedable---Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed---Second appeal was allowed in circumstances.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Khalil-ur-Rehman and others v. Mst. Vakeelan and another PLD 2006 Kar. 267; Samar Ali through his Legal Heirs and 3 others v. Muhammad Malik and 4 others 1995 CLC 1751; Wali Jahania and Allah Dad v. Manak Ali, Lal and Murad PLD 1965 SC 651; Muhammad Ishaq and another v. Mst. Sufia Begum 1992 SCMR 1629; Haji Muhammad Sadiq v. Haji Syed Muhammad Sadiq Sharif and others 1997 SCMR 1994 and Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCMR 804 ref.

Abid Mehmood and others v. Noor Muhammad and others 2016 SCMR 1831 distiguished.

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

----Preamble---When time was permitted for filing a suit under Limitation Act, 1908, that did not mean that plaintiff must wait till the last day of limitation to file the suit---Period of limitation was permissive one and its use as a device to get benefit from the transaction by filing and lodging any suit or claim in the end of permissive period of limitation would speak against the plaintiff if no valid reason was advanced.

Rana Zia Abdul Rehman Abdul Waheed, M. Atif Ahsan and Nawab-ur-Rehman for Appellant.

Ahmad Waheed Khan and Mian Hameed-ud-Din Kasuri for Respondents.

2018 C L C 1227

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD MUNAWAR---Petitioner

Versus

ABDUL RAZAQ and 6 others---Respondents

Civil Revision No. 672-D of 2011, heard on 25th April 2017.

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

----Ss. 53 & 172---Civil Procedure Code (V of 1908), O. VIII, R. 5---Specific Relief Act (I of 1877), S. 42---Review of longstanding mutation by Revenue Officer---Jurisdiction---Mutation of inheritance of a person not dead but untraceable---Effect---Plaintiff contended that he, along with other defendants, was owner in possession being bona fide purchasers and contesting defendants had wrongly got mutation reviewed by District Officer (Revenue) who had no jurisdiction to review the same---Defendants contended that their predecessor-in-interest was not dead but untraceable at the time when mutations were got incorporated in with connivance of revenue staff---Validity---Exercise of jurisdiction by the District Officer (Revenue), was unwarranted and uncalled for because when a person questioned the vires of mutation or longstanding entries in the revenue record on the ground of fraud, he had to file a suit for declaration before the Civil Court as is required under S. 53 of Punjab Land Revenue Act, 1967---Revenue authorities were thus only competent to make the correction of any entry in a record-of-rights, periodical record or register of mutations, if the wrong entry was the outcome of any omission or inadvertence, as was envisaged in S. 172(2)(vi) of the Punjab Land Revenue Act, 1967---If a person considered himself aggrieved by any entry in a record of rights or in a periodical record and he was of the view that such entries were the product of fraud, which were even longstanding then his remedy lay in filing a civil suit as per mandate of S. 53 of Punjab Land Revenue Act, 1967---Plaintiff in his plaint though had specifically asserted that defendants sold the suit land after receipt of sale consideration by way of mutation and on the same day he transferred the same to the plaintiff and others through mutation but this fact was not specifically controverted by defendants in their written statement, rather it was pleaded that other defendant was minor at the relevant time and he was not competent to enter into any sale transaction---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 the defendant, would be taken to be admitted except against a person under disability as was provided under O. VIII, Rule 5, C.P.C.---Appellate Court, while maintaining the judgment of Trial Court committed a procedural defect, which amounted to a material irregularity on the part of the both the Courts below---High Court, in revision was competent to correct such error---Once it was established on the record that concurrent findings carried legal infirmities, it became the duty of court exercising revisional powers to curb and stifle such illegalities and material irregularities---High Court set aside Impugned judgment and decrees, the suit filed by the petitioner/plaintiff was decreed ---Revision petition was accepted accordingly.

Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Allah Rakha and another v. Member (Revenue), Board of Revenue, Punjab, Lahore and 22 others 2004 MLD 597; Malik Muhammad Khaqan v. Trustees of The Port of Karachi (KPT) and another 2008 SCMR 428 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 ref.

(b) Civil procedure code (v of 1908)---

----O. VIII, R. 5---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 the defendant, would be taken to be admitted except against a person under disability as was provided under O.VIII, R.5, C.P.C.

Sh. Zamir Hussain for Petitioner.

Saeed Yousaf Khan for Respondents Nos.1 and 2.

Nadeem Akhtar Bhatti, Assistant A.-G. for Respondents Nos.3 and 4.

Nemo for Respondents Nos. 5 to 7.

2018 C L C 1249

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

GULZADA KHAN and 2 others---Petitioners

Versus

TEHSIL MUNICIPAL ADMINISTRATION, JEHLUM through Administrator and 14 others---Respondents

W.P. No. 244 of 2012, decided on 2nd May 2017.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 11, Explanation iv, 12(2), 115 & O. VII, R. 11---Suit for declaration and injunction---Revision of plaint---Second suit on same cause of action---Constructive res judicata, principle of---Applicability---Plaintiffs assailed compromise effected between the parties on basis of which earlier suit was decreed---Trial Court rejected plaint---Validity---Suit instituted by plaintiffs assailing compromise in question was not maintainable on the principle of constructive res judicata as embodied in Explanation IV of S. 11, C.P.C.---Plaintiffs had questioned in the second suit validity of compromise recorded before Court on basis of undue influence and coercion---Court seized with the matter, after recording statement to such effect, had disposed of the suit---Held, subsequent suit was not proceedable in view of bar contained in S. 12(2), C.P.C.; for any person challenging validity of judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction could only seek his remedy by making application to court which passed final judgment, decree or order and not by a separate suit---Jurisdiction exercised by court below resulting into rejection of plaint was in accordance with law and there was neither any illegality nor material irregularity in the same---Plaintiffs had filed fallacious petition to prolong their illegal possession upon the property in question without any legal justification---High Court maintained order passed by Trial Court and imposed cost of Rs.50,000/- to plaintiffs---Revision was dismissed in circumstances.

Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262 ref.

Samad Mahmood for Petitioners

Raja Muhammad Farooq Raza and Nadeem Akhtar Bhatti, Assistant Advocate-General, Punjab for Respondents Nos.1 and 2.

2018 C L C 1301

[Lahore]

Before Abid Aziz Sheikh and Jawad Hassan, JJ

MUHAMMAD NAWAZISH ALI PIRZADA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Provincial Election Commissioner and 6 others---Respondents

W.P. No. 168260 of 2018, heard on 2nd March, 2018.

(a) Constitution of Pakistan---

----Part-II, Chapt. 1 [Arts. 8 - 28]---Fundamental Rights---Absconder---Scope---Person who is fugitive of law, does not have right of criminal appeal in the matter, in which he has been declared absconder unless he surrenders---Person who has been declared absconder cannot be held to have no right to file any appeal before any forum, in respect of matters which have no nexus and relation to proceedings in which, he was declared absconder---Fundamental Rights of a fugitive of law for their enforcement through Court of law are not suspended as it is not the intention of legislature nor the same is permissible under the Constitution.

(b) Elections Act (XXXIII of 2017)---

----Ss. 112, 113 & 156--- Constitution of Pakistan, Art. 225---Nomination papers, objection to---Non-filing of objections---Petitioner assailed acceptance of nomination papers of respondent for the election of Senate on the plea of his being declared as absconder by a Court in a criminal case---Plea raised by respondent was that petitioner did not file objections to his nomination papers at the time of scrutiny before Returning Officer, therefore, he was not aggrieved persons to assail such order---Validity---Election was to be challenged under Art. 225 of the Constitution, through election petition---When neither petitioner was disfranchised nor any of his right to contest election was affected, challenging of election process through Constitutional petition would circumvent the intention of legislation under Art. 225 of the Constitution---Interference in Constitutional petition was also against the scheme of Elections Act, 2017, where against acceptance of nomination papers, only objector could file appeal, whereas a candidate had right under S. 156 of Elections Act, 2017 to file election petition in post-election proceedings---Petitioner had no locus standi to file Constitutional petition as he was not an objector to the nomination papers of respondent before Returning Officer---Constitutional petition was dismissed in circumstances.

Abbas Hussain v. State 1992 SCMR 320; Abdul Ali v. Haji Bismillah 2002 SCMR 203; Writ Petition No. 168265 of 2018; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Aziz Masood v. Khawaja Ahmad Hassan and 5 others 2016 CLC 706; Faisal Mir v. Election Commission of Pakistan and others 2018 CLC 1; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158 Naushera Feroze and others 1994 SCMR 1299 and Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233 rel.

Gul Hassan and another v. The State PLD 1969 SC 69; Hayat Bakhsh and others v. The State PLD 1981 SC 265 and Ghulam Mustafa v. District Police Officer Kasur and 3 others PLD 2014 Lah. 82 distinguished.

Farooq Amjad Meer for Petitioner and Petitioner in person.

Salman Aslam Butt, Muhammad Shoaib Rashid, Muhammad Ahmed and Ahmed Raza Khalid for Respondent No.4.

Muhammad Zikria Sheikh, Deputy Attorney General, Mirza Nasar Ahmad, Deputy Attorney General, Imtiaz Ellahi, Assistant Attorney General, Muhammad Arshad Virk, Assistant Attorney General, Umer Hayat, Director Legal, Election Commission of Pakistan and Hafiz Adeel Ashraf, Assistant Law Officer, Election Commission of Pakistan for Respondents.

2018 C L C 1327

[Lahore]

Before Atir Mahmood, J

DEFENCE HOUSING AUTHORITY LAHORE through Secretary---Petitioner

Versus

Mst. AYESHA QAYYUM---Respondent

Civil Revision No. 22159 of 2017, heard on 16th October, 2017.

Limitation Act (IX of 1908)---

----Arts. 91, 92, 93 & 143---Civil Procedure Code (V of 1908), O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 8 & 39---Suit for possession and cancellation of instrument---Limitation---Recurring cause of action---Scope---Contention of defendant was that suit was hit by Arts. 91, 92 & 93 of Limitation Act, 1908---Application for rejection of plaint was dismissed by Trial Court---Validity---Articles 92 & 93 of Limitation Act, 1908 were applicable to the suits wherein forgery or attempt to enforce a forged document had been assailed---No question or allegation of forgery or attempt to enforce a forged instrument had been made in the present case---Article 91 of Limitation Act, 1908 pertained to the suits wherein cancellation or setting aside of an instrument had been sought but these suits should not have otherwise been provided for in Limitation Act, 1908 for the purpose of limitation---Non-payment of due amount or non-delivery of promised land/plots was a matter in the present case which would come within the ambit of recurring cause of action---Fresh cause of action would accrue to the plaintiff on each denial or non-response by the defendant to redress the grievance of plaintiff---Question of limitation was a mixed question of law and fact and same could not be decided while deciding an application under O. VII, R. 11, C.P.C.---Plaintiff had alleged breach of condition through the present suit for possession which would fall within the domain of Art. 143 of Limitation Act, 1908 wherein limitation of twelve years had been provided---Revision was dismissed in circumstances.

Tariq Masood for Petitioner.

Javaid Sultan Chaudhry for Respondent.

2018 C L C 1330

[Lahore]

Before Shams Mehmood Mirza and Shahid Karim, JJ

MUHAMMAD JAMSHED---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL and others---Respondents

W.P. No. 221897 of 2018, decided on 29th June, 2018.

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

----Ss. 99, 62, 14 &12---Constitution of Pakistan, Arts. 63(1)(n) & 62---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Scrutiny of nomination papers---Disqualification on basis of default in loan from Financial Institution---Determination of such default---Evidentiary value of entries in Credit Information Bureau of State Bank of Pakistan---Scope---Petitioner impugned order of Election Tribunal whereby his nomination papers were rejected on ground that he was in default of a loan from a Financial Institution and was therefore disqualified under Art. 63(1)(n) of the Constitution--- Validity--- Default under S. 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was only made when judgment and decree was passed under said Ordinance---In the present case, information relied upon by the Returning Officer was from the database maintained by Credit Information Bureau of the State Bank of Pakistan and such entries in credit reports had no evidentiary value and only served purpose of informing other financial institutions about credit history of a person---Financial Institution, in the present case, had filed suit for recovery against petitioner which was pending adjudication in which judgment and decree determining amount of default (if any) of petitioner had not been passed---Petitioner had acknowledged such finance facilities in nomination papers and stated therein that there was dispute in regard to the same and a suit was pending---High Court observed that in scrutiny of nomination papers, disqualification of a candidate on the basis of unliquidated claim of a financial institution ought not to be made ---High Court set aside impugned order and directed that nomination papers of petitioner be accepted---Constitutional petition was allowed, accordingly.

Shahibzada Faisal Ali Khan v. Federation of Pakistan and others 2017 CLD 463 rel.

Muhammad Ahmed Pansota for Petitioner.

Imran Ahmad Ranjha for Respondent/Election Commission of Pakistan.

2018 C L C 1350

[Lahore]

Before Jawad Hassan, J

ASIF ALI----Applicant

Versus

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

W.P. No.8131 of 2012, decided on 11th April, 2018.

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

----Ss. 9 & 10---Qanun-e-Shahadat (10 of 1984), Art.163---Special Oath---Acceptance or denial of claim on oath---Where an offer of Special Oath made by one party was accepted by the other party, none could be allowed to travel beyond the offer made.

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

----S.5 & Sched.---Dowry articles---Special Oath---Wife made offer of Special Oath only to the extent of claim of dowry articles which was accepted by the husband---Husband while recording his statement on Special Oath regarding claim of dowry articles travelled beyond the offer and introduced a new factum of gold ornaments alleging the same in possession of wife---Held, that voluntary portion introduced by the husband during his Special Oath was not the mandate of the offer made by the wife---Said portion could neither be read in favour of the husband nor against the wife---Constitutional petition was dismissed.

(c) Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976)---

----S.5---Dowry---Vesting of dowry in the bride---Gold ornaments were included in the bridal gifts and were exclusive property of wife---Section 5 of the Dowry and Bridal Gifts (Restriction) Act, 1976 clearly stated that the articles given as dowry and bridal gifts to the bride shall remain property of the bride.

Muhammad Arshad v. Additional District Judge and 2 others 2015 CLC 463; Mst. Mussarat Iqbal Niazi v. Judge Family Court and others 2013 CLC 276; Najeeb Ullah v. Mst. Makhdoom Akhtar and another 2009 YLR 1823; Mst. Shahnaz Begum v. Muhammad Shafi and others PLD 2004 Lah. 290 and Ghulam Rasool v. Judge, Family Court 1991 CLC 1696 ref.

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

---S.5, Sched. & S.9---Counter claim of gold ornaments by husband---Written statement---Scope---Neither S.9 nor Sched. of S.5 of Family Courts Act, 1964 envisaged that the husband/defendant could establish counter claim of gold ornaments in his written statement.

Ch. Sadaqat Ali for Petitioner.

2018 C L C 1369

[Lahore]

Before Shahid Jamil Khan, J

NOOR LPG CO. (PVT.) LIMITED---Petitioner

Versus

OIL & GAS DEVELOPMENT COMPANY LIMITED and others---Respondents

W.P. No.112909 of 2017, heard on 27th February, 2018.

Liquefied Petroleum Gas (Production and Distribution) Rules, 2001---

----R. 18 [as amended in 2017]---Liquefied Petroleum Gas (Production and Distribution) Policy, 2016, Ss. 3.1.1 & 3.4---Licensed Marketing Companies of Liquefied Petroleum Gas ("LPG") --- "Signature Bonus" being charged by Producing Companies of LPG like Oil & Gas Development Company Limited ("OGDCL") for awarding contract of lifting LPG from different gas fields; held, that "Signature Bonus" was a pre-condition for awarding contract of lifting LPG from different gas fields---Admittedly, said pre-condition was imposed without approval and before fixation of price by Oil and Gas Regulatory Authority (OGRA)---Amount under "Signature Bonus" was to be paid by the Marketing and Distribution Companies from their margin and because the margin of Marketing and Distribution Companies was now required to be regulated by OGRA, therefore, its (Signature Bonus) approval by OGRA was necessary---High Court transmitted present Constitutional petition to OGRA for necessary action and directed that the Federal Government should ensure that stakeholders/consumers were represented in the Committee, constituted under the Liquefied Petroleum Gas (Production and Distribution) Policy, 2016, for fixation of prices---Constitutional petitions were allowed accordingly.

Tez Gas (Private) Limited and others v. Oil and Gas Regulatory Authority and others PLD 2017 Lah. 111 distinguished.

Shahid Hamid, Azhar Siddique, Sardar Qasim Farooq, Muhammad Umer Qureshi, Muhammad Rizwan Gujjar, Syed Umair Abbas, Rana Zain Tahir, Muhammad Faisal Iqbal and S. Parveen Mughal for Petitioners.

Barrister Umair Majeed Malik for Respondent No.1., OGDCL (in W.P. Nos.112909, 112913 & 112917 of 2017).

Barrister Haroon Dugal for Respondent No.2/OGRA assisted by Mrs. Uzma Adil Khan, Chairperson, OGRA, Imran Ghazanfir SED, Rizwan-ul-Haq, ED (Legal), Imran Akhtar, JED, LPG, Aatif Sajjad, JED (Finance) and Aziz Ullah, DED, OPG.

Attiq-ur-Rehman Kiyani for Respondent No.1 (in W.P. No.166996 of 2018).

Jahanzaib Inam for Respondent No.1.

Nasar Ahmad and Mian Irfan Akram, Deputy Attorney Generals for Federation of Pakistan assisted by Nazir Malik, Director (Law), Petroleum Division.

2018 C L C 1384

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD MAJEED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PASRUR DISTRICT SIALKOT and 2 others----Respondents

Writ Petition No.15404 of 2010, heard on 26th September, 2017.

Civil Procedure Code (V of 1908)---

----Ss. 152 & 153---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Compromise decree---Execution petition---Sale deed was registered on the basis of decree of Court---Correction of error in the sale deed---Limitation---Scope---Sale deed was registered on the basis of decree passed by the court---Petition for correction of sale deed was moved which was accepted with the direction to the Revenue Official to delete Khasra number incorporated in the sale deed---Validity---No Khasra number of suit land was mentioned either in the agreement to sell or plaint and decree in favour of plaintiff---Agreement to sell was with regard to shops jointly owned by the defendants---Decree for specific performance of part of suit property was passed without specification of boundaries as well as mentioning the area of said property---Sale deed was registered without ensuring that it was in accordance with the judgment passed by the Trial Court---Limitation could not be a hurdle in the way of dispensation of justice when a wrong had been done by the Court---Petitioner for invoking constitutional jurisdiction was bound to show some jurisdictional defect committed by the courts below---No such defect had been pointed out in the orders passed by the courts below---Constitutional petition was dismissed in circumstances.

Baqar v. Muhammad Rafique and others 2003 SCMR 1401; Ministry of Inter Provincial Coordination v. Major (R) Ahmad Nadeem Sadal and others 2014 CLC 600; Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Muhammad Yousaf v. Manzoor Ahmad and another PLD 2006 Lah. 738; Mst. Sakko and others v. Mst. Sharifan 2011 YLR 2815; Avari Hotels Limited through Chairman and Chief Executive v. Investment Corporation of Pakistan through Managing Director/Principal Officer and 6 others 2002 CLC 1889 and Muhammad Anwar and 8 others v. Muhammad Ashraf PLD 2001 SC 209 ref.

Malik Ghulam Hussain Awan for Petitioner.

Tariq Mehmood Bhalli for Respondents.

2018 C L C 1422

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

JEHANZAIB HABIB and 7 others----Petitioners

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

W.P. No.127340 of 2017, decided on 15th February, 2018.

Local Government---

----Local Government Development Package and Khadim-e-Punjab Saaf Dehaat Program--- Policy, implementation of---Petitioners were members of local councils not affiliated with ruling party and their grievance was that development projects in their wards were selected without their recommendations---Validity---Tendency of ignoring elected representatives not affiliated with ruling party was against mandate of devolution, which was creating difficulties for general public in reaping benefits of democracy at grass root level---Non-associating petitioners with process of identification of development works of their respective wards and selecting such development works of their wards, which were identified and recommended by non-elected political figures either affiliated with ruling party or who were able to use their personal influence, was an attempt to fail elected councilors with mala fide intention in next round of elections or in any other democratic process where right of adult franchise was to be exercised---Such tendency was bound to undermine and frustrate entire local government system and could also be termed as clear-cut pre-poll rigging for forthcoming national and provincial assembly elections---High Court set aside tender notices relating to development works of wards of which petitioners were elected representatives---High Court directed authorities to invite fresh tenders in respect of development works of wards in question after consultation and obtaining recommendations of petitioners on basis of Terms of Reference---Constitutional petition was allowed in circumstances.

Aamir Saeed Rawn for Petitioner.

Imran Raza Chadhar for Respondents.

2018 C L C 1445

[Lahore (Rawalpindi Bench)]

Before Shams Mehmood Mirza and Khalid Mehmood Malik, JJ

Malik MUHAMMAD IJAZ----Appellant

Versus

PAKISTAN through Secretary Defense Islamabad and others----Respondents

R.F.A. No.153 of 2015, heard on 18th January, 2018.

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

----Arts. 117 & 120---Proof of fact---Onus to prove---Shifting of onus---Scope---Onus to prove an issue shifts, once prima facie evidence is led by plaintiff.

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

----S. 23---Compensation---Market value---Right of land owner---Award of fair market value is Fundamental Right of a party whose land has been acquired.

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

---- S.23---Constitution of Pakistan, Art. 24---Protection of property rights---Acquisition of land---Effect---Law under which compensation is to be paid must fix the amount of compensation; or specify the principles or the manner in which compensation is to be determined and given.

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

---- Ss.4 & 23---Acquisition of land---Compensation, payment of---Principle---Acquiring agency is required to pay compensation to landowner---Market value of land is distinct and separate from damage caused by what is often termed as severance or injurious affection and disturbance costs---Later does not constitute elements of value of land under Land Acquisition Act, 1894---Unlike compensation for the value of land acquired, compensation for severance, injurious affection and disturbance is not explicitly required to be assessed with reference to the date of issuance of notification under S.4 of Land Acquisition Act, 1894---Compensation to severance, injurious affection and disturbance is awarded in respect of matters which often arise or be quantified after acquisition of land---Section 23 of Land Acquisition Act, 1894, achieves aim of putting those affected in the same position as they were before acquisition by granting them market value of land and additional compensation for severance, injurious affection and disturbance.

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

----Ss. 18 & 23---Civil Procedure Code (V of 1908), O.XIV, R.1---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Acquisition of land---Compensation---Fair market value---Proof---Onus to prove---Necessary issue---Award of fair market value as compensation for acquired land is as much the duty and responsibility of acquiring agency as it is the right of landowner to receive the same---Putting the onus to receive fair market value of land on land owners who move Court by filing reference under S. 18 of Land Acquisition Act, 1894, is a wrong practice---Necessary issue which is required to be framed in all references applications under S. 18 of Land Acquisition Act, 1894, should be as to what is the fair market value of acquired land and or the compensation to be awarded to land owner and onus to prove such issue primarily should be on the Collector.

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

----Ss. 18 & 23---Acquisition of land---Determination of compensation---Court, duty of---Material taken into account by Collector for making his determination about compensation cannot be considered by Referee Court till such time it is duly proved before it---Referee Court does not act as an appellate Court charged with function of affirming or reversing findings of Collector which form the basis of award rather it has to apply its independent mind in arriving at the amount of compensation to be awarded to complaining party.

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

----Ss. 18, 23 & 54---Acquisition of land---Compensation---Fair market value---Determination---Consolidated evidence, recording of---Landowner was dissatisfied with award of compensation announced by Land Acquisition Collector, therefore, he preferred reference before Referee Court for enhancement of the same---Referee Court declined to interfere in the matter and maintained the award---Validity---Referee Court did not proceed on correct premise in rejecting the claim of landowner---Many persons preferred reference applications which were joined together and consolidated evidence was recorded---Number of documents including mutations and awards that were tendered in evidence by parties were on record which also included Aks Shjra, and the same was not discussed by Referee Court---Referee Court was not denuded of its powers to itself call in evidence, the revenue authorities to ascertain true location of land comprising in mutations relied on by landowner, which mutations otherwise pertained to the period recognized as relevant by S. 23 of Land Acquisition Act, 1894---High Court set aside judgment and decree passed against landowner and remanded the matter to Referee Court for decision afresh---Appeal was allowed accordingly.

Spencer v. Commonwealth [1907] HCA 82, (1907) 5 CLR 418; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Boland v. Yates Property Corporation Pty Ltd. [1999] HCA 64; Minister of State for the Army v. Parbury Henty and Company Pty Ltd (1945) 70 CLR 459; The Commonwealth v. Milledge (1953) 90 CLR 157; BHP Billiton Mitsui Coal Pty Ltd v. Isdale others [2015] QSC 107 and Bwllfa and Merthyr Dare Steam Collieries (1891) v. Pontypridd Waterworks Company [1903] AC 426 ref.

Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 and Land Acquisition Collector, G.S.C, N.T.D.C (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 rel.

2018 C L C 1482

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

AAMIR ABBAS and 2 others----Petitioners

Versus

YASMEEN HAIDER and 3 others----Respondents

Civil Revision No.310-D of 2017, decided on, 26th April, 2017.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. III, R. 4---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Allegation of fraud and mis-representation with connivance of the counsel---Statement of counsel on behalf of the party before the court---Presumption of truth--- Power of attorney---Delegation of powers to other counsel---Scope--- Dismissal of application without framing issue---Effect---Petitioners contended that counsel appointed by their father had not recorded statement on behalf of predecessor-in-interest of the petitioners but by some other counsel---Validity---Power of attorney executed by the predecessor-in-interest of the petitioners reflected that the counsel so appointed had the authority to further delegate his powers to any other counsel for prosecuting the appeal on behalf of his client which left no ambiguity that counsel who gave the statement was duly appointed counsel and his statement was binding upon the petitioners---Order III, R.4, C.P.C. stipulated that pleader duly appointed by the party could delegate his powers to another pleader to act on his behalf in the court---Petitioners were thus precluded to wriggle out of statement recorded by their duly appointed counsel before the court---Presumption of truth was attached to the judicial proceedings in terms of Art. 129(e) of the Qanun-e-Shahadat, 1984---Party was bound by the statement of its counsel, unless there was anything contrary in the power-of-attorney placing restriction on the authority of the counsel to compromise or abandon the claim on behalf of his client---Petitioners remained quiet for a considerable period and after the death of their father moved the application under S.12(2), C.P.C. which was clearly based on ulterior motive---District Court was justified to dismiss such frivolous application in limine---Decision of application under S. 12(2) of C.P.C. in a cursory manner without framing of issues was not prohibited under the law; it was dependent upon the judicial conscious of the court to frame issues or to proceed with such an application without framing of any issue and decide the same summarily---No hard and fast rule could be made for the said purpose---No infirmity was noticed in the procedure adopted by the court below to decide the application under S.12(2), C.P.C.---High Court observed that frivolous application was moved by the petitioners to stifle the process of the court and to undermine the sanctity attached to the judicial proceedings and imposed cost of Rs.50,000/- on the petitioners---Revision was dismissed accordingly.

Hassan Akhtar and others v. Azhar Hameed and others PLD 2010 SC 657; Afzal and others v. Abdul Ghani 2005 SCMR 946; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi 2002 SCMR 1761 and Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 ref.

2018 C L C 1562

[Lahore]

Before Shams Mehmood Mirza, J

QASIM ALI----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

W.P. No.1553 of 2015, decided on 3rd April, 2018.

Prize Bond Rules, 1999---

----R.15---Public Debt Act (XVIII of 1944), Ss.2(2)(a)(iv), 23 & 28---Prize bond---Time limitation of six years allowed for presenting prize bond for attaining price---"Prize bond" distinguished from "bearer bond"---Scope---Petitioner impugned R. 15 of the Prize Bond Rules, 1999 on the ground that per S.23 of the Public Debt Act, 1944, Government could not prescribe time-limitation for presentation of prize bonds to claim prize(s)---Validity---Prize bonds were different specie of bonds than bearer bonds, therefore, S. 23 of the Public Debt Act, 1944 was not applicable on the same---Prize bonds came within purview of section 2(2)(a)(iv) of the Public Debt Act, 1944 and Government could, in terms of S.28 of the Public Debt Act, 1944 validly frame rules in respect of its obligations on prize bonds---In the present case claim preferred by the petitioner, for collection of Prize money had become time-barred---Contention that R. 15 of the Prize Bonds Rules, 1999 was in violation of the Public Debt Act, 1944 was without merit---Constitutional petition was dismissed, in circumstances.

Director General National Savings Islamabad v. Balqees Begum and others PLD 2013 SC 174 rel.

Muqtadir Akhtar Shabbir for Petitioner.

Rehan Nawaz for Respondent/State Bank.

2018 C L C 1585

[Lahore]

Before Muhammad Ameer Bhatti and Muhammad Sajid Mehmood Sethi, JJ

MUHAMMAD RAMZAN----Petitioner

Versus

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

Writ Petition No.222355 of 2018, decided on 28th June, 2018.

Elections Act (XXXIII of 2017)---

----Ss.62, 63 & 64---Dual nationality, renunciation of---Effect---If a person surrendered his second nationality and produced the certificate of renunciation of citizenship on a date prior to filing of nomination papers, neither any penal consequences relating to disqualification were attracted nor he could be restrained from contesting the election.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 rel.

Saad Rasool, Aitzaz Aslam Chaudhry, Faiz Ullah Khan Niazi and Muhammad Ramzan Chaudhry for Petitioner.

Waqar Ahmad Rais, Assistant Attorney General for Pakistan.

Barrister Haris Azmat for Respondent No.6.

2018 C L C 1602

[Lahore]

Before Shahid Karim, J

EXPO LAHORE (PRIVATE) LIMITED----Petitioner

Versus

EXCISE AND TAXATION DEPARTMENT, GOVERNMENT OF THE PUNJAB and others----Respondents

W.P. No.11802 of 2015, decided on 5th June, 2018.

Punjab Urban Immovable Property Tax Act (V of 1958)---

----Ss. 4(a), 6 & 3---Constitution of Pakistan, Art. 165---Levy of property tax---Exemption from payment of property tax---Property owned by Federal Government indirectly through corporations/limited liability companies---Benefit of Art. 165 of the Constitution---Scope---Petitioner, which was a limited liability company owned by the Federal and Provincial Governments, impugned notices for payment of property tax on the ground that it was exempt from payment of such tax under S. 4(a) of the Punjab Urban Immovable Property Tax Act, 1958---Validity---Entire shareholding of the petitioner company vested with the Federal Government, and Board of Directors of the same were chaired by the Prime Minister, and therefore petitioner was a Federal Government institution and its property vested in the Federal Government---Carrying of functions of Federal Government through a limited liability corporation was modern phenomenon and had sound Constitutional basis---No line under the law, could be drawn between property held directly by Federal Government and that held through a private limited company; and such distinction between the two would be otiose---Benefit of Art. 165 of the Constitution was not merely available to property owned directly by Federal Government but also those owned through corporations---Impugned notices raising demand for payment of property tax were set aside---Constitutional petition was allowed, accordingly.

Union Council v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468 and Central Board of Revenue Islamabad and another v. WAPDA and another PLD 2014 SC 766 distinguished.

National Bank of Pakistan v. Executive District Officer (Revenue), Multan 2015 CLC 1618; Central Board of Revenue and another v. S.I.T.E PLD 1985 SC 97 and WAPDA v. Excise and Taxation Department 2017 PTD 517 rel.

Syed Shahab Qutab, Mian Tariq Hassan and Ch. Amjad Iqbal Sandhu for Petitioners.

Waqar A. Sheikh and Mian Tahir Maqsood for LDA.

Barrister Khalid Waheed, Addl. A.G. along with Abid Zia, Law Officer.

Tahir Mahmood Ahmad Khokhar, D.A.G. for Respondents.

2018 C L C 1624

[Lahore]

Before Muhammad Ameer Bhatti, J

SHAUKAT ALI----Appellant

Versus

MUHAMMAD RAZZAQ----Respondents

R.S.A. No.42904 of 2017, decided on 21st June, 2018.

(a) Specific Relief Act (I of 1878)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for specific performance of contract---Non-attestation of agreement to sell by two marginal witnesses---Effect---Agreement to sell---Requirements---Proof---Procedure---Suit was dismissed on the ground that plaintiff had not examined second marginal witness of the agreement---Validity---Document creating financial liability or obligation was to be attested by at least two witnesses---Party had to lead testimony of at least two attesting witnesses otherwise said document was to be excluded from consideration---Alleged agreement to sell had been attested by only one marginal witness---Other witness produced by the plaintiff could not be termed as marginal witness as agreement to sell was silent with regard to his signature as attesting witness---Mere signature of a person who had not signed the document in the capacity of attesting witness was not to be deemed to have fulfilled the required compliance of Arts. 17 & 79 of Qanun-e-Shahadat, 1984---Non-attestation of alleged agreement to sell by two marginal witnesses would exclude it from the term of document defined in Art.17 of Qanun-e-Shahadat, 1984---Suit filed by the plaintiff was not maintainable and plaint should have been rejected at its inception---Mandatory terms of agreement i.e. non-fixation of time for performance of contract, payment of balance sale consideration by vendee, mode of payment and delivery of possession of land by vendor had not been fulfilled---Description of land was also missing in the case which was fatal for enforcement of agreement to sell---Second appeal was dismissed in circumstances.

Fateh Muhammad v. Faqir Ullah 2001 CLC 801; Mst. Mumtaz Majeed and 4 others v. Muhammad Inayat 2016 CLC 780; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 and Qasim Ali v. Khadim Hussain through legal representatives and others PLD 2005 Lah. 654 rel.

(b) Pleadings---

----Party could not be allowed to prove its case beyond the scope of pleadings.

Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Verse 282 of Sura Al-Baqra of Holy Quran; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

(c) Administration of justice---

----When law had provided a particular thing to be done in a specific manner, that was to be done in that manner or it should not be done at all.

Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 rel.

Muhammad Yaqoob Sidho for Appellant.

Waqar Ahmad Hanjra for Respondent.

2018 C L C 1640

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. SURRAYA BIBI----Petitioner

Versus

IMTIAZ AHMAD and 3 others----Respondents

C.R. No.2715 of 2014, heard on 25th April, 2018.

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

----Ss.42, 12, 10 & 39---Suit for declaration, possession and cancellation of document---Sale of immovable property---Enforcement of sale---Essential conditions---In order to enforce a sale, it was sine qua non for a vendee to establish; firstly, that transaction was struck with a title-holder or a person having authority to create title; secondly, it was settled against consideration and thirdly, such sale was accompanied by delivery of possession---Mere execution and registration of a sale deed by itself did not furnish proof of ingredients of transaction---Whenever such document as well as transaction cited therein were questioned or denied, onus lay on the beneficiary to prove both of these.

(b) Pleadings---

----Party had to first assert facts and pleas in the pleadings and prove the same through evidence---Party was not allowed under law to improve its case beyond what was originally setup in the pleadings.

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

----Arts. 17 & 79---Two attesting witnesses---Requirement---Under Art. 17 of Qanun-e-Shahadat, 1984 it was imperative that a required number of persons must attest document being its marginal witnesses---Article 79 of the Qanun-e-Shahadat provided that such document could only be used as evidence when two attesting witnesses, at least, had been called for the purpose of proving its contents, execution and construction; nothing short of it could prove the same.

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

----Arts. 17 & 79---Two attesting witnesses---Requirement---Attestation of document by identifier---Scope---Any signatory of a document involving financial obligation could not be treated as its marginal witness, until he had signed it in such capacity---Construing the requirements of Arts. 17 and 79 of Qanun-e-Shahadat, 1984 as being procedural rather than substantive and equating the testimony of an identifier with that of attesting witness would not only defeat philosophy of the said provisions, but it would also be violative of its intent and purpose of Qanun-e-Shahadat, 1984.

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

----Ss.42, 12, 10 & 39---Suit for declaration, possession and cancellation of document---Sale of immovable property---Pardanashin lady---Independent advice, non-availability of---Effect---Where sale deed was executed on behalf of illiterate lady, the legal protection was to be extended to her, which was available to a pardanashin lady---For proving that independent advice was available to the lady, it was sine qua non for the beneficiaries to prove that not only independent advice was available with her, but she had settled bargain with conscious mind of transferring the property.

Taleh Bibi and others v. Mst. Maqsooda Bibi and another 1997 SCMR 459; Mian Allah Ditta through LRs v. Mst. Sakina Bibi and others 2013 SCMR 868; Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862 and Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 rel.

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

----Art. 85(5)---Registered document---Denial of execution and its validity---Presumption---Scope---Whenever execution or validity of a purportedly registered document was denied, such registered document would loose sanctity of being presumed to be correct---Lawful veracity of such document would depend upon quantum and quality of evidence to be produced to prove its lawful execution.

Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 rel.

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

----S.60---Certificate of registration---Registration proceedings--- Presumption---Scope---Under S. 60, Registration Act, 1908, only a restricted presumption was attached that registration proceedings were regularly and honestly carried out by the attesting officer--- Presumption attached to certificate of registration was rebuttable.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings---Misreading and non-reading of evidence---Interference by High Court---Scope---Normally High Court did not interfere with concurrent findings of fact recorded by two courts below, but when there was gross misreading and non-reading of evidence and patent violation of law was floating on the surface of concurrent findings, court could not shut its eyes and was under obligation to rectify the error by interference in illegal findings.

Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 and Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 rel.

Ghulam Farid Sanotra for Petitioner.

Sh. Sakhawat Ali for Respondents.

2018 C L C 1657

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Muhammad Ameer Bhatti, JJ

YOUDESTER CHOHAN----Petitioner

Versus

PROVINCIAL ELECTION COMMISSION PUNJAB and 2 others----Respondents

Writ Petitions Nos.222728 , 222729, 221903, 222727 and 222851 of 2018, decided on 29th June, 2018.

Elections Act (XXXIII of 2017)---

----S.104---Party lists for reserved seats---Object and purpose---Non-filing of such party lists---Delay, condition of---Scope---Returning Officer refused to receive the party lists of candidates in order of priority for seats reserved for women and non-Muslims on account of one day delay in submission of the same from the time stipulated---Validity---Section 104 of Elections Act, 2017 mandated that party lists of candidates in order of priority for seats reserved for women and non-Muslims were to be submitted with Returning Officer within the time specified for filing the nomination papers---Purpose of attaching the list issued by the party with the nomination papers was to confirm that he/she was a candidate of any political party---Subsection (4) of S. 104 of the Elections Act, 2017 postulated that if, at any time, the party list was exhausted the political party might submit a name for any vacancy which might occur on account of any reason---Without obtaining such list the Election Commission would not be in a position to nominate any candidate claiming to be related to any political party---Under S.104 reserved seats had been allocated proportionately according to the seats obtained in general elections by the political parties and those which came in the entitlement of any party were non-transferable---No penal consequences were provided for non-submission of party lists for reserved seats---Delay did not cause prejudice to any other candidate; on the other hand non-acceptance of the lists might affect the elections notwithstanding it would not be beneficial to any other party---High Court condoned the delay of one day.

Farrukh Gulzar Awan for Petitioner.

Muhammad Masood and Faisal Iqbal Awan for Petitioners in connected writ petitions.

Zafar Iqbal Hassan, Provincial Election Commissioner, Punjab, and Ch. Umar Hayat, Director (Legal), ECP.

2018 C L C 1664

[Lahore]

Before Shams Mehmood Mirza and Jawad Hassan, JJ

FAZAL MEHMOOD----Petitioner

Versus

GOVERNMENT OF PAKISTAN and others----Respondents

W.P. No.222868 of 2018, decided on 11th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss.62 & 63---Constitution of Pakistan, Art.62(1)(f)---Qualification for membership of Parliament (Majlis-e-Shoora)---Rejection of nomination papers---Scope---Nomination papers of candidate were rejected on the ground that in an earlier round of litigation Election Tribunal had declared him ineligible to contest the elections---Contention of respondents was that ineligibility of candidate was perpetual in nature and could not come to an end by efflux of time---Validity---Unless a declaration in positive language contemplated by Art.62(1)(f) of the Constitution was given by a Court, it could not be inferred that candidate was not sagacious, righteous, non-profligate, honest and ameen---Only a declaration under Art.62(1)(f) of the Constitution operated in perpetuality precluding a candidate from contesting any future elections---Constitutional petition was allowed, impugned order of Election Tribunal was set-aside, and direction was issued to Returning Officer to include the name of the candidate in the list of eligible candidates.

Sami Ullah Blaoch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405 distinguished.

Nemo for Petitioner.

Sh. Usman Karim-ud-Din for Respondent No.3.

2018 C L C 1689

[Lahore]

Before Mirza Viqas Rauf, J

MUHAMMAD HANIF----Petitioner

Versus

NEPRA (NATIONAL ELECTRIC POWER REGULATORY AUTHORITY) ISLAMABAD and 6 others----Respondents

W.P. No.17314 of 2015, heard on 17th November, 2015.

Electricity Act (IX of 1910)---

----S. 26---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997) S. 39---Limitation Act (IX of 1908), Arts. 120 & 181---Meter readings---Dispute as to electricity bill---Adjudication of disputes before Electric Inspector----Limitation period for filing of complaint---Scope---Question before the High Court required determination of the limitation period for filing a complaint before Electric Inspector in terms of the Electricity Act, 1910 and Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Validity---Held, under both the said laws, no period of limitation was prescribed however, Electric Inspector was bound to decide matter within period of ninety days , therefore it could be gathered from language of S. 26(6) of the Electricity Act, 1910 that a party aggrieved must approach the Electric Inspector within reasonable time---Article 120 of the Limitation Act, 1908 was not relevant for the purpose of filing complaint before the Electric Inspector as the same was applicable only to suits and at the most Art. 181 of the Limitation Act, 1908 could be invoked which was residuary provision and provided a limitation period of three years.

Ch. Muhammad Imran Bhatti for Petitioner.

Umar Sharif for Respondent No.1.

Shahid Mehmood Mehar for Respondents Nos.3 to 7.

2018 C L C 1699

[Lahore]

Before Atir Mahmood, J

Dr. FAROOQ ANWAR KHAWAJA----Petitioner

Versus

Mst. NAILA ANWAR KHAWAJA and 3 others----Respondents

Writ Petition No.38561 of 2016, decided on 20th December, 2017.

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

----Art.163---Civil Procedure Code (V of 1908), O.XXI, R.3--- Decision on oath---Principle---Plaintiff withdrew suit filed by him on the plea of compromise but later on filed application to restore the same and sought decision on oath by parties---Plea raised by plaintiff was that Lower Appellate Court did not decide application under Art. 163 of Qanun-e-Shahadat, 1984, filed by him---Validity---Only plaintiff and defendant could make statements on oath in support or rebuttal of claims made in suit---For being a plaintiff and a defendant, there should be a suit pending in court---Application to decide the matter on oath was filed before Lower Appellate Court under revisional jurisdiction---Appeal was continuation of suit but a revision petition was not---As when there was no suit, there was no plaintiff or defendant in revision petition---When there was no plaintiff or defendant, application under Art. 163 of Qanun-e-Shahadat, 1984, was not entertainable and the same merited dismissal---Even if application was not decided by Lower Appellate Court in exercise of revisional jurisdiction, it involved no consequences---High Court declined to interfere in concurrent findings of law and fact against plaintiff, as he could not point out any illegality therein---Petition was dismissed in circumstances.

Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCMR 374; Hadi Bux Memon through Attorney v. City District Government Karachi and 5 others PLD 2006 Kar. 16 and Hasnain Ahmed Shah v. Ijaz Ahmed Shah and another 2006 CLC 334 ref.

2018 C L C 1716

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi, J

MASOOD-UR-REHMAN and 2 others----Petitioners

Versus

EVACUEE TRUST PROPERTY BOARD through Chairman and 4 others----Respondents

Writ Petition No.185 of 2017, decided on 14th March, 2018.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 30---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, Chapter VI-A, Paras. 18-A, 18-B & 18-C---Evacuee Trust Property---Reconstruction and new construction---Property in question was Evacuee Trust property leased in favour of respondent and authorities had allowed a third party to reconstruct the property---Validity---Only existing tenant, was competent to apply for reconstruction of a building in its occupation---No subletting partly or wholly was allowed with regard to any property already in possession of lessee or tenant---Third party interest was only inducted, if Evacuee Trust Property Board had decided to develop a property and tenant of the property had not shown willingness to such proposal, then offer/tender could be invited through press or other media for development of the property---Act of authorities in entering into an agreement by an existing lessee with a third person, giving sanction to such arrangement, induction of a third person as a co-tenant in already exiting tenancy/lease, conversion of land use of property presently being used for Yatim Khana, Madrassa and mosque, into commercial premises were acts having no sanction---Constitutional petition was allowed accordingly.

Saeed Yousaf Khan for Petitioners.

Mudassar Ikram Chaudhry for Respondents Nos.1 to 3.

Muhammad Faisal Iftikhar Sheikh for Respondent No.4.

2018 C L C 1727

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

GHULAM HUSSAIN BHATTI----Petitioner

Versus

ELECTION TRIBUNAL and 4 others----Respondents

Election Appeal No.59900 of 2017, decided on 12th March, 2018.

Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 8 & 36 (5)---Election for the seat of Chairman and Vice-Chairman Union Council---Recounting of ballot papers by the Returning Officer on the direction of District Returning Officer---Scope---Contesting candidates for the seat of Chairman and Vice-Chairman moved application to the District Returning Officer for recounting of ballot papers which was accepted---Returning Officer conducted recounting on the direction of District Returning Officer and said candidates were declared as returned candidates---Election petition was accepted and recounting statement was declared as null and void---Validity---District Returning Officer had supervisory role in connection with the local government elections---Addressing application to the District Returning Officer instead of Returning Officer in no way could be treated against any provision of Punjab Local Government (Conduct of Elections) Rules, 2013---Process of recounting had not been conducted by the District Returning Officer but by the Returning Officer---Returning Officer, prior to recounting process, had also issued notice to all the contesting candidates of their presence to participate in the process of recounting---Returned candidates signed code of conduct of recounting and reposed their confidence on Returning Officer for the process of recounting by putting their signatures---Nothing was on record to show that prior to recounting process the Returning Officer had completed the process of consolidation of result of valid votes---Process of consolidation of results was completed when Form No. XIII was issued by the Returning Officer---Returning Officer had not violated any provision of Punjab Local Government (Conduct of Elections) Rules, 2013---Returning Officer had recounted valid votes in accordance with law---Findings of Election Tribunal that no application for recounting was made before the Returning Officer prior to the consolidation of result were found to be contrary to record---Impugned order was not sustainable in the eye of law which was set aside---Appeal was allowed in circumstances.

Rai Zameer-ul-Hassan for Petitioner.

Ahsan Bhoom for Respondent.

2018 C L C 1737

[Lahore (Multan Bench)]

Before Abdul Rahman Aurangzeb, J

KAREEM BAKHSH----Petitioner

Versus

ASLAM KHAN----Respondent

C.R. No.977 of 2017, heard on 1st August, 2017.

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

----O. XXXVII, Rr. 1, 2, 4, 7, O. IX, R. 13, O. XLIII, R. 1(d) & S.115---Limitation Act (IX of 1908), Arts. 159 & 164---Summary suit on negotiable instrument---Ex parte decree, setting aside of---Limitation---Condonation of delay---"Special circumstances" as mentioned in O. XXXVII, R.4, C.P.C.---Connotation---Setting aside of a decree passed in a suit under provisions of O.XXXVII, C.P.C.---Procedure---Revision---Maintainability---Applicant-defendant during trial of the suit disappeared and ex parte decree was passed against which application was moved but same was dismissed---Contention of applicant was that he had gone abroad and could not appear before the Trial Court---Validity---Applicant after acceptance of application for leave to appear and defend the suit filed his surety bond but before filing of written statement went abroad---Defendant-petitioner before going abroad could not manage any representation in the pending suit and due to his non-appearance suit was ex parte decreed---Decree could be set aside under O. XXXVII, R. 4, C.P.C. upon an application of defendant showing 'special circumstances' of his inability to appear and obtain leave within ten days---Case of petitioner did not fall under O. XXXVII, R. 4, C.P.C. as he had already appeared and granted permission for leave to appear and defend the suit---Reason putforth by the petitioner for non-appearance for pursuance of his case was not plausible explanation---Petitioner before proceeding abroad was bound to appoint attorney for pursuance of his case but he could not manage his representation at proper time---Defendant-applicant was aware of the continuity of proceedings in the Trial Court---Ex parte proceedings which culminated into ex parte judgment and decree were in accordance with law---Provisions of O. XXXVII, R. 7, C.P.C. were attracted in the present case as applicant had disappeared during pendency of proceedings---'Special circumstances' as envisaged in the present application were not applicable in the present case---Applicant had moved the present application after delay of more than two years and five months for which no plausible explanation had been put-forth---Petitioner was bound to explain the delay of each day but no such application for condonation of delay had been filed---Defendant was not entitled for any discretionary relief against valuable rights accrued to the respondent---Any final verdict rendered under O.XXXVII, R. 4, C.P.C. was to be considered an order passed within the purview of O. IX, R. 13, C.P.C.---Proceedings culminated under the provisions of O. IX, R. 13, C.P.C. were appealable---Revisional jurisdiction against such order was not available---Revision was not maintainable which was dismissed in circumstances.

Naseer Ahmad v. Muhammad Mushtaq 2006 MLD 1936; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Abdul Waheed v. Riasat Ali 2008 MLD 1684; Abdul Hameed v. Muhammad Giyas Sajid 2012 MLD 1736 and Muhammad Khalil Ahmad v. Shabbir Ahmad 2013 CLC 1121 rel.

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

----O. XXXVII, R. 4---Limitation Act (IX of 1908), Art. 159---Summary suit on the basis of negotiable instrument---Decree, setting aside of---Limitation---Decree might be set aside under O.XXXVII, R. 4, C.P.C. upon an application of defendant showing 'special circumstances' of his inability to appear and obtain leave within ten days.

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

----O. XXXVII, R. 4, O. IX, R. 13, O. XLIII, R. 1 (d) & S. 115---Ex-parte decree passed in suit under O. XXXVII, C.P.C., setting aside of---Revisional jurisdiction of High Court---Scope---Any final verdict rendered under O. XXXVII, R. 4, C.P.C. was to be considered an order passed within the purview of O. IX, R. 13, C.P.C.---Proceedings culminated under the provisions of O. IX, R. 13, C.P.C. were appealable---Revisional jurisdiction against such order was not available.

Muhammad Khalil Ahmad v. Shabbir Ahmad 2013 CLC 1121 rel.

Hafiz Muhammad Riaz for Petitioner.

Nemo for Respondent.

2018 C L C 1761

[Lahore]

Before Shahid Mubeen, J

ANSAR ABBAS----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

W.P. No.156035 of 2018, decided on 4th April, 2018.

Family Courts Act (XXXV of 1964)---

----S. 17-A---Suit for recovery of maintenance allowance of minors---Failure of the petitioner/father to pay interim maintenance allowance in compliance of Court's order---Effect---Family Court struck off the right of defense of father and decreed the maintenance allowance of minors as prayed for---Question was whether the provision of S.17-A of Family Courts Act, 1964 was mandatory or directory in nature---Petitioner/father contended that rate of maintenance allowance of minor was exorbitant in view of his financial status and that provision of S.17-A, Family Courts Act, 1964 was directory and not mandatory in nature---Validity---Held, mandatory direction was one which was couched in such language as to make violation of statute subject to penalty whether expressed or implied---Whenever relevant statute provided for imposition of penalty as consequence of its non-compliance, the statute was necessarily to be regarded as mandatory---Where no such penalty, however, was decipherable to be attached to the non-compliance, the enactment would be considered to be directory only, the substantial compliance with which was considered sufficient ---Similarly the use of word "shall" could be used merely to stress importance of such compliance---Record revealed that Family Court directed to pay interim maintenance allowance of minors but petitioner failed to comply the same for four months, so Family Court had rightly passed impugned order to the extent of striking off defense of the petitioner while applying the provision of S. 17-A of Family Courts Act, 1964---Respondent, however, had not mentioned the accurate and exact income of the petitioner and had only stated that petitioner had good financial status, while the petitioner while filing written statement had stated his monthly salary as Rs.15,000/- being army man---Monthly maintenance allowance of minors at the rate of Rs.5000/- appeared to be excessive in view of pleadings of the parties---Increase of maintenance allowance at the rate of 20% per annum was also excessive---High Court modified monthly maintenance allowance from Rs.5000/- to Rs.4000/- and annual increase from 20% to 10%---Constitutional petition was disposed accordingly.

Asmat Ullah Khan v. Federation of Pakistan through Secretary Establishment Division and another 2008 PLC (C.S.) 394; Equity Participation Fund v. Messrs Abbrasive Products Co. Limited and 4 others 2012 CLD 971; Mst. Ashifa Riaz Fatyana v. Mst. Nazia Raheel and 10 others 2011 CLC 48; Iftikhar Ahmad Shaikh v. Ch. Muhammad Din and 2 others PLD 1990 Lah. 461; Amir Bakhsh and others v. Allah Yar and others PLD 1974 SC 124 and Shahzad Yousaf and others v. Farzana Shahzad and others 2016 SCMR 2069 ref.

2018 C L C 1769

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Raja MUHAMMAD NASEER and another----Petitioners

Versus

GHULAM SHAH and another----Respondents

Civil Revision No.376-D of 2012, heard on 17th May, 2018.

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

----S. 55---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Time essence of contract---Determination of---Parties entered into an agreement to sell wherein it was stated that remaining sale consideration would be paid within two months and in case of failure the earnest money would be forfeited---Plaintiffs filed suit wherein defendant submitted that plaintiffs had failed to pay the remaining sale consideration within stipulated period---Plaintiffs did not pay the remaining sale consideration in time---Extension in time for deposit of remaining sale price was sought by the plaintiffs which was allowed---Suit was dismissed on the ground of limitation holding that time was the essence of contract---Validity---Intention of parties was to be gathered from their conduct---Defendant himself acquiesced from the penalty clause mentioned in the agreement to sell while granting further time to the plaintiffs to pay remaining sale consideration---Intention to make time an essence of contract must be expressed in unmistakable language---Mere mention of a specific period in an agreement for completion of sale would not ipso facto make the time as an essence of contract---Time should not be considered to be the essence of contract of sale of immovable property unless it was expressly intended by the parties and term of contract did not permit any other interpretation---Time was not an essence of agreement in the case---Plaintiffs had been non-suited on extraneous grounds---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence---Impugned judgments and decrees passed by the Courts below were set aside---Suit was decreed subject to payment of Rs. 2,44,000/- as additional charges due to price hike in addition to the amount which was yet to be paid by the plaintiffs to the defendant as remaining sale consideration within one month---If plaintiffs failed to pay the said amount within specified period the suit would be deemed to have been dismissed---Revision was allowed accordingly.

Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCMR 584; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 and Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286 rel.

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

---S. 115---Revisional jurisdiction of High Court---Scope.

Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 rel.

Maulvi Ejaz ul Haq for Petitioners.

Ajmal Raza Bhatti for Respondent No.1.

Nemo. for Respondent No.2.

2018 C L C 1782

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD FAISAL SULTAN and another----Petitioners

Versus

MUHAMMAD AJMAL through his Legal Heirs----Respondent

Civil Revision No.1453 of 2010, heard on 24th May, 2018.

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

----O. VI, R.4---Allegation of fraud---Plaintiff was duty bound to specifically plead the fraud in accordance with O.VI, R.4, C.P.C.

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

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

----Art.117---Document---Burden of proof, discharge of---Scope---Burden of proof was upon the party making claim---If a party had made a claim and failed to produce evidence to support the same, such claim would fail---When party challenging the validity of a document was able to discharge part of his onus, only then the burden to prove the validity of document shifted upon the beneficiary.

Liaqat Ali and another v. Col. (Retd.) Akhtar Sultan PLD 2014 Sindh 78 rel.

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

----Art.72---Civil Procedure Code (V of 1908), O.I, R.10---Contents of documents---Proof---Necessary parties, impleading of---Scope---Where the document had been challenged on the basis of connivance, fraud, forgery and misrepresentation then all the persons who participated in the preparation of the document were necessary parties---When a registered document was challenged the Registrar who registered the document in question (Provincial Government) was necessary party and thereafter the officials of the Provincial Government---Question of connivance with the defendants could not be proved without impleading the officials (Registrar) as well as witnesses and the identifier of the maker of the document at the time of registration of the document.

Abdul Qadus Rawal for Petitioners.

Ex-Parte for Respondent.

2018 C L C 1789

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

RAHIM BUKHSH----Petitioner

Versus

Mst. SHEHZADI and others----Respondents

Writ Petition No.2219 of 2018, decided on 22nd May, 2018.

Family Courts Act (XXXV of 1964)---

----Ss. 13 & 14---Execution proceedings---Objection petition---Appeal against dismissal of objection petition---Maintainability---Objection petitioner, being father of the judgment debtor (grandfather of minors), raised objections that decree was against his son so the execution petition to his extent was liable to be dismissed but executing Court dismissed his objection petition---Petitioner (father of judgment debtor) contended that Appellate Court had wrongly held his appeal against dismissal of objection petition as not maintainable---Validity---Section 14 of Family Courts Act, 1964 stipulated that decision given by the Family Court was appealable provided the said decision was not an interim order or decision of interlocutory nature---Order passed during the pendency of the suit could not be treated as an interim or interlocutory order if the said order had finally determined an issue---Executing Court, in the present case, while dismissing the objection petition filed by the petitioner, had finally determined the objections raised by him relating to the executability of decree against him and nothing else remained to be decided relating to the said objections---Said order could not be treated as an interlocutory order as the finality was attached to the same---Said order would amount to "a decision given" in terms of S. 14 of Family Courts Act, 1964 and appeal against the same would be available before the Appellate Court---Order passed by the Appellate Court, dismissing the appeal as not maintainable, was not in accordance with law---High Court set aside impugned order and remanded the matter to the Appellate Court to decide the matter afresh---Constitutional petition was allowed accordingly.

Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others 1996 CLC 94; Imtiaz Ahmad Khan v. Mst. Aqsa Manzoor and others PLD 2013 Lah 241; Rao Muhammad Owais Qarni v. Mst. Tauheed Aisha and others 1991 MLD 1097 and Mst. Naureen v. Ehsan Sabir, Family Judge, Faisalabad and 2 others 2010 CLR 110 ref.

Mian Tahir Iqbal for Petitioner.

2018 C L C 1811

[Lahore]

Before Amin-ud-Din Khan, J

RASHEED AHMAD (DECEASED) through L.Rs.----Petitioner

Versus

NAZAR HUSSAIN MALIK and another----Respondents

Civil Revision No.4900 of 2016, heard on 21st February, 2018.

Contract Act (IX of 1872)---

----Ss. 133, 134 & 135---Civil Procedure Code (V of 1908), O.VII, R.2 & O. XXI, R. 58---Money suit---Statement of surety that if decretal amount was not paid by the defendant, he would satisfy the same---Compromise between the parties without consent of surety---Compromise decree---Execution petition---Objection petition---Discharge of surety due to variation of agreement by the parties without consent of surety---Scope---Plaintiff and defendant made settlement through compromise that properties mentioned in the compromise deed would be transferred in favour of plaintiff---Plaintiff moved execution petition wherein surety submitted objection petition but same was dismissed---Contention of surety was that decree was passed with regard to the properties which were not subject matter of the suit and he was not bound to satisfy the decree---Validity---Decree was passed on the basis of compromise with regard to properties which were not subject matter of the suit---Said decree could not be executed against the surety---Surety never consented for satisfaction of decree regarding the properties which were not subject matter of the suit---Suit was not decided on merits---Parties had agreed that if properties mentioned in the compromise deed were not transferred in favour of decree-holder then decretal amount would be recovered after auction of the properties---Surety was not bound to satisfy the decree of the Court passed on the basis of compromise deed when he was not privy to the contract of compromise---When terms were settled between the parties to the suit through a compromise then surety would be discharged---Findings recorded by the Courts below were nullity in the eye of law---Impugned orders passed by the Courts below were set aside---Revision was allowed in circumstances.

Shahamad Khan v. Sh. Muhammad Akbar and others 2005 CLC 641; Messrs Asim Traders through Sole Proprietor and others v. National Bank of Pakistan through Manager 2016 CLD 1654; Industrial Development Bank of Pakistan v. Hyderabad Beverage Company Private Limited and others 2016 CLD 560 and Industrial Development Bank of Pakistan v. Hyderabad Beverage Company Private Limited and others 2016 SCMR 451 distinguished.

M.C.B. Bank Ltd. v. Deputy Free Shop Ltd. PLD 2011 Kar. 586; Narsingh Mahton and others v. Nirpat Singh and others A.I.R. 1932 Patna 313; Muhammad Yusaf v. Ram Govinda Ojha A.I.R. 1928 Calcutta 177(2); National Coal Co., Ltd. v. Kshitish Bose and Co. A.I.R. 1926 Cal. 818; Mahomedalli Ibrahimji v. Lakshmibai Anant Palande A.I.R. 1930 Bom. 122 and N.D. Leasing Corporation v. National Fibers Ltd. 2002 CLD 643 rel.

Sh. Usman Karim-ud-Din for Petitioners.

Sh. Naveed Shahryar, Shahid Mehmood Khan Khilji and Ms. Fatima Malik for Respondent No.1.

2018 C L C 1833

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

TAJAMAL ABBAS----Petitioner

Versus

INAMULLAH----Respondent

C.R. No.2081 of 2016, heard on 28th February, 2018.

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

----Ss. 36 & 2 (2)---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction by the tenant---Compromise between the parties---Undertaking by plaintiff (tenant) to vacate the suit property---Execution of order---Scope---Compromise was effected between the parties and plaintiff-petitioner got recorded his statement that he would vacate the premises within six months---Plaintiff-petitioner did not honour his undertaking and defendant-respondent moved execution petition which was dismissed by the Executing Court but Appellate Court remanded the matter with the direction to decide the same in accordance with law---Validity---Provision relating to execution of decree were also applicable to execution of orders---Court was equipped with the jurisdiction not only to adjudicate upon disputes and pass order rather it possessed power to get its order implemented---Suit was not simply withdrawn rather same was decided as per undertaking given by the plaintiff-petitioner---Plaintiff-petitioner was bound by his undertaking and there was no occasion for him to fall back---Undertaking made by a party before the Court had to be given sanctity while applying the principle of estoppel as well as moral and ethical rules---Conduct of a party was relevant in the Court---Plaintiff-petitioner had voluntarily opted before the Court to evict the rented premises---Said undertaking had become final and absolute for him to vacate the premises and any retraction could not be permitted---Sanctity of judicial proceedings had to be safeguarded at any cost---Scope of S.36, C.P.C. was not considered by the Executing Court---Impugned order passed by District Judge did not call for interference---Revision was dismissed in circumstances.

Shaukat Ali v. Muhammad Sharif 2013 CLC 1558 and Messrs Singer Pakistan Ltd. through Director Personal and Administration and another v. Nasir Ali Meer and another 2015 MLD 267 distinguished.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Mst. Kishwar Sultan Jehan Begum v. Aslam Awais and 3 others PLD 1976 Lah. 580; Izhar Alam Farooqi, Advocate and another v. Sheikh Abdul Sattar Lasi and others 2008 CLD 149 and Khawar Saeed Raza v. Wajahat Iqbal 2003 CLC 1306 rel.

(b) Administration of justice---

----Each case had to be dealt with keeping in view its own peculiar facts and circumstances.

Fawad Malik Awan for Petitioner.

Rai Shahid Saleem Khan, Ehsan Ahmed Bhindar, Ziaullah Khan and Imran Haider Bhatti for Respondent.

2018 C L C 1844

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD ASIF----Petitioner

Versus

Mst. NAZIA RIASAT and 2 others----Respondents

Writ Petition No.817 of 2017, heard on 10th October, 2017.

Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Suit for recovery of amount on account of divorce---Pronouncement of divorce by husband---Conditions---Scope---Entry in Nikahnama---Effect---Petitioner/ex-husband contended that both the Courts below had wrongly granted dower to respondent/ex-wife as no condition could be attached to the right of husband to divorce his wife---Respondent/ex-wife contended that she was entitled for recovery of Rs. 100,000/- as incorporated in Column No. 19 of Nikahnama---Validity---Islam provided right to the husband to divorce his wife free from any encumbrance and such right could not be abridged with conditions, as the relationship between husband and wife could continue only with their free consent and tie of marriage was beyond any restrictions---In the present case, marriage was dissolved, by a divorce deed by the husband without intervention of the Court---Claim of the wife solely rested upon the entry in Nikahnama, which in no way could override the Injunctions of Islam---Both the Courts below had erred in law while holding wife entitled to claim Rs.100,000/- on account of divorce---High Court set aside impugned judgments passed by two Courts below---Constitutional petition was allowed accordingly.

Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186 ref.

Mst. Shaista Shahzad and another v. Additional District Judge and others PLD 2012 Lah. 245 and Mannan Feroz v. Shomaila 2015 YLR 1235 distinguished.

Iftikhar Hussain Butt for Petitioner.

Zahid Ahmed Raja for Respondent No.1.

2018 C L C 1904

[Lahore]

Before Atir Mahmood, J

INTERACT PRIVATE LTD. through Company Secretary---Appellant

Versus

AZAM SULTAN SUHARWARDY and 3 others---Respondents

F.A.O. No.197 of 2014, heard on 17th April, 2018.

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

----S.37---Pakistan Electronic Media Regulatory Authority Rules, 2009, R.16 (2)---Civil Procedure Code (V of 1908), S.47 & O.XXI, R.58---Execution of decree---Objection to attachment---Limitation---During execution proceedings appellant company filed objections against attachment of property---Executing Court dismissed objection on the ground that objections were time barred---Validity---Appellant had failed to support its assertion that it was not aware with attachment order---Where Court considered that claim or objection was designedly or unnecessarily delayed no investigation could be made---Objections fell against the provisions of O. XXI, R. 58 (1), C.P.C.---When a lis was liable to be dismissed on the question of limitation, there was no need to discuss or dilate upon merits of the case---High Court declined to interfere in the order passed by Executing Court---Appeal was dismissed in circumstances.

M.C.B. Bank Ltd. v. Duty Free Shop Ltd. PLD 2011 Kar. 586 and Sachida Prasad Singh and others v. Giraja Prasad Singh and another AIR 1980 Patna 136 distinguished.

National Insurance Corporation and others v. Pakistan National Shipping Corporation and others 2006 CLD 85; Islamabad Stock Exchange (Guarantee) Limited, Islamabad through Secretary v. First Punjab Modaraba through Punjab Madaraba Services (Private) Limited, and 2 others 2003 CLD 1587; Pattoki Sugar Mills Limited through Chief Executive v. Water and Power Development Authority (WAPDA) through Chairman and 4 others 2007 CLD 659 and Nan Fung v. H. Pir Muhammad Shamsdin PLD 1995 Kar. 421 ref.

Barrister Hassan Nawaz Sheikh for Appellant.

Azam Suharwardy for Respondent No.1.

Syed Muhammad Shah and Salman Sadiq for Respondents.

2018 C L C 1937

[Lahore (Multan Bench)]

Before Ibad-ur-Rehman Lodhi, J

GHULAM MUSTAFA and 4 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 5 others----Respondents

Writ Petition No.11801 of 2016, decided on 9th May, 2018.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1(2) & O. XVIII, Rr. 2 & 4---List of witnesses---Person competent to record his statement as a witness---Scope---Where a witness was to be called or produced by the party concerned, it would be mandatory upon such party to include the name of such witness in the list to be filed under O. XVI, C.P.C.---Where name of person was not included in the list of witnesses, he/she would not be competent to be treated as a witness either to be called or to be produced in such capacity.

Haji Muhammad Tufail v. Muhammad Iqbal 2005 MLD 688 distinguished.

Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

Rao Ubaid Ali Bahadur for Petitioners.

2018 C L C 1955

[Lahore]

Before Shahid Mubeen and Shahid Karim, JJ

KHALID RASHID SHEIKH and others----Petitioners

Versus

JUDICIAL OFFICER, PUNJAB COOPERATIVE BOARD FOR LIQUIDATION and others----Respondents

W.P. No.86 of 2017, decided on 20th March, 2018.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1939)---

----S. 7---Civil Procedure Code (V of 1908), O. I, R. 10---General Clauses Act (X of 1897), S. 20---Recovery suit---Impleadment of party---Order for holding separate trial---Review petition---Competence---Applicants moved Cooperative Judge for review of his order to hold a separate trial which was dismissed holding that he had no power to review his own order---Validity---Cooperative Judge had rightly dismissed the petition---Right of review was a substantive right and was always creation of relevant statute---If power of recalling the order with ultimate object of review was not available in the relevant statute then same could not be invoked---Power of review was not available to said Court on the basis of general principles or by virtue of S. 20, General Clauses Act, 1897---Applicants had failed to point out any provision of law in the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1939 whereby power to review his own order was entrusted to said Court---No illegality or jurisdictional defect had been pointed out in the impugned order passed by the Cooperative Judge---Constitutional petition was dismissed in circumstances.

Muhammad Hanif v. Member, (S&R) Board of Revenue and 2 others 2010 CLC 990; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Khan Muhammad and others v. Member, Board of Revenue and others PLD 2006 Lah. 615 and Muhammad Sharif Sindhu v. Punjab Cooperative Board for Liquidation through Secretary and 4 others 2011 CLC 178 rel.

(b) Review---

----Scope.

Right of review is a substantiate right and is always creation of relevant Statute and if the power of recalling with ultimate object of review is not available in the relevant statute the same cannot be invoked. A right of review like an appeal is a substantive right, it is not available unless the statute confers that right upon the Court or the Tribunal, as the case may be. A power of review is not available to an Industrial Court on the basis of general principle or by virtue of section 20 of the General Clauses Act, 1897. The power of review is not a matter of mere procedure but it is a question of jurisdiction which cannot be exercised unless it has been expressly conferred upon a Tribunal.

No Court or Tribunal possesses inherent powers to review its decree or order, unless expressly conferred by statute.

Omar Alvi for Petitioner

2018 C L C 1966

[Lahore]

Before Shams Mehmood Mirza and Ch. Mushtaq Ahmad, JJ

SONIA RAZA----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

I.C.As. Nos. 228061, 228220, 228390 and 228382 of 2018, decided on 8th August, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 4, 5, 8, 9, 10, 90 & 95(5)---Recounting of ballot papers---Requirements---Single Judge of High Court under Constitutional jurisdiction directed the Returning Officer to hold recounting of ballot papers---Validity---Section 8(b) of Elections Act, 2017 conferred wide powers on the Election Commission to review any order passed by an 'officer' under Elections Act, 2017 or Rules framed thereunder---Orders visualized by the text of S.8(b) of Elections Act, 2017 would also include an order for rejection of ballot paper which was sole prerogative of Returning Officer---Returning Officer was not required to order recounting of ballot papers of all the polling stations of a constituency rather the losing candidate was bound to pinpoint specific polling stations where recounting of ballot papers was required---Returning Officer while passing order on an application of a defeated candidate which was mandatory for putting into motion the process for recounting of votes, had to apply his mind---Process for recounting of ballot papers was neither mechanical nor automatic rather it could only be triggered by an application of a contesting candidate when the margin of victory was less than five percent of the total votes polled or ten thousand votes whichever was less---Such application was to be made before the commencement of consolidation proceedings---Election Commission had been conferred the power to review the order passed by the Returning Officer under S. 95(5) of Elections Act, 2017---Intra-court appeal was not maintainable, in view of remedy of review available with the Election Commission.

Muhammad Mamoon Tarar v. Election Commission of Pakistan and others 2016 CLC 1708 Per incuriam.

(b) Elections Act (XXXIII of 2017)---

----S. 8 (b)---Law Reforms Ordinance (XII of 1972), S. 3 (2), proviso---Recounting of ballot papers---Remedy of review before Election Commission---Intra-court appeal---Maintainability---Remedy of review before Election Commission was available---Intra-court appeal was not maintainable in circumstances.

Kareem Bibi v. Hussain Bakhsh PLD 1984 SC 344 rel.

(c) Elections Act (XXXIII of 2017)---

----S. 8 (b)---'Officer'---Meaning---'Officer' mentioned in S. 8(b) of Elections Act, 2017 would include "Returning Officer".

Muhammad Sohail Dar for Appellant.

Ramzan Chaudhry and Mian Tariq Hussain for Respondent No.5.

Ch. Umar Hayat Director Legal ECP.

Shahzad Shaukat for Appellant (in I.C.A. No.228220 of 2018).

Mudassar Naveed Chatha and Khalid Ishaq for Respondents.

Raja Jehanzeb Akhtar for Appellant (in I.C.A. No.228390 of 2018).

2018 C L C 1981

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

FAYYAZ HAIDER and 5 others----Petitioners

Versus

Malik ISHTIAQ HUSSAIN and 6 others----Respondents

C.R. No.150-D of 2017, decided on 26th September, 2017.

Civil Procedure Code (V of 1908)---

----O. XX, R. 1(1)---Prolonging proceedings without any sufficient and just cause---Counsel for plaintiff failing to appear for hearing of final arguments---Suit dismissed in absence of plaintiff---Legality---Evidence, in the present case, was completed on 4th July, 2015 whereafter the case was fixed for final arguments on 6th July, 2015---On failure of the plaintiff's counsel to address the arguments, despite availing number of opportunities, the Trial Court finally adjourned the matter for 14th July, 2015 but on the said date, the plaintiffs failed to arrange their representation---In such background, the Trial Court after hearing arguments of counsel of the defendants, proceeded with the matter and after perusing the evidence available on the record, dismissed the suit of plaintiffs by way of impugned judgment---Plea of plaintiffs that they were not afforded an opportunity to argue their case and suit was dismissed in their absence; held, that Civil Judge/Trial Court had provided ample opportunities to the plaintiffs to arrange representation and to address the arguments as provided under O. XX, R. 1(1), C.P.C but despite the fact, unnecessary adjournments were sought for the said purpose---Each and every party had a right to be heard and represented by a counsel but at the same time it could not be permitted to defeat the cause of justice by indefinite procrastination---Litigant (s) or counsel could not be allowed to regulate the proceedings of Court by their own choice and whims---Rights of each of the parties were equally protected under the law and none of the parties were permitted to stifle and prolong the proceedings without any sufficient and just cause---Trial Court in the present case had made due compliance with O. XX, R. 1(1), C.P.C---Revision petition filed by plaintiffs was dismissed accordingly.

Anti-Corruption Establishment, Punjab through DG v. National Accountability Bureau through Chairman NAB and others 2016 SCMR 92 and Zafar Iqbal v. The State PLD 2015 SC 307 ref.

Malik Waqar Hussain for Petitioners.

2018 C L C 1987

[Lahore (Bahawalpur Bench)]

Before Shahid Jamil Khan, J

SANA ULLAH----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

W.P. No. 5385 of 2018, decided on 1st June, 2018.

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

----S. 10---Punjab Land Revenue Act (XVII of 1967), Ss. 161 & 164---Application for allotment of State land under S. 10 of Colonization of Government Lands (Punjab) Act, 1912, rejection of---Appeal/revision---Appeal under S. 161 and revision under S. 164 of the Punjab Land Revenue Act, 1967 was available against rejection of an application for allotment of State land under S. 10 of the Colonization of Government Lands (Punjab) Act, 1912.

Karam Din v. Member Board of Revenue West Pakistan, Lahore and others PLD 1968 Lah. 321; Muhammad Azam and others v. Bashir-ud-Din and others 1988 MLD 1341; Province of Punjab through District Collector, Vehari v. Rana 1989 MLD 1009; Nazir Hussain and others v. A.C. and others 2002 YLR 3484 and Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302 ref.

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

----S. 10---Punjab Land Revenue Act (XVII of 1967), S. 164---Allotment of State land under section 10 of Colonization of Government Lands (Punjab) Act, 1912, rejection of---Appeal/revision---Grievance Redressal Committee formed to substitute the remedy of appeal---Legality---Said Committee constituted through a notification could not be taken as substitute of appeal or revision available under the statute (i.e. the Punjab Land Revenue Act, 1967)---Said notification was silent about the statutory or legal authority in exercise of which it was issued---At best such a Committee could be regarded as an administrative forum to redress the complaints, coming to the executives, regarding exercise of administrative powers/proceedings under the notification in question---Grievance Redressal Committee forum could not abridge the control of Board of Revenue over the allotment procedure and the issues arising as a consequence.

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

----S. 164---Revision---Scope---Jurisdiction of revision under S. 164 of the Punjab Land Revenue Act, 1967, could be exercised, at any time, by the Board on its own motion or on an application.

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

----Ss. 19 & 10---Punjab Land Revenue Act (XVII of 1967), Ss. 161 & 164---Application for allotment of State land for 'Temporary Cultivation in Cholistan'---High Court directed that (revisional) powers under S. 164 of the Punjab Land Revenue Act, 1967 may be exercised, in appropriate cases, to ensure that allottees were bona fide residents of Cholistan being landless or petty farmers; that Member (Colonies), Board of Revenue shall ensure control of the Board of Revenue, as envisaged under S. 10 of the Colonization of Government Lands (Punjab) Act, 1912 and call for record of allotments which were transferred under S. 19 to non-residents of Cholistan; that if a transfer was in violation of the Statement of Conditions of the allotment read with the Ss. 10 & 19 of the Colonization of Government Lands (Punjab) Act, 1912, the Member (Colonies) shall proceed in accordance with law, and he shall also ensure that State land was allotted to maximum landless residents of Cholistan as first priority and then to petty farmers---Constitutional petition was allowed accordingly.

Ch. Faraz Munir, Malik Niaz Ahmad, Mian Nazir Ahmad, Riaz Muhammad Afzal, Sajjad Bashir Baloch, Muhammad Imran Misson and Ameer Abdullah Awan for Petitioner.

Muhammad Tahir Saeed Ramay, Assistant Advocate General Punjab and Jamshed Iqbal Khakwani, Senior Legal Advisor, Cholistan Development Authority, Bahawalpur for Respondents.

2018 C L C 2020

[Lahore]

Before Mujahid Mustaqeem Ahmed, J

NOUMAN AZMAT----Petitioner

Versus

S.A. REHMAN & SONS through Proprietors and 6 others----Respondents

C.R. No. 23787 of 2017, decided on 9th May, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Temporary injunction, grant of---Ingredients---Trial Court appointed local commission and in the light of report of said commission application for temporary injunction was dismissed---Validity---Pleadings, documents and supporting evidence had to be examined for grant or refusal of injunction---Assessment for grant of temporary injunction was to be made tentatively---Where complicated questions with regard to merits of the case existed requiring framing of issues and evidence then injunctive order might not be passed---Plaintiff had failed to establish necessary ingredients for grant of interim injunction---Defendants were raising construction as per permission granted by the Cantonment Board---Courts below had properly exercised discretion vested with them---Revision was dismissed in limine.

Province of Punjab through Collector, Gujranwala and another v. Alamgir and 3 others PLD 2005 Lah. 401 and Mst. Hajran Begum v. Kh. Muhammad Yousaf and Legal Heirs 2005 MLD 592 ref.

Irshad Husain v. Province of Punjab PLD 2003 SC 344; Pervaiz Hussain and another v. Arabian Sea Enterprises Limited 2007 SCMR 1005; Malik Gulzar Mehmood v. Muhammad Saleem Farrukh 2014 YLR 2506; Mst. Saeeda v. Province of Punjab 2014 CLC 65; Imtiaz Ahmad v. Muhammad Shoaib Shah 2015 CLC 1121; Sarwar Ali and others v. Registrar of Joint Stock Companies and 11 others 2016 CLC 1090 and Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 rel.

2018 C L C 82

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

DOST AHMAD and another----Petitioners

Versus

FAZAL SUBHAN and 2 others----Respondents

W.P. No.427-M of 2016, decided on 5th May, 2017.

Partnership Act (IX of 1932)---

----S. 69---Civil Procedure Code (V of 1908), O. VII, R. 11 & O. VI, R.17---Partnership agreement---Non-registration of partnership deed---Effect---Bar to file a suit---Scope---Ancillary matters---Words 'any Court' contained in S.69 of Partnership Act, 1932---Scope---Plaint, rejection of---Petition for rejection of plaint was dismissed on the ground that no relief had been claimed in the suit with regard to contract entered into between the parties---Validity---Partnership deed had not been got registered by the parties---Partnership agreement being a public document was required to be registered---Un-registered firm could not file a suit under S.69 of Partnership Act, 1932---Provision of S.69 of Partnership Act, 1932 would only bar a suit for enforcing a right arising out of a contract against either the firm or any past or present member of it or against any third party---Ancillary matters contained in the prayer clause of plaint were beyond terms and conditions settled in the partnership deed---Bar in introducing a suit would be only to the extent of terms and conditions of partnership deed---No bar in presentation of suit existed with regard to ancillary cause of action---Plaintiff had agreed that he would present an amended plaint ousting all the paras wherever there was reference of agreement of partnership---If plaintiff felt difficulty in drafting amended plaint, he could submit an application before the Trial Court for withdrawal of suit with the permission to file fresh suit under same cause of action without reference to partnership agreement---If plaintiff was not ready to amend the plaint as per prayers other than partnership agreement or if no application for withdrawal of suit was moved, it would be deemed that present plaint had been rejected---Constitutional petition was disposed of accordingly.

Province of Sindh through Secretary, Public Work Department, Government of Sindh Karachi and 6 others v. M/s. Royal Contractors 1996 CLC 1205; Syed Nazir Hussain v. Ahtisham Muhammad Ali and 2 others 1989 MLD 88; Lakhani Textile International through Partner v. Messrs Southern Agencies (Pvt.) Ltd. 2008 CLC 444; Messrs Taj Construction Company v. Federation of Pakistan and 9 others PLD 1982 Kar. 378; Ch. Nazir Ahmed v. Ali Ahmed and another PLD 2016 SC 214 and Messrs Countrymen through Partners and others v. Province of Sindh through Secretary and 11 others 2015 YLR 2306 rel.

Ali Baz Khan for Petitioners.

Muhammad Javaid Khan for Respondent No.1

2018 C L C 93

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

MOHAMMAD RAZIQ----Petitioner

Versus

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

W.P. No.137-M of 2016, decided on 5th July, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for dissolution of marriage and recovery of dower---Wife claimed gold ornaments or its market price as dower and alleged cruelty by the husband---Husband sought decree for restitution of conjugal rights---Wife seeking dissolution of marriage on the ground of cruelty---Scope---Development of hatred by wife against husband---Effect---Husband contended that Trial Court had wrongly decreed the suit of wife as she had failed to prove factum of cruelty as well as claim of dower---Wife contended that in the wake of behaviour of the husband she had developed hatred against him---Effect---Record revealed that in respect of dower amount wife herself appeared and reiterated the stance as taken in the plaint and inspite of lengthy coss-examination her statement in respect of unpaid dower could not be shattered---Version of the wife was duly supported by her witnesses in their statements---Husband on the other hand was sole witness of himself however, when cross-examined he had showed total ignorance to the factum of period between his Nikah and marriage with the lady and he even could not remember the name of Nikah-Khwan and other family members of the Majlis; he made admission to the effect that he had no receipt of the dower amount for four tolas of gold ornaments and admitted that four (4) tolas gold was fixed as dower---Wife had alleged cruelty and maltreatment at the hands of her husband but she failed to prove the factum of cruelty however, she stated that she had developed such enormous hatred against the husband that she would prefer death instead of living as his wife---Husband though sought decree for restitution of conjugal rights but it was an admitted fact on record that wife was subjected to mental depression by the husband and even she had been given oral Talaq several times by him, therefore, he was not entitled to the grant of decree for restitution of conjugal rights, which position stood rightly appreciated by the two Courts below---No illegality or infirmity having been noticed, constitutional petition of husband was dismissed accordingly.

Gul Hassan v. Mst. Nasreen Akhtar and 2 others 2014 YLR 1743 and Munwar Iqbal Satti v. Mst. Uzma Satti and 2 others 2003 YLR 599 ref.

Muhammad Zahir Khan for Petitioner.

Akhtar Munir for Respondent.

2018 C L C 134

[Peshawar]

Before Yahya Afridi, C.J. and Syed Afsar Shah, J

WALI MUHAMMAD KHAN----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 5 others----Respondents

W.P. No.4684-P of 2016, decided on 17th May, 2017.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 119---Constitution of Pakistan, Arts. 137 & 142---Executive authority of Province---Overriding effect rendered to Khyber Pakhtunkhwa Local Government Act, 2013 cannot legally eclipse executive authority of the Province as ordained in Arts.137 & 142 of the Constitution vesting Provincial Government with authority to take effective steps in carrying forward developmental schemes in the Province.

Lahore Development Authority's case 2015 SCMR 1739 rel.

(b) Khyber Pakhtunkhwa Establishment of District Development Advisory Committee Act (IV of 1989)---

----S. 3---Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013) S.119---Constitution of Pakistan, Arts.137 & 142---Executive authority of Province--- Estoppel, principle of---Applicability---Petitioner was aggrieved of decisions taken by Provincial Government with regard to allocation of funds and approving developmental projects in his constituency---Validity---All developmental projects prepared by P&D Department and placed for approval of Provincial Assembly were to be voted upon and passed by a simple majority of members of Provincial Assembly---Objected schemes and petitioner's schemes were duly included in Annual Development Program by P&D Department and placed before provincial assembly for its approval which was duly acquired---District Development Advisory Committee had no legal authority to interfere in developmental schemes proposed and sanctioned by local governments under Khyber Pakhtunkhwa Local Governments Act, 2013---Objected scheme and scheme of petitioner did not fall within 30% developmental budget allocated to local governments and legally, District Development Advisory Committee was competent to recommend site and allocation of projects in question---No penalty or consequences were provided under Khyber Pakhtunkhwa Establishment of District Development Advisory Committee Act, 1989, in failure to recommend site or allocation of project to be carried out in district and provision of recommending site and allocation by District Development Advisory Committee was directory and not mandatory---Objected scheme was approved by Provincial Assembly without any objection by petitioner during budget and legally same had barred him to oppose it before High Court on principle of estoppel by conduct---Development projects included in Annual Development Program and approved by Provincial Assembly could not be agitated in a court of law being non-justiciable---Exception was those umbrella projects placed as block allocations without any specification of site and location---Such allocation may lead to discretionary allocations at a subsequent stage and could be legally agitated on touchstone of impropriety, bias and discrimination---High Court in exercise of Constitutional jurisdiction declined to interfere in schemes objected by petitioner---Constitutional petition was dismissed in circumstances.

Barrister Babar Shahzad Imran for Petitioner.

Waqar Ahmad Khan Additional Advocate-General along with Ms. Tanzeela Sabahat, Additional Secretary P&D Department and Shumail Ahmad Butt, Hazrat Bilal and Nasir Mehmood for Respondents.

2018 C L C 166

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

CHIEF LAND COMMISSIONER, KHYBER PAKHTUNKHWA and 2 others----Petitioners

Versus

CHAIRMAN FEDERAL LAND COMMISSION, ISLAMABAD and 101 others----Respondents

W.P. No.1850-P of 2013, decided on 7th June, 2017.

Land Reforms Regulation, 1972 [MLR No.115]---

----Regln. 115---Resumption of land---Application for allotment of resumed land by landless tenants---Landless tenant, right of---Authorities were aggrieved of order passed by Federal Land Commission whereby applications of respondents (who were landless tenants) were accepted---Validity---High Court had not found any illegality in the said order rather same was a step for accomplishment of object and purpose of Land Reforms Programme for which land in excess of determined ceiling was resumed to distribute to sitting landless tenants---Landless tenants were entitled for allotment since resumption of land under Land Reforms Regulation, 1972 and Land Reforms Act, 1977 and their right for allotment subsisted by operation of law as laws were still in field, and required no scheme by Provincial Government for distribution of such resumed land---Federal Land Commission had correctly set aside order passed by Deputy Land Commissioner---Land resumed, in the present case, was not freshly resumed from original landowner but it was resumed only with the aim, object and purpose to allot/ donate the same to sitting landless tenants which was the purpose of constituting the Land Reforms Commission and on account of inaction of Federal Land Reforms Commission from the date of resumption same was not allotted to the sitting tenants as fixed by the Supreme Court in the case of Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99---Cutoff date (23-03-1990) did not create any hurdle for allotment of land to landless sitting tenants---High Court maintained order passed by Federal Land Commission and declined interference---Constitutional petition was dismissed in circumstances.

Qazalbash Waqf v. Chief Land Commissioner case PLD 1990 SC 99 rel.

Muhammad Suhail, AAG.

Khalid Mehmood and Kifayat Ullah, DAG for Respondents.

2018 C L C 254

[Peshawar]

Before Rooh-ul-Amin Khan, J

UMAR FAROOQ and others----Petitioners

Versus

HAMID ALI and others----Respondents

C.R. No.479-P of 2016, decided on17th October, 2017.

Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 4---Muslim Personal Law (Shariat) Application Act (V of 1962), Preamble--- Specific Relief Act (I of 1877), S. 42---Suit for declaration--- Succession--- Limitation--- Co-sharer--- Limited owner---Scope---Contention of plaintiffs was that they were entitled to their shari shares in the legacy---Suit was decreed concurrently---Validity---Legacy of Muslim would be divided amongst his heirs according to Islamic Law even though he had died prior to the promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935---Share of female limited owner on termination of her limited interest was in terms of Islamic Law---Plaintiffs being legal heirs of deceased were entitled to get their shares in the legacy---Entitlement of plaintiffs was not only recognized by the law of the land but also by the Islamic Law which could not be extinguished by any mutation---Any co-sharer, in possession of joint property, should be deemed as holding the possession on behalf of all the co-sharers---No limitation would run against the co-sharer---Every successive wrong entry in the revenue record would give a fresh cause of action---No wrong entry could be legitimized with the efflux of time---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances

Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273; Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Imsail and another v. Ghulam Qadir and others 1990 SCMR 1667; Habib Ullah Jan and 03 others v. Muhammad Hassan Khan and 06 others PLD 1991 SC 93; Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 ref.

Muhammad Tariq Afridi for Petitioners.

Zia-ur-Rehman for Respondents.

2018 C L C 323

[Peshawar]

Before Rooh-ul-Amin Khan, J

NOOR-UL-BASAR----Petitioner

Versus

SHER ALI----Respondent

C.R. No.52-P of 2015, decided on 30th October, 2017.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Non-production of informer of sale---Effect---Right of pre-emption was required to be proved in accordance with law through cogent, coherent and trustworthy evidence---Pre-emptor did not produce informer of sale who was important witness of first Talb---Presumption would be that had the informer been produced he might not have supported the stance of pre-emptor---Plaintiff, in circumstances, had failed to prove Talb-i-Muwathibat in accordance with law---Notice of Talb-i-Ishhad had not been personally served upon vendee rather same had been allegedly handed over to his cousin---Acknowledgement due card neither had any stamp of any post office nor the name of recipient---Notice of Talb-i-Ishhad with regard to different Khata and Khasra numbers would not be sufficient to prove second Talb rather would nullify the performance of Talb-i-Khasumat---Proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad in their respective chronological order were sine qua non for exercise of right of pre-emption---If case of pre-emptor was not in consonance with any one of the legal requirements, his suit was bound to fail---Mere mentioning of details of Talbs in the plaint would not be sufficient unless same were proved through cogent and confidence inspiring evidence during trial---Plaintiff had failed to prove the mandatory Talbs therefore even if he had proved the superior right of pre-emption same would not entitle him to decree for possession through pre-emption---Appellate Court had overlooked the evidence and law on the subject while decreeing the suit---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court restored---Revision was allowed in circumstances.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491; Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 and Mian Pir Muhammad's case PLD 2007 SC 302 rel.

Muhammad Ayaz Majid for Petitioner.

Muzamil Khan for Respondent.

2018 C L C 355

[Peshawar]

Before Yahya Afridi, C.J. and Syed Afsar Shah, J

Maulana AMAN ULLAH HAQANI and another----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Transport and Mass Transit Department and 4 others----Respondents

W.P. No.4217-P with C.Ms. Nos. 2153, 2188, 2203 and 2244-P of 2017, decided on 7th December, 2017.

(a) Constitution of Pakistan---

----Arts. 9 & 199---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Public interest litigation---Maintainability---"Aggrieved person"---Scope---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project")---Grievance of petitioners was that the Project was carried out without lawful authority and it was also against the public interest; held, that present petition was in the nature of public interest litigation---Petitioners being residents of the city would surely be affected by the works to be carried out under the Project causing environmental impact upon their dwelling places and thereby infringing upon their right to life, as provided under Art. 9 of the Constitution---Petitioners would, thus, come within scope of an aggrieved person, as envisaged in Art.199 of the Constitution---Constitutional petition was held to be maintainable in circumstances.

Riaz Ahmad's case 2013 CLC 1291; Molvi Haider's case PLD 2006 SC 394 and F-9 Park's case PLD 2010 SC 759 ref.

(b) Constitution of Pakistan---

----Art. 199---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Constitutional petition---Scope---Technical and financial aspects of a Government project---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project")---Findings on technical and financial aspects of a project which was highly specialized requiring engineering and financial expertise, such as the present Project, ought not to be passed by a Constitutional Court, moreso, when the assertions of the petitioners on the factual aspect of the Project were disputed by the Provincial Government---High Court would not enter into such controversies and pass any findings on technical and financial viability of the Project---Besides the project in question was duly considered and approved, at the highest level of the Provincial and Federal Government.

(c) Khyber Pakhtunkhwa Environmental Protection Act (XXXVIII of 2014)---

----S. 13---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project")---Directions issued by the High Court regarding the steps that had to be undertaken for carrying out the works under the Project---High Court directed that prima facie, the prescribed requirements for rendering Environmental Impact Assessment (EIA), as provided under S.13 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 had been complied with; that the conditional EIA approval granted by the Director General, Environmental Protection Agency (EPA) purportedly under S.13 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 was required to be finalized; that the Director General EPA shall fortnightly consider the conditions highlighted in the EIA report, and thereafter, if found in order, extend the same till its final approval; that that the Provincial Inspector General of Police should ensure that the charge of the Deputy Inspector General (Traffic) was immediately assigned to an officer who may personally supervise the alternative traffic plan; that the Deputy Inspector General (Traffic) and Commanding Officer of the Military Police of Cantonment, should streamline an alternative traffic plan and ensure that senior officers personally supervised all the critical check points during the rush hours for the smooth flow of traffic and convenience of the public; that fortnightly joint reports of the Deputy Inspector General (Traffic) and Commanding Officer of the Military Police of Cantonment, were to be submitted to the Human Rights Cell of the High Court confirming the steps taken and their satisfaction regarding the efforts made in regard to the alternative traffic plan; that the senior Director of the Project on behalf of the concerned development authority was presently facing charges of corruption and his trial was pending before the Accountability Court, therefore, allowing him to proceed with supervising the Project would be contrary to the principle of good governance; that during the interim period the Director General of the concerned development authority should assume the role of the Project Manager instead and that a private company which was awarded certain work for the Project, and had previously entered into a plea bargain with the Accountability Bureau, shall in no way have any managerial or supervisory role in running the Joint Venture Companies or execution of works under the Project---Constitutional petition was disposed of with the said directions.

(d) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 19(c)---Constitution of Pakistan, Art. 140-A---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Provincial Government and Local Government, powers of---Scope---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project") -- Constitutionality of the Project being undertaken by the Provincial Government under the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 without adhering to the procedure provided under the Khyber Pakhtunkhwa Local Government Act, 2013; held, that the action of Provincial Government in carrying out the Project under the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 was with lawful authority---Provisions of the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 were neither in violation of Art.140-A of the Constitution nor irreconcilably contradicted the provision of the Khyber Pakhtunkhwa Local Government Act, 2013.

Muhammad Isa Khan for Petitioner, Shahid Nadeem Khan and Muhammad Khurshid Khan in person.

Abdul Latif Yousafzai, Advocate-General Khyber Pakhtunkhwa along with Muhammad Bashir, Director General, Environmental Protection Agency, Riaz Ahmad, Superintendent Police (Traffic), Peshawar. Shumail Ahmad Butt for Respondents.

2018 C L C 408

[Peshawar (Chitral Bench)]

Before Muhammad Nasir Mahfooz, J

MUHAMMAD NASIR----Petitioner

Versus

MUHAMMAD NAWAZ----Respondent

C.R. No.69 of 2013, decided on 2nd October, 2017.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Trial Court decreed the suit but no order for deposit of remaining sale amount was passed---Appellate Court modified the judgment and decree of the Trial Court to the extent that plaintiff should pay market value of suit property at the time of execution of decree and market value would be determined by the Executing Court---Validity---If Appellate Court deemed that market value of suit property was not the same as mentioned in agreement to sell then it was necessary to have remanded the case for ascertaining market value of suit property---Defendant had denied to have executed the agreement to sell not because that sale amount was less than the market value but because he had not executed the said deed---Findings of Appellate Court except to the extent of conclusion derived from the same were based on proper appreciation of evidence on record---Executing Court could not go beyond the judgment and decree and assume jurisdiction to reopen the whole matter---Findings of Appellate Court had not been impugned by the defendant---Trial Court had held that plaintiff was entitled to the relief as prayed for but did not pass any order or direction for deposit of remaining sale price within a specified period which was procedural irregularity---Plaintiff for grant of decree of specific relief must prove that he had performed his part of contract but the other party had failed to perform his part of contract---Plaintiff had performed his part of contract in the present case---Case was remanded to the Appellate Court with the direction to pass an order afresh in the light of available evidence on record---Revision was allowed in circumstances.

Zafar Hayat for Petitioner.

Abdul Wali Khan for Respondent.

2018 C L C 449

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

Pir ISHFAQ AHMED----Petitioner

Versus

DEPUTY COMMISSIONER/LAND ACQUISITION COLLECTOR, CHARSADDA and another----Respondents

W.P. No.869-P of 2017, decided on 30th November, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 4, 5-A, 9, 11, 18 & 30---Constitution of Pakistan, Art.199---Contention of petitioner was that notification for acquisition of land was illegal and without lawful authority---Validity---Petitioner had alternate adequate remedy of raising objections to the acquisition of land in question---Petitioner had failed to request the Land Acquisition Collector to make reference under S.18 of Land Acquisition Act, 1894--Constitutional petition was not maintainable in view of other adequate remedies available to the petitioner---Petitioner had not disclosed and assailed the award issued under S.11 of Land Acquisition Act, 1894---Grievance of petitioner with regard to apportionment of compensation amount was also amenable to the jurisdiction of Land Acquisition Court---Factual controversies were beyond the constitutional jurisdiction of High Court--- Constitutional petition was dismissed in circumstances.

Muhammad Isa Khan Khalil and Akhtar Ilyas for Petitioner.

Rab Nawaz Khan, AAG, for Respondents Nos.1 and 2.

Muhammad Dawood for Respondent No.3.

2018 C L C 475

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mehfooz, J

Syed BAREEK JAN and 6 others----Petitioners

Versus

SAEED JAN and others----Respondents

C.Ms. No.1-M of 2015 in Civil Revision No.199 of 2005, decided on 11th December, 2017.

Civil Procedure Code (V of 1908) ---

----S. 12(2)---Suit for declaration and permanent injunction---Application under S.12(2), C.P.C.---Scope---Decree, setting aside of---Fraud---Effect---Contention of applicants was that impugned decision was obtained by practicing fraud on the Court and they were not impleaded as party in the main suit---Validity---Impugned judgment and decree had been executed by the Executing Court---Present application had been filed on the ground that boundary shown as ownership of plaintiffs/respondents in the plaint had been sold to applicants---Property of applicants was referred for the sake of description only which did not mean that said suit property was part of property allegedly purchased by the applicants---Sale deed executed in favour of applicants was not subject matter of suit filed by the plaintiffs---Plaintiffs had not disputed the ownership of present applicants---Impleadment of present applicants as party was not necessary---Provision of S.12(2), C.P.C. was not attracted in the present case---No right of petitioners/applicants had been infringed---Petition for setting aside of impugned decree was dismissed in circumstances.

2007 SCMR 1318; PLD 2013 SC 573; 2015 CLC 531; PLD 2016 SC 358 and 2016 SCMR 862 ref.

Abdul Halim Khan for Applicants.

M. Ikram Khan for Respondents Nos.1 to 7.

Faridullah Khan for L.Rs. of Respondent No.8.

2018 C L C 497

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mehfooz, J

Mst. RASHIDA BEGUM and 3 others----Petitioners

Versus

HABIB UR RAHMAN and 10 others----Respondents

W.P. No.609-M of 2017, decided on 10th August, 2017.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. VII, R. 11---Application for setting aside compromise decree---Allegation of fraud and misrepresentation---Remedy availed before wrong forum---Limitation---Condonation of delay---Scope---Applicability of O.VII, R.11, C.P.C. on application under S.12(2)---Contention of applicants was that impugned decree was obtained on the basis of fraud and misrepresentation---Application for setting aside of decree was dismissed under O.VII, R.11, C.P.C.---Appeal---Maintainability---Order for dismissal of application under S.12(2), C.P.C. was not appealable---Petitioners had wrongly challenged the order of Trial Court in civil appeal which was dismissed---If wrong remedy was availed by any party then delay occurring in availing the said remedy was not condonable---Application under S.12(2), C.P.C. was filed after ten years---Applicants had sold property from the suit land which fell into their share as a result of compromise decree---Where contentions raised in an application under S.12(2), C.P.C. did not inspire confidence and no material grounds of fraud and misrepresentation existed, then same should be dismissed without recording of evidence---Proceedings of application under S.12(2), C.P.C. were not essentially of suit but were the same as in a suit with the only exception that after its acceptance the original suit/plaint would revive---Conditions applicable to the plaint in application under S.12(2), C.P.C. were different from that of suit but provisions of Civil Procedure Code, 1908 were mutatis mutandis applicable---No fraud and misrepresentation had been committed while obtaining the impugned decree; contents of application did not contain specific allegations of fraud and certificate appended with the revision petition was neither signed by any one of the parties or their counsel---Petitioners could not approbate and reprobate in the same series of litigation---Courts below had rightly dismissed the application for setting aside the decree without recording of evidence---No infirmity had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed in circumstances.

PLD 2016 SC 872; 2006 SCMR 531; 2002 SCMR 1761; PLD 2002 SC 500 and 2009 SCMR 40 rel.

Sabitullah Khan for Petitioner.

M. Amin Khan and Akhtar Munir Khan for Respondents.

2018 C L C 519

[Peshawar]

Before Lal Jan Khattak and Ijaz Anwar, JJ

SABIR KHAN----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others----Respondents

W.P. No.4846-P of 2016, decided on 9th June, 2017.

Khyber Pakhtunkhwa Motor Vehicles Rules, 1969---

----Rr. 38 & 40---Registration book---Grievance of petitioner was that he got issued duplicate registration book of his vehicle as the original was lost but subsequently the same was found but authorities were not allowing him to use the original book---Validity---Construction of statute was to be beneficial to citizen and if there could be two interpretations of a provision of law in a statute, the one which was consistent with reasons should be adopted and the one which would lead to absurdity or unreasonableness or patent injustice to a citizen should be avoided---Construction placed on a provision should be such as would suppress the mischief and advance the remedy---Two conflicting letters were available on the subject and one letter was more reasonable and beneficial for citizens as it suppressed the mischief and advanced the remedy---High Court directed the authorities to hand over original registration book to the petitioner by cancelling the duplicate---Constitutional petition was allowed in circumstances.

2016 SCMR 646; 2015 SCMR 1494; PLD 2016 Pesh. 26 and 2013 PCr.LJ 52 rel.

Muhammad Ibrar Afridi for Petitioner.

Syed Hammad Ali Shah and Rab Nawaz Khan, Additional Advocate-General for Respondents.

2018 C L C 615

[Peshawar]

Before Waqar Ahmad Seth, J

KHALID KHAN----Petitioner

Versus

FAZAL RIAZ and 3 others----Respondents

W.P. No.2478-P of 2017, decided on 20th November, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R.2(3) & O.XLIII, Rr.1(r) & 3---Temporary injunction, disobedience of---Attachment of property---Revision---Maintainability---Conversion of revision into appeal---Requirements---Defendants inspite of temporary injunction raised construction on the suit land---Plaintiff filed application under O.XXXIX, R.2(3), C.P.C. and Trial Court attached the disputed property but Revisional Court set aside the said order of attachment of property---Validity---Court while granting an injunction might order the property of a person guilty of such disobedience or breach to be attached and might order such person to be detained in the prison for a term not exceeding six months---Temporary injunction was granted in favour of plaintiff but defendants continued their construction---Order passed while entertaining an application under O.XXXIX, R.2(3), C.P.C. was an appealable order---Defendants filed revision petition against the order passed by the Trial Court which was not competent---No revision would lie where an appeal lay---Revision could only be converted into appeal when there was a specific application moved for the purpose---No such application was moved by the defendants in the present case---Revisional Court could not convert said revision into appeal as no notice under O.XXXIX, R.3, C.P.C. was given by the defendants which was a mandatory requirement---Revisional Court had wrongly entertained the revision in circumstances---Demarcation through local commission was yet to be finalized and report was to be considered by the Trial Court---Trial Court was perfect court to pass an appropriate order after examining the local commission report and of any objections if so filed by the parties---Impugned order passed by the Revisional Court was declared as illegal, without jurisdiction and premature which was set aside---Order passed by the Trial Court was restored---Constitutional petition was allowed in circumstances.

Saleem ud Din and another v. Municipal Committee, Tando Allahyar through Administrator and 5 others 2000 SCMR 460; Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matins PLD 1983 SC 693 and Messrs Heavy Electrical Complex through Deputy General Manager, (A&P) Hattar Industrial Estate Hattar v. Sarhad Development Authority, NWFP Kot Najibullah, Hattar, Haripur 1999 CLC 790 rel.

Altaf Ahmed for Petitioner.

Zia-ur-Rehman for Respondents.

2018 C L C 691

[Peshawar]

Before Shakeel Ahmad, J

LATIF ULLAH KHAN and 9 others----Petitioners

Versus

Mst. SAKEENA and 20 others----Respondents

Civil Revision No.348-P of 2009, decided on 17th November, 2017.

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

----Ss. 42 & 27---Transfer of Property Act (IV of 1882), S. 53-A---Registration Act (XVI of 1908), S.50 (1)---Suit for declaration---Sale on the basis of unregistered deed---Subsequent sale---Requirements---Contention of plaintiffs was that they were owners in possession of suit land and mutation and sale deed in favour of defendants were illegal and ineffective upon their rights---Suit was dismissed concurrently---Validity---Plaintiff was not in possession of the suit property--Provisions of S.53-A of Transfer of Property Act, 1882 and S.50(1) of Registration Act, 1908 would protect possession of transferee subject to fulfillment of existence of agreement of transfer and possession of suit property in part performance of agreement---Subsequent transferee had no notice of earlier transaction in favour of plaintiffs---Onus to prove that defendants had knowledge of sale of suit property in favour of plaintiffs was on them---Plaintiffs had failed to discharge the said onus---Protection of S.27, Specific Relief Act, 1877 was available to the defendants who were subsequent transferee of suit land for value in good faith and without notice of any prior agreement to sell or sale deed---No mis-reading 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.

1992 SCMR 1265; 1997 SCMR 837; PLD 1975 SC 311; 1993 SCMR 428; 2010 CLC 407 and 2014 YLR 2005 distinguished.

Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below could not be interfered with unless same were without jurisdiction or Court below had acted illegally or with irregularity resulting into miscarriage of justice.

Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Shah Wali v. Muhammad Iqbal PLD 2005 Lah. 214; Mst.Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Secretary to Government of the Punjab, Education Department, Lahore and another v. Saeed Ahmad Khan PLD 1994 SC 291; Sirbaland v. Allah Loke and others 1996 SCMR 575; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Mst.Ameer Begum v. Muhammad Naeem Khan and another PLD 2000 SC 839 and Mst.Kaniz Fatima through legal heirs v. Muhammad Saleem and 27 others 2001 SCMR 1493 rel.

Abdul Sattar Khan for Petitioner.

Sabir Shah for Respondents.

2018 C L C 708

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

LIAQAT KHAN----Petitioner

Versus

BAKHT BIBI----Respondent

W.P. No.8-A of 2016, decided on 6th November, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Registration Act (XVI of 1908), S.7---Suit for recovery of maintenance allowance, dower and dowry articles---One House/gold ornaments in lieu of dower---Execution of the relinquishment deed by Parda Nasheen lady---Scope and effect---Reasonable annual increase in maintenance allowance---Scope---Petitioner/defendant contended that Family Court had rightly dismissed the claim of the plaintiff for dower as she had received 30 tolas gold ornaments in lieu of dower and had executed relinquishment document and marginal witnesses therefore were produced before the Court---Respondent/plaintiff contended that appellate court had ridiculously decreed her dower amounting to Rs.99/- only instead of her claimed dower valuing half of the house---Validity---Admittedly, the dower was initially fixed in Nikahnama as Rs.50,000/-, and 8 tolas gold ornaments and details of entire dower had been provided in two deeds---Petitioner through a deed had transferred his share (half of the house) to the respondent in lieu of the dower i.e. Rs.50,000/- and 8 tolas gold ornaments, however, at the bottom of the deed a value of Rs.99/- had been given for the purpose of execution of the deed---Same appeared to avoid the consequences of the compulsory registration under the Registration Act, 1908---Said exhibited deed showed that half of the said house was given to the wife/respondent in lieu uof the dower---Appellate Court instead of decreeing the half of the said house or its market value, had decreed an amount of Rs.99/- as the value of the house---Interpretation of the document by Appellate Court, would deprive the wife from her dower which had been agreed in unequivocal terms---Only interpretation, hence, discernable from the reading of Nikahnama and deeds was that the husband had agreed to transfer half of the house to the wife in lieu of dower---Findings of Appellate Court, in circumstances, were not sustainable which were modified by the High Court to the effect that respondent/plaintiff was entitled to half of the house mentioned in the said deed or its market value---Identification of Pardanasheen or illiterate woman while executing the document must be established beyond doubt and court must be vigilant in taking extra care to ascertain the genuineness of such document---Pardanasheen lady normally, did not on her own execute the document relating to her valuable rights unless accompanied by the male member of her family---Even otherwise, from the close perusal of the testimony of the marginal witnesses and Notary Public, it could not be established that 30 tolas gold ornaments were received by the respondent/plaintiff---Consideration of the document had to be independently established in case the executor denied the same---Document in question and its contents had been rightly disbelieved by the Appellate Court--- Appellate Court, however, had enhanced the "increase of 5% per annum" to 35% per annum but without considering circumstances or financial position of the petitioner ---High Court observed that 15% increase would be sufficient to meet the requirement of the child keeping in view the inflation and modified the impugned judgments and decrees passed by the two Courts accordingly---Constitutional petition was disposed off.

Khawas Khan v. Shabbir Hussain Shah 2004 SCMR 1259; Ghulam Muhammad v. Farooq Ahmed and others 2002 SCMR 1801; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1589 and Abdul Hameed through L.Rs. and others v. Shamsuddin and others PLD 2008 SC 140 ref.

Ms. Sobia Gul for Petitioner.

Zafar Iqbal for Respondent.

2018 C L C 805

[Peshawar]

Before Abdul Shakoor, J

Mir JAWAZ KHAN and 2 others----Petitioners

Versus

GUL BATH KHAN and 2 others----Respondents

W.P. No.856-B of 2017, decided on 14th November, 2017.

Civil Procedure Code (V of 1908)---

----S. 149 & O.VII, R.11---Court Fees Act (VII of 1870), Ss.12 & 28---Suits Valuation Act (VII of 1887), S.11---Rejection of plaint---Non-deposit of requisite court-fee---Scope---Suit was filed against petitioners who sought rejection of plaint on grounds that plaintiffs did not deposit requisite court-fee---Application was dismissed by Trial Court as well as Lower Appellate Court---Validity---In view of provisions of Ss.12 & 18 of Court Fees Act, 1870 and S.11 of Suits Valuation Act, 1887, deficiency in court-fee could be ordered to be made good subsequently---Likewise, provisions of O.VII, R.11 & S.149, C.P.C., read together led to conclusion that where court-fee affixed was found to be deficient, court could not dismiss suit or appeal without specifying deficiency and fixing date for payment---On compliance, it had same force and effect as if fee had been paid in first instance---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Akbar Ali and 4 others v. Province of Punjab 1989 SCMR 1040; Siddiq Khan and 2 others v. Abdul Shakar Khan and others PLD 1984 SC 289; Shahena Khan v. Aulia Khan and others PLD 1984 SC 157; Mst. Parveen v. Mst. Jamsheda Begum PLD 1983 SC 227; Sardar Muhammad Karm Ziaudin Durrani and others v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCMR 148, Ch. Nazir Ahmad v. Abdul Karim and another PLD 1990 SC 42; Messer Muhammad Siddiq Muhammad Umar v. Australasia Bank PLD 1966 SC 684 and Faqir Muhammad and 8 others v. Noor Muhammad 1970 SCMR 188 ref.

Sher Muhammad Khan for Petitioners.

2018 C L C 816

[Peshawar (Bannu Bench)]

Before Abdul Shakoor, J

RAHEEM SHAH----Petitioner

Versus

MOMIN KHAN and another----Respondents

Civil Revision No.197-B of 2013, decided on 11th December, 2017.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Performance of talbs through agent---Procedure---Pre-emptor to prove the performance of Talb-i-Muwathibat and Talb-i-Ishhad did not record his statement rather statement of his son as attorney was recorded---Nothing was on record with regard to disability of plaintiff to appear before the court to record his evidence---Section 14 of Khyber Pakhtunkhwa Pre-emption Act, 1987 provided exception but same was not for recording statement but with regard to making of demand---Demands could be made by the agent where pre-emptor himself was unable to make the same---Talb-i-Muwathibat being personal act of pre-emptor was required to be proved by pre-emptor himself by recording statement on oath and offering himself for cross-examination---If pre-emptor could not record his statement before the Trial Court for any valid reason, he could request for recording his statement through commission---Pre-emptor, in circumstances, had failed to prove performance of Talb-i-Muwathibat in the present case---Courts below had rightly dismissed the suit of plaintiff by properly appreciating the evidence available on record---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 05 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Right of pre-emption---Exercise of---Requirements---Performance of Talb-i-Muwathibat, Talb-i-Ishhad and then superior right of pre-emption for successful exercise of right of pre-emption in respective chronological order was essential.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction was limited---Concurrent findings of facts recorded by the courts of competent jurisdiction could not be set aside unless same were outcome of a jurisdiction vested but not exercised or jurisdiction not vested but exercised or one of the material irregularity.

Arsala Khan Khattak for Petitioner.

Respondents: Ex parte.

2018 C L C 875

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

MUHAMMAD IQBAL----Petitioner

Versus

Mst. NAZIA IQBAL and 4 others----Respondents

W.P. No.856-M of 2017, decided on 11th December, 2017.

Family Courts Act (XXXV of 1964)---

----S. 10(4)---Family Court passed preliminary decree granting khulla to the plaintiff (wife)---Petitioner/Defendant (Husband) contended that conducting of reconciliation was necessary and matter of dissolution of marriage was to be decided on merits---Validity---Addresses mentioned in the pleadings revealed that both the parties resided abroad and none of them had appeared personally before the Family Court at the time of reconciliation proceedings so the same could not hold the field---Respective respresentative of both the parties had appeard before the Family Court---Family Court had allowed the parties to produce evidence on the remaining parts of the relief prayed for in the plaint---Section 10(4) of Family Courts Act, 1964 had empowered the Family Court to grant a decree for the dissolution of marriage keeping in view strained relations of the spouses, Family Court therefore, had exercised its jurisdiction accordingly---Admittedly, Respondent/plaintiff had re-married after dissolution of marriage substantiating that said decree was rightly passed at the initial stage---No illegality or infirmity having been noticed in the impugned order passed by the Family Court---Constitutional petition was dismissed accordingly.

2018 C L C 887

[Peshawar]

Before Ijaz Anwar, J

AKHTAR KAMAL----Petitioner

Versus

Mst. SAMREEN AKHTAR and 2 others----Respondents

W.P. No.927-P of 2015, decided on 2nd February, 2018.

Family Courts Act (XXXV of 1964)---

----S. 9(1a)(1b)---Suit for restitution of conjugal rights by husband---Wife seeking recovery of maintenance and dower in written statement---Admissibility---Obligation of husband to pay dower---Scope---Question was whether separate suit was required by wife for recovery of maintenance and dower---Petitioner/husband contended that wife in her written statement in family suit could claim dissolution of marriage only---Respondent/wife contended that no separate suit was required for her claims of recovery of dower and maintenance allowance of minor---Validity---Under subsections (1a) and (1b) of S.9 of Family Courts Act, 1964, either party could submit his/her claim in written statement---Though in subsection (1b), the relief of only dissolution of marriage including Khula was mentioned as a claim to be set up by the wife, however, in said subsection the word "including Khula" was used which had enlarged its scope---Merely specifying the words dissolution of marriage including Khula would not mean that wife could claim only such reliefs in her written statement but the word "including" used in S.9(1b) of Family Courts Act, 1964 would enlarge its scope and the wife was not supposed to file separate suit for maintenance allowance of minor etc, instead all such claims could be joined in the written statement---Words used in the concluding para of subsection (1b) was also very relevant which supported the case of the wife, i.e "shall be deemed as a plaint and no separate suit shall lie for it" and it further strengthened the case of the wife, and whatever she claimed in her written statement would be considered as if she had filed a separate suit to such effect---Father was morally and legally bound to maintain the children and he could not escape from the liability on any pretext even if the custody of the minor was with the mother---Claim of dower of the wife was based upon a dower deed duly proved in the evidence and never rebutted in clear terms by the husband---Payment of dower was obligatory upon the husband which was the entitlement of wife as consideration of the marriage---Husband on contracting second marriage without permission of first wife or Arbitration Council, became liable to pay to first wife entire dower amount either prompt or deferred---No illegality or infirmity having been noticed in the impugned judgment passed by the Appellate Court, Constitutional petition was dismissed accordingly.

Emperor v. Jiand and another AIR 1928 Sind 149; Madras Central Urban Bank, Ltd. v. Corporation of Madras AIR 1932 Madras 474; Malik Muhammad Inam and others v. Federation of Pakistan and others 2006 SCMR 1670; Mushtaq Ahmad v. The State, 1991 SCMR 543; Rana Ahsan Mahmood Ahid v. Judge Family Court, Faisalabad and 2 others 2010 YLR 3264; Sheheryar Gul v. Mst. Sadaf Bibi 2016 MLD 200; Dr. Sabira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384; Muhammad Azam v. Additional District Judge and others 2006 YLR 33; Munazza Noor and 2 others v. Additional District Judge and others 2000 CLC 374 Mst. Shaheen Begum v. Zakaullah Khan Ghouri and others 2009 MLD 1124 ref.

Ghulam Mohyuddin Malik for Petitioner.

Syed Kausar Ali Shah for Respondents.

2018 C L C 906

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan, J

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

----S. 7(6)---Marriage terminated by Talaq (divorce)---Remarriage with same husband---Principles.

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

----S. 7---Talaq (divorce)--- Commencement of period of Iddat---Scope.

PLD 1988 Kar. 169 ref.

2018 C L C 990

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

NOORAL KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 5 others---Respondents

W.P. No.867-P of 2011, decided on 29th November, 2017.

Provincial Motor Vehicles Rules, 1969---

----R.248---D-class license, cancellation of---Petitioner was holding 'D' class license and had established stand over his own land---Petitioner was aggrieved of cancellation of license by authorities---Validity---Opportunity of hearing was provided to petitioner besides inquiry was twice conducted through responsible officers of local administration who verified huge financial loss likely to be caused to local government in case petitioner was allowed to run 'D' class stand---Prerequisite of hearing was fulfilled not only before cancellation/revocation of license but also an opportunity of hearing was provided to petitioner at time of order passed by appellate authority---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

1993 CLC 1340 ref.

Muhammad Arif Khan for Petitioner.

Muzammil Khan for Respondents.

2018 C L C 1029

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

Mst. SAMINA BIBI and another----Petitioners

Versus

ABDUR RAHMAN and 25 others----Respondents

C.R. No.201 of 2016, decided on 21st November, 2017.

Civil Procedure Code (V of 1908)---

----S. 47---Suit for declaration---Execution petition---Dismissal of execution petition due to filing of fresh application for partition of suit property---Lis pendens, principle of---Applicability---Improvements made during proceedings---Effect---Execution petition was filed wherein local commission was appointed to determine whether suit property was partitionable---Executing Court dismissed execution petition due to filing of fresh application for partition of suit property---Validity---Earlier proceedings culminated into final decree and affirmed by the High Court---Execution of decree which included a decree for possession to the extent of share of decree-holders only and not beyond that could not be frustrated---No person should benefit from any improvements made during proceedings in a Court of law which would not thwart the effects of a decree---If applicants-decree-holders had submitted any application for grant of preliminary decree for partition then same could not be allowed to benefit the judgment-debtors---Judgment-debtors had willingly adopted the mode of spot inspection by local commission and they could not be held to have been denied the right of due process of law or condemned unheard in any manner---Right of petitioner-decree-holder had already been established and mode of partition had been followed which did not require any further inquiry---Application for grant of preliminary decree for partition could be considered as a step in aid of execution of decree---Impugned order was set aside in circumstances---Execution petition should be deemed to be pending before the Executing Court and application for grant of preliminary decree for partition be clubbed together with the same---Revision was allowed accordingly.

M. Iqbal Khan for Petitioner.

Murad Akmal Mirkhel for Respondents.

2018 C L C 1052

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

SAJJAD KHAN----Petitioner

Versus

MOMANA UROOJ----Respondent

W.P. No.1167-A of 2017, decided on 6th November, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of maintenance and dowry articles---Non-appearance of party and counsel---Striking off defence of the party---Scope---Family Court calling back its previous order of striking off defence---Jurisdiction---Scope---Invoking constitutional jurisdiction of High Court against such order---Maintainability---Petitioner/defendant contended that order of Family Court setting aside its previous order of striking off defence of the plaintiff tantamount to review which was not warranted by law---Respondent/plaintiff contended that Family Court had jurisdiction to pass appropriate order keeping in view the facts and circumstances of the case---Validity---Where neither plaintiff nor his counsel was present before the Family Court then the only course available under the law was to dismiss the suit for non-prosecution---Striking off defence of any party was harsh action and could be invoked in the circumstances when after specific directions of the Court, party had failed to perform his/her legal obligation---Order of Family Court whereby the defence of the plaintiff was struck off was not sustainable in the eye of law in circumstances---When review as a statutory remedy was not available to a forum as a matter of course, and forum created by a special statute had passed an erroneous order, affecting the rights of parties, said forum was not helpless to correct the same as no one should suffer for the act/omission of the Court---Family Court had acknowledged through the impugned order that the earlier order of striking off defence of the plaintiff was incorrect and had prejudiced the case of the plaintiff and thus, had rectified the manifest error---Constitutional jurisdiction was a discretionary relief and could be invoked in aid of justice and was not aimed to perpetuate illegal orders, hence, the impugned order could not be interfered under constitutional jurisdiction even if it appeared that the Court below had not been bestowed upon through explicit provision of law to pass such order---Constitutional petition was dismissed accordingly.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD l973 SC 236 and Abdul Majid and others v. The State Transport AIR 960 Pat 333 ref.

Muhammad Arif Khan Jadoon for Petitioner.

Malik Nomanullah for Respondent.

2018 C L C 1077

[Peshawar (Mingora Bench)]

Before Musarat Hilali and Mohammad Ibrahim Khan, JJ

Moulana NAEEM KHAN---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN and 10 others---Respondents

W.P. No.673-M of 2016 with C.Ms. No. 1196-M of 2016 and 12-M of 2017, decided on 24th January, 2017.

Khyber Pakhtunkhwa Local Government Ordinance (XXVIII of 2013)---

----S. 13 & Chap. V--- Tehsil Nazim--- Resolution of no-confidence---Conditions---Petitioner was elected as Tehsil Nazim---Resolution of no-confidence was moved against the petitioner which was passed in the Tehsil Assembly---Contention of petitioner was that proceedings of no-confidence were initiated in his absence---Validity---Petitioner had lost confidence of members and it was decided to elect another member as Tehsil Nazim by the House---Conditions for no-confidence motion had been fulfilled---Fair opportunity for clarification of allegations against the petitioner was his right---When no-confidence motion was fixed petitioner should have joined his colleagues/members to satisfy his right as successful Tehsil Nazim but he did not face the House---Provincial Government had been informed of the vote of no-confidence against the petitioner which had been successfully passed---Constitutional petition was not maintainable in circumstances---Petitioner was directed to handover the official vehicle to the concerned authorities--- Constitutional petition was dismissed accordingly.

Sher Muhammad for Petitioner.

Mian Hussain Ali, Deputy Attorney General, Sabir Shah, A.A.G. for official Respondents and Iqbal Hussain for TMO.

2018 C L C 1092

[Peshawar]

Before Muhammad Younus Thaheem, J

IMRAN AMJAD KHAN---Applicant

Versus

ISLAMIC INVESTMENT BANK LIMITED (IIBL)

through Official Liquidator and 4 others---Respondents

C.M. No.19-P 2015 in C.C. No. 5 of 2005, decided on 03rd November, 2017.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2---Companies (Court) Rules, 1997, R. 3---Exit Control List---Application for removal of name---Applicant was Chief Executive of company during 01-09-2003 to 09-10-2006 who filed application for removal of his name from Exit Control List during pendency of application for winding-up of company---Validity---High Court directed to put names on Exit Control List until directors and officials of company executed heavy amount of surety bonds to the satisfaction of High Court with undertaking that whenever such persons were required, they would attend High Court---Petitioner was ready to submit heavy bonds as well as undertaking to appear before High Court as and when required---Liberty of a citizen could not be curtailed by mere registration of criminal complaint where role attributed to petitioner was of abetment under S. 109, P.P.C.---Security Exchange Commission of Pakistan had sent names of 8 persons out of 14 and person who obtained financial facility from company under liquidation had repaid all amount with profit---High Court directed the authorities to remove name of petitioner from Exit Control List---Application was allowed accordingly.

PLD 1997 SC 617; PLD 2016 SC 570 and 2017 SCMR 1179 rel.

Muhammad Tariq Khan Hoti and Barrister Syed Mudassir Ameer Official Liquidator for Applicants.

Syed Haziq Ali Shah for Respondents.

2018 C L C 1120

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Muhammad Nasir Mehfooz, JJ

BAKHT MUHAMMAD and 4 others---Petitioners

Versus

SECRETARY WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) AT ISLAMABAD and 7 others---Respondents

W.P. No.740-M of 2017, decided on 22st November, 2017.

Electricity Act (IX of 1910)---

----S. 12---Pakistan Water and Power Development Act (XXXI of 1958), S. 14---Laying down/Placing of electricity supply lines---Entry into private land---Scope---Petitioners were owners of land and they were aggrieved of excavation of their lands by authorities to fix poles/towers for purposes of electricity supply lines, without payment of any compensation---Validity---Petitioners and all other such affectees were to approach concerned Executive Engineer Irrigation under provisions of S. 12 of Electricity Act, 1910 and S. 14 of Pakistan Water and Power Development Act, 1958--- High Court directed Executive Engineer Irrigation to resolve the issue regarding grievance of petitioners and such other affectees in accordance with law---Constitutional petition was disposed of accordingly.

Nisar Ahmad v. Masood Akhtar and others 2011 SCMR 226 fol.

Syed Abdul Haq for Petitioners.

2018 C L C 1157

[Peshawar]

Before Yahya Afridi, C.J. and Ijaz Anwar, J

FARAZ AHMAD---Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL, and 2 others---Respondents

W.P. No.781-P of 2016, decided on 9th May, 2017

Pakistan Medical and Dental Council Regulations, 1962---

----Regln. 5(2)(c)---MBBS and BDS Courses and Conditions for House Jobs/Internships Regulations, 2016---Constitution of Pakistan, Art. 199---Constitutional petition---Admission---Category of seat---Petitioner was a local student but was given admission against a seat reserved for foreign student---Petitioner deposited tuition fee prescribed for regular students and assailed notice issued by authorities for seeking deposit of balance tuition fee---Validity---Quota admission could be allowed under Regln. 5(2)(c) of Pakistan Medical and Dental Council Regulations, 1962 to a local student on a foreign seat if same was left vacant---Petitioner at the time of admission, was favoured while allowing him admission against a foreign seat but later on petitioner turned around and wanted to get benefit from lapses/irregularity committed by authorities in allowing admission to petitioner---Authorities issued letter to the petitioner whereby his request was accepted and he was appraised that his fee was reduced against foreign seat---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Waseem ud Din Khattak for Petitioners.

Mansoor Tariq for Respondents.

2018 C L C 1202

[Peshawar (Abbottabad Bench)]

Before Rooh-ul-Amin Khan and Lal Jan Khattak, JJ

Sardar SHER BAHADUR and 5 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Law, Islamabad and another---Respondents

W.P. No.958-A of 2015, decided on 6th April, 2017.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 78-A, [as inserted by the Khyber Pakhtunkhwa Local Government (Third Amendment) Act, 2015]---Constitution of Pakistan, Arts.19, 32, 37, 63-A & 140-A---Members of local council---Disqualification on the ground of defection---Procedure---Petitioners cast vote in favour of opposite candidate of their party and were defected from the party---Contention of petitioners was that S.78-A of Khyber Pakhtunkhwa Local Government Act, 2013 was in conflict with the Fundamental Rights and principles of natural justice---Validity---Provincial Legislature had exclusively been vested with the powers to make law for the establishment and running of affairs of Local Government System in the Province---Provincial Government had legislated and published the Khyber Pakhtunkhwa Local Government Act, 2013 for constructing and regulating the Local Government Institutions in accordance with the requisites of Arts.32, 37 & 140-A of the Constitution---Provision of S.78-A of Khyber Pakhtunkhwa Local Government Act, 2013 did not empower the party head or his nominee alone to remove a member from the Local Council rather it had provided ample opportunity to aggrieved member/person to show cause in writing for the act of his/her defection before issuance of declaration of defection by the party---If party head was not satisfied with the explanation of incumbent, he might declare him/her to have defected from the party and in such eventuality the party head would forward a copy of said declaration to the Presiding Officer of concerned Council and Chief Election Commissioner and to the member---Mere declaration with regard to defection by the party head was not final and binding rather same was required to be referred to the Chief Election Commissioner and it was Election Commission to decide defection or otherwise of the member---Decision of Election Commission would not be final and aggrieved member had right of appeal before the High Court---Article 63-A of the Constitution was a valid legislation---Provincial legislature had inserted S.78-A in the Khyber Pakhtunkhwa Local Government Act, 2013 being verbatim copy of Art.63-A of the Constitution---Such legislation was valid for curbing the mischief of political instability---Declaration of defection was an intra party decision which could not be challenged on the threshold of Article 19 of the Constitution---Elected member was bound by the discipline, code of conduct and declared policies of the party---If such person after election had changed his affiliation, he should give up his membership of the council and go back before the electorate---Same yardstick was applicable to the member who was elected as an independent candidate and joined a political party after election---Person who had sought election as a candidate of a political party on its ticket should hold out to his party and the electorate his abiding faith on the manifesto of his party---Defection from the party after election would amount to refusal to carry out promise and commitment which would be a breach of trust imposed by the electorate---Impugned law was in accordance the provisions of the Constitution and intra vires---Constitutional petitions were dismissed in circumstances.

Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263; Humayun Saifullah Khan v. Federation of Pakistan PLD 1990 SC 599; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 and Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 rel.

(b) Constitution of Pakistan---

----Art. 19---Freedom of speech---Scope.

(c) Khyber Pakhtunkhwa Local Government (Third Amendment) Act, 2015---

----S. 78-A---'Floor-crossing'---Meaning.

Barrister Babar Sattar for Petitioner.

Abdul Latif Yousafzai, Advocate General, KPK for Respondents.

2018 C L C 1234

[Peshawar]

Before Qaiser Rashid Khan and Ijaz Anwar, JJ

Dr. ARSHAD RASHID---Petitioner

Versus

CHIEF INFORMATION COMMISSIONER, RIGHT TO INFORMATION COMMISSION (TRIC) KPK, PESHAWAR and 5 others---Respondents

W.P. No.1269-P of 2017, decided on 11th October, 2017.

Khyber Pakhtunkhwa Right to Information Act (XXVII of 2013)---

----Ss. 6 & 26(3)(b)--- Right to information--- Non-providing of information---Petitioner was a public servant and did not comply with direction of Right to Information Commission (RTIC) and failed to provide record in question---Fine of Rs.25000/- was imposed by RTIC on the petitioner and the same was maintained by Lower Appellate Court---Validity---Stubborn attitude of petitioner in deliberately not providing documents forced the Commission to take strict action---Proper opportunity of hearing was provided to petitioner but he failed to reply or shown good cause for not providing required documents---Petitioner failed to perform his legal obligation and as such fine was rightly imposed upon him by the RTIC---High Court declined to interfere in the judgment passed by Lower Appellate Court, as in appeal all points and issues involved in the matter were dealt with elaborately---High Court directed that fine imposed upon petitioner should not have any adverse effect on service career of the petitioner---Constitutional petition was dismissed in circumstances.

Awais Ahmad Qadri for Petitioner.

Syed Sikandar Hayat Shah, AAG for Respondents.

2018 C L C 1257

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

NOOR MUHAMMAD ADVOCATE through Special Attorney---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government Election and Rural Development Department, Civil Secretarial Peshawar and 12 others---Respondents

W.Ps. Nos.334-P and 356-A of 2017, decided on 25th July, 2017.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 84 & 55---District Council (Procedure and Conduct of Business and Meetings) Byelaws, 2015, Clause 9---No-confidence motion against Nazim and Naib Nazim of District Council---Procedure---Local Government Commission, functions of---No confidence motion moved against Nazim and Naib Nazim succeeded wherein Presiding Officer also cast his vote---Contention of petitioners was that Presiding Officer had no authority to cast his vote---Validity---Two-third majority of the total number of members of local council electing Nazim and Naib Nazim were required for success of no confidence motion against them---Presiding Officer being a member of local council could cast his vote in no-confidence motion---Proceedings of no-confidence motion could not be called in question before Local Government Commission nor it had any mandate to reject or set aside the outcome of said motion---District Council was an independent body, however, its functions and affairs were subject to direction of the Chief Minister---Constitutional petition was dismissed in circumstances.

(b) Interpretation of statutes---

----Presumption is that legislature choose its words carefully, therefore, if a word or phrase added somewhere, such addition was not to be deemed redundant; conversely, if a word or phrase had been left out somewhere, such omission was not to be deemed inconsequential.

On the Interpretation of Statutes by Maxwell 11th edition at page 311; Muhammad Ismail v. The State PLD 1969 SC 241 and Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 rel.

(c) Words and Phrases---

----'Cast of vote'---Meaning---Cast of vote means.

A deciding vote cast by the chair of deliberative assembly when the votes are tied.

Black's Law Dictionary rel.

Abdul Latif Afridi for Petitioners.

Raja Muhammad Zubair, A.A.-G. for Respondents Nos. 1 to 4.

Syed Hameed Hussain Shah, Assistant A.-G. for Respondent No. 5.

Junaid Anwar Khan for Respondents Nos. 6 to 13.

2018 C L C 1311

[Peshawar]

Before Yahya Afridi, C.J. and Qalandar Ali Khan, J

GHULAM SHOAIB JALLY---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Writ Petition No. 1617-P/2014 with C.M. 1586-P/2015, decided on 20th December, 2017.

Canal and Drainage Act (VIII of 1873)---

----Preamble---Canal water---Protection from pollution---Commission constituted by the High Court to identify the major sources polluting the canals of the Province and the Provincial capital; to identify the hot spot localities in the Provincial capital with maximum threats of canal pollution; to chalk out short term, medium term and long term solutions with specific time frame; to study various relevant laws for stoppage of solid waste, municipal waste entering the canal system passing through the Provincial capital; to propose amendments in the relevant laws if sufficient provisions were not available to prevent solid and municipal waste entering the canal system; to specify the role and responsibility of departments concerned, and to give any other suggestions/recommendations---Said Commission after deliberation formulated its recommendations in a 'Recommendation Report'---High Court, after appreciating the efforts of the Commission directed that its 'Recommendation Report' should be placed before the Provincial Chief Secretary within 60 days of present order to ensure its implementation, and that the progress report in the matter should be submitted to the Director, Human Rights Cell, High Court, for inspection of the Chief Justice of the High Court---Constitutional petition was disposed of accordingly.

Petitioner in person.

Wilayat Ali Khan, Additional A.-G. for Provincial Government along with Mamraiz Khan, SDO, Irrigation Department, Peshawar.

Atif Ali Khan for Respondent No.2.

Muhammad Jamal Khan Afridi for Respondent No.3.

Khalid Rehman for KTH.

Ehsanullah for Respondent No.5.

Dr. Muhammad Bashir, DG, EPA, Peshawar.

2018 C L C 1354

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

SARDAR HUSSAIN and others----Appellants

Versus

ZAFAR HUSSAIN----Respondent

S.A.O. No.1 of 2012, decided on 29th September, 2017.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment petition---Wilful default, personal need and subletting by tenants---Non-deposit of rent by tenants in the Court---Effect---Initiation of ejectment proceedings---Pre-requisite---Tenants contended that neither they were served with notice by new landlord, nor he was owner of the subject property---Landlord contended that first appellate court had rightly passed ejectment order on the basis of wilful default by the tenants---Validity---Record revealed that tenants had not deposited the rent in court which was essential pre-requisite--- Even if tenants had not accepted the new owner as landlord they were legally bound to deposit rent in the court which they had not done deliberately---Despite the fact that tenants claimed the monthly rent to be Rs. 100/- per month in current high rise period of inflation the same had not been deposited in the court---Tenants had simply relied on the receipt of money order sent to the previous owner but the same did not absolve their liability to deposit rent in the court after institution of ejectment proceedings---Copy of notice sent to the tenants was exhibited by the landlord with the ejectment petition which negated the contention of tenants regarding non-issuance of notice by the new owner---No illegality or infirmity having been noticed in the impugned order passed by first appellate court---Second appeal of tenants was dismissed accordingly.

Abdul Rehman for Appellants.

Alamzeb for Respondent.

2018 C L C 1394

[Peshawar]

Before Ikram Ullah Khan and Ijaz Anwar, JJ

M/s. MAJID BOOK DEPOT (PUBLISHERS & BOOK SELLERS) through Proprietor----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 5 others----Respondents

Writ Petitions Nos.3499-P and 4364 of 2016, decided on, 26th September, 2017.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Supply of school materials by the petitioner who sought direction from High Court under Art.199 of the constitution for payment---Contention of petitioners was that books and other items were supplied to the Workers Welfare Board having network of schools but payment of the same was not made---Validity---Nothing was on record with regard to tender for supply of books and other items---Petitioners were not contractors with the respondents---Whole exercise in the present matter had been carried out without observing proper procedure---National Accountability Court had taken cognizance of the matter wherein Secretary Workers Welfare Board and other employees of the Board had been arrested---Petitioners could avail appropriate remedy under the law---Constitutional petition was dismissed in circumstances.

2005 SCMR 1721; 2008 SCMR 605 and 2012 SCMR 773 ref.

PLD 1997 SC 82; 2004 SCMR 1274; PLD 2007 SC 298 and 1999 SCMR 467 distinguished.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope.

High Courts while exercising constitutional jurisdiction should not involve themselves into investigations of disputed questions of facts which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Controversial question of facts adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by Courts having plenary jurisdiction in matter.

Muhammad Saeed Azhar v. Martial Law Administrator 1979 SCMR 484; Umar Hayat Khan v. Inayat Ullah Butt and others 1994 SCMR 572; Mst. Kaniz Fatima through legal heirs v. Muhammad Saleem 2001 SCMR 1493; Secretary, Govt. of Punjab v. Ghulam Nabi and others PLD 2001 SC 415; Wazir Ali Soomro v. WAPDA and others 2005 SCMR 37 and Col Shah Sadiq v. Muhammad Ashqiq and others 2006 SCMR 276 rel.

Muhammad Farooq Afridi for Petitioners.

Rab Nawaz, A.A.G. and Jehanzeb Mehsud for Respondents Nos.3 and 4.

2018 C L C 1427

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Muhammad Nasir Mahfooz, JJ

AL-FATAH CRICKET CLUB through President----Petitioner

Versus

PAKISTAN CRICKET BOARD through Chairman and 4 others----Respondents

W.P. No.565-M of 2017, decided on, 7th February, 2018.

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

----Ss.3 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Cricket Board, functions of---Petitioner was a Cricket Club and assailed acts of Pakistan Cricket Board declaring its status as "Inactive"---Cricket Board objected to maintainability of petition under Article 199 of the Constitution---Validity---Pakistan Cricket Board was a person performing functions under the control of Federal Government so, the regulations duly published in official gazette after approval of Federal Government, were statutory in character---Constitutional petition was maintainable in circumstances.

Atchison College Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326 and 2013 SCMR 1707 rel.

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

----Ss. 3 & 5---Good governance---Cricket Board, functions of---Cricket Club---Determination of status---Petitioner was a Cricket Club established in Federally Administered Tribal Area and it was aggrieved of its status declared by Cricket Board as "Inactive"---Validity---For about 5-6 years the Area suffered a lot due to militancy and insurgency which had hampered pace of development---People of Federally Administered Tribal Area then joined stream of successful lives of their generation---Sports was one of such activity that could create healthy environment for the betterment of society and if those people were not allowed to participate in sports activities then certainly the younger generations would turn their attention towards unproductive activities as faced during turbulent period---No fruitful purpose would be served, if petitioner club was restrained from actively participating in sports activities, which would help young players having talent to display the same in national level as well as in the comity of nations, in the larger perspective---Promotion of sports and cultural activities was one of the primary responsibility of the State which could further help in promotion of social and economic well-being of people---If petitioner was provided a further chance by authorities in scrutiny of their antecedents afresh, it would be more in the interest of justice rather than to defeat the ends of justice---High Court directed Pakistan Cricket Board to allow another chance to petitioner to fulfill requisite criteria as envisaged in relevant rules---Constitutional petition was allowed accordingly.

2016 SCMR 2146; 2017 SCMR 571; 2017 PLC 1270; 2013 SCMR 314; Salahuddin v. Frontier Sugar Mill and others PLD 1975 SC 2014; Pakistan Telecommunication Company Ltd. v. Muhammad Zahid and others 2010 SCMR 253 and Shafiq Ahmad Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377 ref.

Barrister Dr. Adnan Khan for Petitioner.

Junaid Anwar Khan and Hazrat Rehman for Respondents.

2018 C L C 1465

[Peshawar (Mingora Bench)]

Before Ms. Musarrat Hilali and Mohammad Ibrahim Khan, JJ

AMEER JAN and 17 others----Petitioners

Versus

PROJECT MANAGER GRC and 5 others----Respondents

Writ Petition No.16-M of 2017, decided on 12th June, 2017.

Pakhtunkhwa (Energy) Development Organization Act (I of 1993)---

----Ss. 14, 15 & 16---Towers, installation of---Non-acquisition of land---Petitioners were owners of land in which authorities started installation of towers for purpose of electricity supply---Grievance of petitioners was that no compensation was paid to them by the authorities---Validity---Authorities had carried out 95% of work of installation of towers for purposes of electricity supply---Authorities could not be restrained from installation of transmission lines who had spent huge finances in billions---High Court observed that petitioners in circumstances, should be compensated at market value of their lands if lands in questions were directly affected from installation of towers---In order to initiate process of determination of price of lands, coming under elevation of towers, owned by affectees/petitioners, there should be an earlier acquisition process for a definite award strictly in terms of market rate---Constitutional petition was disposed of accordingly.

Kadir Baksh v. Chairman WAPDA and others 2007 MLD 1998; Mst. Shehla Zia and others v. WAPDA PLD 1994 SC 639; Malik Haji Nazar Muhammad and another v. WAPDA and another PLD 1991 SC 715; Hakim Ali v. Member Power WAPDA and others PLD 2002 Lah. 28; Pakistan Water and Power Development Authority v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society and others PLD 1993 Lah. 237; Umer Gul v. Malik Abdul Manan PLD 1992 Pesh. 76 and Contempt of Court proceedings against Chief Secretary Sindh and others 2013 SCMR 1752 ref.

Shah Salam Khan for Petitioners.

Malak Ahmad Jan for Respondents.

2018 C L C 1479

[Peshawar]

Before Shakeel Ahmad, J

YAHYA JAN and 3 others---Petitioners

Versus

MUHAMMAD YOUNAS and 3 others---Respondents

C.R. No.1018 of 2011, decided on 30th March, 2018.

Civil Procedure Code (V of 1908)---

----S. 96---Suit for declaration---Appeal against Judgment of Trial Court---Limitation---Condonation of delay---Due diligence and care---Scope---Appeal against the judgment and decree of Trial Court was dismissed on the ground of limitation---Validity---Impugned judgment and decree was passed on 30-10-2010---Application for issuance of certified copy of judgment and decree was filed on 16-11-2010 which were delivered on 27-11-2010---Appeal was filed on 18-12-2010 which was barred by six days---Appellants could have filed appeal before the Court within thirty days as they were in possession of certified copy of the impugned judgment---Delay in filing appeal before the Appellate Court was due to negligence and carelessness of the appellants---Appellants had failed to pursue their cause with due diligence and care---Person seeking condonation of delay must explain delay of each and every day to the satisfaction of Court and should also establish that delay had been caused due to reasons beyond his control---Delay in filing of appeal in the present case was neither explained nor any application for condonation of delay was moved before the Appellate Court---Appeal was rightly held to be barred by time and dismissed by the Appellate Court---Revision was dismissed in circumstances.

Raheem Bakhsh v. Pathani PLD 1985 SC 324 and Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 rel.

Fazal Ilahi for Petitioners.

Nauman Khan for Respondents.

2018 C L C 1497

[Peshawar (Abbottabad Bench)]

Before Yahya Afridi and Roohul Amin Khan, JJ

M/s SHAMSI BUILDERS LTD.----Petitioner

Versus

The GALIYAT DEVELOPMENT AUTHORITY, through Director General, Abbottabad and 3 others----Respondents

Writ Petition No.348 of 2011 with I.R. with C.Ms. 99-P, 837-P of 2014 with COC No.137-P of 2014, decided on, 11th February, 2016.

Galiyat Development Authority Act (VII of 1996)---

2018 C L C 1519

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

BUZARG KHAN----Petitioner

Versus

Mst. JABIN and 3 others----Respondents

Writ Petition No.531-M of 2017, decided on 30th November, 2017

Civil Procedure Code (V of 1908)---

----S. 12(2)---Suit for declaration dismissed as withdrawn on compromise---Allegation of fraud and misrepresentation---Application for setting aside the order was moved which was dismissed by the Trial Court but Appellate Court accepted in appeal---Validity---Any person having interest in the cause of action could challenge the validity of judgment, decree or order on the plea of fraud, misrepresentation and want of jurisdiction by filing an application but not by a separate suit---Application for withdrawal of suit was moved on account of compromise between the parties---Statement of special attorney was recorded and Trial Court dismissed the suit as withdrawn---Application under S.12 (2), C.P.C., was not warranted in circumstances---Appellate Court had accepted the application under S.12(2), C.P.C., without adverting to the fact that suit was dismissed as withdrawn---When suit had been dismissed as withdrawn, there was no decree to be executed---If there was any execution petition same was to be filed without further proceedings/execution---Constitutional petition was disposed of accordingly.

Abdul Kabir for Petitioner.

Amir Gulab Khan for Respondents.

2018 C L C 1659

[Peshawar]

Before Muhammad Ayub Khan and Ijaz Anwar, JJ

MUHAMMAD NASIM---Petitioner

Versus

KASHIF NASIM and another---Respondents

Writ Petitions Nos. 3204-P and 3207-P of 2017, decided on 6th November, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Conditional leave granting order---Petitioner/defendant was allowed to defend suit for recovery of money on the basis of dishonoured cheques subject to deposit of suit amount---Validity---In application for leave to defend Petitioner had raised number of questions including denial of his signatures on disputed cheques in his application for leave to defend suit---Transaction between parties was in nature of business---Questions so raised in application for leave to defend suit was based on alleged issuance of cheques and same could only be determined after recording of evidence---Defence in application was neither vague nor illusionary---Conditional order of leave to defend was too harsh and order directing for deposit of amount of equal proportion to whole disputed amount, amounted to deprive petitioner from defending suit---High Court reduced the amount ordered to be deposited and modified the conditional order---Constitutional petition was allowed accordingly.

Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Habib Bank Limited, Circle Office, Multan v. Al-Qaim Traders and another 1990 SCMR 686; Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925 and Balochistan Trading Company v. National Bank of Pakistan and another 1998 SCMR 1899 rel.

2011 MLD 1249; 2013 CLD 1701; PLD 2010 Lah. 219 and 2016 YLR 43 ref.

Jehangir Khan for Petitioner.

Gul Rehman Mehmand for Respondents.

2018 C L C 1693

[Peshawar (Mingora Bench)]

Before Qalandar Ali Khan and Muhammad Ghazanfar Khan, JJ

MUHAMMAD SALEEM KHAN and others----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission of Pakistan and 2 others----Respondents

W.Ps. Nos.503-M/2018 with I.R., 510-M/2018 with I.R., 512-M/2018 with I.R., 513-M/2018 with I.R., 514-M/2018 with I.R., 518-M/2018 with C.Ms. 698 and 699 of 2018, 519-M with I.R. and 532-M/2018 with I.R., decided on 6th June, 2018.

(a) Elections Act (XXXIII of 2017)---

----S.20---Elections Rules, 2017, R. 10---Delimitation of constituency---Scope---Election Commission detached one union council from Tehsil and attached the same with another Tehsil---Validity---Election Commission while making delimitation had not violated the relevant provisions of law---Factual controversies with regard to delimitation could not be resolved under constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

(b) Elections Act (XXXIII of 2017)----

----S.20---Elections Rules, 2017, R. 10---Delimitation of constituency---Scope---Contention of petitioner was that he had objected through representation to the delimitation in question which was dismissed by the Election Commission---Validity---Election Commission while dealing with the said representation had not made reference to the objections raised therein---Matter was to be referred to the Election Commission for reconsideration of siad issues in accordance with the relevant provisions of Elections Act, 2017 and Elections Rules, 2017---Representation was to be deemed to be pending before the Election Commission to be decided in accordance with law---Constitutional petition was allowed accordingly.

Sher Muhammad Khan, Sajjad Anwar, Muhammad Nabi, Inayatullah Khan, Aurangzeb, Rana Muhammad Khalid Javed, Haq Nawaz Khan and Mujahid Farooq for Petitioners.

Muhammad Adil for Election Commission, Khyber Pakhtunkhwa along with Abdul Qadar, District Election Commissioner, Peshawar Ijaz Ahmad, District Election Commissioner, Swat and Faiz Muhammad, District Qanungo, Swat for Respondents.

2018 C L C 1731

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

SAMIULLAH and 7 others----Petitioners

Versus

Mistri UMARA KHAN ----Respondent

Civil Revision No.241-M of 2016, decided on 19th February, 2018.

Civil Procedure Code (V of 1908)---

----S.47---Suit for declaration---Execution petition---Objection---Objection petition moved by the applicant was accepted and execution petition was dismissed by the Executing Court---Appellate Court remanded the case to the Executing Court for further proceedings in accordance with law---Validity---Decree-holder was bound to prove that the property mentioned in the execution petition was decreed in his favour---Local Commissioner suggested that decree-holder might seek execution of some other property---Such suggestion of Local Commissioner was beyond his authority---Decree-holder had failed to prove the suit property being part of the decree---Only judgment and decree could be executed and executing Court could not go beyond the decree---Order passed by the Appellate Court was not in exercise of jurisdiction vested by law---Execution petition was dismissed while allowing objection petition---Revision was allowed in circumstances.

1994 SCMR 2213; 2006 CLC 1555; PLD 2009 Quetta 13; 2010 SCMR 1417; 2010 SCMR 1443 and 2012 YLR 398 ref.

Qazi Midrarullah for Petitioners.

Adil Khan Tahirkheli for Respondent.

2018 C L C 1765

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Messrs KHAN MINING AND INDUSTRIAL CORPORATION, ABBOTTABAD through Managing Partner----Petitioner

Versus

GOVERNMENT OF KPK through Secretary Mineral Development Department Peshawar and 14 others----Respondents

W.P. No.843-A of 2017, decided on 24th November, 2017.

(a) Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016 (I of 2017)---

----S.61---Cancellation of mineral title---Scope---Respondents sought cancellation of mining lease of the petitioner---Appellate authority summoned the petitioner and after hearing him cancelled mining lease---Validity---Held, Mineral Title Committee was competent to grant mineral title, however, once a mineral title was granted by the competent authority, then it could only be cancelled under S. 61 of Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016---Respondents were required under the law to approach the Licensing Authority for cancellation of the lease agreement---Respondents had directly approached the Appellate Authority, who had no jurisdiction to intervene into the matter---Appellate Authority could only hear appeals arising out from the orders of Mineral Title Committee---Order of Appellate Authority being illegal and passed without lawful authority and jurisdiction was set aside---Constitutional petition was allowed in circumstances.

(b) Administration of justice---

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

Atta Muhammad Qureshi's case PLD 1971 SC 61; Maghal Sugical's case 2005 PLC 634; Raja Hamayun Sarfraz Khan's case 2007 SCMR 307 and Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.

Khurram Ghias Khan and Muhammad Ibrahim Qureshi for Petitioner.

Sardar Muhammad Asif, AAG, for the State.

Iftikhar Ahmad Tanoli for Respondents Nos.6 to 15.

2018 C L C 1851

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

PERVAIZ AHMED----Appellant

Versus

MUHAMMAD KHURSHID KHAN----Respondent

R.F.A. No.64-M of 2016, decided on 26th January, 2018.

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

----O. VII, R. 10---Specific Relief Act (I of 1877), Ss. 42 & 12---Suit for declaration on the basis of agreement---Plaint, return of---Scope---Plaintiff was non-suited on the ground that suit for specific performance was the competent remedy in the matter---Validity---Plaintiff was bound to file suit for specific performance on the basis of agreement deed allegedly executed between the parties---Form of the suit being defective, plaint was returned to the plaintiff---Plaintiff could file fresh suit for obtaining specific performance on the basis of agreement within the ambit of its limitation---Appeal was disposed of accordingly.

Mst. Rasheeda Bibi and others v. Mukhttar Ahmad and others 2008 SCMR 1384; Bharoo and 2 others v. Chief Settlement Commissioner and 2 others 1999 SCMR 786; Bakht Zamin v. Said Majid 1989 SCMR 1719; Roazi Khan and others v. Nasir and others 1997 SCMR 1849; Mubarak Ali Shah v. Muhammad Khan and 3 others 2014 CLC 1117; Muhammad Bashir v. Muhammad Hussain 16 others 2009 SCMR 1256 and Abdul Majeed v. Kishwar Nasim and others 2011 YLR Note 33 (Lahore) ref.

Fazal Hussain Shah through Heirs and others v. Rustam through Legal Heirs and other 2010 YLR 297; Muhammad Bashir and 2 others v. Abdul Rauf and another 2011 MLD 96 and Khair Muhammad and others v. Nawab Bibi and others 2008 SCMR 515 rel.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S. 42---Amendment to add relief of specific performance in a suit for declaration was sought at appellate stage---Scope---Amendment plea could be taken at any stage of the proceedings---Amendment was to be allowed where same was required for correct conclusion and determination of real dispute between the parties---Appellate Court had same powers which were exercised by the Court in its original jurisdiction with regard to suit as appeal was continuation of suit---Proposed amendment would change the complexion and character of the suit and same could not be allowed---Application for amendment was dismissed in circumstances.

Abaid Ullah Malik v. Additional District Judge Mianwali and others PLD 2013 SC 239; Mushtaq Ahmad and others v. Arif Hussain and others 1989 MLD 3495; Sher Shah v. Alam Sher 2017 CLC 378; Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712; Syed Match Company Ltd. through Managing Director v. Authority Under Payment of Wages Act and others 2003 SCMR 1493; Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66; Mst. Arshan Bibi through Mst. Fatima Bibi and others v. Maula Baksh through Mst. Ghulam Safoor and others 2003 SCMR 318 and Gul Roze and another v. Sargand and others 2003 CLC 116 ref.

Hazrat Rehman for Appellant.

Ayaz Muhammad for Respondent.

2018 C L C 1901

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Pir MUNAWAR SHAH----Petitioner

Versus

HABIB-UR-REHMAN and 4 others----Respondents

C.R. No.70-A of 2009, decided on 27th September, 2017.

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

----S.12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement to sell---Limitation---No date in agreement to sell was fixed for payment of remaining balance amount, however, it was stipulated therein that the balance amount would be paid at the time of attestation of mutation---Mutation was attested on 1.10.1995 however, same was cancelled by Revenue Officer on 14.3.1996---Suit for specific performance was filed on 28.1.2003---Validity---Held, Art.113 of Limitation Act, 1908 provided a period of three years for filing of suit for specific performance---Period of limitation was to start from the cancellation of mutation---Suit for specific performance was time-barred, as the same was not instituted within period of three years of the cancellation of mutation---Revision was dismissed in circumstances.

(b) Pleadings---

----Plaintiff had to prove his case on the strength of his own evidence and could not get any benefit from the shortcomings and weaknesses of the defendant's case.

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

----Art.73---Photocopy taken on record and exhibited without any objection would not qualify the document as admissible piece of evidence.

Abdur Rehman v. Haji Muhammad Yousaf 2007 SCMR 6 rel.

Muhammad Naeem Anwar for Petitioner.

Muhammad Shafiq Awan and Sahar Gul for Respondent.

2018 C L C 1941

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

SHAFQATULLAH---Petitioner

Versus

MUHAMMAD ANWAR---Respondent

C.R. No.213-D of 2017, decided on 14th December, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10 & O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 6---Negotiable instrument---Summary suit on the basis of cheque---Plaint, return of---Scope---Application for return of plaint was moved on the ground that "cheque" was not a "negotiable instrument" and Court had no jurisdiction to adjudicate upon the matter---Trial Court dismissed the said application holding that Court had jurisdiction to adjudicate upon the matter---Validity---"Cheque" would fall within the definition of "negotiable instrument"---Plaintiff could file suit under O. XXXVII, R.2, C.P.C. on the basis of cheque---Trial Court had rightly dismissed the application filed by the defendant---No illegality, irregularity or jurisdictional defect was pointed out in the impugned order passed by the Trial Court---Revision petition was dismissed in limine.

Nemo. for Petitioner

2018 C L C 1959

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

AMEEN UL HAQ----Petitioner

Versus

Mst. PARVEEN and 9 others----Respondents

Civil Revision No. 166-M of 2017, decided on 20th December, 2017.

Oaths Act (X of 1873)---

----S.10---Suit for declaration---Settlement of dispute on the basis of oath---Scope---Parties got recorded their joint statement to settle their dispute on the basis of oath administered to the defendant---Plaintiffs, prior to administering oath submitted application that since interest of womenfolk and minors was involved, they wanted to resile from administering oath---Trial Court did not entertain request of plaintiffs and proceedings were fixed for taking oath and thereafter suit was dismissed---Appellate Court remanded the matter with the direction to decide the controversy after recording evidence---Validity---Application to resile from administering oath was moved on the same date when oath was administered---Condition laid down for taking oath had not been fulfilled in the present case---Appellate Court had rightly appreciated the fact that interest of minors and womenfolk was at stake in the case---No permission on behalf of womenfolk or minors through guardian-ad-litem to administer oath had been obtained---Oath had been administered wrongly in circumstances---Revision was dismissed in circumstances.

Muhammad Rafique and another v. Sam Muhammad and others PLD 1996 SC 237; Attiquallah v. Kafatullah 1991 SCMR 162; Muhammad Rafique v. Nasir Mehmood PLD 2016 Lah. 428; Mst. Raheela Salmat v. Additional District Judge Faisalabad and 2 others 2010 YLR 314; Mst. Bulbula and others v. Abdullah and others 2006 YLR 2074; Allah Ditta and others v. Mian Muhammad Akram and others 2003 SCMR 1199; Obaid Asghar v. Farhat Shaheen 1995 SCMR 865; Mst. Asifa Sultana v. Honest Taders Lahore and another PLD 1970 SC 331 and Anayat Ali v. Muhammad Yaqoob PLD 1999 Lah. 328 ref.

Sajjad Ahmad for Petitioner.

Iqbal Hussain for Respondents.

2018 C L C 45

[Balochistan]

Before Nazeer Ahmed Langove, J

PAKISTAN RAILWAYS EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. through General Secretary----Petitioner

Versus

Haji GHULAM HAIDER and 3 others----Respondents

Civil Revision No.334 of 2008, decided on 22nd June, 2017.

Civil Procedure Code (V of 1908)---

----O.XXVI, R.1---Local Commission, report of---Non-deciding of objections---Trial Court decided the suit on the basis of report filed by Local Commission---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Plea raised by plaintiff was that Trial Court did not frame issues and also not provided opportunity to adduce evidence---Validity---Both the Courts below erred in law by relying upon report submitted by Local Commissioner, objected to, by plaintiff timely but not considered---Trial Court did not frame issues and decided the matter once for all---High Court observed that lower Appellate Court should have decided the matter reasonably and justly by dilating upon the facts with reasons but it also maintained the order of Trial Court without applying judicial mind---Courts below failed to exercise their jurisdiction properly and strictly in accordance with the law which caused miscarriage of justice---High Court set aside judgments and decrees passed by two Courts below and remanded the matter to Trial Court for proceedings and decision thereon purely in accordance with law, after providing opportunity of hearing and evidence to parties---Revision was allowed in circumstances.

Mujeeb Ahmed Hashmi and Muhammad Usman Tareen for Petitioner.

Iqbal Ahmed Kasi for Respondent No.1.

Farooq Sarwar, Assistant Advocate General ("AAG") for Official Respondent.

2018 C L C 87

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

NOOR BIBI and 13 others----Petitioners

Versus

MEER MUHAMMAD alias MEER JAN and 4 others----Respondents

Civil Revision No.216 of 2015, decided on 18th August, 2017.

Civil Procedure Code (V of 1908)---

----S.32 & O. XVI, R.10(3)---Specific Relief Act (I of 1877), S.42---Suit for declaration and partition---Plaintiffs moved application to summon private witnesses through the court as said witnesses did not turn up despite receiving notices---Application was dismissed by the Trial Court---Powers and discretion of Court to summon witnesses---Scope---Petitioners contended that the witnesses in question were material witnesses which were necessary to resolve the controversy---Respondents contended that Court had discretion to summon the private witnesses if it was satisfied---Validity---Order XVI, R.10, C.P.C.. stipulated that in case of failure of a witness and or to ensure his/her appearance, the court might issue a warrant, with or without bail, for the arrest of such person, and make an order for the attachment of his/her property to such amount as it thought fit---In the present case, no order was passed by the trial court under sub-Rule (3) of R.10 of O.XVI or S.32, C.P.C.---High Court observed that Court of law was not a silent spectator and was supposed to act vigilantly in order to unearth the truth with the subject to resolve the controversy between the parties once for all---Trial Court, in the present case, had failed to realize that conferment of jurisdiction over it was not to rubber stamp the contention of the respondent---Legislature in its wisdom had inserted the provisions and bestowed the court with power to save the litigants from unnecessary hardship, expenditure and multiplicity of litigation---Casual or perfunctory exercise of jurisdiction, or refusal to exercise the vested jurisdiction would tend to defeat the purpose of conferment of jurisdiction upon the court, which would ultimately lead to injustice---Record showed that initially the names of purported witnesses were mentioned in the list of witnesses and summonses/ notices were also served upon them and after their refusal to appear before the court, the Trial Court was not only empowered to issue warrants of said witnesses with or without bail (surety bond) but was also empowered to pass orders for attachment of their moveable and/or immoveable properties in order to enforce their appearance---Impugned order passed by the Trial Court was set aside and the application filed by the petitioners under O.XVI, R.10(3), C.P.C. was accepted---High Court directed the Trial Court to issue warrants of arrest of the purported witnesses without any further loss of time---Trial Court was directed to proceed with the matter on weekly basis and no unnecessary adjournment would be granted to either side and High Court desired that the litigation between the parties would finally be decided preferably within six months after receipt of present judgment---Revision was accepted accordingly.

Hakim Habibul Haq v. Aziz Gul 2013 SCMR 200 and Mst. Bashir Bibi and others v. Ameen-ud-Din and others 1972 SCMR 534 ref.

Shahid Javed for Petitioners.

Muhammad Ismail for Respondents Nos.1 and 2.

2018 C L C 213

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

GHULAM SABIR through Special Power of Attorney----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Mines and Minerals Development and 2 others----Respondents

C.P. No.156 of 2017, decided on 9th October, 2017.

Balochistan Mineral Rules, 2002---

----R.70---Constitution of Pakistan, Art. 199---Constitutional petition---Time barred appeal---Effect---Petitioner assailed order passed by authorities in appeal filed by respondent restoring its prospecting license---Plea raised by petitioner was that appeal filed by respondent was barred by 20 years---Validity---Remedy as provided under R.70 of Balochistan Mineral Rules, 2002 was not availed within prescribed period of limitation and appellate authority exercised its jurisdiction wrongly---Delay had been condoned for reasons not recognized by law---Initial appeal having been filed beyond stipulated period and without explanation of delay and was not sustainable---High Court set aside order restoring prospecting license in favour of respondent---Constitutional petition was allowed under circumstances.

Dr. Muhammad Javed Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

Muhammad Ishaq Nasar for Petitioner.

B.K. Marwat for Respondent No.3.

Naseer Bangulzai and Shai Haq, Additional Advocate General for Respondents Nos.1 and 2.

2018 C L C 263

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ABDUL HADI and 9 others----Petitioners

Versus

ABDUL HANAN and 17 others----Respondents

Regular First Appeal No.41 of 2011, decided on 31st August, 2017.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 64---Suit for cancellation of mutation entries, declaration, possession and permanent injunction---Inheritance to daughter---Custom of excluding female heirs or compensating them in the alternate---Scope---"Co-sharer"---Scope---Daughter had not challenged inheritance in her life time---Effect---Pleas taken in appeal different from that at Trial Court---Effect---Will---Proof---Scope---Defendants contended that through Will of the predecessor-in-interest they were entitled for mutations in question---Such mutations were not challenged by the mother of plaintiffs in her life time being daughter of the predecessor-in-interest---Four daughters of deceased including the plaintiffs became co-shares of the property---Possession of one co-sharer was to be deemed to be the possession of other co-sharers---Heirs became co-sharers the moment the inheritance opened, even entry of mutation was not necessary---Defendants had pleaded, in the written statement, that the plaintiffs' due share had been paid in the shape of money and transfer of some properties, which reflected that they had not denied the heir-ship of the plaintiffs through their mother; to further strengthen their false plea with regard to the impugned mutations, the attorney for the defendants in his statement produced a photocopy of a "Will" indicating that the predecessor-in-interest in his lifetime through the said "Will" declared them as his heirs---Purported "Will" had neither been proved nor duly authenticated through any evidence---Even otherwise on the basis of "Will" a person or party could not claim heir-ship or a co-sharer---Co-sharer was the result of devolution of inheritance and at opening of succession the moment a person departed, the heirs became through blood relation---Defendants had failed to substantiate their claim because the photocopy of the "Will" was not admissible which was not registered---Such a will could not be taken into consideration---Appellants/defendants in the appeal had appended a pedigree table and claimed that they were relatives of late predecessor-in-interest but mere production of pedigree table was not sufficient unless relationship of persons mentioned therein is duly corroborated by satisfactory evidence, as required under Art.64 of the Qanun-e-Shahadat, 1984---No pedigree table was produced during evidence by the defendants nor substantiated the same during the trial and mere filing of pedigree table along with appeal could not be taken into consideration---Plaintiffs through evidence coupled with the admission of defendants, were entitled to have their sharia shares according to law and the Trial Court had decided relevant issues after proper appreciation of evidence, therefore, the findings of Trial Court were sustained---In the present case, the defendants neither alleged in the written statement the custom that excluded the female nor led any evidence to establish custom---Appellants/defendants in their written statement had taken a number of contentions and in appeal a new plea had been taken and claimed the inheritance on the plea of custom---Predecessor-in-interest of the plaintiffs having died in the year 1954, such plea was not consistent to what had been pleaded by the appellants in their written statement, and was an outright departure from what had been pleaded therein---Admittedly, the averment made in the pleadings was not evidence, but evidence or plea adduced in their support must be consistent therewith---Anything stated outside the scope of such averments could not be looked into---High Court upheld the impugned judgment--- Appeal was dismissed accordingly.

2004 SCMR 392; PLD 1990 SC 1; PLD 2002 SC 823; 1991 SCMR 1369; Mst. Jannatan and others' case PLD 2006 SC 322; Muhammad Bashir and others v. Mst. Latifa Bibi through L.Rs., 2010 SCMR 1915; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Muhammad Akram and 26 others v. Noor Ahmed and others, 1989 SCMR 755; Mst. Fazal Nishan and others v. Ghulam Qadir and others, 1992 SCMR 1773; Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others 1995 SCMR 868, Ismail and others v. Ghulam Qadir and others 1990 SCMR 1967; PLD 2006 SC 322 and Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 ref.

Muhammad Aslam Chishti for Appellants.

Jameel Lodeen and Naseer Ahmed for Respondents.

Khalil-uz-Zaman, Additional A.G. for Official Respondents.

2018 C L C 299

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

Mst. SEHAT BIBI----Petitioner

Versus

BAHAR KHAN and 2 others----Respondents

Civil Revision Petition No.(S)22 of 2016, decided on 6th October, 2017.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Inheritance---Limitation---Gift---Proof of---Procedure---Sale of suit land to third party---Effect---Contention of plaintiff was that impugned mutation was based on fraud---Suit was dismissed concurrently---Validity---Plaintiff and defendant being son and daughter of the deceased were the only legal heirs---Parties being legal heirs of deceased were entitled for their proportionate legal share from the legacy of deceased---Legacy left by the deceased had to be distributed amongst the legal heirs as per Sharia---Defendant had failed to produce any witness of oral gift or mutation entries---Impugned mutation did not bear signatures of deceased donor---Neither any witness of gift nor mutation entries was produced by the defendant to verify gift, its acceptance and delivery of possession---Impugned gift had neither been proved nor authenticated through any evidence---No one could claim ownership title in presence of other legal heirs on the basis of gift or will---Parties became co-sharer after the demise of donor---Possession of one co-sharer was to be deemed to be the possession of other co-sharer---When inheritance opened then entry of mutation was not necessary---Suit of plaintiff was not barred by time---Plaintiff being co-sharer was entitled for her legal share---Plaintiff had been deprived from her legal share in the legacy illegally and unlawfully---Suit land had already been sold and plaintiff was entitled to receive her share from the sale amount received by her brother---Impugned judgments and decrees passed by the Courts below were set aside and suit was decreed---Defendant was directed to pay the share of plaintiff according to Sharia within a period of three months---Plaintiff could initiate execution proceedings against the defendant in case of his failure to pay the said amount of sale consideration---Revision was allowed in circumstances.

Ghulam Ali and others v. Mst. Ghulam Sarwar Nagri PLD 1990 SC 1; 2004 SCMR 392; PLD 2002 SC 823 and 1991 SCMR 1369 rel.

Hasnain Iqbal Minhas for Petitioner.

Abul Haq Kasi and Muhammad Nasir Marri and Shai Haq, Assistant A.G. for Respondents.

2018 C L C 396

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

GOVERNMENT OF BALOCHISTAN, INDUSTRIES DEPARTMENT ----Appellant

Versus

MUHAMMAD YOUSAF and others----Respondents

C.M. Appeal No.05 of 2016, decided on 20th November, 2017.

Civil Procedure Code (V of 1908)---

----S. 47---Execution petition---Limitation---Operation of judgment stayed by the Supreme Court---Effect---Decree holders' first execution petition was pending before the Executing Court and same was adjourned till further orders by the Supreme Court---Second execution petition was moved after dismissal of appeal and review by the Supreme Court which was not time barred---Nothing was on record that ad-interim order of Supreme Court was modified or recalled prior to final order---No illegality or irregularity had been pointed out in the impugned order passed by the Executing Court---Appeal was dismissed in circumstances.

Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal through L.Rs, 2007 SCMR 1929 and Moulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 rel.

S.A.M. Qadri for Appellant.

Muhammad Usman Lasi for Respondents.

2018 C L C 459

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

Haji ABDUL WAHID----Appellant

Versus

ABDULLAH and 5 others----Respondents

R.F.A.No.96 of 2011 and Civil Revision No.108 of 2009, decided on 20th November, 2017.

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

----O. II, R. 2---Specific Relief Act (I of 1877), S.54---Suit (earlier) for recovery of mesne profit and mandatory injuntion after dismissal of eviction petition---Subsequent suit for ejectment from the premises---Relationship between the parties for ejectment proceedings being of partners in a business---Defendant (partner) was to pay rent of the premises to the plaintiff---Bar to subsequent suit---Different cause of action---Effect---Suit was dismissed being barred under O.II, R.2, C.P.C.---Validity---Defendant had neither denied the half share of plaintiff in the business nor in the rent of the demised premises---Occupation of defendant over the premises was permissive subject to payment of half share of business run by the defendant and payment of rent of the premises---Defendant had denied rent to the plaintiff (owner of the premises) for several years till filing of the present suit---Possession of defendant in circumstances could not be considered as wrongful in the property in question---Trial Court without referring the title of the suit and considering the claim of prior suit had passed the impugned order---Bar provided under O.II, R.2, C.P.C. was only with regard to subsequent suit and not with regard to suit filed simultaneously---Order II, R.2, C.P.C. required the joinder of all claims and relief arising out of same cause of action in a suit---Order II, R.2, C.P.C. did not bar a subsequent suit on different cause of action that had not accrued earlier---Earlier suit was for mandatory injunction with mesne profit and present suit was for ejectment---Present suit was not barred under O.II, R.2, C.P.C.---Impugned judgments and decrees passed by the Courts below could not be sustained in circumstances which were set aside---Case was remanded to the Trial Court to proceed with the matter on merits---Revision was allowed in circumstances.

1993 CLC 2478; Qalandar Din and 4 others v. Rasul Khan 1991 SCMR 525; Muhammad Tahir v. Abdul Latif and 5 others 1990 SCMR 751 and Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500 rel.

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

----O. II, R. 2---Relinquishment of claim---Effect---If plaintiff omitted to sue for all the claim and relief to which he was entitled with regard to cause of action then he would be precluded from second suit for suing in respect of cause so omitted---Object of O.II, R.2, C.P.C. was to prevent a party being vexed twice for the same cause of action.

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

----S. 2(12)---'Mesne profit'---Meaning and scope.

Wrongful possession is the very essence of claim for mesne profit. For seeking mesne profit person must be owner of property and having right to its possession. Mesne profit is in the nature of damages for being deprived of the benefit, which the person is deriving from the property. Section 2(12), C .P.C. provides that "Mesne Profit" of property means those profits, which the person in wrongful possession of such property actually received or might with the ordinary diligence have received therefrom. According to section 2(12), C.P.C. person became entitled to mesne profit only when he has right to obtain a possession from another person whose possession is unauthorized keeps him deprives of the possession. The first and foremost condition for awarding mesne profit is unlawful possession of the occupant of the property.

Muhammad Akram Shah for Appellant/Petitioner.

Tahir Ali Baloch for Respondents.

2018 C L C 511

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ZARGHOON SHAH and others----Petitioners

Versus

DILAWAR KHAN and others----Respondents

C. Ps. Nos. 298 and 299 of 2010, decided on 20th November, 2017.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.XIV---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), Ss. 17(d) & 49---Contract Act (IX of 1872), S.28---Petitioner was aggrieved of order passed by two courts below whereby judgment and decree passed in his favour was set aside by Trial Court in exercise of powers under S.12(2), C.P.C. and order was maintained by Lower Appellate Court---Validity---Lease agreement in question was not registered and such agreement for purpose of tenure was to be binding upon initially for a period of 11 months whereafter relationship between parties was to be regulated in terms of the Transfer of Property Act, 1882---Trial Court as well as Lower Appellate Court failed to consider the case in view of S.107 of Transfer of Property Act, 1882 read with Ss.17(d) & 49 of Registration Act, 1908 as well as S.28 of Contract Act, 1872---Trial Court without framing issues and providing opportunity to parties with regard to legal and factual aspects related to lease in question decided application under S.12(2), C.P.C. filed by respondents---High Court set aside the orders passed under S.12(2), C.P.C. as same required determination by Trial Court accordingly---High Court remanded the matter to Trial Court for decision afresh---Constitutional petition was allowed in circumstances.

Muhammad Aamir Rana for Petitioner.

Syed Akhtar Shah for Private Respondents.

Naseer Ahmed Bangulzai, Additional A.G. for Official Respondents.

2018 C L C 581

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

DIRECTOR GENERAL NADRA through Deputy Manager (Legal)----Petitioner

Versus

POPALZAI and another----Respondents

C.P. No.884 of 2013, decided on 18th December, 2017.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Decree, setting aside of---Fraud and misrepresentation---Effect---Contention of applicants was that impugned decree was obtained by means of misrepresentation and material points were concealed from the court---Petition for setting aside of decree was dismissed concurrently---Validity---Computerized National Identity Card of respondent-plaintiff had been blocked by NADRA authorities as alien after due process on the report of Federal Investigation Agency---Respondent-plaintiff was afforded opportunity of being heard by the NADRA authorities---Said information subsequently came to the knowledge of NADRA after obtaining judgment and decree by the respondent---Serious allegation was on record against the respondent plaintiff---Courts below were supposed to decide the case on merit instead of deciding the same on mere technicalities and thus committed miscarriage of justice---Impugned judgments and decrees passed by the courts below were perverse and suffered from conjunctures and surmises and not sustainable which were set aside---Case was remanded to the Trial Court with the direction that matter be decided afresh after providing opportunity to the parties---Constitutional petition was allowed in circumstances.

Zubair Naseem for Petitioner.

Nemo for Respondents.

2018 C L C 797

[Balochistan]

Before Muhammad Noor Meskanzai, C.J.

ABDUL SALAM and 3 others----Petitioners

Versus

GHULAM SARWAR and others----Respondents

Civil Revision No.206 of 2017, decided on 24th November, 2017.

Civil Procedure Code (V of 1908)---

----S. 48 & O. XXI, R. 11(2)---Limitation Act (IX of 1908) Art.181---Execution petition---Limitation---Execution application---Res judicata, principle of---Applicability---Execution petition was moved after lapse of more than five years which was barred by time---Decree passed by a Court required to be satisfied and till its satisfaction a number of execution petitions could be filed provided first application was moved within the span of three years after passing of decree or final order sought to be executed---If first execution petition was filed within stipulated period then successive applications could be filed by the decree holder within the period of six years---Applicant was required to furnish detail of previous application if any with date and result---Petitioner had moved execution petition earlier which was finally disposed of by the Executing Court by a speaking and well reasoned order---If present execution application was treated as a second application then it would be hit by the principle of res judicata---Order passed in the earlier execution petition had attained finality---Petitioner did not disclose the factum of filing of previous application and its result which was legal requirement---Counsel being officer of the Court was required to place the facts before the Court in order to enable it to arrive at a just conclusion---Counsel had failed to discharge his legal obligation and decree passed in suit was collusive---Revision was dismissed in limine.

Dauran Khan and another v. Mst. Shamim Akhtar 1990 CLC 1208 and Sher Muhammad through Legal Heirs v. Member (Judicial-I) Board of Revenue and 4 others 2010 MLD 187 rel.

Abdul Rauf Lehri for Petitioner.

Nemo for Respondents.

2018 C L C 820

[Balochistan]

Before Mrs. Syeda Tahira Safdar, and Zaheer-ud-Din Kakar, JJ

ISLAM HUSSAIN----Petitioner

Versus

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

C.P. No.113 of 2018, decided on 26th February, 2018.

Elections Act (XXXIII of 2017)---

----S. 2 (xxxix)---Senate elections---Seat for 'technocrat'---Eligibility---Educational qualification and experience of candidate---Candidate for seat of technocrat at the first instance had to establish that he held a degree acquired by him on conclusion of at least sixteen (16) years of education, which degree was duly recognized by the Higher Education Commission; Secondly the candidate had to show his experience consisting of minimum period of twenty years with a record of achievement either of national and international level---Such period of twenty years had to be counted from the degree acquired on conclusion of at least sixteen years of education---Requirement of minimum 20 years of practical experience/knowledge gained must be on basis of the academic education, i.e. the experience must have nexus with the degree obtained by the candidate.

Ahsan Rafiq Rana, Abdul Sattar and Hadi Shakil for Petitioner.

Haroon Kasi, Law Officer Election Commission of Pakistan for Respondent No.1.

2018 C L C 841

[Balochistan]

Before Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ

NASEEBULLAH KHAN BAZAI----Applicant

Versus

Dr. UMMAR KHAN BABAR and 2 others----Respondents

Review Application No.25 of 2017 in C.P. No.361 of 2016, decided on 23rd November, 2017.

Civil Procedure Code (V of 1908)---

----O. XLVII, Rr.1 & 2, Ss. 151 & 152---Constitution of Pakistan, Art.199---Constitutional petition---Review of judgment---Suppression of facts---Promotion---Judgment passed by High Court under Constitutional jurisdiction in favour of respondent was sought to be reviewed on the plea that respondent concealed the fact of his facing trial under National Accountability Ordinance, 1999---Validity---Constitutional jurisdiction under Art.199 of the Constitution was discretionary jurisdiction meant to foster justice and to remedy wrong---Discretionary relief under extraordinary Constitutional jurisdiction could only be claimed by a person having a bona fide claim and coming to Court with clean hands---Such jurisdiction could not be invoked by a person who had come to Court with un-cleaned hands and likewise no one could be allowed to take advantage of his wrong act---High Court in its inherent jurisdiction had power under Civil Procedure Code, 1908, to review its own order passed in exercise of Constitutional jurisdiction---Respondent obtained judgment in his favour by concealment of material, relevant and important facts---High Court reviewed/recalled its judgment as the same was not implemented till then and dismissed Constitutional petition---Application was allowed in circumstances.

Justice Khursheed Anwar Bhindar v. Federation of Pakistan PLD 2010 SC 483 ref.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Desmond Vaz v. Karachi Building Control Authority PLD 2005 Kar.164 and Manzoor Ahmed v. Muhammad Nawaz PLD 2013 Lah. 123 rel.

Mehmood Sadiq Khokar for Applicant.

Raja Abdul Rehman for Respondent No.1.

Zahoor Ahmed Baloch, Assistant Advocate General ("AAG") for Respondent Nos.2 and 3.

2018 C L C 967

[Balochistan (Turbat Bench)]

Before Abdullah Baloch, J

RAHEEM BAKHSH and another---Petitioners

Versus

BASHIR AHMED and 4 others---Respondents

Civil Revision No. (T) 42 of 2017, decided on 15th January, 2018

Civil Procedure Code (V of 1908)---

----O. VI, R. 17, O. VIII, R. 1 & O. I, R.10---Suit for declaration---Concealment of facts while filing written statement by the defendants---Imposition of cost---Scope---Defendants while filing written statement did not disclose that they had already sold out the portion of suit land prior to filing of suit---Plaintiffs moved application for amendment of plaint and impleadment of new parties who had purchased the land from the defendants--- Trial Court accepted the said application and issued show-cause notice to the defendants for concealment of facts and imposed cost upon the defendants---Validity---Defendants had sold out suit land prior to institution of suit but that fact was concealed while filing the written statement---Trial Court issued show-cause notice to the defendants who failed to deny the same in their reply/rejoinder---Trial Court had taken lenient view by imposing cost of Rs.5,000/- upon the defendants---Act of defendants amounted to contempt of Court and they were liable to be proceeded against but Trial Court was satisfied by imposing cost upon the defendants---No illegality or irregularity had been pointed out in the impugned order passed by the court below---Revision was dismissed in limine.

Saeed Faiz, for Petitioner.

Nemo for Respondents.

2018 C L C 1004

[Balochistan (Turbat Bench)]

Before Abdullah Baloch, J

AMEER BAKHSH---Petitioner

Versus

ASSA and 2 others---Respondents

Civil Revision No. (T) 38 of 2017, decided on 15th January, 2018.

Civil Procedure Code (V of 1908)---

----O. XIV, Rr. 1 & 5---Suit for declaration--- Additional issues--- Framing of--- Scope--- During recording of his evidence Plaintiff moved an application for framing of additional issues which was dismissed---Validity---Trial Court framed issues---Thereafter plaintiff produced three witnesses and was directed to produce his remaining witnesses---Plaintiff did not disclose any reasonable ground for amendments or framing of additional issues necessary for determining the matters in controversy between the parties---Plaintiff remained silent for one and a half year and did not raise any objection on the issues framed by the Trial Court---Impugned order passed by the Trial Court did not suffer from any illegality or irregularity--- Revision was dismissed in limine in circumstances.

Niaz Muhammad, for Petitioner.

Nemo for Respondents.

2018 C L C 1399

[Balochistan]

Before: Muhammad Ejaz Swati and Abdullah Baloch, JJ

Mst. POPALZAI and others---Petitioners

Versus

MUHAMMAD ASIF KHAN and 33 others---Respondents

C.P. No.15 of 2000, decided on 30th March, 2018.

(a) Pakistan Administration of Evacuee Property Act (XII of 1957)---

----Ss. 20 & 22 (2)---Balochistan (Administration of Evacuee Property) Regulation, 1950, S. 17---Evacuee property---Allotment of---Sale---Confirmation of---Scope---Petitioners purchased suit property already allotted as evacuee land and thereafter sought confirmation of sale effected in their favour---Application for confirmation of sale was dismissed by the Member Board of Revenue---Validity---Allottees were not made party nor the allotment order made in their favour was challenged---Order of Rehabilitation Authority and mutation were in field when question of confirmation of sale was taken up---Such application was to be made within the prescribed period and by party to the transaction or by any person claiming under such party---Custodian of Evacuee Property was required to hold a summary inquiry in the prescribed manner and reject the application if prescribed conditions were not satisfied---Nothing was available on record with regard to any inquiry by the Custodian of Evacuee Property---Transaction in favour of petitioners had been made contrary to law---Father of applicants had died long after the ownership of property had vested in the Government---Application should have been filed within thirty days from the prescribed date---Predecessor of petitioners did not apply for confirmation of sale before competent forum during his life time---Application for confirmation of sale being time barred, Petitioners had no locus standi to file the application---Member Board of Revenue had passed the impugned order after proper appreciation of record---Legal heirs of allottees could seek proper remedy with all just and legal exceptions---Disputed questions of fact raised by the petitioners could not be resolved under constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed questions of facts could not be entertained under constitutional jurisdiction of High Court.

Jameel Ahmed Babai for Petitioners.

Khushnood Ahmed for Respondents Nos.1 to 10.

Adnan Bashara for Respondents Nos.11 to 23.

Khalid Ahmed Kakar or Respondent No.33.

Mrs. Sabira Islam, Additional A.G. for Official Respondents.

2018 C L C 1535

[Balochistan]

Before Muhammad Ejaz Swati, J

Mst. MAH KHATOON and 3 others----Petitioners

Versus

FEROZ and another----Respondents

Civil Revision No.293 of 2016, decided on 27th April, 2018.

(a) Islamic law---

----Inheritance---Gift (Hiba-bil-Iwaz)---Disinheritance of legal heir due to disobedience---Scope---Plaintiff was deprived of his legal share from the inheritance due to disobedience and gift mutation was made in favour of defendants---Suit filed by the plaintiff against the said mutation of gift was decreed concurrently---Validity---Plaintiff was deprived from the inheritance of his father due to disobedience and gift mutation was attested in favour of defendants---Ground of disobedience to hold the impugned gift as valid had no sanctity nor on this sole object lawful heirs could be deprived from inheritance---Muslim owner could validly transfer his property only through the mode recognized by Islam and not otherwise---Muslim could gift away his property to anyone but in case transfer was made with intent to deprive the heirs of their rights of inheritance on the ground not recognized by law then same would be void---Impugned gift was made by the father in his life time in favour of defendants i.e. daughters to deprive the son from inheritance on negative reason which was forbidden under the law---Object of donor, in the present case, was to deprive the plaintiff of his legal share in his property---Findings recorded by the Courts below with regard to plea of 'Aaq' (exclusion from inhertance) taken by the defendants were based on proper declaration that impugned mutation was invalid on that ground---Impugned gift was Hibba-bil-Awez for an amount of Rs.2,00,000/- and plaintiff would be liable to return the said amount to the defendants---No other illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Court below---Revision was dismissed in circumstances.

1994 MLD 283; 2011 CLC 275; 2002 YLR 1320; 2011 YLR 697 and PLD 2013 Lah. 264 ref.

Mst. Kulsoom Bibi and others v. Muhammad Arif and others, 2005 SCMR 135; Mst. Nusrat Zohra v. Mst Azhra Bibi PLD 2006 SC 15; Muhammad Ismail through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Muhammad Yaqoob v. Feroze Khan and others 2003 SCMR 41 and Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 rel.

(b) Islamic law---

---Gift---Ingredients---Gift was transfer of property or right by one person to another---Essentials of gift were declaration by the donor, acceptance of gift by the donee and delivery of possession of subject matter of gift to donee.

Bahlol Kasi for Petitioner.

Ms. Syeda Tehmina Samad for Respondent No.1.

2018 C L C 1650

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Nazeer Ahmed Longove, JJ

OBAIDULLAH JAN BABAT and 2 others----Petitioners

Versus

SPEAKER, BALOCHISTAN ASSEMBLY and 2 others----Respondents

C.P. No.556 of 2018, decided on 21st May, 2018.

Provincial Assembly of Balochistan, Rules of Procedure and Conduct of Business, 1974--

----Rr. 14, 25, 202, 204, 205 & 220---Constitution of Pakistan, Arts.69 & 127---Suspension of elected members of Provincial Assembly---Petitioners were elected members of Provincial Assembly and were aggrieved of the notification whereby they were suspended from the service of Assembly for remaining sittings of budget session---Petitioners had alleged that act of the Presiding Officer was with malafides and ulterior motives and in excess of the powers available under the relevant law---Validity---Only allegation which could have been made out was of irregularity of the procedure and nothing else thus validity of such proceedings in view of Art.69(1) of the Constitution, could not be questioned in court of law; it further restrained to challenge authority of Presiding Officer to whom power was vested for regulating procedure, to conduct the business and to maintain order in Assembly---Indemnity was available to Presiding Officer by the mandate of the Constitution---Members of the Assembly had to follow the Rules and to observe the conduct as required by R.220 of Provincial Assembly of Balochistan, Rules of Procedure and Conduct of Business, 1974---Constitutional petition was dismissed in circumstances.

Muhammad Anwar Durrani v. Province of Baluchistan PLD 1989 Quetta 25 ref.

Amanullah Kanrani and Naseebullah Tareen for Petitioners.

Nemo for the Respondents.

2018 C L C 1930

[Balochistan]

Before Muhammad Ejaz Swati, J

KAUSAR ALI and another----Petitioner

Versus

JAVED ANJUM and 6 others----Respondents

Civil Revision No.560 of 2010, decided on 21st June, 2018.

(a) Gift---

----Mutation---Inheritance---Limitation---Claimant's predecessor-in- interest not challenging such mutation during his lifetime---Effect---Plea of plaintiffs was that impugned mutation was illegal and they were entitled for their shares in the inheritance---Suit was decreed concurrently---Validity---Predecessor-in-interest of plaintiffs had not challenged the impugned mutation in his lifetime---If a heir who was directly affected by a wrong mutation of inheritance had not challenged the same till his death, his legal heirs had no locus standi to dispute such mutation---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence---Impugned judgments and decrees passed by the Courts below could not sustain which were set aside---Suit filed by the plaintiffs was dismissed---Revision was allowed in accordingly.

2002 SCMR 1330, 2004 SCMR 299 and Muhammad Rustam and another v. Mst. Makhan Jan and another 2013 SCMR 299 ref.

(b) Evidence---

----Pleadings---Evidence could not be led or looked into in support of a plea which had not been taken in the pleadings.

Farooq Ahmed v. Chairman Federal Public Service Commission Islamabad, 1998 SCMR 336 rel.

Mrs. Shehnaz Rana for Petitioner.

Abdul Ghayyas Nausherwani for Respondents Nos.1 to 4.

Farooq Sarwar, Assistant Advocate-General for Official Respondent.

2018 C L C 1943

[Balochistan]

Before Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ

Mst. SAEEDA BEGUM and 4 others----Appellants

Versus

Mst. HABIB-U-NISA and others----Respondents

R.F.A. No.25 of 2008, decided on 21st May, 2018.

Specific Relief Act (I of 1877)---

----Ss.42 & 39---Transfer of Property Act (IV of 1882), S. 41---Qanun-e-Shahadat (10 of 1984), Art. 103---Suit for declaration, cancellation of exchange deed and partition---Equitable doctrine---Applicability---Scope---Contention of plaintiffs was that they were co-sharers of suit property and exchange deed in favour of defendants was against the law and facts---Suit was decreed by the Trial Court---Validity---Suit property was in the ownership of father of plaintiffs---Documentary evidence would prevail over oral evidence---Plaintiffs being co-sharers were entitled to have their shares as soon as succession opened---Every co-sharer would be deemed to be in possession on every inch of suit land till the partition took place---Equitable doctrine contained in S. 41 of Transfer of Property Act, 1882 would protect a subsequent transfer if it was established that transferee had acted in good faith and taken reasonable care before entering into the transaction and consideration for such transfer was paid---Equitable doctrine must be pleaded clearly with specific fact to be relied upon---Onus to prove equitable doctrine would be upon the person who pleaded such protection---Defendants, in the present case, had never pleaded that they were bonafide purchasers through exchange without notice of right of shares of plaintiffs---Defendants having not checked /enquired with regard to shares of plaintiffs, had not taken reasonable care with regard to ownership of plaintiffs on the suit land---Impugned exchange deed and subsequent transfer of suit land was illegal and void---Appeal was dismissed in circumstances.

PLD 1990 SC 1; PLD 2002 SC 823; 1991 SCMR 1369; Allah Bakhsh and others v. Province of Punjab and others, 2002 SCMR 2003 and Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81 rel.

Khushnood Ahmed for Appellants.

Abdul Rasheed Awan for Respondents Nos.1 to 12.

Muhammad Wasay Tareen for Respondent No.13.

Khalil-uz-Zaman Ali Zai, Additional Advocate General for Respondents Nos.14 and 15.

2018 C L C 54

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil Appeal No.305 of 204

Messrs FRIENDS TECHNICAL ENGINEERING ASSOCIATION, MUZAFFARABAD/RAWALPINDI through Advisor to the Prime Minister of AJ&K and 4 others----Petitioners

Versus

Barrister Syed IFTIKHAR ALI GILLANI and 24 others----Respondents

(On appeal from the judgment of the High Court dated 13.06.2016 in Writ Petitions Nos.1047 and 1007 of 2014).

Civil Appeal No.306 of 2014

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 11 others

Versus

Barrister Syed IFTIKHAR ALI GILLANI and 16 others----Respondents

(On appeal from the judgment of the High Court dated 13.06.2014 in Writ Petition No.1007 of 2014).

Civil Appeals Nos.305 and 306 of 2014, decided on 18th April, 2016.

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

----Ss. 31, 44, 45 & 46---Azad Jammu and Kashmir Highways Authority Act (II of 2007), Ss.4 & 5---Azad Jammu and Kashmir Local Councils (Imposition of Taxes) Rules, 1981, Preamble---General Clauses Act (X of 1897), S.20-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Local government---Maintenance of roads---Installation of weighing apparatus and fixation of fee at entry points through public private partnership---Scope---Notification not published in official gazette---Effect---Local government issued notification for installation of weighing apparatus at entry points from Pakistan to Azad Jammu and Kashmir for collection of weighing fee and fines as per Schedule of National Highway Authority---High Court accepted the writ petition and set aside the said notification on the ground that same had been issued without lawful authority---Validity---Local government was not empowered to issue notification through which tax and fine could be imposed upon loaded vehicles---District Councils, Union Councils and Municipal Committees/Corporations could enforce tax under Azad Jammu and Kashmir Local Councils (Imposition of Taxes) Rules, 1981---Azad Jammu and Kashmir Local Government Act, 1990 had nothing to do with the maintenance of Highways as it was the job of Highways Authorities---Impugned notification was issued without lawful authority which had no backing of law and was void ab initio---Alleged notification had not been published in the official gazette---Notification without publishing the same in the official gazette would be termed as non-existent and superstructure built upon the same would automatically fall---Advertisement for bids to install weighing apparatus were published in the local newspapers which itself showed that all had been done with some ulterior motives---Impugned process was not transparent---Courts being custodian of rights of people should intervene in such process---Local government tried to encroach upon the powers of Highways Authority who was the only authority to do any act with regard to construction, development, operation, repairs and maintenance of Highways---High Court had not committed any illegality while passing the impugned judgment---Appeal was dismissed by the Supreme Court in circumstances.

Iffat Bibi v. Azad Government and 19 others 2014 PLC (C.S.) 1160; Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161; Siraj Din v. Azad Jammu and Kashmir Government through Chief Secretary and 13 others 2012 MLD 1707; Muhammad Mobeen Khan v. Farzand Begum and 8 others 2014 SCR 291; 2002 SCR 150; D.G. Khan Cement Company Ltd and others v. Federation of Pakistan and others 2004 SCR 460; AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SCR 382; Ghulam Rasool and another v. Said Ahmed and others 2012 CLC 1655 and Raja Muhammad Ramzan and 47 others v. Zila Council, Attock and another PLD 1992 Lah. 324 ref.

Syed Ali Asghar Shah v. Azad Jammu and Kashmir Public Service Commission and 5 others 2008 SCR 133 rel.

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

----S. 44---Writ petition---Laches, principle of---Applicability---Principle of laches was to be applied according to the facts of each case as same was equivalent to the principle of estoppel and not the statutory bar of limitation---Writ petition could not be dismissed merely on the ground of laches without examining the dictates of justice in the claim of each party apart from examination of law and jurisdictional points involved in the matter.

Muhammad Ismail v. Deputy Settlement Commissioner, and others NLR 1992 UC 725 rel.

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

----S. 44---Writ jurisdiction of High Court---Scope---Although writ jurisdiction of High Court could not be invoked when alternate remedy was available, however, if said remedy was not adequate, efficacious, convenient, beneficial, speedy and effective then there was no bar on filing of writ petition.

Noman Razaq v. Faryad Hussain Ch. and 13 others PLD 2015 SC (AJ&K) 7 rel.

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

----R. 32(2)---Documents once admitted by a party could not be objected on passage of time.

Shahida Khadim v. Secretary Education AJ&K and 5 others 2004 PLC (C.S.) 1074 rel.

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

----S. 20-A---Notification, publication of---Scope---Rules, orders, regulations and circulars having effect of law made or issued under any enactment must be published in the official gazette before enforcement of the same.

(f) Notification---

----Notification without publishing the same in the official gazette would be termed as non-existent and superstructure built upon the same would automatically fall [p. 64] C

Sardar Muhammad Rasham Khan, Advocate for Appellants (in Civil Appeal No.305 of 2014).

Raja Sajjad Ahmed Khan and Syed Shahid Bahar, Advocates for Respondents (in Civil Appeal No.305 of 2014).

Mansoor Pervaiz Khan, Advocate-General and Raja Amjad Ali Khan, Advocate for Appellants (in Civil Appeal No.306 of 2014).

Raja Sajjad Ahmed Khan and Syed Shahid Bahar, Advocates for Respondents (in Civil Appeal No.306 of 2014).

2018 C L C 400

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

MUNAWAR HUSSAIN and others----Petitioners

Versus

ABDULLAH and others----Respondents

Civil Appeals Nos.6, 7, 8, 9, 10 and 38 of 2015, decided on 28th November, 2017.

(On appeal from the judgment of the High Court, dated 28.10.2014 in Writ Petitions Nos.1268, 1269, 1270, 1271, 1272 and 1273 of 2009).

(a) Azad Jammu and Kashmir Board of Revenue Act, 1993---

----Ss. 7(2) & 6(3)---Land Revenue Act (XVII of 1967), S.164---Second revision before Board of Revenue---Competency---Suo motu powers of Board of Revenue---Scope---Member Board of Revenue dismissed revision petition but Full Bench of Board of Revenue set aside the said order in second revision petition---High Court accepted writ petition and set aside order passed by Full Bench of Board of Revenue in second revision petition---Validity---Jurisdiction of Board of Revenue to entertain second revision petition where order challenged in the revision before Full Board of Revenue had been passed by Single Member of Board of Revenue in exercise of revisional jurisdiction had been excluded---Powers of revision were only available against the subordinate Revenue Officer---Member Board of Revenue could not be termed as an "officer" subordinate to the Board of Revenue---Revisional powers were also available to Board of Revenue as well as Commissioner under S.164 of the Land Revenue Act, 1967---Order passed by Member Board of Revenue while exercising powers under S.6(3) of Azad Jammu and Kashmir Board of Revenue Act, 1993 was to be deemed as order or decree of Board of Revenue---Member of Board was not subordinate to Full Board for the purpose of exercising revisional jurisdiction---Exercising suo motu powers for correction of order passed by Member Board of Revenue was not permissible under the provisions of Azad Jammu and Kashmir Board of Revenue Act, 1993---Suo motu powers had not been mentioned in Azad Jammu and Kashmir Board of Revenue Act, 1993---No Court could exercise jurisdiction which was not conferred on it under the Constitution or any law---Board of Revenue in the present case had not exercised jurisdiction suo motu for setting aside order passed by the Collector rather had set aside the same while exercising revisional jurisdiction and condoned delay while observing therein that order passed by the Collector was ab initio void and could be corrected at any time---Such power could be exercised in suitable and appropriate proceedings not otherwise---Member Board of Revenue had exercised jurisdiction not vested in him under the law---When excess of jurisdiction was apparent on the face of record then High Court could correct such order in exercise of its supervisory jurisdiction---No illegality had been committed by the High Court while passing the impugned order---Appeal was dismissed in circumstances.

Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139 ref.

Muhammad Azam v. Allah Beli alias Tassadq Baig and 9 others 2005 CLC 1371 and Haji Noorwar Jan v. Senior Member, Board, of Revenue, NWFP Peshawar and 4 others PLD 1991 SC 531 rel.

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

----S. 2(23)---'Revenue officer'---Meaning.

(c) Jurisdiction---

----Court could not exercise jurisdiction which was not conferred on it under the Constitution or any law.

Mian Sultan Mehmood, Advocate for Appellants.

Ch. Muhammad Mumtaz, Advocate for Respondents.