CLC 2019 Judgments

2019 C L C 670

[Election Tribunal Balochistan]

Before Justice Muhammad Hashim Khan Kakar, Member

Haji MUHAMMAD HASSAN SHERANI----Petitioner

Versus

Sardar BABAR KHAN and 13 others----Respondents

Election Petition No.27 of 2018, decided on 7th December, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 139, 144, 156, 167 & 93---Election petition---Election for the seat of Member Provincial Assembly---Allegations of illegal and corrupt practices---Burden of proof---Benefit of doubt---Postal ballot papers, issuance of---Procedure---Burden to prove illegal and corrupt practices was on the petitioner---Allegations of corrupt practices and illegal acts must be proved with such standard as was required for proving a charge in criminal case---Benefit of doubt arising out of the material placed before Election Tribunal must be extended to the returned candidate---Allegations made in the election petition as well as in affidavit-in-evidence were not supported by the facts on the face of record---Affidavits submitted before Election Tribunal did not bear any date of attestation and date when same were reduced into writing---Possibility of said affidavits being concocted and prepared at some unknown date could not be ruled out---None of the witnesses had mentioned the names of those persons who allegedly committed any illegal act or corrupt practice---Nothing was on record that any person was deprived of casting his vote or bogus votes were cast---Mere words of petitioner were not sufficient to unseat a returned candidate and disenfranchise the entire constituency---Election of returned candidate could not be declared void on the basis of sketchy, scanty and weak piece of evidence---Petitioner had failed to plead full particulars of illegal acts or corrupt practices nor he could prove whatever was alleged by him was done with the consent and connivance of returned candidate or his election agent---Civil servants and their spouses were required to apply by post to the Returning Officers of the concerned constituency on prescribed forms with envelopes addressed to them for supply of postal ballot papers---None of the witnesses contacted personally the concerned Returning Officer for issuance of postal ballot papers and all the applications for supply of the same were allegedly handed over to one and same person---Nothing was on record that any application for issuance of postal ballot paper was handed over or posted with envelops to the Returning Officer---Election of returned candidate was not to be declared void if any corrupt or illegal practice was not committed by or with the consent or connivance of said candidate or his election agent---Returned candidate had no concern with the issuance of postal ballot papers to the civil servants rather civil servants were required to approach the concerned Returning Officer for issuance of ballot papers within stipulated period in accordance with law and rules thereunder---Petitioner had failed to establish the allegation of corrupt and illegal acts as well as non-issuance of postal ballot papers---Election petition was dismissed, in circumstances.

Nadir Ali Chalragi, Changaiz Baloch for Petitioner.

Amanullah Kanrani and Khursheed Anwar Khoso for Respondent No.1.

Muhammad Rafique Langov for Respondents.

2019 C L C 49

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

COLLECTOR/DEPUTY COMMISSIONER, ASTORE and 2 others---Appellants

Versus

MUHAMMAD SHARIF (LATE) through Legal Heirs ----Respondent

Civil Appeal No.29 of 2018, decided on 1st October, 2018.

Civil Procedure Code (V of 1908)---

----S. 82 & O. XXI, R. 43---Execution of decree passed against Government---Attachment of the official vehicles of the Provincial Government---Scope---Respondents filed execution petition wherein Executing Court directed the Superintendent of Police to attach official vehicles of the Provincial Government---Plea of Provincial Government was that Executing Court had not reported the case for the orders of the Provincial Government as required under S. 82, C.P.C. before passing the order---Validity---Held, that after registration of execution petition Executing Court had issued summons to the appellants---District Attorney and Legal Advisor had appeared before the Executing Court on behalf of departments and stated that they will file objections on the next date which was not done---Many opportunities were afforded to the departments by the Executing Court with directions either to file objections or satisfy the decree but departments failed to comply with the directions---Executing Court was left with no option but to attach the official vehicles which were at the disposal of the departments---Provincial Government was not party to the execution petition and even otherwise District Attorney and Legal Advisor had been appearing on behalf of departments and had conveyed the departments regarding institution of execution petition in the Executing Court---Executing Court had directed appellants to pay the decretal amount available in the account of Collector; a copy of said order was forwarded to the Secretary and other relevant authorities---No notice under S. 82, C.P.C. was required to be issued to the Provincial Government as Provincial Government was not party to the execution petition---Appeal, being without any substance, was dismissed.

Additional A.G. for Appellants.

Abdul Hameed for Respondent.

2019 C L C 104

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MOHAMMAD ASKARI and 7 others----Petitioners

Versus

QAMAR ABBAS and 2 others----Respondents

Civil Revision No.19 of 2015, decided on 12th October, 2018.

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

----O. VI, R.17---Amendment of pleadings, pending appeal---Scope---Substitution of relief of declaration and possession with perpetual injunction---Scope---Suit for perpetual injunction was dismissed by Trial Court---Plaintiff filed appeal against the judgment of Trial Court and during pendency of appeal filed application for amendment in the plaint to the extent of addition of relief of declaration and possession of suit land by deleting words perpetual injunction in the plaint---Validity---Addition of relief of declaration and possession in the suit did not in any manner change the character of suit or introduce any cause of action---Appellate Court had rightly allowed the requisite amendment in the plaint.

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

----O. VI, R.17---Amendment of pleadings, allowing or refusal of---Principles enumerated.

Following are the principles for allowing or declining the amendment in the pleadings:

(1) Amendment would be allowed at any stage of case if it did not change the cause of action of suit or nature of suit.

(2) Amendment would be allowed to seek consequential relief arising from the cause of action originally included in the plaint.

(3) Amendment would also be allowed to add relief available to the plaintiff even before higher court of jurisdiction and

(4) Amendment would also be allowed for converting a suit from one relief to another i.e., if suit was filed for declaration, same could be converted into possession, etc.

Basharat Ali Advocate for Petitioners.

Muhammad Nazir for Respondents.

2019 C L C 1528

[Chief Court Gilgit-Baltistan]

Before Malik Haq Nawaz and Muhammad Umar, JJ

MATLOOB HUSSAIN and 8 others----Petitioners

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary and 4 others----Respondents

Writ Petition No. 154 of 2017, decided on 20th March, 2019.

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

----Arts. 71(2) & 86(2)---Writ jurisdiction of Chief Court---Scope---Chief Court could not pass any order in favour of a person where complicated question of law and facts were involved and only Civil Court had jurisdiction over the matter where both the parties would be at liberty to adduce pro and contra evidence---Writ jurisdiction of Chief Court could be invoked against an 'established right' and not for establishment of a right---Fundamental Rights should not be treated lightly or presumed to be interfered with in a casual manner except when there was a State emergency---Court was not to force the executive authorities to continue or discontinue a policy when same was not good enough for future---Government had right to lay down a policy and enforce the same---Chief Court could not sit in appeal with regard to a policy matter nor substitute the policy decision of the Government unless and until same was against law, arbitrary or unreasonable.

Asadullah Khan for Petitioner.

Assistant Advocate-General for Respondents.

2019 C L C 2073

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD ANWAR through Legal Heirs----Petitioners

Versus

VICE-CHANCELLOR KARAKORUM INTERNATIONAL UNIVERSITY G.B. GILGIT and 6 others----Respondents

Civil Revision No.77 of 2018, decided on 28th February, 2019.

Civil Procedure Code (V of 1908)---

----O.I, R. 10---Impleadment of party---Scope---Suit was dismissed against which appeal was filed wherein petition for impleadment of a party was moved---Appellate Court dismissed the said application on the ground that same had been filed at belated stage---Validity---Court had wide discretion to add the parties at any stage of proceedings to avoid multiplicity of litigation and to arrive at just and correct conclusion---Mere delay in filing of an application under O.I, R.10, C.P.C. was not fatal to any party---Impugned order passed by the Appellate Court was set aside and application for impleadment of party was accepted---Applicants were allowed to implead the proposed party as defendants in the suit---Matter was remanded to the Trial Court with the decision to decide the same afresh after impleading the proposed defendants in the suit---Revision was allowed, in circumstances.

PLD 2012 Sindh 449; PLD 2009 Lah. 140; 2011 MLD 1368; 2018 MLD 700 GB; PLD 1967 K 711; 2007 SCMR 882 and 2010 SCMR 115 ref.

Latif Shah and Muhammad Qasim Shahzad for Petitioners.

Zeeshan Akhlaq for Respondents.

2019 C L C 2083

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MAQBOOL HUSSAIN----Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 9 others----Respondents

Civil Revision No.41 of 2018, decided on 5th April, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Plaint, rejection of---Scope---Trial Court framed issues and case was fixed for recording evidence of the plaintiff---Defendant, before recording of evidence of the parties moved application for rejection of plaint which was accepted concurrently---Validity---Question of fact was involved in the present case and same could not be determined without recording evidence of the parties---Trial Court had framed issues and case was fixed for plaintiff's evidence---Case did not fall within the ambit of provision of O. VII, R.11 of C.P.C.---Courts below had committed material illegality and irregularity while rejecting the plaint---Petitioner had been non-suited summarily without allowing to lead pro and contra evidence---Impugned orders passed by the Courts below were without jurisdiction and lawful authority having no effect---Matter was remanded to the Trial Court with the direction to decide the same afresh after providing opportunities to the parties to produce their evidence---Revision was allowed, in circumstances.

Raja Shakeel Ahmed for Petitioner.

Additional Advocate General for Respondents Nos.1 to 5.

Fidaullah for Respondents Nos.6 to 10.

2019 C L C 901

[High Court (AJ&K)]

Before Raza Ali Khan, J

MUHAMMAD RAFIQUE and 2 others----Appellants

Versus

MUHAMMAD ROSHAN and 55 others----Respondents

Civil Appeal No.213 of 2017, decided on 28th January, 2019.

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

----O. VII, R. 11 & O. XXXIX, Rr. 1 & 2---Azad Jammu and Kashmir Land Revenue Act (XVII of 1967), Ss. 53 & 172---Suit for declaration and permanent injunction---Correction of revenue record---Jurisdiction of civil court---Scope---Rejection of plaint while entertaining application for temporary injunction---Effect---Trial Court while entertaining application for temporary injunction rejected the plaint on the ground that suit for correction of revenue record was not competent before civil Court and same was upheld by the Appellate Court---Validity---Plaint could be rejected at any time in terms of O. VII, R. 11, C.P.C. if same did come within the purview of clauses incorporated therein---Section 172 of Azad Jammu and Kashmir Land Revenue Act, 1967 did exclude the jurisdiction of civil Court in the matter with regard to correction of any entry in the record of rights, periodical record and Register of mutation---Whenever any such entry did interfere with the right of a person pertaining to the land in question then he could approach to the Civil Court for declaration of his right in terms of S. 53 of Land Revenue Act, 1967---Present plaint was not restricted to correction of entries made by revenue authorities in ordinary course of business but plaintiff had questioned the entries in the revenue record on the ground that same were made illegally which had adversely affected his rights---Bar of S. 172 of Land Revenue Act, 1967 could not be pleaded as hurdle in exercise of jurisdiction of Civil Court in circumstances---Plaintiff had also sought decree for possession and perpetual injunction in the present case---Suit could not be dismissed mere on the ground that one of the prayed remedies in the plaint could not be granted while ignoring the other prayers made in the plaint---Matter of remedies had to be resolved by the Trial Court at the time of final disposal of the suit as to which of the remedies had to be granted or refused---Suit could not be dismissed while picking one remedy out of the several ones---Trial Court had rejected the plaint while entertaining the application for interim relief---No opportunity was afforded to the plaintiff to explain the competency of suit in circumstances---Provisions of O. VII, R. 11 of C.P.C. were not meant to surprise the plaintiffs by invoking the same in order to non-suit them---Trial Court earlier rejected the application filed under O. VII, R. 11, C.P.C. and thereafter obtained written statement---Proper course for Trial Court was to frame issues and then provide opportunity of leading evidence to the parties in support of their respective claim and thereafter decide the controversy on merit---Rejection of plaint after commencement of proceedings by the Trial Court was not justified nor lawful---Case was remanded to the Trial Court for fresh decision after providing the parties an opportunity to lead evidence---Second appeal was allowed, in circumstances.

PLD 2003 Lah. 186; 2003 YLR 2677; 2013 SCR 172 and 2001 CLC 373 ref.

Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Maqsood Kausar v. Revenue Department and 91 others 2017 YLR 1492 and 2003 MLD 109 rel.

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

----O. VII, R. 11---Plaint, rejection of---Plaint could be rejected at any time in terms of O. VII, R. 11, C.P.C. if same did come within the purview of clauses incorporated therein.

(c) Limitation---

----Limitation was mix question of law and facts and same could be resolved after recording evidence of the parties.

Lakhi Zaman for Appellants.

2019 C L C 1894

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, CJ, Azhar Saleem Babar and Muhammad Sheraz Kiani, JJ

AZAD JAMMU AND KASHMIR CABLE OPERATORS ASSOCIATION through Chief Coordinator and another----Petitioners

Versus

AZAD JAMMU AND KASHMIR COUNCIL through

Chairman and 7 others----Respondents

Writ Petition No.1155 of 2011, decided on 9th July, 2019.

(a) Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005)---

----Ss.2(b), 3 & 4---Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.4(1)(4)(8) & 44---Writ petition---Maintainability---Locus standi of petitioners---Licenses issued under the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 ('the impugned Act')---Licenses and other regulatory fees imposed under the Pakistan Electronic Media Regulatory Authority Rules, 2009 ('the impugned Rules')---One of the petitioners claimed to be sole representative association of cables operators in Azad Jammu and Kashmir established through its constitution and registered with the relevant Chamber of Commerce and Industries, whereas, the other petitioner, was a partnership firm which had been registered as such under the laws of Azad Jammu and Kashmir---Right of business of petitioners was directly affected by the impugned Act and the impugned Rules---Petitioners were first class state subjects and it was their fundamental right to run a business of their own choice as per law, however, due to provisions of Ss.2(b), 3 and 4 of the impugned Act, their right of business had been affected---Besides that the Pakistan Electronic Media Regulatory Authority (PEMRA) and its relevant official wrote various letters and even issued show cause notices and last warning to the petitioners for obtaining new licenses from PEMRA, and collection of fee/dues on the basis of the impugned Act and Rules, therefore, it could safely be said that petitioners were directly aggrieved, hence, had locus standi and competence to file the present writ petition.

Rehmat Ullah Khan and 03 others v. Azad Government and 13 others 2014 SCR 1385; Azad Government and 2 others v. Syed Tayyab Gilani and 14 others 2009 SCR 415 and Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through J.S. Council Secretariat Sector F-5/2, Islamabad and others PLD 2013 HC (AJ&K) 34 ref.

(b) Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005)---

----Ss.2(b), 3 & 4---Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 9 --- Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Ss.15, 16, 17 & 19(5) [as applicable in Azad Jammu and Kashmir]---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.19(2)---Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 ('the impugned Act')---Vires of---Licenses issued under the impugned Act ---Licenses and other regulatory fees imposed under the Pakistan Electronic Media Regulatory Authority Rules, 2009 ('the impugned Rules')---Legality---Section 2(b) of the impugned Act declared the Pakistan Electronic Media Regulatory Authority (PEMRA) as an agent of the Azad Jammu and Kashmir Council---Employees of PEMRA were neither appointed by the Azad Jammu and Kashmir Government or by the Council nor were answerable before it---Even the Government and the Council had got no powers to legislate for the said employees---Section 2(b) of the impugned Act was against the Azad Jammu and Kashmir Interim Constitution Act, 1974, to the extent of entrustment of powers to PEMRA---Through S.3 of the impugned Act, Ss.15, 16 & 17 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2009 ('the 2009 Ordinance'), dealing with Budget, Accounts and Audit and Annual report respectively, were omitted---Said provisions of the 2009 Ordinance could not have been omitted, therefore S.3 of the impugned Act was also bad in law---Section 4 of the impugned Act added a new subsection (5) to S.19 of the 2009 Ordinance, which provided that PEMRA after receiving fee from the licensees shall transfer fifty percent of the same to the Azad Jammu and Kashmir Council---Said subsection (5) to S. 19 of the 2009 Ordinance was against the Azad Jammu and Kashmir Interim Constitution Act, 1974---Letter issued by legal department of PEMRA was brought on record to establish that the Chairman PEMRA had approved the impugned Rules for Azad Jammu and Kashmir---Said letter had no statutory backing---Employees of the body mentioned in the said letter as Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (CEMRA) were neither appointed nor answerable before the Azad Jammu and Kashmir Council, and were basically employees of PEMRA---Sections 2(b), 3 & 4 of the impugned Act were contrary to the Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, the same were struck down as having no legal authority---Impugned Pakistan Electronic Media Regulatory Authority Rules, 2009, were also set-aside having not been adapted by the Azad Jammu and Kashmir Council --- Consequently, all the proceedings taken, orders/letters issued by or on behalf of PEMRA to petitioners for obtaining new licenses and payment of fees and dues etc were quashed with the direction that the Government of Azad Jammu and Kashmir was empowered to establish its own Authority and appoint its employees for the purposes of enforcement of the impugned Act, or may exercise its powers as postulated under subsection (2) of S.19 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Writ petition was disposed of accordingly.

Messrs Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and 4 others 2001 PLC (C.S.) 11 ref.

Barrister Humayun Nawaz Khan for Petitioners.

Bashir Ahmed Mughal for Respondents Nos.1 and 2.

Abdul Rasheed Abbasi for Respondents Nos.3 to 5.

2019 C L C 2046

[(AJK) High Court] [Shariat Appellate Bench]

Before Ch. Khalid Yousaf, J

TALAT FAROOQ----Appellants

Versus

ZESHAN SHEHZAD----Respondents

Family Appeals Nos.288 to 290 of 2018, decided on 25th May, 2019.

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

----S.5, Sched.---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4(4)(8)---Suit for dissolution of marriage and recovery of maintenance allowance---Mental torture to wife to abandon job---Cruelty---Scope---Family Court dissolved marriage on the basis 'khula'---Validity---Defendant had forced plaintiff and mentally tortured her to abandon her job---Lawful profession was a fundamental right of every individual which had been guaranteed and safeguarded by the Constitution---Plaintiff-wife had constitutional right to choose her own employment or engage in any lawful profession/occupation---Behavior of defendant-husband was not proper towards plaintiff-wife---Ouster of plaintiff from his house was due to his attitude---Cruelty was not confined only to physical torture but it did include mental and hateful attitude of husband and other inmates of the house---Family Court had committed error while passing decree for dissolution of marriage on the basis of 'khula' which was not maintainable---Marriage was dissolved on the basis of cruelty, in circumstances---Plaintiff's ouster was not wilful but same was due to mental torture and she was entitled to receive maintenance allowance from the date of institution of suit till decision of the same---Family Court while determining maintenance allowance had considered the financial status of husband as well as his other responsibilities---Defendant should pay maintenance allowance to the wife @ Rs.5000/- per month from the date of institution of suit till decision including the period of iddat---Appeal was disposed of, accordingly.

2014 SCR 718 and 2015 SCR 621 rel.

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

----S.4(4)(8)---Lawful profession---Fundamental right---Lawful profession was a fundamental right of every individual which had been guaranteed and safeguarded by the Constitution---Any individual could adopt any lawful profession or could carry on business.

Syed Ashfaq Hussain Kazmi for Appellant.

2019 C L C 20

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

BNP (PRIVATE) LIMITED and another----Appellants

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

I.C.A. No. 109 of 2017, decided on 3rd September, 2018.

(a) Islamabad Land Disposal Regulations, 2005---

----Reglns. 19, 3 & 6---Capital Development Authority Ordinance (XXIII of 1960), S.51---Registration Act (XVI of 1908), Ss. 17 & 49---Lease agreement, violation of---Rights of sub-lessees---Dispute between parties was with regard to construction of apartments on a land which was leased out for 99 years---Appellant was lessee and aggrieved of revoking of lease by Capital Development Authority on allegation of violation of lease agreement---Sub-lessees also joined proceedings and claimed to be purchasers of apartments from appellant for valuable consideration---Contention of Capital Development Authority was that serviced apartments were not constructed instead, those were sold on ownership basis and same was violation of lease agreement---Validity---Capital Development Authority executed lease for a period of 99 years---Where lease was for a period of more than 11 months, under provisions of section 17 of Registration Act, 1908 same was compulsorily registrable---If a document was required under law to be compulsorily registered and was not registered, under section 49 of Registration Act, 1908 such document did not create any right---Sub-lessees were third parties who claimed to have acquired interest on basis of sub-leases executed in their favour, therefore, they would sink or sail with appellant---Plea of bona fide purchasers for value without notice was not sustainable in jurisdiction under Art. 199 of the Constitution as it required evidence and sub-lessees could agitate their better in court of competent jurisdiction---Sub-lessees also had remedy against appellant which they could agitate before court of competent jurisdiction---Capital Development Authority had advertised and it was mentioned in the documents that apartments were serviced apartments and not residential apartments therefore, no misrepresentation existed on part of Capital Development Authority to public at large---At best, Capital Development Authority failed to warn public when it had come to its notice that apartments were being sold for residential purposes---Capital Development Authority, as regulator was expected to be more vigilant and avoided situation which was created due to their inaction in the form of third party rights and erection of twin towers---Division Bench of High Court declined to interfere in the judgment passed by Single Judge of High Court as same did not suffer from any error of law or factual infirmities---Intra-court appeal was dismissed in circumstances.

Deewan Petroleum v. GOP 2010 CLD 988; Hazara Development Trust v. Qaisara Elahi 2005 SCMR 687; Ramna Pipe v. SNGPL 2004 SCMR 1274; Daewoo Corporation v. National Highway Authority 2000 MLD 1745; Airport Service Manager v. Quaid-e-Azam International Airport 1998 SCMR 2268; M/s Wak Orient Power and Light Limited v. GOP 1998 CLC 1178; M/s Pacific Multinational (Pvt.) Ltd. v. IG Sindh Police PLD 1992 Kar. 283; Ministry of Inter Provincial Coordination v. Maj. (Retd.) Ahmad Nadeem Sadal 2014 CLC 600; Nazim-ud-Din v. Sheikh Zia-ul-Haq Qamar 2015 SCMR 24; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad PLD 2015 SC 212, Mian Muhammad Saeed v. The Province of West Pakistan PLD 1964 SC 572; TATA Iron and Steel Co. Ltd. v. Union of India (2001) 2 SCC 41; Muhammad Majid v. Secretary, Ministry of Manpower PLD 2017 Islamabad 19; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630; Airport Support Services v. Airport Manager 1998 SCMR 2268; Federation of Pakistan v. Tahir Latif 2007 SCMR 152; Secretary, Ministry of Health v. Dr. Rehana Hameed 2010 SCMR 511; United Bank Limited v. Federation of Pakistan 2014 SCMR 856; Justice Hasnat Ahmad Khan v. Federation of Pakistan PLD 2011 SC 680; Union of India v. Major General Madan Lal Yadav AIR 1996 SC 1340; Mian Allah Buksh v. Fazal Karim PLD 1969 Quetta 13; Khairpur Textile Mills Ltd. v. Central Board of Revenue PLD 1969 Kar. 163; Lakhra Power Generation C. Ltd. v. Karadeniz Powership Kaya Bey 2014 CLD 337; Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456; Kalimuddin Ansari v. Director, Excise and Taxation, Karachi and another PLD 1971 SC 114; Ghulam Rasool and others v. Akbar Ali and others 2011 SCMR 794; H.M. Saya and Co. Karachi v. Wazir Ali Industries Limited, Karachi and others PLD 1969 SC 65; The Montgomery Flour and General Mills Ltd. Montgomery v. The Director Food Purchases West Pakistan, Lahore and others PLD 1957 (W.P.) Lah. 914; Ikram Bus Service and others v. Board of Revenue, West Pakistan and others PLD 1963 SC 564; Habib Ullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Owaisco v. Federation of Pakistan PLD 1999 Kar 472; Federal Government Employees Housing Foundation v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Munir Ahmad Ghulam Muhammad Akhtar v. Pakistan Defence Housing Authority (DHA) 2004 YLR 2047; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Faruki PLD 1969 SC 407; Council of Civil Services Union v. Minister for the Civil Services (1985) A.C. 374; National Buildings Construction Corporation v. S. Raghunath' (1988) 7 SCC 66; Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71; Province of Punjab through District Coordination Officer, Okara and others v. Market Committee, Okara through Chairman/Secretary 2011 SCMR 1856. Board of Trustees through Chairman/Additional Secretary, Government of Pakistan, Islamabad and another v. Jamila Akhtar and another 2003 SCMR 1174; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327; Tufail Muhammad through L.Rs v. Messrs Siddique Textile Mills Ltd. and others 2009 SCMR 1091; Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70; Messrs Vinder Textile Mills Ltd. v. Industrial Development Bank of Pakistan 1999 YLR 1188; Government of Sindh v. Muhammad Shafi and others PLD 2015 SC 380; HBL v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; 2007 SCMR 130; PLD 2002 Lah. 28 and 2004 CLC 1104 ref.

(b) Constitution of Pakistan---

----Art. 199---Judicial review---Administrative action---Principle---Three general principles on basis of which judicial review against any administrative action is undertaken are illegality, irrationality and procedural impropriety---Detailed questions of facts cannot be gone into in a petition under Art. 199 of the Constitution.

Makhdoom Ali Khan, Senior ASC, Saad M. Hashmi, Dr. M. Ferogh Nasim, Babar Sattar, M. Ali Raza, Ms. Meryam Ali Abbas, Malik Qamar Afzal, Asad Zia, Saad Khan, Anique Salman Malik and Rashideen Nawaz Kasuri for Appellants.

Kashif Ali Malik, Aamir Latif Gill, Muhammad Munir Paracha and Nauman Munir Paracha for Respondents.

2019 C L C 284

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Malik SAJJAD----Petitioner

Versus

SHAFQAT ZAMAN and 2 others----Respondents

C.R. No. 234 of 2018, decided on 9th November, 2018.

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

----Ss. 21 & 23---Civil Procedure Code (V of 1908), Ss. 104, (1)(f), 36, 47, 96, O. XXI, R.11(2) & XLIII, R.1---Appeal---Execution of orders---Scope---Petitioner assailed order of Rent Controller whereby his objections against the execution petition were dismissed---Appellate Court dismissed the appeal of petitioner being not maintainable---Contentions of petitioner inter alia were that the execution petition had been filed under S. 47 read with O. XXI, R.11(2), C.P.C.; that S. 36, C.P.C. provided that provisions of C.P.C. relating to execution of decrees shall be deemed to be applicable to the execution of orders; that the provision of C.P.C. applied to the proceedings for execution of the ejectment order under Islamabad Rent Restriction Ordinance, 2001 and that any order passed in proceedings under S. 47, C.P.C. was appealable under S. 104(1)(ff), C.P.C.---Validity---Section 23 of Islamabad Rent Restriction Ordinance, 2001 provided that every order made under Ss. 14, 17 & 18 of the Ordinance and every order passed in appeal under S. 21 of the Ordinance shall be executed by the Rent Controller as if it were a decree of a Civil Court---Section 23 of Islamabad Rent Restriction Ordinance, 2001 further provided that provisions of O.XXI, C.P.C. shall, so far as may be, apply to the execution of an order under the Ordinance---Rent Controller could hear objections to an execution petition and could invoke the provisions of O.XXI, C.P.C. in such proceedings, but as a persona designata---Mere fact that the Rent Controller had been given the power to execute certain orders passed under the provisions of Islamabad Rent Restriction Ordinance, 2001 as if they were decrees of civil court did not make the Rent Controller a Civil Court---Order passed by Rent Controller in execution proceedings could not be termed as an order passed by a Civil Court entitling an aggrieved party to file an appeal against the same under inter alia Ss. 96 & 104 or O.XLIII, R. 1, C.P.C.---Substantive right of appeal provided under C.P.C. having not been incorporated or made applicable to the orders passed by Rent Controller, Appellate Court did not commit jurisdictional irregularity in dismissing petitioner's appeal resulting into not maintainable---Order passed by Rent Controller dismissing petitioner's objections to the execution petition could not be termed as a final order and appeal against the same was not competent under S. 21 of Islamabad Rent Restriction Ordinance, 2001---Revision petition was dismissed, in circumstances.

Writ Petition No.4576/2014 titled "Messrs Shakeel Express (Pvt.) Ltd. v. Sultan Mehmood and others rel.

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

----S. 35 [as amended by Costs of Litigation Act (XVII of 2017)]---Costs---Abuse of process---Unnecessary protraction of proceedings---Scope---Petitioner took objection regarding the purchase of rented premises through an agreement to sell and the institution of suit for specific performance for such an agreement to sell which had already been spurned by High Court in an earlier petition---Petitioner, by re-agitating that very objection in another objection petition to the execution proceedings, committed an abuse of the process of the court and unnecessarily protracted the proceedings---Section 35(1)(i), C.P.C. provided that a party to any proceedings shall, before the announcement of the final order, judgment and decree, file in the prescribed form, details of actual costs of litigation, including but not limited to court fee, stamp fee, fee paid to counsel and all other ancillary and other incidental expenses thereto---Section 35(1)(iii), C.P.C. provided that costs other than those mentioned in S. 35(1)(i), C.P.C. shall be in the discretion of the court---Petitioner, in circumstances, was burdened with costs for protracting the execution proceedings by taking objections which had been decided in the earlier round of litigation.

M/S Zulfiqar Ali Abbasi and Shahid Munir for Petitioner.

Haroon ur Rasheed for Respondents Nos.1 and 2.

Mian Abdul Razzaq for Respondent No.3.

2019 C L C 347

[Islamabad]

Before Mohsin Akhtar Kayani, J

FEDERAL EMPLOYEES COOPERATIVE HOUSING SOCIETY through President----Petitioner

Versus

DIRECTOR GENERAL, FEDERAL INVESTIGATION AGENCY, ISLAMABAD and others----Respondents

Writ Petition No. 1966 of 2017, decided on 19th October, 2018.

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

----Ss. 54-A, 60, 61, 62 & 63---Federal Investigation Agency Act, 1974 (VIII of 1975), S.5---Special laws---Applicability---"Inquiry by Federal Investigation Agency" and "Registrar Cooperative Societies"---Distinction---Cooperative Housing Society was aggrieved of inquiry initiated by Federal Investigation Agency---Plea raised by Society was that affairs of Society were within exclusive jurisdiction of Registrar, Cooperative Societies and jurisdiction of Federal Investigation Agency was barred--- Validity--- Restriction was imposed under S. 63 of Co-operative Societies Act, 1925 only to the extent of offences mentioned in Ss. 60, 61 and 62 of Co-operative Societies Act, 1925--- Any offence committed by officer or member of Society which fell within cognizance of police, FIA, NAB, Anti-corruption department, etc., such member/officer could not take shelter of Co-operative Societies Act, 1925---All offences under Co-operative Societies Act, 1925 were limited in nature and could be determined by Registrar whereas, other offences referred in Schedule of the Federal Investigation Agency Act, 1974 at Serial Nos. 1 and 5 had provided exclusive jurisdiction of FIA---Two special laws were of different nature which did not exclude each other and were not in conflict with each other rather were supplementing every aspect of objectives laid down in Preamble of Co-operative Societies Act, 1925---Both laws contained different sets of jurisdiction in their powers and functions---FIA authorities could take benefit of inquiry as well as findings of Registrar Cooperative Societies for purpose of prosecution against any individual who was public servant or had committed any offence referred in Schedule of Federal Investigation Agency Act, 1974---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Mubarik H. Siddiqu v. Sajjad Hassan Khan PLD 1992 Kar. 167; Muhammad Khalid v. NAB through Chief Administrator Multan and others 2017 SCMR 1340; Syed Mushahid Shah and others v. FIA 2017 SCMR 1218; Koh-E-Noor Industries Pvt. Ltd. v. Employees Old Age Benefit Institution 2016 PLC 107; Reference by Judge Special Court-II (C.N.S), 2006 PCr.LJ 921; Muhammad Saleem v. The State 2002 PCr.LJ 216; Baz Muhammad Kakar v. FOP through Ministry of Law and Justice PLD 2012 SC 923; Ghulam Haider v. Murad through Legal Representatives, PLD 2012 SC 501; Abdul Jabbar v. The Chairman NAB through DG NAB PLD 2016 Pesh. 298; SNGPL through General Manager v. Director (Legal) President Secretariat (Public), Aiwan-e-Sadar, Islamabad and 2 others PLD 2018 Isl. 51 and Ashoka Marketing Limited v. Punjab National Bank and others (1990) 4 SCC 406 ref.

Raja Inaam Ameen Minhas for Petitioner.

Muhammad Haseeb Chaudhry, DAG and Mian Muhammad Faisal Irfan, AAG for Respondents Nos.1 to 3.

Nasim Ahmed Shah and Aman Ullah for Respondent No.4.

Qaiser Masood, Additional Director (Law) FIA.

Riffat Hussain Malik for Interveners.

Wajahat Sultan, S.I., FIA Islamabad.

2019 C L C 416

[Islamabad]

Before Miangul Hassan Aurangzeb, J

EXCEL TECHNO SOLUTIONS FZE, UAE through Sole Proprietor and another----Petitioners

Versus

Messrs OIL AND GAS DEVELOPMENT COMPANY LIMITED through Counsel and another----Respondents

Civil Revision No.113 of 2018, decided on 7th December, 2018.

Arbitration Act (X of 1940)

----Ss. 41, 39 & 8---Civil Procedure Code (V of 1908) O.VII R. 11, Ss. 115 & 96---Application of provisions of C.P.C. to proceedings under the Arbitration Act, 1940---Scope---Appealable orders under the Arbitration Act, 1940---Rejection of application under O. VII, R.11, C.P.C. made in proceedings under the Arbitration Act, 1940, not appealable under C.P.C.---Question before the High Court was whether impugned order passed by Civil Court under O. VII R. 11, C.P.C. rejecting petitioners' application under Ss. 8 and 41 of the Arbitration Act, 1940 was appealable order by virtue of S. 96, C.P.C.----Held, that order for rejection of petitioners' application under Ss. 8 and 41 of the Arbitration Act, 1940 was passed in pending proceedings under the same Act and power to reject such application was exercised only because provisions of the C.P.C. had been specifically made applicable to proceedings before the Court by S. 41(a) of the Arbitration Act, 1940---Impugned order was an order passed under provisions of the Arbitration Act, 1940 and not under the C.P.C. and was not therefore appealable as same did not fall within any categories of appealable orders under S. 39 of the Arbitration Act, 1940---Arbitration Act, 1940 being a special enactment would prevail over provisions of C.P.C. and S. 41 of the Arbitration Act, 1940 started with the words "subject to provisions of this Act" and therefore petitioner could not have filed an appeal under S. 39 of the Arbitration Act, 1940 or under S. 96 of the C.P.C. against the impugned order---High Court held, that in such circumstances, revision against impugned order was maintainable.

Union of India v. N.K. (Pvt.) Ltd. AIR 1972 Delhi 202; Union of India v. Mohindra Supply Co. AIR 1962 SC 256; Jute Corporation of India Limited v. Messrs Konark Jute Limited 1986 Orissa 283; Municipal Corporation of Greater Bombay v. Patel Engineering Company Ltd. AIR 1984 Bom. 80; Sharma Ice Factory v. Jewel Ice Factory AIR 1975 Jammu and Kashmir 25; Krishnawati Devi v. H.M. Misra AIR 1974 All. 209; State of Himachal Pradesh v. Messrs H.S. Sobti and Co., AIR 1973 Himachal Pradesh 1 and Puppalla Ramulu v. Nagidi Appalaswami AIR 1957 And. Pra. 11 rel.

Rahil Sikandar Khawaja for Petitioners.

Barrister Sara Seerat for Respondent No.1.

2019 C L C 497

[Islamabad]

Before Miangul Hassan Aurangzeb, J

OVERSEAS PAKISTANIS FOUNDATION, ISLAMABAD----Petitioner

Versus

JOINT MANAGEMENT (PVT.) LTD. and another----Respondents

C.R. No.315 of 2017, decided on 19th November, 2018.

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

----S. 5---Condonation of delay---Duty of court---Scope---Where application for condonation of delay is filed it is foremost duty of court to first decide such application---Only after such application is allowed, court can proceed to decide case on merits.

Muhammad Iqbal v. Muhammad Ahmed Ramzani 2014 CLC 1392 rel.

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

----S. 3---Limitation---Determination---Principles---Plea of limitation, waiver of---Effect---Any suit, appeal or revision petition preferred after limitation period provided in law is without jurisdiction and should be dismissed even if nobody had pointed out such lacuna--- Court was supposed to check issue of limitation---Plea with respect to limitation cannot be waived and even if it is waived it can be taken by party waiving it at a subsequent stage or by court itself--- Where a period of limitation is provided by law, equitable considerations cannot be brought in or applied against express provisions of law of limitation so as to nullify, defeat and override such law--- Where limitation period for filing a suit, appeal or a revision petition has lapsed, doors of justice would stand closed and plea of injustice or hardship cannot be set out as a ground to seek an extension in limitation period.

Muhammad Shafi v. Abdul Rehman PLD 2005 Lah. 129 and Ahmad Khan v. Kosar Parveen 2009 CLC 759 rel.

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

----Ss. 14, 17, 30 & 33---Limitation Act (IX of 1908), S. 5---Award making rule of court---Condonation of delay---Sufficient cause---Scope---Applicants were aggrieved of dismissal of their objections against award which was ultimately made rule of court by Trial Court---Validity---Red tape ism, bureaucratic hurdles, delayed governmental/official approvals, lack of coordination between government departments or within a particular department could not be treated as sufficient cause for seeking condonation of delay in filing actions, suits, appeals or petitions within limitation period provided by law---Application for condonation of delay contained no pleadings with specificity, clarity and precision as to what accounted for bona fide of applicant, honest and genuine mistake or ambiguity in law or in fact causing it to file revision petition before wrong forum as same fell short of requirements for such application---High Court declined to condone delay---Revision was dismissed in circumstances.

Khushi Muhammad v. Mst. Fazal Bibi PLD 2016 SC 892; Province of East Pakistan v. Abdul Hamid Darji 1970 SCMR 558; The Deputy Director, Food, Lahore Region, Lahore v. Syed Safdar Hussain Shah 1979 SCMR 45; Commissioner of Income Tax v. Pir Ahmad Khan 1981 SCMR 37; Income-tax Officer, Company Circle XII, Karachi v. Messrs Shaikh Miran Bux Karam Bux Ltd. 1986 SCMR 1255; Pakistan, through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059; Central Board of Revenue v. Messrs Raja Enterprises 1998 SCMR 307; Government of Balochistan, Public Health Engineering Department v. Muhammad Ibrahim 2000 SCMR 1028; Muhammad Bashir v. Province of Punjab 2003 SCMR 83; Assistant Commissioner, Evacuee Trust Board v. Muhammad Ayub 2003 SCMR 841; Province of Punjab v. Kishwar Qudus Paul 2004 SCMR 571; Federation of Pakistan v. Jamaluddin 1996 SCMR 727; Government of Balochistan v. Ghulam Muhammad 2001 SCMR 19; Chief Secretary, Government of Sindh v. Muhammad Rafique Siddiqui 2004 PLC (C.S.) 962; Government of Pakistan v. Malbrow Builders Contractors 2006 SCMR 1248; Post Master-General, N.-W.F.P. Peshawar v. Liaquat Ali 2009 SCMR 763; Food Department Gujranwala v. Ghulam Farid Awan 2010 SCMR 1899; District Officer (Female) v. Ahmed Sultan 2012 YLR 2250; Pakistan Defence Housing Authority v. Shahid M. Amin 2016 CLC 624 and Mehran Ginning Industries v. Sajid Shafique 2017 CLD 1165 rel.

Malik Qamar Afzal, Ijaz Mahmood Chaudhry and Saad Khan Mayar for Petitioner.

Irfan Farooq, Additional Director (Law), O.P.F.

Khurram M. Hashmi and Ramsha Noshab for Respondents No.1.

2019 C L C 555

[Islamabad]

Before Muhammad Anwar Khan Kasi, CJ and Aamer Farooq, JJ

Mian KHALIQ UR REHMAN----Appellant

Versus

PTA and others----Respondents

I.C.A. No. 137 of 2016, decided on 18th January, 2017.

Law Reforms Ordinance (XII of 1972)---

----S.3---Limitation Act (IX of 1908), S.12---High Court (Lahore) Rules and Orders, Volume-V, chapter-1, R.4---Intra-court appeal---Limitation---Initial filing of appeal within time---Certified copy of judgment---Requirement---Respondents raised objection that the appeal was barred by limitation as there was no requirement of appending certified copy of appeal--- Plea raised by appellant was that initial filing was within time---Validity---In terms of Chapter 1, R. 4 of Volume V of High Court (Lahore) Rules and Orders (also applicable to Islamabad High Court), attaching of certified copy of the order or judgment was not required for filing Intra-court appeal---Where initial filing was within period of limitation and objections were raised which subsequently were removed beyond the period prescribed then appeal could not be termed as barred by time---Procedure prescribed under High Court (Lahore) Rules and Orders had to be followed---Appeal was not barred by limitation and was filed within time period prescribed---Objection was overruled by High Court in circumstances.

Ministry of Defence and others v. Muhammad Athar 2013 MLD 1284; Ashiq Hussain Sabri v. Secretary Health, Government of the Punjab and others PLD 2011 Lah. 490; Shazia Munawar v. Punjab Public Service Commission, Lahore PLD 2010 Lah. 160; Muhammad Boota v. Basharat Ali PLD 2014 Lah. 1; National Bank of Pakistan v. Khalid Javed Qureshi and others PLD 2013 Lah. 269; Province of Punjab and others v. Abdul Ghani and others 2016 MLD 988; Aftab Alam Khan v. The Settlement Commissioner and others PLD 1972 Quetta 97; Arshad Naseemuddin Ahmed v. Javed Baloch and others 2012 CLC 1293 and Additional Chief Engineer (ARMY), Okara Cantt and others v. Messrs Nasime Co. (Pvt.) Ltd. 1991 CLC 1476 ref.

Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392 rel.

Hafiz Arfat Ahmed for Appellant.

Mian Shafqat Jan for Respondent No.1.

2019 C L C 750

[Islamabad]

Before Athar Minallah, J

INFOSPAN (PRIVATE) LIMITED----Appellant

Versus

M/s SHAHEEN FOUNDATION and another----Respondents

F.A.O. No. 102 of 2013, decided on 13th April, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Arbitration Act (X of 1940), Ss.34 & 39---Suit for recovery of money---Reference to arbitration---Principle---Defendant instead of filing application to defend the suit, sought stay of proceedings and referring the matter for arbitration---Trial Court dismissed the application filed by defendant as the same was filed before seeking leave to appear and defend the suit---Validity---Provisions of O. XXXVII, C.P.C. provided for special procedure in case of classes of suit specified therein---If dispute was covered under arbitration clause incorporated in agreement then provisions of Arbitration Act, 1940, were attracted and in such eventuality defendant was entitled to file application for staying proceedings under S. 34 of Arbitration Act, 1940, provided conditions mentioned therein were satisfied---Essential conditions required to be met were existence of arbitration agreement and filing of application before taking any other step in proceedings---Conduct of defendant was pivotal and crucial test for determining whether an act was step in proceedings was display of unequivocal intention not to proceed with the suit and to refer dispute for arbitration---Trial Court was to satisfy that conduct of party seeking stay of proceedings did not reflect an intent to waive right to resolve dispute through arbitration---Prior to seeking leave to appear and defend the suit filed under O. XXXVII, C.P.C. application under S.34 of Arbitration Act, 1940, could be entertained---Seeking and arguing application for leave to defend under O. XXXVII, R. 3, C.P.C. tantamount to taking a step in proceedings and thus negating legislative intent postulated under S. 34 of Arbitration Act, 1940---In order to demonstrate an unequivocal intention not to waive the right to refer the matter for arbitration, filing of application under S. 34 of Arbitration Act, 1940, at the first instance was crucial---Such application was to be filed independently and the same would also tantamount to seeking leave of Court to appear without defending the suit---High Court set aside order in question and remanded the matter to Trial Court for deciding application under S. 34 of Arbitration Act, 1940, afresh---Appeal was allowed accordingly.

Sqn. Ldr. Khurram Zaman v. Mrs. Afia Zafar and others 2008 CLD 662; Mst. Suriya Waseem Usmani and 9 others v. L&M International (Pvt.) Ltd. and another 2002 CLD 624 and Messrs Pioneer Cables Limited v. Messrs Saadi Cement Limited 1999 CLC 184 distinguished.

Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Asif Cotton Ginners and 5 others 1995 CLC 1024; Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 and Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar and Company Limited 1993 SCMR 866 ref.

Sultan Mazhar Sher for Appellant.

Syed Ishtiaq Haider for Respondents.

2019 C L C 830

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ZAHID NASEEM and others----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No. 146 of 2019, heard on 18th February, 2019.

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

----Ss. 28 & 34---Punjab Local Government (Resignation) Rules, 2016, R. 3(1) & (2)---Resignation, by Chairman, Union Council withdrawal of---Effect---Petitioners submitted their resignations from Chairmanship of their respective Union Councils so as to enable them to contest general elections---Plea raised by petitioners was that prior to acceptance of their resignations, they could withdraw their resignations---Validity---If petitioners had not submitted resignations, their nomination papers for contesting general elections would not have been accepted; after they were unsuccessful in general elections petitioners wanted to retain their seats as Chairman of Union Council by withdrawing their resignations---Resignations were submitted prior to acceptance of their nomination papers by Returning Officer for general elections---Local Government was to forward copies of resignations to Election Commission of Pakistan and government for necessary action accordingly---High Court declined to interfere in the matter as there was no legal or jurisdictional infirmity in order passed by Election Commission of Pakistan holding that resignation once tendered by Chairman of a Union Council could not be withdrawn and had become effective there and then due to deeming clause contained in S. 34(2) of Punjab Local Government Act, 2013---Constitutional petition was dismissed in circumstances.

Election Appeal No.6/2018; Fozia Khalid v. Election Appellate Tribunal; Civil Petition No.2044-L/2018; Sunbiz Private Limited v. Federation of Pakistan through Secretary, Ministry of Information 2018 YLR 1785; Young v. Bristol Aeroplane Co. LTD. Lord Greene, M.R. [1944] 2 ALL ER 293; Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; The State v. Haji Nasim-ur-Rehman PLD 2005 SC 270; Halsbury's Laws of England Fourth Edition Volume 26 in paragraph 577-578; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SC 588; Dilawar Hussain v. District Coordination Officer, Okara 2004 CLC 324; Multan Electric Power Supply Company Ltd. through its Chief Executive v. Muhammad Ashiq and others PLD 2006 SC 328; Mian Muhammad Rashid Qadri v. Province of the Punjab 2003 SCMR 912; Lt. Col. Muhammad Aslam v. Defence Housing Authority through Administrator PLD 2008 Lah. 261; Zulfiqar Ali Khan v. District Government Ghotki at Mirpur Mathelo 2006 CLC 20 and Muhammad Ikram and another v. Rent Controller 2004 CLC 1326 ref.

Ali Nawaz Kharal and Muhammad Bilal Waince for Petitioners.

Sanaullah Zahid for Respondent No.1.

Qazi Mansoor Ahmad for Respondent No.2.

2019 C L C 851

[Islamabad]

Before Noor-ul-Haq N. Qureshi and Athar Minallah, JJ

Messrs AL-MUIZ-1 CNG, FATEH JANG----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

I.C.A. No.494 of 2014, decided on 7th July, 2014.\

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

----Ss. 11, 12 & 42---Complaint Resolution Procedure for Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) Regulations, 2003, Rgln. 3---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Appellant was a Compressed Natural Gas supplier and was denied supply of natural gas on grounds that Authority had curtailed supply according to natural gas supply schedule---Appellant was aggrieved of order passed by Single Judge of High Court in exercise of Constitutional jurisdiction validating right of the Authority to formulate natural gas supply schedule---Validity---Provisions of Oil and Gas Regulatory Authority Ordinance, 2002 provided for a comprehensive and efficacious mechanism for redressal of grievance against a licensee or in case of regulated activity, which included right of appeal and review---Order of schedule of supply of natural gas assailed by appellant before High Court under Art. 199 of the Constitution fell within ambit of proviso to S. 3(2) of Law Reforms Ordinance, 1972---Appellant, by invoking jurisdiction of High Court under Art. 199 of the Constitution had bypassed efficacious alternate remedy provided under Oil and Gas Regulatory Authority Ordinance, 2002---Intra-court appeal was dismissed, in circumstances.

Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service, PLD 1958 SC 437 rel.

2019 C L C 887

[Islamabad]

Before Athar Minallah, J

TELECOM SERVICES AND CONSULTANTS (PVT.) LTD.----Applicant

Versus

OOREDOO Q.S.C. and others----Respondents

C.S. No.63 of 2014, decided on 1st July, 2015.\

(a) Interpretation of document---

----Forum selection clauses---Dispute resolution---Scope---Forum selection clauses may fall in different categories, depending on intention of parties, as expressed in language of clause---Broadly, it is of two types, i.e., 'exclusive' or 'non-exclusive'---Former requires that disputes arising under contract, or in connection therewith, may be taken exclusively to court specified in clause, while that is not the case with latter---Clauses drafted in language which clearly and unambiguously shows that parties had intended to give exclusive jurisdiction to a particular court are also termed as mandatory clauses---If language is not clear and it cannot be unambiguously determined that intent was to give exclusivity, then such non-exclusive clause is also termed as 'permissive'.

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

----S. 28---Civil Procedure Code (V of 1908), O. VII, R. 10---Return of plaint---Jurisdiction of court---Forum selection---Maintainability---Dispute between parties was with regard to utilization of forum selection clause in contract---Defendant company sought return of plaint on grounds that courts situated in Pakistan did not have jurisdiction in the matter---Validity---Upholding sanctity of contractual bargain was pivotal---Court was to give effect to 'exclusive' jurisdiction clauses unless plaintiff was able to discharge heavy burden of satisfying court that circumstances existed, not foreseen at time of execution of contract containing such a clause, that proceedings be allowed in a non-contractual forum---Plain language of 'forum selection clause' was precise, unambiguous and clear and there was no doubt that parties had intended jurisdiction of English courts to be 'exclusive'---Clause covered adjudication of grievances or cause of action disclosed and asserted in plaint---Refusal of instant application would tantamount to enable plaintiff to circumvent binding obligation, which it had undertaken at time of accepting two process letters including forum selection clause contained therein---Parties had also chosen English law as governing law and plaintiff had not raised any ground so as to justify refusal in giving effect to exclusive jurisdiction clause---Plaintiff had accepted exclusive forum selection clause voluntarily and out of free will---High Court allowed application under O. VII, R. 10, C.P.C. as it was just and proper to give effect to exclusive clause contained in respective process letters---Application was allowed in circumstances.

M.A. Chowdhury v. O.S.K. Lines Ltd. PLD 1970 SC 373; Raziq International v. Panalpina Management PLD 2014 Sindh 175; Light Industries v. ZSK Stickmaschinen GmbH 2009 CLD 1340; Masood Asif v. UBL 2001 CLC 479; CGM v. Hussain Akbar 2002 CLD 1528; Premium Nafta Products Ltd v. Fili Shipping Co. Ltd. 2007 UKHL 40; Renusagar Power Co. Ltd. v. General Electric Company AIR 1985 SC 1156; Empresa Exportadora De Azucar v. Industria Azucarera Nacional S.A. [1983] 2 Lloyd's Rep. 171; Abdullah M. Fahim and Co. v. Mareb Yemen Insurance Co. and Tomen (UK) Ltd. [1997] 2 Lloyd's Rep. 738; Kadir Motors (Regd), Rawalpindi v. National Motors Ltd. Karachi 1992 SCMR 1174; State Life Insurance v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Thakurdas Bhudarsao v. Industrial Stores Company and others 1971 MPLJ 1052; Surgeon Munawar Ali v. Health Vision and others 2008 CLC 1476; Damodar Valley Corporation v. K.K. Kar AIR 1974 SC 158; Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 759; Messrs Eckhardt and Co. Marine GmbH v. Muhammad Hanif PLD 1993 SC 42; Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar and Co. Ltd. 1993 SCMR 866; Spiliada Maritime Corp v. Cansulex Ltd. [1986] 3 AII ER 843; The House of Lords in Donohue v. Armco Inc. [2002] 1 Lloyd's Rep 425 Eleftheria [1969] 2 AII ER 641; The El Amiria [1981] 2 Lloyd's Rep 119; British Aerospace v. Dee Howard [1993] 1 Lloyd's Rep 368; Donohue v. Armco Inc. and others 2001 UKHL 64; Donohue v. Armco Inc. and others 2001 UKHL 64; Bremen (and Underweser G.M.B.H) v. Zapata Off Shore Company 407 US 1 (1972) and Hitachi Limited v. Rupali Polyster 1998 SCMR 1618 ref.

Faisal Naqvi and Nasir Mehmod for Petitioner.

Iftikhar Ahmed Bashir for Respondent.

2019 C L C 938

[Islamabad]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

Ms NAHEED KHAN----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No. 2008 of 2013, decided on 6th February, 2017. \

Political Parties Order (20 of 2002)---

----Arts. 5(1) & 5(3)---Constitution of Pakistan, Arts. 63(1)(k), 199 & 260---Constitutional petition---Disputed question of fact---Allocation of election symbol---Petitioner was aggrieved of order passed by Election Commission of Pakistan where her request to register a political party by name of 'Pakistan People's Party' and its symbol of sword was rejected and same name was allotted to respondents---Petitioner contended that she was never member of political party namely Pakistan People's Party (Parliamentarians) though she had contested elections on its ticket---Validity---Petitioner had admittedly contested elections on ticket of Pakistan People's Party and she neither resigned nor was expelled from its membership---Pakistan People's Party (Parliamentarians) had not raised objection relating to allocation of symbol pursuant to acceptance of application of respondent---Tacit approval appeared as was evident from order of Election Commission of Pakistan---High Court declared that there was no legal infirmity with order passed by Election Commission of Pakistan nor were factual determinations perverse or fanciful---Plea raised by petitioner raised a disputed question of fact which could not be resolved while exercising powers under Art. 199 of the Constitution---High Court declined to interfere in the matter---Constitution petition was dismissed in circumstances.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, former Chief of Army Staff and others PLD 2013 SC 1; Munir Ahmad v. Asif Ali Zardari and others, Cri. Original No.1373-W of 2012; Dr. M.A. Haseeb Khan and others v. Sikandar Shaheen and 9 others PLD 1980 SC 139; Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933; Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt. Election Authority (Tribunal) and another 1981 SCMR 291; Benedict FD' Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476; Muhammad Younis Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Shah Wali and others v. Ferozuddin and others 2000 SCMR 718; Collector of Customs and others v. Messrs Fatima Enterprises Ltd. and others 2012 SCMR 416 and Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 ref.

Zulfiqar Khalid Maluka for Petitioner.

Syed Nayyar Hussain Bokhari, Malik Amir Fida Paracha and Raja Shakeel Ahmed Abbasi for Respondents.

2019 C L C 985

[Islamabad]

Before Athar Minallah, J

SAEED MUSHTAQ ABBASI----Petitioner

versus

ABDUL RAUF SABIR and 2 others----Respondents

Writ Petition No.2261 of 2015, decided on 28th December, 2015.\

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

----S. 17---Eviction petition---Defence, striking off---Failure to deposit rent---Expression "the monthly rent which subsequently becomes due", occurring in S. 17(8) of the Islamabad Rent Restriction Ordinance, 2001---Connotation---Tenant assailed the order of striking of defence for the delay in depositing the rent for the month of February---Plea of tenant was that the required rent was to be paid before fifteenth of March---Tenant placed reliance on the phrase "the monthly rent which subsequently becomes due" used in S. 17(8) of Islamabad Rent Restriction Ordinance, 2001---Validity---Phrase "the monthly rent which subsequently becomes due" had no nexus with the month, which followed the specified date for payment of arrears---Legislative intent was absolutely clear and the rent for each month was required to be paid before the fifteenth of the respective month, and not before the fifteenth of the next month---Tenant was under mandatory statutory obligation to have deposited the rent for the month of February before its fifteenth---Rent Controller had rightly struck off the defence of tenant---Constitutional petition was dismissed.

Mushtaq Ahmed Kiani v. Bilal Umair and others 2009 SCMR 1008; Mohammad Yousaf v. Mohammad Bashir sand others 1990 SCMR 557; Safeer Travels (Pvt.) Ltd. v. Mohammad Khalid Shafi PLD 2007 SC 504; Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530; Province of Punjab and others v. Muhammad Jalil-ur-Rehman 1986 SCMR 1705; Muhammad Amin v. Ghulam Nabi and 2 others PLD 1990 SC 1201; Khawaja Muhammad Mughees v. Mrs. Sughra Dadi 2001 SCMR 2020 and M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453 rel.

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

----S. 17---Eviction petition---Initial steps to be taken by Rent Controller, enumerated.

Section 17(8) of Islamabad Rent Restriction Ordinance, 2001 prescribed the initial steps to be taken by Rent Controller after a petition for eviction had been filed:

i. On the first date of hearing, or as soon as may be, but before the issues are framed, it is mandatory for the Rent Controller to direct the tenant to deposit all the rent due to him.

ii. In the context of the above direction, if there is any dispute regarding the rent, the Rent Controller determines the amount of the rent due approximately.

iii. In addition to the above, the Rent Controller further has to direct that the tenant shall regularly pay the approximate or tentatively determined rent for each month subsequent to the date specified for depositing the payment of arrears. The statutory mandate has prescribed the payment/deposit of the rent for each month to be made before the fifteenth day of the relevant or corresponding month.

iv. Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 is couched in such a language that in the eventuality that either the arrears are not deposited before the specified date, or the rent for each month following the specified date is not paid before the fifteenth day of each corresponding month, then it becomes mandatory for the Rent Controller to strike off the defence of the tenant and put the landlord in possession of the property without further proceedings.

Mushtaq Hussain for Petitioner.

Raja M. Aleem Khan Abbasi for Respondents.

2019 C L C 1148

[Islamabad]

Before Athar Minallah, J

MUHAMMAD RASHID----Petitioner

Versus

MAZHAR HUSSAIN MIRZA and 2 others----Respondents

Writ Petition No.4093 of 2013, decided on 9th July, 2015.\

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

----O. XVIII, R.1---Hearing of suit and examination of witnesses---Right to begin---Scope---Order XVIII, R.1, C.P.C. prescribes the procedure for the hearing of the suit---Rule 1, O.XVIII, C.P.C. determines whether plaintiff or defendant has a right to commence---Said Rule provides that 'the right to begin' is that of the plaintiff except when the defendant admits the facts alleged by the plaintiff and contends that either on a point of law or on some additional facts alleged by defendant, the plaintiff is not entitled to any part of the relief sought---In later case, defendant has a right to begin---Party on whom the burden of proof lay has the right to begin.

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

----O. XVIII, R.2---Hearing of suit and examination of witnesses---Statement and production of evidence---Scope---Order XVIII, R. 2, C.P.C. provides that on the day fixed for the hearing of the suits, the party having the right to begin shall state his case and produce evidence---Other party may then produce his evidence---In such a case the party beginning may then reply generally on the whole case---Rule 2, O.XVIII, C.P.C. applies when the onus of proof is on one party.

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

----O. XVIII, R.3---Hearing of suit and examination of witnesses---Evidence where several issues existed---Right to reserve evidence---Scope---Order XVIII, R. 3, C.P.C. relates to a situation where there are several issues, and the burden of proving some is on the plaintiff while others is on the defendant---Party determined under O. XVII, R.1, C.P.C. as having the right to begin can exercise an option i.e. either to produce evidence, even on those issues on which the burden of proof is on the other party, or to abstain from producing evidence on such issues and reserves the right to answer after the evidence has been produced by the other party---In case the later option is exercised then after the other party has produced evidence, the party which has exercised its option to abstain shall produce evidence---Rule 3, O.XVIII, C.P.C. does not provide as to which stage the party is entitled to exercise its option to reserve its right to answer---Party which has the right to begin may not be entitled to exercise the option to reserve its right to answer if it has spoken on the facts covered by that issue in its evidence already recorded.

Inderjeet Singh v. Maharaj Raghunath Singh and others AIR 1970 Raj. 278 and T.R.S. Mani Sastrigal alias Mari Sastrical v. T.R. Suryanarayanan AIR 1996 Mad. 152 rel.

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

----O. XVIII, R.3---Hearing of suit and examination of witnesses---Evidence where several issues---Right to reserve evidence---Option, exercise of---Scope---Plaintiff wanted to produce evidence on additional issue which was framed after he had recorded his evidence---Plea of plaintiff was that he had reserved his right to produce evidence in rebuttal---Validity---Party beginning had to exercise an option in the case of those issues the burden of proving of which was on the other party---Exercising an option essentially meant application of conscious mind---In order to exercise the option, the issue must have been framed and known to the parties otherwise reserving the right to answer by abstaining from producing evidence on a particular issue would be futile and mechanical exercise---Use of the expression 'option' was critical---Option meant to choose between the two or more alternatives or things.

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

----O. XVIII, R.3---Hearing of suit and examination of witnesses---Evidence where several issues existed---Right to reserve evidence---Ingredients of O. XVIII, R. 3, C.P.C.

Rule 3 of Order XVIII, C.P.C. contemplates that:

i. there are several issues formed at the time when the option is to be exercised, ii. it should be known to the parties as on which party the onus to prove lies, iii. the option is exercised before the other party begins producing its evidence and

iv. the option so exercised must be in relation to a specifically identified and already framed issues. [p. 1155] F

Syed Javed Akbar for Petitioner.

Syed Asghar Hussain Sabzwari and Sh. Muhammad Khizar-ur-Rashid for Respondent No.1.

Malik Javed Iqbal Wains for Respondent No.2.

2019 C L C 1189

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Raja IMRAN AKHTAR----Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY and others----Respondents

Writ Petitions Nos.3850, 4547 of 2016 and 252 of 2017, decided on 22nd August, 2017.

(a) Lessor and lessee---

----Lease agreement, cancellation of---Lease agreements between the National Highway Authority ('the Authority') and petitioners (lessees) were cancelled by the Authority pursuant to a clause of the conditions of the lease agreements---Stance taken by the Authority was that in terms of the said clause the lessees did not pay the advance ground rental charges and the approach rental charges within a period of six months of the execution of the lease agreements ---Held, that petitioners candidly admitted that they had committed default in the payment of annual ground rent but were of the view that prior to the termination of the lease agreements, the Authority should have given an opportunity to the petitioners to cure the default by paying the accumulated rent---Petitioners were unable to satisfy the Court by producing deposit receipts to show that the advance ground rental charges had been paid without a delay beyond the stipulated ninety days of the due dates---Petitioners were also unable to dispute the Authority's contention that the lessees were not utilizing the land for the purpose for which the lease agreements were executed---On account of a clear default in the payment of ground rental charges by the petitioners, they could not be granted any relief in the constitutional jurisdiction of the High Court---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Contracts between State functionaries and private entities---Ordinarily, the High Court in exercise of its jurisdiction under Art. 199 of the Constitution, did not entertain a writ petition filed by a petitioner against an instrumentality of the State with whom such a petitioner had executed a contract---However, the State or its instrumentality when engaged in contracts had a duty to act fairly, reasonably and in the public interest, and an infraction of such duty would be amenable to examination in writ jurisdiction.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Alternate and efficacious remedy---When an alternative and equally efficacious remedy was open to a litigant, he should be required to pursue that remedy and not invoke the constitutional jurisdiction of the High Court for the issuance of a writ.

(d) Constitution of Pakistan---

----Art. 199---Specific Relief Act (I of 1877), S. 12---Constitutional jurisdiction of the High Court---Scope---Contract between a State functionary and a private entity---Arbitration clause---Where there existed an arbitration agreement, the parties were required to get their disputes arising out of the contract adjudicated by the domestic forum created by them---Existence of an arbitration clause in the contract between a State functionary and the private entity left no option to the High Court but to point the parties in the direction of arbitration---Where there was an arbitration clause in the contract between the parties, a writ petition could not be instituted to question the termination of the contract and or to seek specific performance of the contract.

Mumtaz Ahmad v. Zila Council, Sahiwal 1999 SCMR 117; Abdul Qayyum Khan v. District Officer, Passenger and Freight 2003 MLD 670; Messrs Frontier Construction Company v. Bahauddin Zakariya University 2006 MLD 978; Muhammad Hayat Khan v. Tehsil Municipal Administration 2009 YLR 2259; Signage Security System v. CDA and others 2010 CLC 567; Mst. Zahida Maqbool vs. Member (Colonies) Board of Revenue 2010 YLR 1734; Messrs Muhammad Siddiq Chaudhry v. Higher Education Commission 2011 CLC 863; Wajahat Ali v. Government of Khyber Pakhtunkhwa 2013 YLR 2132; N.A.A. Consulting Engineers v. Metropolitan Corporation 2014 MLD 1795; Gandapur Construction Company v. Government of Khyber Pakhtunkhwa 2014 CLD 400; Uch Power (Pvt.) Ltd. v. Government of Pakistan, Federal Board of Revenue 2017 PTD 1215 and Messrs Bisra Stone Lime Company Limited v. Orissa State Electricity Board AIR 1976 SC 127 ref.

Ch. Rizwan Bagri, Khawaja Shahid Rasool and Muhammad Ali for Petitioner.

Yaser Aman Khan and Raja Junaid Ahmad Raja for Respondents.

2019 C L C 1213

[Islamabad]

Before Mohsin Akhtar Kayani, J

Mst. NASREEN and another----Petitioners

Versus

Raja MUHAMMAD SHAHID BASHIR and others----Respondents

Writ Petition No.3492 of 2018, decided on 18th January, 2019.

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

----S. 25---Custody of minor---Maintenance allowance, non-payment of---Misrepresentation and concealment---Petitioner was mother of minor who was aggrieved of concurrent judgments and decrees passed by two Courts below whereby custody of minor son was decided in favour of father of the minor---Validity---Father of minor himself was in defiance of maintenance decree of minor who had not been paying maintenance for the last three years---Question of welfare of minor was already adjudicated and settled by Guardian Court at place "K" and the same was upheld up to High Court---Jurisdiction at place "K" was in knowledge of father of minor who concealed all such factors from Guardian Court at place "I" and had re-agitated the matter at place "I" at old cause of action pertaining to year 2008, which was not permissible---Person who was guilty of misstatement, misrepresentation of facts and concealing previous proceedings, was not entitled to any relief as he was estopped by his words and conduct---Father of minor was under lawful obligation to regularly pay maintenance despite the fact that Guardian Court as well as Lower Appellate Court at place "I" passed concurrent findings in favour of the father but the same had not absolved him from payment of maintenance unless custody of minor was actually handed over to him---High Court set aside judgment and decrees passed by two Courts below as father of minor was not entitled for custody of minor---Constitutional petition was allowed in circumstances.

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

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

----S. 25---Constitution of Pakistan, Art. 15---Shifting of residence by Guardian of minor (mother)---Right to movement---Mother of minor has right to shift from one jurisdiction to another jurisdiction along with minor on the reasons of security, job or to look after her parents---Mother of minor is the best judge to decide such factors and no Court can put a clog in her right of free movement.

Malik Atif Raza Kalwar for Petitioner.

2019 C L C 1275

[Islamabad]

Before Miangul Hassan Aurangzeb, J

AMJAD ALI ABBASI----Petitioner

Versus

MUHAMMAD BUKSH JUMANI and others----Respondents

C.R. No. 146 OF 2014, decided on 7th March, 2019.

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

----S. 12---Suit for specific performance of agreement---Sale agreement---Scope---Agreement to sell immovable property neither create nor purport to create any right or interest in such property---Execution of such an agreement did not ipso facto transfer ownership of the immovable property in the vendee's favour---Agreement to sell even did not create a charge on an immovable property---Agreement to sell only conferred a right for the enforcement of such an agreement and to obtain another document conferring title with regard to immovable property in question.

Muhammad Ibrahim v. Fateh Ali and others 2005 SCMR 1061; Shah Muhammad v. Atta Muhammad 2005 SCMR 969; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470; Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others 1989 SCMR 949 and Shamoon and others v. Ahmad and others 1986 SCMR 888 rel.

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

----Ss.42 & 12---Suit for declaration on the basis of agreement to sell---Maintainability---Agreement to sell was not a document of title and could not form the basis for the grant of a declaration.

Tahir Mehmood Abbasi for Petitioner.

Shakir Javed for Respondent No.1.

Mian Abdul Razzaq for Respondent No.6.

Musharaf Khan for Respondent No.5.

2019 C L C 1486

[Islamabad]

Before Miangul Hassan Aurangzeb, J

DEWAN PETROLEUM (PVT.) LTD.----Appellant

Versus

OIL AND GAS INVESTMENT LTD.----Respondent

F.A.O. No. 113 of 2018, decided on 26th March, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Arbitration Act (X of 1940), Ss. 20 & 41---Application to file arbitration agreement in Court---Temporary injunction, grant of---Requirements---Temporary injunction could be granted in cases where applicant had a good prima facie case, the balance of convenience was in his favour and the loss he would suffer was irreparable if injunction was not granted and could not be measured in terms of money---Court had power to issue interim injunction for the purpose and in relation to arbitration proceedings---Injunctive order against the recovery of amount without examining the ingredients for grant of injunction was not sustainable in law---Where loss was ascertainable in terms of money then it could not be treated as case of irreparable loss---Ingredients for grant of injunction must co-exist and if any of such was missing then litigant would not be entitled to the grant of temporary injunction---Trial Court without giving any findings with regard to existence of preconditions necessary for the grant of interim injunction had granted temporary injunction---Impugned order for grant of interim injunction was set aside and application was dismissed---Revision was allowed, in circumstances.

Pakistan Railways v. Four Brothers International (Pvt.) Ltd. PLD 2016 SC 199; Tauseef Corporation (Pvt.) Ltd. v. Lahore Development Authority 2002 SCMR 1269; Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju 2019 CLC 1; Maxim Advertising Company (Pvt.) Ltd. v. Province of Sindh 2007 MLD 2019; Haji Khan v. Government of Sindh 1990 MLD 155; Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092; Imtiaz Ahmad v. Muhammad Shoaib Shah 2015 CLC 1121; Mst. Azra Parvez v. Sheikh Ashfaq Hussain 2015 CLC 1695; M.Y. Corporation (Private) Ltd. v. Erum Developers PLD 2003 Kar. 222; Managing Committee, Revenue Employees Cooperative Housing Society v. Secretary, Cooperative Societies, Government of Punjab 2001 CLC 838 and Zakaria Dada v. Maneck Byramji Javat 1992 CLC 345 rel.

Malik Qamar Afzal and Saad Khan for Appellant.

Ammar Athar Saeed for Respondent.

2019 C L C 1613

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs K&N INTERNATIONAL ----Petitioner

Versus

Messrs MOTORWAY OPERATIONS AND REHABILITATION ENGINEERING (PRIVATE) LIMITED----Respondent

C.R. No.209 of 2018, decided on 16th April, 2019.

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

----S. 20---Civil Procedure Code (V of 1908), S. 11---Arbitration agreement---Arbitration clause---Reference to arbitrator---Res judicata, principle of---Applicability---Scope---Petition for reference of dispute to the arbitrator was moved by company but same was dismissed having not been accompanied with a resolution of Board---Petitioner filed subsequent petition which was dismissed on the ground of res judicata---Validity---Held, matter on which plea of res judicata was found should have been finally adjudicated and decided in previous proceeding---Principle of res judicata could not be pressed into service unless it was established that matter in issue was earlier adjudicated on merits and conclusively decided---Petitioner's subsequent application could not have been dismissed on the ground of res judicata, in circumstances---Parties to an agreement could enforce the arbitration clause contained therein by filing an application under S.20 of Arbitration Act, 1940---Person who had not entered into an arbitration agreement could not enforce it by instituting arbitration proceedings with the intervention of the Court---Petitioner was not party to the arbitration agreement and it was not competent to file present application---Right to arbitrate was a contractual right and it could not be enforced by anyone who was not a party to the contract containing the arbitration clause---Revision was dismissed in circumstances.

Province of Punjab v. Malik Ibrahim and Sons 2000 SCMR 1172; Hafiz Noor Muhammad v. Ghulam Rasul 1999 SCMR 705; Inayatullah Khan v. Obaidullah 1999 SCMR 2702; Pakistan through Secretary, Ministry of Religious Affairs v. Dallah Real Estate and Tourism holding company 2013 CLC 1411 and Ali Khan v. Barat Khan PLD 2005 Lah. 340 rel.

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

----S. 11---Res judicata---Scope---Principle of res judicata could not be pressed into service unless it was established that matter in issue was earlier adjudicated on merits and conclusively decided.

Province of Punjab v. Malik Ibrahim and Sons 2000 SCMR 1172 and Hafiz Noor Muhammad v. Ghulam Rasul 1999 SCMR 705 rel.

(c) Appeal---

----Appellate court, powers of---Scope---Appeal was continuation of original proceedings and Appellate court had power to thrash out and scrutinize the documents available on record---Appellate court while hearing an appeal against the order of Trial Court exercised the same jurisdiction which was vested in the Trial Court and would open lis without any restriction placed by the order appealed against---Appellate court could do all that the original court could do.

Jameel Hussain Qureshi for Petitioner.

Misbah ul Mustafa for Respondent.

2019 C L C 1635

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MASHKOOR AHMED KHOKHAR----Petitioner

Versus

The FAMILY JUDGE (EAST), ISLAMABAD and others----Respondents

W.P. No. 586 of 2016, decided on 18th February, 2016.

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

----Ss.5, Sched., 17-A & 14 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Suit for recovery of maintenance allowance---Interim maintenance, fixation of---Contention of defendant-father was that interim maintenance fixed by the Family Court was exorbitant---Validity---Family Court had jurisdiction to pass interim order for maintenance at any stage of the proceedings in a suit for maintenance---Interim maintenance fixed by the Family Court was too meagre---Defendant had not made bona fide demand for the custody of his minor children---Father of minor children could not expect their mother to keep them as well as to pay all their expenses---Defendant-father was under a legal as well as a moral obligation to maintain and support his children---Impugned order passed by the Family Court was an interlocutory order---Maintenance fixed by the Family Court through impugned order was only temporary in nature---Amount fixed by the Family Court during proceedings of suit for maintenance might be modified and revisited while passing final order---Family Court could increase or decrease the quantum of maintenance after appraising the evidence produced by the parties during the trial---Constitutional petition against order for interim maintenance was not maintainable unless it was coram non judice or based on mala fide---Quantum of interim maintenance could not be made a ground for invoking constitutional jurisdiction of High Court---S.14(3) of Family Courts Act, 1964 did bar appeal or revision against an interim order passed by the Family Court---Aggrieved party could agitate his grievance before appellate forum when the interim order would merged into a final order---Constitutional petition was dismissed in limine, in circumstances.

Syeda Farhat Jehan v. Syed Iqbal Hussain Rizvi 2010 YLR 3275; Munir Alam v. Civil Judge, Family Court, Lahore 2009 CLC 442; Abrar Hussain. v. Mehwish Rana PLD 2012 Lah. 420 and Shahid Ali Gil v. Mst. Ruqayya Bano 2015 MLD 265 and Ali Adnan Dar v. Judge, Family Court PLD 2016 Lah. 873 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Constitutional petition was not maintainable to resolve factual controversy.

2019 C L C 1678

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

MUHAMMAD JAVED and another----Petitioners

Versus

Syed AFTAB ALI NAQVI and others----Respondents

R.F.A. No. 34 of 2014, decided on 26th May, 2016.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Non-deposit of balance sale consideration in the Court---Effect---Defendants got recorded their statement that if plaintiffs did deposit the balance sale consideration in the Court, they would have no objection on decree of present suit---Trial Court directed the plaintiffs to deposit remaining sale consideration in the Court but they failed and suit was dismissed---Validity---Mere fact that plaintiffs had not deposited the balance sale consideration despite order of the Trial Court had disentitled them from any discretionary relief---Plaintiffs' failure to deposit the balance sale consideration inspite of defendants' statement that plaintiffs' suit might be decreed upon deposit of balance sale consideration had stripped them from all bona fides---Appeal was dismissed, in circumstances.

Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953; Adil Tiwana and others v. Shaukat Ullah Khan Bangash 2015 SCMR 828 and Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 rel.

Muhammad Munir Paracha, ASC for Petitioners.

Syed Muhammad Ayub Bukhari for Respondents Nos.1 and 2.

Shajjar Abbas Hamdani for Respondent No.3.

2019 C L C 1998

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD AZAM KHAN NIAZI----Appellant

Versus

GENERAL MANAGER, SNGPL, ISLAMABAD----Respondent

R.S.A. No.22 of 2016, decided on 24th February, 2017.

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

----Ss.11, 12, 13, 42 & 43---Complaint Resolution Procedure Regulations, 2003 (Sui Northern Gas Pipelines Ltd.), Regln. 8(2)---Civil Procedure Code (V of 1908), O.VII, R.11 & S.9---Non-payment of gas bill---Disconnection of gas meter---Alternate remedy---Jurisdiction of Civil Court---Scope---Plaint, rejection of---Trial Court rejected the plaint holding that plaintiff had alternate remedy---Validity---Provisions of Oil and Gas Regulatory Authority Ordinance, 2002 did not specifically bar the jurisdiction of Civil Court---When a suit was clearly barred by law or a statute did provide an alternate remedy/forum to the plaintiff or mechanism for dealing with the plaintiff's complaint then Civil Court could reject the plaint at any stage of the proceedings---Plaintiff in the present case had alternate and efficacious remedy against the defendant/licensee---Nothing was on record preventing the plaintiff from filing a complaint against the defendant with regard to disconnection of gas meter---Second appeal was dismissed, in circumstances.

Aurangzeb through L.Rs v. Masood Hussain through Legal Heirs and others 2016 MLD 644; Pakistan Oil Fields Ltd v. District Government, Attock 2009 MLD 608; Express Link Filling Station and another v. Oil and Gas Regulatory Authority and 2 others 2010 YLR 206; Ghulam Farid and others v. Province of Punjab and others 2013 MLD 77; Khawaja Jahangir v. Aurangzeb and others 2016 YLR 2418; Zahid Raza Khan v. Provincial Government N.-W.F.P. and others 2015 CLC 699; Messrs Sui Southern Gas Company Limited v. Arbab Najeebullah PLD 2015 Bal. 110; Ram Swarup and others v. Shikar Chand and another AIR 1966 SC 893; Zafar ul Ahsan v. The Republic of Pakistan PLD 1990 SC (Pak.) 113, Anjum Niaz Chaudhry and others v. Managing Director, Sui Nothern Gas Pipeline Limited and others 2011 MLD 1402 and Samina Anwaar Ullah Khan v. General Manager, SNGPL, Lahore PLD 2012 Lahore 554. ref.

Sui Northern Gas pipelines Ltd. v. Oil and Gas Regulatory Authority 2016 CLC 562; Messrs Sui Southern Gas Company Limited v. Arbab Najeebullah PLD 2015 Bal. 110; Samina Anwaar Ullah Khan v. General Manager, SNGPL, Lahore PLD 2012 Lah. 554 and Anjum Niaz Chaudhry and others v. Managing Director, Sui Nothern Gas Pipeline Limited and others 2011 MLD 1402 rel.

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

----S.100---Second appeal---Interference---Scope---Interference in a second appeal under S.100, C.P.C. was permissible only if the impugned judgment was contrary to law or it had been rendered without deciding some material issue of law or there had been any error or defect of procedure provided by law.

Ch. Abdur Rehman Nasir for Appellant.

Sohail Nawaz for Respondent.

2019 C L C 2033

[Islamabad]

Before Miangul Hassan Aurangzeb, J

KHAN AFSAR----Petitioner

Versus

MUHAMMAD AKHTAR----Respondent

C.R. No. 121 of 2017, decided on 5th October, 2017.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.2---Limitation Act (IX of 1908), Ss.4 & 5---Summary suit on the basis of cheque---Application for leave to appear and defend the suit---Limitation---Period of limitation for filing said application expiring during closure of courts due to summer vacations---Effect---Condonation of delay---Trial Court dismissed petition for leave to appear and defend the suit on the ground that same was time barred and had not been attested by the Oath Commissioner---Validity---If limitation expired during the period when Courts were closed then limitation would extend till the date of re-opening of Courts---Last date for filing an application to defend the suit expired when Courts were closed for summer vacations---Petition for leave to appear and defend the suit was moved on first opening day after summer vacations and same was not barred by time---Period during which the Courts remained closed on account of vacations had to be excluded for the computation of limitation---Mere fact that petition for leave to appear and defend the suit was not accompanied with an application for condonation of delay would not render the same incompetent---Petitioner had right to file application for leave to defend the suit when Courts reopened and he was not bound to file application for condonation of delay---Trial Court should have given an opportunity to the petitioner to have the affidavit attested by the Oath Commissioner---Impugned order passed by the Trial Court was set aside and matter was remanded with the direction to decide petition for leave to defend the suit afresh---Revision was allowed, in circumstances.

Province of Punjab v. Muhammad Saleem PLD 2014 SC 783; Muhammad Yar v. Muhammad 2003 SCMR 1772; Nooruddin v. Pakistan through the Secretary, Ministry of Communications 2000 SCMR 354; Muhammad Ramzan v. Ahmed Bux 1991 SCMR 716; Fazal Karim v. Ghulam Jilani 1975 SCMR 452; Silk Bank Limited v. Al-Khan Constructions Company (Pvt.) Ltd. 2017 CLD 496; Sardar Abdur Rehman v. Fida Hussain 1996 CLC 1571 and Emirates Bank International v. United Exports Limited PLD 1993 Kar. 661 rel.

Mian Muhammad Omar Riaz for Petitioner.

Malik Akhtar Abbas for Respondent.

2019 C L C 1

[Sindh]

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

AL-TAMASH MEDICAL SOCIETY through Secretary----Appellant

Versus

Dr. ANWAR YE BIN JU and 9 others----Respondents

H.C.A. No. 421 of 2016, decided on 24th May, 2018.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Principles---Injunction is discretionary relief based on equitable principle---Unless a party can establish or make out a prima facie case for permanent injunction, such party is not entitled to obtain an interlocutory injunction during pendency of suit to disadvantage of the other party.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Scope---Prima facie case---Proof---To establish a prima facie case, applicant has to prove prima facie existence of right claimed in suit and also its infringement---To show existence of prima facie case a completed and binding contractual relationship has to be in existence--- For such purpose, pleadings, documents, affidavit and record have to be examined and matter has to be determined on the basis of record then existing.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Scope---Irreparable damage or injury---Scope---Court has to see that if injunction sought by applicant is granted, it may cause irreparable damage and injury, which cannot be adequately compensated---Where loss is ascertainable in terms of money then it cannot be treated as a case of irreparable loss.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Scope---Balance of inconvenience--- Proof--- Court is required to balance the inconvenience and to see as to where applicant suffers more inconvenience by withholding injunction then respondent would be by coordinating it in other requirement to weigh the mischief of either party i.e. to the applicant, if refused and respondent if allowed and will grant injunction only if the balance is only in favour of the applicant--- Normally balance lies in favour of continuation of a state of things, unless shown to be patently illegal and without lawful authority.

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

----O.XXXIX, Rr.1 & 2---Law Reforms Ordinance (XII of 1972), S.3---Suit for declaration and injunction---High Court appeal---Interim injunction---Prima facie case---Effect---Plaintiff was aggrieved of vacating of interim injunction granted in his favour---Plea raised by plaintiff was that once all relevant facts were brought to the notice of the Single Judge of the High Court along with relevant documents, he could not have restrained from raising any construction upon plot in question on the basis of illegal documents---Validity---Mere fact that a prima facie case was established would not entitle plaintiff to an injunction unless other two factors i.e. balance of convenience and irreparable damage or injury were fulfilled---Single Judge of High Court while passing order in question had taken complete stock of relevant facts and also made tentative assessment of material and documents produced by parties in support of their respective claim of entitlement and possession over subject land--- Three factors i.e. prima facie case, balance of convenience and irreparable loss and injury were required to be considered for grant of injunction and the same had been duly taken cognizance by the Single Judge of High Court---Division Bench of High Court declined to interfere in order passed by the Single Judge as the same did not suffer from any error or illegality---High Court appeal was dismissed in circumstances.

Rana Ameer Raza Ashfaq and another v Dr. Minhaj Ahmed Khan and another 2012 SCMR 6; Subedar Manzoor Hussain through L.Rs. v. Mst. Mehmooda Begum through L.Rs. PLJ 2004 SC 439; Muhammad Sabir v. Maj. (Rtd.) Muhammad Khalid Naeem Cheema and others 2010 CLC 1879; Muhammad Shamim through L.Rs. Mst. Nisar Fatima through L.Rs. and others 2010 SCMR 18; Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862; Mst. Naz Shaukat Khan and 2 others v. Mst. Yasmin R. Minhas and another 1992 CLC 2540; Arif Majeed Malik and others v. Board of Governors Karachi Gramer School 2004 CLC 1029; Areshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) and 4 others 1999 SCMR 2883; Messrs S.M. Yusuf and Bros. v. Mirza Muhammad Mehdi and another PLD 1965 SC 15; Muhammad Ali v. Sindh Appellate Tribunal and another 1985 CLC 1527; Faiz Ahmed and 23 others v Ahmed Khan and 7 others PLD 2013 Lah. 234; Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah. 113; Naseer Ahmed v. Hafiz Mohammad Ahmed 1984 CLC 340; Moosa Bhunji v. Hashwani Sales and Services PLD 1982 Kar. 940; Vazir Ali and others v. Hanif 1989 MLD 1966; Muhammad Saad and another v. Amna and 27 others 2015 YLR 1; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Abdul Ghafoor Memon v. Muhammad and another PLD 1975 Kar. 464; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and Pervaiz Hussain and another v. Arabian Sea Enterprises Limited SBLR 2006 SC 3 ref.

Khawaja Shams-ul-Islam and Imran Taj for Appellant.

Arshad Tayebaly, Sehar Rana and Shahzad Ashraf for Respondents Nos. 1 and 8 to 10.

Naheed A. Shahid for Respondent No.3(a)/KDA a/w Syed Khalid Zafar Hashmi, Additional Director, KDA.

2019 C L C 52

[Sindh]

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

REHMAT NAWAZ KHAN----Petitioner

Versus

Mst. Syeda KHURSHID BEGUM through Legal Heirs and others----Respondents

Constitution Petition No.D-853 of 2016, decided on 5th December, 2017.

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

----O.XXI, Rr.84 & 85---Sale through re-auction---Scope---Provisions of O.XXI, Rr. 84 and 85, C.P.C. are mandatory in nature and in case of non-compliance, suit property is liable to be resold forthwith.

Messrs S.P.R.L. Rehman Brothers and another v. Judge Banking Court No.II, Lahore and another 2000 MLD 1957 and Messrs Dawood Flour Mills v. National Bank of Pakistan 1999 MLD 3205 rel.

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

----O.XXI, Rr.84 & 85---Auction, setting aside of---Non-compliance of mandatory requirements---Petitioner was auction purchaser who was aggrieved of order passed by Lower Appellate Court setting aside auction proceedings for non-compliance of mandatory requirements---Validity---Auction purchaser was bound under O. XXI, R. 84, C.P.C. to deposit 25% of bid money with Court auctioneer immediately on fall of hammer and in case of failure, case property was liable to be re-auctioned---Remaining amount of 75% of purchase money as required under O. XXI, R. 85, C.P.C. was to be deposited with Court within 15 days from the date of acceptance of bid and Court, only thereafter under law, was to confirm the sale---Lower Appellate Court rightly set aside the order passed by Executing Court confirming sale pre-maturely---High Court declined to interfere in order passed by Lower Appellate Court as the same was well reasoned, validly passed and was not suffering from any misreading, non-reading nor it was erroneous on facts or law---Constitutional petition was dismissed in circumstances.

A.R. Davar v. Jhinda Ram and another AIR 1938 Lah. 198; Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another AIR 1954 SC 349 Vol. 41, C.N. 84 and Muhammad Ali Ashgar Sabir Raja v. Mst. Sajida Bashir and others 2006 SCMR 801 ref.

Muhammad Ikram Siddiqui for Petitioner.

Kamran Arshad Respondents Nos.1 to 9.

Raja Qasit Nawaz Khan for Respondents Nos.10, 11 and 12.

Nemo. for Respondents Nos.13 and 4.

2019 C L C 85

[Sindh]

Before Adnan-ul-Karim Memon, J

AMIR----Petitioner

Versus

NASIR AHMED and others----Respondents

Constitution Petition No.S-1144 of 2017, decided on 26th July, 2017.

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

----S.15---Eviction petition---Wilful default---Tenant denied relationship of landlord and tenant---Scope---Pendency of suit for specific performance of agreement to sell regarding the subject premises---Effect---Rent Controller---Jurisdiction---Scope---Petitioner / tenant contended that till final decision of pending civil suit, Rent Controller had no jurisdiction to entertain the eviction petition of the landlord---Respondent/landlord contended that owing to wilful default in payment of rent two courts below had rightly ordered eviction of the tenant---Validity---Mere denial of relationship of landlord and tenant between the parties and pendency of civil suit for specific performance of contract did not take away jurisdiction of the Rent Controller to entertain Rent Case as sale agreement did not create any interest or confer any title on the person in whose favour such agreement was executed---Proceedings before Rent Controller could not be stopped to wait for the final outcome of the civil suit---If tenant would succeed in obtaining decree in the civil suit, he could have access to the subject premises---Tenant had not paid the rent while claiming purchase of the subject premises in the year 1999, therefore, Rent Controller had rightly found that the tenant had committed wilful default in payment of rent---No illegality or infirmity having been noticed in the impugned orders passed by the Two Courts below, Constitutional petition was dismissed accordingly.

Muhammad Sajjad Abbasi for Petitioner.

2019 C L C 93

[Sindh]

Before Muhammad Ali Mazhar, J

MUHAMMAD SOHAIL TABBA and another----Plaintiffs

Versus

PAKISTAN through Secretary Ministry of Water and Power and another----Defendants

Suit No. 1235 of 2017, decided on 31st May, 2018.

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

----O. XXXIX, Rr.1 & 2---Policy for Power Generation Projects, 2002, Cl. 4---Construction of Hydro Power Project---Letter of Interest---Termination of---Suit for declaration and permanent injunction---Application for temporary injunction---No concluded contract existed between the parties---Only the letter of interest was issued by the Private Power and Infrastructure Board in favour of plaintiffs---Statement of qualification was submitted in the year 2006 and letter of interest was issued on 14-04-2007 and approved in the year 2008---Plaintiffs were required to file tariff petition to the National Electricity Power Regulatory Authority---Evenhanded opportunities were afforded to the plaintiffs but they submitted petition to the National Electricity Power Regulatory Authority after a long delay which was returned with the directions to submit updated feasibility---No seriousness was shown by the plaintiffs to accomplish and attain the project---Authorities, in such state of affairs, were left with no other option but to terminate the letter of interest---Plaintiffs had not taken any material steps to complete the project successfully---Grant of relief of injunction, if any, would be against the larger public interest---Plaintiffs did not deserve to pursue and claim equitable relief of injunction---Application for temporary injunction was dismissed in circumstances.

Hafeezullah Khan v. Barkat Ali PLD 1998 Kar. 274; AIR 1978 J&K 102; AIR 1969 Mysore 310; 2017 MLD 1616; 2017 MLD 785, 2013 PLC (C.S.) 768; 2017 CLC 1140; 2016 CLC 83 and PLD 2018 Sindh 222 ref.

Munda Hydropower (Pvt.) Ltd's. case 2009 MLD 526 distinguished.

Abu Dhabi Medical Devices Co. L.L.C v. Federation of Pakistan 2010 CLC 1253; Hajj Organizers Association of Pakistan v. Federation of Pakistan 2017 MLD 1616; Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju 2017 MLD 785; MTW Pak Assembling v. Shahzad Riaz Industries (Pvt.) Ltd. 2017 CLC 1140; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers' Housing Authority 2010 MLD 1267; Shahzad Trade Links v. MTW Pak Assembling Industries (Pvt.) Ltd. 2016 CLC 83 and Roche Pakistan Limited v. Pakistan PLD 2018 Sindh 222 rel.

(b) Words and phrases---

----'Public importance'---Meaning.

Expression "public importance" is not capable of any precised definition. It can only be defined by process of judicial inclusion or exclusion. Each case has to be judged in the circumstances of the case as to whether the question of public importance is involved but it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individual directly or widely concern. Public Interest is very wide expression and embraces public security, public order and public morality. Expression Public Interest in common parlance means an act beneficial to general public and action taken in public interest necessarily means an action taken for public purpose. It further leads general social welfare or regard for social good and predicating interest of the general public in matters where regard was social good is of the first moment.

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

----S.2---Contract---'Letter of intent' 'letter of interest' and 'expression of interest'---Effect and impact.

Where parties are discussing and exchanging dialogues on prospective contract, one may issue letter of intent. The outcome of such letter is generally to connote the aim of the issuer to move in a contract whom letter was issued and to allow parties to sketch out fundamental terms and due diligence quickly before expending substantial resources on negotiating definitive agreements. Normally such letter is interpreted as not creating a legally binding obligation. The effect of such letter will therefore depend on its wording and the context in which it is used in such a case there may be no contract at the time the letter is issued. The letter of intent may have three conceivable constituents. It could be an offer of an ordinary consensual agreement; it could be an offer of one-sided contract by which the issuer wished the recipient to do particular job and undertook to reimburse him for it if he did so and it might have no contractual effect at all. Its effect in any particular case would depend on the working of the letter and surrounding. Normally, it does not constitute a definitive contract but signifies a genuine interest in reaching the final agreement subject to due diligence, additional information, or fulfillment, of certain conditions. The language used in writing a letter of intent is of vital importance and determines whether it is only an expression of intent or an enforceable undertaking. Whereas the letter of interest is acknowledged and recognized as quarrying and delving letter which describes the interest and serve as formal request contemplating for any potential members. This also cannot be categorized and tantamount a conclusive contract but connotes only interest may be for attainment and accomplishment of final agreement subject to due diligence, additional information and conditionalities. Concomitantly, an expression of interest is a formal offer made by strategic and premeditated financial procurer for the buying out the business. The uppermost perception is to put forward strategic diversity that the buyer is willing to pay for company. Expression of interest is usually submitted in the form of a letter or a summary document and in addition to the range of valuation may include details on the proposed timing of the transaction, the synergies the buyer sees, the deal structure, and any other items that would help the seller to decide.

Amel Khan Kasi for Plaintiff.

Faisal Siddiqui for Defendant No.2.

Abdul Qadir Leghari, Assistant Attorney General.

2019 C L C 111

[Sindh]

Before Muhammad Karim Khan Agha, J

AKHTAR ALI CHEEMA----Appellant

Versus

Mir SAJJAD ALI TALPUR and 2 others----Respondents

Election Appeal No.115 of 2018, decided on 26th June, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 63(4), 60 & 62---Nomination for elections---Scrutiny of Nomination Papers of a candidate---Appeal against scrutiny order---Disqualification on ground of default of government dues in terms of S. 63(4) of the Elections Act, 2017---Contention of candidate, upon whose nomination Appellate Tribunal had received information that he was a defaulter, was that he was unaware of any amount owed to a government department, and that verification of such default required further inquiry which was beyond jurisdiction of Appellate Tribunal---Candidate further contended that the Agriculture Department, to which the alleged dues were owed, was not a financial institution---Validity---Representatives of the Provincial Agriculture Department verified the amount owed by candidate and the amount in question were government dues, which were liable to be paid by the candidate, and the said information regarding the dues was not disclosed in the nomination papers ---Candidate had not been able to rebut information provided by the Department and therefore there was no doubt that the candidate was a defaulter---Nomination papers of the candidate, were rejected under S. 63(4) of the Elections Act, 2017---Appeal was disposed of, accordingly.

2003 YLR 749, 1994 SCMR 1499; PLD 2017 SC 70 and an unreported order dated 22.10.2014 ref.

Mian Raza Rabbani and Zeeshan Abdullah for Appellant.

Manzoor Ahmed Panhwar for Respondent No.1.

Nisar Ahmed Shar for Tanveer Talpur (wife of Respondent No.1).

Abdullah Hanjra, Law Officer, Election Commission of Pakistan Shabbir Shah, Additional Advocate-General.

2019 C L C 122

[Sindh]

Before Nazar Akbar, J

Messrs GHAFFAR CORPORATION through Managing Partner and another----Plaintiffs

Versus

Messrs PETRO COMMODITIES (PVT.) LTD. through Principal Officer and others----Defendants

Suits Nos.987 and 988 of 1998, decided on 21st December, 2017.

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance of contract---Failure to perform contractual obligations by the plaintiff---Forfeiture of earnest money---Requirements---Clause for forfeiture of advance paid by the plaintiff to the defendant did not exist in the agreement---Defendant had not sent any notice to the plaintiff that in case of default on his behalf he would forfeit the advance paid---Defendant had not informed the plaintiff that subject matter of agreement was pledged with the Bank---Subject goods having been pledged with the Bank, defendants were under the obligation not only to inform the plaintiff before entering into the contract but also obtain permission from the Bank for their intention to sell the pledged goods---Suit was decreed and defendant was directed to refund the earnest money with 10% interest per annum to the plaintiff from the date of filing of suit till realization.

Saeed Naseem Cheema v. Mrs. Rukhsana Khan 2010 MLD 123 and Muhammad Ghafoor v. Mst. Munawar Shahzadi and another 2007 MLD 264 rel.

Muhammad Aqil for Plaintiff (in Suit No.987 of 1998 and for the defendant in suit No.988/1998).

Yawar Farooqui for Defendant No.1 (in Suit No.987 of 1998 and for plaintiff in Suit No.988 of 1998.)

Suleman Huda, Advocate for defendant No.2 (in Suit No.987/1998).

2019 C L C 133

[Sindh]

Before Zafar Ahmed Rajput, J

PORT GRAND LIMITED----Plaintiff

Versus

K-ELECTRIC LIMITED through Chief Executive Officer and another---Defendants

Suit No.1606 of 2017, decided on 12th January, 2018.

Civil Procedure Code (V of 1908) ---

----O. XXXIX, Rr.1 & 2---Application for temporary injunction---Ingredients---Injunction was a preventive remedy for the purpose of preserving the status quo of the matter of suit pending its determination---Status with regard to title or possession of immovable property as existed on the date of filing of suit was to be maintained if status quo was granted by the Court---Court for issuance or refusal of interim injunction had to examine whether a good prima facie case was made out in favour of plaintiff---If plaintiff succeeded to establish a good prima facie case then other ingredients i.e. irreparable loss and balance of convenience would be looked into---Court had to make only a tentative assessment of plaintiff's case for enabling itself to examine whether prerequisites for grant of injunction existed in favour of plaintiff or not---Court might examine the pleadings, affidavits, counter affidavits, rejoinder if any and other documents while dilating upon the merits of case for grant of temporary injunction---Transmission line of defendant was already in existence and same was passing through suit property before entering of plaintiff into lease agreement---New transmission line had been proposed on the same route as it existed presently---Plaintiff had failed to make out a prima facie case for grant of injunction---Balance of convenience was also not in favour of plaintiff and there appeared to be no question of irreparable loss to the plaintiff if alleged work of laying transmission line was carried out---Plaintiff was not entitled for discretionary relief of temporary injunction in circumstances---Application for grant of temporary injunction was dismissed accordingly.

Salahuddin Ahmed for Plaintiff.

Amel Khan Kansi for Defendant No.1.

Nemo. for Defendant No.2.

2019 C L C 146

[Sindh]

Before Nazar Akbar, J

Syed ABDUL AHAD----Appellant

Versus

ABDUL SHAKOOR and 2 others----Respondents

R.A. No.70 of 2016, decided on 11th June, 2018.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 89 & 26---Execution petition---Auction of property---Objections---Suit seeking declaration that proceedings before Executing Court were illegal---Scope---Objection was raised that the property to be auctioned was never allotted to the judgment-debtor---Executing Court dismissed the objection petition---Validity---Petitioner was not owner of suit shop to be auctioned by the Executing Court---Executing Court could not consider any document or orders passed in any other suit subsequently filed by the objector---Similar controversy could not be raised through another civil suit with regard to the same property---Objector could seek relief in a separate suit---Civil Court could neither declare proceedings of Executing Court as illegal nor regulate the property involved in the execution proceedings---Judgment and decree of one civil Court could not be nullified by another---Official Assignee (Nazir) had neither issued any notice to any of the judgment-debtor before inspection of property to be auctioned nor he appeared to have been physically present at the inspection---Report of Nazir did not disclose as to how and who identified suit shop to the inspection team---Proceedings in civil suit filed subsequently could not have any bearing on the orders of Executing Court---Applicant had no right to retain possession nor any order of civil Court passed in other civil suit would have effect of setting aside any of the orders of Executing Court for auction and possession to auction purchaser---Auction of suit shop was lawful and auction purchaser was entitled for possession being lawful owner under authority of Court order/decree---Official Assignee (Nazir) was directed to take possession of suit shop and hand over its possession to the auction purchaser---Revision was dismissed in circumstances.

Farooq Rasheed for Applicant No.1.

Nemo for Respondent No.1.

Fayaz Ahmed Dar for Respondent No.2.

Nasrullah Korai for Respondent No.3.

2019 C L C 170

[Sindh]

Before Munib Akhtar and Agha Faisal, JJ

AZIZULLAH KHAN AFRIDI and others----Petitioners

Versus

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

Constitutional Petitions Nos.D-326, D-550 of 2017 and D-7166 of 2016, decided on 29th March, 2018.

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

----Ss. 18, 21(3), 80 & 83---Constitution of Pakistan, Art. 140-A---Local Government---Administrator, appointment of---Dispute between parties pertained to appointment of administrator by Provincial Government to control affairs of local council---Validity---No authority was conferred upon provincial government for doing away with an elected district council and it was only a proviso that permitted Provincial Government to appoint an administrator in a specified interim period---Act of Provincial Government in removing an elected district council and substituting same with an appointed had no administrator had no sanction of law---Local government system was integral to governance under the Constitution and it could not be replaced arbitrarily by a Provincial Government---High Court directed Provincial Government to take all necessary steps to ensure that administration and control of local council in question would return to elected representatives in accordance with law and council and its vice chairman were enabled to act in accordance with provisions of Sindh Local Government Ordinance, 2013---Constitutional petition was allowed accordingly.

Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; LDA and others v. Imrana Tiwana and others 2015 SCMR 1739 and President of Balochistan High Court Bar Association v. Federation of Pakistan and others 2014 SCMR 1 ref.

(b) Interpretation of statutes---

----Words and phrases in statutes should be given their plain meaning.

Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 923 and Baksh Elahi v. Qazi Wasif Ali 1985 SCMR 291 rel.

Huzaifa Khan for Petitioner (In C.P. No.D-326 of 2017).

Shaikh Jawaid Mir for Petitioners (C.P. No.D-55 of 2017 and C.P. No.D-7166 of 2016).

Ahmed Zubair for Respondents Nos.4 and 5 (In C.P. No. D-326 of 2017).

Saifullah, Assistant Advocate-General Sindh for Respondent.

2019 C L C 199

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Mst. ALMAS ISMAIL and 6 others----Petitioners

Versus

FAYYAZ HUSSAIN and 5 others----Respondents

C.P. D-7470 of 2017, decided on 9th June, 2018.

Civil Procedure Code (V of 1908)---

----S. 12 (2) & O. XXII, R. 4---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Death of defendant during pendency of a suit---Effect---Decree, setting aside of---Scope---Legal heirs of defendant from her first husband filed application under S. 12(2) of Civil Procedure Code, 1908 which was dismissed and thereafter present application from the legal heirs of second husband had been filed---Contention of applicants was that defendant died during pendency of suit but her legal heirs were not impleaded in the proceedings and impugned decree had been passed contrary to the law---Application was dismissed concurrently---Validity---Applicants had challenged the impugned judgment and decree on the basis of demise of defendant during pendency of suit which was not maintainable---Applicants had failed to point out any infirmity in the impugned orders passed by the Courts below---Revisional Court had rightly exercised its jurisdiction while passing the impugned order---Impugned orders were assailed by the aggrieved person in the manner and within the limitation of time prescribed by law---Petitioners had attempted to assail the same orders thereafter which was not permissible under the law---Impugned orders had been passed in accordance with law which were maintained and upheld---Constitutional petition was dismissed in circumstances.

Ghulam Mehmood v. Hukam Khan and others 2001 MLD 366 and 2000 SCMR 1051 ref.

Muhammad Ali Waris for Appellant.

None for Respondents.

2019 C L C 211

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Mst. SURIYA IQBAL CHISHTI and another----Appellants

Versus

Mst. RUBINA MAJIDULLAH and others----Respondents

High Court Appeal No.173 of 2018, decided on 24th December, 2018.

Civil Procedure Code (V of 1908)---

----O. XX, R. 18(2)---Gift deed, cancellation of---Conflicting claims of legal heirs---Preliminary decree for sale of subject property passed in terms of O. XX, R. 18(2), C.P.C. during pendency of suit challenging a gift deed relating to the same property---Legality---Suit for declaration, cancellation of documents, mandatory injunction and damages was preferred by plaintiff-mother, whereby she challenged a gift deed relating to subject property allegedly executed in favour of her daughter ("the defendant")---Other legal heirs of the plaintiff were not impleaded in the said suit---Plaintiff passed away during pendency of the suit and her other legal heirs were impleaded as parties to the suit---During the pendency of the suit the Single Judge of the High Court passed a preliminary decree in terms of O. XX, R. 18(2), C.P.C. ("impugned order") whereby a Nazir was appointed as Administrator in respect of the subject property with the mandate to carry out the sale of the property, where-after, the share to the extent of defendant was to be paid per sharia and remaining share of other legal heirs was to be invested in some government profit bearing instrument until further orders---Plea of appellants(legal heirs of plaintiff other than the defendant) that impugned order was prima facie, in contradiction to the very provision of the law under which it was purported to have been rendered as the proceedings in the suit were neither in nature of a suit for administration nor a suit for partition, and that the impugned order, inter alia, would amount to a dissipation of the subject matter of the suit and hence could not be permitted to perpetuate in good conscience---Validity---Unity of title and possession must exist between the parties impleaded in a suit for partition qua the property sought to be partitioned---If anyone impleaded in the suit claimed a paramount title in the property then the same would defeat the unity of title, hence, such a plea would fall outside the scope of a partition suit---Defendant claimed that the subject property as her own, to the exclusion of all others, hence, the suit was that for declaration, cancellation of documents, mandatory injunction and damages and admittedly not for partition, therefore, the invocation of O. XX, R. 18(2), C.P.C. by the Single Judge appeared to be erroneous---Similarly the suit filed by the (late) plaintiff could not be treated as suit for administration by fiction of law as claims of defendant with respect to the subject property were in conflict with those of the other legal heirs---Regardless of whether the suit was finally allowed or dismissed, if the impugned order were to be sustained then the property, subject matter of the suit, would cease to exist in its present form prior to the determination of the suit---Impugned order was not sustainable, hence, the same was set aside---Appeal was allowed accordingly.

Aftab Ali Bhangwar for Appellant.

Khawaja Shamsul Islam for Respondent No.1.

Jafar Raza for Respondent No.2.

2019 C L C 224

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Muhammad Iqbal Mahar, JJ

AAMIR LUTUF ALI ZARDARI----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Constitutional Petition D-1557 of 2015, decided on 7th December, 2016.

(a) Constitution of Pakistan---

----Arts. 199, 9, 14 & 25---Constitutional petition---Maintainability---Healthcare facilities in the government hospitals---Fundamental rights of community and general public---Good governance---Scope---Concept of good governance could not be achieved except by following the rules of justness, fairness and openness in consonance with the command of the Constitution---Good governance was not limited to Government alone but should bring every Head of Department or those entrusted with public money to use the same for benefit of public-at-large---Court should avoid interference in independent affairs of other organs but whenever a question of Fundamental Rights of community or general public was involved, High Court would be justified in departing from normal procedure---Normal procedure was meant for normal situations but in abnormal situation a departure was always permissible and justified---No one should be allowed to avoid obligations and duties in the name of procedural technicalities---Procedural technicalities were always subordinate to substantial justice/Fundamental Rights of public-at-large and same could not prevail over such rights---High Court observed that Court being custodian of Fundamental Rights was competent to come forward for enforcement of such rights; Ambulances of hospitals were to be equipped with skilled staff and under the direct control/access of the needy people; Rescue Centers should be established in the hospitals; Government should ensure proper health care facility without hunting/harming the dignity of the man/patient; Blood centers should be established to eliminate black-mailing from private blood Banks; Medicines should be available in the medical stores of government hospitals free of cost and there should be no private medical stores in the hospital; Government hospitals should have proper staff and Health Department was directed to create posts---Constitutional petition was disposed of accordingly.

Pakistan Muslim League (N)'s case PLD 2007 SC 642; Pir Imran Sajid and others case 2015 SCMR 1257 and Watan Party v. Federation of Pakistan PLD 2013 SC 167 rel.

(b) Constitution of Pakistan---

----Arts. 9 & 24---Term "life"---Scope---Health care includes the meaning of the term "life" and not restricted to mere the vegetative or animal life or mere existence from conception to death but it (life) includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.

Petitioner is present in person.

Allah Bachayo Soomro, Addl. A.G along with Dr. Usman Chachar, Secretary Health, Dr. Wajid Ali Memon, M.S. LUMS, Hyderabad, Dr. Abdul Wahab Khanzada, AMS, Dr. Hassan Masood, D.G. Health, Dr. Abdul Rehman Mallano, AMS, LUH, Hyd, Akhtar Hussain Dawach, S.E. Building Hyderabad and Dr. Naeem Zia Memon, AMS for Respondents.

Roshan Azeem Mallah for Respondent No.3.

2019 C L C 267

[Sindh]

Before Agha Faisal, J

FGBC LIMITED through Attorney and others----Plaintiffs

Versus

DIRECTOR GENERAL MINES AND MINERAL DEVELOPMENT, SINDH and others----Defendants

Suits Nos.333 of 2012 and 675 of 2014, decided on 21st June, 2018.

Civil Procedure Code (V of 1908)---

----Ss. 16, 17, 20, 120, O. VII & R. 10---Suit for declaration and permanent injunction---Original jurisdiction of Sindh High Court (Karachi Bench)---Scope---Land situated outside territorial limit of the Districts of Karachi---Territorial jurisdiction of Karachi Bench of Sindh High Court on original side---Scope---If suit involved a dispute with regard to rights in an immovable property then same would be maintainable at the place where property was situated---If the relief did not relate to the rights and interest in the property and was confined to the extent of an ancillary matter then the proceedings could be instituted at the place where cause of action wholly or partly arose---Dispute in the present cases clearly fell within the category of dispute relating to rights in an immovable property, suit could only be maintained at the place where suit property was situated---High Court did not possess territorial jurisdiction to entertain, maintain or proceed with the suit---Plaint was returned to the plaintiffs in circumstances.

Habib Bank Limited and another v. Haji Riaz Ahmed and another 2017 CLC 1671 distinguished.

Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450; Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others PLD 2010 Kar. 261; Messrs Deluxe Interiors v. The Sindh Industrial Trading Estates (SITE) Limited and another SBLR 2018 Sindh 1310; Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176 and Haji Abdul Malik and 10 others v. Muhammad Anwar Khan and 26 others 2003 SCMR 990 rel.

Muhammad Saleem Mangrio for Plaintiff No.2 (in Suit No.333 of 2012 and for the Plaintiffs in Suit No.675 of 2014).

Omer Pechuho, holding brief for Anwar Mansoor Khan for Defendants Nos.1 to 4 and 6.

Malik Naeem Iqbal, Additional Advocate-General, Sindh.

2019 C L C 292

[Sindh]

Before Muhammad Ali Mazhar, J

HAMZA HANEEF AWAN and 7 others----Plaintiffs

Versus

SHER ALI MENGAL and 9 others----Defendants

C.M.A. No. 13776 of 2013 in Suit No.1126 of 2013, decided on 22nd May, 2018.

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

----O.I., R.10---"Necessary" and "proper" parties---Distinction---"Necessary party" is the one whose presence on record is enjoined by law or in whose absence no effective decision can be given---If a dispute can effectively be adjudicated in absence of a person, such person is not a necessary party---"Proper party" is a person if its presence before Court is necessary to enable it to effectually and completely adjudicate upon and settle questions involved in the suit and it is not necessary that plaintiff must seek relief against such proposed defendant---Object of adding proper party is to avoid needless multiplicity of suit---Where there is no cause of action against any such defendant, his name may be struck off from plaint.

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

----O.I., R.10(2)---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction and rendition of accounts---Necessary and proper party---No cause of action---Removing name from plaint---Defendant company claimed that it was neither necessary nor proper party to the suit and even there was no cause of action available to plaintiff against it, therefore, its name was to be removed from the list of defendants---Validity---Provision of O. I, R. 10, C.P.C. did not mean that person who had distinct or indirect relationship or connection with either plaintiff or defendant ought to be joined but must be directly and substantially connected with the issue which had to be adjudicated by Court--- Neither cartage agreement between two defendants could be classified or categorized the relationship of master and servant, employer and employee or principal and agent nor plaintiffs had any privity of contract with defendant company, which could be specifically enforced in the suit---High Court struck off name of defendant company from the array of defendants as the same was neither necessary nor proper party---Application was allowed in circumstances.

Mari Gas Company Ltd. v. Byco Petroleum Pakistan Ltd., PLD 2013 Sindh 314 ref.

Mohammad Ameen Motiwall for Plaintiff along with Plaintiff No.1 (Hamza Haneef Awan).

Malik Fiaz Ahmed Khakh, Defendants Nos.2 to 9 along with Defendant No.5 (Wajid Khan Afridi).

Rafiq Ahmed Kalwar for Defendant No.10.

2019 C L C 321

[Sindh]

Before Syed Hasan Azhar Rizvi and Arshad Hussain Khan, JJ

MUBARAK MASIH----Petitioner

Versus

MUHAMMAD YAQOOB and others----Respondents

C.P. No. D-1697 of 2009, decided on 25th April, 2018.

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

----Ss. 5 & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Suit for declaration and permanent injunction---Appeal---Limitation---Negligence of counsel---Condonation of delay---Sufficient cause---Scope---Appeal was dismissed on the ground of limitation---Plea of petitioner was that due to negligence of his counsel appeal could not be filed within time---Validity---Petitioner challenged impugned judgment and decree after the delay of five hundred and thirty seven days---Petitioner, despite having knowledge of impugned judgment on the day it was announced did not take steps to file appeal within the time prescribed under the law---Application for condonation of delay was silent with regard to details of facts as to when counsel, against whom allegation was that he filed the appeal was engaged and certified copies were handed over to him---Nothing was on record that petitioner was diligent and had enquired from the counsel with regard to filing of appeal---Slackness for non-filing of appeal for such a long period could only be attributed to the petitioner---Law helped the vigilant and not the indolent---Negligence of counsel would not constitute sufficient cause for condonation of delay---Only remedy available to the petitioner against negligence of his counsel for not filing appeal in time was to file suit for damages against the counsel---Once limitation started running no subsequent event could stop the same---Delay of each day had to be explained for its condonation---Vested right would be created in favour of other side after expiry of limitation---Condonation of delay was prerogative of the Court which had to be exercised rationally and judicially---Impugned order for rejecting application for condonation of delay was based on sound reasons---Court was bound to dismiss the suit, appeal or application if same was found to be barred by limitation---Court could condone the delay where plausible explanation constituting sufficient cause for not approaching it within time had been mentioned---Assertions made in the affidavit filed by the appellant before Appellate Court in support of application for condonation of delay had been controverted by filing objections/counter affidavit by the respondent---Appellate Court had rightly dismissed appeal as barred by time---Constitutional petition was not a substitute either of revision or second appeal---Appreciation of facts could not be resorted to in exercise of constitutional jurisdiction---Petitioner had not preferred second appeal against the judgment passed by the first Appellate Court---Impugned judgment could not be questioned in constitutional petition---No illegality, irregularity or substantial error had been pointed out in the impugned judgment passed by the Appellate Court---Constitutional petition being not maintainable was dismissed in circumstances.

Tehsil Nazim TMA, Okara v Abbas Ali and 2 others 2010 SCMR 1437; In the matter of: Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Abdul Fatah Bhutto and others v. Election Commission of Pakistan through Secretary and 3 others 2014 CLC 639; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Muhammad Raz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397; Muhammad Ramzan and 4 others v. Settlement Authorities and 2 others 1981 SCMR 194; Nazir Ahmad v. The Province of East Bengal, East Pakistan PLD 1955 Dacca 63; Water and Power Development Authority v. Aurangzeb 1988 SCMR 1354; Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560; Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Wali Muhammad and another v. Ghulam Rasool 1970 SCMR 471; Allah Ditta v. Ghulam Haider and others 1988 SCMR 964; Sadiq Hussain and others v. Ghulam Rasool 1986 SCMR 322; Dost Muhammad (deceased) through L.Rs v. Muhammad Yousaf and others 2008 SCMR 1339; Muhammad Sultan and others v. Faqir Ullah and others 1991 CLC 1098 and Ahmad Shah and 3 others v. Mst. Munawar Begum and 3 others 1986 CLC 1079 ref.

Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354; District Council, Sialkot v. Chaudhry Nazir Ahmad Khan and 2 others 2001 SCMR 1641, Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Umar Hayat and others Mst. Khatoon Bibi and others 2007 MLD 1647; Syed Bashir Hussain Shah and another v. Administrator, Thal Bhakkar 1993 CLC 1013; Anager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Ahmad and others v. Fazal Mohammad PLD 1978 Lah. 1394 and Mst. Waziran Mai through Legal heirs and 29 others v. Riaz Ahmad and 3 others 2011 YLR 1327 distinguished.

Jhanda v. Maqbool Hussain and others 1981 SCMR 126; Mirza Muhammad Saeed v. Shahabuddin and 8 others PLD 1983 SC 385; Nek Muhammad v. A.C. Jhelum 1986 SCMR 1493; WAPDA through its Chairman and 4 others v. Karam Din 2005 YLR 341; Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37 and Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 rel.

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

----S. 3---Suit, appeal or application filed after limitation---Effect---Court was bound to dismiss the suit, appeal or application if same was found to be barred by limitation.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope.

Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the frame work of Constitution, and if there is any error on the point of law committed by the courts below or the tribunal or their decision takes no notice of any pertinent provision of law, then obviously High Court may exercise Constitutional jurisdiction subject to the non-availability of any alternate remedy under the law. This extraordinary jurisdiction of High Court may be invoked to encounter and collide with extraordinary situation. This Constitutional jurisdiction is limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the courts or tribunals below passed in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vested in them or non-exercise of jurisdiction vested in them. The jurisdiction conferred under Article 199 of the Constitution is discretionary with the objects to foster justice in aid of justice and not to perpetuate injustice. However, if it is found that substantial justice has been done between the parties then this discretion may not be exercised. So far as the exercise of the discretionary powers in upsetting the order passed by the court below is concerned, High Court has to comprehend what illegality or irregularity and/or violation of law has been committed by the courts below which caused miscarriage of justice. Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 rel.

(d) Administration of justice---

----Law helps the vigilant and not the indolent.

Shamshad Ali Qureshi for Petitioner.

Sakhiullah Chandio for Respondent No.1.

2019 C L C 369

[Sindh]

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

WAQAR AHMED SIDDIQUI and 3 others----Appellants

Versus

Mst. SHEHNAZ PARVEEN----Respondent

H.C.A. No. 331 of 2017, decided on 6th February, 2018.

(a) Islamic law---

----Gift---Pre-requisites---For a valid and binding gift the fulfillment of three ingredients were essential i.e. declaration of gift by the donor; acceptance of gift by the donee, and delivery of possession of corpus---Valid gift could be effected orally if, the said pre-requisites were complied with/fulfilled---Written instrument for a gift was not a (compulsory) requirement (under Islamic law)

Muhammad and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342 ref.

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

----S. 152---Amendment of judgment and decree---Scope---Provisions of S. 152, CPC were restricted/confined to correction of errors as mentioned therein and arising out from accidental slip or omission---Any other type of correction/amendment other than that mentioned in S. 152, C.P.C., could not be corrected under the garb of said section, rather resort could be made by way of review, if permissible, or an appeal or revision, as the case may be, if the error was of a contentious nature---No alteration, modification or amendment could be made under S. 152, C.P.C. which authorized the Court to supplement its' judgment, decree or order which needed the application of mind or otherwise had the effect of taking away the rights which accrue/accrued to one party or the other.

Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others 1976 SCMR 420 and Baqar v. Muhammad Rafique and others 2003 SCMR 1401 ref.

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

----S. 151---Inherent powers of the Court, exercise of---Scope---When a lis was decided between the parties by a competent Court of law then, the Court which passed the judgment and decree becomes 'functus officio' and thus under law, could not re-open the matter except under available provisions of law---In such a situation, S. 151, C.P.C. was of no help, as the inherent jurisdiction could only be exercised by a Court of law during pendency of the suit/lis and that too when no other appropriate provision of law/remedy was available.

Appellants Nos.1 to 3 Present in person.

Zahid Siddiqui along with Respondent.

2019 C L C 398

[Sindh]

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

MUHAMMAD ANWAR----Appellant

Versus

MUNAWAR ALI and 6 others----Respondents

H.C.A. No. 220 of 2017, decided on 6th February, 2018.

Civil Procedure Code (V of 1908)---

----S. 65 & O. XXI, Rr. 84, 89, 90 & 91---Code of Civil Procedure (Amendment) Ordinance (X of 1980), S.15---High Court appeal---Execution proceedings---Sale in auction---Ownership rights---Appellant was aggrieved of order of re-auction of property passed by Single Judge of High Court---Title in immovable properties did not transfer in favour of highest bidder at the time when auction was held and highest offer of bidder was forwarded to court for acceptance---Auction by court under O. XXI, R. 84, C.P.C. was subject to proceedings under O. XXI, Rr. 89, 90 & 91, C.P.C. in which proceedings, sale was either to be 'set aside' or 'confirmed'---As soon as sale was confirmed or otherwise stood confirmed upon deposit of balance sale consideration then under S. 65, C.P.C. ownership right in auction property was deemed as having vested retrospectively in succeeding bidder, i.e., from date when auction in respect of property was held---Division Bench of High Court set aside order passed by the Single Judge of High Court as same was erroneous, illegal and without jurisdiction---High Court appeal was allowed in circumstances.

Muhammad Ikhlaq Memon v. Zakaria Ghani and others 2005 CLD 1589; Zakaria Ghani and 4 others v. Muhammad Ikhlaq Memon and 8 others PLD 2016 SC 229 and Shahzaibul Hassan Khan v. Mian Muhammad Ahmed and 2 others 2017 CLC 1539 ref.

Liaquat Ali Hamid for Appellant.

Muhammad Aziz Khan for Respondent No.1.

2019 C L C 431

[Sindh]

Before Muhammad Ali Mazhar, J

FARRUKH AFZAL MUNIF----Plaintiff

Versus

MUHAMMAD AFZAL MUNIF and 29 others----Defendants

Suit No. 938 of 2017, decided on 28th September, 2018.

(a) Sindh Mental Health Act (L of 2013)---

----Preamble---Object, purpose and scope of Sindh Mental Health Act, 2013---Raison d'etre of promulgating Sindh Mental Health Act, 2013 is to regulate matters relating to mentally disordered persons vis-à-vis their care, treatment, management of their property and to encourage community care of such mentally disordered persons and further to provide for promotion of mental health and prevention of mental disorder.

(b) Sindh Mental Health Act (L of 2013)---

----Ss. 29 & 30---Court of Protection---Jurisdiction---Court of protection, may pass an order authorizing any person or persons to have access to mentally disordered person for purposes of personal examination---Court if thinks fit, may also appoint two or more persons to act as assessors to court in such proceedings---Court of protection may also serve alleged mentally disordered person through substituted service if personal service would be ineffectual.

(c) Benami transaction---

----Connotation---Benami transaction means a transaction in name of another person to describe and express a transaction of property who holds that property being an ostensible owner for its beneficial owner---Benami transaction is a genre of transaction where somebody recompenses for property but does not get hold of it in his personal name---Person in whose name such type of property is purchased is called Benamidar and property so purchased is called Benami property.

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

----Ss. 42 & 54---Sindh Mental Health Act, (L of 2013), Ss. 29, 30 & 60---Civil Procedure Code (V of 1908), O. VII, R. 11---Mentally disordered person---Suit for declaration, injunction and recovery of damages---Rejection of plaint--- Cause of action, absence of---Plaintiff was son of respondents and also brother of other respondents and was aggrieved of illegal transfer of property by his siblings through forging signatures of his mentally ill father---Defendants sought rejection of plaint on plea that they could not be deprived to have access to their own movable and immovable assets---Validity---Object of S. 42 of Specific Relief Act, 1877 was to express in definitive terms, kinds of cases in which declaration of right apart from other relief could be granted---No declaration could be allowed unless it is brought within four corners of S. 42 of Specific Relief Act, 1877 which followed that a person who had no right to sue either because he had no legal character or right in any property could not bring suit for declaration---Declaration could not be invoked in matters or mere sentiments which had no concern with vindication of plaintiff's title or status to any property---Plaintiff could not be allowed to set up an abstract right to satisfy his ego or grudge against others---Where no right had been conferred on plaintiff by any law he could not seek declaration on mere general principles---Plaint did not disclose any cause of action and it was also barred by S. 42 of Specific Relief Act, 1877 and Ss. 29, 30 and 60 of Sindh Mental Health Act, 2013---Plaint was rejected in circumstances.

Aroma Travel Services v. Faisal Al Abdullah Al Faisal Al Saud 2017 YLR 1579; 2002 CLD 1466; Dr. Abdul Jabbar Khatak v. IInd Senior Civil Judge Larkana PLD 2017 Sindh 438; Al-Tamash Medical Society v. Dr. Anwer YE Bin Ju 2017 MLD 785; PLD 2018 Sindh 327; Shahzad v. IVth Additional District Judge Karachi East PLD 2016 Sindh 26; 2016 MLD 266; Amir Karim v. Muhammad Asif 2014 MLD 1537; 2014 YLR 444; Najmuddin Zia v. Asma Qamar 2013 CLD 1263; Sabir Hussain v. Board of Trustees of the Port of Karachi 2010 YLR 3313; Izhar Muhammad v. Messrs Memon Housing Service 2009 MLD 1378; Major Retd. Pervaiz Iqbal v. Muhammad Akram Almas 2017 SCMR 831; Syed Mushahid Shah v. Federal Investment Agency 2017 SCMR 1218; 2017 PTD 884; 2016 YLR 1739; Abdul Majeed v. Amir Muhammad 2005 SCMR 577; Ch. Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146; 2017 YLR 224; 2004 SCMR 1111; PLD 2016 SC 55; 2017 YLR 138; PLD 2012 SC 211; PLD 2017 Sindh 528; 2016 CLC 1660; 2016 MLD 1514; 2017 CLC 40; Ilyas Ahmed v. Muhammad Munir and others PLD 2012 Sindh 92; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; PLD 1967 Dhaka 190; 2002 SCMR 338; 2000 CLC 1633; 1989 CLC 15; 1994 MLD 207; 1994 SCMR 826; 2011 YLR 1473; Hajj Organizers Association of Pakistan v. Federation of Pakistan 2017 MLD 1616; MTW Pak Assembling v. Shahzad Riaz Industries (Pvt.) Ltd. 2017 CLC 1140; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers' Housing Authority 2010 MLD 1267; Shahzad Trade Links v. MTW Pak Assembling Industries (Pvt.) Ltd. 2016 CLC 83 and Roche Pakistan Limited v. Pakistan PLD 2018 Sindh 222 ref.

(e) Malicious Prosecution---

----Damages, claim for---Preconditions---In order to claim damages for malicious prosecution, plaintiff was to prove (i) that he was prosecuted by defendant, (ii) that prosecution ended in plaintiff's favor, (iii) that defendant acted without reasonable and probable cause and (iv) that defendant was actuated by malice---All these elementary set of circumstances have to accumulate or mount up and if any of them is found lacking, suit must be failed.

Clerk and Lindsell on Torts, 9th Ed., at page 662 and Salmond on Torts 12th Edition page 691 rel.

Khawaja Shamsul Islam, Imran Taj, Khalid Iqbal, Shahzad Mehmood and Syed Amjad Ali Shah for Plaintiff.

Muhammad Haseeb Jamali and Ms.Shahreen Nusrat Chugtai for Defendants Nos.1, 2 and 6.

Ms. Umaimah Anwar Khan and Ms. Shumaila for Defendants Nos.3 and 4.

Tahmasp Rasheed Razvi, Abbas Rasheed Razvi and Shoaib Khatyan for Defendant No.5.

Ghulam Murtaza Malik for Defendants Nos.7 and 8.

Abid Naseem for Defendant No.14.

Nadir Khan Burdi and Ali Akbar Poonawala for Defendant No.25.

Naeem Ahmed Rana for Defendant No.30.

2019 C L C 475

[Sindh]

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

VAQAR AHSON----Appellant

Versus

ZULFIQAR MOHAMMAD and another----Respondents

High Court Appeal No. 413 of 2017, decided on 19th July, 2018.

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration of title, ownership and possession---Interim injunction---Scope---When there is some dispute with regard to title, ownership and possession of some immovable property most appropriate relief which can be granted on an interlocutory application is to direct parties to maintain status quo and not to create any third party interest in respect of disputed property.

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

----O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Interim Injunction, grant of---Final relief during interim injunction---Title, determination of---Partition of property---Dispute was with regard to title and claim of property equally divided between brothers---Plaintiff was aggrieved of order passed by Single Judge of High Court where defendant was allowed to raise boundary wall on portion of property subject matter of partition before court---Plaintiff claimed that he was permanent resident of said property for over 30 years and order in question granting permission to erect boundary wall during pendency of trial would cause irreparable loss and inconvenience to him---Validity---Party who had title in respect of an immovable property, could not be deprived of its use and possession unless it was prevented by sufficient cause or by an order of a competent court of jurisdiction to contrary; at the same time, it had to be examined as to whether a party who was admittedly in continuous possession of such immovable property for last more than 30 years and also claimed to be actual owner was also entitled to adduce evidence for purposes of establishing his/her claim in respect of such property---Any interlocutory order at such stage on an application filed by defendant whereby he was allowed to construct boundary wall upon disputed property was not warranted and same did not meet requirements of granting an injunction---Such order amounted to granting a relief of partition and possession without recording evidence---Division Bench of High Court set aside order passed by Single Judge of High Court with observations that the same would not serve any useful purpose and could result into further complications towards resolution of dispute between the parties---High court appeal was allowed accordingly.

Mayhar Kazi for Appellant.

Muhammad Haseeb Jamali for Respondent No.1.

2019 C L C 526

[Sindh]

Before Muhammad Junaid Ghaffar, J

BASHIR AHMED----Plaintiff

Versus

UNITED SUGAR MILLS LIMITED and 2 others----Defendants

Suit No. 1296 of 2005 and C.M.A. No. 5809 of 2015, decided on 27th April, 2018.

Civil Procedure Code (V of 1908)---

----O.XVIII, Rr.2 & 3, O.II, R.1 & O.XIV, R.5---Application for recording evidence in respect of issues as well as additional issues in a suit for recovery---Plaintiff, moved application under O. XVIII, Rr.2 & 3, C.P.C., had prayed to fix matter for recording evidence in respect of settled issues and additional issues---Contention of the plaintiff was that since issues had been settled, the matter should have been fixed for evidence---Plaintiff had chosen for disposal of entire suit with consent, therefore, said order was final order under O.XXIII, R.3, C.P.C. in the nature of self-executing decree---Even if the court had settled certain issues, it was not within the powers of the court to permit leading of evidence on such issues; as that in effect would defeat the very purpose of the consent order passed for disposal of entire suit with consent---Issues, which were settled by the court, were to enable the parties to lead arguments with clarity and more specifically---When a court would pass a final order for disposal of a suit and specifically by consent, the court would become functus officio and would be precluded from passing any order, which could disturb or modify the same, which in fact would open up the entire case---Application filed by the plaintiff was misconceived and was accordingly dismissed.

Farid Bakhsh alias Ghulam Farid v. Niaz Muhammad and others 1999 CLC 738; Muhammad Latif v. Muhammad Hafiz and others PLD 1954 Federal Court 184 and Guran Ditta v. T.R. Ditta AIR 1935 PC 12 ref.

Mushtaq A. Memon assisted by Muhammad Amin for Plaintiff.

Mamoon Chaudhry for Defendant No.1.

Amel Khan Kasi and Ms. Heer Memon for Defendants Nos.2 and 3.

2019 C L C 566

[Sindh]

Before Nazar Akbar, J

TARIQ GUL----Applicant

Versus

ZARAR-UL-YAMIN KHAN----Respondent

Execution Application No. NIL of 2018 in Summary Suit No.NIL of 2016, decided on 12th March, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Suit for recovery of money disposed of on compromise---Execution petition---Competence---Compromise between the parties was to be treated as a fresh agreement---Aggrieved party in case of any breach of compromise was required to file a fresh suit---Execution petition for enforcement of compromise was not competent---Parties might avail remedy under the law for implementation of compromise agreement---Execution petition was dismissed in circumstances.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268 rel.

Syed Safdar Ali for Applicant.

2019 C L C 583

[Sindh]

Before Muhammad Shafi Siddiqui and Muhammad Faisal Kamal Alam, JJ

PREMIER BATTERY INDUSTRIES (PVT.) LTD.----Petitioner

Versus

KARACHI WATER AND SEWERAGE BOARD and another----Respondents

Constitution Petition No. D-1802 of 2017, decided on 12th August, 2017.

(a) Constitution of Pakistan---

----Art. 199---Writ of certiorari---Scope---Petitioner does not have to show his locus standi for maintaining petition for writ of certiorari---Primarily, petitioner acts as an informer/relator---Exception to such principle is that such informer should neither have a personal interest nor any other motive regarding which a writ of certiorari sought to be issued.

(b) Sindh Public Procurement Regulatory Authority Rules, 2010---

----Rr.15-A, 17, 18, 73 & 74---Constitution of Pakistan, Art. 199---Constitutional petition---Locus standi---Petitioner had not participated in bidding process and assailed Public Notice and bidding process without fulfilling any of the conditions mentioned in the Public Notice---Validity---Petitioner had commercial motive that entire process should be started afresh--- Once the procuring authorities started bidding/ tendering process, provisions of Rr. 17(3) & 18 of Sindh Public Procurement Regulatory Authority Rules, 2010, would be applicable and such stage was a subsequent one and had not reached---Petitioner did not have any locus standi to assail procurement process, as it did not even participate in first stage of the process by submitting Expression of Interest---Public Notice in question did not violate any of the provisions of Sindh Public Procurement Regulatory Authority Rules, 2010---Basic information according to R. 73 of Sindh Public Procurement Regulatory Authority Rules, 2010, contained about subject project, eligibility of participants, date of purchase of Expression of Interest document and the same could also be down loaded from Sindh Public Procurement Regulatory Authority website and last date of submission also---Constitutional petition was dismissed in circumstances.

Haider Waheed and Shah Zeb Akhtar for Petitioner.

Munir-ur-Rehman, Masroor Ahsan and Dhani Bux for Respondent No.1.

Saifullah Khan AAG for Respondent No.2.

2019 C L C 601

[Sindh]

Before Zulfiqar Ahmad Khan, J

Dr. SULEMAN and another----Plaintiffs

Versus

HIGHER EDUCATION COMMISSION OF PAKISTAN through Chairman and another----Defendants

Suit No.1111 of 2017, decided on 14th June, 2017.

University of Karachi Act (XXV of 1972)---

----S. 51---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration, permanent injunction---Plaintiff having Doctorate degree---Allegation of use of plagiarized material in the thesis---Plaintiff was removed from service---Bar on jurisdiction of Court---Scope---Plaintiff contended that Ph.D degree awarded to him be declared valid, legal and not suffering from plagiarism---Validity---University had autonomy within certain recognized constraints---Court could scrutinize university activities when asked to do so by the people who felt that they had been affected unjustly by the university decision---Court could impose constraints or mitigate University and enforce some of its own constraints in the interest of justice---No vested right existed in a person who was Ph.D and was facing allegation of plagiarism---Institution which awarded the degree could award such degree in recognition of research conducted by any individual---If at any juncture it surfaced that the research was plagiarized or did not originally belong to the researcher then university was free to use all available force to recall such a degree and take disciplinary action---Court could not interfere in academic research issues where case was with regard to award of Ph.D degree---Trial Court was to refrain from interfering in the question as to whether plaintiff's degree should be cancelled or not on the alleged ground of plagiarism---Plaint was rejected in circumstances.

S.R. Dongerkerry; Elizabeth C. Wright; King v. Chancellor, Masters and Scholars of the University of Cambridge and Shudarshan Lal v. Allahabad University rel.

Khawaja Shamsul Islam for Plaintiffs Nos.1 and 2.

Malik Naeem Iqbal, Faizan H. Memon and Muhammad Naeem Khaskheli along with Javaid Ali Memon, Director, H.E.C., Regional Centre, Karachi for Defendant No.1.

Moin Azhar Siddiqui and Ali Ahmed Turabi along with Asif Mukhtar, Director (Legal), University of Karachi for Defendant No.2.

Muhammad Haseeb Jamali for Intervenor.

2019 C L C 623

[Sindh]

Before Nazar Akbar, J

MUHAMMAD TALIB----Plaintiff

Versus

MUHAMMAD SARWAR NAZ and another----Defendant

Suit No. 1187 of 2006, decided on 19th February, 2018.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 103---Decree holder---Rights and duty---Decree, execution of---Procedure---Decree-holder instead of filing execution petition took the suit file to the Nazir of the Court and managed to get report from the Nazir and filed application for order thereon from the Court---Validity---Neither any direction was issued for the defendants to appear before the Nazir nor he had summoned them---No justification existed for the Nazir to prepare report and refer the matter to the Court for further direction---Civil Court became functus officio after passing judgment and decree---Executing Court had to follow the provisions of O. XXI, C.P.C. for execution of judgment and decree if execution petition was filed by the decree-holder---Once the suit was decreed plaintiff ceased to be plaintiff and became a decree-holder---Decree-holder was not supposed to obtain any further order in the disposed of suit---Decree-holder acquired rights under the decree and to enforce his rights he had to file an execution application---Nazir of the Court could not assume the role of Executing Court and prepare a report after examining the judgment and decree at his own or on the request of plaintiff---Additional Registrar (O.S) of the High Court was directed to hold an inquiry against the concerned staff of the suit branch for sending the suit file to the Nazir office---Staff who had sent file if found guilty of inefficiency or corruption should be proceeded against according to service Rules---Nazir of the Court was directed not to receive and retain any suit file in his office in which there was no direct order of the Court---Nazir should not entertain any written or oral request of the parties to prepare any report/reference in a suit disposed of through the judgment and decree unless Executing Court had been approached.

Saleem-uz-Zaman for Plaintiff.

Defendant in Person.

2019 C L C 634

[Sindh]

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

COLLECTOR OF CUSTOMS and 2 others----Appellants

Versus

Messrs SEARLE IV SOLUTION (PVT.) LTD. through Finance Manager----Respondent

High Court Appeal No. 83 of 2015, decided on 26th August, 2017.

(a) Customs Act (IV of 1969)---

----S. 217---Suspension of operation of judgment---Pendency of matter before Supreme Court---After matter was decided in favour of appellant, importers filed application for suspension of judgment and decree passed against them---Validity---Importer besides filing of an appeal had also filed stay application before Supreme Court for suspension/stay of judgment in question---Ex-facie prayer made in application vis-à-vis obtaining stay order/suspension of judgment during pendency of appeal before Supreme Court was not only misleading but also misconceived---No stay/suspension of judgment, already assailed in appeal before Supreme Court, could be granted in view of doctrine of funcuts officio---Division Bench of High Court declined to suspend stay/judgment in question which was subject matter of appeal before the Supreme Court---Application was dismissed in circumstances.

(b) Words and phrases---

----Functus Officio---Defined.

Law of Lexicon Venkatraramaiya rel.

Ms. Masooda Siraj for Appellant.

Abdul Sattar Pirzada for Respondent No.1.

Nemo. for Respondents Nos. 2 and 3.

2019 C L C 643

[Sindh (Hyderabad Bench)]

Before Arshad Hussain Khan, J

SAEED AHMED KHAN----Petitioner

Versus

VIIth ADDITIONAL SESSIONS JUDGE, HYDERABAD and 2 others----Respondent

C.P. No. S-792 of 2013, decided on 25th September, 2017.

Family Courts Act (XXXV of 1964)---

----S.9(6)---Civil Procedure Code (V of 1908), O. V, R.20---Suit for dissolution of marriage and recovery of dowry articles---Ex parte decree---Substituted service---Scope---Service through publication---Scope---Petitioner/defendant contended that ex parte decree passed against him was liable to be set aside as he was not properly served and he was unaware of the proceedings before the Family Court---Validity---Order V, R. 20 of C.P.C. empowered the Court to adopt procedure of substituted service, when all efforts were made to effect the service upon the defendant in the ordinary course---In the present case, there was nothing on record which could show that the petitioner was avoiding service of summons upon him or he could not be found for any reason---Petitioner could not be said, in the circumstances that he was keeping away for the purpose of avoiding service, or that he could not be found for any reason---Family Court before making order for publication of notice in press, did not order affixation of a copy of summons at some conspicuous part of the house or place of business of the petitioner---Proper procedure was not adopted by the Family Court, therefore, publication of notice in the daily newspaper could not be considered as effectual service of notice upon the petitioner---Petitioner had established that he was unaware about the proceedings before the Court---High Court set aside the judgments and decrees passed by the two courts below by virtue of which the application of the petitioner to set aside ex parte decree was dismissed---Case was remanded to the Family Court for proceedings afresh to the extent of recovery of dowry articles---Constitutional petition was disposed of accordingly.

Haji Akbar v. Gul Baran 1996 SCMR 1703; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 and Messrs AXLEPRODUCTS Limited v. Messrs Allied Bank of Pakistan Ltd., 2001 SCMR 1469 ref.

Muhammad Zaman Zaur for Petitioner.

Ghulam Shabbir Zardari, Assistant A.G. Sindh for Respondents Nos.1 and 2.

Respondent No.3 Absent.

2019 C L C 657

[Sindh]

Before Muhammad Shafi Siddiqui, J

ANTHONY D'SILVA through Authorized Attorney----Petitioner

Versus

SARFRAZ ALI and 3 others----Respondents

C.P. No. S-704 of 2015, decided on 4th December, 2017.

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

----Ss. 15 & 18---General Clauses Act (X of 1897), S. 27---Qanun-e-Shahadat (10 of 1984), Arts. 71 & 129---Ejectment petition---Wilful default by tenant---Scope---Service of notice to the tenant---Due service---Essentials---Denial on oath by a party---Burden of proof, shifting of---Scope---Negative oral evidence---Scope---Petitioner/tenant contended that he did not receive notice and as he had denied the said fact on oath, the burden of proof had shifted to the landlords---Respondents/landlords contended that sending of notice to the tenant through courier and Registered Post was sufficient proof of the same---Validity---Address, in the present case, was stated to be correct and the registered post acknowledgement was also available on record---Respondents/Landlords appeared to have discharged their burden when an acknowledgement receipt was produced to establish that notice under S. 18 of Sindh Rented Premises Ordinance, 1979 was sent and served which presumption was governed by Art. 129 of Qanun-e-Shahadat, 1984---Denial on oath could only shift the burden upon landlord if tenant/addressee had himself appeared before the Court whereas, in the present case, attorney of the tenant appeared to adduce evidence---Negative oral evidence could lean for presumption of truth under S.27 of General Clauses Act, 1897 and Art. 129 of Qanun-e-Shahadat, 1984---Best evidence was withheld by petitioner/tenant---Where a fact was required to be proved through oral evidence , such evidence must be direct and of primary source within the meaning of Art. 71 of Qanun-e-Shahadat, 1984 which provided instances of direct oral evidence regarding proof of fact---Landlords could not be deprived of their legitimate right once the notices had been served upon the tenant---If the Rent Controller was required to extract the intention of a wilful or non-wilful default it would end up every case as non-wilful default as every tenant would have some legitimate reasons/excuses like financial crises or payment of rent to the previous owner etc.---At times technical default was being considered by the Court but that was limited to the extent that the same was being deposited in the name of same landlord which depended upon the nature, circumstance and controversy of each case---No illegality or infirmity having been noticed in the judgments and the decrees passed by the two Courts below---Constitutional petition was dismissed accordingly.

Water and Power Development authority v. Saeed Badar PLD 1991 SC 660; Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105; Humayun Naseer v. Muhammad Saeed 2007 CLC 819; Muhammad Rafiq v. The State 2004 YLR 1580 and Major (Rtd.) A.S.K. Samad v. Lt. Col (Rtd.) A. Hussain 1987 SCMR 1913 ref.

Makhdoom Ali Khan for Petitioner.

Mian Mushtaq Ahmad for Respondents Nos.1 and 2.

Shaharyar Mehar, AAG for Respondents Nos.3 and 4.

2019 C L C 687

[Sindh]

Before Nazar Akbar, J

Mst. FARZANA JAVED----Petitioner

Versus

Mst. NIGHAT SULTANA and 2 others----Respondents

C.P. No. S-1216 of 2018, decided on 18th July, 2018.

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

----S.15---Eviction petition---Default in payment of rent---Personal bona fide need of landlady---Scope---Trial Court dismissed the petition holding that landlady had failed to prove her personal need of the rented premises---Trial Court did not decide the issue of default on the ground that it was not agitated by her counsel at the time of final arguments---Appellate Court allowed the appeal and directed the tenant to vacate the rented premises---Validity---Held; it could not be believed that the counsel who filed case for default then filed an application for tentative rent order and after obtaining certified copies of ledger of Nazir filed an application for striking off defense, had failed to agitate ground of default in final arguments---Trial Court was entrusted with the duty of doing justice between the parties, to decide each issue between them in accordance with law on merit on the basis of record and evidence irrespective of arguments by the counsel---In presence of record/evidence, unless the question of default was dropped in writing, Trial Court was not supposed to leave a crucial issue between the parties undecided merely for want of arguments---Findings of Trial Court on the issue of personal bona fide need of landlady were equally perverse and contrary to the record and evidence---Tenant neither in her written statement nor in her affidavit-in-evidence had alleged that two flats of the landlady were lying vacant in the same building, but the Trial Court had relied on such purported statement of tenant---High Court, while maintaining the order of Appellate Court, dismissed the constitutional petition with costs.

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

----S.15---Eviction petition---Personal bona fide need of landlady---Choice of landlord---Even if more than one premises were available with the landlord and he/she chose to occupy for personal need a particular one, the tenant had no right to challenge such choice of the landlord.

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

----S.16---Defense, striking off---Scope---Striking off defense in the case was not a mere technicality---Refusal to strike off defense amounted to denying statutory right accrued to the landlord---Use of word "shall" in S. 16(2) of Sindh Rented Premises Ordinance, 1979 left no room for the Rent Controller to form even 'a humble opinion' to deny a statutory right accrued to landlord.

Javed Anwar for Petitioner.

Nemo. for Respondent No.1.

Nemo. for Respondent No.2.

Nemo. for Respondent No.3.

2019 C L C 704

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

ABDUL JABBAR and 8 others----Applicants

Versus

GHULAM MUSTAFA and 6 others----Respondents

Civil Revision Application No.S-25 of 2011, decided on 29th June, 2018.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 126---Registered sale deed---Proof---Procedure---Procedural error/defect in the registered document---Effect---Presumption of correctness attached to a registered document---Suit without impleadment of necessary party---Scope---Contention of plaintiffs was that registered sale deed in favour of defendants was result of fraud and misrepresentation---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff had challenged registered sale deed executed by his father---Initial burden would be upon the plaintiff to prove the document to be fraudulent or otherwise illegal---Presumption of correctness was attached with the registered document---Registration endorsement was a proof of execution of document by the executant and compliance of all necessary formalities by the Registering Officer---Plaintiff should prove that sale deed was presented by an unauthorized person or registration was done in absence of its executant or his authorized representative or executant had denied the execution of document or language used in the same was not understandable by the parties or description of the property had been incorrectly mentioned in the said document---Correctness attached with the registered document could not be shaked merely due to some procedural error/defect in the said document---Impugned sale deed had not been challenged by the executant though he remained alive for considerable period---Defendants were in possession on the suit property in the present case---Sub-Registrar had registered the instrument after codal formalities---Strong evidence was required to cause aspersion on the genuineness of such document---No such evidence was available on record in the present case to create doubt---Plaintiff also remained silent for twenty eight years to challenge the impugned sale deed---Findings recorded in the impugned judgment were beyond lawful justification---Examination of attesting witness of registered document to prove the same was not mandatory---Vendor had not denied the registered sale deed and defendants were not bound to prove the said document unless and until initial burden was discharged by the challenger---Appellate Court had failed to appreciate the provisions of law and its findings were based on conjecture---Mere possession without title and lawful authority would not be a proof of ownership/lawful title---When necessary party was not impleaded in the suit then suit would be bad in the eyes of law---Plaintiffs had failed to establish fraud and misrepresentation in the execution of impugned sale deed---Appellate Court had set aside the judgment of Trial Court without lawful reasoning and its findings were not sustainable in law---Present suit, in circumstances, was barred by law---Appellate Court had committed material irregularities while passing the impugned judgment---Judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, in circumstances.

Haji Hashmat Ali v. Manzoor Ahmed 2004 SCMR 1545; Manzoor Ahmed and others v. Mehrban and others 2002 SCMR 1391; Muhammad Ayub v. Lahore Development Authority and others 2000 MLD 1809; Lahore Cantt. Cooperative Housing Society Ltd. v. Muhammad Anwar and others 2007 CLC 160; Sardara v. Muhammad 1994 SCMR 2299 and Rasool Bukhsh and others v. Muhammad Ramzan 2007 SCMR 85 rel.

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

----O. XLI, R. 33---Appellate Court, powers of---Scope---Appellate Court could reverse the findings of Trial Court but such reversal must be backed with better legal reasoning---Legally decided issue by Trial Court could not be disturbed unless and until same was found to have been against material or settled legal principles.

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

----O. I, R. 10---'Necessary party' and "proper party"---Meaning and distinction.

Syed Zamir Ali Shah for Applicant No.1.

Applicants Nos.2 to 9 through their attorney.

Respondent No.1 in person.

Abid Hussain Qadri State Counsel for official Respondents.

2019 C L C 718

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Messrs KARACHI WATER AND SEWERAGE BOARD and another----Appellants

Versus

MUHAMMAD ALI KHAN----Respondent

High Court Appeal No. 207 of 2016, decided on 29th May, 2018.

Civil Procedure Code (V of 1908)---

----S. 151 & O. XLI, R. 8---Decretal amount, release of--- Deposit of security---Decree-holder in a money decree filed application for release of decretal amount prior to decision of appeal---Validity---Deposited decretal amount to a decree holder, pending adjudication of appeal was permissible to be released subject to an arrangement being secured by appropriate security--- High Court directed the office to release decretal amount to decree holder subject to submission of Bank guarantee securing quantum released---Application was allowed accordingly.

Messrs Bundial Bus Service v. Mst. Sanjeeda Afzal and others 1975 SCMR 203; Ch. Altaf Hussain and others v. Mirza Azam Beg 1983 SCMR 643; Chairman, Centrally Administered Tribunal Area (CATA) Development Corporation, Peshawar and another v. Malikzada Muhammad Akbar and 4 others 1984 SCMR 181 and Haji Banaris Khan and others v. Central Government through Secretary, Defence and Military Estate Officer and another 1986 SCMR 1805 ref.

Muhammad Iqbal Chaudhry for Appellant.

Ms. Naheed Naz for Respondent.

2019 C L C 732

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

HASHIM SHAH and others----Applicants

Versus

Mst. HAKEEMAN alias BIBI WADAL SHAH and others----Respondents

Civil Revision No.S-88 of 2006, decided on 19th April, 2018.

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Scope---Revision---Conflicting findings of courts below---Trial Court's judgment had been passed after considering the evidence available on record and hearing both the sides---No misreading and non-reading of evidence as well as misappraisal of the facts and documentary evidence available on record, had come up on the surface in the Trial Court's judgment---No illegality or material irregularity was committed by the Trial Court---In absence of any legal defect in the Trial Court's findings, no interference should have been made by the appellate court---Appellate court's judgment was arbitrary, fanciful, perverse and patent result of mis-reading and non-reading of complete evidence and other material available on record which was liable to be set aside---Allowing revision, judgment and decree passed by appellate court, were set aside and judgment and decree passed by the Trial Court, were maintained.

2008 SCMR 398 rel.

Noor Ahmed Memon for Applicants.

Muhammad Ishaque Khoso for Respondent No.1.

Wali Muhammad Jamari Assistant A.G. for Respondents Nos.3 to 6.

2019 C L C 759

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Syed RAZA HAIDER RIZVI---Plaintiff

Versus

Messrs GORDON SHIPPING COMPANY LTD. and another---Defendants

Suit No. 886 of 1999, decided on 2nd July, 2018.

Suit for damages/compensation---

----Employer and employee---Medical facility, non-providing of by employer---Effect---Plaintiff was employee of defendants (employers) who were bound to provide him proper medical treatment---Plea raised by plaintiff was that due to failure of defendants to provide medical treatment, he had suffered permanent physical disability due to injury sustained by him during duty---Validity---Defendants neither produced any document about complete recovery of plaintiff nor had questioned authenticity of documents produced by plaintiff---Expert opinion of doctors further substantiated the fact that till March-1999 plaintiff was not fully recovered from injury which inhibited his pursuit of career---Testimony of plaintiff (employee) and undisputed documentary evidence produced by him weighed in favour of plaintiff as against oral evidence of defendant that complete medical treatment was given to plaintiff---To extent of negligence shown by defendants (employers) in providing incomplete medical treatment of plaintiff stood proved---Suit for damages and compensation was decreed accordingly.

Arshad Iqbal for Plaintiff.

Ms. Asmara Parveen for Defendant No.1.

Aga Zafar Ahmed for Defendant No.2.

2019 C L C 781

[Sindh]

Before Adnan Iqbal Chaudhry, J

ADVOCATE GENERAL SINDH----Plaintiff

Versus

ISLAMIC EDUCATION TRUST through General Secretary and 12 others----Defendants

Suit No.203 of 2002, decided on 7th August, 2018.

Civil Procedure Code (V of 1908)---

----S. 92---Suit relating to trust---Affairs of trust---Arrangements---Evidence, non-recording of---Trust had established a College which was nationalized in the year 1972, and was taken over by Education Department of Provincial Government---Validity---From the year 1972 when the, College was nationalized until Official Assignee took control of the College building pursuant to judgment passed by High Court, on 7-9-2001, the College and College Building effectively remained under the control of Provincial Government---Whether the trustees were de jure trustees or de facto / constructive trustees, remained in conflict with each other for decades over control of the trust---Trustees did not recognize each other as lawful trustees and were not able to work together as Board of Trustees and litigation among them was testament to such fact---Trust was without recognized Board of Trustees for decades and the same was sufficient to conclude that such trustees were at odds with the interest of the trust and that was enough reason to hold that directions of Court were necessary for administration of the trust---High Court declined to delve into the allegation whether any of the trustees actively committed breach of trust deed or whether any of the trustees misappropriated rental income of the trust---Decree in terms of S. 92, C.P.C., in circumstances, did not require recording of evidence---High Court removed defendants or other persons who were claiming to be trustees---High Court directed that new Board of Trustees would consist of seven persons two of whom nominees of ex officio of Municipal Corporation and if Municipal Corporation did not opt to make such nomination then new Board of Trustees would comprise of five persons---High Court directed the Advocate General to submit list proposing names and credentials of new trustees and that on appointment of new trustees all assets of the trust would vest in such trustees and Official Assignees would deliver trust property and its record to new trustees including record of all cases instituted by and against him as Receiver/custodian of trust property---Suit was decreed accordingly.

Begum Hafizunnisa Qureshi v. Sheikh Muhammad Hussain 2003 CLC 1156; Fakir Shah v. Mehtab Shah Pir Bukhari Masjid Committee PLD 1989 SC 283; Mt. Lakshami Kunwar v. Murari Kunwar AIR 1918 Oudh 207; Sivagnana Desika Gnanasambanda Pandarasannady v. Advocate General of Madras AIR 1916 Madras 318; Advocate-General, Punjab, Lahore v. Sheikh Abdul Haque PLD 1957 (W.P.) Lahore 321 and Ejaz Inayat v. Rt. Rev. Dr. A.J. Malik PLD 2009 Lah. 57 rel.

Ziauddin Junejo and Aley Maqbool Rizvi, Additional Advocates General, Sindh for Plaintiff.

Syed Mureed Ali Shah for Defendants Nos.1 and 11.

Adnan Ahmed and Bilawal Channa for Defendants Nos.2, 4 to 10.

Official Assignee, Choudhary Muhammad Waseem Defendant No.12.

Zahid Marghoob for Defendant No.13.

2019 C L C 804

[Sindh]

Before Muhammad Faisal Kamal Alam, J

ASAD ZAHEER through Attorney----Plaintiff

Versus

MUHAMMAD ISMAIL and another----Defendants

Civil Suit No. 1774 of 2016, decided on 3rd October, 2018.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11 & 13, O. XXIII, Rr. 1 & 3 & O. II, R. 2---Suit for declaration---Withdrawal of---Fresh suit without permission of Court---Plaint, rejection of---Scope---Institution and withdrawal of earlier suit had not been mentioned in the present lis---Effect---Plaintiff should have disclosed all the previous and sub-judice litigation/cases; non-disclosure of such information was fatal---Earlier suit filed by the plaintiff was withdrawn without permission of Court to file fresh proceedings---Main prayer clauses of both the suits were substantially the same except that now plaintiff was also seeking a remedy of damages---Order passed in the earlier suit by the Trial Court was not challenged by the plaintiff---Mere adding a paragraph in the pleadings and the prayer clause seeking damages would not bring the case of plaintiff in exception of O. VII, R. 11, C.P.C.---If a person had opted an action or proceedings out of multiple remedies then after exhausting the one he could not go back to opt for other remedy---Effect of nature of pleadings and the relief claimed in the earlier and present litigation were substantially the same---Mere claiming an additional relief of damages would not improve the case of plaintiff by bringing it into the ambit of O. VII, R. 13, C.P.C.---Claim of damages in the present suit was hit by O. II, R. 2, C.P.C.---Plaint was rejected, in circumstances.

Dad Karim and 12 others v. Ishaq and 20 others 2015 CLC 107 and Muhammad Latif v. Muhammad Iqbal 1996 CLC 1672 ref.

Shahbaz Khan v. Additional District Judge, Ferozewala and others 2017 SCMR 2005 and Tahir Hussain and others v. Ilyas Ahmad and others 2014 SCMR 1210 rel.

Muhammad Ikram Siddiqui for Plaintiff.

Masood Khan Ghory for Defendant No.1.

Muhammad Shahban Solangi for Defendant No.2.

2019 C L C 817

[Sindh]

Before Muhammad Junaid Ghaffar, J

MOHAMMAD IBRAHIM through Duly Constituted Sub-Attorney----Plaintiff

Versus

SINDH INDUSTRIAL TRADING ESTATE LTD. (SITE) through Secretary----Defendant

Suit No.1011 of 2014, decided on 6th February, 2018.

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

----S. 42---Suit for declaration---Allotment of industrial plots---Levy/demand of non-utilization fee by Provincial Industrial Estate---Scope---Plaintiff who was allotted plot by Industrial Estate, Ltd. inter alia, sought declaration to the effect that demand of non-utilization fee for the plot was illegal and not liable to be paid by plaintiff---Validity---Whilst undertaking was given for raising construction within period of six months by plaintiff, however, the same did not provide for whether plaintiff would be required to pay non-utilization fee and such levy and demand could only be made if an agreement or contract between parties permitted it---When there existed no such agreement, then demand in respect of non-utilization fee could not be sustained.

Messrs Indus Battery Industries v. S.I.T.E. in C.P. No.D-333 / 2002 rel.

Anwar and Co. v. SITE, Karachi in C.P No.D-109 of 2005; Sindh Industrial Trading Estate Ltd., Karachi v. Central Board of Revenue and 3 others PLD 1975 Kar. 128 and Central Board of Revenue and another v. SITE PLD 1985 SC 97 rel.

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

----Ss. 39 & 42---Cancellation of registered documents---Principle---Cancellation of registered document(s) could only take place through a declaration of the court and not by means of an executive order.

Obaid-ur-Rehman for Plaintiff.

Mansoor Ali Ghanghro for Defendant.

2019 C L C 854

[Sindh]

Before Muhammad Saleem Jessar, J

USMAN GHANI MUHAMMAD VOHRA and another----Appellants

Versus

ADDITIONAL DISTRICT JUDGE IV EAST KARACHI----Respondent

Miscellaneous Appeal S-No. 20 of 2014, decided on 3rd August, 2018.

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

----Ss. 278 & 372---Petition for issuance of succession certificate/letter of administration, dismissal of---Title/ownership of immoveable property not proved---Appellant/legal heir claimed that property in question was purchased by his father from person 'A' in the name of his deceased-mother---Being the only surviving legal heir of his deceased-mother, the appellant wrote a letter to the Secretary of the housing society, where the property was located, requesting therein for transfer of the property in question in his name --- Secretary replied stating that the property was still in the name of person 'A'; that although there was a power of attorney executed by person 'A' in favour of appellant's father mentioning an agreement between appellant's mother and person 'A', but the property was never transferred and registered in the name of the appellant's mother as per procedure of the Society---Appellant filed a petition for issuance of succession certificate, which was dismissed by way of impugned order on the basis that in the record of the Society the subject property was not entered in the name of appellant's deceased mother---Held, that when the property was not registered in the name of appellant's deceased mother, then it could not be transferred in the name of the appellant after his mother's death---Before granting succession certificate / letter of administration, it was the duty of the judge to verify as to whether the property in respect whereof petition had been filed actually subsisted in the name of the deceased of whom the petitioner in the petition claimed to be the legal heir---If on verification it came to the notice of the Court that, in fact, the subject property was not registered in the name of the said deceased, obviously the Court was left with no other option but to decline the request for grant of succession certificate / letter of administration---Petition for issuance of succession certificate/letter of administration was rightly dismissed in the present case---Appellant ought to have filed a civil suit seeking a declaration that his deceased mother was the owner of the property in question---Appeal was dismissed in circumstances.

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

----S. 54---Unregistered agreement to sell---Title / ownership of an immoveable property could not be claimed on the basis of an unregistered sale agreement as it did not confer any ownership right upon the purchaser.

Mohammad Yousuf v. Munawar Hussain and 5 others 2000 SCMR 204 ref.

Mirza Mehmood Baig for Appellant.

2019 C L C 866

[Sindh]

Before Mahmood Ahmad Khan, J

The KARACHI PARSI CO-OPERATIVE HOUSING SOCIETY LTD.----Plaintiff

Versus

MANECK M. DASTUR and 2 others----Respondents

Suit No.123 of 1993, decided on 30th April, 2018.

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

----O.I, R.10---Non-joinder of parties---Effect---Non-joinder is not a valid ground to de-suit a party---Any party could apply and court could require and order impleading of party.

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

----Ss.30, 42 & 54---Suit for cancellation, declaration and injunction---Title to property---Plaintiff was a Cooperative Housing Society and assailed title document in favour of defendant---Defendant claimed to be owner-in-possession of suit land having invested lot of money in construction over it---Validity---Document in favour of defendant, irrespective to its title of lease, (which was misleading) was only a license, i.e., a permission as such, never carried any right of any further transfer at option of licensee on his own, let alone free exercise as was a requirement available under a lease---Document in favour of defendant was without any consideration/amount paid to granter/lessor, i.e., amount referred in proceedings was never paid to plaintiff but was spent on structure and as such was duly certified (value thereof accepted by beneficiary)---Beneficiary as such at best, could only claim value of structure---Beneficiary was only entitled to valuation of structure after same was assessed and certified by relevant professional person duly approved by the High Court---Beneficiary was also entitled to recovery of specified sum from defendant and same was independent and not related/prerequisite to any benefit granted to plaintiff---Suit was decreed accordingly.

1993 SCMR 1510; 2005 YLR 2423; AIR 2002 SC 797; AIR 1939 Culcutta 523; 34 IC 516 Culcutta; SIR 1932 Privy Council 158; AIR 1989 SC 1806; 2005 YLR 2889; AIR 1952 SC 59; AIR 1959 SC 490; AIR 1977 SC 1496; AIR 1952 Madras 613; PLD 2002 Kar. 414; 2001 YLR 2537; PLD 1985 Kar. 481; 2005 YLR 1745; 1991 SCMR 1185; 1994 SCMR 281; 1991 MLD 2249; 1997 CLC 1774; 1987 CLC 2358; PLD 2003 SC 159; 2007 YLR 2183; PLD 1970 SC 185; PLD 1970 DLC 387; PLD 1953 Lah. 251; PLD 1984 SC 424; AIR 1993 PC 79; PLD 1961 Lah. 372; AIR 1941 Lah. 407; PLD 1994 Kar. 194; 2007 YLR 2183; 2008 YLR 2763 and PLD 2006 SC 84 ref.

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

----S.42---Declaration of title of property---Principle---No one can transfer a better title entitlement available to him.

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

----S.27(b)---Bona fide purchaser---Proof---Precondition---To be a bona fide purchaser, a party has to prove not having notice of actuality along with the element of reasonable inquiry made on his part---Such is not only limited to factual aspects but includes legal element.

R.F. Virjee for Plaintiff.

Defendant No.1: Called absent.

Abdul Wajid Wyne for Defendants Nos.2 and 3.

2019 C L C 883

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Shamasuddin Abbasi, JJ

MUHAMMAD QASIM KANDHRO----Petitioner

Versus

Syed KHURSHEED AHMED SHAH and 5 others----Respondents

Constitutional Petition No.D-1323 of 2018, decided on 19th July, 2018

Elections Act (XXXIII of 2017)---

----S. 62(2)---Constitution of Pakistan, Art. 225---Constitutional petition---Election for the seat of Member National Assembly---Nomination papers, filing of---Objections---Returning Officer accepted nomination papers of the candidate---Contention of petitioner was that candidate had concealed assets in the name of his spouse---Validity---Candidate had mentioned assets and liabilities in the nomination papers as well as in the affidavit---No material concealment or mis-statement in the nomination papers had been established---Petitioner had failed to file objections before Returning Officer against nomination papers of the candidate---Process of election was in progress---High Court declined to interfere with the election process without any legal justification---Election Tribunal had rightly dismissed the appeal of the petitioner---Constitutional petition was dismissed, in circumstances.

Ghulam Mustafa Jatoi v. Additional Sessions Judge 1994 SCMR 1299 and Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 rel.

Nisar Ahmed Bhanbhro for Petitioner.

Raza Rabbani assisted by Zeeshan Abdullah, Zulfiqar Ali Sangi and Sajjad Muhammad Zangejo for Respondent No.1.

Muhammad Aslam Jatoi, Assistant Attorney General for the State.

Khuda Dino Sangi for Election Commission of Pakistan.

Noor Hassan Malik Assistant Advocate-General Sindh for Respondents Nos.3, 5 and 6.

2019 C L C 915

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

INAYAT ALI and others----Applicants

Versus

AFSAR HUSSAIN Ph.D and others----Respondents

Civil Revision Application No.S-61 of 2016, decided on 24th April, 2018.

Civil Procedure Code (V of 1908)---

----O. XX, R. 5---Specific Relief Act (I of 1877), Ss. 42, 54 & 39---Suit for declaration, permanent injunction and cancellation of instrument---Limitation---Decision on each issue---Scope---Trial Court dismissed the suit on the point of limitation and refrained from giving any findings on the other issues---Appellate Court remanded the matter for decision on all issues by the Trial Court---Validity---Trial Court framed eight issues but passed judgment on the basis of its findings on single issue---Parties led their evidence in support of their respective claims but seven issues were left undecided---Trial Court was bound to decide each and every issue separately unless finding upon any one or more of the issues was sufficient for the decision of suit---Fraud had been alleged for preparation of power of attorney---Present suit called for full-dressed trial so that valuable rights of the parties be determined after recording evidence from both the sides---Appellate Court rightly considered the nature of dispute and remanded the case for decision on all issues in accordance with law---Revision was dismissed in circumstances.

Suresh Kumar for Applicants.

Arbab Ali Hakro for Respondent.

Wali Muhammad Jamari, Assistant A.G.

2019 C L C 950

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ASHFAQ and another----Appellants

Versus

MUHAMMAD HAROON----Respondent

IInd Civil Appeal No.13 and C.M.A. No. 536 of 2012, decided on 6th April, 2018.

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

----S.124---Contract of indemnity---Applicability---Indemnity is to save indemnity-holder from genuine loss likely to be suffered by him from conduct of promisor or any other person---Indemnity-holder is required to establish loss suffered by him in consequence to conduct of indemnifier or that of another person so promised.

Variety Traders, Karachi v. Government of Pakistan PLD 1980 Kar. 30 rel.

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

----S.124---Suit for recovery of damages---Contract of indemnity---Suit was filed on basis of contract of indemnity for recovery of amount---Defendant was employee of plaintiff attended a foreign course against an indemnity bond to serve plaintiff for at least 3 years---Defendant after completing course abroad, served plaintiff only for 8 months and then left the job---Suit filed by plaintiff was concurrently decreed in his favour by Trial Court and Lower Appellate Court---Validity---Plaintiff examined only one witness who was not signatory of indemnity bond---Plaintiff neither examined any witness nor produced any documentary evidence to establish that plaintiff suffered any loss due to act of leaving of company by defendant before agreed period---Both courts below had only referred to indemnity bond and suit was decreed whereas other conditions available in bond were not considered---High Court declined to allow such approach of courts below---In absence of establishing loss actually suffered by indemnity-holder, claim of plaintiff, legally, could not be accepted for decreeing merely for reason that there had been a document under title of indemnity bond---Failure of plaintiff in establishing actual loss suffered by him, suit could not be decreed in favour of plaintiff---High Court set aside judgments and decrees passed by two courts below and dismissed the suit---Second appeal was allowed in circumstances.

Variety Traders, Karachi v. Government of Pakistan PLD 1980 Kar. 30 and Cavendish Square Holding BV v. Talal El Makdessi 2016 SCMR 296 rel.

Ramzan Tabassum for Appellants.

Abdul Waqar Kalwar for Respondent.

2019 C L C 976

[Sindh (Larkan Bench)]

Before Irshad Ali Shah, J

AKBAR ALI SHAH----Petitioner

Versus

P.O. SINDH and others----Respondents

Constitutional Petition No.S-239 of 2018, decided on 1st October, 2018.

Civil Procedure Code (V of 1908)---

----O. XIII, Rr. 1 & 2----Constitution of Pakistan, Art. 10-A---Production of documents---Delay, effect of---Scope---Petitioners filed suit for recovery of money which was dismissed---Appeal filed by petitioners was also dismissed---Revision petition filed before High Court was accepted and matter was remanded to Trial Court for its disposal afresh---On remand of the matter, issues were amended and Mukhtiarkar was also made party---Petitioners filed application for production of documents, which was dismissed by Trial Court on the ground that documents were filed at belated stage---Revision petition filed by petitioners was also dismissed by District Judge---Validity---Held, on remand of the matter, after joining of Mukhtiarkar as party and amendment of the issues, if the petitioners intended to produce fresh documents for determination of their rights, they could not be prevented from doing so, such prevention under the pretext that application was filed at belated stage obviously amounted to denial of fair trial for determination of their rights and obligations, which was guaranteed by Art. 10-A of the Constitution---Orders passed by Trial Court and revisional court were set aside.

Imdad Ali Mashori for Petitioners.

Amanullah Luhur, State Counsel.

2019 C L C 994

[Sindh]

Before Muhammad Ali Mazhar, J

ABDUL JABBAR MOTIWALA----Plaintiff

Versus

ISMAIL ABDUL SHAKOOR SECURITIES (PVT.) LTD. through Chief Executive Officer and 4 others----Defendants

Suit No. 669 of 2012, C.M.As. Nos. 5861 of 2012 and 10911 of 2016, decided on 29th November, 2018.

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

----O. XXXIX Rr. 1 & 2---Temporary injunction / interim / interlocutory order, grant of---Exercise of discretion by the Court---Principles---Grant or refusal of stay rested in the commonsensical and well-structured discretion of court under the facts and circumstances of a case which may be exercised in a judicial manner and only in clear cases---Court had to delve into whether plaintiff made prima facie case, whether irreparable loss / injury would accrue if injunction was not granted and whether there existed no other remedy by which plaintiff could protect himself from the consequences of apprehended injury and that injury must be one which could not be adequately compensated for any damages---For obtaining of interlocutory order, plaintiff must demonstrate that in event of withholding of relief of temporary injunction his alleged right or interest could be seriously devastated---Plaintiff had to put across his / her own acts and dealings in the matter which had to have been scrupulous and upright and free from any contamination or unlawfulness and in dealing with person against whom he pursued relief, plaintiff must show he acted fairly and equitably---Court's jurisdiction made it well within its domain to mull over whether grant of an injunction would be more inequitable rather than refusing and in such an eventuality, it was proper exercise of discretion to refuse the same---Where no perpetual injunction was claimed no question of granting ad-interim injunction could possibly arise---All presumptions and ambiguities were taken against a party seeking to obtain temporary injunction.

PLD 1986 SC 74; 2013 CLD 981; 2004 SCMR 265; 2017 SCMR 1218; PLD 1965 SC 83; 1974 SCMR 519; PLD 2004 SC 860 and PLD 1968 Khi. 222 ref.

PLD 1960 Dacca 153; PLD 1973 AJ&K 62; PLD 1969 Kar. 227; PLD 1968 Kar. 846; PLD 1954 Sindh 61; PLD 1990 Lah. 22 and 1990 CLC 1053 and Marghub Siddiqi v. Hamid Ahmad Khan 1974 SCMR 519 rel.

(b) Interim Orders---

----Nature of---Inherent power of court of law to grant interlocutory / interim orders or temporary injunction----Scope---Passing of an interim order was a sense of duty attached to the judicial system where circumstances so demanded, and sometimes in the interest of justice, no separate or specific provision was de regueur to give power to a court to pass an interim order---Court had inherent power to act as ex debito justitiae even in cases not provided for by rules but such powers were structured and put into effect on examination of facts and circumstances of each case to determine whether equitable jurisdiction may be exercised in favour of a party or not.

PLD 1960 Dacca 153; PLD 1973 AJ&K 62 and PLD 1969 Kar. 227 rel.

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

----O. VII R. 11---Rejection of plaint---Principles---Plaint could not be rejected for the mere reason that in opinion of the judge, plaintiff may not succeed.

Virendra Nath Gautam v. Satpal Singh, AIR 2007 SC 581 rel.

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

----S. 11---Securities and Exchange Commission of Pakistan Act (XLII of 1997), Ss. 33 & 34---Central Depositories Act (XIX of 1997), Ss. 11, 3 & 18---Res juidicata, principle of---Applicability---Scope---Expression "former suit" used in S. 11, C.P.C. denoted a suit which had been decided prior to the suit in question and enquiries conducted by Pakistan Stock Exchange and the Securities and Exchange Commission of Pakistan could not be gauged literally as judicial proceedings, and therefore in such a case, principle of res judicata could not apply.

Rana Imran v. Fahad Noor Khan 2011 YLR 1473 rel.

(e) Words and phrases----

----"Cause of action"---Scope.

Rana Imran v. Fahad Noor Khan 2011 YLR 1473 quoted.

Ravi R. Pinjani for Plaintiff.

Syed Haider Imam Rizvi Defendants Nos.1 to 3 along with Abdul Rauf Malik, Jamal Bukhari and Syed Ahsan Imam Rizvi.

Tariq Qureshi for Defendant No.4.

Atif Islam Siddiqui, Manager, Regulatory Affairs, PSX.

Imran Shamsi, Saad Abbasi and Syed Hafiz Ebad, Law Officers, SECP.

2019 C L C 1012

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

Miss ROZINA PARVEEN and 2 others----Applicants

Versus

GHULAM NABI through L.Rs. and others----Respondents

C.P. No. S-108 of 2018, decided on 29th June, 2018.

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

----Ss. 12(2) & 115---Suit for declaration and permanent injunction---Application under S.12(2) of C.P.C., before Trial Court during pendency of revision petition---Maintainability---Decree, setting aside of---Requirements---Litigation initiated by the attorney---Words "a person" contained in S. 12(2), C.P.C.---Scope---Pending revision petition against judgment and decree application under S.12(2), C.P.C. was moved before the Trial Court which was dismissed---Contention of petitioners was that they had not executed any power of attorney in favour of respondent---Validity---Revision petition was pending before High Court when application under S.12(2), C.P.C. was moved before Trial Court by the petitioners---Provision of S. 12(2), C.P.C. was not meant to provide another remedy to a party on its failure in appeal---Remedy under S.12(2), C.P.C. could be availed even by a person who never remained a party to the proceedings---Said remedy was confined only on the plea of 'fraud, misrepresentation or want of jurisdiction'---Question of fraud, misrepresentation and even want of jurisdiction could competently be raised even in appeal---Once a party to litigation had preferred an appeal despite remedy to challenge the decree on the grounds provided in S. 12(2), C.P.C. then said party would stand debarred from resorting to such course---Remedy under S. 12(2), C.P.C. was not available for the petitioners in circumstances---Court was not bound to frame issue and record evidence in each case---Application under S. 12(2), C.P.C. could be decided on the basis of available evidence and relevant record---Petitioners had not filed any suit against the attorney nor filed any criminal complaint---Law authorized the agent to contest proceedings on behalf of his principal---Plea of fraud and misrepresentation would not be available when such agent remained challenging the decree with which petitioners claimed to be aggrieved---Even litigation initiated by the agent was alive which the petitioners could competently take-over and might raise all pleas and grounds---Contents of application under S. 12(2), C.P.C. did not contain the specific allegation of fraud---Courts below had rightly dismissed the said application---No illegality or infirmity had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Noor Muhammad v. Muhammad Iqbal and 5 others 2014 CLC 1459; Tanveer Siddiqui and another v. Muhammad Rashid 2010 YLR 1851 and Warriach Zarai Corporations v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 rel.

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

----S. 12(2)---Application under S. 12(2), C.P.C., filing of---Competence---Application under S.12(2), C.P.C. could be filed even by a person who did not remain a party to the proceedings.

Muhammad Noman Jaffar for Petitioner.

Osaf Ali Shah for Respondents.

Abid Hussin Qadri, State Counsel.

2019 C L C 1032

[Sindh]

Before Syed Hasan Azhar Rizvi and Arshad Hussain Khan, JJ

JAWAID and 6 others----Petitioners

Versus

PROVINCE OF SINDH through Minister, Ministry of Local Government and 4 others----Respondents

Constitution Petition No. D-237 of 2013, decided on 30th July, 2018.

Karachi Building and Town Planning Regulations, 1979---

----Regln. 26, Sched. D, Clause 3---Commercialization of residential plot---Requirements---Contention of petitioners was that commercialization in question had not been done in the prescribed manner---Validity---Commercialization/amalgamation/sub-division of any plot by allowing change of land use was prerogative of authorities and such powers could not be interfered but only if all the laws, rules, bye-laws and regulations issued from time to time by the competent authority had been complied with---Only requirement for the commercialization/amalgamation of any plot by allowing change was public notice published in one English and one Urdu leading daily newspaper calling for objection of the people of the vicinity who would be effected on that account---No such public notice was ever issued before alleged commercialization in the present case---Residents of the vicinity filed complaints against the commercialization of subject plot but they were neither heard nor any order/decision was passed on their complaints---Subject plot was commercialized illegally and malafidely, in circumstances---Neither no objection certificate for sale and advertisement of shops and flats for the project was issued nor building plan was approved---Issue before Ombudsman was with regard to payment of differential of conversion fee already paid by the respondents---Any order passed regarding commercialization of subject plot could not override the Constitution as well as mandatory provisions of law---Road where subject plots were situated was non-commercial and area in question was residential and no high-rise building was situated on the said road---Respondents had already filed civil suit for declaration and permanent injunction without impleading the petitioners as party who were the owners/occupants of plots situated in the same vicinity where subject plots were located---Respondents were restrained from raising any construction and/or utilizing the subject plots for any commercial purpose till disposal of said civil suit---Petitioners could approach to the Trial Court for impleading themselves as party in the suit---Constitutional petition was disposed of, accordingly.

2014 PLC (C.S.) 820; 2013 PTD 486; PLD 1995 Lah. 572 and 1999 MLD 3050 ref.

2011 SCMR 1023; PLD 2012 SC 774; PLD 2015 SC 212; 2017 MLD 1391 and 2012 SCMR 1000 distinguished.

1999 SCMR 2089 and 2013 SCMR 1665 rel.

Mohammad Vowda for Petitioners.

Rao Sarfaraz Ahmed for Respondent No.2.

Usman Shaikh for Respondent No.3.

Muhammad Haseeb Jamali and Yasin Morai for Respondents Nos.4 and 5.

Miran Muhammad Shah Addl. A.G.

Asadullah Lashari, State Counsel.

2019 C L C 1046

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

SIKANDAR ALI and 2 others----Applicants

Versus

BADDAR-U-DIN and 4 others----Respondents

Civil Revision Application No.66 of 2010, decided on 14th September, 2018.

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

----O.VII, R.11---Specific Relief Act (I of 1877), S.12---Rejection of plaint---Scope---Suit for specific performance on the basis of agreement to sell---Plaint of such suit could be rejected under O.VII, R.11, C.P.C. which provision did not place any such restriction, rather laid down that an incompetent suit must be buried if found falling within the ambit of O.VII, R.11, C.P.C.

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

----O.VII, R.11---Averments made in plaint, appraisal of---Principles.

Averments made in the plaint are to be taken as true and correct but this would not operate as a bar in exercise of the judicial power of appraisal of the plaint, which includes examination of document(s) attached thereto, towards legality thereof; even the developed legal proposition permits taking into consideration the un-denied facts and document(s), if produced by the defendants. Judicial power of appraisal of plaint even would permit the court to presume existence of certain fact, if so appearing from contents of plaint or documents, attached thereto.

Abdul Karim v. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 foll.

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

----O.VII, R.11---Powers of court under O.VII, R.11, C.P.C.---Object.

The object of powers conferred upon the trial court under Order VII, Rule 11, C.P.C. is that the court must put an end to the litigation at the very initial stage when on account of some legal impediments full-fledged trial will be a futile exercise.

Noor Din and another v. ADJ, Lahore and others 2014 SCMR 513 foll.

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

----Art. 79---Proof of execution of document---Principles---Provision of Art. 79 placed a complete prohibition for using in evidence any such document which was either not attested or attested as not per mandated by law and/or if the required number of attesting witnesses were not produced.

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

----Arts. 79 & 17---Sale agreement---Proof of execution---Principles---Agreement to sell attested by Notary Public was not the requirement of law---Notary Public could not be said to be an attesting witness to such agreement.

Zafar Iqbal v. Sher Muhammad and others 2003 YLR 673 foll.

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

----O.VII, R.11---Pleadings---Introduction of new witness---Principles.

Party would not only be bound by its pleadings but would not be permitted to prove beyond pleadings, therefore, plaintiff could not introduce second witness even at later stage of the trial. [p. 1052] G

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

----S.11---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Civil Procedure Code (V of 1908), O. VII, R.11---Contract, competency of---Two attesting witnesses---Requirement---Plaint, rejection of---Scope---Plaintiff purchased the suit land through an agreement to sell---Defendants were trying to sell the suit land to someone else, therefore, plaintiff filed suit for specific performance---Trial Court rejected the plaint---Plaintiff urging to introduce second witness at later stage---Scope---Validity---Suit land was undivided property---Even if agreement to sell had been signed on behalf of the co-sharers even then the alleged agreement to sell had not been executed by co-sharers---Agreement to sell could not be enforced legally as the same was not signed by two attesting witnesses---Revision petition was dismissed.

Abdul Karim v. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; Noor Din and another v. ADJ, Lahore and others 2014 SCMR 513; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Hafiz Tasaduq Hussain v. Muhammad Din and others PLD 2011 SC 241; Zafar Iqbal v. Sher Muhammad and others 2003 YLR 673 and Mst. Farzana Farrukh and others v. Administrator, Pakistan Defence Officers Housing Authority and others 2017 YLR 1275 rel.

Ghulam Dastagir Shahani for Applicants.

Habibullah Ghouri for Private Respondents.

Ameer Ahmed Narejo, State Counsel.

2019 C L C 1063

[Sindh]

Before Nazar Akbar, J

MAKHDOOM HUSSAM-UL-HAQ----Petitioner

Versus

Syed GHULAM MOHIUDDIN and 2 others----Respondents

Constitution Petition No.S-1295 of 2018, decided on 14th December, 2018.

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

----S.15---Civil Procedure Code (V of 1908 ), O. XLI, Rr. 25/27----Eviction of tenant---Personal bona fide need of landlord for his son---Scope---Powers of Appellate Court to remand the case---Scope ---Appellate Court remanded the case for adducing evidence of the son of the landlord for whom the rented premised was required---Petitioner/landlord contended that he required the rented premises in good faith for his son who had become a doctor ---Respondent/tenant contended that he needed three years as he was running school at the demised premises---Validity---Impugned order seemed to be contrary to the requirement of O. XLI, R. 25, C.P.C. whereby the Appellate Court had authority to remand the case for trial to the Court whose decree was being challenged by the aggrieved party but such authority had limited parameters---Such powers could be exercised only when the Appellate Court came to the conclusion that the Trial Court had (i) omitted to frame or try an issue , or (ii) to determine any question of fact essential to the right/title of the suit / proceedings---Appellate Court, in the present case, had not observed that the issue of personal bonafide need of the landlord was not properly framed nor it had even commented on the very fact that the issue had been decided contrary to evidence, instead it had framed an issue out of the context of the dispute before the Rent Controller----Need to produce son in evidence by the landlord for whom the premises was required had never been fatal for the case of the landlord seeking eviction of tenant on the ground of such need---Appellate Court had not commented on the orders passed by the Rent Controller but it had set aside the same through the remand order---Order of remand by Appellate Court in given facts of the case was contrary to the facts, law and the question raised by it as additional issue was neither essential for the "right decision" in the case on point of personal need of landlord---Such was outside the jurisdiction of the Rent Controller to decide whether doctor was eligible to start hospital in the premises in question---Impugned remand order was, therefore, patently illegal and Appellate Court had improperly exercised its jurisdiction---Appellate Court had failed to properly appreciate the evidence on record---Unusual long period of time could not be granted for vacating the premises in such matters---High Court set aside the impugned order passed by the Appellate Court and granted eight months time to the respondent to shift his school from the rented premises---Constitutional petition was allowed accordingly.

Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338 and Khawaja Muhammad Razzak v. Dr. Sultan Mehmood Ghouri and another 2007 SCMR 1866 ref.

S.M. Haider for Petitioner.

Ch. Jaffar Hussain for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2019 C L C 1081

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mrs. ROZINA ALI through attorney and others----Plaintiffs

Versus

KARACHI METROPOLITAN CORPORATION through Administrator and 4 others----Defendants

C.M.As. No. 250, 3405 of 2016 in Suit No.44 of 2016 and C.M.As. Nos. 5688 of 2016 and 16712, 16713 of 2017 in Suit No.841 of 2016, decided on 4th May, 2018.

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

----O.XXXIX, Rr.1 & 2---Karachi Building and Town Planning Regulations, 2002, Rgln. 18---Suit for declaration and injunction---Interim injunction, grant of---Nuisance---Plaintiff was aggrieved of running a private school by defendant in a residential property situated in the neighborhood of plaintiff---Plea raised by defendant was that usage of premises for educational purposes was not a commercial activity and it was permitted under Bye-laws of the Cantonment Board---Validity---College was being run on commercial basis which was stated in tenancy agreement---Business was not being run for imparting education and it was a commercial activity per se---Element of rendering service though was involved but rendering of education in such manner was purely commercial and business oriented---Defendant had not claimed the organization to be charitable or for that matter any subsidized or free education was being imparted for residents of the area and other students---Usage of premises was for commercial activity and was purely a commercial venture which was being run to make profits---Suit property was not converted either under Karachi Building and Town Planning Regulations, 2002 or under Cantonment Bye-laws, for commercial purposes and it remained a residential house---Neither formalities and procedures as provided under Karachi Building and Town Planning Regulations, 2002, were observed nor any such procedure under Cantonment Bye-laws had been adhered to---Plaintiff had made out a prima facie case, whereas balance of convenience was also in its favour and so also causing irreparable loss---Interim injunction was granted in circumstances.

Mst. Yawar Azhar Waheed through L.Rs. v. Khalid Hussain and others 2018 SCMR 76; Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others 2011 CLC 1866; Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; Messrs Shaheen Service Station v. City District Government, Karachi and others 2005 YLR 1895; Hussain Bux Memon v. Karachi Building Control Authority 2015 YLR 2448; Muhammad Ali Barry v. Muzaffar Ali Shah Order dated 10.2.2017 in Suit No.1425 of 2016-unreported; Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1999 Karachi 631; Arif and others v. Jaffer Public School 2002 MLD 1410; The City Schools (Private) Limited v. The Federation of Pakistan and others 2018 CLC Note 4 and Zeeshan Builders v. Karachi Building Control Authority 1992 MLD 2259 ref.

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

----S.91---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for declaration and injunction---Nuisance---Proof---Onus to prove---If a person is aggrieved by act and conduct of an immediate neighbor who is admittedly contravening statute or law, that first neighbor must prove through evidence that such act is an act of nuisance and only then a relief of injunction can be granted---Such proposition may be correct in a case wherein the immediate neighbor's act is permissible in law---Once the act complained of is admittedly outside the ambit of law and is a case of nuisance per se then aggrieved person must not be asked to prove it through evidence at trial necessarily.

Mubeen Lakho for Plaintiffs (in Suit No.44 of 2016).

Mehmood Sultan Khan Yousafi for Defendants Nos.1 and 2 (in Suit No.44 of 2016).

Abdullah Munshi for Defendant No.4 (in Suit No.44 of 2016).

Jamal Bukhari for Defendant No.5 (in Suit No.44 of 2016).

Haider Waheed along with Ahmed Masood for Defendant No.6 (in Suit No.44 of 2016).

Ahmed Masood for Plaintiff (in Suit No.841 of 2016).

Jamal Bukhari for Defendant No.1 (in Suit No.841 of 2016).

Abdullah Munshi for Defendant No.2 (in Suit No.841 of 2016).

2019 C L C 1136

[Sindh]

Before Zulfiqar Ahmad Khan, J

MCB BANK LTD.----Plaintiff

Versus

Messrs DUTY FREE SHOP LTD.----Defendant

Execution Application No.69 of 2008 and C.M.As. Nos. 310, 311 of 2018, decided on 3rd October, 2018.

Civil Procedure Code (V of 1908)---

----O. IX, R. 9---Dismissal of application for non-prosecution / non-appearance of parties/counsel----Restoration application under O. IX, R. 9, C.P.C.---Sufficient cause, illustrations of---Adjudication of an application under O. IX, R. 9, C.P.C.---Scope----Prerequisite for restoration application made under O. IX R.9, C.P.C. was determination as to whether as to non-appearance was for sufficient cause---No hard and fast rule could be laid down to cover all possible causes of non-appearance and where non-appearance was not intentional, a strict view should not be taken to put a party out of the court---"Sufficient cause" ought to be elaborately interpreted with the object of advancing substantial justice---Sufficient cause would include all cases of human failing such as miscalculation, mistiming, misinformation or misunderstanding---Where parties had no notice of transfer of case from one court to another and counsel could not attend the right court, the same would be a case where sufficient cause to restore existed----Instance when a case was dismissed while lawyer was on his way to court would be held to be one where absence of counsel on account of "sufficient cause" would be implied---When a counsel while being present on court premises, merely on account of confusion between names of two judges waited in different courts, then the same would be an instance where sufficient cause existed to restore the matter.

2007 SCMR 866; 1982 CLC 767; PLD 1992 SC 577; 1989 CLC 1754 and PLD 1976 Kar. 872 rel.

Mushtaq A. Memon along with Asif A. Memon for Decree Holder.

Ms. Heer Memon for Judgment Debtor.

Kh. Muhammad Farooq for applicant/objector.

2019 C L C 1159

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

SHRIMATI AASHI----Petitioner

Versus

BHESHAM LAL and another----Respondents

C.T.A. No. S-39 of 2013 and C.P. No.S-1357 of 2017, decided on 2nd October, 2017.

Family Courts Rules, 1965---

----R. 6---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Suit for Judicial separation by Hindu husband---Parties were Hindu by religion---Territorial Jurisdiction---Scope---"Parties last resided together"---Scope---Question as to whether the Trial Court where family suit was filed under Hindu Law could exercise jurisdiction in view of facts, pleadings and Rules---Petitioner/wife contended that Family Court where husband had filed the suit, had no jurisdiction to entertain the same as spouses never last resided at the address given in the plaint---Respondent/husband contended that Family Court had rightly dismissed the application moved by the wife, raising objection on the territorial jurisdiction, as the same was filed just to buy time---Validity---Family Courts Act, 1964 and Family Courts Rules, 1965 were applicable to all Family Courts including but not limited to those who professed different religions ---Rule 6 of Family Courts Rules, 1965 determined the jurisdiction to try suit within local limits of which (a) the cause of action wholly or in part arose (b) where the parties resided or last resided together, provided that in the suit for dissolution of marriage and dower amount the Court within the local limits of which the wife ordinarily resided, would also have jurisdiction---Said proviso was primarily in consideration of the fact that Muslim woman who filed her suit for dissolution of marriage and dower amount would also be in position to avail the jurisdiction of local limits where she ordinarily resided but the same did not exclude the jurisdiction of the two situations regarding cause of action or last residence together---Husband being Hindu by religion, in the present case, had filed suit for judicial separation under Hindu Law and had attempted to exercise the first part of R. 6 of Family Courts Rules, 1965, however, husband had not pleaded that the parties last resided or ever resided at the address given in the plaint---Record revealed that in another case filed by the husband for recovery of dowry articles, he had shown different addresses of both---Party could not say to have resided at the place when it was not pleaded as such---Application by wife was not moved to buy time---High Court set aside the impugned order passed by the Family Court and restored the application filed by the wife---Family Court was directed to consider said application in the light of facts and circumstances de novo---Constitutional petition was partly allowed.

Jagdish R. Mullani for Petitioner.

Manzoor Hussain Subhopoto for Respondent.

Muhammad Ismail Bhutto A.A.G.

2019 C L C 1173

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

GHULAM MUHAMMAD----Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and 12 others----Respondents

Election Appeal No. 1 of 2018, decided on 12th March, 2018.

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

----S. 55 (3)---Civil Procedure Code (V of 1908), O. VI, R. 15---Sindh Local Government Act (XLII of 2013), S. 46---Sindh Local Councils (Elections) Rules, 2015, R. 62(3)---Election petition, verification of---Scope---Neither the election petition nor the documents attached there with had been verified---Election Tribunal dismissed the election petition---Validity---Provisions of Representation of the People Act, 1976 with regard to verification of pleadings and annexures were mandatory in nature---Section 62(3) of Sindh Local Councils (Election) Rules, 2015 was the same as S. 55(3) of Representation of the People Act, 1976 and the said prescription of the Rules were anchored by S. 46 of the Sindh Local Government Act, 2013---Requirements for verification of pleadings and annexures under Representation of the People Act, 1976 were identical ones as prescribed by Sindh Local Government Act, 2013 and Sindh Local Councils (Elections) Rules, 2015---Election Tribunal was devoid of any inherent powers to condone the presence of any violation---If an objection was raised with regard to maintainability of election petition for being in dissonance with mandatory provision of law then Election Tribunal would be required to decide that preliminary objection at the first instance---If the objection was sustained then Court was left with no option but to dismiss election petition---High Court concurred with the decision of Election Tribunal and upheld the same---Election Appeal was dismissed in circumstances.

Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others 2016 SCMR 1312 and Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 rel.

Syed Shafique Ahmed Shah for Appellant.

Allah Bachayo Soomro, Additional A.G.

2019 C L C 1198

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Mst. SURRIYA PARWEEN and 6 others----Appellants

Versus

MOINUDDIN SIDDIQUI and others----Respondents

IInd Appeal No. 37 of 2016, decided on 30th April, 2018.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 31, 23 & 24---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Judgment in appeal---Points for determination, non-framing of---Effect---Remand of case---Requirements---Trial Court decreed the suit but Appellate Court remanded the case for decision afresh---Validity---Trial Court had decided the case on merits after discussing entire evidence available on record---Appellate Court had failed to consider that there was no defence on record from the defendant who had failed to file written statement and proceeded ex-parte---Nothing was available on record that evidence recorded in the case was insufficient or inconclusive to justify remand of case---Case was not to be remanded in a routine, except when there was insufficient or inconclusive evidence on record---Evidence available on record was sufficient for the Appellate Court to pronounce judgment on merits---Impugned order passed by the Appellate Court being contrary to law was set aside---Appeal was to be deemed to be pending before the Appellate Court who should decide the same on merits---Second appeal was allowed in circumstances.

2005 SCMR 152 and PLD 2004 SC 10 rel.

M.S. Qureshi for Appellant.

Ghulam Mohiuddin and Chaman Lal for Respondent No.1.

Noor Z. Khattak for Respondent No.2.

Muhammad Aqil Zaidi for Respondents Nos.3 and 4.

2019 C L C 1206

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar and Yousuf Ali Sayeed, JJ

MAJMUA-TUN-NOOR "HAJJ" AND "UMRAH" SERVICE through Member----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and 16 others----Respondents

Constitutional Petition No.D-111 of 2018, decided on 2nd February, 2018.

Constitution of Pakistan---

----Arts. 199, 203-D & 203-G---Hajj Policy, 2018---Constitutional jurisdiction of the High Court---Scope---Plea of petitioner that criteria/qualifications for applicants laid down in Hajj Policy, 2018 were repugnant to Injunctions of Islam and Shariah, as they fettered the rights of aspirant pilgrims---Validity---By virtue of the provisions of Art. 203-G of the Constitution, the High Court had no jurisdiction to test repugnancy or contrariety of any law, provision of law or indeed a policy to the Injunctions of Islam as laid down in the Holy Quran and Sunnah---Such jurisdiction vested exclusively in the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court---Constitutional petition filed before the High Court challenging the Hajj Policy, 2018 was dismissed as being not maintainable.

Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2004 Lah. 145 and Zahid Rehman v. The State PLD 2015 SC 77 ref.

Muhammad Ali Napar for Petitioner.

Jamshed Ahmed Faiz, Assistant Attorney General; Ghulam Mustafa, Assistant Director (Hajj) Sukkur and Faayaz Ahmed Soomro for Respondent No. 15.

2019 C L C 1227

[Sindh]

Before Muhammad Faisal Kamal Alam, J

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

Versus

GHULAM RASOOL UNNAR and 4 others----Defendants

Suit No.1118 of 2005, decided on 13th July, 2018.

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

----Ss. 12, 19 & 22---Suit for specific performance of agreement to sell---Burden of proof---Third party interest created with regard to suit property---Effect---Compensation, grant of---Scope---Official documents---Presumption of genuineness---Question of burden of proof would lose its significance once evidence was brought on record---Rule of preponderance of evidence was applicable in civil matters---Court had to consider the entire evidence on record of all the parties in order to render correct conclusion---Agreement of sale had been executed between the parties---Defendant had received an advance amount from the plaintiff---Terms of agreement or contract were sacrosanct and should not be taken lightly---Defendant had created third party interest in the suit property---If decree for specific performance was awarded then plaintiff would have legal and practical difficulties and even it would cause hardship to the third party who had purchased suit land but had not been impleaded as a defendant---Plaintiffs at least were entitled for the alternative relief as also prayed by them---Defendant had not offered to return the advance amount received from the plaintiff---Plaintiff should be granted compensation under S.19 of Specific Relief Act, 1877, in circumstances---Advance amount was lying with the defendant for thirteen years and same had been utilized by him---Defendant was directed to return advance amount as well as compensation to the plaintiff in circumstances.

Chiragh (deceased) through legal heirs v. Ibrahim 2010 SCMR 1976; Rajmangal Misir and others v. Mathura Dubain and another AIR 1915 Allahabad page 383 and Timmavva Dundappa Budihal v. Channava Appaya Kanasgeri AIR (35) 1948 Bombay 322 ref.

Mst. Zainab v. Majeed Ali and another 1993 SCMR 356; Verse 282 of Surah AL Baqarah (2:282) and Liaquat Ali Khan v. Falak Sher PLD 2014 SC 506 rel.

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

----Art. 90---Official documents---Presumption of genuineness---Official documents had presumption of genuineness.

Naraindas C. Motiani for Plaintiffs.

Nemo. for Defendants.

2019 C L C 1243

[Sindh]

Before Salahuddin Panhwar, J

Mst. FAREEDA and another----Petitioners

Versus

Mst. KHALIDA and 2 others----Respondents

Constitutional Petition No. S-155 of 2011 and C.M.As. Nos.8317 of 2015, 2051, 1997 of 2018, decided on 7th March, 2018.

Civil Procedure Code (V of 1908)---

----S. 47 & O. XXIII, R. 3---Execution of consent decree--- Violation of terms of consent--- Parties had arrived at an out of court settlement whereby petitioners agreed to purchase suit property from respondent by depositing entire sale consideration within two months---Petitioners failed to deposit sale consideration and sought extension in time---Court issued writ of possession against petitioners---Plea raised by petitioners was that despite pending disposal of application for extension in time, Executing Court had issued writ of possession---Validity---Aggrieved party, in case of breach of any of the terms of compromise decree/order, was required to seek enforcement of such agreement (compromise decree) by filing an independent/fresh suit---Such breach required determination of subsequent events and conduct of parties which could not be determined by court, which did nothing but dispose of the matter on basis of compromise (consent of parties)---High Court declined to interfere in the matter---Application was dismissed in circumstances.

Peer Dil v. Dad Muhammad 2009 SCMR 1268; Muhammad Iqbal and others v. Khair Din through L.Rs. and others 2014 SCMR 33 and Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546 rel.

2019 C L C 1253

[Sindh]

Before Arshad Hussain Khan, J

PAKISTAN STATE OIL COMPANY LTD.----Plaintiff

Versus

CANTONMENT BOARD CLIFTON and another----Defendants

Suit No. 640 of 2008, decided on 26th October, 2017.

Constitution of Pakistan---

----Art. 23---Suit for declaration---Installation of billboards---Right to enjoy property---Scope---Plaintiff-company installed billboards to advertise its different products but authorities directed to remove the same---Validity---Right to enjoy property was not simply a right to possess and occupy the property but it would include the right to free ingress, egress and to reap benefit---Right of view or exposure to and from the particular property had significant importance in the commercial world---People would attract towards the shops and establishments when same were exposed to the general view---Any invasion or encroachment of such right to enjoy the property was not recognized---Premises might be more enjoyed in a multi-storeyed building when it had an over view of scenic landscaping of the city environment---Plaintiff could establish that the right to view and exposure of his commercial establishment was of some beneficial interest to him---No billboard or hoarding could be permitted to be installed on any public property by any authority under the garb of by-laws which militated the civil rights of the public at large---Suit was disposed of accordingly.

Clifton and Defence Traders Welfare Association through General Secretary v. President Clifton Cantonment Board, Karachi and 4 others PLD 2003 Kar. 495 ref.

Clifton Centre Association (CCA), Clifton, Karachi through General Secretary v. City District Government through Nazim-e-Aala, Municipal Building, Karachi and 3 others PLD 2003 Kar. 477; Campbell v. Mayor, Aldermen, and Councillors of the Metropolitan Borough of Paddington (1911) 1 King's Bench Division 869; Shela Zia's case PLD 1994 SC 693 and 'Costal Livina's case' in 1999 SCMR 2882 rel.

Asim Iqbal for Plaintiff.

Ashraf Ali Butt for Defendant No.1.

2019 C L C 1266

[Sindh]

Before Nazar Akbar, J

SALIM AHMED and another----Petitioners

Versus

NASIM IMTIAZ and 7 others----Respondents

Constitution Petition No.S-2036 of 2016, decided on 18th December, 2018.

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

----Ss. 15 & 21---Constitution of Pakistan, Arts. 4 & 23---Eviction of tenant---Bona fide personal need of landlord for business---Scope---Invocation of extra-ordinary constitutional jurisdiction of High Court after availing remedy provided under the relevant-law---Scope---Petitioner/tenant contended that respondent/landlord also owned other properties, through inheritance, to start his business---Validity---Filing of constitutional petition by tenant to delay his/her eviction was deprecated by High Court---High Court while seizing petition under Art. 199 of the Constitution against the judgment of Court or Tribunal of lower jurisdiction could not superimpose its opinion, merely because in its opinion the decision of Tribunal/Court was wrong---Fundamental right of a party guaranteed under Art. 23 of the Constitution could not be sacrificed against the party who had already exhausted his constitutional protection under Art. 4 of the Constitution by availing the remedy provided under the relevant law---High Court directed the petitioner to vacate the demised property within thirty days---Constitutional petition was dismissed accordingly

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246; Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846 and Jehangir Rustam Kakalia v. Haswani Sales and Services (Pvt.) Limited 2002 SCMR 241 ref.

Mst. Shamim Akhtar v. Zakaria Yousuf and others 1998 CLC 410; Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624; Muhammad Saleh v. Haji Abdul Khalique 2001 MLD 1817; Hafiz Ferozeuddin and 2 others v. Arshad Begum and 6 others 2010 CLC 365; Muhammad Younus v. Additional District Judge (VII), Karachi (South) and others 2018 YLR 1284; Allies Book Corporation through L.Rs. v. Sultan Ahmed and others 2006 SCMR 152 and Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117 distinguished.

Muhammad Haseeb Jamali for Petitioner No.2.

Ms. Shumaila Sagheer and Omar Pechoho for Respondents Nos.1 to 6.

Nemo for Respondents Nos.7 and 8.

2019 C L C 1283

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD SHARIF----Applicant

Versus

Mian SAJJAD AHMED----Respondent

Civil Revision No.S-111 of 1999, decided on 30th November, 2018.

Civil Procedure Code (V of 1908)---

----O.IX, R.13---Ex-parte decree---Court, duty of---Maintainability of suit---Determination---Ex-parte judgment and decree was passed by Trial Court against defendant and Lower Appellate Court dismissed appeal and maintained judgment of Trial Court primarily for the reason that after publication of Court notice in newspaper, service was properly affected and defendant did not contest the matter which resulted in passing of ex-parte judgment and decree which though was challenged after more than 2 years was time-barred and order passed by Trial Court was unexceptionable---Validity---Lower Appellate Court made an observation with regard to careless litigant in comparison with a vigilant and careful litigant but at the same time both the Courts completely failed to appreciate that even if a matter was proceeding ex-parte, it was obligation of the Court to see whether or not the claimant / plaintiff was entitled to any relief or remedy or not---Decisions of two Courts below were illegal, suffered from material irregularity as the Courts failed to exercise jurisdiction vested in them in a judicious and proper manner and the decisions were given in violation of mandatory provisions of law---If such ex-parte judgment and decree remained intact then it would be an abuse of process of Court and miscarriage of justice---High Court set aside ex-parte judgment and decree as well as orders passed by two Courts below and remanded the matter to Trial Court for decision afresh---Revision was allowed accordingly.

Abdul Jabbar Hashmani for Applicant.

Hanif Arain for Respondents call absent.

2019 C L C 1311

[Sindh]

Before Fahim Ahmed Siddiqui, J

Mst. FARHAT----Petitioner

Versus

UMAIR HANIF GHANCHI and others----Respondents

Constitutional Petition No. S-1831 of 2015, decided on 29th November, 2017.

Convention on Civil Aspects of International Child Abduction, 1980---

----Arts. 8 & 10---Custody of minor---Parental abduction---Yellow warrants---Scope---Welfare of minor--- Parties were separated husband and wife and dispute between them was with regard to custody of minor child--- Petitioner sought issuance of yellow and red warrants against her husband for recovery of her minor child from foreign country---Validity---Intention of petitioner was not to get her husband arrested but she was interested in issuance of yellow notice for minor child---Purpose of yellow notice was to get help of Interpol for tracing and locating of a missing person including a minor---Minor was not missing and had traveled to UAE earlier with his father---If it amounted to 'parental abduction' then Hague Convention on Civil Aspects of International Child Abduction would play a part in bringing minor back to Pakistan---When respondent was not wanted in any criminal case and there was no treaty between Pakistan and UAE regarding the issue, order of issuance of red and yellow notices had become infructuous---Welfare of minor was his staying in Dubai and would be more beneficial for his future---While approaching court in Dubai, petitioner also putforth her case by showing her intention to keep minor in Dubai and for same purpose, she demanded for provision of a dwelling house for minor and only certified copy of his passport---Even in transnational child custodial cases, best interest of child could not be overlooked---Petition was dismissed in circumstances.

PLD 2004 SC 1; 2015 SCMR 731; PLD 2007 Lah. 293; 1988 SCMR 1804 and 1989 MLD 2209 ref.

Nauman Jamali for Petitioner.

Khawaja Shams-ul-Islam along with Shehzad Mehmood for Respondent No.1.

2019 C L C 1323

[Sindh]

Before Nazar Akbar, J

FOZIA RAHAT----Applicant

Versus

MASOOD AHMED and others----Respondents

Civil Revision Application No. 76 of 2015, decided on 10th January, 2019.

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

----O. I, R. 10 & O. XLI, R. 20 & S. 96---Suit for declaration---Appeal---Impleadment of party as co-appellant---Amendment of appeal---Effect---Applicants filed application for impleadment in the appeal which application was accepted and they were impleaded as co-appellants---Validity---Party could be impleaded at any stage even in appeal as appeal was continuation of suit---Applicants could be impleaded in appeal if they had bona fide interest in the result of appeal---Applicants were to be allowed to join as respondents in the appeal and not as appellants---If applicants were aggrieved by the order impugned in appeal then they could file an appeal even if they were not party to the suit subject to law of limitation---Applicants, in the present case, were not necessary party in whose absence an effective judgment in appeal could not be delivered by the Appellate Court---Neither there was any order to amend the appeal by the newly added co-appellants nor an appeal could be amended suo motu or at the will of appellants---Amended appeal was to be considered from the date of its presentation---Decree impugned in the appeal was not even binding on the applicants as they were not party to the suit---High Court observed that purpose for filing of application for impleadment was to delay the decision of appeal on merits---Impugned order passed by the Appellate Court was set aside---Appellate Court was directed to decide the appeal on merits within one month---Revision was allowed, in circumstances.

Muhammad Akhtar others v. Abdul Hadi and others 1981 SCMR 878; Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Muhammad Shahban and others v. Falak Sher and others 2007 SCMR 882 and Ghulam Ahmed Chaudhry v. Akbar Hussain (deceased) through his LR's and another PLD 2002 SC 615 distinguished.

Ghulam Ahmed Chaudhry v. Akbar Hussain (deceased) through his LR's and another PLD 2002 SC 615 rel.

(b) Appeal---

----Appeal was continuation of suit.

(c) Appeal---

----Appeal could not be amended suo motu.

Ms. Shahida Bano for Applicant.

Muhammad Saleem Khan for Respondent No.1.

Abdul Hadi for Respondents Nos.2 to 5.

Respondent No.6 in Person.

2019 C L C 1339

[Sindh]

Before Nazar Akbar, J

Messrs PAKISTAN REINSURANCE COMPANY LIMITED through Secretary----Appellant

versus

TRUSTEE OF PORT OF KARACHI (KPT)----Respondent

IInd Appeal No.85 and C.M.As.Nos. 7103 and 7104 of 2014, decided on 22nd November, 2018.

Civil Procedure Code (V of 1908)---

----O. XXIX, R. 1---Suit for declaration on behalf of company---Recording of evidence---Procedure-Suit was dismissed on the ground that the person who appeared in the witness box for evidence on behalf of company was not an authorized person---Validity---Defendant in written statement had not challenged the maintainability of the suit for want of mandatory requirement of O. XXIX, R. 1, C.P.C.---Even issue for maintainability of suit was not framed by the courts below---Plaintiff-company was not required to hold a meeting of Board of Directors to decide by a Resolution as to who and how many would be witnesses in a particular suit to appear on behalf of the company---Courts below had erred in law while passing the impugned judgments and decrees---Matter was remanded to the Trial Court with the direction to decide the same afresh on merit on the basis of evidence available on record---Second appeal was allowed, in circumstances.

Ittehad Chemicals Ltd. v. VIIth Additional District and Sessions Judge and others 2010 CLC 599 ref.

AIR 1991 Delhi 25 and Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 distinguished.

Sikandar Khan for Appellant.

Abdul Razzaq for Respondents.

2019 C L C 1371

[Sindh]

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

MUSLIM COMMERCIAL BANK LIMITED through duly Constituted Attorney----Appellant

Versus

SAJIDA NAQI RIAZ and others----Respondents

High Court Appeal No. 404 of 2016, decided on 12th October, 2018.

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

----O. VII, R.11 & 2(2)---Rejection of plaint---Adjudication of application for rejection of plaint---Inherent powers of the Court---Scope---While examining a plaint for rejection under O. VII, R. 11, C.P.C., it was firstly and primarily the averments of the plaint that were looked into---While "rejection of plaint" and "dismissal of suit" were two distinct concepts with different consequences, but while examining a plaint for the former, the Court retained its inherent powers for the latter.

Haji Abdul Karim v. Florida Builders PLD 2012 SC 247 rel.

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

----O. I, R. 10(2)----Parties improperly joined to a suit---Striking out of such parties from the suit---Exercise of power under O. I, R. 10(2), C.P.C.---Nature---Scope---Purpose of an order under O. I, R. 10(2) of the C.P.C. was primarily to address mis-joinder of parties and that too, as a step towards adjudication, and it was not to be the formal expression of adjudication by itself, which expression should be in form of a decree.

Corporation of Calcutta v. Radha Krishana Devi AIR (39) 1952 Cal. 222 and Manohar Lal v. Roshan Lal AIR 1938 Lah. 799 rel.

Khalid Mehmood Siddiqui for Appellant.

Noman Jamali for Respondent Respondents Nos.1 and 2.

Nemo for Respondents Nos.3 to 6.

Muhammad Khalid Hayat for Respondent No.7.

Nemo for Respondents Nos. 8 and 9.

2019 C L C 1384

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

RASHID----Applicant

Versus

Mst. FARAH NAZ----Respondent

Family Civil Transfer Application S-28 C.M.A. No. 2245 of 2016, decided on 27th February, 2018.

Family Courts Act (XXXV of 1964)---

----S. 25-A---Application for transfer of case---Bias in a judge---Scope---General allegation---Appropriate forum for instituting transfer application---Petitioner/defendant contended that Presiding Officer was bias as he turned down his request for adjournment and expressed to decide the case in a week---Validity---No corroboration was available to support said version of petitioner---Allegation of petitioner pertaining to the attitude of Presiding Officer was merely a general statement---Transfer of matter from one Court to another Court could be granted in exceptional circumstances only in the interest of justice---Mere allegation of bias in Presiding Officer in a generalized statement was not sufficient---Issue of bias being a very serious matter and must be pleaded by applicant with specific particulars supported by plausible corroboration---Appropriate forum for instituting transfer application was District Court and there was no reason , in the present case, to move the High Court for the purpose---Transfer application was dismissed accordingly.

Government of N.W.F.P though Chief Secretary and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104; Asif Ali Zardari and another v. The State PLD 2001 SC 568 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

None present for Applicant.

Wali Muhammad Jamari, Assistant A.G. for Respondents.

2019 C L C 1410

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD AFSAR----Petitioner

Versus

MUHAMMAD ANWAR and another----Respondents

Constitution Petition No. S-75 of 2012, decided on 20th February, 2018.

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

----S.15---Civil Procedure Code (V of 1908), O.XLI, R. 27---Ejectment application---Denial of tenancy by the occupant/tenant---Pendency of civil suit---Non-production of proof of entitlement by tenant---Effect---Non-disposal of application for additional evidence under O. XLI, R.27, C.P.C. by the Appellate Court---Legality---Petitioner/landlord contended that Appellate Court had wrongly set aside eviction order passed by the Rent Controller as tenant failed to prove his entitlement regarding rented premises---Tenant contended that he was in possession of the premises being shareholder/owner and in such regard civil suit was pending between the parties---Validity---Record revealed that tenant could not produce any document before the two courts below regarding his claim over the premises-Tenant, however, admitted that he was in possession of a portion of the premises since long but he could not substantiate his right of possession and he had no title document in his favour---Such occupant, by law would be considered as "tenant"---Non-disposal of the application under O. XLI R. 27, C.P.C. by the Appellate Court would not make any difference as giving permission for additional evidence was discretion of the Court and non-disposal of such application transpired that Appellate Court had not used its discretion in favour of the tenant---Fact that tenant had initiated civil proceedings by filing suit to establish his right would make no difference, for as long as the tenant had not succeeded in establishing his right before the competent court , his status would remain as "tenant"---If tenant succeeded in getting any relief from the competent civil court, he could seek possession of the property in question under the decree so obtained, therefor, mere pendency of civil suit was not a ground for refusal of the ejectment of tenant---High court set aside the impugned order passed by Appellate Court---Constitutional petition was allowed accordingly.

Saifullah and others v. Ch. Ghulam Ghous 2000 CLC 1841; Rafique Ahmed v. Ashok Kumar and 5 others 2017 CLC 317; Shameem Akhtar v. Muhammad Rashid PLD 1989 SC 575; Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012; Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 and Maqbool Ahmed Siddiqui through Attorney v. Khaliq Iqbal Zuberi and 3 others 2017 YLR Note 211 ref.

Gulab Rai C. Jessrani for Petitioner.

Niaz Ahmed M. Sheikh for Respondent No.1.

Ameer Ahmed Narejo, State Counsel.

2019 C L C 1436

[Sindh]

Before Fahim Ahmed Siddiqui, J

NOMAN BUTT----Petitioner

Versus

Mst. AQSA and 3 others----Respondents

Constitutional Petition No. 110 of 2017, decided on 6th September, 2018.

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

----S. 7---Family Courts Rules, 1965, R. 6---Suit for maintenance---Territorial jurisdiction---Petitioner assailed judgment and decree passed by Trial Court on the ground of having no territorial jurisdiction to entertain the suit---Contention of petitioner was that wife used to reside at place G and she never ordinarily resided at place K and that as per R. 6 of Family Courts Rules, 1965, the wife could not file a suit for maintenance from the place of her ordinary residence---Validity---Petitioner himself had approached the Family Court at place G with a plaint but the said court directed him to approach the Court having jurisdiction at place K---Petitioner having not challenged said verdict before any forum, could not be allowed to reopen an already settled matter, under S. 7 of Family Courts Act, 1964, a plaint for dissolution of marriage could contain all claims including maintenance, meaning thereby, that if a wife filed suit for dissolution of marriage from the place of her ordinary residence, she could combine the prayer of maintenance along with other prayers---If contention of petitioner was admitted that R. 6 of Family Courts Rules, 1965 did not allow the wife to file a suit for maintenance from the place of ordinary residence, then it would be a contradictory view as to a clear-cut provision provided under first proviso of S. 7, Family Courts Act, 1964---Rule 6 was a beneficial rule framed with intention to provide convenience to a wife, separated from her husband, as such, the relief given to a wife under said Rule could not be stretched in favour of husband by forcing her to file a suit for maintenance at his place of residence---Suit for maintenance was competently filed---Constitutional petition was dismissed.

Mst. Taj Muhallah alias Taj Bibi v. Faquir Shah and another 1996 CLC 365 distinguished.

2017 CLC 8; PLD 2002 SC 452 and PLD 2012 SC 661 ref.

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

----S. 7---Place of institution of suit---Scope---Suit can be filed where the cause of action wholly or in part has risen or where the parties are residing---Suit under proviso to S. 7, can be filed by the wife at place of her ordinary residence---If a woman is residing at some place ordinarily after leaving or expelled from the marital abode, she is entitled to file a suit for dissolution of marriage at the place where she is ordinarily residing---Husband was duty bound to maintain his wife/children even if they are residing somewhere else ordinarily.

(c) Interpretation of statutes---

----Rules framed under statute may provide certain mechanism but they do not have overriding effect upon the statutory provision.

Manzoor Hamid Arain for Petitioner.

S. Kh. Muhammad Azeem for Respondents Nos.1 and 2.

2019 C L C 1444

[Sindh]

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

CDR (R) MANSOOB ALI KHAN and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.P. No. D-846, D-1360, D-2082 of 2015, D-6171, D-6546 of 2016, D-284, D-499 of 2017, H.C.A. No. D-348, D-376 of 2016 and D-149 of 2017, decided on 11th December, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Company registered under Companies Ordinance, 1984 funded by Federal Government or Provincial Government and/or fully controlled or owned by Federal or Provincial government is subject to jurisdiction of High Court and a writ is maintainable against such company.

Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274 rel.

(b) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 199(1)(a)(ii) & (5)---Statutory corporation---Constitutional jurisdiction of High Court---Scope---Appellant company was aggrieved of order passed by Single Judge of High Court declaring petitions filed by respondents as maintainable---Plea raised by appellant company was that it (Company) was not under control of Federal Government and could not be construed as "person" in terms of Art. 199(5) of the Constitution---Validity---Appellant company fell within defined category of 'person' performing functions in connection with affairs of Federation under Art. 199(1)(a)(ii) read with Art. 199(5) of the Constitution---High Court had jurisdiction to intervene under Art. 199 of the Constitution---Division Bench of High Court declined to interfere in order passed by the Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Ali Azhar Khan Baloch and others v. Province of Sindh 2015 SCMR 456; PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362; Nasiruddin Ghouri v. Federation of Pakistan 2010 PLC 323; Pakistan Telecommunication Company Ltd v. Iqbal Nasir PLD 2011 SC 132; Masood Ahmed Bhatti v. Federation of Pakistan 2012 PLC (C.S.) 470; Pir Bux v. Chairman PLD 1987 SC 145; Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423; Jane Margret William v. Abdul Hamid Mian 1994 SCMR 1555; Capital Development Authority v. Khuda Baksh and 5 others 1994 SCMR 771; Shams-ul-Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of Sindh and another v. Muhammad Ilyas and others 2016 SCMR 189; Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others 2015 PLC (C.S) 215; The Thal Engineering Industries. Ltd. v. The Bank of Bahawalpur Ltd. and another 1979 SCMR 32; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; Mian Asghar Ali v. Government of Punjab and others 2017 SCMR 118; Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274; Pir Imran Sajid and others v. Managing Director/General Manager Telephone Industries of Pakistan and others 2015 SCMR 1257; Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676; Muhammad Mubeen us Islam's case PLD 2006 SC 602; Muhammad Idrees's case PLD 2007 SC 681 and Muhammad Akram v. DCO Rahim Yar Khan and others 2017 SCMR 56 ref.

Ravi R. Pinjani for Petitioners (in C.Ps. Nos.D-6171 and D-6546 of 2016).

Mushtaque Hussain Qazi for Petitioner (in C.P.No.D-284 of 2017).

Syed Ansar Hussain Zaidi and Masood Ahmed Bhatti for Petitioner (in C.P. No.D-499 of 2017 and for Respondent in H.C.A. No.149 of 2017).

Faisal Mahmood Ghani for Respondents (in C.P. No.6171 of 2016).

Abdul Salam Memon for Petitioner (in C.P. No.D-846 of 2015).

Barrister Murtaza Wahab Siddiqui for Petitioner (in C.P. No.1360 of 2015).

Basil Nabi Malik for Appellants (in H.C.As. Nos. 348, 376 of 2016 and H.C.A. No. 149 of 2017) and for Respondents (in C.P. No.6546 of 2016).

Muhammad Arshad Khan Tanoli for Respondent/Port Qasim Authority (in C.P. No.D-284 of 2017, C.P. No. D-846 of 2015, C.P. No. D-No. 1360 of 2015 and C.P. No. D-2082 of 2015).

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 C L C 1472

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Messrs FINE ENTERPRISES TRADERS through Partner/Representative---Plaintiff

Versus

Messrs CONSTELLATION CO-OPERATIVE HOUSING SOCIETY LIMITED and 37 others---Defendants

Suit No. 1625 of 2016 and C.M.As. Nos.10471 of 2016, 5240 of 2017, 7134 of 2018, decided on 15th August, 2018.

Partnership Act (IX of 1932)---

----Ss. 19 & 22---Civil Procedure Code (V of 1908), O. XXX, R. 1---Suit by a partner on behalf of firm---Maintainability---Partner was not required to have an authority from other partners before initiating any action by way of a suit---No adverse consequence had been mentioned in the provision of O. XXX, R. 1, C.P.C. if compliance was not made---Partner could neither relinquish a claim of the firm nor withdraw a suit or proceeding without the authorization or endorsement of the other partners of a firm.

Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 and Zubair Ahmad and another v. Shahid Mirza and others 2004 MLD 1010 ref.

Mueen Qamar for Plaintiff.

Muhammad Nouman Jamali for Defendants Nos. 1, 3, 7, 8, 10, 11, 15, 23, 24 and 25.

Bhajandas Tejwani for Defendant No. 28.

Muhammad Aurangzaib for Defendants Nos. 4, 9, 17, 20, 21, 30 and 31.

Farhan Khaliq Anwer for Defendants Nos. 5 and 22.

2019 C L C 1478

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Mst. ABEERA KHAN----Petitioner

Versus

ADNAN JAMIL and another----Respondents

Constitution Petition No. S-2018 of 2017, decided on 13th July, 2018.

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

----S. 12---Interim custody of minor---Right of hizanat---Scope---Petitioner/mother assailed order of Family Court whereby the Court while disposing of application under S. 12 of Guardians and Wards Act, 1890 handed over the custody of two minor girls to their father---Validity---Both female minors aged about 7 and 5 years came within the right of hizanat bestowed to the mother under the law---Family Court ignored the relation of mother with the minors and did not even pass an order of meeting/visitation---Family Court based the impugned decision on the grounds that petitioner (mother) had no male relative in the city; that she did not own any house and that she had moved application to the school management for withdrawing the minors from school---Petitioner in her written statement had categorically given details of sources of income/funds she owned---Petitioner had moved an application in the minors' school for getting them admitted in another school nearer to her residence---Presumption drawn by Family Court about removal of minors from the jurisdiction of court was premature---Family Court had ample powers to restrain a party from initiating or taking any step/act contrary to the welfare of minors---High Court allowed the petition and directed Family Court to decide the application under S. 12 of Guardians and Wards Act, 1890 afresh in accordance with law, after hearing both the parties---Constitutional petition was disposed of accordingly.

Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2001 SC 1; 2017 YLR Note 279; 2015 YLR 1765; 2014 YLR 152; Yaqoob Ahmed v. Mst. Shaista and 2 others 2008 CLC 654 and 2017 CLC Note 59 ref.

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

----S. 25---Welfare of minor---Technicalities of law---Court, in case pertaining to custody of a child is not supposed to go into the technicalities of the law and had to decide the case keeping in view mainly the welfare of minor.

Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2001 SC 1 ref.

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

----S. 25---Welfare of minor---Quasi-parental jurisdiction---Unfettered powers---Scope---Court exercise quasi-parental jurisdiction in guardianship matters---Supreme consideration, in such context, is the welfare of minor and to achieve said purpose court has unfettered powers.

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

----S. 12---Interim custody of minor---Visitation---Real parents have an inherent right to meet and visit their children.

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

----S. 25---Welfare of minor---Paucity of mother---Scope---Non-availability of funds or paucity of the mother to maintain her children cannot be treated as a disqualification of mother to retain custody of her children, particularly during period of hizanat.

Yaqoob Ahmed v. Mst. Shaista and 2 others 2008 CLC 654 ref.

Afnan Saduzzaman Siddiqui for Petitioner.

Ghulam Asghar Pathan for Respondent No.1.

Ms. Yasmeen Sultana, State Counsel.

2019 C L C 1496

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

FAHAD ALI----Appellant

Versus

DISTRICT RETURNING OFFICER, DISTRICT SANGHAR and 5 others----Respondents

Election Appeal No.01 of 2017, decided on 14th March, 2018.

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

----Ss. 64 & 54---Sindh Local Councils (Election) Rules, 2015, Rr. 62(3), 64 & 18---Civil Procedure Code (V of 1908), O. VI, R. 15---Representation of the People Act (LXXXV of 1976), Preamble---Election petition---Filing of election appeal instead of election petition---Ignorance of law---Institution of wrong proceedings---Effect---Pleadings, verification of---Scope---Election appeal instead of election petition was filed which was dismissed being not maintainable---Validity---Institution of incorrect proceedings would disentitle the petitioner from the grant of relief sought---Plea of ignorance of law could not be construed or sustained as a bona fide excuse---Election Tribunal had no option but to dismiss any proceedings instituted which were not in due compliance with the mandatory provisions of applicable law---Requirements prescribed for verification of pleadings and annexures were mandatory in nature---Impugned order had been passed in due consonance with the law---No infirmity and illegality had been pointed out in the impugned order---Appeal was dismissed in circumstances.

Muhammad Ameen and another v. Jawaid Ali and 5 others 2017 YLR Note 429; Zaman and 2 others v. Muhammad Khan 2017 YLR 353; Cantonment Board Clifton through Cantonment Executive Officer v. Sultan Ahmed Siddiqui and 3 others 2016 CLC 919; Khushi Muhammad through L.Rs and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others 2016 SCMR 1312 and Lt. Col. (R) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 rel.

(b) Maxim---

----"Ignorantia legis neminem excusat"---Connotation----Plea of ignorance of law could not be construed or sustained as a bona fide excuse.

Appellant in person.

Irfanullah Khan Nagar for Respondents Nos.4 and 5 along with Respondents.

2019 C L C 1531

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

BOARD OF SECONDARY EDUCATION through authorized officer----Petitioner

Versus

PROVINCIAL OMBUDSMAN OF SINDH and 2 others----Respondents

Constitution Petition No. D-1057 of 2018, decided on 24th December, 2018.

Establishment of the Office of Ombudsman for the Province of Sindh Act (I of 1999)---

----S. 2(2)---Ombudsman, jurisdiction of---Contractual dispute---Petitioner was Board of Secondary Education and had entered into a rental agreement with respondent with regard to use of examination center--- Dispute was with regard to payment of balance amount for which respondent approached the Ombudsman---Complaint was decided in favour of respondent by Ombudsman and same was maintained by the Governor---Validity---Matter called into question determination of purely contractual issue i.e., quantum payable by petitioner to respondent pursuant to a rental contract---Amount of Rs.13,959,954/- was paid in regard to contract in question and amount of Rs. 4,886,631/- was not paid since petitioner did not consider same to be due under the contract---Issue was interpretation of contract and not that of any maladministration ancillary to a contract---High Court set aside orders passed by the Ombudsman and the Governor as assumption of jurisdiction by Ombudsman was erroneous and could not be sustained and same error of jurisdiction was maintained by the Governor's order---Constitutional petition was allowed accordingly.

Mst. Zamrad Begum and another v. Muhammad Rafiq Chaudhry and others 2017 CLC 1571; Capital Development Authority v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121; Capital Development Authority and another v. Zahid Iqbal and another PLD 2004 SC 99; Capital Insurance Company Limited v. Securities and Exchange Commission of Pakistan and others 2013 CLD 1075; Izhar Alam Farooqi v. Abdul Sattar Lasi and others 2008 SCMR 240 and Karachi Dock Labour Board v. Messrs Quality Builders Limited PLD 2016 SC 121 ref.

Abrar Hassan for Petitioner.

Meeran Mohammad Shah Assistant Advocate-General Sindh for Respondent Nos.1 and 3.

Barrister Alizeh Bashir for Respondent No.2.

2019 C L C 1557

[Sindh]

Before Nazar Akbar, J

SHAMIM BEGUM----Petitioner

Versus

AZIZUL HASAN KHAN and 2 others----Respondents

Constitutional Petition No. S-631 of 2010, decided on 8th February, 2019.

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

----Ss. 15 & 18---Ejectment of tenant---Change of ownership---Denial of relationship of landlord and tenant by the tenant---Default in payment of rent---Expression "or by such other mode" in S.18, Sindh Rented Premises Ordinance, 1979---Scope---Agreement of sale---Scope---Landlord purchased demised premises through sale agreement and requested the tenant for payment of rent to him---Tenant did not pay rent to the new owner---Eviction petition was moved for personal use and on the ground of default in payment of rent---Contention of tenant was that she had purchased the demised premises from its previous owner through agreement of sale---Eviction petition was accepted concurrently---Validity---Previous Landlord had an agreement of sale and registered general power of attorney in his favour executed by the original owner---Landlord had even authority to sell and mortgage the demised premises on the basis of registered irrevocable general power of attorney---Tenant had only an agreement of sale the execution of which had been denied by the original owner---Tenant had not filed suit for specific performance of agreement to sell to get such denial declared false and got her title perfected through due process of law---Agreement to sell in favour of tenant had been disputed by the original owner of demised premises---Landlord had discharged his burden to prove the relationship of landlord and tenant---Tenancy on service of notice under Section 18 of Sindh Rented Premises Ordinance, 1979 on the tenant was created by operation of law---Landlord was entitled to claim eviction of tenant on the ground of default as well as personal need---Use of phrase "or any other mode" in Section 18 of Sindh Rented Premises Ordinance, 1979 in favour of new owner did cover transfer of property by registered irrevocable power of attorney duly registered with Registrar of property when such power was coupled with sale agreement showing consideration---When tenant had claimed ownership on the basis of mere sale agreement and he/she had failed to establish the same then default stood proved in favour of landlord---Tenant was directed to vacate the demised premises within thirty days---Constitutional petition was dismissed in circumstances.

Rahmatullah vs. Ali Muhammad and another 1983 SCMR 1064 and Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 distinguished.

Iftikhar Javed Kazi for Petitioner.

Aamir Ashar Azeem for Respondent No.1.

IXth Rent Controller, Karachi for Respondent No.2.

1st Additional District Judge, Karachi East for Respondent No.3.

2019 C L C 1568

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

ZAHID HUSSAIN QURESHI----Petitioner

Versus

GOVERNMENT OF SINDH through Secretary and 4 others----Respondents

Constitution Petitions Nos.D-3251 of 2014, D-109 of 2011 along with C.Ps. Nos.D-2570, 2611 of 2012, 2011, 2322, 3758, 3770 of 2013, 625, 735, 1059, 1229, 1230, 1332, 1813, 1845, 2320, 2508, 2761 of 2014, 1007, 385, 551, 568, 1278, 1329, 1416, 1440, 1830, 2363, 2366, 2407, 2478, 2579, 2727, 3085, 3192, 3272, 3663, 3969, 4029, 4579, 4822, of 2015, 146, 469, 560, 666, 697, 996, 1248, 1320, 1378, 1380, 1970, 2916, 2977, 3361, 3362, 3714, 3715, 4007, 5160 5490, of 2016, 54, 85, 194, 490, 593, 660, 707, 857, 893, 943,1314, 1373, 1549 and 1728 of 2017, decided on 17th April, 2018.

Contract---

----Breach---Government contractors having not been paid for the services rendered---Effect---Contention of petitioners was that they had rendered services but no payment for the same had been made by the authorities---Validity---When Government through its functionaries entered into or awarded a contract to a private party or entity then there would be a reasonable and legitimate expectation that its functionaries would honour the agreed commitment unless there were sufficient reasons for revoking a contract and/or not making the payments---Contract in the present matter had not been revoked---Government was bound to honour the said contract---Breach of contract on the part of the State could be considered to be breach of statutory obligation and same was amenable to constitutional jurisdiction of High Court---If petitioners had carried out the work in the terms of the respective contracts then non-payment of admitted claims was unjustified and illegal---Authorities had breached the contracts and this act was violation of Art. 18 of the Constitution---Authorities were directed by the High Court to pay the undisputed monetary claims of petitioners within two weeks after completing the codal formalities---Constitutional petition was disposed of, accordingly.

Pakcom Limited and others v. Federation of Pakistan and others ("Pakcom's case") PLD 2011 SC 44; Nizamuddin and another v. Civil Aviation Authority and others ("CAA's case") 1999 SCMR page 467; [M/s. Pfizer Laboratories Limited v. Federation of Pakistan and others ("Pfizer's case") PLD 1998 SC 64; Agriculture Workers' Unions, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others ("Worker Unions' case") 1997 SCMR 66 and Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others ("Orient Power's case) 1998 CLC 1178 ref.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others ("Indus Trading case") 2016 SCMR 842 distinguished.

[The D.F.O. South Kheri and others v. Ram Sanehi Singh ("DFO's case") AIR 1973 SC 205; Khalid Mehmood v. Collector of Customs, Customs House, Lahore ("Khalid Mehmood's case") 1999 SCMR 1881; Messrs Farooqui Ice Factory, Gambat through Proprietor and 24 others v. Revenue Officer SEPCO (WAPDA, Ranipur, District Khairpur and 14 others ("Farooqui's case") PLD 2014 Sindh 443 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azan International Airport, Karachi and others ("Airport Services' case") 1998 SCMR 2268 rel.

Bhajandas Tejwani, Muhammad Iqbal Memon, Yousuf Ali, Ashok Kumar K. Jamba, Sajjad Muhammad Zangejo, Imtiaz Ali Soomro, Shahzado Dreho, Ali Gul Abbasi, Shabbir Ali Bozdar, Iftikhar Ali Arain, Azam Abro, Farhan Shaikh, Nisar Ahmed Bhanbhro, Waheed Bhanbhro, Rajkumar, Zafar Eidan Mangi, Ubedullah Malano, Waseem Ahmed for Petitioners.

Muhammad Saleh Bhutto for Respondents.

Liaqat Ali Sher, Additional Advocate General Sindh, Ahmed Ali Shahani, AAG. for Respondents.

2019 C L C 1592

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

TARIQ HUSSAIN----Appellant

Versus

SUBHAN ALI and 6 others----Respondents

Election Appeal No.41 of 2016, decided on 17th September, 2018.

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

----S.55---Sindh Local Councils (Elections) Rules, 2015, R.61---Representation of the People Act (LXXXV of 1976), S. 12---Conduct of Elections Rules, 1977, R. 3---Declaration of assets, filing of---Requirement---Scope---No requirement existed for filing declaration of assets and liabilities by a candidate who is contestant in a local government election under Sindh Local Government Act, 2013 and Sindh Local Councils (Elections) Rules, 2015---Requirement of disclosure of assets and liabilities as mentioned in Representation of the People Act, 1976 and Conduct of Elections Rules, 1977 could not be read into the scheme of Sindh Local Government Act, 2013 and its provisions, which are specially enacted for local bodies elections.

(b) Interpretation of statutes---

----Penal clause, absence of---Effect---Unless a penal provision is expressly mentioned either in statute itself or a rule made thereunder, a person cannot be penalized or disqualified on any assumption or by invoking a provision from some other statute.

(c) Maxim---

----Expressio unis est exclusio alterius---Express enactment shuts door to further implication---When a statute directs a thing to be done in a particular manner or by certain persons, then it should be done in the manner and by persons so mentioned.

Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354 rel.

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

----Ss. 23, 54, 55, 71 & Form-XVII---Sindh Local Councils (Elections) Rules, 2015, R. 61---Representation of the People Act (LXXXV of 1976), S. 76-A---Local bodies elections---Declaration of assets---Disqualification of returned candidate---Scope---Respondent was notified as successful returned candidate by Election Commission of Pakistan in local bodies elections---Appellant assailed elections and his petition was dismissed by Election Tribunal---Validity---For determining qualification or disqualification of returned candidate it was necessary to compare his declaration/disclosure of assets and liabilities which he was required to submit under S.23 of Sindh Local Government Act, 2013 after he was elected with that of his last declaration---If it was found that there was material difference in two documents only then appropriate order could be passed against returned candidate---Form-XVII of Sindh Local Government Act, 2013 in which respondent had declared his assets after being elected as a member in terms of S.23 of the Act, was not on record as same should have been produced by either of the parties as that document was in public domain---In absence of such information and particulars which were to be mentioned under declaration of assets as enjoined by S.23, controversy between parties could not be decided---Election Tribunal while exercising jurisdiction under Sindh Local Government Act, 2013 and Sindh Local Councils (Elections) Rules, 2015 could invoke provision of S.76-A of Representation of the People Act, 1976 for deciding matter before it---High Court set aside finding of Election Tribunal regarding qualification of respondent and remanded matter to Election Tribunal for decision afresh after giving opportunity to parties to lead evidence---Appeal was disposed of accordingly.

Rai Hassan Nawaz v. Haji Muhammad Ayub PLD 2017 SC 70; Ms. Shamuna Badshah Qaisrani v. Khuwaja Muhammad Dawood 2016 SCMR 1420; Ali Muhammad Marri v. Province of Sindh and others PLD 2017 SC 258; Khalid Ahmed Memon v. Deen Muhammad Talpur and 2 others 2016 MLD 1527 and Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 713 rel.

Syed Hafeezuddin v. Abdul Razzaq and other PLD 2016 SC 79; Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif and others PLD 2017 SC 692; Ch. Muhammad Yousaf Kaselia v. Peer Ghulam Mohy-ud-Din Chishti PLD 2016 SC 689 and Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema 2016 SCMR 763 ref.

Nisar Ahmed Bhanbhro for Appellant.

Kalandar Bakhsh Phulpoto for Respondent No.1.

Nemo for Respondents Nos.2 to 7.

Muhammad Aslam Jatoi, Assistant Attorney-General.

Ali Mutahir Shar, State Counsel.

2019 C L C 1623

[Sindh]

Before Muhammad Saleem Jessar, J

ABDUL SALAM----Applicant

Versus

MUHAMMAD SIDDIQUE and others----Respondents

Civil Revision Application No.133 of 2006, decided on 3rd September, 2018.

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

----S.12---Limitation Act (IX of 1908), Art.113---Registration Act (XVI of 1908), Ss.17 & 49---Suit for specific performance of agreement to sell---Limitation---Unregistered document---Effect---Period of limitation for filing a suit of specific performance of contract was three years from the date fixed for the performance under the agreement or if no such date was fixed then when the plaintiff noticed that performance had been refused by the defendant---Alleged agreement to sell was executed on 23-09-1982 wherein no date for its performance had been fixed---Period of limitation, in the present case, would start from the date when the plaintiff noticed that performance had been refused by the defendant---Plaintiff had not furnished any satisfactory explanation as to how he could not notice the refusal on the part of defendant during the long period of sixteen years---Suit of plaintiff was based on a sale agreement which was only a receipt in the present case---If said receipt was a sale agreement then it was not admissible in evidence as it did relate to sale consideration of Rs. 30000/- despite that it had not been registered---Every document having value of more than Rs. 100/- was required to be compulsorily registered and the document falling short of the requirement would not operate to create, declare, assign, limit or extinguish in present or future any right, title or interest whether vested or contingent to or in immovable property---If document was not registered as required under S.17 of Registration Act, 1908 then such document could not be tendered in evidence---No legal ground/defect had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Tariq Hussain v. The State Officer 1988 CLC 473; Arshan Bi v. Maula Bakhsh 2003 SCMR 318; Mst. Bano alias Gul Bano v. Begum Dilshad Alam 2011 CLC 88; Meer Hassan alias Ameer Hassan v. Federation of Pakistan through Secretary Ports and Shipping, Islamabad 2009 YLR 1827; Raees Ghulam Sarwar v. Mansoor Tariq Zaidi PLD 2008 Kar. 458; Khalil Ahmed v. Mst. Azmat Ara (widow) 2014 YLR 1782; Habibullah v. Muhammad Iqbal Khan 2014 CLC 489; Muhammad Shabbir v. Mrs. Farha Bibi 2010 CLC 1603 and Khursheed Ahmed Butt v. Captain Feroze Aftab 2011 CLC 664 ref.

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

----S.12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Limitation---Period of limitation for filing a suit for specific performance of contract was three years from the date fixed for the performance under the agreement or if no such date was fixed then when the plaintiff noticed that performance had been refused by the defendant.

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

----S.115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court under S.115, C.P.C. has very limited scope and it can be exercised only in those cases where the subordinate court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law---Findings of facts recorded by the First Appellate Court based on appraisal of evidence and raising of inferences in its discretion could not be interfered with under S.115, C.P.C. merely because of the reason that a different view was also possible to be taken.

Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817; Haji Mohammad Din v. Malik Mohammad Abdullah PLD 1994 SC 291 and Shahbaz Rasool and 4 others v. Aamir Imran and 7 others 2011 CLC 1941 rel.

Mohammad Ayoub Chandio for Applicant.

Farhan Zia Abrar for Respondents Nos.1 and 2.

2019 C L C 1639

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

ENERGY SOLUTION (PVT.) LTD.----Petitioner

Versus

The PRESIDENT OF PAKISTAN through Director (Legal) and another----Respondents

Constitutional Petition No. D-2011 of 2018, decided on 24th December, 2018.

Federal Ombudsmen Institutional Reforms Act (XIV of 2013)---

----Ss.2, 14 & 24---Insurance Ordinance (XXXIX of 2000), Ss.122, 127 & 130---Federal Insurance Ombudsman, orders of---Appeal before the President of Pakistan---Scope---Petitioner was aggrieved of order passed by the President of Pakistan in setting aside orders of Federal Insurance Ombudsman---Plea raised by petitioner was that the President of Pakistan was not competent forum for appeal and that same should have been filed before the Federal Insurance Ombudsman---Validity---Provisions of Federal Ombudsmen Institutional Reforms Act, 2013, insofar as inconsistent with provisions of Insurance Ordinance, 2000, would have primacy over Insurance Ordinance, 2000---Forum delineated vide Federal Ombudsmen Institutional Reforms Act, 2013 for maintaining a challenge to order of Ombudsman was the President of Pakistan---Manner prescribed in law to assail an order of Ombudsman was precisely that which was employed by respondent and same culminated in order in question---High Court declined to interfere in order passed by the President of Pakistan as it did not suffer from any defect in jurisdiction---Constitutional petition was dismissed in circumstances.

Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and others 2001 SCMR 838 and Mir Dost Muhammad v. Government of Balochistan and others PLD 1980 Quetta 1 ref.

Peshawar Electric Supply Corporation Limited v. Wafaqi Mohtasib PLD 2016 Pesh. 185 rel.

Shaiq Usmani along with Ms. Amna for Petitioners.

Liaqat Hussain Sheikh Assistant Attorney General for Respondents.

Sattar Mohammad Awan for Respondent No.2.

2019 C L C 1653

[Sindh]

Before Salahuddin Panhwar, J

Mrs. GULNAR and 9 others----Plaintiffs

Versus

KARACHI METROPOLITAN CORPORATION through Its Administrator and 4 others----Defendants

Suit No.1918 of 2015, decided on 20th May, 2016.

(a) Administration of Justice---

----Protection of rights---Utilization of personal property---Private rights are not only to be protected by public functionaries but also by beneficiary himself/herself---Rights and obligations are strongly interlinked with each other hence a balance has always to be maintained while demanding rights because a legal right even shall not earn a license to avoid obligations which one has towards others---Owner does have absolute rights to enjoy his property but manner and use thereof shall not be at cost of others---Lawful act, if causing prejudice and harm to rights of others shall not leave aggrieved without a remedy but he may bring a lis.

(b) Karachi Building and Town Planning Regulations, 2002---

----Rglns. 18-4.2.1 & 18-4.2.8---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Utilization of land, meant for residential use into commercial purposes---Illegal conversion---Increase in nuisance---Plaintiffs were aggrieved of conversion and utilization of residential premises for commercial purposes on grounds that it had increased nuisance in the vicinity and made it difficult for plaintiffs to access their homes---Validity---No order in favour of defendant existed for use of residential plot for commercial/educational purposes by any of competent authorities---Inconvenience to defendant itself would not prevail over interests and rights of neighboring people or those using such role and same amounted to giving preference to interests of an individual with that of public-at-large---Once violation of Karachi Building and Town Planning Regulations, 2002 was established, Court was not to be reluctant in disposing of suit if reliefs sought were only to extent of enforcement of such law reaffirming already declared question of or principle of law by Supreme Court---High Court directed the authorities/respondents not to use premises after expiry of agreement period except for residential purpose only---Suit was decreed accordingly.

Amir Ali v. Indus Entertainment (Pvt.) Ltd. 2004 YLR 1576; Brookes Pharmaceutical Laboratories v. KBCA 2012 CLC 131; Adershir Cowasjee v. Muhammad Naqi PLD 1993 Kar. 631; Mrs. Nasreen Tariq v. Abdul Basit 2013 MLD 1388; Arif v. Jaffar Public School 2002 MLD 1410; Asghar Allauddin v. Lahore Lycium School 1999 CLC 66; Lahore Grammar School v. Hameeda Begum PLD 1996 Lah. 442; Ardeshir Cowasjee v. Muhammad Naqi PLD 1993 Kar. 631; Naz Shaukat Khan v. Yasmin R. Minhas 1992 CLC 2540; Haji Allah Rakha v. Faisalabad Development Authority 2003 SCMR 1756 and Lawrance v. Coventry 2014 SCMR 1069 ref.

Sarmad Hani for Plaintiffs.

Dr. Muhammad Aslam along with Ishrat Ghazali for Defendant No.1.

Ms. Saba Siddiqui for Defendant No.2./SBCA

Asfandyar Kharal for Defendants No.5.

Abdul Jalil Zubedi A.A.G.

2019 C L C 1670

[Sindh]

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

MUSSAWAR ALI----Petitioner

Versus

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

High Court Appeal No. 317 of 2018, decided on 8th October, 2018.

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

----S.9---Civil Court---Jurisdiction---Scope---Civil Court is Court of ultimate jurisdiction with regard to civil right, duty or obligation unless the jurisdiction is either expressly or impliedly barred---Provision of S.9, C.P.C. only confers jurisdiction upon Court and does not grant a substantive right of action.

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

----Ss. 21, 42 & 54---Contract Act (IX of 1872), S.23---Civil Procedure Code (V of 1908), O.VII, R.11---Void agreement, enforcement of---Dismissal of suit---Plaintiff sought specific performance of agreement whereby he paid amounts to defendants on behalf of different persons for securing government jobs for them---Single Judge of High Court dismissed the plaint as the same was not maintainable---Validity---Such agreement / Iqrarnam executed between the parties was hit by S.23 of Contract Act, 1872, as well as S.21 of Specific Relief Act, 1877, which made it void and illegal and could not be enforced---Single Judge of High Court had rightly dealt with every aspect of the matter and had rightly concluded in order in question that suit was not maintainable---Division Bench of High Court declined to interfere in the judgment passed by Single Judge of High Court, as the suit filed by plaintiff was barred by law---High Court appeal was dismissed in circumstances.

Hameedullah and 9 others v. Headmistress, Government Girls School, Chokara District Karak and 5 others 1997 SCMR 855 ref.

Aijaz Ali Bhutto for Appellant.

2019 C L C 1697

[Sindh]

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

KARACHI METROPOLITAN CORPORATION through Mayor and another----Appellants/Petitioners

Versus

Messrs ZAFAR MEMORIAL EDUCATION SOCIETY KARACHI through President----Respondent

C.M.A. No.1330 of 2017 in High Court Appeal No. 219 of 2017, decided on 24th December, 2018.

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

----S.5---Condonation of delay---Expression 'sufficient cause'---Scope---Power of court to condone delay under S.5 of Limitation Act, 1908 is a matter of discretion---What may constitute 'sufficient cause' in one set of circumstances, may not do in another set of circumstances---Events/Causes/Reasons that constitute 'sufficient cause' under S.5 of Limitation Act, 1908 cannot and should not be laid down by hard and fast rules lest a matter of discretion is converted to a rigid rule of law---Expression 'sufficient cause' has always been construed liberally depending on circumstances of each case.

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

----S.12---Limitation Act (IX of 1908), S.5---Civil Procedure Code (V of 1908), S.96---Appeal---Condonation of delay---Departmental approval---Suit for specific performance of allotment of amenity plot for purposes of running a school was decreed in favour of plaintiff and against Metropolitan Corporation---Appeal was barred by 04 days and condonation of delay was sought on grounds of delay in process of obtaining requisite approval from competent authority---Validity---Delay was inherent in impersonal machinery of government departmental procedures and approvals---Plea of departmental delay by Government for purposes of S.5 of Limitation Act, 1908 was peculiar to Government as opposed to an ordinary litigant---Such plea could not be rejected outright and required to be considered on its own merits---Division Bench of High Court condoned delay of 04 days by Government as explanation of delay offered by Metropolitan Corporation was treated as "sufficient cause"---High Court directed the Chief Executive of Metropolitan Corporation to initiate departmental proceedings against officials responsible for such delay---Application was allowed in circumstances.

Civil Aviation Authority v. Providence Aviation (Pvt.) Ltd. 2000 CLC 1722; Muhammad Malik v. Chairman, Mirpur Development Authority 1997 CLC 480; Federation of Pakistan v. Jamaluddin 1996 SCMR 727; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad PLD 2015 SC 212 and Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 ref.

Superintendent of Central Excise, Lyallpur v. Faqir Muhammad PLD 1958 SC 167; Chief Land Commissioner Punjab v. Makhdoom Syed Nazeer Hussain Shah 1975 SCMR 352; Secretary to Government of N.W.F.P., Agriculture Department v. Abdul Rehman, Forest Contractor 1983 SCMR 461; Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119; Deputy Collector of Customs v. Muhammad Tahir PLD 1989 SC 627; Town Committee, Kot Abdul Malik, District Sheikhupura v. Province of Punjab 2001 YLR 2032; Government of Punjab v. Muhammad Rafique Shah 2013 SCMR 1468 and State of Haryana v. Chandra Mani AIR 1996 SC 1623 rel.

Muhammad Shaban Solangi for Appellants/Petitioners.

Yawar Farooqui and Irfan Ali Memon for Respondent.

2019 C L C 1721

[Sindh (Hyderabad Bench)]

Before Aziz-ur-Rehman and Fahim Ahmed Siddiqui, JJ

ABDUL GHANI and 5 others----Petitioners

Versus

1ST ADDITIONAL SESSIONS JUDGE and 18 others----Respondents

Constitutional Petition No.D-1077 of 2013, decided on 31st May, 2018.

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

----O.VII, R.11---Plaint, rejection of---Scope---Provision of O.VII, R.11, C.P.C. was not to be invoked in case of controversial questions of fact or law---Question of limitation was a mixed question of law and facts---Court in such a situation was to settle the dispute on merits in accordance with law.

Ahmed Nawaz Jagirani v. Sindh Industrial Trading Estate Ltd. 2017 CLC 40 and Kinnaird College for Women through Principal v. Maria Isabel Maldonado Gracia 2015 CLC 1423 ref.

Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569; Farkhanda Bibi and others v. Mehmood Munir and others 2018 CLC 685 and Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others 2009 SCMR 124 distinguished.

Jewan v. Federation of Pakistan 1994 SCMR 826 rel.

(b) Constitution of Pakistan---

----Art.10-A---Fair trial---Scope---Fair trial and due process of law is Fundamental Right of litigant.

Irfan Ahmed Qureshi for Petitioner.

Jhamat Jethanad for Respondent No.8.

Allah Bachaya Soomro Additional A.G. Sindh.

2019 C L C 1732

[Sindh]

Before Irfan Saadat Khan and Mrs. Kausar Sultana Hussain, JJ

Messrs MATRACON PAKISTAN (PVT.) LTD. through Authorized Co-ordinator----Appellant

Versus

FAUJI FERTILIZER BIN QASIM LIMITED through Chief Executive Officer/Secretary/Principal Officer----Respondent

High Court Appeal No.386 and C.M.A. No.4151 of 2016, decided on 15th February, 2019.

Arbitration Act (X of 1940)---

----Ss.14(1)(2), 17 & 39---Limitation Act (IX of 1908), S.5---Condonation of delay---Award making rule of the Court---Non-issuance of notice---Effect---Appellant company was aggrieved of award made by Single Judge of High Court as rule of Court---Plea raised by appellant was that no notice was issued to it before making award as rule of the Court---Validity---Notice was issued by office of High Court at address supplied by appellant itself in its suit---As per bailiff's endorsement, notice was duly received by office in-charge of appellant under his own signature available on record---Inspite of notice, no one appeared before Single Judge of High Court on the date of hearing---Single Judge of High Court passed order whereby award was ordered to be made rule of court and decree was issued thereafter---Object of S.14(2) of Arbitration Act, 1940, was to serve notice as to enable parties to file their objections, if any, within prescribed time of 30 days or to move Court for setting aside the award---Award was announced / passed by Arbitrator in presence of parties therefore, appellant could not claim to be unaware of award---Appellant was fully vigilant from passing of award and it was incumbent upon it to approach court concerned for filing application for setting aside award or objections, if had any grievance against award---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court in making award rule of the Court as there was no illegality or irregularity in same---Division Bench of High Court declined to condone the delay in filing of appeal---Appeal was dismissed in circumstances. Mubarak Ali v. First Prudential Modaraba 2006 CLD 829; Messrs Shafi Corporation Ltd. v. Government of Pakistan PLD 1994 Kar. 127; Collector of Customs v. Shandev Vankwani 2016 PTD 55; Aftab Ahmed Khan Khichi v. United Distributor Pakistan, Karachi 1999 SCMR 1326; Mustafa v. Settlement Commissioner Bahawalpur Division Bahawalpur 1974 SCMR 104; Lahore Development Authority v. Khalid Javed Co. 1983 SCMR 718; Port Services (Pvt.) Ltd. v. Port Qasim Authority 2016 MLD 506; Muhammad Nawaz v. Sakina Bibi 1974 SCMR 223; Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5 and Khushi Muhammad v. Mst. Fazal Bibi PLD 2016 SC 872 ref.

Muhammad Saleem Mangrio for Appellant.

Usman Hadi for Respondent.

2019 C L C 1739

[Sindh]

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

Mst. NAFEESA SIDDIQUI and others----Appellants

Versus

DANISH RAFIQUE and others----Respondents

High Court Appeal No.285 of 2007, decided on 16th October, 2018.

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

----S.44---Transfer of immovable property by co-owner----Requirements---Co-owner of a joint/undivided immovable property was not required to obtain consent of other co-owners before transferring his share of such property or any interest therein to any person---Co-owner might even transfer his share in a dwelling house belonging to undivided family---Where share in a dwelling house belonging to an undivided family was transferred then the transferee did not by implication of such transfer become entitled to joint possession or other common or part enjoyment of such house---Transferee in such circumstances could gain possession only by way of enforcing a partition of the property.

Ahmed Din v. Ghulam Muhammad 1990 SCMR 387 rel.

Abdul Qayyum Abbasi for Appellants.

Khalid Javed for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2019 C L C 1757

[Sindh]

Before Salahuddin Panhwar, J

Sheikh MUHAMMAD RAEES----Petitioner

Versus

Mst. REHANA BATOOL and others----Respondents

Constitutional Petition No.S-360 of 2012 and C.M.As. Nos.7104 and 57381 of 2018, decided on 18th April, 2018.

(a) Appeal---

----Appeal is continuity of original lis.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Writ of Certiorari---Object, purpose and scope---Constitutional jurisdiction of High Court in matters of writ of Certiorari was not an independent jurisdiction but is meant to control and supervise jurisdictional powers of subordinate courts/tribunals---At any stage of continuity of a lis, turning of legal disability into legal ability may render such lis infructuous and any order would be coram non judice---Jurisdiction must be acquired before a judgment is given and judgment given by a court which has no jurisdiction in the matter is nullity in eyes of law.

Mst. Imtiaz Begum v. Sheikh Azmat Ullah PLD 1959 Lah. 750 rel.

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

----Ss.25, 41(1)(c) & (2)(c)---Custody of minors---Minors attaining majority---Grievance of petitioner/father was that Lower Appellate Court dismissed his appeal for custody as minors had attained majority---Plea raised by petitioner was that he wanted to transfer property in name of his children---Validity---Minors having attained age of majority therefore, no such jurisdiction lay with the Guardian Court, its Appellate Court or Supervisory Court---No law restricted petitioner from making transfer of his property in favour of his children if same was free from all encumbrances--- Petitioner needed no permission of any court nor such intention alone could help petitioner to control wishes of an adult if adult had chosen otherwise---Constitutional petition was dismissed in circumstances.

PLD 1984 Kar. 245 distinguished.

Petitioner in person.

None present for Respondents.

2019 C L C 1774

[Sindh]

Before Nadeem Akhtar, J

CUSTOM PUBLIC SCHOOL through Liaison Officer----Petitioner

Versus

AFTAB AHMED and 2 others----Respondent

Constitutional Petition No.S-494 of 2019 and C.M.A. No.1827 of 2019, decided on 6th May, 2019.

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

----Ss.15 & 21---Limitation Act (IX of 1908), S.5---Eviction of tenant---Condonation of delay in filing appeal---Scope---Petitioner/tenant filed appeal along with an application under S.5 of the Limitation Act, 1908 for condoning the delay---Only ground urged by the petitioner before the appellate Court was that his attorney fell sick due to which he was advised bed rest, in support of contention a medical certificate was filed---Validity---Appellate Court while dismissing the appeal as being barred by limitation, held that the explanation was not satisfactory as the petitioner was a school having a proper administration and management for running its affairs and the appeal could have been filed by the petitioner within time through any other of its representatives---Application filed by the petitioner for condoning the delay in filing appeal was misconceived and not maintainable as the provisions of S.5 of the Limitation Act, 1908 were not applicable to appeal filed under Sindh Rented Premises Ordinance, 1979---Provision of S.5 of the Limitation Act, 1908 could not be invoked for condoning the delay in filing appeal, is special law had specifically provided the limitation for filing an appeal----Sindh Rented Premises Ordinance, 1979 was a special law wherein the limitation for filing an appeal had been specifically provided in its S.21---Appellate Court was not required either to consider the petitioner's application for condonation or to give any findings thereon---Said application ought to have been dismissed straightaway---Appeal was rightly dismissed by the Appellate Court as being barred by time---Constitutional petition was dismissed accordingly.

Haji Hussain Haji Dawood through Legal Heirs and others v. M.Y. Kherati 2002 SCMR 343 ref.

Abdul Nabi Joyo for Petitioner.

Aftab Ahmed for Respondent No.1, present in person.

2019 C L C 1787

[Sindh]

Before Nadeem Akhtar, J

Mst. NOOR AFSHAN----Petitioner

Versus

MUHAMMAD GHALIB and 3 others----Respondents

C.P. No. S-285 of 2017 and C.M.A. No.8620 of 2017, decided on 19th February, 2019.

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

----S.25---Custody of minor---Welfare of minor---Re-marriage of mother---Visitation---Conduct of father---Non-payment of maintenance allowance---Effect---Petitioner/mother assailed the order of Appellate Court whereby permanent custody of minor was given to the father/respondent---Appellate Court had granted the permanent custody of minor to the father on the sole ground that the mother had remarried and was now living with her second husband---Validity---Held; such ground could have been applied had the subject minor been a girl---No other justifiable reason was assigned by the Appellate Court for granting permanent custody of a male minor of tender age to his father---Observation of Family Court regarding the conduct of father being negligent and mala fide, was apparent in view of his continuous absence at the time of visitation ordered by the Family Court, impounding and blocking of his CNIC by Family Court and issuance of his non-bailable warrants by the Judicial Magistrate---Father had not complied with the decree of maintenance passed by Family Court in favour of the subject minor---Grant of permanent custody of minor to respondent/father was not in the interest and welfare of the minor---Respondent was, however, granted right of visitation, subject to certain conditions---Constitutional petition was allowed, in circumstances.

Khawaja Naveed Ahmed and Irfan Bhutta for Petitioner along with Petitioner Mst. Noor Afshan (CNIC No.42401-4414382-0) and minor Maaz Ali.

2019 C L C 1801

[Sindh]

Before Muhammad Ali Mazhar and Omar Sial, JJ

MUHAMMAD IBRAHIM JATOI----Petitioner

Versus

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

C.P. No.D-3635 of 2018, decided on 4th July, 2018.

Elections Act (XXXIII of 2017)---

----S. 20---Election Rules, 2017, R. 10(5)---Delimitation---Principles---Scope---Petitioner challenged the final delimitation whereby concerned district was allocated three Provincial Assembly seats---Contention of petitioner was that delimitation did not begin from northern point of the district---Validity---Population variation was well within the 10% threshold which was to be complied with pursuant to S.20 of Elections Act, 2017---Rule 10(5), Election Rules, 2017 began with the words "as far as possible..." ---Election Commission of Pakistan, therefore, could not possibly delimit each constituency by strict adherence to the Rule---Certain amount of leeway had been given by the legislature in that behalf---Election Commission of Pakistan had, therefore, had duly complied with the provisions of R.10(5) of the Election Rules, 2017---No mala fide or ulterior motive on the part of the Commission was shown---Constitutional petition was dismissed.

Rasheed A. Razvi, Syed Mureed Ali Shah, Tahmasp Razvi and Shoaib Ali Khatian for Petitioners.

Mohammad Haseeb Jamali, Mohammad Najeeb Jamali and Yasir Morai for the Intervenor Imtiaz Ahmed Shaikh.

Ms. Memoona Nasreen for ECP.

Shaikh Liaquat Hussain, DAG.

Abdullah Hanjrah, Law Officer, ECP.

Sain Bux Channar, Director HQ.

S. Nadeem Haider, REC, Shaheed Benazirabad.

Imtiaz Ahmed Kalhoro, DEC, Hyderabad.

Zaheer Ahmed Sehto, DEC, Kashmore.

Mohammad Yousuf, DEC, Karachi Central.

2019 C L C 1841

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Khadim Hussain M. Shaikh, JJ

AHMED and others----Petitioners

Versus

NAZIR AHMED and others----Respondents

C.P. No. D-1496 of 2010 and M.A. No.52 of 2009 in 1st Civil Appeal No.04 of 1982, decided on 13th September, 2018.

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

----S.12(2)---Suit for specific performance of agreement to sell---Decree, setting aside of---Decree obtained without impleading a necessary party---Fraud and misrepresentation---Effect---Decree holder on the basis of agreement to sell did not acquire any right or interest in the subject properties unless sale deed was executed in his favour by the vendee or by the Court on behalf of judgment debtor---If order or judgment and/or decree was obtained by practicing fraud and misrepresentation then aggrieved person was left with no other remedy except as provided under S.12(2), C.P.C.---Court had to examine whether the facts and circumstances of the case required further probe into the allegations or not---If further inquiry was required to probe into the allegations then issues were to be framed and Court to record evidence---If Court was of the opinion that no inquiry was required then it could proceed to decide the application and it was not incumbent on the Court to frame issues in each and every case---Fraud and misrepresentation, in the present case, was apparent and no evidence was required to be adduced---Fraud could not be directly proved but it had to be inferred from the surrounding circumstances and conduct of the parties---If judgment/decree or order had been procured without impleading a party whose rights were involved then such decree could not be allowed to remain in field---Impugned judgment and decree were obtained by fraud and misrepresentation which were set aside---Application for setting aside of a decree was accepted and matter was remanded to the Trial Court with the direction to join the applicants as defendants and decide the suit on merits---Revision was allowed, in circumstances.

1993 SCMR 662; 1993 SCMR 2096; 1994 CLC 1135; 2015 CLC 1157; 2015 CLC 931; PLD 1989 SC 532; PLD 2012 Sindh 293; PLD 1989 SC 687; PLD 2001 Lah. 149; PLD 2010 SC 745; 2007 SCMR 459; 2007 SCMR 729; PLD 1963 SC 09; PLD 1985 SC 345, PLD 2002 Kar. 511; PLD 2010 Kar. 261; PLD 2006 Kar. 444; PLD 2012 Kar. 293-473; PLD 2017 Kar. 678; 2013 SCMR 338; 2012 CLC 4; 2001 SCMR 396; 1989 SCMR 640; Muhammad Nawaz v. Additional District Judge and others 2002 MLD 507; Mst. Hajiani Khatija Bao and 8 others v. Haji Dawood and 11 others 2003 MLD 828; Mst. Hameeda Shamim v. Deputy Commissioner, Karachi South, Karachi and 7 others 2003 CLC 53; Lahore Improvement Trust Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811; Divisional Forest Officer, Afforestation Division, Sanghar at Khipro v. Khan through Legal Heirs and 10 others 2008 SCMR 442; S.M. Sohail v. Mst. Sitara Kabir-ud-Din and others PLD 2009 SC 397; Abdul Qadoos and others v. Additional District Judge, Rawalpindi and others 2005 SCMR 1428; Sardar Hussain v. Muhammad Azam Khan PLD 2009 Lah. 347 and Muhammad Ali and others v. Province of Punjab and others 2009 SCMR 1079 ref.

Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586 and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 rel.

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

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Application for setting aside of a decree---Limitation---Application for setting aside a decree could be filed within three years from the date of accrual of cause of action---If aggrieved person was not party to the proceedings then period would commence from the date he came into knowledge of impugned judgment/decree or order.

Abdul Aziz and 6 others v. The Member, Board of Revenue and 15 others 1998 SCMR 1078; Javed Akhtar and another v. Sher Muhammad and others 1998 SCMR 292 and Sarfaraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 rel.

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

----O.VII, R.11 & S.11---Plaint, rejection of---Effect---Res judicata, principle of---Applicability---Rejection of plaint of earlier suit did not bar the plaintiff from instituting a fresh suit on the same cause of action---Rejection of plaint did not amount to adjudication and principle of res judicata was not applicable.

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

----S.54---Registration Act (XVI of 1908), S. 17---Sale deed, registration of---Sale agreement did not create any vested right in favour of the vendee---Sale deed which was for more than Rs. 100/- was compulsorily registerable---Transfer of property under sale having value of Rs. 100/- and upwards could be made by a registered instrument.

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

----S.42---Mutation---Proof---Mutation was not a document of title and did not confer any right, title or interest---Beneficiary of mutation was bound to establish the genuineness of transfer in his favour---Once mutation was challenged then party making reliance on the same was bound to revert to the original transaction and prove the same which resulted into the entry or decision of such mutation that was struck somewhere prior to the entry of mutation.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 rel.

(f) Fraud---

----Fraud vitiated even the most solemn proceedings.

Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Talab Hussain and others v. Member Board of Revenue and others 2003 SCMR 549; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 rel.

(g) Administration of justice---

----When law required a thing to be done in a particular manner then same should be done in that manner and if anything was done contrary to that then same should be deemed to have not been done at all.

(h) Administration of justice---

----If foundation was illegal and defective then entire structure built on such foundation having no value in the eye of law would fall on the ground. [p. 1855] B

(i) Words and Phrases---

----'Collusion'---Meaning.

Blacks Law Dictionary Fifth Addition rel.

(j) Words and Phrases---

----'Fraud'---Meaning.

Blacks Law Dictionary Fifth Addition and Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 rel.

(k) Words and Phrases---

----'Misrepresentation'---Meaning.

Blacks Law Dictionary Fifth Addition rel.

Allah Bachayo Soomro, Addl. A.G. for Applicants/intervenors (in appeal and for Respondents Nos.4 to 8 in the petition).

Jhamat Jethanand for Appellant (in the appeal and for the petitioners in the petition.)

Pir Bux Bhurgri for Respondents (in appeal and for Respondents Nos.1 to 3 in the petition.)

2019 C L C 1872

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

JALIL AHMED and others----Petitioners

Versus

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

Constitution Petitions Nos.D-343 and D-1075 of 2017, decided on 20th October, 2017.

(a) Constitution of Pakistan---

----Art.9---Security of person---Word 'life' in Art.9 of the Constitution---Connotation---Word 'life' is not limited to mere breathing but demands much more from the State---"Life" includes an action by the State to remove all threats likely to abridge such guarantees.

(b) Constitution of Pakistan---

----Art.18---Lawful trade / business---Livelihood, earning of---Scope---Protection of Art. 18 of the Constitution is available to 'lawful trade/business' which is even subject to certain limitations---Plea of earning livelihood or dependency of number of persons in a business alone does not entitle one to get protection of Art.18 of the Constitution---Such pleas are always available for one committing patent crime even therefore, protection of Art.18 of the Constitution is deliberated worded in specific words whereby such protection can only be claimed if one satisfies co-existence of two conditions i.e. (i) business / trade must be lawful; and (ii) person doing it, must follow the relevant laws, regulating such business / trade---Fulfilling first condition is mandatory while exception can be to second condition because failure to follow regulations can result in bringing penal clauses into operation---Fulfilling of requirements subsequently even may satisfy second condition but lacking or deficiency of second condition cannot declare lawful trade/business as 'unlawful'---Mere self-imagination of being governed under a particular law alone does not turn an unlawful business into lawful.

Arshad Mehmood's case PLD 2005 SC 193 rel.

(c) Sindh Pure Food Ordinance (VII of 1960)---

----Ss.2(9)(i)(ii)(iii), 11, 12, 13, 14, 15 & 16---Adulterated food---Duties of authorities---Chaaliya Masala and Gutka/Mainpuri etc.---Petitioners were aggrieved of actions done by authorities in a campaign against manufacturing/preparation and sale of Gutka/Mainpuri etc---Validity---Tobacco Pan Masala was always included in food additives (S.2(9)(i)(ii)(iii) of Sindh Pure Food Ordinance, 1960) and it was offered for consumption by human, therefore, the same was required to be regulated by laws relating to safety and standard of all such things likely to offer or sell for human consumption---Independent status of betel-nut and chewing tobacco to be not falling within the meaning of "food" was not sufficient for a self-imagined license to sell a mixture thereof with food additives particularly when the same were found to be hazardous/injurious to health by allowing expansion of tobacco laws and limiting Food Laws---Court was not competent to limit or expand scope of a statute beyond its specified limitations because hardship of a few could not be the basis in determining validity of any statute---Law must be interpreted and applied on its plain language---High Court directed Local Government to ensure true enforcement of Ss. 11 and 15 of Sindh Pure Food Ordinance, 1961---High Court further directed Local Government to appoint required number of inspectors as per S.16(1) of Sindh Pure Food Ordinance, 1961 and establish laboratories specifically meant for analysis of foods---High Court also directed police to continue with campaign against manufacturing/preparation and sale of Gutka/Mainpuri and similar items under any title---High Court directed Provincial Government to follow up process of proper enactment of permanent ban of Gutka and Mainpuri or some product with any other title---Constitutional petition was dismissed in circumstances.

Dr. Imran Khattak's case 2014 SCMR 122 and Akhtar Abbas's case 1982 SCMR 549 distinguished.

Abdul Razzak & Co. v. A.C. Customs PLD 1993 Kar. 227 Arshad Mehmood's case PLD 2005 SC 193; Adeel-ur-Rehman's case 2005 SCMR 1; Rahimud Din v. Sabahuddin 2016 MLD 20; MQM v. Province of Sindh 2014 CLC 335; PLD 2009 Lah. 22; 2012 MLD 636; 2012 PCr.LJ. 1075; PLD 1978 SC 220; PLD 2006 Kar. 479; PLD 2004 SC 271; PLD 2004 SC 482; PLD 1994 SC 102 & 693; 1994 SCMR 2061; PLD 2001 SC 149; Mumtaz Hussain v. Nasir Khan 2010 SCMR 1254; Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430; Shakeel Sardar Awan v. Election Appellate Authority 2016 SCMR 242; Ghulam Haider v. Murad PLD 2012 SC 501 and Supreme Court of India in Transfer Case (Civil) No.1/2010 Central Arecanut Marketing COPN. and others ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Good governance---Duty of High Court---Scope---Continuous failure of State to do what otherwise is unavoidable duty cannot be left go unattended---Legislation is function of Legislature alone but when situation requires necessary instructions can be issued by High Court in exercise of Constitutional jurisdiction.

Sharf Faridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404 rel.

Ali Ahmed Palh for Petitioner (in C.P. No. D-1075 of 2017).

Najeeb Jamali for Respondent No.11 (in C.P. No. D-343 of 2017).

Jhamat Jethanand Amicus Curiae.

Ismail Bhutto, Assistant A.G. Sindh.

2019 C L C 1917

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

MUNAWAR ALI----Petitioner

Versus

PROVINCE OF SINDH through Addl. Chief Secretary Planning and Development and 5 others----Respondents

Constitutional Petition No.D-852 of 2010, decided on 12th December, 2017.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maladministration---Public decisions, withdrawal of---Effect---Petitioner was aggrieved of work stopped by authorities on widening/reconditioning of road project and sought directions from High Court to allow resumption of work---Validity---Authorities could not be absolved of their obligations merely by stating that sanctioned/approved public project was discontinued on account of some 'policy decision'---Once approval was given it was implied that officials while, approving subject project, deliberated upon same and after taking into account all aspects, including financial component, sanction was accorded---Proper financial regulations and management were not in place as subject project was discontinued after expanding Rs.5 million which was not a small amount and should have been accounted for---High Court declared that public exchequer could not be allowed to be misused in such manner and those responsible should be punished---Authorities conceded that subject road would be completed on availability of funds---Petition was allowed in circumstances.

Sohail Ahmed Khoso for Petitioner.

Mehboob Ali Wassan Assistant Advocate General.

2019 C L C 1925

[Sindh]

Before Salahuddin Panhwar, J

Mst. NASEEM ZEHRA alias Shaheen----Appellant

Versus

GHAYAZ AHMED through L.Rs. and others----Respondents

Second Appeals Nos.52 and 57 of 2018, decided on 31st May, 2018.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Suit for specific performance of agreement to sell---Burden of proof---Bona fide purchaser---Requirements---Plaintiff being beneficiary was bound to establish the legality of agreement to sell as well as her assertions of being in bona fide possession---Mere possession over the property would not ipso facto vest title but claimant was required to establish the same independently and a failure thereof would turn such possession to be unauthorized/illegal---Suit land was gifted to the defendants by their father---Relief of specific performance of contract could be sought against an ostensible owner and not against the person who was not legally competent to make a sale---Mere agreement with an incompetent person would not entitle the holder of such agreement to claim title in immovable property---No witness of alleged agreement had been examined by the plaintiff---Remedy of specific performance of a contract being equitable in nature could not be granted to enforce a transaction which otherwise was void---Plaintiff was bound to establish that transferor of suit property was ostensible owner and transfer was made with his consent for consideration---Transferee while acting in good faith was to take reasonable care before entering into such transaction---Plaintiff had failed to produce two attesting witnesses of alleged agreement to sell---Second appeal was dismissed, in circumstances.

Major (R) Pervaiz Iqbal v. Munir Ahmed and others 2018 SCMR 566; Falak Sher v. Province of Punjab and others 2017 SCMR 188; Nisar Ahmed Afzal v. Muhammad Taj and others 2013 SCMR 146; Mst. Naseem Akhter and others v. Abdul Tawab and others 2012 SCMR 1526 and Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81 rel.

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

----S. 100---Second appeal---Scope.

Naseer Ahmed Siddique v. Aftab Alam PLD 2011 SC 323 and Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd. 2013 SCMR 1570 rel.

(c) Administration of justice---

----Where things were required to be done in a particular manner then same must be done so and a departure thereof would render the act nothing but a nullity.

Muhammad Anwar and others v. Mst. Ilyas Bequm and others PLD 2013 SC 255 rel.

Mehmood Habibullah and Muhammad Fahim Zia for Appellant.

Haider Raza Arain for Respondents Nos.1 to 2.

2019 C L C 1951

[Sindh ]

Before Muhammad Faisal Kamal Alam, J

MOHSIN ALI----Plaintiff

Versus

SAFDAR HUSSAIN BIRLAS and others----Defendants

Suit Nos.209 of 2010 and 112 of 2011, decided on 29th March, 2019.

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

----Arts. 89 & 103---Suit for declaration and injunction---Ostensible ownership---Proof---Plaintiff was owner of suit property and was aggrieved of possession by defendants---Plea raised by defendants was that they were ostensible owners and that Power-of-attorney of plaintiff's counsel was defective---Validity---Deposition of attorney was recorded on 28-01-2013 whereas subsequent general power of attorney was of 18-02-2013 which was duly attested by Pakistan Mission at London, as per requirement of Art.89 of Qanun-e-Shahadat, 1984---Lacuna even if it was there at time of giving evidence was subsequently rectified/cured by subsequent General Power of Attorney authenticity of which was never disputed---In terms of Art. 103 of Qanun-e-Shahadat, 1984 documentary evidence excluded oral evidence and any contrary deposition of such attorney at relevant time when subsequent Power-of-Attorney was not there but subsequently produced as evidence would not adversely affect case of plaintiff---Attorney was duly authorized by the principal/plaintiff to institute and pursue litigation in all respects---Plaintiff on account of his cordial relationship with family of defendants allowed them to reside and use suit property in utmost good faith and to return a past favour which was extended by defendants to plaintiff by allowing latter to reside with defendants when they were in Dubai few decades back---Defendants misused bona fide gesture of plaintiff which resulted in present litigation---Plaintiff was put through mill of litigation merely to get back possession of his own property---Attitude of defendants shook trust of a close family friend plaintiff and defendants and such action indicated declining social values in society---High Court declared that sum of Rs. 15,00,000/- was adequate amount that defendants were liable to pay to plaintiff towards general damages and compensation---Suit was decreed in circumstances.

Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Muhammad Anwar Khan and 5 others v. Chaudhry Riaz Ahmed and 5 others PLD 2002 SC 491; Haji Muhammad Rafiq v. Shahenshah Jehan Begum PLD 1987 Kar. 180; Karim Dad Khushk v. United Bank Limited PLD 2010 Kar. 158; Dr. Dilnawaz Rafi Shaikh and 3 others v. Riyaz ur Rahim and 3 others 2015 MLD 965; Messrs Pakistan Hockey Federation through Secretary General and another v. Mirza Imtiaz Baig 2016 CLC 1922; Major [Retd.) Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515; Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others 2009 SCMR 124; Amanat Ullah v. Karam Din and others 2017 MLD 1539; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829; Muhammad Aslam v. Mst. Feroze and others PLD 2001 SC 213; Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan PLD 2004 Kar. 17; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6 ref.

(b) Damages---

----Types---Damages are of two kinds; general and special---Special damages are awarded only when a party successfully proves actual losses suffered by him/her.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 and Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737 rel.

Mirza Adil Beg and Muhammad Atif Shujaat M. Beg for Plaintiffs (in Suit No.209 of 2010 and for Defendant in Suit No.112 of 2011).

Mustafa Lakhani for Defendant (in Suit No.209 of 2010 and for Plaintiff in Suit No.112 of 2011).

2019 C L C 1979

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

Messrs UNITED MOBILE and 3 others----Appellants

Versus

ABDUL RAUF ESSA and another----Respondents

H.C.As. Nos.86 and 87 of 2013, decided on 31st May, 2019.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.3---Partnership Act (IX of 1932), Ss.18 & 19---Partners, liability of---Consent statement---Applicability---Suit for dissolution, rendition of accounts, recovery and injunction was filed by partnership concern and its partners against another partnership concern and remaining partners---Suit was disposed of being compromised on basis of consent given by two partners---Validity---Suit was filed against five persons comprising three natural legal persons and two partnership firms---Consent statements were given by persons who did not fall into either category and were mentioned as partners of a defendant partnership firm---Other than two partners of defendant partnership firm, no other defendant was present or had expressly conveyed his consent for compromise contemplated vide order in question---Appellants were not expressed as parties to order in question---Order in question was void in respect of appellants including defendant firm therefore, no coercive proceedings to implement consent order could have been issued---Division Bench of High Court maintained order in question by Single Judge of the High Court only to the extent of two persons who made statement and set aside same to extent of remaining defendants---Intra-court appeal was allowed accordingly.

Combined Enterprises v. WAPDA Lahore PLD 1988 SC 39; New Era Builders Karachi v. Pakistan Insurance Corporation and another PLD 1977 Kar. 822; Ahmed Khan v. Irshad Begum and others 2007 MLD 331; Muhammad Akram Shaikh v. Pak Libya Holding Company (Private) Limited and others PLD 2010 Kar. 400 and Maulana Attaur Rehman v. Al Haj Sardar Umar Farooq and others PLD 2008 SC 663 ref.

Mushtaq A. Memon and Ishtiaq Memon, Muhammad Anwar Tariq, M. Anas Makhdoom and Ahmed Farhaj for Appellants.

Khalid Jawed Khan Barrister at Law, Salim Thepdawala and Sheikh F.M. Javaid for Respondents.

2019 C L C 2008

[Sindh]

Before Nadeem Akhtar, J

SOHAIL----Petitioner

Versus

KAMRAN SIDDIQUI and another----Respondents

Constitutional Petition S-No.441 of 2016, decided on 12th July, 2019.

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

----S.15(2)(vii)---Eviction of tenant---Plea of bona fide personal need---Onus to prove---Burden is squarely on landlord to prove that demised premises is required by him in good faith and personal need pleaded by him is genuine and bona fide.

(b) Pleadings---

----Improvement in case---Principle---Party cannot improve his case by pleading new facts on grounds in his evidence---Evidence by a party cannot be allowed in respect of a plea that was not pleaded by him in his pleadings.

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

----Ss.2(g) & 15(2)(vii)---Eviction of tenant---Bona fide personal need of brother of landlord---Landlord sought eviction of tenant from his shop on plea of bona fide personal need by his brother---Rent Controller dismissed eviction application but same was allowed by Lower Appellate Court---Validity---Landlord was not entitled to claim demised premises for his brother as siblings did not fall within definition of 'personal use' contained in S.2(g) of Sindh Rented Premises Ordinance, 1979 or in ground of eviction in S.15(2)(vii) of Sindh Rented Premises Ordinance, 1979 and personal need of landlord was not in good faith or bona fide---High Court set aside order passed by Lower Appellate Court as it did not appreciate evidence on record particularly admissions made by landlord and his witness and restored that of Rent Controller---Constitutional Petition was allowed in circumstances.

Messrs Mack Industries v. Haji Abdul Karim and 9 others, 1986 MLD 1595; Muhammad Asghar v. Abdul Rehman and 8 others 2010 MLD 665; Sarwar Ali v. IInd Additional District and Sessions Judge, Karachi (East) and 2 others 2010 YLR 815; Muhammad Irfan v. Haji Abdul Ghani and another 2010 YLR 2549; Qamaruddin through his Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819; Iqbal Book Depot and others v. Khatib Ahmed and 6 others, 2001 SCMR 1197; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Muhammad Ali Pinham v. Muhammad Idris 2002 SCMR 400; Abdul Rahman through LRs Ibrahim Abdul Rehman and 6 others v. Pakistan State Oil Company Ltd. and another 2007 SCJ 800 and Muhammad Anwar Azim v. R.I.G. Education Board through Directress / General Secretary PLD 2003 Kar. 34 ref.

Javaid Iqbal for Petitioner.

Hussain Bux Saryo for Respondent No.1.

District Judge Karachi West for Respondent No.2.

2019 C L C 2027

[Sindh]

Before Muhammad Faisal Kamal Alam, J

PERVAIZ HUSSAIN and another----Plaintiffs

Versus

Mian KHURRAM RASOOL----Defendant

Civil Suit No.862 of 2011, decided on 19th July, 2019.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.1---Negotiable Instrument Act (XXVI of 1881), S.79---Recovery of money---Dishonoring of cheque---Closure of Bank account---Plaintiffs sought recovery of money from defendant who had executed cheques from account which was already closed---Validity---If a party/defendant had issued cheques in favour of plaintiffs and those cheques upon presentation could not be encashed because of closure of account, then such conduct of defendant was a mala fide one and was done with dishonest intention to defraud plaintiffs---Act of defendant amounted to dishonoring of cheques hence consequences would follow---Plaintiffs were entitled to recover their money along with statutory interest of 6% in terms of S.79 of Negotiable Instruments Act, 1881 from date of institution of suit till realization of money---Suit was decreed accordingly.

Thirumala Agencies and another v. Samala Mareppa and Sons 2001 Cri.L.J. 2629; ILR 2001 Kar 737; Mohan Lal v. Om Prakash AIR 1986 Raj 132; 1988 (1) WLN 243; G. Venkataramanaiah v. Sillakollu Venkateswarlu 1999 (3) ALD 719; 1998 (2) ALD Cri 689; 1999 (2) ALT 121; 1999 97 CompCas 13 AP and Haji Ali Khan & Co. v. Messrs Allied Bank of Pakistan Limited PLD 1995 SC 362 ref.

Asim Mansoor Khan and Bashir Ahmed Khan for Plaintiffs Nos.1 and 2.

Nemo. for Defendant.

2019 C L C 2052

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Messrs NOMAN ABID CO. LIMITED (REGD.)----Plaintiff

Versus

NAVEED HAIDER----Defendant

Civil Suit No.05 of 2007, decided on 19th July, 2019.

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

----O.XXXVII, R.1---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Recovery of money on the basis of cheque---Onus to prove---Dishonoring of cheque---Clearance of amount---Plaintiff company filed suit for recovery of money from defendant after dishonouring of cheque---Plea raised by defendant was that he had paid due amount to plaintiff through pay order as dishonouring of cheque was a Banking error---Validity---Plaintiff had to lead positive evidence in support of his claim according to Arts. 117 and 118 of Qanun-e-Shahadat, 1984---Subject cheque was issued for consideration and plaintiff was not compensated subsequently when the cheque was dishonored in which plaintiff failed---Plaintiff had already received amount of disputed cheque therefore, suit was filed with mala fide intention and was not maintainable---Overall conduct of plaintiff company from time of granting leave to defend application was not of a bona fide litigant---Suit was dismissed in circumstances.

None present for Plaintiff.

Mehmood Ali for Defendant.

2019 C L C 2061

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

RAJA KHAN----Applicant

Versus

SHAH NAWAZ and 10 others----Respondents

Civil Revision Application No.S-176 of 2017, decided on 5th March, 2019.

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

----S.172---Sindh Revenue Jurisdiction Act (X of 1876), S. 11---Specific Relief Act (I of 1877), Ss. 42 & 39---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit land being in the ownership of Government was allotted to the defendant---Suit for declaration and cancellation of allotment---Maintainability---Plaint, rejection of---Scope---Contention of plaintiffs was that impugned mutation was unlawful and null and void---Trial Court rejected the plaint but Appellate Court remanded the matter for deciding on merits---Validity---Suit land was in the ownership of the Government and not that of the defendants---Plaintiffs could not claim any right to the suit land unless having attained its title---Jurisdiction to try claim in such cases did vest with the revenue hierarchy and not with Civil Court---Suit filed by the plaintiffs was not maintainable before Civil Court---Plaintiffs should have availed remedy of an appeal or revision before the revenue authorities---Plaintiffs without exhausting such remedies had directly approached the Civil Court by filing the present suit which was barred under S. 11 of Sindh Revenue Jurisdiction Act, 1876---Section 172 of Sindh Land Revenue Act, 1967 did exclude the jurisdiction of Civil Court in the matters of revenue jurisdiction---Trial Court had rightly rejected the plaint---Impugned order passed by the Appellate Court was illegal and same was set aside---Revision was allowed, in circumstances.

Hameedullah Dahri for Applicant.

Amanullah Khan Jadoon for Respondents Nos.1 and 2.

Wali Muhammad Jamari Assistant A.G. for Respondents Nos.3 to 11.

2019 C L C 2077

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SALEEM SHEHZADA and others----Petitioners

Versus

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

C.Ps. Nos.D-408 and D-2762 of 2011, decided on 23rd April, 2019.

(a) Company---

----Shareholders and directors---Status---Company is a separate juristic person distinct from its shareholders or directors.

Solomon v. Solomon 1897 AC 22; Ikram Bus Service and others v. Board of Revenue West Pakistan PLD 1967 SC 564; Tariq Saeed Saigol v. District Excise and Taxation Officer Rawalpindi 1982 CLC 2387; Shamim-ud-Din v. Federation of Pakistan and others 1995 CLC 299; Tanvir Rasool Roller Flour Mills (Private) Limited v. MAPCO and another 2002 CLD 157; Muhammad Akbar v. Masood Tariq Baghpati and others 2019 CLD 1 and Sultan ul Arfeen and others v. District Officer (Revenue) City District Government of Karachi 2013 CLD 1280 rel.

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

----Ss.80, 82, 83, 172 & 181---Recovery notice---Maintainability--- Petitioners were ex-directors of a company which company was defaulter of Telecommunication Authority---Petitioners assailed notice of recovery issued by revenue authorities for recovery of outstanding dues against Telecommunication Authority---Validity---No culpability of petitioners was apparent from record nor any show cause notice was ever issued to petitioners---Even no proceedings for determination of any amounts were initiated against petitioners---Entire basis for the notices was order passed by Telecommunication Authority which apportioned no liability upon petitioners---Telecommunication Authority was unable to articulate any justification for initiation of coercive recovery proceedings against petitioners vide notices in question---High Court set aside notices issued by revenue authorities against petitioners as same were without jurisdiction---Telecommunication Authority could initiate and pursue appropriate avenues of recovery of their dues against company or any other person determined culpable in such regard---Constitutional petition was allowed accordingly.

Abdul Majeed Khan and others v. Maheen Begum and others 2014 SCMR 1524; Mackinnons Mackenzai and Company of Pakistan (Private) Limited v. Eastern Federal Union Insurance Company Limited and others 2002 CLD 779 and Begum Anwar Sultana and others v. Mian Fazal Ahmad and others PLD 1986 Lah. 18 ref.

Raja Qasit Nawaz for Petitioner (in C.P. No. D-408 of 2011).

Ms. Pooja Kalpana for Petitioner (in C.P. No. D-2762 of 2011).

Ishrat Zahid Alvi, Assistant Attorney General, Jawad Dero, Additional Advocate General for Respondents.

Syed Mehmood Abbas for Pakistan Telecommunication Authority.

2019 C L C 46

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

NISAR AHMAD----Appellant

Versus

MEMBER BOARD OF REVENUE (COLONIES), PUNJAB LAHORE and another----Respondents

I.C.A. No.1024 of 2016, heard on 19th October, 2017.

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

----S.30---Lambardari grant---Grant of proprietary rights by the competent authority---Scope---Application for proprietory right was moved by father of petitioner---Competence---Limitation---Issuance of show-cause notice after final adjudication of matter---Scope---Proprietary rights of land in question were confirmed in favour of petitioner---Authorities instead of assailing the said order issued show-cause notice raising same allegations which had already been adjudicated upon in the order of Member Board of Revenue (Colonies)---Constitutional petition against issuance of show-cause notice was dismissed by the Single Judge of High Court on the ground that petitioner should appear before competent authority and raise his objections before the same---Contention of petitioner was that respondents could not re-open the case by simply issuing show-cause notice---Validity---Single Judge of High Court had not considered the fact that issue with regard to proprietary rights had already been adjudicated upon---Application for grant of proprietary rights was filed by the father of petitioner well within time and petitioner had stepped into the shoes of his father---Petitioner was entitled for grant of proprietary rights in circumstances---Substantive rights had been accrued in favour of petitioner on the basis of application moved by his father within prescribed time---Authorities had re-opened the matter requiring the petitioner to once again prove that application was moved by his father---Petitioner could not be forced to face such proceedings when competent forum had conclusively held that he was entitled to proprietary rights on the basis of application moved by his father---Requiring the petitioner to defend himself before competent authority would tantamount to re-opening the case---Authorities could not issue fresh show-cause notice with regard to the matter which had been adjudicated upon in finality by the competent forum---Impugned order passed by the Single Judge of High Court was set aside---Intra court appeal was allowed accordingly.

Hafeez Saeed Akhtar for Appellant.

Muhammad Siraj-ul-Islam Khan, Addl. AG along with M. Azam Khan, Incharge Lambardari Scheme for Respondent.

2019 C L C 71

[Lahore]

Before Shahid Waheed, J

MEHMOOD UL HASSAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No. 2682 of 2017, decided on 22nd November, 2018.

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

----S. 14---Adjudication of appeal under S. 14 of the Family Courts Act, 1964---Obligations of the first appellate court---Scope---Suit for dissolution of marriage and recovery of dowry and maintenance allowance was decreed and first appeal thereagainst by the petitioner/husband was dismissed---Contention of petitioner/husband inter alia was that the order of the first appellate court was bereft of any reason and was made without appraisement of evidence and without an independent mind---Validity---Appeal under S. 14 of the Family Courts Act, 1964 was a substantive right and was in continuation of proceedings which came entirely upon the first appellate court carrying with it the right of rehearing law and facts as well as reviewing pleadings and evidence afresh---First appellate court was duty bound to deal with all issues as first appeal was a valuable right in which both questions of law and facts were to be considered---Impugned judgment of first appellate court was made without recording any reasons in support thereof and no ascertainment of facts upon appreciation of evidence was made---High Court observed that impugned order could not be regarded as proper and was not an honest discharge of the duty of the first appellate court --- Impugned order was set aside and matter remanded to appellate court for decision afresh in accordance with law---Constitutional petition was allowed, accordingly.

(b) Administration of Justice----

----Judicial obligations, discharge of---Observance of the principles of natural justice---Scope----Essential for a Judge to give fair and proper hearing to the person sought to be affected by his/her order and give sufficiently clear and explicit reasons in support of order made by him/her---Rule requiring independent reasons to be given in support of an order is like the principles of audi alteram partem, basic principles of natural justice which must be observed in its proper spirit and mere pretense of compliance with the same would not satisfy the requirements of law.

Muhammad Shafiq Anjum for Petitioner.

Shamim Ahmad for Respondents.

2019 C L C 89

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

MUHAMMAD AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No. 7054 of 2017, heard on 12th September, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of dower---Nikanama showed that Rupees 100,000/- were incorporated in column 17 as compensation in case of divorce---Invoking constitutional jurisdiction on factual controversy---Scope---Petitioner/ex-husband contended that both the Courts below wrongly passed decree in favour of respondent/ex-wife as she filed the suit at the instigation of her new husband and entries in the Nikahnama had been made in connivance with Nikah Khawan and witnesses---Respondent contended that petitioner had divorced her without justification---Validity---Stance of the respondent/plaintiff had been supported by witnesses---Courts below had passed the impugned judgments after fully appreciating evidence on record---High Court in its extraordinary jurisdiction could neither substitute findings of facts recorded by Family Court, nor could give its opinion regarding quality or adequacy of the evidence ---Assessment and appraisal of evidence was the function of Family Court--- Constitutional petition was dismissed accordingly.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Perveen Umar and others v. Sardar Hussain and others 2003 YLR 3097; Muhammad Ashiq v. Additional District Judge Okara 2003 CLC 400; and Aqil Zama v. Mst. Azad Bibi and others 2003 CLC 702 and Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243 ref.

Amjad Pervaiz Qureshi for Appellant.

Ghulam Murtaza Wahga for Respondents.

2019 C L C 108

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

MUHAMMAD HANIF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No.9610 of 2017, decided on 6th September, 2018.

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

----O. XVII, R. 3---Failure of party to cross-examine witnesses despite being put on notice/cautioned by Trial Court---Effect---Right of cross-examination of defendants was closed by Trial Court---Scope---Revisional Court accepted revision petition and defendants were allowed to cross-examine the plaintiff's witnesses---Validity---Firstly, defendants were proceeded ex parte by the Trial Court and thereafter they were afforded opportunity to contest the suit---Defendants were afforded colossal opportunities to cross-examine the witnesses of the plaintiff including absolute final opportunity and also with fine but they failed---Validity---Trial Court rightly passed order by closing the right of cross-examination of defendants---Conduct of the defendants that they neither before the Trial Court showed their seriousness and delayed the matter on one pretext or the other nor appeared before the High Court---Delay of justice was denial of justice, therefore, to ensure the compliance of orders of the court for expeditious decisions of the matters, law provided mechanism which had to be followed and either party had to suffer the consequences in case of non-compliance thereof---Appellate Court had failed to appreciate the facts and circumstances of the case in its true perspective therefore, its view could not be sustained being contrary to the settled law---Order passed by Appellate Court was set aside.

Rana Tanveer Khan v. Naseer ud Din and others 2015 SCMR 1401 foll.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 ref.

(b) Administration of justice---

----Delay of justice is denial of justice---To ensure compliance of orders of the Court for expeditious decisions of the matters, law provides mechanism which has to be followed and either party has to suffer the consequences in case of non-compliance thereof. [p. 110] B

2019 C L C 130

[Lahore]

Before Shams Mehmood Mirza and Jawad Hassan, JJ

MUHAMMAD MASOOD UL HASSAN----Petitioner

Versus

ELECTION APPELLATE TRIBUNAL and others----Respondents

W.P. No.223484 of 2018, decided on 10th July, 2018.

Elections Act (XXXIII of 2017)---

----S.69(2)---Anti-Terrorism Act (XXVII of 1997), Fourth Schedule---Nomination papers, acceptance of---Name of candidate was included in fourth Schedule of Anti-Terrorism Act, 1997---Effect---Petitioner assailed order passed by Election Appellate Tribunal dismissing appeal of petitioner against acceptance of nomination papers of respondent---Validity---Mere fact that name of respondent was included in Fourth Schedule of Anti-Terrorism Act, 1997 was no ground for disqualification---Any FIR by its nature could not be termed as pending criminal case---Respondent was not guilty of mis-declaration for not mentioning FIRs against him in relevant column of affidavit---High Court declined to interfere in order passed by Election Appellate Tribunal---Constitutional petition was dismissed in circumstances.

Muzafar Abbas v. Mulana Muhammad Ahmad Ludhianvi and others PLD 2017 Lah. 394 rel.

Mubeen ud Din Qazi and Sikander Abbas Gillani for Petitioner.

Saeed Ullah Khan for Respondent No.4.

2019 C L C 155

[Lahore (Multan Bench)]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD AAREZ ALI----Petitioner

Versus

MULTAN DEVELOPMENT AUTHORITY through Director General and 19 others----Respondents

Writ Petitions Nos. 15229 and 15264 of 2017, decided on 3rd May, 2018.

(a) Pakistan Council of Architects and Town Planners Ordinance (IX of 1983)---

----Ss. 8 & 16---Punjab Development of Cities Act (XIX of 1976), Ss.7 & 44---Multan Development Authority Registration of Architects Regulations, 1978, Preamble---Constitution of Pakistan, Art. 143---Multan Development Authority---Bifurcation of architects in different categories by the Development Authority---Scope---Registration of architects was the exclusive domain of Pakistan Council of Architects and Town Planners---Multan Development Authority was not competent either to register the architects or make their bifurcation in different categories---Multan Development Authority Registration of Architects Regulations, 1978 had no legal backing which was declared having no lawful authority---Development Authority had proceeded beyond the scope of Punjab Development of Cities Act, 1976---Act of Development Authority in bifurcating the architects into different categories was declared to be without lawful authority---Persons registered with Pakistan Council of Architects and Town Planners were to be considered as architects without their being any further categorization in such skilled field of life---Provincial Legislation in shape of an Act could not prevail over the Federal Legislation i.e. Ordinance---Bifurcation of architects into different categories which was not permissible in the Federal Statute could not be allowed to be undertaken by means of any Provincial Legislation---Constitutional petition was allowed in circumstances.

(b) Constitution of Pakistan---

----Art. 143---Inconsistency between Federal and Provincial Laws---Effect---If any provision of an Act of Provincial Assembly was repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which it was competent to enact then the Act of Majlis-e-Shoora (Parliament) whether passed before or after the Act of Provincial Assembly would prevail and the Act of Provincial Assembly would be void to the extent of the repugnancy.

Mirza Muhammad Kaleem for Petitioner.

Syed Shamshad Ali Rizvi for Petitioners (in W.P. No.15229 of 2017).

Muhammad Naveed Rana, Assistant Attorney-General.

2019 C L C 164

[Lahore]

Before Atir Mahmood, J

NAIK MUHAMMAD----Petitioner

Versus

MUHAMMAD SHABBIR and others----Respondents

C.R. No.113978 of 2017 and C.M. No. 2-C of 2018, decided on 9th May, 2018.

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

----O. IX, R. 13 & O. III, R. 4---Limitation Act (IX of 1908), S. 5---Withdrawal of application for setting aside of ex-parte decree by counsel without consent of party---Scope---Second application for setting aside of ex-parte decree---Res judicata, principle of---Applicability---Limitation---Condonation of delay---Maxim: Audi alteram partem, principle of---Applicability---Application for setting aside of judgment and decree by the petitioners passed against their predecessor---Maintainability---Application for setting aside of ex-parte decree was moved which was withdrawn by the counsel without consent of petitioner---Other application for setting aside of ex-parte decree was filed but same was dismissed---Contention of petitioner was that he was paralyzed and unable to walk therefore he could not get knowledge of withdrawal of application by his counsel---Validity---Nothing was on record with regard to illness of the petitioner---Petitioner had appointed his counsel before the Trial Court---Counsel of petitioner was vested with the authority to do any act on his behalf and his statement was binding upon the petitioner---Authority of counsel duly appointed by the party to act on his behalf in a Court would be deemed to be in force until determined with the leave of the Court by a writing signed by that party or counsel and filed in it or until party or the counsel died or until all proceedings in the matter had ended---Petitioner had not filed any complaint against the counsel before competent forum i.e. Punjab Bar Council in time---Cases were be decided on merits after hearing both the sides and nobody should be condemned unheard---Conduct of a party should be kept in mind while deciding the matters---Applicant for condonation of delay had to explain each and every day's delay---No such explanation had been made in the present case---Limitation was not a mere technicality rather it was mandatory statutory provision---Legislature while enacting Limitation Act, 1908 had fixed the period of limitation for a particular action---Valuable right would accrue in favour of opposite party after period of limitation---Petitioner remained indolent towards his right and kept silent for four months in filing second application---Second application filed by the petitioners would be hit by the principle of res judicata---Nothing was on record that address mentioned in the plaint was incorrect and petitioner was not served through publication of Court notice in the newspapers---Presumption of truth was attached to the proceedings of the Court unless proved otherwise---Predecessor of petitioners was served in accordance with law but he did not appear before the Trial Court to defend the suit---Present application was not signed by the father of petitioner rather he himself signed the same---Petitioner had committed forgery by making signatures of his father---Petitioner did not approach the Court with clean hands and tried to deceive it by his act---Original judgment debtor in his life time never agitated the matter and did not challenge the ex-parte judgment and decree passed against him---Present petitioners being successors had no right to ask for setting aside the judgment and decree passed against their predecessor---Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below could not be reversed unless there were illegality, irregularity, misreading or non-reading of evidence and record.

(c) Administration of justice---

----Cases to be decided on merits after hearing both the sides and nobody was to be condemned unheard.

(d) Administration of justice---

----Law helps the vigilant not the indolent.

(e) Limitation---

----Delay would defeat equity.

2019 C L C 183

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD ISHFAQ and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.9643 of 2018, decided on 26th June, 2018.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1---Failure to submit list of witnesses before Court---Summoning of witness with permission of the court---Party seeking such permission was to show "good cause" for failing to submit list of witnesses before court or for omitting the name of such witness in the list---Inadvertence, as claimed by petitioner, was not a "good cause" for allowing a party to produce the list of witnesses after the time fixed for the same had expired.

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 rel.

2019 C L C 192

[Lahore (Multan Bench)]

Before Shahid Karim, J

Messrs COLONY TEXTILE MILLS LTD.---Appellant

Versus

COTTON TRADING CORPORATION OF PAKISTAN LTD----Respondent

R.S.A. No.89 of 2004, heard on 25th September, 2018.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 22---Appeals from original decree---Procedure on hearing of appeal---Adjudication of cross-objections under O. XLI, R. 22, C.P.C.---Mandatory requirements for Appellate Court----Scope----Purpose to O. XLI, R. 22 C.P.C., could not be circumvented or skirted by Appellate Court by treating at its whim any appeal which was barred by time, as cross-objections without recourse to the fundamental objects stated in O. XLI, R. 22, C.P.C. were not valid----Order XLI, R. 22, C.P.C. required respondent filing objections to obtain written acknowledgment from any party who may be affected by such cross-objection(s) or is that had not been done, the Appellate Court was to cause a copy to be served on such party at expense of respondent---Hearing of cross-objections without notice to the other party was a material irregularity and an error of law which impacted right of affected party to a fair trial---Appellate Court, on its own volition and without regard to essential ingredients of O. XLI, R. 22, C.P.C. could not convert an appeal into cross-objections.

Dr. S.S. Naeem ul Hamid v. Mst. Tahira Sultana and others 1991 CLC 853 distinguished.

Waseem Shahab for Appellants.

Malik Ghulam Qasim Rajwana for Respondents.

2019 C L C 207

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD AZAM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No. 26983 of 2012, heard on 23rd May, 2018.

Oaths Act (X of 1873)---

----S.10---Settlement to decide the matter on oath constituted a valid agreement---Parties could not conveniently wriggle out until contract was ex facie shown to be void or incapable of implementation.

Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841; Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795 and Nasrullah Jan v. Rastabaz Khan 1996 SCMR 108 rel.

Sh. Naveed Shehryar and Humaira Bashir Ch. for Petitioner.

Arshad Jhangir Jhojha, Irtifikhar Chohan and Imtiaz Hussain Rehan for Respondent No.3.

Muhammad Arif Yaqoob Khan, Addl. A.G. for Respondent No.4.

2019 C L C 216

[Lahore]

Before Amin-ud-Din Khan, J

RIAZ AHMED and others----Appellants

Versus

SAJID HUSSAIN and others----Respondents

Regular Second Appeals Nos. 175 and 203 of 2012, heard on 14th September, 2018.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 81---Suit for specific performance of agreement to sell---Stamp vendor and petition writer having no licence---Effect---Bona fide purchaser--Scope----Statement of scribe---Evidentiary value---Admission made in the written statement---Scope---Contention of vendor (defendant) was that plaintiff did not pay remaining sale consideration till the date fixed and agreement to sell had been cancelled---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Vendor had sold the suit land prior to the date fixed for performance of agreement to sell---Vendor, in the present case, was at fault in circumstances---Stamp vendor produced register of entries but he was not cross-examined---Stamp vendor and petition writer were not having licence for petition writing but same was not fatal as it was not a condition/precedent---Sale of stamp paper as well as its writing on the date mentioned in it could not be shaken by the subsequent purchaser---Subsequent purchasers were bound to prove that they were bona fide purchasers for value without notice---Subsequent purchasers before purchase of suit land had not checked with the Patwari and had not confirmed the status of land in question---Subsequent purchasers had failed even to plead specifically with regard to being bona fide purchasers and did not plead that they purchased suit land in 'good faith'---Case not pleaded could not be proved through evidence---New case could not be set up through evidence---Scribe had certified the details of agreement between the parties and payment of consideration amount before him---Plaintiff could be benefited with this part of statement got recorded by the scribe being witness to the document (sale agreement)---One of the marginal witnesses to the agreement to sell had been examined whereas other witness had passed away during pendency of suit---Admission made in written statement could not be denied by any party---Appeal was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704; Mushtaq Ahmed v. Zafar Iqbal and others 2012 YLR 2599; Naseer Ahmad and others v. Yousaf Murtaza Mirza and others 2016 CLC 160; Fateh Muhammad through L.Rs. and others v. Fida Hussain Shah through L.Rs. 2007 CLC 1885; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 and Abbas Ali v. Liaqat Ali and another 2013 SCMR 1600 rel.

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

----S. 100---Second appeal---Requirements---Appellant, in second appeal, was required to prove that decision rendered by the Courts below was contrary to law or usage having the force of law or through the said decision Courts below had failed to determine some material issue of law or usage having the force of law or a substantial defect or error in the procedure provided by any law.

(c) Pleadings---

----Case not pleaded, could not be proved through evidence.

Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704; Mushtaq Ahmed v. Zafar Iqbal and others 2012 YLR 2599 and Naseer Ahmad and others v. Yousaf Murtaza Mirza and others 2016 CLC 160 rel.

(d) Evidence---

----New case could not be set up through evidence.

Fateh Muhammad through L.Rs. and others v. Fida Hussain Shah through L.Rs. 2007 CLC 1885 rel.

Ch. Muhammad Anwar Bhinder for Appellants.

Barrister Muhammad Umer Riaz and Qaiser Hashmi for Respondent No.1.

2019 C L C 252

[Lahore]

Before Shahid Bilal Hassan, J

BASHARAT AMJAD HUSSAIN and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.36483 of 2017, decided on 16th July, 2018.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. I, R. 10---Specific Relief Act (I of 1877), S. 12---Transfer of Property Act (IV of 1882), S. 52---Application under S.12(2), C.P.C.---Framing of issues before decision of such application---Necessity---Sale of suit property during pendency of suit---Lis pendens, principle of---Applicability---Fraud and misrepresentation---Proof---Decree, setting aside of---Decision of application under S. 12 (2), C.P.C. without framing of issues---Effect---Applicant during pendency of suit purchased suit property and moved application for impleadment of defendant but same was dismissed---Suit was decreed and sale deed was executed in favour of decree-holder/petitioner---Applicant applied for setting aside of said decree but same was dismissed by the Trial Court---Appellate Court remanded the matter to decide the same after framing of issues and recording evidence of the parties---Validity---Suit was filed on 20-04-1990 and applicant purchased suit property on 19-05-2003---Principle of lis pendens was applicable and applicant could not be impleaded as party in the main suit---Court was not bound to frame issues in each and every case before deciding an application under S.12(2), C.P.C. rather it could decide such application without framing of issues while considering material made available on the record---Mere allegation of fraud and misrepresentation was not sufficient to undo the judgment of a court of competent jurisdiction---Party who had asserted fraud and misrepresentation had to bring on record cogent and plausible material in order to substantiate his such plea which was lacking in the present case---Revisional Court had erred in law while setting aside order passed by the Trial Court thus had committed illegality culminating into passing of an order which was perverse and perfunctory---Impugned order could not be allowed to hold the field further---High Court was competent to exercise its constitutional jurisdiction in circumstances---Impugned order passed by the Revisional Court was set aside and that of Trial Court was restored---Constitutional petition was allowed accordingly.

Muhammad Arshad Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Bagh Ali v. Mst. Ayesha and others 2013 SCMR 551 ref.

Town Committee, Sujawal v. Hakim Murtaza Khan and others 1989 MLD 1955; Abdul Sattar and 6 others v. Ibrahim and others PLD 1992 Kar. 323; Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Sunni View Cooperative Housing Society v. Irshad Hussain and others 1993 CLC 2336; Lah. Mst. Saadat-ur-Rehman through Legal Representative v. Muhammad Zaarat Khan and 3 others PLD 1998 Pesh. 1; Muhammad Hussain v. Mst. Razia Bibi and others 1999 MLD 3030; Lah. Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others PLD 2003 SC 818; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Akbar Ali and 4 others v. District Judge, Faisalabad and 4 others PLD 2006 Lah. 600; Pir Muhammad Azam v. Pir Azizullah and 2 others 2011 CLC 355; Sheikh Waseem v. Dr. Mrs. Tahira Hussain through Legal Heirs and others 2012 CLC 1019; Muhammad Ramzan v. Muhammad Akbar Bhatti and others 2013 CLC 1561 and Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 distinguished.

Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Muhammad Arshad Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Muhammad Akbar v. Muhammad Malik and another PLD 2005 Lah. 1; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Bagh Ali v. Mst. Ayesha and others 2013 SCMR 551 rel.

Ahmad Waheed Khan for Petitioners.

Muhammad Ramzan Chaudhry and Sami-uz-Zameer Drrani for Respondents.

2019 C L C 280

[Lahore]

Before Shahid Waheed, J

BASHIR AHMAD----Petitioner

Versus

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

Writ Petition No.34972 of 2015, decided on 6th November, 2018.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Amendment in plaint---Amendment after making final arguments---Change in character of the claim---Scope---Plaintiffs sought amendment in plaint to the extent that the word 'hibanama' may be substituted with 'oral sale' because suit land was transferred in their favour by way of oral sale but inadvertently the transaction was recorded in the plaint as gift---Trial Court dismissed the application whereas revisional court allowed the application by setting aside the order of Trial Court---Validity---Perusal of statements made by the witnesses who appeared on behalf of the plaintiffs revealed that they claimed declaration of title in respect of suit land on the basis of oral transaction of gift and thus, they could not be allowed to urge on the basis of unsanctioned mutation that in fact transaction of transferring the suit land was sale but inadvertently in the plaint it was written as gift---Although suit was one for declaration and after the proposed amendment it would continue to be a declaratory suit and there would be no change in the character of the suit, but the character of plaintiff's claim would be changed---Amendment sought to be made at the fag-end of the trial particularly after making final arguments and at the stage of announcement of judgment would prejudice the defendant in his defence which he had already filed in pursuance of the case set up by the plaintiffs in their plaint---Order passed by Revisional Court was set aside and that of Trial Court restored---Constitutional petition was allowed.

Masood A. Malik for Petitioner.

Rao M.I. Zafar Khan for Respondents Nos.2 to 4.

2019 C L C 309

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf, J

SAJJAD HUSSAIN and 4 others----Appellants

Versus

MUHAMMAD YOUSAF and another----Respondents

Regular Second Appeal No.18 of 2004, decided on 26th March 2018.

(a) Islamic law---

----Gift---Revocation of---Requirements---Father of plaintiff gifted suit property but gift deed was revoked thereafter---Plaintiff filed suit wherein revocation deed was assailed---Suit was decreed concurrently---Validity---Donor could revoke gift at any time before delivery of possession---If possession was delivered then donor could only revoke the gift through a decree of the Court---Alleged revocation deed was inconsequential and without any substance---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below---Findings recorded by the Courts below were neither perverse nor arbitrary---Second appeal was dismissed in circumstances.

Muhammadan Law by D.F. Mulla' Chapter XI; Riaz Ullah Khan v. Asghar Ali and 2 others 2004 SCMR 1701; Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466 and Mst. Noor Begum and 6 others v. Muhammad Akram and 17 others 2013 MLD 1323 rel.

(b) Islamic law---

----Gift---Meaning and scope.

Hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter. A donor can part with his property through a gift either orally or through a written instrument. No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to gift.

Muhammadan Law by D.F. Mulla' Chapter XI and Para. 155 ref.

(c) Islamic law---

----Gift---Revocation---Conditions.

Following are the conditions for revocation of gift.

(1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all.

(2) Subject to the provision of subsection (4), a gift may be revoked even after delivery of possession except in the following cases--

(a) when the gift is made by a husband to his wife or by wife to her husband;

(b) when the donee is related to the donor within the prohibited degrees;

(c) when the donee is dead;

(d) when the thing given has passed out of the donee's possession by sale, gift or otherwise;

(e) when the thing given is lost or destroyed;

(f) when the thing given has increased in value, whatever, be the cause of the increase;

(g) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding;

(h) when the donor has received something in exchange (iwaz) for the gift.

(3) A gift may be revoked by the donor, but not by his heirs after his death. It is the donor's law that will apply to a revocation and not of the donee.

(4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even to revoke the gift."

Donor can revoke the gift at any time before delivery of possession and if the possession is delivered then the donor can only revoke the gift through a decree of the court. Muhammadan Law by Mulla, para 167 quoted.

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

----S. 100---Second appeal---Scope---Scope of second appeal was limited---Concurrent findings could not be interfered with unless some procedural defect materially affecting such findings was on record.

Mst. Noor Begum and 6 others v. Muhammad Akram and 17 others 2013 MLD 1323 and Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 rel.

Mirza Aziz Akbar Baig for Appellants.

Muhammad Masood Bilal for Respondent No.1.

Aziz-ur-Rehman Khan, Assistant Advocate-General for Punjab for Respondent No.2.

2019 C L C 340

[Lahore]

Before Ali Akbar Qureshi and Ibad-ur-Rehman Lodhi, JJ

Syed ALI RIAZ KIRMANI and another---Petitioners

Versus

ELECTION TRIBUNAL, PUNJAB BAR COUNCIL and others---Respondents

Writ Petition No.25216 of 2016, heard on 2nd November, 2017.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 5(1)(h) & 61---Objection to election---Locus standi---Objection petition within meaning of Rr. 5(1)(h) and 61 of Pakistan Legal Practitioners and Bar Councils Rules, 1976 was a remedy available only to a candidate at election.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O. VII, R. 7---Constitutional petition---Relief, grant of---Scope---Provisions of Civil Procedure Code, 1908 are applicable when High Court is hearing a Constitutional petition---High Court, while deciding a Constitutional petition, was empowered to grant an effective or ancillary relief even if not prayed for.

Haji Ibrahim v. S. Rehmatullah (Represented by Legal Heirs)" 1985 SCMR 241; Samar Gul v. Central Government and others PLD 1986 SC 35; Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 and Syed Phool Badshah and others v. ADBP through Manager, Peshawar Branch and others 2012 SCMR 1688 rel.

(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 3(c)(i), 5(1)(h) & 61---Constitution of Pakistan, Art. 199---Constitutional petition---Conduct of Elections---Objection petition---Maintainability---Petitioners were returned candidates who were aggrieved of orders passed on objection petition filed by voters whereby Election Tribunal declared results of elections annulled and directed recount of votes---Validity---No aggrieved person was made competent to file objection petition calling in question validity of election of a candidate---No objection petition was available in the scheme of law on the subject providing remedy to voters in election to ask for inclusion of their votes in final count, which for any reason were not included by election staff in final count---Objection petition filed under R. 5(1)(h) read with R. 61 of Legal Practitioners and Bar Councils Rules, 1976 by voters asking for inclusion of their votes/ballots in final count was not competent and not maintainable---High Court declared objection petition as incompetent and not maintainable and set aside order passed by Election Tribunal---Constitutional petition was allowed in circumstances.

Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 and Akhtar Abbas and others v. Nayyar Hussain 1982 SCMR 549 ref.

Abid Saqi for Petitioners.

S.M. Zeeshan Mirza for Respondent No.2.

Muhammad Shahzad Shaukat for Respondent No.4.

2019 C L C 362

[Lahore]

Before Mamoon Rashid Sheikh, J

ASIFA AYAZ TOOSY----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No. 55236 of 2017, heard on 7th August, 2018.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1, 7-A & 8---Suit for declaration---List of witnesses---Summoning of witnesses through process of Court---Scope---Affirmative evidence on behalf of plaintiff was recorded and right to produce evidence in rebuttal was reserved---Plaintiff moved application for summoning of witnesses through process of Court---Application was dismissed on the ground that plaintiff had not mentioned the reason as to why the evidence of said witnesses was relevant to the matter in issue---Validity---Party to a lis to be successful in leading evidence was to file firstly its list of witnesses within seven days of framing of issues---Plaintiff filed list of witnesses within seven days of the framing of issues---Plaintiff was yet to lead her evidence in rebuttal in the present case---Application of plaintiff for summoning of witnesses was supported by an affidavit whereas defendants' reply was not supported by a counter affidavit---Mere non-filing of counter affidavit by the defendants was sufficient to accept the reason set forth by the plaintiff in her application for summoning the witnesses through process of Court---Party seeking summoning of witnesses named in the list through process of Court was required to file requisite application and to deposit the diet money/process fee at least fourteen days prior to the date of hearing---Plaintiff filed her application for summoning of witnesses before she began to lead her evidence in rebuttal---Plaintiff had filed application in accordance with law---If a party was unable to produce the attendance of its witnesses then it could resort to the machinery of the Court for summoning the witnesses provided it had moved an application within stipulated period---Once an application was moved and allowed and diet money/process fee was deposited then Court was to summon the witnesses---If witnesses did not appear despite service then it was for the Court to employ its coercive machinery in order to procure the attendance of said witnesses---Court could not require the party to produce the attendance of the witnesses on its own recognition or on its own responsibility---Courts below had erred in law and facts in refusing to allow the plaintiff to summon her witnesses through process of Court---Impugned orders passed by the Courts below were set aside and prayer of plaintiff for summoning the witnesses through process of Court was allowed---Constitutional petition was allowed accordingly.

Naeem Akhtar v. Additional District Judge and others 2005 MLD 1713; Iqbal Parekh and 4 others v. Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.), Karachi and 4 others 2008 CLC 1334; Ikram Ullah v. Mst. Farkhanda Habib and 3 others 2012 CLC 569; Khurram Ali Shah and 2 others v. Bahadar Khan 2014 YLR 1025 and Bank of Punjab through Chief Manager v. Messrs Anmol Textile Mills Limited through Chief Executive and 3 others 2016 CLD 1566 ref.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Islamic Republic of Pakistan v. Amjad Ali Mirza PLD 1977 SC 182; Mst. Bashir Bibi v. Aminuddin and 9 others PLD 1973 SC 45 and Saleem-ud-Din and others v. Government of the Punjab 2009 MLD 635 rel.

Jawad H. Tarar for Petitioner.

Aish Bahadur Rana for Respondent No.3.

Sheraz Zaka along with Respondents Nos.2 and 3 and Dr. Shehla Toosy.

Nemo for Respondents Nos.4 to 7.

2019 C L C 394

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

ABDUL JABBAR----Petitioner

Versus

MEMBER JUDICIAL (VII), BOARD OF REVENUE and others----Respondents

W.P. No. 2500 of 2013, heard on 9th April, 2018.

Void order---

----"Illegal" and "void" order---Distinction---Difference existed between an order which was illegal and an order which was void ab initio---Every illegal order was not void---Void order was that order which was passed by an Authority not competent to pass the same---Illegal order was that which was not passed in accordance with law.

Arshad Munir Chughtai v. Chairman, Water and Power Development Authority, Lahore and another 2008 PLC (C.S.) 1280 rel.

Muhammad Ali Siddiqui for Petitioner.

Ch. Abdul Ghani for Respondent No.7.

Raza ul Kareem Butt, Addl. A.G. with Khalid Mehmood, Naib Tehsildar and Muhammad Anwar, Colony Clerk for Official Respondents.

2019 C L C 413

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD NAWAZ----Appellant

Versus

MIAN KHAN and 4 others----Respondents

R.S.A. No. 135360 of 2018, heard on 15th November, 2018.

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

----S. 39---Appealable order---Second appeal---Competence---No second appeal is competent against a judgment passed by appellate court as one remedy of appeal is provided under Arbitration Act, 1940.

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

----S. 39---Civil Procedure Code (V of 1908), S. 115---Appealable order---Revision petition---Competence---Scope---Revision being a substantial right can only be exercised if it is provided under the statute---If no power of revision is provided under Arbitration Act, 1940, revision cannot be filed against appellate judgment rendered in accordance with S.39 of Arbitration Act, 1940.

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

----S. 30---Grounds for setting aside award---Misconduct---Scope---High Court or the Trial Court as well as first appellate court cannot sit as an appellate court on an arbitration award unless misconduct on the part of Arbitrator is pleaded---Court cannot scrutinize the reasons for grant of an award as the parties agree to refer the matter to the arbitrator for its decision and the arbitrator cannot be presumed to be a court having all the laws on its sleeves, therefore, conducting proceedings relating to the procedure and determination of question referred to, arbitrator cannot be adjudged on the basis of standard of adjudication before the court.

Mian Muhammad Raza for Appellant.

Malik Sirbuland Khan for Respondents.

2019 C L C 453

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD JUNAID ALAM----Petitioner

Versus

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

Writ Petition No.1775 of 2017, decided on 9th October, 2018.

(a) Interpretation of statutes---

----Redundancy---Scope---Statutory provision must be interpreted within meaning that was attributed to it by language and specific words used by Legislature---Redundancy cannot be attributed to any word used therein and while interpreting law a specific provision of any statute which is independent in nature should not ordinarily be held to be redundant especially on touchstone of another in dependent provision of same statute---All possible efforts should be made to apply and adhere to rules of purposive and harmonious construction so that allegedly conflicting provisions should be reconciled and saved.

Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81; Searle IV Solution (Pvt.) Ltd. and others v. Federation of Pakistan and others 2018 SCMR 1444; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Messrs S.M. Ilyas and Sons Ltd. v. Monopoly Control Authority, Islamabad and another PLD 1976 Lah. 834; Muhammad Aslam and others v. Punjab Government and others 1996 MLD 685 and Shaukat Ali Mian and another v. The Federation of Pakistan 1999 CLC 607 rel.

(b) Interpretation of statutes---

----Rules/Regulations---Scope---Rules/Regulations can neither go beyond scope of parent statute nor can they, by themselves, enlarge scope of statutory provisions---Rules and regulations cannot militate against provisions under which they were made---Rule making power is an incidental power that must follow and not run parallel to parent statute---Rules and regulations are meant to deal with details and can neither be a substitute for fundamentals of parent statute nor can add to them.

(c) Interpretation of statutes---

----Repugnancy---Scope---If subordinate legislation is directly repugnant to general purpose of statute which authorizes it or is repugnant to any well-established principle of statute, such subordinate legislation is either ultra vires altogether or if possible, be so interpreted as not to create an anomaly.

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

----Ss. 15 & 33 [as amended by Medical and Dental Council (Amendment) Act (XIX of 2012)]---Pakistan Registration of Medical and Dental Practitioners Regulations, 2008, Rglns. 48 & 60---Constitution of Pakistan, Art. 18---Vires of regulations---Foreign qualification---National Examination Board (NEB) Examination, sitting in---Petitioners were declined under Regulations 48 and 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 to appear in examinations conducted by National Examination Board (NEB) to procure practice licenses---Validity---Provisions of Rglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 were in gross contradiction to provisions of Ss. 15 & 33 of Pakistan Medical and Dental Council Ordinance, 1962 which did not provide any parameters/guidelines for rule making vis-à-vis foreign qualified students---Provisions of S. 15 of Pakistan Medical and Dental Council Ordinance, 1962 placed no restriction on foreign qualified candidates from sitting in NEB Examination after clearing which they could be recommended for registration as practitioners in Pakistan---Manifest provision of S. 15 of Pakistan Medical and Dental Council Ordinance, 1962 had to be given effect against any decision/rules/regulations made by Pakistan Medical and Dental Council contradicting statutory provisions---Fundamental Rights of citizens of freedom of trade, business and profession were safeguarded under Art. 18 of the Constitution---Pakistan Medical and Dental Council was under statutory obligation to secure equal protection of law to all citizens---Regulations in question were ultra vires Ss. 15 & 33 of Pakistan Medical and Dental Council Ordinance, 1962, were illegal and without lawful authority--- High Court directed authorities to allow petitioners to sit in forthcoming NEB Examination and if they were in possession of sufficient knowledge and skill, to be registered as practitioners for purpose of Pakistan Medical and Dental Council Ordinance, 1962 they were to be recommended to Federal Government to issue notification in their favour to register and their qualifications--Petition was allowed in circumstances.

Aqib Rasheed and 3 others v. Government of the Punjab through Secretary Health and 4 others PLD 2011 Lah. 1; Omer Ismail Khalid and others v. Pakistan Medical and Dental Council and others PLD 2015 Isl. 65; Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421; Dr. Muhammad Zaheer Babar v. Pakistan Medical and Dental Council through Chairman, Islamabad and 4 others PLJ 2013 Isl. 130; Pakistan Medical and Dental Council v. Dr. Raza Muhammad Khan 1992 SCMR 1621; Pakistan Medical and Dental Council v. Ziauddin Medical University and others PLD 2007 SC 323; Salim Javed Baig and others v. Federal Ombudsman and others PLD 2016 Lah. 433; All Pakistan Paramedical Staff Federation Unit, SZPMI, Lahore v. Federation of Pakistan and others PLD 2017 Lah. 640; Pakistan College of Law v. University of Punjab and others PLD 2017 Lah. 830 and Muhammad Fahad Malik v. Pakistan Medical and Dental Council and others PLD 2018 Lah. 75 distinguished.

Suo Motu Case No.11 of 2011 PLD 2014 SC 389; Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2017 Lah. 289; Khawaja Ahmad Hassan v. Government of Punjab and others PLD 2004 SC 694; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Tariq Khan Mazari and 3 others v. Government of Punjab through Secretary Industries and 3 others PLD 2016 SC 778; Dossani Travels (Pvt.) Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Pakistan Medical and Dental Council through its President v. Muhammad Fahad Malik and other Civil Appeals Nos.3 and 4 of 2018; National Engineering Services Pakistan [Nespak] (Pvt.) Limited and others v. Kamil Khan Mumtaz and others 2018 SCMR 211; Suo Moto Case No. 19 of 2016 2017 SCMR 683 and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others AIR 1981 SC 746; The Collector of Sales Tax and others v. Superior Textile Mills Ltd. and others PLD 2001 SC 600 = 2001 PTD 1486, Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Basit Ali v. Additional Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore and 3 others 2005 MLD 599; Sheikh Muhammad Yousaf and another v. District Collector/District Registrar (DOR), Okara and 4 others PLD 2010 Lah. 123; Messrs D.S. Textile Mills Limited v. Federation of Pakistan and others PLD 2016 Lah. 355; Ahmad Daniyal v. Islamia College, Peshawar through Registrar and 10 others PLD 2017 Pesh. 193; New Allied Electronics Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Revenue Division and another 2017 PTD 130; and Moazzam Habib and others v. Federation of Pakistan and others 2018 YLR 222 ref.

(e) Constitution of Pakistan---

----Art. 25---Discrimination---Principle of reasonable classification---Scope---Dissimilar treatment is permissible on touchstone of reasonable classification and intelligible differentia---Reasonable classification is permissible under Art. 25 of the Constitution and it does not offend against equal protection principle---State may classify persons for purpose of legislation and pass laws applicable only to persons and objects within designated class according to intended public object---Class legislation against some and favoring others within a particular class is prohibited.

Muhammad Khalid Qureshi v. Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another 2017 PTD 805; Abdul Ghaffar Mallah and others v. Province of Sindh through Chief Secretary and others 2018 PLC (C.S.) Note 26; Waqas Aslam and 2 others v. Lahore Electric Supply Company (LESCO) through Chief Executive and 4 others 2018 PLC (C.S.) 243 rel.

Hashim Ahmad Khan, Shehryar Gondal, Mian Waqas Akhtar and Rehan Ahmad Maan for Petitioners.

Noshab A. Khan, Ch. Muhammad Umar and Zahid Hussain Malik, Assistant Attorney General of Pakistan for Respondents.

2019 C L C 483

[Lahore]

Before Mamoon Rashid Sheikh and Shahid Waheed, JJ

DAAN KHAN (DECEASED) through Legal Heirs----Appellant

Versus

ASSISTANT COLLECTOR (NOTIFIED)----Respondent

I.C.A. No.255415 of 2018, decided on 23rd January, 2019.

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908) O. IX, Rr. 3 & 4---Intra-court appeal---Dismissal of Constitutional petition for non-prosecution---Application to restore Constitutional petition under O.IX, R. 4, C.P.C.---Filing of a fresh Constitutional petition after dismissal of earlier petition for non-prosecution---Res judicata, principle of---Applicability---Scope---Application of O. IX, R. 4, C.P.C.---Scope---Question before the High Court was whether petitioner, after dismissal of petitioner's application for restoration of Constitutional petition, could file a second Constitutional petition on the same subject-matter---Held, after dismissal of first Constitutional petition for non-prosecution, petitioner under O. IX, R. 4, C.P.C. could either have brought a fresh Constitutional petition, or applied for an order to set the dismissal aside, and in the present case , the petitioner chose to file an application for restoration of the Constitutional petition---High Court observed that had the petitioner not availed remedy of application for restoration of earlier Constitutional petition under O. IX, R. 4, C.P.C., then second Constitutional petition would have been maintainable, and therefore in the present case, second Constitutional petition was not maintainable---Intra-court appeal was dismissed, in circumstances.

Dr. M. A. Haseeb Khan and others v. Sikandar Shaheen and 9 others PLD 1980 SC 139 and Shamim Akhtar v. Muhammad Tufail 2002 MLD 1716 distinguished.

Ch. Muhammad Amin Javed Appellant.

Asif Mehmood Cheema, Additional Advocate General for Respondent.

2019 C L C 490

[Lahore]

Before Rasaal Hasan Syed, J

HAMID MAJEED and 2 others----Petitioners

Versus

MAROOF ASHRAF MIAN and 6 others----Respondents

Civil Revision No.643 of 2012, heard on 3rd January, 2019.

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

----O. VII, R. 11---Plaint, rejection of---Pre-conditions---Plaint can only be rejected if statement therein does not disclose a cause of action or suit is improperly valued or insufficiently stamped or suit is barred by law---While considering applicability of provision of O. VII, R. 11, C.P.C. Court has to confine to averments in plaint which need to be accepted as gospel truth unless proved otherwise through evidence---If bare reading of statement in plaint discloses cause of action, it cannot possibly be rejected under cl. (a) of O. VII, R. 11, C.P.C.

(b) Malicious prosecution---

----Damages---Prerequisites---To succeed in action for damages on plea of malicious prosecution one has to establish that he was prosecuted by opposite party; prosecution ended in his favour and opposite party acted without reasonable and probable cause; opposite party was actuated by malice, proceedings had interfered with one's liberty, and that it affected his reputation and he suffered damages on account of such prosecution.

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

----O. VII, R. 11---Suit for recovery of damages---Rejection of plaint---Frivolous litigation--- Cause of action---Plaintiff filed suit for recovery of damages against defendant on allegations of frivolous, fictitious and vexatious litigation and also malicious prosecution---Trial Court declined to reject plaint---Validity---Provisions of O. VII, R. 11, C.P.C. contemplated that only statements in plaint were to be looked into for limited purposes which needed to be treated as true and if on perusal thereof, plaint did not disclose cause of action, plaint could be rejected---Examination of plaint disclosed that defendant had raised serious allegations against plaintiff---Plaint also showed that defendant was involved in number of civil and criminal litigation of fictitious and malicious character which prosecution was deliberate, intentional and malicious as also without probable cause and in view thereof, it could not be assumed that on the face of it, plaint did not disclose any cause of action or called for an outright order of rejection---High Court declined to interfere in order passed by Trial Court as plaint under O. VII, R. 11, C.P.C. was premature and unwarranted at the stage it was filed---Revision was dismissed in circumstances.

Muhammad Akram v. Mst. Farman Bi PLD 1989 Lah. 200; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Tariq Mehmood Chaudhry Kamboh v. Najam un Din 1999 SCMR 2396 and Jewan and 7 others v. Federation of Pakistan through Secretary Revenue Islamabad and 2 others 1994 SCMR 826 ref.

(d) Limitation---

----Question of---Limitation is a mixed question of law and fact.

Irshad Ali v Sajjad Ali and 4 others PLD 1995 SC 629 rel.

Mian Qamar-uz-Zaman for Petitioners.

Tahir Munir Malik for Respondents.

2019 C L C 511

[Lahore (Rawalpindi Bench)]

Before Shakil-ur-Rehman Khan, J

NAVEED AHMED----Petitioner

Versus

Mst. MEHWISH RIAZ and others----Respondents

W.P. No.3263 of 2018, decided on 28th November, 2018.

Family Courts Act (XXXV of 1964)---

----Ss. 5 & 17-A---Interim maintenance, grant of---Minor suckling baby---Razayat and Hazanat---Scope---Petitioner was ex-husband of respondent and was aggrieved of order passed by Family Court to provide interim maintenance allowance to respondent for their minor suckling baby after divorce---Validity---Concept of Razayat and Hazanat were well established and every child had following rights over its parents, (a) right of razayat or being suckled; (b) right of fosterage and being brought up; and (c) right of being trained and educated---High Court declined to interfere in constitutional jurisdiction as Family Court had rightly included interim maintenance for divorced mother of minor as order passed by Family Court was only tentative in nature and amount of maintenance would finally be decided after recording of evidence---Constitutional petition was dismissed in circumstances.

Ayat No.233 of Surah Al-Baqra from the Holy Qur'an; A.R. Khan v. P.N. Boga through LR PLD 1987 SC 107; Messrs Home Comforts v. Mirza Rashid Baig and others 1992 SCMR 1290; Federation of Pakistan v. Amir Hamza 2001 SCMR 1959; Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2003 SCMR 708; Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Ayat No.6 of Surah Talaq by Mr. Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 Three-Volume Edition - 1969; Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473; Captain S.M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Muhammad Ameen v. Mst. Mehar un Nisa and others PLD 1988 FSC 100; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365; Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128 and Mst. Tahira and 4 others v. Muhammad Irfan and another 2018 MLD 407 rel.

2019 C L C 520

[Lahore]

Before Farooq Haider, J

SAUD MAJEED----Appellant

Versus

RETURNING OFFICER and 2 others----Respondents

Election Appeal No.356-A of 2018, decided on 7th November, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 112(6), 139 & Form-B, Column-I (a) & (b)---Appeal---Objection petition, dismissal of---Words 'not applicable'---Scope---Appellant filed objection petition against nomination papers of respondent for General Seat to Senate Elections---Objections filed by appellant were dismissed by Returning Officer---Validity---Objection with regards to drawing a bracket against sub-columns (a) & (b) of Column-I of Form-B at page 7 of Nomination Papers for purpose of writing immovable property was not result of any defect of substantial nature as mentioned in S.112(6)(d)(ii) of Elections Act, 2017 and it had also not made statement submitted by candidate as false or incorrect in any material particulars as mentioned in S. 112(6)(c) of Elections Act, 2017---By mentioning words 'not applicable' in relevant column of serial No. 2(k) at relevant space meant for cost/amount of asset/trust neither made such statement submitted by respondent as false or incorrect in any material particulars nor constituted any defect of substantial nature justifying rejection of Nomination Papers---Scrutiny of Nomination Papers was summary inquiry and further niceties on subject could be examined through election petition provided under S. 139 of Elections Act, 2017---Appeal was dismissed in circumstances.

Muhammad Hanif Abbasi v. Jehangir Khan Tareen PLD 2018 SC 114 distinguished.

Murad Bux v. Karim Bux and others 2016 SCMR 2042 and Syed Fida Hussain Shah v. Election Appellate Tribunal and others PLD 2018 Lah. 788 ref.

Khalid Ishaque for Appellant.

Imran Arif Rnjha, Legal Advisor for Election Commission of Pakistan along with Hafiz Adeel Ashraf, Assistant Law Officer on behalf of Respondents Nos.1 and 3.

2019 C L C 533

[Lahore]

Before Ch. Muhammad Iqbal, J

BILAL ASLAM----Petitioner

Versus

NASEER AHMAD and others----Respondents

Election Petition No.16 of 2018, decided on 10th January, 2019.

(a) Administration of justice---

----If an objection is raised with regards to maintainability of petition for non-compliance of mandatory provisions of law, court/tribunal is under unalienable legal obligation to decide the raised preliminary objection before entering into field of disputed facts and recording of evidence---If in opinion or conclusion of court objection is liable to be sustained, court is left with no option but to reject petition.

Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others 2016 SCMR 1312; Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 and Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396 rel.

(b) Elections Act (XXXIII of 2017)---

----S. 144(1)(b)---Election petition---Allegations of corrupt or illegal practice---Mandatory requirements---Scope---Under provision of S.144(1)(b) of Elections Act, 2017 full particulars of any corrupt or illegal practice or other allegedly committed illegal act, including names of persons who alleged to have committed such corrupt or illegal practice or illegal act as well as date, time and place of commission of such practice or act is mandatorily be specifically mentioned in the election petition.

Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 rel.

(c) Elections Act (XXXIII of 2017)---

----Ss. 139, 142, 143 & 144---Civil Procedure Code (V of 1908), O. VI, R. 15 & O. XIX, R. 3---High Court (Lahore) Rules and Orders, Vol. IV, Chap. 12, Rr. 11, 12, 14, 15 & 16---Election petition---Maintainability---Mandatory requirements, non-compliance of---Effect---Petitioner assailed election whereby respondent was notified as returned candidate for seat of Member Provincial Assembly---Petitioner raised allegations of corruption and corrupt practices against respondent but did not submit any specific particulars of allegations nor pleadings were verified in accordance with law---Validity---No specific attribution of illegal act and corrupt practice with exact day, date, time and place was jotted down and names of witnesses of such illegal act or corrupt practice were also not disclosed in petition and such was conspicuous non-compliance of law---Election petition must be verified on oath as prescribed in O. VI, R. 15, C.P.C. and any deviation to the same was to entail summary rejection of the petition under S. 145(1) of Elections Act, 2017---No such specific particulars were mentioned in election petition which was conspicuous non-compliance of provisions of Ss. 142, 143 and 144 of Elections Act, 2017, O. VI, R. 15, C.P.C. as well as provisions of O. XIX, Rr. 3, 11, 12, 14, 15 & 16 of High Court (Lahore) Rules and Orders, Volume. IV, Chapter 12---Election petition was not verified on oath by Oath Commissioner or by any other designated person in such behalf and such incurable flaws were fatal to the maintainability of election petition---High Court declined to proceed further in the petition as same was not maintainable for non-compliance of main provisions of law---Petition was dismissed in circumstances.

Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Manzoor and Company and Another v. Malik Muhammad Hanif PLD 1995 Lah. 95; Bashir Ahmed v. Abdul Wahid PLD 1995 Lah. 98 and Lt. Col. (Retd.) J. Abel v. Emmanual Zafar and others 1987 MLD 1372 ref.

Ch. Zafar Ullah and Hassan Nasrullah Warraich for Petitioner.

Khalid Ishaque and Mian Naseer Ahmad for Respondent No.1.

2019 C L C 562

[Lahore]

Before Atir Mahmood, J

Dr. SAJJAD HAIDER SHAMI----Petitioner

Versus

Mst. SADAF PERVAIZ and others----Respondents

Civil Revision No.4546 of 2016, decided on 9th November, 2018.

Civil Procedure Code (V of 1908)---

----Ss. 13 & 115---Civil Revision---Suit for declaration and permanent injunction---Jurisdiction of Court---Foreign judgment---Plaintiff was UK national and assailed judgment passed in UK against him---Suit as well as appeal filed by plaintiff was dismissed---Plea raised by plaintiff was that since both parties were Pakistani citizens by origin who married in Pakistan under Muslim Family Laws Ordinance, 1965 and their marriage was registered in Pakistan, therefore, UK law was not the applicable on parties but that of Pakistan---Validity---Parties having immigrated to and got UK nationality, were UK nationals and subject of UK laws as well as to laws of Pakistan and jurisdiction of UK courts could not be curtailed---Plaintiff could not establish any of exceptions given in S.13, C.P.C. attracted in his case---High Court declined to exercise revisional jurisdiction as there were concurrent findings of law and fact against plaintiff which were immune from interference unless there was some gross illegality floating on surface---Plaintiff failed to point out any illegality therefore no interference was warranted by High Court---Revision was dismissed in circumstances.

Athar Mansoor Butt for Petitioner.

Sikandar Nisar Saroya for Respondents Nos.2 and 3.

Ex-parte Respondents Nos. 1, 4 to 6.

2019 C L C 580

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

AL-GHAZI TRACTOR LIMITED through Manager and 2 others----Appellants

Versus

PEER MUHAMMAD ALI----Respondent

F.A.O. No.45 of 2015, heard on 8th September, 2017.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 28(4) & proviso, 27, 25 & 33---Jurisdiction of Consumer Court---Settlement of claim---Limitation period of thirty days to file a complaint---Computation of limitation period---Condonation of delay---Scope---Defendant impugned order of Consumer Court whereby complaint made against defendant was accepted and defendant was directed to pay damages---Contention of defendant was that impugned order was not valid as cause of action accrued to claimant/consumer on 19.10.2010 while claim was filed before Consumer Court on 20.02.2011, and thus the same was beyond the period of limitation---Validity---Record established that complaint was filed beyond the thirty days period prescribed by S. 28(2) of the Punjab Consumer Protection Act, 2005 and while proviso to the same empowered the Consumer Court to extend time for filing of complaint, however, in the present case, complainant did not move the Consumer Court for such extension in time and did not show any sufficient reason for failure to comply with limitation---High Court observed that it was bounden duty of court to adjudge a proceeding placed before it on the touchstone of limitation at the very initial stage, and therefore contention that defendant did not raise question of limitation at trial stage was not valid---Impugned order was set aside---Appeal was allowed, in circumstances.

(b) Limitation---

----Duty of Court---Court was bound to adjudge a proceeding placed before it on the touchstone of limitation at the very initial stage.

Barrister Malik Kashif Rafique Rajwana for Appellant.

Mirza Abdul Khaliq for Respondent.

2019 C L C 596

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Kh. ABDUL REHMAN (DECEASED) through Legal Heirs and others----Petitioners

Versus

MUHAMMAD FAROOQ MIRZA and 5 others----Respondents

Civil Revision No.319 of 2017, decided on 26th April, 2018.

Civil Procedure Code (V of 1908)---

----S. 75, O. XXVI, Rr. 9, 10 & O. XVIII, Rr. 2, 11---Local commission, report of---Nature and scope---Calling of local Commission as court witness---Scope---Suit was decreed by the Trial Court against which appeal was filed and appellants filed application before the Appellate Court for appointment of local commission which was accepted and report was submitted by Commission---Respondent filed objection petition against the report of local commission which was dismissed and local commission was summoned as Court witness for recording of his statement---Validity---Local commission did not perform judicial function nor Court could delegate its power of decision to the commission---Local commission could only perform a ministerial function, the extent and scope of which was limited and narrow defined by way of reference framed by the Court---"Report" of local commission could not be termed as "findings" but same was only inquiry for information and assistance of the Court---Said report was not binding on the Court which had appointed such commission---Report prepared by the local commission was a piece of evidence but which was not admissible unless tendered in the proceedings---Report of local commission, statements recorded and other material collected by him though would form part of record but same could not be called as evidence in the suit unless tendered in evidence as per law---Appellate Court had power to examine any witness at any stage---Commission had been called as a Court witness providing equal opportunity to both the parties to confront him with any question with regard to matter referred to him or mentioned in his report or the manner in which he had made investigation---Party had right to object such a question and it would be upto the Court to allow or disallow a question put to witness---Right of a party to cross-examine a witness could not be abridged only due to the reason that his objection to the report had already been turned down---Revision was dismissed in limine.

Allah Jewaya and another v. Muhammad Bakhsh and another PLD 1998 Lah. 338 distinguished.

Malik Asif Taufiq Awan Vice Counsel for Petitioners.

Tariq Mehmood Khokhar and Mehar Abdul Majid for Respondent No.1.

Mujeeb-ur-Rehman Kiani for Respondents Nos.4 to 6.

2019 C L C 616

[Lahore]

Before Ali Akbar Qureshi, J

Mst. NAVEED WASEEM----Petitioner

Versus

MIANI SAHIB GRAVEYARD COMMITTEE through Additional Deputy Commissioner----Respondent

W.P. No. 182870 of 2018, heard on 20th March, 2018.

Miani Sahib Graveyard Ordinance (XLIV of 1962)---

----Preamble---Punjab Graveyards (Preservation and Maintenance) Act (XXV of 1958), Ss. 2(2), 3, 6, 7, 13 & 14---Martial Law Regulation [C. M. L. A,s] No. 20---(Martial Law Order) [C. M. L. A's], No. 131)---Area of Miani Sahib Graveyard---Demarcation---Miani Sahib Graveyard, a trust---Miani Sahib Graveyard Committee---Functions---Contention of petitioner was that property consisting of hall, two rooms and verandah situated in the area of Miani Sahib Graveyard belonged to Shrine Sain Sher Muhammad and that Miani Sahib Graveyard Committee should not interfere in the possession of petitioner who was Mutwalli---Validity---When any person was aggrieved from inclusion or exclusion of land in Miani Sahib Graveyard he/she should have filed application under S. 6 of Punjab Graveyards (Preservation and Maintenance) Act, 1958 within three months to the Government---Said application was to be decided by the 'Tribunal' appointed under S. 7 of the said Act---Miani Sahib Graveyard Committee constituted under the provisions of Miani Sahib Graveyard Ordinance, 1962 had no concern with the inclusion or exclusion of land in the Schedule annexed with the Ordinance---Predecessor of petitioner had not filed application for exclusion of the land in question with the stipulated period in accordance with law---Martial Law Authorities in order to demarcate the area of Miani Sahib Graveyard issued a 'Press Note' on 29-04-1962 giving Khasra numbers of total area of the Miani Sahib Graveyard measuring 1248 kanals 14 marlas and 28 sq. ft. including Khasra number pertaining to the property in question---Area mentioned in the 'Press Note' vested in and became the part of 'Trust' i.e. Miani Sahib Graveyard Trust---Properties mentioned in the Schedule annexed with Miani Sahib Graveyard Ordinance, 1962 had vested in the 'Trust' and status of said properties could not be questioned in any manner whatsoever---Petitioner was in possession of land bearing Khasra No.6716 which had been mentioned in the 'Press Note' and Schedule---'Press Note' and the subsequent legislation made by the then Martial Law Authorities had been protected by the Supreme Court---Actions and proceedings taken and conducted by the then Martial Law Authorities were "past and closed transactions" which could not be reopened or interfered in any manner whatsoever---Petitioner had not come to the Court with clean hands and was not entitled for any discretionary or equitable relief---Petitioner had encroached upon/illegally possessed and used the land of Miani Sahib Graveyard which was a 'Trust'---Deputy Commissioner/Chairman Miani Sahib Graveyard Committee was directed to take over/recover/retrieve the possession along with demolition charges and Tawan at the prevailing market rate of the period under which suit land remained under the use and illegal possession of petitioner---Constitutional petition was dismissed with costs in circumstances.

Noor Din v. The Chairman, Miani Sahib Graveyard Committee, Lahore PLD 1973 SC 17 and Azizur-Rahman Choudhury v. M. Nasir-uddin and others PLD 1965 SC 236 rel.

Syed Waseem-ud-Din Ahmad for Petitioner.

Muhammad Maqbool Sadiq and Khalil Ahmad Ali for Respondents.

Muhammad Arif Raja, Additional Advocate-General.

2019 C L C 626

[Lahore]

Before Atir Mahmood, J

MUHAMMAD ALI----Petitioner

Versus

SOHAWA (DECEASED) through L.Rs. and others----Respondents

Civil Revision No.1457 of 2017, heard on 13th November, 2018.

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

----S. 42(7)---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 80---Limitation Act (IX of 1908), Art. 95---Suit for declaration---Limitation---Mutation---Proof---Procedure---Contention of plaintiff was that he sold land measuring 4 kanals and 5 marlas but land measuring 7 kanals and 15 marlas had been included in the impugned mutation---Suit was dismissed concurrently---Validity---Plaintiff had categorically stated that he neither appeared before the Revenue Officer nor thumb marked or signed the impugned mutation---Onus to prove valid and lawful execution of sale mutation shifted upon the defendants---None of the witnesses produced by the defendants had stated that sale consideration was paid in his presence---When payment of sale consideration had not been established then case of defendants could not be said to have been proved but to the extent admitted by the plaintiff---No application was moved under Art. 80 of Qanun-e-Shahadat, 1984 to prove the mutation by other means as one of the witnesses of the same had allegedly died---Even other witness of said mutation had not been produced in witness-box---Contradictions with regard to market value of suit property were on record in the present case---Sale consideration of Rs.45,000/- was the price of land measuring 4 kanals and 5 marlas which was paid to the plaintiff by the defendants and rest of land had fraudulently been entered in the mutation in question---Defendants had failed to prove the execution of alleged mutation as well as original transaction---Only one transaction with regard to land measuring 4 kanals and 5 marlas had been admitted by the plaintiff---Other land which was included by the defendants fraudulently at the back of vendor was neither permissible nor could be protected---Sale mutation itself revealed that two transactions between the parties had taken place in the present case---Documentary evidence did override the oral evidence---Oral evidence if led in contradiction to the contents of sale mutation was of no consequence and could not be relied upon---Plaintiff had sold land measuring 4 kanals and 5 marlas whereas other land mentioned in the alleged mutation was added afterwards without consent and agreement of plaintiff---Revenue Officer while attesting mutation was bound to ensure presence of the person whose right was going to be acquired by such mutation---Identification of such person by two respectable persons was also required---Alleged mutation did not carry signatures or thumb impressions of vendor nor he was identified at the time of attestation of mutation---Vendor did not appear before Revenue Officer nor he was identified at the time of attestation of sale mutation---Sale mutation had been attested in violation of S. 42(7) of Punjab Land Revenue Act, 1967---Where fraud had been alleged while seeking some relief then period of limitation would be three years which would commence from the date of knowledge---Date of knowledge, in the present case, had been alleged few days prior to the institution of suit which could not be rebutted by the other side by any solid evidence---Present suit was instituted within time, in circumstances---Courts below had erred in law while dismissing the suit---Impugned judgments and decrees passed by the Courts below were set aside---Suit filed by the plaintiff was decreed as prayed for.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 rel.

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

----Art. 103---Documentary evidence overrides the oral evidence.

Malik Rab Nawaz for Petitioner.

Ch. Hafeez ur Rehman Atif for Respondents.

2019 C L C 640

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD BOOTA----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petition No. 8270 of 2018, decided on 29th May, 2018.

Family Courts Act (XXXV of 1964 )---

----Ss. 5, Sched. & 9---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Scope---Suit for recovery of maintenance allowance and dowry articles---Trial Court passed ex parte judgment against the defendant/petitioner after closing his right to cross-examination---Availing of one remedy out of available remedies by the petitioner---Election, doctrine of---Scope---Petitioner contended that Family Court had wrongly passed ex parte judgment and decree against him and constitutional petition against said order was maintainable---Respondents contended that out of available remedies, the petitioner had availed remedy to move application to set aside ex parte decree so he could not invoke constitutional jurisdiction against the ex parte decree after the dismissal of his application and appeal against the dismissal thereof---Validity---Where more than one remedies were available to the petitioner and he availed one of those remedies to redress his grievance, he could not, later on, abandon that remedy and turn around to seek another remedy---Petitioner, in the present case, having filed application for setting aside the ex parte decree was precluded from availing any other remedy in view of doctrine of election---After exercising an option to pursue one remedy, the other remedy would be forfeited---Constitutional petition to challenge the decree would not be maintainable without challenging the orders whereby the application filed by the petitioner to set aside ex parte decree and appeal against dismissal of said application had concurrently been dismissed---Constitutional petition was dismissed accordingly.

Messrs Shell Pakistan Limited through Legal Affairs Advisor and Attorney v. Aurangzaib Khan 2005 PLC 424 and Raees Ghulam Sarwar through Attorney v. Mansoor Sadiq Zaidi and 4 others PLD 2008 Kar. 458 ref.

2019 C L C 654

[Lahore]

Before Shams Mehmood Mirza and Jawad Hassan, JJ

Rana ZAHID HABIB and 5 others----Appellants

Versus

GOVERNMENT OF THE PUNJAB and 3 others----Respondents

I.C.A. No. 236711 of 2018, decided on 14th January, 2019.

Land Acquisition Act (I of 1894)---

----S. 18---Constitution of Pakistan, Art. 199---Reference to court---Constitutional petition---Alternate remedy---Scope---Appellants assailed land acquisition proceedings through constitutional petition contending that the award being a result of political motivation the acquisition proceedings lacked transparency and without adopting legal procedure---Single Judge of High Court dismissed the petition---Validity---Section 18 of Land Acquisition Act, 1894 provided alternate remedy to petitioners in case of any grievance about acquisition of their land, that is, their objections as to the measurement of the land, the amount of compensation, the person to whom it was payable or the apportionment of the compensation among the persons interested---Single Judge of High Court had rightly observed that constitutional petition was not maintainable where alternate remedy was provided under a statute---Intra-court appeal was dismissed accordingly.

Habib Ullah v. Land Acquisition Collector and others 2005 SCMR 1320 ref.

2019 C L C 665

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

SHAKOOR AHMAD----Petitioner

Versus

DISTRICT JUDGE OKARA and others----Respondents

Writ Petition No. 18134 of 2018, decided on 12th December, 2018.

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

----S. 13---Enforcement of decrees---Transfer of decree to civil court of another district---Scope---Petitioner/Judgment debtor was aggrieved of the order passed by Judge, Family Court whereby it transferred the decree to another district where the petitioner resided---Plea of petitioner was that Judge, Family Court was competent to recover decretal amount as arrears of land revenue and as such there was no need to transfer the decree to the civil court to another district---Validity---Held, it was convenient and feasible for the petitioner to join proceedings before executing court in that district and to make payment of decretal amount or contest the execution petition---No right of petitioner was infringed---Executing court had not passed any order towards mode and manner of recovery of decretal amount, therefore petitioner's apprehensions were premature---Constitutional petition was dismissed, in limine.

Muhammad Sadiq v. Dr. Sabira Sultana 2002 SCMR 1950; Farooq Ahmed and another v. Additional District Judge, Samundari, District Faisalabad and 5 others PLJ 2015 Lah. 774; Abdul Matloob v. Zarqa Kalsoom and others 2003 CLC 1458; Nasir Khan v. Tahira Rashida 1986 CLC 2381; Lal Muhammad and another v. Mst. Niaz Parwara PLD 1970 Pesh. 52; Syed Maqsood Ali v. Mt. Soofia Noushaba and 2 others 1986 CLC 620 and Muhammad Ramzan and others v. Civil Judge and others 2003 YLR 2767 ref.

Muhammad Abdullah v. Yatim Khana Khalqia, Sargodha through its Manager and others 2004 SCMR 471; Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128 and Muhammad Pervez v. Mst. Nabila Yasmeen and 2 others 2004 SCMR 1352 foll.

(b) Administration of justice---

----He, who seeks equity, must do equity.

Abdul Rashid Khan and 8 others v. President, Services Institute P.A.F. Base, Lahore, through its Incharge and 2 others 1999 MLD 1870 and Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 foll.

2019 C L C 678

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Rana MEHMOOD ALI AKHTAR----Petitioner

Versus

CHAIRMAN, E.G.M.I. and others----Respondents

Writ Petition No. 5268 of 2012, decided on 15th January, 2019.

(a) Constitution of Pakistan---

----Art. 199(1)(a)(ii)---Public interest litigation---Locus standi---'Pro bono publico'---Aggrieved person---Scope---Ground floor of a Government hospital's mosque being used for running a canteen---Constitutional petition seeking a direction to administration of the hospital to vacate the ground floor of the mosque for worshippers---Maintainability---Present case was in the nature of public interest litigation and the petitioner had filed present petition as a 'pro bono publico'---Petitioner had alleged that the act of administration of the hospital allowing establishment of a canteen on the place of the mosque was illegal and unlawful as being in excess of the official authority and powers---Petitioner was seeking a direction against the illegal use and unauthorized possession over ground portion of the mosque, which was meant for prayers by the public at large---Petitioner claimed to be a regular "namazi" (worshipper) of the said mosque, and even otherwise being the citizen of the country he had every right to invoke the jurisdiction of High Court for taking notice of abuse of trust and misuse of authority by public functionaries---Issues raised and prayer made by the petitioner came within the ambit and scope of Art.199(1)(a)(ii) of the Constitution---Petitioner fell within the definition of an "aggrieved person" and he had locus standi to file present petition as contemplated in Art. 199 of the Constitution.

Government of the Punjab through Secretary Food, Punjab Secretariat, Lahore and 4 others v. Naeem Sarwar 2011 YLR 3087; Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others 2010 PLD Lah. 605; Messrs Adam Sugar Mills Limited and 2 others v. Trading Corporation of Pakistan (Pvt.) Ltd. and 8 others 2006 PCr.LJ 263 and Multiline Associates v. Ardshir Cowasjee and 2 others PLD 1995 SC 423 ref.

(b) Constitution of Pakistan---

----Art. 199---Public interest litigation---Case based on official record---Matter not involving disputed questions of facts---Ground floor of a Government hospital's mosque being used for running a canteen---Constitutional petition seeking a direction to administration of the hospital to vacate the ground floor of the mosque for worshippers---Maintainability---Plea of respondents that present petition was not maintainable as it involved disputed questions of fact---Validity---Petitioner in support of his claim had mainly relied upon the master plan of the hospital, which was an official document---Since the whole case of the petitioner was based on official record, therefore, it could not be said to be a matter involving disputed questions of fact---Constitutional petition was held to be maintainable.

Rehan Hassan Naqvi v. Pakistan Defence Officers' Housing Authority through Secretary 2000 CLC 1535 ref.

(c) Constitution of Pakistan---

----Art. 199---Public interest litigation---Ground floor of a Government hospital's mosque being used for running a canteen---Constitutional petition seeking a direction to administration of the hospital to vacate the ground floor of the mosque for worshippers---Held, that the site map which was the basic document to resolve the controversy between the parties did not suggest or prove the existence of canteen on the ground floor of the mosque in any manner---Besides the site map the existing building structure of the mosque which showed location of "Mehrab" of the mosque on the ground floor led to an irresistible conclusion that whole of the area of mosque on the ground floor was part of the mosque---Nothing on record showed that the administration of the hospital had ever decided to convert the ground floor of the mosque into a canteen or allowed its use other than for offering prayers nor sought amendment in the Master Plan from the competent authority so as to segregate the area of the mosque from the ground floor which was a part of the same structure---Hospital administration had allowed establishment of the canteen on the area of the mosque in complete disregard of the master plan and in total oblivion of the fact that according to the Injunctions of Islam and Shariah any place once declared as mosque could not be used for any other purpose---Continuation of the canteen in the space meant for a mosque and which formed an integral part thereof being the inner part or ground floor of the same premises would definitely undermine its sanctity, cleanliness and purity besides becoming a continuous source of disturbance for the people offering prayers in its upper portion---Admittedly, a canteen was a place where people generally entered and sat in a free and relaxed mood for consuming food etc. and where making noise, cracking jokes, using slang language, hustle bustle, playing songs and music were common phenomenon---By unlawfully converting the ground floor of the mosque into a canteen, the hospital administration had acted in excess of their powers and authority, vested in them by the law---High Court directed that hospital administration shall get vacated the ground floor of the mosque, which was being used as a canteen, within a period of one month, and that since the contractor running the canteen was a bona fide contractor, he was to be provided an alternate place by the hospital administration for the remaining period of his contract.

Rai Bashir Ahmad for Petitioner.

M. Akram Qureshi, Legal Advisor, General Hospital, Lahore, for Respondents Nos.1 to 3.

Tallat Farooq Sheikh and Maqbool Ahmad Sheikh for Respondent No.5.

2019 C L C 695

[Lahore]

Before Shahid Jamil Khan, J

Mrs. FARKHANDA FAROUQ and others----Petitioners

Versus

DEFENCE HOUSING AUTHORITY and others----Respondents

Writ Petition No. 11070 of 2014, decided on 5th October, 2018.

Constitution of Pakistan---

----Arts. 23, 24, 26 & 9---Constitutional safeguards for owners of immovable properties---Conversion of public amenity plots into residential or other plots---Alteration of masterplan of Housing Authority without consent/NOC from owners of surrounding plots---Accrual of interest and rights to buyers of immovable property---Changes to master-plan by housing societies and housing authorities can be ultra vires the Fundamental Constitutional Rights---Scope---Petitioners impugned the change in masterplan of a sector of a Housing Authority whereby a public park was converted into residential plots---Validity---Interest/right accrued in favour of an owner, particularly when such owner opted to purchase immovable property keeping in view available amenities---Modification in masterplan, if completely and radically altered the sanctioned plan, would amount to fraud---Interest of owners of immovable property in amenity plots, reserved for convenience and comfort of residents, was a right enforceable by invoking Constitutional jurisdiction of High Court---Sanctioned Master Plan, showing such amenity plots/ area, could not be altered without inviting objections or obtaining "No Objection Certificates" ("NOC") from residents and any modification in such plan, which altered or radically changed the sanctioned scheme, was a fraud upon the residents, who purchased the immovable properties on a representation through sanctioned plan---Even if a Housing Authority framed rules, regulations or law authorizing such alteration, the same would be ultra vires, being in conflict with the Fundamental Right to Life and rights attached with immovable property under Arts. 9, 23 & 24 read with Art. 26 of the Constitution---Amenities available to such property were necessarily appurtenant to the property, because value of a property in terms of its purpose would diminish if such amenities were removed through alteration and would amount to partial deprivation of property---High Court set aside impugned alteration in masterplan and directed the Housing Authority to restore the plot to its original position---Constitutional petitions were allowed, accordingly.

New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Halsbury's Laws of England Volume 25, Third Edition, p. 389; Shehri-CBE through General Secretary and 15 others v. Lahore Development Authority through Chairman and 6 others PLD 2012 Lah. 362 and Sheri-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202 rel.

Muhammad Saleem Chaudhry and Iftikhar Ahmed Mian for Petitioners.

Altaf-ur-Rehman Khan for Respondent No.1/DHA.

Muhammad Hammad Khan Rai, Assistant Advocate General, Punjab.

Ms. Saira Laique, A.D. Legal for Respondent No.2.

2019 C L C 726

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD HUSSAIN and another----Petitioners

Versus

AKBAR ALI and others----Respondents

Writ Petition No. 8843 of 2010, heard on 7th December, 2017.

Civil Procedure Code (V of 1908)---

----S. 47 & O. XXI, R. 15---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Execution petition---Compromise by one of the decree-holders---Effect---Objection petition---Execution of joint decree---Procedure---Statement for compromise was recorded on behalf of one of the decree-holders that he did not want execution of decree to his extent---Contention of applicants was that decree in question was not executable---Objection petition was dismissed by the Courts below---Validity---Executing Court was bound to execute the decree, as it was, and it could not exceed beyond the same---One or more persons could submit application for execution of joint decree---Omission on the part of decree-holder to state in his application the names of all the persons who were interested in the decree did not render the execution proceedings invalid---If anyone or more decree-holders had relinquished their rights in the decree then their such conduct would not make the whole decree redundant and un-executable---Petitioner-decree-holder, in the present case, had included rest of the decree-holders in the array of pro forma respondents---Executing Court had rightly protected rights of other decree-holders while observing that sale deed should be executed and registered in favour of all except one who was disinterested to get the decree executed---No illegality, irregularity or jurisdictional defect had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was devoid of merits which was dismissed, in circumstances.

Nasirud-Din and others v. Dost Mohammad and others AIR 1933 Lah. 655; Ghanaya Lal v. Madho Parshad AIR 1931 Lah. 600; Kamal Kishore Prasad Singh and another v. Hari Har Prasad Singh and others AIR (36) 1951 Patna 645; Chimna v. Chunnilal and another AIR 1955 Raj. 197; Rampalli Ramachandrudu v. Bakraj Gulab Chand Firm by Gulabchand and others AIR 1958 A.P. 709; Khadim Husain Khan and others v. Abdur Rahman Khan 1956 Allah. 575 and Muhammad Abdullah v. Yatim Khana Khalqia, Sargodha through its Manager and others 2004 SCMR 471 rel.

Ch. Abdul Ghani for Petitioner.

Saghir Ahmad Bhatti for Respondents Nos.1, 2 and 3, (i), (viii), (ix), (x) and (xiv).

Respondents Nos.3 (ii to vii, xi to xiii, xv and xvi) Proceeded ex parte.

2019 C L C 744

[Lahore]

Before Ali Akbar Qureshi, J

MALL ROAD TRADERS ASSOCIATION----Petitioner

Versus

The DEPUTY COMMISSIONER, LAHORE----Respondent

W.P. No.225987 of 2018, decided on 20th December, 2018.

Constitution of Pakistan---

----Art. 199---Writ of mandamus---Continuing mandamus, principle of---Restoring original condition of a road---Efforts and measures---Road in question was declared a model road, therefore, it was decided to restore original beauty/shape of buildings existed on its both sides, particularly from specified places---Metropolitan Corporation was given task to instruct building owners to repair their buildings, if necessary and to start paint work---Effect---High Court directed that if anyone refused to comply with the order, i.e. repair of building and paint work, the work would be completed by Metropolitan Corporation at the cost and risk of the owner of the building and the expenses were to be recovered from the owners in accordance with law---High Court following the principle of "continuing mandamus" kept the petition alive as orders were to be complied by different departments---Order accordingly.

Nemo for Petitioner.

Ch. M. Jawad Yaqub, Assistant Advocate General along with Capt. (R) Liaqat Ali Malik, Chief Traffic Officer, Lahore, Mehmood Masud Tamana, Chief Officer and Muhammad Ashraf, Town Planner, Metropolitan Corporation, Lahore and Muhammad Asad, Dy. Director L.D.A./TEPA

Omer Farooq Khan, Legal Advisor, Punjab Safe Cities Authority.

Muhammad Azhar Siddique for Applicant (in C.M. No.22 of 2018).

Rana Muhammad Farman for Applicants (in C.M. No.23 of 2018).

Ch. Muhammad Sarwar for Applicant (in C.Ms. Nos. 27, 28 and 29 of 2018).

Mubeen Uddin Qazi for the owners of Munawar Centre, Ahad Centre, Masha Allah Centre, Sarwar Centre, Husnain Centre and Al-Faisal Plaza.

2019 C L C 770

[Lahore]

Before Tariq Iftikhar Ahmad, J

GHULAM HAIDER----Petitioner

Versus

GHULAM QADIR----Respondent

C.R. No.19-D of 2017, decided on 8th December, 2017.

(a) Benami transaction---

----Ingredients---Contention of plaintiff was that he was owner of suit property and impugned transaction in favour of defendant was Benami---Suit was dismissed concurrently---Validity---Requirements; to prove Benami transaction were source of consideration; custody of original title deed; possession of suit property and motive for Benami transaction---Plaintiff except possession had failed to prove the rest of the ingredients of Benami transaction---No mis-reading or non-reading of evidence in the impugned judgments passed by the Courts below was found---Revision was dismissed in circumstances.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and 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.

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

----S. 115---Revisional jurisdiction of High Court, exercise of---Requirements---Petitioner in order to invoke revisional jurisdiction had to prove that Courts below had committed error or acted illegally or with material irregularity while deciding the matter.

Jamal Abdul Nasir for Petitioner.

Muhammad Asif Mehmood Pirzada for Respondent.

2019 C L C 777

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ZESHAN IFTIKHAR BUTT----Petitioner

Versus

Mst. MARIA ASIF and others----Respondents

Writ Petition No. 30974 of 2014, 31430 of 2012 and C.M. No. 1 of 2013, decided on 6th January, 2015.

Family Courts Act (XXXV of 1964)---

----S. 5---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ii)---Constitution of Pakistan, Art. 199---Constitutional petition---Non-consummation of marriage---Effect---Maintenance allowance, recovery of---Deferred dower---Scope---Petitioner was ex-husband of respondent and he was aggrieved of judgment and decree passed against him by Trial Court as well as Lower Appellate Court---Validity---Deferred dower became due after dissolution of marriage either by death or divorce---Marriage between parties was dissolved therefore, deferred dower had become due on part of petitioner---Wife could claim dissolution of marriage even other than ground of Khula---Respondent sought dissolution of marriage on grounds of non-payment of maintenance allowance and she successfully proved the same---Courts below were not right to direct respondent to forego her dower---Marriage having not been consummated therefore, both courts below had rightly decreed half of the dower amount---High Court declined to interfere in the concurrent judgments passed by two courts below as there was no illegality or irregularity---Constitutional petition was dismissed in circumstances.

Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another 1991 CLC 1142 rel.

M. Aqeel Wahid for Petitioner.

2019 C L C 797

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Chaudhry MUHAMMAD YOUNAS----Petitioner

Versus

MUHAMMAD KHURSHEED and 10 others----Respondents

C.R. No. 546 of 2015, heard on 2nd November, 2018.

(a) Islamic law---

----Gift--- Conditions---Document---Proof---Procedure---Inheritance---Limitation---Scope---Procedure---Res judicata, principle of---Applicability---Conditions for valid gift were declaration of gift, acceptance and delivery of possession of corpus---Written instrument in any case did not create a gift but same would be a mere piece of paper to record a past transaction---Beneficiary of gift was bound to prove the components of gift besides execution of document as well---Nothing was on record with regard to any date or month and specific name of the witnesses of transaction---Only photocopy of gift deed was brought on record and no effort was made to prove the same through secondary evidence---Defendant did not examine any of the marginal witnesses, scribe and stamp vendor of alleged deed---No attempt was made for identification of signatures of alleged deceased witness of impugned gift deed---Nothing was on record as to why evidence of stamp vendor as well as scribe was withheld in the present case---Only one of the beneficiaries was examined and the other did not appear to face the test of cross-examination---Nothing was on record to corroborate the factum that offer of gift was ever made which was accepted and possession was changed in lieu thereof---No evidence had been produced on behalf of plaintiff to prove the original transaction as well as construction of subsequent documents to acknowledge the same---If a document was tendered in evidence without objection even then it could not be treated as original having been signed and written by the persons who purported to have written or signed the same unless the writing and signatures were proved in terms of Arts. 78 & 79 of Qanun-e-Shahadat, 1984---Nothing was on record as to why deceased donor deprived of the other legal heir from the suit land---Beneficiaries had failed to discharge the onus duly shifted upon them---Impugned gift transaction was forged and fictitious one which was not to be perpetuated only at the point of limitation---Interlocutory order having attained finality could not be re-agitated---Law of limitation or principle of res judicata was not applicable in the matter of inheritance---Revision was dismissed accordingly.

Yasmeen Qureshi v. Tariq Qureshi and 2 others PLD 2006 Lah. 311; Mehbub Alim v. Razia Begum and others PLD 1949 Lah. 263; Syed Mehdi Hussain Shah v. Mst. Sahadoo Bibi and others PLD 1962 SC 291; Muhammad Sharif and 2 others v. Mst. Aisha Bibi 1994 MLD 677; Chanar Gul and 4 others v. Province of Sindh through Secretary, Sindh Secretariat and 3 others 2017 YLR Note 434; Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jhan and 4 others 2017 CLC 646; Chandu Lal Agarwala and others v. Khalil ur Rehman and others PLD 1949 Privy Council 239; Muhammad Akbar and others v. Mst. Sahib Khatoon and others 1991 SCMR 1196 and Rashid Ahmed and others v. Allah Ditta and others 2014 YLR 1748 distinguished.

Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Khan Muhammad Yousaf Khattak v. S.M. Ayub and others PLD 1973 SC 160; Sadar Abbas v. Province of Punjab and others 2015 CLC 822; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Gulistan Textile Mills Ltd. and another v. Soneri Bank Ltd. and another PLD 2018 SC 322; Ghulam Muhammad and others v. Muhammad Hussain and others 2006 CLJ 633 and Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 rel.

(b) Pleadings---

----Pleadings could not be treated as evidence until and unless its maker was called upon to testify it on oath.

(c) Islamic law---

----Inheritance---Law of limitation or principle of res judicata was not applicable in the matter of inheritance.

Maqbool Elahi Malik, Muhammad Umar Riaz, Muhammad Sajid Chaudhry and Shahzada Babar for Petitioner (in C.R. No.546 of 2015) and respondent No.10 (in C.R. No.547 of 2015).

Khalil Ahmed and Hassan Iqbal Warriach for Respondent No.10 and Petitioner (in C.R. No.547 of 2015).

Sh. Naveed Shahryar, Imtiaz Hussain Rehan, Fatima Malik and Tariq Siddique for Respondents Nos.1 to 3.

2019 C L C 811

[Lahore]

Before Amin-ud-Din Khan, J

NAWAB and another----Appellant

versus

PEHLWAN KHAN (DECEASED) through L.Rs. and others ----Respondents

R.S.A. No.143 of 2016, heard on 9th November, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell---General power of attorney---Agreement on behalf of attorney in favour of his relative---Scope---Suit was dismissed concurrently---Validity---Possession of suit property was already with the plaintiffs being tenants upon the same---Principal had revoked the alleged agreement to sell---Present suit had been filed beyond the period of limitation---When any transaction was alleged through attorney then beneficiaries were bound to prove that original owner was not available at the place where parties were entering into agreement to sell and attorney was having powers to enter into agreement to sell the suit property---Power to sell property did not give power to enter into agreement to sell---If the power of the attorney was not extended the authority to enter into an agreement to sell, then he could not enter into the said agreement---Transaction in the sale would be completed and rights and liabilities of the parties would be determined through an instrument of sale and with the registration and completion of the same no further liabilities of the parties remained against each other but in case of agreement to sell parties would be bound to perform the terms of agreement in future---Attorney could not bind the principal and enter into agreement to sell of property owned by him unless attorney was authorized specifically to bind the principal for performance of terms of the agreement in future---Attorney in the present case had no authority to enter into an agreement the sell of suit property---Alleged agreement to sell was bad on the basis of having no powers with the attorney---Attorney had transferred suit property in favour of his near relative which was a bar without special consent of the principal---Impugned judgments and decrees were based on proper appreciation of evidence available on record---Second appeal was dismissed, in circumstances.

Malik Riaz Ahmed and others v. Mian Inayat Ullah and others 1992 SCMR 1488; Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and others PLD 1985 SC 341; Dost Muhammad v. Member, Board of Revenue and others 2001 MLD 2019; Yar Baz Khan v. Lal Nawaz PLD 1996 Pesh. 86 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 rel.

Syed Ali Raza Gillani for Appellants.

M. Baleegh-uz-Zaman Chaudhry and Imran Arif Ranjha for Respondents.

2019 C L C 824

[Lahore (Bahawalpur Bench)]

Before Qazi Muhammad Amin Ahmed, J

Mian IMTIAZ AHMAD----Petitioner

Versus

JAVED IQBAL and 10 others----Respondents

Election Petition No.19 and C.M. No. 4977 of 2018, heard on 19th November, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 144 & 145---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Requirements---Solemn affirmation on oath at separate page---Effect---Law did not allow any hypothetic verification in disjunction with the pleadings---Solemn affirmation at an additional space would not meet the requirement of law---Requirements of law were not mere technicalities---Election petition which had not been verified as per law should be dismissed---Petitioner had failed even to annex statements of witnesses in the form of an affidavit---Election petition was liable to be dismissed on such ground alone---Election petition was dismissed, in circumstances.

Sardar Muhammad Naseem Khan v. Returning Officer PP-12 and others 2015 SCMR 1698; Hina Manzoor v. Malik Ibrar Ahmad and others PLD 2015 SC 396; Zia-ur-Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015 and Engr. Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250 ref.

Lt. Col. (Retired) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Ch. Zawwar Hussain Warraich v. Muhammad Aamir Iqbal and others 2015 SCMR 1186; Rasheed Ahmad v. Province of Punjab through District Collector Vehari and another 2004 SCMR 707 and Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 rel.

Ch. Riaz Ahmad, Ahmad Mansoor Chishti and Ch. Shahzad Ashraf Mohandra for Petitioners.

Sardar Muhammad Aslam Khan Dhukkar and Nusrat Ali Khan Warraich and Hafiza Mehnaz Nadeem Abbasi, Standing Counsel for Respondents.

2019 C L C 840

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD LATIF and others----Petitioners

Versus

RIAZ and others----Defendants

Civil Revision No.18 of 2016, decided on 1st August, 2018.

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

----O. XXVI, R. 1---Evidence recorded by Local Commission, legalities/irregularities---Whilst recording evidence the Local Commission omitted to write the name of one of the witness whose evidence he recorded---Moreover, the evidence was unsigned by him---Evidence had thus been recorded in violation of the law.

Ghulam Mustafa v. Abdul Malik PLD 2008 Lah. 4 ref.

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

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Mutations challenged on grounds of fraud, forgery and misrepresentation---Plea of plaintiff that the mutations were entered into the revenue record at a time when he was in prison in connection with a First Information Report (FIR)---Held, that plaintiff during recording of his evidence did not appear to have brought any material on the record to establish that he was actually behind bars when impugned mutations were effected and/or entered into the revenue record---Indeed, plaintiff had not tendered any documentary evidence through his statement---Certified copies of mutations were submitted by the plaintiff through the statement of his counsel, who also submitted a copy of an FIR, and some ancillary documents---However, the FIR and its supporting documents were not admitted into evidence as exhibits but were only marked as Mark-A and Mark-B---In such circumstances, the factum as to whether the plaintiff was indeed behind bars at the relevant time became questionable---Revision petition was allowed in circumstances.

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

----S. 3---Limitation, question of---Point of limitation had to be determined by a Court, whether trial or appellate, seized of a lis, even though, the point of limitation may not have been raised by way of defence by the contesting party.

(d) Administration of justice---

----Correct law---Court, duty of---Scope---Court had the duty and obligation to apply the correct law---Judge must wear all the laws of the country on the sleeves of his robes --- Failure of counsel to properly advise the Court was not an excuse in such respect.

Muhammad Sarwar v. The State PLD 1969 SC 278 ref.

Ch. Muhammad Anwar Bhindar for Petitioner.

Rao Jabbar Khan for Respondent No.1.

2019 C L C 859

[Lahore]

Before Ch. Muhammad Iqbal, J

Mst. DARAN BIBI alias SARDARAN BIBI through LRs----Petitioner

Versus

MUHAMMAD AKBAR and 2 others----Respondents

Civil Revision No. 1455 of 2016, heard on 2nd October, 2018.

(a) Gift---

----Ingredients---Proof of---Contradictory statements of witnesses---Effect---Contention of plaintiff was that she was gifted away suit property on the basis of gift executed in her favour---Suit was dismissed concurrently---Validity---Plaintiff being beneficiary was bound to dissipate the burden of proving the alleged transaction of gift---Plaintiff did not appear herself in the Court to prove her case and her special attorney appeared as her witness---No date, time, place and names of witnesses had been mentioned in the plaint in whose presence offer, acceptance and delivery of possession was made---Witness produced by the plaintiff had mentioned in his statement the date and names of witnesses but same was unauthorized improvement out of scope of pleadings which could not be considered or discussed---Possession was not handed over to the plaintiff under the alleged gift---Plaintiff had failed to prove the alleged gift mutation through corroborative, concrete and solid evidence---Contradictory statements of witnesses of plaintiff had extinguished the claim as propounded in the plaint---Prerequisites of valid gift were offer by the donor without any enticement or duress, acceptance of said offer by the donee and delivery of possession under gift to the donee---Ingredients of gift had neither been asserted in the plaint nor have been proved as per law---No illegality, irregularity, 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.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Limited v. Wali Bhai and others PLD 2016 SC 730; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30; Muhammad Yaqoob through Legal Heirs v. Feroze Khan and others 2003 SCMR 41; Baja through LRs and others v. Mst. Bakhan and others 2015 SCMR 1704 and Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662 rel.

(b) Islamic law---

----Gift---Essential requirements---Prerequisites of valid gift were offer by the donor without any enticement or duress, acceptance of said offer by the donee and delivery of possession under gift to the donee.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact were against petitioners---High Court declined interference.

Khalil Ahmed v. Abdul Jabbar Khan and others 2005 SCMR 911; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Rashid Ahmad v. Said Ahmad 2007 SCMR 926; Asmatullah v. Amanat Ullah through LRs PLD 2008 SC 155 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

A.D. Naseem for Petitioner.

Nauman Qureshi for Respondent.

2019 C L C 909

[Lahore]

Before Mamoon Rashid Sheikh, J

STAR HOLDINGS----Appellant

Versus

Dr. NISHAT AFZA QURESHI----Respondent

F.A.O. No.219033 of 2018, heard on 13th September, 2018.

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

----S. 17---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), S. 17(d)---Ejectment petition---Lease agreement for a period of ten years not registered---Effect---Lease of immovable property from year to year or for a term exceeding one year or reserving a yearly rent could only be made through a registered instrument, as mandated by S.107 of the Transfer of Property Act, 1882 and S.17(d) of the Registration Act, 1908---In case a lease agreement was so required to be registered but not registered with the Registrar of documents then the lease agreement was bad in law---Consequently, the relationship between such a landlord and the tenant beyond the initial period of eleven (11) months was to be regulated by the provisions of the statute in question i.e. the Cantonments Rent Restriction Act, 1963---Such a tenant became a statutory tenant and the tenancy continued on a month to month basis---In the present case, the lease agreement was for a period of ten years, however it was not registered---Admittedly, the initial eleven (11) months of the tenancy had already lapsed---Tenant was, therefore, a statutory tenant thereafter and the tenancy was to continue on a month to month basis---Plea of tenant that the lease agreement was for a period of 10-years and was not terminable prior to the lapse of the stipulated 7-years was not sustainable and was accordingly repelled---Appeal was dismissed in circumstances.

Messrs Shama Factory, Faisalabad v. Commissioner of Income Tax, Zone, Faisalabad 2006 PTD 178; Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185 and Mst. Rukhsana Bhatti v. K&N'S Foods (Pvt.) Ltd. and others PLD 2013 Lah. 119 ref.

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

----O. XLI, R. 27---Cantonments Rent Restriction Act (XI of 1963), S.17---Ejectment petition---Appeal---Additional evidence, production of---Scope---In order to be able to produce additional evidence whether oral or documentary at the appeal stage a party was required to establish that the Court against whose decree/order the appeal had been filed refused to admit evidence which ought to have been admitted---Moreover, the appellate Court while exercising its power to allow additional evidence did not normally favour a delinquent litigant---Such power was only exercised in genuine cases---In the present case, the documents that the tenant/appellant was trying to produce at the appellate stage were in its possession and power at the time of the trial of the ejectment petition and the appellant was fully aware of their existence---Explanation that the documents were not adduced in evidence during trial due to mistaken legal advice was, therefore, not tenable---Appeal was dismissed in circumstances.

Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another 2016 SCMR 2067; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 and Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 ref.

Syed Muhammad Kalim Ahmed Khurshid for Appellant.

Mian Imran Mushtaq for Respondent.

2019 C L C 920

[Lahore (Rawalpindi Bench)]

Before Mamoon Rashid Sheikh, J

Ch. ASIF ALI and others----Petitioners

Versus

MUHAMMAD MEHMOOD and others----Respondents

W.P. Nos.331 and 332 of 2018, decided on 11th February, 2019.

(a) Punjab Local Governments (Conduct of Elections) Rules, 2013---

----Rr. 14. 40, 41, 42, 43, 44, 45 & 46---Election against reserved seat of Union Council---Scrutiny of nomination papers---Provisions of R.14 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 would be applicable mutatis mutandis to an election to the reserved seats of a Union Council.

(b) Punjab Local Governments (Conduct of Elections) Rules, 2013---

----Rr. 14, 41 & 43---Election against reserved seat of Union Council---Objection to candidature of a candidate---Locus standi of objector---Provisions of R. 14 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 allowed any person to raise objections regarding the candidature of a candidate for a reserved seat even if that person was not a voter of the constituency---Candidature of any such candidate could be challenged under R. 14(1) by any contesting candidate, his election agent, proposer and seconder or any person who had raised an objection against the candidate's nomination paper and any voter of the constituency, with permission of the Returning Officer, before commencement of the scrutiny---Said objector had also been given the remedy of an appeal against the acceptance or rejection of nomination paper of the candidate in question.

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

----S. 2(ii)---Election to the reserved seat of peasant---'Peasant'---Scope---Electricity connection existed in the name of the candidate in question which had been obtained by him for a shop---Candidate also admitted to receiving pension from a company from which he had retired---Such facts went on to establish that candidate was not directly dependent on his agricultural income, if any, for subsistence living, therefore, he could not be deemed to be a "peasant" as defined in S. 2(ii) of the Punjab Local Government Act, 2013---High Court directed that the name of candidate in question be deleted from the list of validly nominated candidates for election to the reserved seat of peasant member of the Union Council---Constitutional petition was allowed accordingly.

(d) Punjab Local Governments (Conduct of Elections) Rules, 2013 ---

----Rr. 12(3) &14---Election against reserved seat of peasant in Union Council---Concealment/non-disclosure or mis-declaration of assets---Significant non-curable defect---Candidate failed to mention ownership of a shop, details of a Bank account and receipt of pension in his nomination papers, which amounted to concealment/non-disclosure and/or mis-declaration of assets---Such non-disclosure/concealment could not be termed insignificant, and it was a defect, which was of a substantial nature and could not be cured under R. 14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Candidate had also violated the solemn affirmation made by him under R. 12(3) of the said Rules in his nomination papers---High Court directed that the name of candidate in question be deleted from the list of validly nominated candidates for election to the reserved seat of peasant member of the Union Council---Constitutional petition was allowed accordingly.

(e) Punjab Local Governments (Conduct of Elections) Rules, 2013 ---

----R.14---Election against reserved seat of peasant in Union Council---Concealment/non-disclosure of assets---Significant non-curable defect---In his nomination papers the candidate in question failed to mention that besides owning inherited land he also owned land bought by him---Moreover candidate also owned residential property, value for which had not been mentioned---Such concealment/non-disclosure of assets was an omission/defect, substantial in nature which could not be cured under R. 14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Candidate had also violated the solemn affirmation made by him under R. 12(3) of the said Rules in his nomination papers---High Court directed that the name of candidate in question be deleted from the list of validly nominated candidates for election to the reserved seat of peasant member of the Union Council---Constitutional petition was allowed accordingly.

Khurram Masood Kiyani for Petitioner along with the Petitioner.

Ch. Umer Rashid for Respondent No.1 along with Respondent No.1.

Fazal-ur-Rehman for Respondent-Election Commission of Pakistan.

Khalid Mehmood Mughal, Assistant Attorney-General for Pakistan.

Nadeem Akhtar Bhatti, Assistant Advocate-General.

Muhammad Saeed, Assistant Returning Officer, UC No.80/81.

2019 C L C 947

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD ASLAM----Petitioner

Versus

ISHRAT BIBI and another----Respondents

Civil Revision No.3567 of 2016, heard on 29th May, 2017.

(a) Jurisdiction---

----Challenge to the jurisdiction of a Court over the subject matter of the lis---Such challenge, if based purely upon a point of law, could be raised at any stage, even before the Supreme Court. [p. 949] A

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

----S. 5 & Sched, Entry No. 9---Specific Relief Act, (I of 1877), Ss.12 &42---Civil court, jurisdiction of---Scope---Suit for declaration filed by wife against her husband in respect of property mentioned in Column No. 16 of the Nikahnama (i.e. property given to wife by way of "Atiya" at the time of marriage)---Whether such property fell within 'personal property and belongings of wife' and as such jurisdiction of civil courts was ousted in the matter---Held, that suits for specific performance, declaratory suits of any nature, or any other civil litigation between a wife and a husband, were not amenable to the jurisdiction of Family Courts---Civil Courts had jurisdiction in the present case.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 ref.

Mian Muhammad Nawaz for Petitioner.

Usman Azeem for Respondents.

2019 C L C 960

[Lahore]

Before Shahid Jamil Khan, J

Malik MUHAMMAD NAWAZ----Petitioner

Versus

KHAYAL AHMAD and others----Respondents

Election Petition No. 06 of 2018, decided on 7th February, 2019.

(a) Elections Act (XXXIII of 2017)---

----S. 144---Representation of the People Act (LXXXV of 1976), S.55---Election petition---Necessary ingredients---Only change in two provisions (S. 144 Elections Act, 2017 and S.55 Representative of the People Act, 1976) is that requirement for verification of every schedule or annexures has been relaxed as same does not diminish importance of verification of petition as required under Representation of the People Act, 1976---Comparison of S. 144 of Elections Act, 2017 with S. 55 of Representation of the People Act, 1976 shows that former has imposed additional obligations of attaching statements of witnesses on affidavits and documentary evidence to support allegations of alleged corrupt and illegal practice with date and place---Such insertion has rendered requirement for contents of petition and its annexures more stringent than the repealed law.

(b) Elections Act (XXXIII of 2017)---

----S. 144---Civil Procedure Code (V of 1908), O. VI, Rr. 2 & 4---Election petition---Necessary ingredients---Difference between S.144(1)(a) of Elections Act, 2017 and O. VI, R. 2, C.P.C. is that latter requires 'concise statement of material facts' whereas words used in former provision are 'precise statement of material facts' which is more stringent than provisions under general law---Similarly, under O. VI, R. 4, C.P.C. material particulars are essential if any misrepresentation, fraud, breach of trust, wilful default or undue influence is pleaded--- In other cases material particulars can be given if necessary.

Usama Ahmad Mela v. Mohsin Nawaz Ranjha and others 2019 MLD 294 rel.

(c) Constitution of Pakistan---

----Art. 225---Election dispute---Impact---Filing of election petition to challenge declaration of returned candidate by Election Commission, on any ground of corrupt and illegal practices, is to prove against presumption, displacement of which requires high standard of evidence---While conducting election of a constituency, people of constituency and government machinery undergo an extensive exercise---Election petitioner, in fact, seeks to discard whole process, which cannot and should not lightly be entertained unless alleged corrupt or illegal practice is oozing out of contents of election petition supported by mandatory attachments---Strictness for entertaining election petition appears logical for reason that from filing of petition till decision thereon people of constituency and returned candidate remain in state of uncertainty and discharge of sacred trust to extent of people of that constituency is compromised.

(d) Elections Act (XXXIII of 2017)---

----Ss. 139, 143, 144 & 145---Election Rules, 2017, R. 140---Election petition, rejection of---Defective verification---Petitioner assailed election of returned candidate on allegations of corrupt and illegal practices---Returned candidate sought rejection of petition under S.145(1) of Elections Act, 2017 for non-compliance of mandatory conditions, i.e., defective verification, ineffective service of notice and falsification of affidavit---Validity---Objection of not serving election petition with all annexures as required under Ss. 143(3) and 144(2)(c) of Elections Act, 2017 could not be decided summarily because affidavit of service along with receipts of courier service as required under relevant provisions were attached and same could not be declared false in absence of evidence---Verification and its attestation by Oath Commissioner at foot of petition, from the face of it, was defective as it did not disclose that petitioner was present before Oath Commissioner and was duly identified---Elections Petition was rejected in circumstances.

Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Muhammad Nawaz Chandio v. Muhammad Ismail Rahu and others 2016 SCMR 875; Engr. Zafar Iqbal Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 and Feroze Ahmad Jamali v. Masroor Ahmad Khan Jatoi and others 2016 SCMR 750 rel.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550 and Ch. Zawwar Hussain Warraich v. Muhammad Aamir Iqbal and others 2015 SCMR 1186 ref.

Mohammad Ahmad Qayyum, assisted by Shamail Arif for Petitioner.

Ahmad Waheed Khan and Muhammad Afzal Khan for Petitioner.

Khalid Ishaq, assisted by Wajahat Ali, Ahmad Saeed, Babar Afzaal and Abid Hussain Sial for Respondent No.1.

Chaudhary Imtiaz Ahmad Kamboh for Respondent No.3

Suneel Tariq for Respondent No.5.

Muhammad Ajmal Adil and Muhammad Wasif Shahzad for Respondents Nos.2, 7, 8, 10 and 12.

Ex parte for Respondents Nos.4, 6, 9 and 11.

Imran Arif Ranjha for Respondent No.14.

Barrister Muhammad Omer Riaz, Khalid Ishaq, Tahir Munir Malik, Mubin-ud-Din Qazi, Muhammad Ahsan Bhoon, Fakhar uz Zaman Tarar, Hamid Iftikhar Pannun and Kazim Ali Malik for Respondents.

2019 C L C 978

[Lahore]

Before Asim Hafeez, J

GUL SHER and others----Petitioners

Versus

Mst. ASLAM MAI and others----Respondents

Civil Revision No.1588 of 2011, decided on 9th January, 2019.

Gift---

----Mutation---Proof---Procedure---Donors were illiterate ladies---Effect---Contention of plaintiffs was that impugned gift mutation was based on fraud/misrepresentation---Suit was decreed concurrently---Validity---Defendant being beneficiary of alleged transaction of gift was required to discharge the onus of proof shifted upon him in view of denial of said transaction---Donors were illiterate ladies and no independent advice was available to them before transferring of suit property through alleged gift---Nothing was on record for such gift to a distant relative---No independent evidence was produced to prove the transaction of gift in question---Mutation of gift simplicitor would not be sufficient to prove/substantiate factum of transaction in favour of defendant---Beneficiary of gift had failed to discharge the onus to prove the basis of impugned mutation, in circumstances---No material irregularity in the impugned judgments and decrees passed by the Courts below was pointed out---Revision was dismissed, in circumstances.

Mst. Kamayan Bi v. Muhammad Din 2017 MLD 1251; Muhammad Iqbal Khan v. Mst. Farhat Nisa PLD 2017 Lah. 727; Muhammad Saee v. Mst. Sharaf Elahi and another 2010 SCMR 1358; Khaliq Dad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Mst. Zeenat Khatoon and 2 others v. Khaliqdad Khan and 4 others 2006 CLC 987; Mst. Khurshid Bibi and others v. Ramzan and others 2006 CLC 1023; Mian Allah Ditta through Legal Heirs v. Mst. Sakina Bibi through Legal Heirs and another 2010 CLC 966 and Abdul Hameed through L.Rs. and others v. Shamasuddin and others PLD 2008 SC 140 ref.

Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Ghulam Abbas and others v. Muhammad Shafi through L.Rs and others 2016 SCMR 1403; K.C. Mamoo v. Mrs. Badrunnisa 1985 CLC 332; Muhammad Asghar and 3 others v. Rehmat Ullah and 2 others 2012 MLD 1791; Noor Din and another v. Additional District Judge Lahore 2014 SCMR 513; Mst. Grana through legal Heirs and others v. Sahib Kamala Bibi PLD 2014 SC 167; Ghulam Nabi and others v. Mst. Zianab Bibi 2005 MLD 153; Haji Gulshan v. Abdul Qayoom and others PLD 1991 Pesh. 85; Abdul Haq and another v. Mst. Surraya Begum 2002 SCMR 1330; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278 and Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 distinguished.

Abdul Rehman v. Mst. Majeedan Bibi 2017 SCMR 1110; Jannat Bibi v. Sikandar Ali PLD 1990 SC 642; Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Mian Allah Ditta throuqh LRs v. Mst. Sakina Bibi 2013 SCMR 868; Barkat Ali through legal heirs and others v. Muhammad Ismail 2002 SCMR 1938; Aurangzeb through L/Rs v. Muhammad Jaffar and others 2007 SCMR 236 and Fida Hussain throuqh Leqal Heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCMR 1043 rel.

Sheikh Naveed Shaheryar for Petitioners.

Umer Farooq Natheka for Respondents.

2019 C L C 1008

[Lahore]

Before Jawad Hassan, J

MUHAMMAD SAEED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No. 11679 of 2012, heard on 19th February, 2019.

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

----S. 5 & Sched.---Suits for recovery of dower, maintenance and dowry articles by wife and for restitution of conjugal rights by the husband---Wife desertion by husband---Scope---Suit of wife was decreed to the extent of recovery of dowry articles---Appellate Court modified the decree and wife was held entitled to recover deferred dower---Validity---Wife had mentioned in her plaint that she was deserted by her husband, but she did not specifically mention in her examination-in-chief that she was deserted by her husband---Wife had failed to prove her forcible desertion by the husband---Filing of suit for restitution of conjugal rights demonstrated that husband was willing to rehabilitate wife but she did not want reconciliation and had obtained decree of divorce on the basis of khula---Family Court had rightly declared her disentitled to dower amount---Constitutional petition was partly allowed.

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

----S. 5 & Sched.---Suit for recovery of gold ornaments as deferred dower---Presumption regarding possession of gold ornaments---Scope---Wife filed suit for recovery of dower, maintenance allowance and dowry articles which was decreed to the extent of recovery of dowry articles by Family Court---Appellate Court modified the decree and wife was held entitled to recover deferred dower---Validity---Wife had not uttered even a single word as to whether gold ornaments had been taken away by her or the same were in the custody of her husband---Husband, during cross-examination, stated that he had given gold ornaments at the time of nikah, which wife took away at the time of deserting---Wife failed to prove that gold ornaments had been snatched by her husband---General presumption was that the gold ornaments were always possessed by females and in exceptional cases were kept by males---Findings of Appellate Court were set aside and that of Family Court were upheld.

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

----S. 5 & Sched.---Suit for recovery of dowry articles---Financial position of parents of wife---Presumption---Scope---Wife filed suit for recovery of dower, maintenance allowance and dowry articles which was decreed to the extent of recovery of dowry articles by Family Court---Appellate Court modified the decree and wife was held entitled to deferred dower---Validity---No evidence regarding source of income of parents of wife was available from which it could be presumed that father of wife was in a position to give dowry articles as claimed in the list of dowry articles---High Court observed that parents gave dowery articles to their daughters at the time of their marriage according to their financial status but sometimes they had to exceed their financial limits and even get debt for the provision of dowry articles---Husband did not deny that dowry articles were lying in his house---Courts below had rightly decreed the claim of dowry articles.

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

---S. 5 & Sched.---Limitation Act (IX of 1908), Art. 104---Suit for recovery of deferred dower---Limitation---Deferred dower was payable after a specified period of time and when no period was fixed, the same had to be paid on the death of the husband or dissolution of marriage.

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

----S. 5 & Sched.---Suit for recovery of gold ornaments as dower---Presumption---General presumption was that gold ornaments were always possessed by females and in exceptional cases were kept by males.

Ch. Muhammad Akmal Dhariwal for Petitioner.

Abid Hussain Khichi for Respondents.

2019 C L C 1020

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ALL PAKISTAN PARAMEDICAL STAFF FEDERATION UNIT, SZPMI, LAHORE----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No. 6104 of 2012, heard on 28th December, 2018.

(a) Interpretation of Constitution---

----Principle---Any Article of the Constitution was not to be read in isolation rather it must be read along with other relevant provisions on the subject.

(b) Rules of Business, 1973---

----R. 6---Functions of Federal Government---Responsibility---Cabinet is actually responsible for all functions of Federal Government and not the Prime Minister alone.

(c) Constitution of Pakistan---

----Arts. 90(1) & 91(6)---Rules of Business, 1973, R. 6---Constitutional petition---Prime Minister, powers of---Transfer of hospital---Petitioners were aggrieved of notification issued by Prime Minister of Pakistan dated 14-02-2012, whereby Sheikh Zayed Postgraduate Medical Institute was handed over to Provincial Government in compliance to Eighteenth amendment in the Constitution---Validity---High Court struck down office memorandum/notification dated 14-02-2012 issued by the Prime Minister alone to exclusion of his Cabinet as it was ultra vires the Constitution and did not carry legal sanction behind the same---High Court further declared all notifications/directions regarding establishment of Board of Trustees under said Trust to hold administrative control and run affairs of institution as ultra vires the Constitution as Sheikh Zayed Postgraduate Medical Institute was an institution established by Federal Government and was not creation of Trust---High Court also declared office memorandum/notification dated 14-02-2012 issued by Prime Minister as unconstitutional, coram non-judice, without legal authority and of no legal effect---Constitutional petition was allowed in circumstances.

2014 PCr.LJ 684 and PLD 2014 Lah. 451 distinguished.

Mustafa Impex case PLD 2016 SC 808 ref.

Bilal Bashir Mian, Mirza Aamer Baig, Ms. Uzma Razzaq Khan, Faisal Rafique Mirza, Sohail Zahid Butt, Qazi Muhammad Arshad Bhatti and Rai Sajid Ali Kharal for Petitioners.

Ch. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan along with Ms. Ambreen Moeen, Deputy Attorney General, Malik Abdul Aziz Awan, Additional Advocate General Punjab.

Usman Sahi, Advocate along with Syed Abrar Shah, Law Officer for Sheikh Zayed Hospital, Lahore (Respondent No.4).

2019 C L C 1041

[Lahore]

Before Atir Mahmood, J

Mst. DELTEX COURIER SERVICE----Appellant

Versus

SAJID IMRAN GILL and others----Respondents

F.A.O. No. 172 of 2008, heard on 9th January, 2019.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 28(4) & proviso, 27 & 33---Cause of action for consumer---Limitation period of thirty days to file a complaint---Computation---Scope---Cause of action for a consumer under Punjab Consumer Protection Act, 2005 only arose when grievance of consumer was put before the seller/service provider/manufacturer, in terms of a notice, and if there was refusal from their side to redress such grievance---No time-limit was fixed by Legislature to serve a notice in writing upon seller/service provider/manufacturer and when a notice under Punjab Consumer Protection Act, 2005 was served, such seller/service provider/ manufacturer may redress the grievance of the consumer---However, if no reply to such notice was forthcoming, then terminus a quo for computing limitation under Punjab Consumer Protection Act, 2005 was the date when fifteen days expired after receipt of notice by supplier and non-reply on the same and on such date cause of action under Punjab Consumer Protection Act, 2005 arose.

Muhammad Azam v. National Bank of Pakistan and others PLD 2013 Lah. 73 and Messrs Dawlance United Refrigeration Industries Private Ltd. through Branch Coordinator v. Muhammad Asim Chaudhry PLD 2016 Lah. 425 ref.

Raja Nadeem Haider and Ms. Ambreen Anwar Raja for Appellant.

Mahmood Tahir Ch. and Mian Abdul Saeed for Respondent No.1.

2019 C L C 1053

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

FIAZ AHMAD and others----Petitioners

Versus

MEMBER JUDICIAL-II, BOARD OF REVENUE and others----Respondents

Writ Petition No.8137/2016, decided on 12th March, 2019.

Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 2(j), 4, 9 & 11---Punjab Consolidation of Holdings Rules, 1960, R. 8---Consolidation of holdings---Ex-parte decision---Vested right---Petitioners got land in question consolidated in absence of respondents---Consolidation order was set aside on appeal by respondents---Plea raised by petitioners was that they had already raised construction over the land in question---Validity---Mere possession and construction over disputed land which was included in Wand of petitioners did not create any vested right or title in favour of petitioners---Respondents being landowners were entitled to have right over estate/disputed land regarding petitioners which was established by two hierarches of revenue department as consolidation proceedings were carried out in absence of respondents---Respondents were not heard by Consolidation Officer before passing consolidation order in question in favour of petitioners and same was rightly rectified subsequently by appellate authority---High Court declared that orders passed by appellate authority against petitioners were rightly passed in favour of respondents as respondents had not been treated in accordance with law---High Court declined to interfere in order passed by appellate authority as same was passed in consonance with spirit of law, facts and circumstances---Constitutional petition was dismissed accordingly.

Qadir Bakhsh v. Mst. Mumtaz Batool Biluch 1985 MLD 1279; Jamal Din v. Muhammad Aziz and others 2001 CLC 1726 and Mst. Farah Naz v. Judge Family Court and others PLD 2006 SC 457 rel.

Ch. Muhammad Shafi Meo for Petitioners.

Ahmad Mansoor Chishti for Respondents Nos. 2 to 5.

Jam Muhammad Afzal Gasoora, Assistant Advocate-General for Respondent No.1.

2019 C L C 1069

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD SALMAN----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and others----Respondents

Writ Petition No.16234 of 2018, decided on 26th February, 2019.

Elections Act (XXXIII of 2017)---

----S. 9---Constitution of Pakistan, Arts. 62, 218(3) & 225---Pari materia, principle of--- Effect--- Petitioner was aggrieved of withdrawal of his notification as returned candidate by Election Commission of Pakistan on grounds of illegalities affecting the poll---Validity---Petitioner had already filed appeal before Supreme Court wherein all grounds enumerated in submissions of petitioner had already been taken and Supreme Court while taking cognizance of the matter had already issued notices to respondents for comments/written statements--Grounds so taken could well be adjudicated upon by highest forum in hierarchy of adjudicatory process---Election Commission of Pakistan was deemed to be an Election Tribunal as per S. 9(4) of Elections Act, 2017 while exercising powers conferred on Election Commission of Pakistan by S. 9(1) of Elections Act, 2017---Constitutional jurisdiction in all cases could not be invoked as a matter of right, course or routine, rather such jurisdiction had certain circumventions which court was required to keep in view while exercising extraordinary discretionary powers---Condition mentioned in Art. 225 of the Constitution were meant for purpose of regulation of jurisdiction of court and availability of 'other remedy' as one of such limitations--- High Court declined to interfere in the matter in presence of pending appeal before Supreme Court---Appeal was dismissed in circumstances.

Raja Shaukat Aziz Bhatti v. Major (R) Iftikhar Mehmood Kiani and another PLD 2018 SC 578; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66; Muhammad Ashfaq v. The State and others PLD 1973 SC 368; Abrar Hasan v. Government of Pakistan PLD 1976 SC 315 and W.P. No.2604 of 2017 decided on 28-7-2017 rel.

Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Shah Muhammad v. Ghulam and another PLD 1970 SC 196; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Ibrahim v. Mohammad Hussain PLD 1975 SC 457; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Mirza Abdul Hameed and others v. Member, Board of Revenue-II 1986 SCMR 257; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others PLD 1991 SC 93; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; The State v. Asif Adil and others 1997 SCMR 209; Regional Commissioner of Income Tax, Corporate Region, Karachi and others v. Shafi Muhammad Baloch 1998 SCMR 246; Muhammad Tufail v. The State 1999 SCMR 1981; Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others 2004 SCMR 1602; Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487; Syed Fakhar Imam v. Chief Election Commission of Pakistan and others PLD 2008 SC 730; Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad through Secretary and others PLD 2010 SC 34; Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066; Dr. Muhammad Shahid Mian and another v. Faiz-ur-Rehman Faizi PLD 2011 SC 676; Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others 2011 SCMR 1084; Babar Hussain Shah and another v. Mujeed Ahmed Khan and another 2012 SCMR 1235; Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others PLD 2013 SC 1024; Malik Umar Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45; Dr. Raja Aamer Zaman v. Omar Ayub Khan and others 2015 SCMR 1303; Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Muhammad Siddique Baloch v. Jehangir Khan Tareen and others PLD 2016 SC 97; Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others 2016 SCMR 998; Mst. Sumaira Malik v. Malik Umar Aslam Awan and others 2018 SCMR 1432; Aziz-ud-Din Ahmed Khan v. Zafar Ullah Khan and others, Ajmal Hussain v. K.M. Hussain Darabu 1992 CLC 1073; National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others 2004 CLD 260; Messrs Popular Boards (Pvt.) Ltd. v. Customs, Excise and Sales Tax Appellate Tribunal and another 2007 MLD 157; Riaz Mehmood Sheikh v. Shamsher Alam Khan and another 2009 CLC 862; Col. (Retd.) S. Maqbul Illahi through Attorney v. Pakistan Defence Officers Housing Authority through Administrator 2009 YLR 282; Moulvi Saifullah Memon and another v. Province of Sindh and others 2011 CLC 1004; Sh. Tariq Mehmood and others v. E.T.P.C., and others 2011 YLR 2850; Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; Muhammad Saleem v. Province of Punjab through Administrator Town Municipal Administration, District Gujranwala and 2 others 2014 CLC 1259; Messrs National Highway Authority v. Province of Punjab and others 2014 CLC 1578; Muhammad Nawaz Khan v. Election Commission of Pakistan through Secretary and 5 others 2018 CLC 784; United Bank Limited v. Federation of Pakistan and others 2018 CLD 587; Karim Haider Shah and 3 others v. Faqir and 2 others 1992 CLC 25; The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others PLD 1958 SC 437; Mian Muhammad Shahbaz Sharif v. The State 1998 SCMR 763; Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Mst. Nusrat Batool v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and others 1999 SCMR 2811; Messrs Punjab Beverage Company (Pvt.) Ltd. through General Manager (Administration) v. Central Board of Revenue and 4 others 2001 PTD 3929; Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493; Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others PLD 2010 SC 817; Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681; Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482; Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II and others 2013 SCMR 1271; Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others 2013 SCMR 1655; D.-G. A.N.F. Rawalpindi and others v. Munawar Hussain Manj and others 2014 SCMR 1334; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233; Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others PLD 2018 SC 114; Sher Alam Khan v. Abdul Munim and others PLD 2018 SC 449; Election Commission of Pakistan and another v. Bibi Yasmeen Shah and others PLD 2018 SC 732; Abdul Waheed Chaudhry v. Rana Abdul Jabbar and others, Judgment dated 17.10.2018, passed by Hon'ble SC in Suo Motu Case No.8 of 2018 and Civil Misc. Application No.649-L of 2018 in Suo Motu Case No.8 of 2018 regarding dual nationality of Parliamentarians, Mian Sultan Ali Nanghiana v. Mian Nur Hussain PLD 1949 Lah 301; Affan Khalid v. Abdul Razzaq and another 2006 CLC 1881; Pervaiz Iqbal v. Tehsil Nazim and others 2007 CLC 583, Syeda Waheeda Shah v. Election Commission of Pakistan through Chief Election Commissioner and 4 others PLD 2013 Sindh 117; Engro Foods Ltd. v. C.D.G. and others 2016 CLC 234; Haider Gabol through Lawful Attorney v. Province of Sindh and others 2017 CLC Note 118; Hassan Shahjehan v. FPSC through Chairman and others PLD 2017 Lah. 665 and Malik Taj Ahmad v. Malik Muhammad Nawaz, Member of Provincial Assembly (MPA), Punjab and others PLD 2018 Lah. 723 ref.

Muhammad Shehzad Shaukat, Barrister Taha Shaukat, Taha Asif, Syed Fayyaz Hussain Zaidi and Muhammad Saad Iqbal Sial for Petitioner.

Barrister Malik Muhammad Yousaf Hanjra, Assistant Attorney General, Ch. Pervaiz Akhtar Gujjar, Ch. Hasan Murtaza Mann, Ali Mumtaz Khawaja Waseem Abbas, Imran Humayun Cheema, Barrister Sajeel Sheryar and Muhammad Bilal Butt for Respondents.

2019 C L C 1110

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD AHMED CHATTHA----Petitioner

Versus

CH. AADIL BAKSH CHATHA and others----Respondents

Election Petition No.27 of 2018, decided on 15th April, 2019.

(a) Elections Act (XXXIII of 2017)---

----S. 144(4)---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Scope and object---Verification of an election petition as envisaged by S. 144(4) of the Elections Act, 2017 ('the Act') was to be done in accordance with the procedure as laid down in O. VI, R. 15, of the C.P.C.---Object of such exercise was to ensure that false and frivolous allegations were not made in election petitions, and the person making the allegations assumed responsibility in respect thereof.

Lt.-Col.(Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana 2015 SCMR 1585; Sultan Mahmood Hinjra v. Malik Ghulam Mustaffa Khan and others 2016 SCMR 1312 and Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others 2016 SCMR 750 ref.

(b) Elections Act (XXXIII of 2017)---

----S. 144(4)---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Question of law---Question as to whether the verification of an (election) petition or the affidavit in support of such petition was in accordance with the law or not, was a question which did not require recording of evidence for its determination, as the question of proper consideration of a document was a question of law and not of fact.

Gulzar Khan v. Shahzad Bibi and another PLJ 1974 SC 179; Amir Abdullah Khan through Legal Heirs and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972 and Mst. Maryam Bibi and others v. Muhammad Ali through L.Rs. 2007 SCMR 281 ref.

(c) Elections Act (XXXIII of 2017)---

----S. 144(4)---Election petition, verification of---Lack of full particulars and signatures---Interpolation---Verification of the election petition showed that the verification clause was typed/printed followed by the petitioner's signature as deponent---Signature of the petitioner was attested by the Oath Commissioner with the date mentioned therein ---Verification clause was followed by the typed/printed words to the effect that the verification was identified by an Advocate, however, the advocate's signature and full particulars were not mentioned therein---Verification clause was followed by the typed/printed certificate of the Oath Commissioner---Underneath the Oath Commissioner's certificate a certificate had been given by the counsel for the petitioner to the effect that it was the first petition on the subject before the Tribunal---Said certificate appeared to have been signed by an Advocate but the name and / or particulars of the Advocate had not been given---Oath Commissioner had not given the full particulars of the Advocate, who was stated to have identified the petitioner to the Oath Commissioner---Moreover, there was no endorsement to the effect as to how the Oath Commissioner claimed to know the Advocate or whether he had examined the CNIC of the Advocate or his Bar Council/Association identity card---At the bottom of the (verification) page a rubber stamp had been affixed by the Oath Commissioner-Blank spaces in the rubber stamp had been filled in the handwriting of the Oath Commissioner, however in the space left out for filling the name of the identifier, the handwriting used was different---Moreover, the pen and the ink which had been used for the said purpose also appeared to be different---Verification of the petition appeared to be the result of interpolation and was not done in accordance with law---Election petition was dismissed as being not maintainable.

(d) Interpretation of document---

----When the deed or document in question contained ungrammatical language and could not be read literally so as to give a clear meaning without adding or removing some words then the document shall be said to be suffering from a patent ambiguity and oral evidence was not admissible to cure the defect.

(e) Elections Act (XXXIII of 2017)---

----S. 144(4)---Election petition, verification of---Oath Commissioner, duty of---Scope---Oath Commissioner at the time of verification of the election petition must take care that he recorded and endorsed the verification/attestation in the manner that he stated that the oath had been actually, physically and duly administered to the election petitioner / deponent---Additionally the full particulars of the person who had identified the election petitioner/ deponent to the Oath Commissioner were also to be mentioned in the verification.

(f) Elections Act (XXXIII of 2017)---

----S. 144(4)---High Court (Lahore) Rules and Orders, Vol. IV, Chap.12, Rr. 11, 12, 14, 15 & 16---Election petition, verification of---Affidavit filed in support of the petition in absence of verification---Pre-requisites of such an affidavit listed.

Following are the pre-requisites that an affidavit filed in support of an election petition (in absence of verification) had to fulfil in order to be accepted:

(i) Identification of deponent;

(ii) Particulars of deponent and identifier to be mentioned at the foot of the affidavit;

(iii) Time and place of the making of the affidavit to be specified;

(iv) Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him;

(v) Date, signature and name of the office and designation of the Court/Magistrate/Other Officer to be subscribed underneath the certification;

(vi) Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer;

(vii) Where deponent of an affidavit did not understand the contents of an affidavit, the Court/Magistrate/Other Officer administering oath must read out the contents of an affidavit to such person so that he understood. Where such was the case, the Court/Magistrate/Other Officer shall note at the foot of the affidavit that the affidavit had been read out to the deponent and he understood its contents;

(viii) Deponent to sign/mark and verify the affidavit and the Court Magistrate or Other Officer administering the oath or affirmation to attest the affidavit; and

(ix) Oath to be administered by the Court/Magistrate/Other Officer in accordance with the Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto.

Lt.-Col.(Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana 2015 SCMR 1585 rel.

(g) Elections Act (XXXIII of 2017)---

----S. 144(2)(c)---Election petition---Affidavit of service filed by the petitioner, legality of --- Time of making the affidavit had not been specified --- Requisite details of the Advocate who identified the petitioner/deponent to the Oath Commissioner including the advocate's CNIC and / or Bar Council/Association Identity Card had not been mentioned in the verification portion of the affidavit --- Moreover, the Oath Commissioner had not signed the typed / printed certificate to the effect that the affidavit was made before him and that the Advocate's named therein identified the petitioner/deponent to him --- Oath Commissioner had instead affixed his rubber stamp at the bottom of the page and signed it, however he had not mentioned the name of the identifier in the rubber stamp --- Since the typed/printed certificate had not been signed by the Oath Commissioner, therefore, the rubber stamp signed by the Oath Commissioner had to be considered, which stamp lacked the name of the identifier --- Affidavit of service had not been made in accordance with the law, therefore, the election petition, could not be said to have been filed after complying with the provisions of S.144(2)(c) of the Elections Act, 2017 --- Election petition was dismissed as being not maintainable.

Bahadur Bokhari, M. Mohsin Malik and Hassan Ijaz Cheema for Petitioner.

Muhammad Shahzad Shaukat for Respondent No.1.

2019 C L C 1128

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Messrs NEW ERA TECHNOLOGIES (PRIVATE) LIMITED through Chief Executive Officer, Lahore----Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and others----Respondents

Writ Petition No.255111 of 2018, heard on 2nd April, 2019.

(a) Punjab Procurement Rules, 2014 ---

----Rr. 25, 27 & 31(2)---Tender---Re-advertisement of tender---Second bidding document---Change in evaluation criteria---Mis-procurement---In terms of R. 25 of the Punjab Procurement Rules, 2014 ('the Rules'), it was incumbent upon the procuring agency to provide a specific qualification and bid evaluation criteria, which was further supplemented by R. 31(2) of the said Rules which categorically provided that failure to provide unambiguous evaluation criteria in the bidding documents would amount to mis-procurement---Further as per R. 27 of the Rules, the procuring agency may require the bidders to furnish a bid security not exceeding five percent of the estimated price i.e. the price of procurement estimated by the procuring agency before initiation of the process of procurement, but the same had not been done in the present case---Factual controversy was involved in the present case as to whether compliance of R. 27 had been treated as mandatory by the relevant Government department on previous occasions---In the first instance, such controversy was required to be dilated upon by the relevant Secretary of the concerned Government department---High Court transmitted a copy of present petition along with its annexures to the relevant Secretary, with the direction to treat it as further representation and decide the same afresh strictly in accordance with law, after hearing petitioner and all concerned, through a well-reasoned speaking order, and not to disturb the contract already awarded to one of the respondents, fate of which shall be subject to the final decision of the Secretary --- Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Factual controversy---Such controversy could not be resolved in exercise of constitutional jurisdiction.

(c) Punjab Procurement Rules, 2014---

----Rr. 25, 27 & 31(2)---General Clauses Act (X of 1897), S. 24-A---Objections raised in an application not properly appreciated, considered and addressed by the competent authority---Effect---Non-speaking order---Objections raised by petitioner regarding violation of the Punjab Procurement Rules, 2014; bidding process lacking due process; violation of principles of natural justice, and non-consideration of its contentions had not been properly appreciated, considered and addressed by the relevant Secretary of the concerned Government department, while passing the impugned order ---Impugned order was therefore a non-speaking order in terms of S. 24-A of the General Clauses Act, 1897---Constitutional petition was allowed accordingly.

Barrister Haris Azmat, Muhammad Bilal Ramzan, Barrister Maryam Hayat and Muhammad Faizan Azhar for Petitioner.

Barrister Zargham Lakhesar, Assistant Advocate-General, Mirza Nasar Ahmad and M. Asad Buttar along with M. Tariq Hanif, Law Officer for Respondents.

2019 C L C 1141

[Lahore (Bahalwalpur Bench)]

Before Jawad Hassan, J

MUHAMMAD ASLAM----Petitioner

Versus

MEMBER (COLONIES) BOARD OF REVENUE PUNJAB LAHORE and others----Respondents

Civil Revision No.336 of 2010, decided on 26th March, 2019.

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

----S. 164, proviso---Allotment of land in favour of petitioner was cancelled by appellate authority in revenue hierarchy---Plea raised by petitioner was that he was not afforded opportunity of hearing---Maxim: audi alteram partem---Applicability---Validity---Petitioner was not afforded opportunity of hearing despite the fact that record was made available to Board of Revenue and it could have kept in mind that someone may be affected by such order--- Courts below had dilated upon specific findings on issue which was clear violation of doctrine of Maxim: audi alteram partem--- High Court set aside order passed by Board of Revenue as petitioner was condemned unheard and same was declared void ab initio having no value in eyes of law---Judgments and decrees passed by courts below were set aside and case was remanded to Board of Revenue for decision afresh after affording proper opportunity of hearing to all concerned including the petitioner---Revision was allowed accordingly.

Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Ali Muhammad v. Allah Ditta and others 1985 CLC 2817; Moulana Atta ur Rehman v. Al Hajj Sardar Umar Farooq and others PLD 2008 SC 663 and Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Due process of law and right of fair trial---Maxim: audi alteram partem---Connotation and applicability---Scope---Natural justice, principles of---Scope---Every person to get a chance of being heard---Maxim: Audi alteram partem means 'hear the other side' or 'no man should be condemned unheard' or 'both sides must be heard before passing any order'---Maxim itself says 'no person should be condemned unheard'---No case or judgment can be decided without listening to point of another party---Natural justice means that justice should be given to both parties in a just, fair and reasonable manner---Both parties are equal before the Court and have an equal opportunity to represent them--- Natural justice is concept of common law which implies fairness, reasonableness, equality and equity---Principles of natural justice are grounds of Art. 10-A of the Constitution that every person should be treated equally--- Law and procedure must be of a fair, just and reasonable kind--- Principles of natural justice come into force when prejudice is caused to any administrative action---Principle of audi alteram partem is basic concept of principle of natural justice and states that "no one should be condemned unheard"---Maxim ensures a fair hearing and fair justice to both the parties and both parties have right to speak---No decision can be declared without hearing both parties---Object of Maxim: audi alteram partem is to give an opportunity to both parties to defend themselves--- No proposition can be more clearly established than that a man cannot incur loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering case against him--- No party is to suffer in person or in purse without an opportunity of being heard---Maxim: audi alteram partem is first principle of civilized jurisprudence and is accepted by law of men---Generally, said maxim includes two elements (a) notice; and (b) hearing---Before any action is taken, effected party must be given a notice to show cause against proposed action and seek his explanation and is a sine qua non of right of fair hearing---Any order passed without giving notice is against principles of natural justice and is void ab initio---Second ingredient of Maxim: audi alteram partem (hear the other side) is rule of hearing---If order is passed by authority without providing reasonable opportunity of being heard to person effected by it adversely, such order is invalid and must be set aside--- Reasonable opportunity of hearing which is also well-known as 'fair hearing' is an important ingredient of audi alteram partem rule--- Such condition may be complied by authority by providing written or oral hearing which is discretion of authority unless statute under which action is being taken by authority provides otherwise.

Bank of Punjab v. Accountability Courts Nos.1 and 2 others PLD 2014 Lah. 92 rel.

A.R. Aurangzeb for Petitioner.

Asif Mahmood Pirzada for Respondents.

Jam Muhammad Afzal Gasoora, Assistant Advocate-General.

2019 C L C 1156

[Lahore]

Before Mamoon Rashid Sheikh and Shahid Waheed, JJ

The INSPECTOR GENERAL OF POLICE, PUNJAB through District Police Officer----Appellant

Versus

ABDUS SALAM and another----Respondents

I.C.A. No. 765 and C.M. No.1-C of 2019, decided on 26th February, 2019.

Law Reforms Ordinance (XII of 1972)---

----S.3---Limitation Act (IX of 1908) S.12 & Art. 151---High Court, (Lahore) Rules and Orders Vol.V Chap. 1-A R.4---Intra-court appeal---Limitation for filing of---Grounds for condonation of delay in filing of intra-court appeal---Government functionaries / Departments seeking condonation of delay---Scope---Conjoint reading of Art. 151 of the Sched. to Limitation Act, 1908 and R. 4 of Chap. 1-A Vol. V of the High Court (Lahore) Rules and Orders revealed that intra-court appeal may be filed within a period of twenty days, without filing of a copy of the judgment appealed from---Government functionaries could not be shown preferential treatment for determination of question of condonation of delay---Government functionaries / agencies could not claim to be treated differently from any other ordinary litigant and an applicant for condonation of delay was required to explain each day of delay properly and satisfactorily, and contention that delay occurred due to fulfillment of formal requirements at different Departmental levels was not a valid ground for extension of time of limitation and could not constitute a ground for condonation of delay.

The Deputy Director, Food, Lahore Region, Lahore and others v. Syed Safdar Hussain Shah 1979 SCMR 45; Custodian of Enemy Property v. Hoshang M. Dastur and others 1979 SCMR 191 and Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37 rel.

2019 C L C 1211

[Lahore]

Before Shahid Waheed, J

MUHAMMAD MASOOD UL HASSAN----Applicant

Versus

Maulana MASROOR NAWAZ JHANGVI and others----Respondents

C.M. No. 02 of 2019, decided on 4th February, 2019.

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

----S. 76-A---Application for challenging the Bye-election of returned candidate of Provincial Assembly---Term of election under challenge had expired by efflux of time and term of Provincial Assembly constituted under the impugned election was over---Election of respondent, therefore, could not be set aside, in fact relief for setting aside the election had been rendered infructous---High Court, in circumstances, observed that court could not undertake to decide an issue unless it was a living issue between the parties---If an issue was purely academic in that its decision one way or the other would have no impact on the position of parties, it would be waste of public time to engage itself in deciding the same---Application having become infructous was disposed of according.

Sun Life Assurance Co. of Canda v. Jervis 1944 AC 111; Munawar Iqbal Gondal v. Mrs. Nasira Iqbal and others 2014 SCMR 860; Kashi Nath Mishra v. Vikramaditya Pandey and others (1998) 8 S.C. C. 735 and Mundrika Singh Yadav v. Shiv Bachan Yadav and others (2005) 12 S.C. C. 211 rel.

Yousaf Naseem Chandio for Applicant.

Muhammad Khalid Pervaiz Sipra for Respondent No.1.

2019 C L C 1236

[Lahore]

Before Muzamil Akhtar Shabir, J

ALTAF SHAFI and another----Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government and 9 others----Respondents

W.P. No. 256791 of 2018, decided on 19th December, 2018.

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

----Ss. 35 & 144---Punjab Local Government (Vote of No Confidence) Rules, 2018, Rr. 4(1) & 6(4)---Vote of no confidence---Procedure---Opportunity of hearing, providing of---Local government elections---Petitioners were returned candidates and were aggrieved of not being provided opportunity of hearing by the Presiding Officer against no-confidence vote to their nomination---Validity---Provision of R. 6(4) of Punjab Local Government (Vote of No-Confidence) Rules, 2018 was not applicable to proceedings before the Presiding Officer under R. 4(1) of Punjab Local Government (Vote of No-Confidence) Rules, 2018 when he was to decide as to on which date meeting was to be called for considering motion---Presiding Officer was to notify person against whom no-confidence motion was to be pleaded before the House to defend himself which notices were already issued to petitioners requiring them to defend themselves---Issuance of notice to petitioners before fixing date for considering motion of no-confidence against them was not a legal requirement, non-compliance of which would have rendered said notice as illegal or without jurisdiction---No prejudice was caused to the petitioners because they had right to defend no-confidence motion filed against them before the House in meeting fixed for the purpose---High Court declined to interfere in order passed by Presiding Officer---Constitutional petition was dismissed in circumstances.

Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Hassan Iqbal Warraich and Muhammad Rafique Jathol for Petitioners.

Muhammad Arshad Manzoor, A.A.G.

Ch. Mushtaq A. Khan for Respondent No.9.

2019 C L C 1247

[Lahore]

Before Shams Mehmood Mirza, J

Messrs BHIMRA TEXTILE MILLS (Pvt.) LTD. through Authorized representative----Petitioner

Versus

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

W.P. No. 23892 of 2014, decided on 14th February, 2019.

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

----S.11---Natural Gas Regulatory Authority (Licensing) Rules, 2002, R.20(xiv)---Constitution of Pakistan, Art.199---Technical issues relating inter alia, to the gas meter---Decision of Oil and Gas Regulatory Authority---Validity---Constitutional jurisdiction of High Court---Nature and scope---High Court in exercise of its Constitutional jurisdiction was only concerned with the process of Judicial review of decision-making---Control exercise by the High Court over judicial and administrative tribunals was not appellate in nature, but was rather supervisory---Scope of writ of certiorari was only concerned with jurisdiction exercise by inferior tribunals and qualifications and conditions of its exercise---Constitutional jurisdiction could also be invoked when a tribunal, though not lacking in jurisdiction, nevertheless failed to observe the rules of procedure of principles of natural justice in its decision-making---Error in a decision may also be amenable to the supervisory jurisdiction of High Court if it was based on clear ignorance of the law or where an express provision of law was disregarded.

Nagendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam and others (1958) SCR 1240 rel.

Muhammad Ali Raza for Petitioner.

Haroon Dugal for Respondent/OGRA.

2019 C L C 1261

[Lahore]

Before Muzamil Akhtar Shabir, J

Syed MUHAMMAD TAQI RAZA NAQVI----Petitioner

Versus

JUDGE FAMILY COURT and 4 others----Respondents

W.P. No. 673 of 2019, decided on 10th January, 2019.

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

----S. 5, Sched & S. 17-A---Suit for recovery of maintenance allowance for minor and wife---Interim maintenance, fixation of---Interim maintenance for minors was fixed and thereafter Family Court fixed interim maintenance for the wife---Constructive res judicata, principle of---Applicability---Contention of defendant-husband was that Family Court had no jurisdiction to subsequently pass an order to fix interim maintenance for wife and impugned order was barred by principle of constructive res judicata---Validity---Family Court was bound to fix monthly interim maintenance allowance of the wife or a child on the first date of appearance of defendant---Family Court while fixing interim maintenance allowance of minor did not consider and decide the matter with regard to the wife and same could not be deemed to have been refused---No one should suffer for any act or omission of the Court---Family Court was competent to adopt any procedure and pass any order to regulate its own proceedings unless same was barred under any law---If Family Court had not earlier passed an order fixing interim maintenance for the wife then it had jurisdiction to pass the order later on as said procedure was not barred under the law---Impugned order was silent with regard to fixation of interim maintenance for the wife at the time of fixing the same for minors---Family Court had not refused to fix interim maintenance allowance for the wife, in circumstances---Principle of constructive res judicata barred any claim ought to have been raised and decided in an earlier proceedings but was not raised or if raised no relief was allowed---Matter, in the present case, with regard to fixation of interim maintenance was still pending with the Family Court who had not expressed its opinion about taking the said claim into consideration---Even otherwise question of maintenance was a recurring cause of action which could be raised on every successive occasion---Interim maintenance had to be fixed on monthly basis and principle of constructive res judicata was not applicable, in circumstances---Family Court could pass even separate order on a subsequent date at any stage with regard to fixation of interim monthly maintenance for the wife and the child---Fixation of interim maintenance for the minors on one date did not debar the Court from fixing interim maintenance of wife on subsequent date or vice versa---Petitioner had also challenged the quantum of interim maintenance fixed by the Family Court---Said order was an interlocutory order against which appeal was not available to the petitioner---Constitutional petition could not be treated as a substitute of appeal unless some illegality or erroneous exercise of jurisdiction was pointed out---No illegality had been pointed out in the impugned order passed by the Family Court---Constitutional petition was not maintainable which was dismissed, in circumstances.

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

----S. 17-A---Interim maintenance, fixation of---Scope---Family Court was bound to fix monthly interim maintenance allowance of the wife or a child on the first date of appearance of defendant.

(c) Administration of justice---

----No one should suffer for any act or omission of the Court.

Sh. Usman Karim-ud-Din for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General. On Court's Call.

Muhammad Arshad Manzoor, A.A.G. On Court's Call.

2019 C L C 1303

[Lahore]

Before Mirza Viqas Rauf, J

Messrs ASH ASSOCIATES, ISLAM COLONY, SIALKOT ROAD, GUJRANWALA through Proprietor----Petitioner

Versus

The CHIEF EXECUTIVE OFFICER, PUNJAB RURAL SUPPORT PROGRAM and 2 others----Respondents

Civil Revision No.249999 of 2018, heard on 14th February, 2019.

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

----S. 34---Civil Procedure Code (V of 1908), O. VII, R. 11---Arbitration clause---Stay of proceedings---Principle---Plaintiff filed suit for recovery of money and was aggrieved of stay of proceedings---Defendants after availing two opportunities for filing of written statement, moved application under O. VII, R. 11, C.P.C. seeking rejection of plaint on grounds that suit was not maintainable in view of arbitration clause available in contract agreement---Application filed by defendants under O. VII, R. 11, C.P.C. was treated as an application under S. 34 of Arbitration Act, 1940 and proceedings were stayed---Validity---Mere wrong mentioning of provision of law could not deprive a party from relief for which it was otherwise entitled---Such was not a matter hinging upon wrong mentioning of a provision as defendants with conscious mind moved application by invoking provision of O.VII, R. 11 C.P.C.---Defendants had no intention to seek stay of proceedings rather they while canvasing multiple reasons, including arbitration clause of agreement, sought rejection of plaint---Application moved by defendants could not be treated as application under S. 34 of Arbitration Act, 1940 and proceedings could not be stayed--- High Court set aside judgment and decree passed by Trial Court resulting into dismissal of application filed by defendants--- Revision was allowed in circumstances.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196 and Yezdiar Homi Kaikobad and another v. Ferozsons Ltd. through Chief Executive and 3 others 2005 YLR 783 rel.

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

----S. 34---Civil Procedure Code (V of 1908), O. VII, R. 11---Stay of proceedings and rejection of plaint---Distinction---Provision under O. VII, R. 11, C.P.C. can be invoked even without any formal application, if court is satisfied that plaint is hit by any of four eventualities mentioned therein, consequence thereof is rejection of plaint; whereas, provision under S. 34 of Arbitration Act, 1940 cannot be invoked by court by its own and it is party to proceedings who may at any time before filing a written statement or taking any other steps in proceedings can apply for stay of proceedings---One form of proceedings cannot be converted into other on grounds that there was merely wrong mentioning of provision of law.

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

Riaz Karim Qureshi for Petitioner.

Yasir Islam Ch. for Respondents.

2019 C L C 1320

[Lahore]

Before Amin-ud-Din Khan, J

SHEHZAD IQBAL MALIK----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

W.P. No. 249570 and C.M. No. 3 of 2018, decided on 29th November, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. XIV, Rr. 1 & 2---Suit for specific performance of agreement to sell---Framing of issues---Issues of law and fact---Scope---Trial Court framed only one issue whereby it required defendant to prove that plaintiff had failed to pay the outstanding amount---Validity---Civil matter could not be decided in piecemeal by framing a single issue with regard to factual controversy---Legal issue could be framed as preliminary issue but issue relating to factual controversy could not be framed as such---Trial Court had framed preliminary issue relating to factual controversy and had placed its onus on defendant as such it was pre-determination of the suit that if the defendant failed, the suit would stand decreed---High Court directed the Trial Court to frame proper issues and proceed in accordance with law---Constitutional petition was disposed of accordingly.

Muhammad Ayyub Aheer for Petitioner.

2019 C L C 1333

[Lahore]

Before Shahid Bilal Hassan, J

Mrs. AASIA RIZVI and others----Petitioners

Versus

Mian MUHAMMAD ASLAM and others----Respondents

Civil Revision No.192956 of 2018, heard on 24th January, 2019.

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

----O. VII, R. 11 & O. VI, Rr. 16 & 17---Suit for partition---Partial rejection of plaint---Scope---Striking out pleadings---Scope---Impleading of necessary party---Principles---Purchase of land from joint Khata---Possession subject to partition of property in question---One of the defendants moved application for rejection of plaint to his extent which was accepted---Contention of plaintiff was that partial rejection of plaint could not be made---Validity---Plaint could not be rejected in piecemeal as concept of partial rejection of plaint was inapplicable to the provisions of O. VII, R. 11, C.P.C.---Pleadings could be partially struck out but plaint could not be rejected partially---Plaintiff in a suit was dominus litis who might choose persons against whom he did intend to litigate and he could not be compelled to sue a person against whom he did not seek any relief---If a necessary party was not impleaded then suit itself was liable to be dismissed---Defendant who had been deleted from the suit had purchased the suit land---If a person did purchase a land out of joint holding then he would become a co-owner in the holding along with other co-owners---If the purchaser had obtained any land from joint holding then such possession would be subject to the partition of Khata---Courts below while passing the impugned orders had erred in law and Committed material illegality---Impugned orders passed by the Courts below were set aside---Application filed under O. VII, R. 11, C.P.C. would be deemed to have been dismissed---Revision was allowed, in circumstances.

Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al-Saud and 20 others 2017 YLR 1579; Mian Muhammad Akram and others v. Muhammad Rafi 1989 CLC 15; Mst. Shahnaz Begum v. Mst. Zulaikha Bibi and 5 others 1989 CLC 1526; Asgharali v. P.K. Shahani and 2 others 1992 CLC 2282; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and Haji Abdul Mateen Akhundzada and another v. District Coordination Officer/Deputy Commissioner, Quetta and 5 others PLD 2012 Bal. 154 distinguished.

E.F.U. General Insurance Company Ltd. through Branch Manager and 2 others v. Zahidjee Textile Mills Ltd. through Assistant Director and another 2005 CLC 848; Maxim Advertising Co. (Pvt.) Limited v. Messrs Z&J Hygenic Products and 2 others 2007 YLR 2252; Mst. Nishat Ishaq v. Amjad Khan and 2 others 2014 CLC 71; Mst. Jan Ara and others v. Muhammad Zubair and others 2012 CLC 1630; Muhammad Ali Shaikh v. Sui Southern Gas Company Ltd. through Managing Director and 3 others 2014 YLR 444; Nanik Ram and others v. Ghulam Akbar and 9 others 2016 MLD 52; Feroze Din and another v. Master Muhammad Sher Khan 1979 CLC 742; Moinuddin Paracha and 6 others v. Sirajuddin Paracha and 23 others 1993 CLC 1606; Valuegold Limited and 2 others v. United Bank Limited PLD 1999 Kar. 1; E.F.U. General Insurance Company Ltd. through Branch Manager and 2 others v. Zahidjee Textile Mills Ltd. through Assistant Director and another 2005 CLC 848; Maxim Advertising Co. (Pvt.) Limited v. Messrs Z&J Hygenic Products and 2 others 2007 YLR 2252; Mst. Nishat Ishaq v. Amjad Khan and 2 others 2014 CLC 71; Ata Ullah and 6 others v. Sana Ullah and 5 others PLD 2009 Kar. 38; Muhammad Afzal v. Muhammad Manzoor and 40 others 2013 YLR 85; Muhammad Khalid Pervez Ramay v. Talat Mehmood PLJ 2015 Lah. 425 and Mariam Bibi and 7 others v. Hakam Ali and others 2017 CLC Note 223, p. 250 rel.

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

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

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

----O. I, R. 10 (2)---'Necessary party'---Meaning.

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

----O. I, R. 10 (2)---'Proper party'---Meaning.

Messrs Abid Saqi and Sheikh Usman Karim-ud-Din for Petitioners.

Ahmad Waheed Khan and Ali Masood Hayat for Respondents.

2019 C L C 1343

[Lahore]

Before Atir Mahmood, J

ABDUL GHAFOOR----Appellant

versus

MUHAMMAD SHAFFI and others----Respondents

Regular Second Appeal No. 16 of 2017, heard on 20th February, 2019.

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

----Ss. 135, 172 & 3---Specific Relief Act (I of 1877), Ss. 42, 54 & 8---Suit for declaration, possession and permanent injunction---Partition of agricultural property---Exclusive jurisdiction of Revenue Court---Jurisdiction of civil court barred---Exclusion of site of a town or village from operation of the Punjab Land Revenue Act, 1967---Scope---Plaintiff filed suit for declaration, partition and possession with permanent injunction claiming therein that he and defendants were co-sharers in the property and that defendants were cultivating crops as well as raising construction over the property---Trial Court decreed the suit whereas Lower Appellate Court dismissed the suit on the ground that the disputed land did not fall within the limits of a town or village, therefore, jurisdiction of Civil Court was barred---Validity---Held, Jamabandi revealed that the whole Khewat was consisted of land measuring 99-Kanals and 10-Marlas and the land measuring of 93-Kanals and 19-Marlas was cultivable whereas only 5-Kanals and 11-Marlas was 'Ghair Mumkin' (non-cultivable)---Khasra Girdawri showed that major part of the land was cultivable---No sound proof of Abadi at the disputed land was available, rather the same was cultivable---Lower Appellate Court had rightly relied upon S. 3(2) of Punjab Land Revenue Act, 1967 and held that plaintiff had not produced any notification of Collector, or special orders of the Board of Revenue showing that the land in question had been included within the site of town or village, however, documents produced by plaintiff showed that major portion of disputed property was agricultural land and cultivable---Suit property, being agricultural land, came under the exclusive jurisdiction of Revenue Court and the jurisdiction of Civil Court was barred---Appeal was dismissed.

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

----S. 135---Partition of agricultural property---Exclusive jurisdiction of Revenue Court---Jurisdiction of Civil Court---Scope---Partition of agricultural land falls within the exclusive domain of Revenue Officer and the jurisdiction of Civil Court is barred---Decree passed by Civil Court relating to the partition of agricultural land is without jurisdiction and nullity in the eyes of law.

Qamar Sultan v. Mst. Bibi Sufaidan 2012 SCMR 695 rel.

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

----Ss. 135 & 172---Partition of agricultural property---Exclusive jurisdiction of Revenue Court---Bar on jurisdiction of Civil Court---Scope---Section 135, Punjab Land Revenue Act, 1967 confers power upon a Revenue Officer to make partition of land, on application of any joint owner, whereas, S. 172 of the said Act expressly excludes the jurisdiction of Civil Courts in any matter in which the Government, Board of Revenue or any Revenue Officer, is empowered by the Punjab Land Revenue Act, 1967 to dispose of---Civil Court has no jurisdiction to adjudicate upon a suit praying partition of agricultural land.

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

---S. 135---Partition of agricultural property---Construction on agricultural property---No hard and fast rule can be laid down regarding the type and extent of constructions on agricultural land, which do not exclude it from the purview of section 135, Punjab Land Revenue Act, 1967 for the purposes of partition proceedings, subject to peculiar facts and circumstances of the case.

(e) Words and phrases---

----Land---Meaning.

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

----S. 136---Restrictions and limitations on partition---Scope---Section 136(b)(iii) of Punjab Land Revenue Act, 1967 provides that partition of any land which is occupied as the site of a town or village, may be refused if, in the opinion of the Revenue Officer, such partition is likely to cause inconvenience to the co-sharers or other persons directly or indirectly interested therein, or to diminish the utility thereof to those persons.

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

----S. 3---Exclusion of certain land from operation of the Punjab Land Revenue Act, 1967---Scope---Agricultural land which is occupied as the site of a town or village remains under the purview of the Punjab Land Revenue Act, 1967 unless such land is not assessed to land revenue----Agricultural land in a town or village, which is built upon, comes out of the scope of the term "land" and quits from the purview of the Punjab Land Revenue Act, 1967.

Muhammad Sadiq v. Abdul Aziz 1990 CLC 1387 rel.

Rana Aamir Iftikhar for Appellant.

Barrister Usman Ghani Rashid Cheema and Ijaz Yousaf for Respondent No.1.

Asad Abbas Dhothar for Respondents Nos. 2 to 7.

2019 C L C 1356

[Lahore]

Before Shahid Jamil Khan and Asim Hafeez, JJ

PROVINCE OF PUNJAB through Member (Judicial-V) ----Appellant

Versus

MUHAMMAD AZAM----Respondents

Intra-Court Appeals Nos.620, 621 and 684 of 2014, decided on 6th February, 2019.

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

----S. 3(1)(b)---Evacuee land---Scheme For Disposal of Un-allotted Rural Agricultural Lands---Precondition---Primary condition is that land occupied by any person continuously for four harvests immediately preceding Kharif 1973 should first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land---Such is condition precedent to be met before determination of purchase price and other requirements.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Examination of entire record---Scope---No right of appeal, review or revision being available against order of Authority, Division Bench of High Court, in exercise of powers of intra court appeal is entitled to examine entire matter.

Imran Ullah v. The Crown PLD 1954 FC 123 and F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 rel.

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

----Ss. 3(1)(b) & 4---Scheme for Disposal of Un-allotted Rural Agricultural Lands---Allotment of land in question was cancelled by authorities and same was resumed in favor of Provincial Government which was subsequently disposed of---Controversy between parties was with regard to disposal of land in question---Validity---Respondent did not approach court with clean hands and intended to take refuge behind an illegal exercise by appellant to recall earlier order without disclosing that respondent lacked entitlement/eligibility on basis of documents available---Such was gross illegality whereby alleged entitlement of respondent was acknowledged without appreciating crucial fact that respondent failed to meet basic requirements under S.3(1)(b) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---High Court directed the authorities to examine claims and determine eligibility of each applicant after ascertaining possession and period of possession in accordance with law and thereafter decide entitlement and other matters including but limited to determination of status/nature of land(either it was agricultural or urban) and market price of land---High Court further directed to ascertain if applicants met qualifications or eligibility benchmark for purchase in lieu of their continuous possession from period specified in S. 3(1) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Division Bench of High Court set aside order passed by Single Judge of High Court and remanded matter to the Provincial Government---Intra-court appeal was allowed accordingly.

Ch. Muhammad Shafique, Ghazanfar Khalid Saeed and M. Ammad Khan Rai for Appellants.

Sarfraz Ahmad Cheema and Muhammad Yaqoob Kanjoo for Respondents.

2019 C L C 1380

[Lahore]

Before Shahid Mubeen, J

MUHAMMAD RIAZ----Petitioner

Versus

FIDA HUSSAIN SHAH----Respondent

C.R. No. 2325 of 2011, decided on 22nd January, 2019.

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

----Ss. 53 & 45---Suit for declaration---Wrong entries in revenue record---Execution of decree passed by civil court---Entries to be made in revenue record duly supported by a decree---Scope---Plaintiff filed suit for declaration wherein he asserted that he had earlier filed a suit for recovery of possession through pre-emption which was decreed in his favour---Plaintiff had submitted zar-e-soaim, took over the possession and defendant had withdrawn the amount---Plaintiff later on found that his name was not entered in the revenue record---Trial Court dismissed the suit and Appellate Court, on appeal, decreed the suit---Plea of defendant was that decree passed in pre-emption suit could only be executed by filing execution petition and not by filing suit for declaration---Validity---After making payment, the property in dispute absolutely vested with the plaintiff---Plaintiff was in possession of property therefore, there was no reason for him to file execution petition---Revenue authorities were under obligation to sanction mutation on the basis of decree passed by Civil Court and could not refuse mutation on the ground that decree had not been put into execution within prescribed period of limitation and had become ineffective---Revision being devoid of force was dismissed.

Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lah. 207; Jumma and 8 others v. Mst. Zainab Khatoon 1996 CLC 686 and Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322 ref.

Shahra and others v. Member, Board of Revenue, Punjab and others 2004 SCMR 117 fol.

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

----S. 45---Entries to be made in revenue record which are supported by a decree---Scope---Revenue authorities were under obligation to sanction mutation on the basis of decree passed by Civil Court and could not refuse mutation on the ground that decree had not been put into execution within prescribed period of limitation and had become ineffective.

Shahra and others v. Member, Board of Revenue, Punjab and others 2004 SCMR 117 and Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322 ref.

Malik Amjad Pervaiz for Petitioner.

2019 C L C 1392

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ATTA MOHAMMAD (DECEASED) through L.Rs. and others----Petitioners

Versus

HASSAN NAWAZ----Respondent

C.R. No. 2144 of 2013, decided on 5th December, 2018.

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

----O. XVIII, Rr. 8 & 14---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Examination of witnesses---Memorandum---Scope---Memorandum, when evidence was not recorded by the Judge---Procedure---Local Commission while recording evidence of witnesses of defendants did not perform his job honestly---Replies of said witnesses during cross-examination were recorded against the gist as well as substance of statement-in-chief---Court was bound to follow the law and proceed with the trial as per procedure laid down in C.P.C.---If Judge was unable to make memorandum then he should record reasons of his inability to record evidence---Memorandum so made should form part of record of the Court---Oral evidence, in the present case, was recorded by the Local Commission but same was not signed or sealed by the Judge---Agreement to sell having been scribed on the plain paper was received in evidence---Trial Court was bound to impound the said agreement---Trial Court had acted in perfunctory manner---Evidence recorded without following the mandatory procedure could not be treated as part of record of the suit---Impugned judgments and decrees passed by the Courts below were set aside---Suit filed on behalf of plaintiffs should be deemed to be pending before the Trial Court who was directed to examine the witnesses of the parties himself and decide the same afresh within a period of six months---Revision was allowed, in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---When can be invoked---Principles.

Revisional jurisdiction of High Court under Section 115, C.P.C. is invoked only in the cases wherein the lower Courts have exercised the jurisdiction not vested in them by law or they failed to exercise it so vested or it was exercised in an illegal manner or that some material irregularity was committed, but this is the established law that in case wherein it is found that the findings of the subordinate Courts were suffering from misreading and non-reading of evidence or that the conclusion drawn was in absolute disrespect to the law and facts of the case, High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts.

Shumal Begum v. Gulzar Begum 1994 SCMR 818 rel.

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

----S. 115---Time barred revision petition---Suo motu exercise of jurisdiction under S.115 of C.P.C. by High Court---Scope---While invoking suo motu revisional powers strict compliance of law of limitation could be avoided for disposal of such cases where not only connivance of an advocate with his fellow/Local Commission rather pressure of the former on the Judicial Officer was on record.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

(d) Administration of justice---

----Court was bound to follow the law.

(f) Administration of justice---

----Each case had to be dealt with on its own merits. [p. 1395] C

(g) Limitation---

----Law of limitation was a substantive law and could not be considered as a mere technicality.

Malik Ali Imran and Ch. Mohammad Saeed Zafar for Petitioners.

2019 C L C 1397

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD NAWAZ and 2 others----Petitioners

Versus

KHAN MUHAMMAD and another----Respondents

C.R. No. 1285 of 1996, heard on 13th March, 2019.

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

----Ss.12 & 27(b)---Suit for specific performance of agreement to sell---Subsequent purchaser of suit property---Registered document---Effect---Plaintiff was in possession on the suit property under sale agreement at the time of purchase by the defendants-subsequent purchasers---Agreement to sell was a registered document in favour of plaintiff---No evidence had been produced by the subsequent vendees to prove the case pleaded by them---Agreement to sell in favour of plaintiff and his possession on the suit property was in the knowledge of defendants---Agreement to sell in favour of plaintiff had no specific date for its performance and it was a contingent contract---Defendants had failed to prove the case pleaded by them that a registered document could be made ante dated---No question of bona fide purchase in favour of defendants-subsequent purchasers did arise in circumstances---Revision was dismissed accordingly.

Muhammad Aslam v. Mst. Razia Begum and 3 others 1999 YLR 620; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Mst. Surraya Bibi v. Imtiaz Ahmad and 3 others 2018 CLC 1640; Muhammad Sharif and others v. Mst. Nazir Begum and others 1976 SCMR 190; 1983 SCMR 728; Abdul Majeed v. Kishwar Nasim and others 2017 YLR Note 33 and Muhammad Rafique and others v. Sharaf Din and others 2006 SCMR 340 distinguished.

(b) Pleadings---

----Oral statement against the pleadings could not be accepted.

(c) Evidence---

----Witness---Portion of statement of a witness which remained unchallenged in the cross-examination was to be deemed to be admitted.

Munir Alam and 2 others v. Mehboob Alam 2015 YLR 500 and Muhammad Ashiq Khan v. Muhammad Sharif and 5 others 2014 YLR 767 rel.

(d) Administration of justice---

----When a party was dishonest in his defense then same should suffer.

Iftikhar Ahmad Chohan for Petitioner.

Ex-parte for Respondents.

2019 C L C 1405

[Lahore (Rawalpindi Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ARIF and 7 others----Petitioners

Versus

MEMBER, BOARD OF REVENUE PUNJAB LAHORE and 4 others----Respondents

W.P. No. 1035 of 2012, heard on 11th January, 2019.

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

----Ss. 117, 175 & 3---Power of Revenue Officer to define boundaries---Prevention of encroachment upon common lands---Exclusion of land occupied as site of a town or village from operation of Punjab Land Revenue Act, 1967---Scope---Respondent filed application for demarcation of public thoroughfare, which was carried out and ultimately petitioner and respondent were found encroachers---Petitioner's appeal before Collector was allowed, revision petition filed by respondent against said order was allowed by Additional Commissioner and review filed against the same was dismissed by Member, Board of Revenue---Plea of petitioner was that residential building had been built on the spot since long and as such demarcation proceedings fell outside the jurisdiction of revenue authorities---Validity---Section 175, Punjab Land Revenue Act, 1967 provided procedure for eviction of an encroacher over the land reserved for common purposes irrespective of the fact that a building had been erected thereupon---Petitioner had never mentioned that either he was co-sharer in the subject khasra or he had not raised construction over the same---Demarcation report unfolded that the Revenue Officer in presence of parties as well as other notables started the proceedings to define the limits of khasra when son of petitioner being sure that his encroachment would be highlighted slipped away from the scene---Petitioner had no right or interest with the land of public thoroughfare and could not be allowed to remain in its possession, which was meant for common use of the public---Petitioner could not point out any infirmity or perversity in the impugned orders, which were neither coram non judice nor ultra vires---Constitutional petition was dismissed with costs.

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

----S. 117---Power of Revenue Officer to define boundaries---Scope---Revenue Officer is empowered to define the limits of any estate, or of any holding, field or other portion of the estate on an application of any person and as a result of such proceedings, a person found to be in wrongful possession of some land can be evicted.

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

---S. 175---Prevention of encroachment upon common lands---Scope---Section 175, Punjab Land Revenue Act, 1967 provides procedure for eviction of an encroacher over the land reserved for common purposes irrespective of the fact that a building has been erected thereupon.

Rizwan Niaz for Petitioner.

Irfan Ahmed Khan Niazi, AAG for Respondents Nos.1 to 4 with Sabir Hussain Patwari.

Imran Saeed Mirza and Sabir Ali Cheema for Respondent No.5.

2019 C L C 1417

[Lahore]

Before Rasaal Hasan Syed, J

MUBASHIR HUSSAIN through Special Power of Attorney----Petitioner

Versus

Syed HUSSAIN ABBAS and 3 others----Respondents

Civil Revision No. 130272 of 2018, decided on 4th March, 2019.

Gift---

----Deed of gift---Proof---Transaction with Pardanasheen lady---Requirements---Gift on behalf of mother in favour of one of her sons excluding of other legal heirs---Scope---Contention of plaintiff was that impugned gift mutation was based on fraud---Suit was decreed concurrently---Validity---Where existence and execution of a document had been questioned on the plea of fraud and misrepresentation then onus to prove the transaction and execution of said document with free will and volition would rest upon its beneficiary---Defendant being beneficiary did not recollect the names of witnesses nor did he mention the time of alleged gift in the written statement---Testimony of a person who had allegedly acted as identifier could not be considered to be that of an attesting witness---Donor being an illiterate Pardanasheen lady executed alleged gift without any independent advice and in absence of any of her nears and dears---Defendant was required to prove the alleged gift by independent and credible evidence and also the execution of document---Donee had failed to prove the alleged gift in his favour through any independent evidence---Suit property should have been inherited from the mother-donor to all the siblings as per their Islamic shares---Nothing was on record as to why other legal heirs had been deprived from the suit property through gift deed in favour of defendant---Admission of co-defendant or co-plaintiff could not non-suit the plaintiff or defendant in the suit---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.

Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Fayyaz Hussain and others v. Haji Jan Muhammad and others PLD 2018 SC 698; Ghulam Farid and another v. Sher Rehman through LRs 2016 SCMR 862; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 and Shah Muhammad and 2 others v. Dulla and 2 others 2000 SCMR 1588 rel.

2019 C L C 1432

[Lahore]

Before Shahid Bilal Hassan, J

GULZAR AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No. 257462 of 2018, decided on 20th February, 2018.

Civil Procedure Code (V of 1908) ---

----O. VI, R. 17---Suit for declaration---Amendment in pleadings---Scope---Defendant moved application for amendment in the written statement which was dismissed---Validity---Alternate and inconsistent pleas could be taken but contradictory and mutually destructive pleas could not be raised through amendment in the pleadings---Defendant through proposed amendment had sought elaboration of facts in detail which was not destructive or contradictory to the plea already raised and even same was not inconsistent or alternate plea---Courts below had failed to appreciate the facts in true perspective while passing the impugned orders---Mere delay in filing such application was not a good ground for refusal of the same---No amendment was to be allowed which might introduce a new and changed case/claim---Proposed amendment in the pleadings was not to change the nature, complexion and cause of action of the suit---Parties could not lead evidence beyond their pleadings and if provisions of O. VI, R. 17, C.P.C. were not construed and exercised liberally, it would jeopardize the case of the parties---Proposed amendment, in the present case, did not change the complexion and nature of written statement---Impugned orders passed by the Courts below were set aside and application for amendment filed by the defendant was accepted---Constitutional petition was allowed accordingly.

Hokum Dad and 4 others v. Mst. Roqiyya Begum and 5 others 1996 CLC 1920; Mubarik Ali Shah and another v. Nazir Ahmad Shah and 10 others 2000 CLC 892; C.A. Waheed v. Aftab Ahmad Mian and another PLD 2006 Lah. 68; Haji Sultan Abdul Majeed (decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (decd) through Mah Jabeen and others 2018 SCMR 82 and Lahore Development Authority and others v. Sultan Ahmed and another 2007 SCMR 1682 rel.

Misbah Ud Din Khan for Petitioner.

Seerat Hussain Naqvi for Respondents Nos.3 to 10.

2019 C L C 1462

[Lahore]

Before Muzamil Akhtar Shabir, J

Syed SAJJAD HUSSAIN----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

W.P. No. 8244 of 2019, decided on 13th February, 2019.

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

----S. 5, Sched.---Suits for recovery of dowry articles by wife and for restitution of conjugal rights by the husband---Payment of deferred dower---Burden of proof---Scope---Plea of wife was that she had been divorced and husband claimed that he had not divorced the wife and had paid the deferred dower---Validity---High Court, on the basis of husband's plea that dower had already been paid, observed that the parties through their conduct had modified the condition for payment of dower on wife's demand instead of waiting for the dissolution of marriage through divorce or death---Husband was required to prove through cogent and confidence inspiring evidence that either he had not agreed to pay the deferred dower or after having agreed to pay the same had actually made the said payment---Husband was estopped by his conduct to claim that deferred dower was not payable during subsistence of marriage as he claimed to have paid the dower on wife's demand---Statement of witness, produced by husband, was sketchy and he did not state that he was a witness to said payment---Payment of dower by husband was not established on record---Trial Court was justified to decree the suit filed by wife for recovery of deferred dower---Constitutional petition, being devoid of force, was dismissed.

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

----S. 5, Sched.---Recovery of deferred dower---Limitation---Deferred dower is usually not payable immediately at the time of performance of marriage ceremony/Nikah (as required in case of prompt dower) and is referred to as deferred because its payment is reserved to be made later on, however, the law does not prescribe as to when the deferred dower becomes payable and the law has left the same to be decided by the parties themselves---Deferred dower becomes payable to the wife on the fixed date, expiry of time period, on the occurrence of any event or fulfillment of pre-condition fixed for payment of the same in the Nikahnama or otherwise and if neither such date or period is fixed nor any condition is imposed, the same becomes payable on the dissolution of marriage by death or divorce.

Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another 2009 SCMR 1458 rel.

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

----S. 5, Sched.---Recovery of deferred dower---Limitation, determination of---Scope---Non-fixation of any condition, date or time period for payment of deferred dower in nikahnama does not preclude the parties for subsequently fixing the same through consent or conduct---In the absence of any agreed stipulation relating to time of payment of deferred dower, the husband who has to make payment of the same, can bilaterally or unilaterally, expressly or impliedly through his conduct, waive the condition of waiting till the dissolution of marriage for making such payment by tendering dower or agreeing to tender the same immediately or on a future date, expiry of some time period or on the happening of some event or fulfilment of a fixed condition for which purpose subsistence or dissolution of marriage would be irrelevant.

Ijaz Ahmad Janjua for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General and Muhammad Javaid Iqbal Sabri, AAG on Court's call.

2019 C L C 1475

[Lahore (Bahawalpur Bench)]

Before Muzamil Akhtar Shabir, J

SHAZIA PARVEEN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No. 213 of 2017, decided on 24th September, 2018.

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

----S. 5, Sched.---Civil Procedure Code (V of 1908), O. XII, R. 6---Suit for recovery of dower---Judgment on admission---Family Court dismissed the suit for recovery/possession of house in lieu of dower to be paid by husband in terms of Column No. 16 of Nikahnama---Plea of wife was that an agreement was executed by husband in her favour relating to transfer of house as dower--- Husband claimed that the said dower was paid in cash---Trial Court dismissed the suit on the admission of wife that dower had been received by her---Validity---Trial Court had not mentioned in what perspective such admission was made and what was the mode of payment of dower to the wife in terms of her admission---Admission of wife had been considered in piecemeal before using the same for decision---Admission had to be rejected or accepted as a whole which had not been done by the courts below---Constitutional petition was partly allowed and the matter was remanded to the Trial Court for decision afresh.

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

----O. XII, R. 6---Judgment on admission---Scope---Admission is to be accepted or rejected as a whole.

Mian Mansoor Ahmad Sheikh and Jam Abdul Majeed Mustafai for Petitioner.

2019 C L C 1516

[Lahore]

Before Muzamil Akhtar Shabir, J

WASEEM IJAZ----Petitioner

Versus

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

W.P. No. 2729 of 2019, decided on 18th February, 2019.

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

----S. 7---Recalling of surety---Natural justice, principles of---Applicability---Petitioner stood surety to guardian appointed under section of 7 of Guardians and Wards Act, 1890---Grievance of petitioner was that coercive measures were adopted against him without any notice---Validity---No service of notice was effected upon petitioner before adopting coercive measures nor objections raised by petitioner were decided by Lower Appellate Court---Party had inalienable right to be provided hearing and same included his right to be available before court---Court, for such purpose, was required to ensure that proper notice was served to that party required to appear before court and present his case---Such party was entitled for decision of any legal objection if raised by that party, through a speaking order---Respondent had not alleged that petitioner, despite service of notice, did not appear before Lower Appellate Court and had waived his right to be heard---Adverse order was passed against petitioner without affording him proper hearing and decisions suffered from violation of fundamental principles of natural justice which were to be read as part of every statute---High Court set aside order in question and remanded matter to Lower Appellate Court for decision afresh---Constitutional petition was allowed accordingly.

Hazara (Hill Track) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Bar against interim order---Scope---Bar against interim order is not absolute and where such order appears to suffer from some jurisdictional defect causing prejudice to rights of party, High Court under Art. 199 of the Constitution is empowered to rectify same.

Messrs Bashir Engineering Industries Limited and others v. Messrs Muslim Commercial Bank Limited and others 1998 CLC 2065; Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD 135 and Jaffar Mehmood Malik v. Ch. Khalid Hussain and others 2006 YLR 1516 rel.

Ms. Hina Jillani for Petitioner.

2019 C L C 1539

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD RAZZAQ----Petitioner

Versus

CHAIRMAN ARBITRATION COUNCIL and others----Respondents

W.P. No. 238815 of 2018, heard on 14th May, 2019.

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

----S. 9---Rules Under Muslim Family Laws Ordinance, 1961, R.5(6)---Family Courts Act (XXXV of 1964), S. 21---Maintenance allowance---Concurrent jurisdiction---Decision of Arbitration Council to be taken by majority---Scope---Respondent filed petition under S. 9 of Muslim Family Laws Ordinance, 1961 for recovery of maintenance allowance which was allowed and maintenance allowance of Rs. 40,000 per month was fixed---Petitioner, being aggrieved, filed appeal which was allowed and maintenance was decreased to Rs. 20,000 per month---Contentions of petitioner were that after promulgation of Family Courts Act, 1964, the Arbitration Council had no jurisdiction to fix maintenance allowance and that under R. 5(6) of Rules Under Muslim Family Laws Ordinance, 1961 all decisions had to be taken by majority---Validity---Section 21 of Family Courts Act, 1964 provided that nothing contained therein would affect any of the provisions of Muslim Family Laws Ordinance, 1961 or Rules framed thereunder---Arbitration Council and Family Court had concurrent jurisdiction in family matters, which fell within their respective domain---Remedy of maintenance allowance under S. 9 of Muslim Family Laws Ordinance, 1961 was in addition to seeking any other remedy available under the law---Same matter, however, could not proceed simultaneously under the Muslim Family Laws Ordinance, 1961 and Family Courts Act, 1964 but subsequent proceedings under any of the laws were not barred merely because earlier proceedings were launched and concluded under the other law---Perusal of impugned order revealed that representative of respondent agreed with the decision of Chairman Arbitration Council whereas the representative of petitioner was absent, hence it was a majority decision under R. 5(6) of the Rules Under Muslim Family Laws Ordinance, 1961---Petitioner's earnings being reasonable, maintenance allowance was neither arbitrary nor unreasonable warranting interference through constitutional petition---Petitioner had failed to place on record any document regarding his exact income---Constitutional petition was dismissed, in circumstances.

Muhammad Khalil ur Rehmand v. Mst. Shabana Rahman and another PLD 1995 SC 633 distinguished.

Raja Aamir Naseem Khan v. Collector Lahore District Lahore and 2 others 1999 MLD 1008 ref.

Zulfiqar Ali v. Mst. Shazia Bibi and others 2009 SCMR 1037; Shamim Akhtar v. Muhammad Tufail 2002 MLD 1716 and Shabbir Ahmad v. Chairman, Arbitration Council and others 2018 CLC 836 rel.

Muhammad Amin Goraya for Petitioner.

Muhammad Khawar Kaleem for Respondents.

Saqib Haroon Chishti, Asst. A.G.

2019 C L C 1566

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Mst. SALMA KAUSAR----Petitioner

Versus

ANAYAT ALI and others----Respondents

W.P. No.19044 of 2018, decided on 24th December, 2018.

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Order XLI, R. 27, C.P.C. provided that Appellate Court could allow a party to lead additional evidence in case request for producing such evidence was made before the Trial Court but said court did not allow the same or the said evidence was required for just decision of the matter by the Appellate Court.

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Petitioner sought permission to lead additional evidence by referring the matter to expert for comparison of thumb impression of respondent with the ones available on original mutation---Appellate Court dismissed the application for production of additional evidence---Validity---Petitioner had neither averred in her written statement for comparison of the thumb impression nor during the trial she had made any request---Appellate Court had not required the said evidence to be produced in evidence to enable it to "pronounce judgment" and no substantial cause had been pleaded by petitioner to produce such evidence at the appellate stage---Grounds provided under O. XLI, R. 27, C.P.C. had not been established by petitioner---Allowing or disallowing the said application was discretionary with the Appellate Court and discretion exercised by the court of competent jurisdiction could not be called in question in constitutional jurisdiction---Petitioner had to wait for decision of final appeal before calling in question the order passed by Appellate Court refusing to allow additional evidence---Constitutional petition, being premature, was dismissed.

2019 C L C 1584

[Lahore (Bahawalpur Bench)]

Before Asim Hafeez, J

CIVIL AVIATION AUTHORITY, through Director General and others----Petitioners

Versus

AHMAD AMMAR JILLANI KHAN and others----Respondents

Civil Revision No. 637 of 2012, decided on 7th May, 2019.

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

----S. 2(2)---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) [since repealed], S. 2(8)---Evacuee land---Civil court, jurisdiction of---Scope---Issue of determination of price of evacuee land and question of enforcement of conditional allotment of evacuee land were beyond the jurisdiction of the civil court---Civil Court had no jurisdiction to proceed to decide claim of partition or compensation (in the alternative) involving evacuee land---Perusal of settlement laws as applicable before promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 ('the Act of 1975'), and the Act of 1975 itself showed that authority to decide the price of the evacuee land was vested in the Custodian/Chief Land Commissioner or its successor, i.e. Notified Officer.

Member BOR Punjab and another v. Mst. Siddiqan through L.Rs and others 2015 SCMR 1721; Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441; Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468; Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Aligarh Muslim University Old Boys Cooperative Housing Society Ltd v. Muhammad Hisamuddin Ansari and 4 others 1993 SCMR 1062; Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719 and Nawab Din v. Member Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others PLD 1979 SC 846 ref.

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

----S. 2(2)---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) [since repealed], S. 2(8)---Civil Procedure Code (V of 1908), S. 115 & O.VII, R. 11---Rejection of plaint---Evacuee land---Civil Court---Lack of jurisdiction---In the present case, civil courts below committed material irregularities in exercise of jurisdiction with respect to evacuee property---High Court in the exercise of supervisory jurisdiction in terms of S. 115 of the Code of Civil Procedure 1908 held that Courts below lacked jurisdiction and rejected the plaint in exercise of powers under O. VII, R. 11, C.P.C---Revision petition was allowed in circumstances with the direction that the parties may, if advised, approach appropriate authorities, having jurisdiction to determine and decide their rights, claims and respective obligations.

Ch. Parmoon Bashir and Muhammad Ramzan, Assistant Attorney General for Petitioners.

Shabbir Ahmad Awan for Respondents.

2019 C L C 1621

[Lahore]

Before Ali Baqar Najafi and Sardar Ahmad Naeem, JJ

GHULAM HUSSAIN----Petitioner

Versus

D.G. NAB and others----Respondents

W.P. No. 22945 of 2019, decided on 13th May, 2019.

University of Engineering and Technology, Lahore Act (V of 1974)---

----Ss.9, 23, 10 & 10A--- Public University---Officers of the University---Chancellor, duties and obligations of---Syndicate of the University---Powers and duties of---Advice sought by Syndicate from Chancellor of University---Governor of Province as officer of University in the capacity of Chancellor---Scope---Question before the High Court was whether advice sought by the Syndicate of the University on matters relating to appointment of officers of University, Chancellor was expected or bound to give prompt advice to the Syndicate, in order to enable it to proceed---Validity---When an advice was sought from Chancellor, who was also the Governor of the Punjab, the said Authority was expected to give a prompt advice on said matter referred to him---Syndicate of the University could not be presumed to fulfill such responsibility on its own and the Chancellor himself was an officer of the University---High Court observed that advice of the Chancellor as sought by the Syndicate should be given without wastage of unnecessary time whereafter the Syndicate would proceed in the matter accordingly---Constitutional petition was disposed of, accordingly.

Sheraz Zaka for Petitioner.

Ahsan Rasool Chatha, Special Prosecutor for NAB.

2019 C L C 1651

[Lahore]

Before Mamoon Rashid Sheikh, J

INAYAT ALI----Petitioner

Versus

MUHAMMAD RAMZAN and 13 others----Respondents

Civil Revision No. 1743 of 2009, decided on 7th December, 2018.

Civil Procedure Code (V of 1908)---

----S.12(2)---Limitation Act (IX of 1908), First Sched. Art. 181---Application under S.12(2), C.P.C, filing of---Limitation---Fraud---Defendant moved his application under S.12(2) of the C.P.C. for setting aside the decree after the lapse of more than nine (9) years, inter alia on the grounds that the plaintiffs deliberately gave his incorrect address in the suit/appeal so as to non-suit him---Plaintiffs had, therefore, played a fraud upon the Court---Court below had not given a categorical finding on the issue pertaining to the point of limitation---Impugned judgment was set aside with the directions that the defendant's application under S.12(2) of the C.P.C. shall be deemed to be pending before the Court below and shall be decided afresh strictly in accordance with the law on the basis of the evidence already available on the file; and, that the Court below shall further ensure that separate and distinct findings were given on all the issues framed---Revision petition was allowed accordingly.

Tariq Masood for Petitioner.

Nazir Ahmed Chaudhary for Respondents Nos.1 to 4.

2019 C L C 1662

[Lahore]

Before Amin-ud-Din Khan and Shahid Bilal Hassan, JJ

UNIVERSITY OF THE PUNJAB through Vice-Chancellor---Appellant

Versus

ALTAF HUSSAIN and others----Respondents

I.C.A. No.467 of 2016, in Writ Petition No.2166 of 2012, decided on 25th February, 2019.

University of the Punjab Act (IX of 1973)---

----S.28(2)(h)---Higher Education Commission Ordinance, 2002, S.10(1)(o)---Constitution of Pakistan, Art. 143---Inconsistency between Provincial and Federal Laws---Preference---Degree equivalence---Appellant invoked Constitutional jurisdiction of High Court seeking equivalence of his degree but same was partially allowed by Single Judge of High Court to extent that he was granted equivalence but denied admission at the university---Validity---Powers vested with the University under S.28(2)(h) of University of the Punjab Act, 1973 were for purposes of admission in the University for further education and not for general issuance of equivalence certificate for which powers were available with Higher Education Commission---High Court set aside judgment passed by Single Judge of High Court as there was no repugnancy between two statutes, i.e., University of the Punjab Act, 1973 and Higher Education Commission Ordinance, 2002---Article 143 of the Constitution was not applicable in circumstances---Intra court appeal was allowed.

Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637; Sanchit Bonsal and another v. Joint Admission Board (JAB) and others 2012 SCMR 1841; University of Health Science, Lahore through Vice-Chancellor and others v. Arslan Ali and another 2016 SCMR 134 and Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 rel.

Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637; Sanchit Bonsal and another v. Joint Admission Board (JAB) and others 2012 SCMR 1841; University of Health Science, Lahore through Vice-Chancellor and others v. Arslan Ali and another 2016 SCMR 134; Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477; Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Haji Nasir Mehmood v. Mian Imran Masood and others PLD 2010 SC 1089 and Rais Munir Ahmed v. Returning Officer/Additional District and Sessions Judge Sadiqabad and 4 others 2008 CLC 1111 ref.

Malik Muhammad Awais Khalid for Appellant.

Sheraz Zaka for Respondent No.1.

Shaigan Ijaz for Allama Iqbal University.

Sajid Ijaz Hotiana for HEC assisted by Nisar, Legal Assistant HEC.

Liaqat Bashir Mughal for Pakistan Bar Council.

2019 C L C 1682

[Lahore]

Before Faisal Zaman Khan, J

NASREEN AKHTAR----Petitioner

Versus

AQEEL AHMAD QURESHI----Respondent

C.R. No. 185353 of 2018, decided on 26th March, 2018.

Civil Procedure Code (V of 1908)---

----O.XXXVII Rr.2 & 7, O.VIII, R.2 & O. IX, R.1----Suit on the basis of negotiable instruments---Nature---Power of Trial Court to direct presentation of evidence or appoint expert---Scope---Cumulative reading of Os.VIII and IX of C.P.C. along with O.XXXVII, C.P.C. signified that satisfaction of Trial Court was paramount for decision of a suit on negotiable instrument; and for such satisfaction Trial Court could call for evidence, appoint local commission, or appoint an expert in order to arrive at a just and proper conclusion---Trial Court in a suit under O.XXXVII, C.P.C. therefore could not be stopped from directing any party to produce evidence in order to prove his/her case.

Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 ref.

C.N. Ramappa Gowda v. C.C. Chandregowda (dead) through L.Rs. and another 2013 SCMR 137; Provincial Government through Collector Kohat and another v. Shabbir Hussain PLD 2005 SC 337 and Rehmat Ali v. Additional District Judge, Multan and others 1999 SCMR 900 rel.

2019 C L C 1693

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan, J

Haji ABDUL MAJEED & CO. through Managing Partner----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE BUREWALA DISTRICT VEHARI and 10 others----Respondents

W.P. No. 16661 of 2018, decided on 12th November, 2018.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 84---Suit for specific performance---Comparison of signature---Scope---Application for sending signatures of defendant to fingerprint expert for comparison---Trial Court and Revisional Court concurrently dismissed the application---Validity---Revisional Court had redressed the grievance of the petitioner by directing the Trial Court to compare the signatures of defendant and then decide the contention of the petitioner after recording reasons---No illegality or irregularity was committed by the courts below---Writ petition was dismissed in limine.

Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---High Court while exercising constitutional jurisdiction has to see whether the lower court has exercised jurisdiction vested in it, in a proper way or not---Order or judgment called into question need not be interfered with when the same is found to have been exercised in proper way, without committing any illegality or irregularity.

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

----Art.61---Opinion of handwriting expert---Scope---Report of handwriting expert on its own cannot be made basis to discard the direct evidence---When direct evidence is available, there is no need of expert opinion, which otherwise is nothing but confirmatory and explanatory to direct evidence.

Qazi Abdul Ali and others v. Khawaja Aftab Ahmad 2015 SCMR 284 ref.

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

----Art.59---Opinion of handwriting expert---Scope---Expert opinion is not binding upon the Court.

Mrs. Perin J Dinshaw v. Mubarak Ali and another YLR 2016 Lah. 251 rel.

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

----Art.84---Comparison of signature with admitted or proved signatures---Scope---Article 84 of Qanun-e-Shahadat, 1984 empowers the court to compare the signatures or thumb impression of any person by itself.

(f) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S. 115---Constitutional jurisdiction---Scope---Revisional order, being passed in exercise of jurisdiction vested in court, cannot be challenged in writ petition.

Mian Muhammad Hafiz and others v. Aziz Ahmad and others 1980 SCMR 557; Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 and Muhammad Yousaf v. Manzoor Ahmad and another PLD 2006 Lah. 738 ref.

Muhammad Masood Bilal for Petitioner.

2019 C L C 1706

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

Mst. MEERAN MAI----Petitioner

Versus

MUHAMMAD RAMZAN----Respondent

Civil Revision No.111 of 2011, decided on 30th January, 2019.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talbs, performance of---Requirements---Vendor, in the present case, was real son of the pre-emptor who were residing in one house---Pre-emptor had performed Talb-i-Muwathibat after three months from sale of suit land---Pre-emptor could not remain ignorant of her own son for about three months---Statements of witnesses produced by the plaintiff had contradictions which were rightly disbelieved by the Courts below---Plaintiff had not performed Talb-i-Ishhad within fourteen days as required by law---No mis-reading or non-reading of evidence had been pointed out in the findings rendered by the Courts below---Plaintiff had failed to prove the requisite talbs as envisaged by law---Revision was dismissed, in circumstances.

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

----O.XIV, R.1---Issue, omission to frame---Effect---Where any party had failed to claim any issue during the trial and failed to urge the same in appeal, said party could not be permitted to claim framing of issue at the stage of revision---If Court had omitted to frame any particular issue then parties were not denuded of their right to lead evidence on such point and Court in such circumstances could render decision without framing of issues---When parties being conscious of the real point had led their evidence then omission to frame any particular issue would not cause my prejudice.

Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1; The Province of East Pakistan v. Major Nawab Khawaja Hasan Askari and others PLD 1971 SC 82; Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271; Mst. Sughran Bibi alias Mehran Bibi v Asghar Khan and another 1988 SCMR 4 and Government of N.W.F.P. through Secretary, Law v. Malik Said Kamal Shah PLD 1986 SC 360 rel.

Malik Javed Akhtar Wains for Petitioner.

Amir Altaf Khan Alizai for Respondent.

2019 C L C 1718

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

Mrs. KAUSAR RASHEED and 2 others----Petitioners

Versus

PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY (NHA) and 4 others----Respondents

W.P. No. 19254 of 2018, decided on 11th February, 2019.

Constitution of Pakistan---

----Art.199---National Highway Act (IV of 1991), Preamble---Constitutional petition---Development project for public welfare---Allegations of violation of law---Effect---Contention of petitioners was that development project had been approved in violation of law---Validity---Petitioners had failed to substantiate their pleas which involved disputed questions of facts---Thorough probe and detailed inquiry was essential for determination of questions raised by the petitioners which exercise could not be undertaken by the High Court in exercise of constitutional jurisdiction---High Court was not to pass any direction creating hindrance in the ongoing development work of public welfare which had been put in operation---Project once approved and put in operation must be completed otherwise substantial amount already incurred would be wasted---Courts had no expertise to express any opinion with regard to technical matters---High Court was to refrain from entering into the policymaking domain of executive authority unless same smacked of arbitrariness, favoritism and in disregard to mandate of law---Authorities being public functionaries should redress grievance of the petitioners in accordance with law justly, fairly and without any discrimination---Copy of constitutional petition with its annexures was transmitted to the authorities by the High Court with the direction to decide the matter in accordance with law, after affording an opportunity of hearing to the petitioners and all concerned within specified period---Petitioners would be at liberty to avail alternate remedy, if any, available under the law if they were not satisfied with the decision of authorities---Constitutional petition was disposed of accordingly.

In re: Suo Motu Case No.5 of 2010 PLD 2010 SC 731; Khawaja Muhammad Asif v. Federation of Pakistan and others PLD 2014 SC 206; Abdul Raheem Ziaratwala and another v. Federation of Pakistan and others 2014 SCMR 873; Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510; Muhammad Alam and others v. Planning and Development Department, Government of Balochistan through Additional Chief Secretary and others PLD 2014 Bal. 1; Danyore RCC Bridge in the matter of Motu No.6 of 2009, 2015 GBLR 196; Mst. Nasreen Riaz and another v. Lahore Development Authority through Director General L.D.A. Plaza Eastern Road, Lahore and 2 others 1998 CLC 1099; Muhammad Nawaz Malik and others v. Government of the Punjab and others PLD 2011 Lah. 160 and Muhammad Khan v Federation of Pakistan through Secretary, Communication, Islamabad and 4 others 2012 CLC 101 ref.

Muhammad Mansoor Alam for Petitioners.

Malik Muhammad Tariq Rajwana, Advocate/Legal Advisor for Respondent No.2.

2019 C L C 1726

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

WAPDA EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. through Administrator----Petitioner

Versus

Dr. KHALID RANJHA and another----Respondents

C.R. No.2224 of 2007, heard on 6th March, 2019.

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

----S.42---Suit for declaration---Compromise before the Court---Meaning and effect---Suit was filed on the basis of compromise deed---Contention of defendant was that compromise was procured without permission from competent authority---Suit was decreed concurrently---Validity---Compromise meant an agreement among the parties to settle the dispute for all times to come and receipt of consideration by a party thereto will not be deemed to be sacrifice of right rather relinquishment of claim---Compromise made before the Court had to be given sanctity while applying principle of estoppel---If retraction from compromise was allowed as a matter of right then it would result into distrust of public litigants over the judiciary and same would damage the image of judicial system---Parties could settle their dispute during its pendency---Resolution of dispute through compromise was a valid as well as binding arrangement between the parties---Compromise before Court of law was not to be allowed to be denied, ignored or resiled without valid reasons---Court was to honour the compromise made between the parties---Revision was dismissed, in circumstances.

Abid Hussain and others v. Aziz Fatima and others PLD 1995 SC 399; Mrs. Akram Yaseen and others v. Asif Yaseen and others 2013 SCMR 1099; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381; Messrs Shadman Cotton Mills Ltd. through Director v. Federation of Pakistan through the Chairman Central Board of Revenue (Revenue Division), Islamabad and another PLD 2009 Kar. 169; Messrs Nishat Ghunian Ltd. through Chief Officer v. Province of Punjab through Secretary, Local Government and 2 others 2013 CLC 34; Khan Iftikhar Khan of Mamdot (Represented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 and Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited 2000 SCMR 506 ref.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Upendra Nath Bose v. Bindeshiri Prosad AIR 1916 Cal. 843; Srimati Sabitri Thakurain v. Mrs. F.A. Savi and others AIR 1933 Patna 306 and Khawar Saeed Raza v. Wajahat Iqbal 2003 CLC 1306 rel.

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

----Art. 113---Admitted facts need not to be proved.

Muhammad Naeem Sadiq for Petitioner.

Malik Noor Muhammad Awan and Saima Hanif for Respondent No.1.

2019 C L C 1737

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Captain FAISAL GHAZANFAR CHAUDHRY----Petitioner

Versus

CIVIL AVIATION AUTHORITY through its Director General, Lahore and others----Respondents

W.P. No. 7830 of 2019, decided on 12th March, 2019.

Civil Aviation Rules, 1994---

----R.340---General Clauses Act (X of 1897), S.24-A---Airline Transport Pilot License---Refusal to grant or renew a licence or certificate---Petitioner impugned order of Additional Director Licensing of the Civil Aviation Authority whereby petitioner's request for renewal of his Airline Transport Pilot License was declined---Validity---Perusal of record revealed that petitioner had passed all examinations followed by verification and issuance of license, however, Civil Aviation Authority without any show-cause notice and assigning of any allegation, refused to renew license of petitioner which affected his Fundamental Right of livelihood---Impugned order was passed by Additional Director Licensing of the Civil Aviation Authority which was ex facie violation of R.340 of the Civil Aviation Rules, 1994 as the same did not have jurisdiction to pass such order---Impugned order was a non-speaking order within contemplation of S.24-A of General Clauses Act, 1897 and was declared to be illegal by the High Court and respondents were directed to re-adjudicate upon the matter in accordance with law---Constitutional petition was allowed, accordingly.

Zeeshan Zafar Hashmi and Barrister Muhammad Ali Farooq for Petitioner.

2019 C L C 1750

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SHAHDOST DASHTI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Inter-Provincial Coordination Government of Pakistan, through Secretary, Pakistan Secretariat, Islamabad and 5 others----Respondents

Writ Petition No.28380 of 2019, decided on 30th May, 2019.

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

----S.3---Constitution of Pakistan Cricket Board, Art. 37---Notification No.SRO 43(KE/2014) dated 10-07-2014---Election of Cricket Association Board---Petitioner was President of Regional Cricket Board Association and was disqualified by Pakistan Cricket Board to contest election---Plea raised by petitioner was that he was condemned unheard---Validity---Appeal filed by respondent before independent adjudicator under Art.37 of Constitution of Pakistan Cricket Board against notification whereby petitioner was elected as President Regional Cricket Board Association was accepted without providing an opportunity of hearing to petitioner---Petitioner was not served properly as proof of service of notice issued by independent adjudicator was not sent on his residential address nor he was afforded proper opportunity of hearing before passing judgment in question---Such act of independent adjudicator was against universally recognized principle of audi alteram partem and same was considered as part and parcel of every statute irrespective of the fact whether embodied therein or not---High Court set aside order judgment passed by independent adjudicator and remanded matter to decide appeal under Art.37 of Constitution of Pakistan Cricket Board afresh---Constitutional petition was allowed accordingly.

Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak) 45; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 and Pakistan and others v. Public at Large and others PLD 1987 SC 304 ref.

(b) Constitution of Pakistan---

----Art.10-A---Right of fair trial and due process of law---Doing of a thing---Scope---Where law provides a particular mode of a particular thing to be done in a particular manner, same should be done in such manner or should not be done at all---Scope of adjudication on merits with rights and civil liabilities has squarely been widened by Art. 10-A of the Constitution.

Abdul Rehman Wahla v. Dr. Sher Dil Batra PLD 1986 SC 234 rel.

Shaigan Ijaz Chadhar for Petitioner.

Malik Asif Ahmad Nissoana, Deputy Attorney General.

Taffazul Haider Rizvi and Haider Ali Khan for Respondents Nos.2 to 4.

Daniyal Iman, Assistant Manager (Legal), PCB.

2019 C L C 1761

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

PAKISTAN MEDICAL AND DENTAL COUNCIL, ISLAMABAD through Authorized Representative----Appellant

Versus

SHAHIDA ISLAM MEDICAL COMPLEX (PVT.) LTD. through Authorized Director and another----Respondents

I.C.As. Nos.36399, 36401, 31021, 16407, 16416 and 16419 in W.P. No.29963 of 2019, heard on 24th June, 2019.

MBBS and BDS (Admission, House Job and Internship) Regulations, 2018---

----Rglns. 3, 9, 10 & 12---Pakistan Medical and Dental Council Ordinance (II of 2019), S.15---Admission in Medical College---Grievance of private medical colleges was that Pakistan Medical and Dental Council did not allow them admissions to fill in their vacant seats in the College---Plea raised by Pakistan Medical and Dental Council was that no admissions could be allowed beyond cutoff date---Validity---Pakistan Medical and Dental Council decided to adjust students already enrolled and registered with a medical college which was de-notified, as students had commenced their academic year with said college---Such act by Pakistan Medical and Dental Council was also undertaken to safeguard admission of such students in medical and dental college---Candidates were given opportunity to approach colleges of their choice as per list provided to them to seek adjustment---Case of adjusting students of de-notified college could not be termed as discriminatory when compared with admitting new students---Where students were registered in the middle of academic year, if at all they were granted any admission, that could not be at expense of academic calendar and could not be based on understanding that extra classes, extra time and vacation time would be utilized to make up months which students had missed---Such would not only compromise on quality of education but it also unnecessarily burdened students to complete work required to be done over a period of at least nine months being minimum months required for such education at a shorter time---Process of recognition and registration did not ipso facto create a right for admission in existing academic year simply because a college was recognized and registered---Admission offered to such colleges was by way of a concession and could not be claimed as of right---Pakistan Medical and Dental Council was required to maintain its academic calendar and follow schedule provided in MBBS and BDS (Admission, House Job and Internship) Regulations, 2018 for purpose of admission, recognition, registration and examination---High Court could not grant admission to students without considering their merit---High Court set aside order passed by Single Judge of High Court---Intra-court appeal was allowed accordingly.

Ch. Muhammad Umar for Appellant.

Ms. Ambreen Moeen, DAG.

Munawar us Salam for Respondent No.1 Shahida Islam Medical Complex (Pvt.) Limited (in I.C.A. No.36399/2019).

Ch. Sultan Mehmood for Respondents Nos.1 to 17 (in connected I.C.A. No.36401/2019).

Khalid Ishaq for Respondent No.19 Sahara Medical College, Narowal (in connected I.C.A. No.36401/2019).

Rao Muhammad Faisal Iqbal for Respondent No.1 Avicenna Dental College, Lahore (in connected I.C.A. No.31021/2019).

Haroon Mumtaz and Hassan Pervaiz for Respondent No.1 Colleges (in connected I.C.As. Nos.16407/2019, 16416/2019 and 16419/2019).

Ch. Muhammad Atiq and Mufti Ahtsham Uddin Haider for Respondent.

2019 C L C 1777

[Lahore (Multan Bench)]

Before Shakil-ur-Rehman Khan, J

MUHAMMAD HANIF----Petitioner

Versus

SENIOR CIVIL JUDGE/RENT CONTROLLER and another----Respondents

W.P. No.2402 of 2019, decided on 14th February, 2019.

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

----Ss.15 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Filing of ejectment application---Requirements---Provisions of S.19 of the Act are directory---Non-filing of affidavits of witnesses by the landlord before the Rent Tribunal along with ejectment petition would not prejudice any of the rights of the tenant---Complete order-sheet having not been appended with the constitutional petition, High Court declined to remark on the observations of the Rent Tribunal---Objection of tenant was that landlord had taken a different stance in his suit for ejectment before civil court than the one taken by him in the ejectment petition before the Rent Tribunal, High Court observed that it was matter of evidence and the High Court could not decide under constitutional jurisdiction the factual controversies, which in the present case, could be decided by the Rent Tribunal---Constitutional petition being devoid of merits was dismissed.

(b) Administration of justice---

----Legal question/issue could be raised at any stage of the proceedings.

2019 C L C 1791

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD MUSHTAQ and another----Petitioners

Versus

IFTIKHAR AHMAD and 6 others----Respondents

W.P. No.9278 of 2017, heard on 21st February, 2019.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement---Mutation---Fraud---Plaintiff was directed by Trial Court to deposit the remaining sale consideration within fifteen days---Failure of plaintiff to deposit the said remaining amount---Suit of the plaintiff was dismissed---Two defendants were bona fide purchasers of the land and were held entitled to get their sale consideration from third defendant along with interest at the Bank rate by way of separate suit---Mutation was reviewed and the land was reversed in favour of the seller---Said defendant was the alleged vendor and petitioners had no concern with the suit for specific performance nor his land was transferred through the mutation---Said defendant having malafidely sold the land mutation of such land was to be reversed and transferred in favour of decree holder---Defendant actually had committed fraud and no one could get the benefit of his own fraud---High Court directed the concerned Revenue Officers to correct the record accordingly---Constitutional petition was allowed.

Mst. Sharifan Bibi and others v. Member, Board of Revenue, Lahore and others 1996 CLC 644 and Allah Dad v. Mst. Noor Bhari and others 1996 CLC 374 ref.

Ch. Abdul Majeed-III for Petitioners.

Sh. Naveed Shahryar for Respondents Nos.1 and 2.

Ex-Parte for Respondent No.3.

Rana Shamshad Khan, Additional Advocate General Punjab for Respondents Nos.4 to 7.

2019 C L C 1799

[Lahore (Bahawalpur Bench)]

Before Muzamil Akhtar Shabir, J

JAM MEERAN----Petitioner

Versus

ADDITIONAL ADVOCATE GENERAL and others----Respondents

W.P. No.9021 of 2018/BWP, decided on 18th October, 2018.

Family Courts Act (XXXV of 1964)---

----Ss.13 & 5, Sched.---Suit for recovery of dower---Execution proceedings---Petitioner assailed orders of executing court and appellate court whereby both the courts below in proceedings for execution of decree refused to accept some other property as dower instead of the property which was decreed---Validity---Substituting the property would amount to the executing court amending the decree, which was not permissible in law---Constitutional petition was dismissed in limine.

2019 C L C 1811

[Lahore]

Before Ch. Muhammad Iqbal, J

LIAQAT ZAHEER KHAWAJA and 14 others----Petitioners

Versus

MUHAMMAD SHAUKAT QAMAR and 12 others----Respondents

C.R. No.1301 of 2016, heard on 11th June, 2019.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 20---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Party to suit not made respondent in appeal---Effect---Limitation---Application for impleading necessary parties in appeal---Application for impleading necessary parties in the appeal was moved before the Appellate Court but same was rejected---Appeal was dismissed being not competent---Validity---Petitioners moved application to implead plaintiffs/decree-holders as respondents after lapse of three years and four months which was time barred---Omission to implead necessary parties to the appeal within prescribed period of limitation would give rise to the accrual of valuable right to other party which could not be taken away leniently---Petitioners had filed application for impleading necessary parties after the expiry of period of limitation of filing appeal---Provision of O.XLI, R.20, C.P.C. was not intended to overrule other provisions with regard to filing of an appeal and limitation applicable thereto---If necessary party to appeal was not arrayed as respondent in appeal then subsequently same could not be added after expiry of period of limitation---Plaintiffs/decree-holders who were not impleaded as respondents in appeal were necessary parties and without them no effective decree could be passed---Appeal had abated in toto due to non-impleading of necessary parties---No application for condonation of delay had been moved in the present case---Non-impleading of a necessary party had rendered the appeal as incompetent---No illegality or material irregularity had been pointed out in the impugned judgment and decree passed by the Appellate Court---Appellate Court had rightly dismissed the appeal, in circumstances---Revision was dismissed accordingly.

Qasim Khan and another v. Mst. Malkai and others PLD 1963 (W.P.) Pesh. 58; Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others PLD 1988 SC (AJ&K) 156; Abdul Qadir and 5 others v. Muhammad Umar and others PLD 1987 Lah. 232; Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and another PLD 1964 SC 559; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 and Subah Sadiq v. Mst. Rajan (Since Dead) through her Legal Heirs and others PLD 2006 Lah. 585 rel.

Shahzad Muhammad Zeeshan Mirza and Zahir Abbas for Petitioners.

Mansoor-ur-Rehman Khan Afridi for Respondents.

2019 C L C 1836

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SARWARI BEGUM and another----Appellants

Versus

Malik MUKHTAR AHMAD and others----Respondents

R.F.As. Nos. 53 and 121 of 2013, heard on 22nd March, 2019.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.118---Summary suit on the basis of promissory note---Negotiable instrument---Condition---Effect---Document---Proof of---When any condition had been attached with a promissory note then it would bring the same out of the ambit of negotiable instrument---Interest having been included in the promissory note, therefore same was not a negotiable instrument---Presumption was attached to a negotiable instrument but the same was rebuttable---Plaintiff was bound to prove the execution of document in accordance with law---Plaintiff had failed to prove the receipt of money by the defendant---No decree should have been passed in favour of plaintiff, in circumstances---Impugned judgment and decree passed by the Trial Court were set aside and suit was dismissed---Appeal was allowed, in circumstances.

Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98; Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345; Nadeem Kamran and another v. Waseem Akhtar Tareen 2011 CLD 533 and Chiragh (dead) through LRs v. Ibrahim and others 2010 SCMR 1976 ref.

Liaqat Ali Khan v. Mst. Shafaq Urooj 2017 CLD 35; Shehzad Akhtar v. Muhammad Saleem Shad Qureshi and another 2018 CLD 28; Rasheed ur Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418; Pandit Sushil Chander Chaturvedi v. Wali Ullah and others AIR 1941 Allahabad 158 and Sarju Sahu and others v. Sukhi Lal and others AIR 1924 Patna 96 rel.

Zubair Afzal Rana for Appellants.

Ch. Iqbal Ahmad Khan for Respondents.

2019 C L C 1866

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan, J

MUHAMMAD ZAFAR IQBAL----Petitioner

Versus

HAMEEDA NAZ alias HAMEEDA KHANUM and 4 others----Respondents

Civil Revision No.1472 of 2018, decided on 15th November, 2018.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of contract---Non-payment of balance sale consideration---Effect---Trial Court while deciding the application for temporary injunction directed the plaintiff to deposit the balance sale consideration within thirty days otherwise suit would be dismissed---Contention of plaintiff was that condition for depositing the remaining sale consideration was illegal---Validity---Trial Court in a suit for specific performance was bound to consider the sale agreement at the very inception and if any amount was outstanding against the plaintiff, Court must order for its deposit in the Court within the time period so granted---Plaintiff, in the present suit, at the time of filing the same did not deposit the remaining sale consideration to show his bona fide and willingness to perform his part of agreement---Plaintiff instead of complying with the order of Trial Court for deposit of balance sale consideration assailed the same in appeal---Object for direction to deposit the balance sale consideration in the Court was to examine the bona fide of the purchaser for obtaining a decree for specific performance---Non-deposit of balance sale consideration would raise adverse presumption against the plaintiff that he was not serious in performing his part of agreement or in pursuing his remedy of specific performance consequently disentitling him to decree for specific performance---Plaintiff before the cutoff date did not issue notice to the defendant with regard to fulfillment of her part of agreement and his willing to perform his part which showed that he was not serious in performing his part of agreement---Party seeking a remedy for specific performance was bound to apply the Court for depositing the balance sale consideration and any contumacious / omission in this regard would entail dismissal of the suit---No such steps had been taken by the plaintiff in the present suit rather plaintiff lingered on despite of balance sale consideration and kept on disobeying such order---Suit of plaintiff was liable to be dismissed---Revision was dismissed accordingly.

Messrs Bin Bak Industries (Pvt.) Ltd. and another v. Friends Associates (Regd.) and others 2003 SCMR 238 and Altaf Hussain Qamar and 2 others v. Imran Rasool and 5 others 2011 CLC 1891. distinguished.

Malik Imam Bukhsh v. Mohammad Boota (Deceased) through L.Rs. 2017 SCMR 516; Adil Tiwana and others v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Messrs Bin Bak Industries (Pvt.) Ltd. and another v. Friends Associates (Regd.) and others 2003 SCMR 238 and Rabnawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362 rel.

2019 C L C 1915

[Lahore]

Before Muzamil Akhtar Shabir, J

SALMAN FAZAL----Petitioner

Versus

JUDGE FAMILY COURT, SHEIKHUPURA and another----Respondents

W.P. No. 19199 of 2019, decided on 2nd April, 2019.

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

----S.5, Sched. Sr. 9 & S.14---Civil Procedure Code (V of 1908), O.VII, R.11---Claim of personal property and belongings of wife---Rejection of plaint---Appeal---Scope---Respondent/wife claimed that on the second day of marriage, petitioner/husband took away certain amount of cash from her purse with the promise to return the same which was not done---Petitioner filed application for rejection of plaint to the extent of the said claim---Trial court concluded that the cash was presumed to be personal property of the wife, therefore, Family Court had jurisdiction to entertain the matter---Validity---Held, whether or not the cash could be treated as personal property of wife under the Entry No.9 of the Sched. of Family Courts Act, 1964, was yet to be determined on the basis of evidence to be recorded by the parties---Court had prima facie presumed the same to be personal property of wife for the purposes of further determination---Impugned order was purely interlocutory in nature, against which an appeal was not available under the law---Plaint could not be rejected or returned in piecemeal when some dispute required to be determined by the court still subsisted and it could be rejected only if all reliefs claimed were barred under the law---Constitutional petition, being premature, was dismissed.

Qadeer Ahmad v. Ejaz Ahmad through LRs. and others 20l7 YLR 1217 and Imran Raza Shaikh and 5 others v. Mst. Zarina Gul and 4 others 2003 YLR 943 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Non-availability of appeal---Scope---Where appeal is not maintainable, constitutional petition cannot be used as its substitute especially where no final challengable order requiring determination has been passed.

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

----O.VII, R.11---Rejection/return of plaint---Scope---Plaint cannot be rejected or returned in piecemeal when some dispute required to be determined by the court still subsists and it could be rejected only if all reliefs claimed were barred under the law.

Qadeer Ahmad v. Ejaz Ahmad through LRs. and others 20l7 YLR 1217 and Imran Raza Shaikh and 5 others v. Mst. Zarina Gul and 4 others 2003 YLR 943 rel.

Aamir Iqbal Basharat and Umair Yasin for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General and Muhammad Arshad Manzoor, A.A.G. on Court's call.

2019 C L C 1920

[Lahore (Multan Bench)]

Before Shahid Karim, J

Syed ABDUL QADIR SHAH (Deceased) through his Legal Heirs and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

W.P. No.736 of 2011, heard on 9th April, 2019.

Punjab Land Acquisition Rules, 1983---

----R.14---Acquired land not utilized for acquiring purpose---Disposal of such land---Procedure---Petitioners had sought return of land in their favour in lieu of compensation which was paid to them at the time of acquisition of land in question---Validity---High Court observed that if "public purpose" for which land was acquired was proposed to be abandon then land should be handed over to the Collector who should be responsible for its disposal in accordance with the orders of the Government---Government should dispose of acquired land in terms of R.14 of Punjab Land Acquisition Rules, 1983---No step in the present case had been taken by the department and land in question was never handed over to the Collector for its disposal---Department did not intend to abandon the project and to return the land to the Government for its disposal---Land once acquired did vest in the Government and could not be given back to the previous owners even if its purpose was abandoned under any circumstances---Land acquired might be put to a different purpose with the only rider that the purpose for which it had subsequently put should also be a "public purpose" in all its manifestations---Department was directed to make a decision within a period of one year with regard to utilization of acquired land for "public purpose" for which it was proposed to be used---If no such public purpose was in the estimation of department then land in question should be disposed of in terms of R.14 of Punjab Land Acquisition Rules, 1983---Constitutional petition was dismissed accordingly.

Syed Muhammad Ali Gillani for Petitioners.

Malik Muhammad Tariq Rajwana and Aadil Shabbir for Respondents Nos.2 to 6.

2019 C L C 1945

[Lahore]

Before Mirza Viqas Rauf, J

JAMEELA BIBI and others----Petitioners

Versus

MUHAMMAD ASLAM MEHMOOD and others----Respondents

C.R. No.22619 of 2019, decided on 17th April, 2019.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 25 & O. XIV, R .5---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Appeal---Framing of additional issues by the Appellate Court---Requirements---Appellants moved application for framing of additional issues but same was dismissed---Validity---Appellants had not moved application to the Trial Court for recasting or reframing of issues---Parties being well aware of the matter in controversy had produced their evidence---Appellate Court could frame issues if same were essential to the right decision of the suit---Nothing was on record to the effect that Trial Court had omitted to frame or try any issue or determine any question of fact involved in the lis---Matter in controversy had duly been covered by the Trial Court---Trial Court while framing the issues had not committed any illegality---Had there been any objection with regard to framing of issues the appellants should have moved application before the Trial Court for recasting the same---Mere non-framing of an issue by the Trial Court would not affect the vires of judgment if it was established that parties while leading evidence were conscious and aware of the matter in issue and they had led the evidence to that effect---Appellate Court was justified in dismissing the application for framing of additional issues---No illegality or perversity had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in limine.

Muhammad Bashir v. Muhammad Hussain and 16 others 2009 SCMR 1256; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 and Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others 2015 SCMR 799 ref.

Abdul Karim v. Haji Noor Badshah 2012 SCMR 212; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Eada Khan v. Mst. Ghanwar and others 2004 SCMR 1524; Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271; Muhammad Ashraf and others v. Metropolitan Corporation, Lahore 2007 CLC 1079 and Mst. Saeeda Akhtar Sadiq through Special Attorney v. Tauqir Akhtar 2006 CLC 1430 rel.

2019 C L C 1972

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf and Masud Abid Naqvi, JJ

The AGRICULTURAL AND RESEARCH DEPARTMENT and others----Appellants

Versus

MUHAMMAD TARIQ JAVED and others----Respondents

I.C.A. No.390 of 2017 in W.P. No.2464 of 2009 and C.Ms. Nos.1 and 2 of 2017, decided on 15th March, 2018.

(a) Law Reforms Ordinance (XII of 1972)---

----S.3---Limitation Act (IX of 1908), S.12 & Art. 151---Intra Court Appeal---Condonation of delay---Exclusion of time spent in obtaining certified copies---Scope---Appellant sought condonation of delay in filing appeal---Record reflected that application for obtaining certified copies was moved after 43 days of the passing of the judgment---Limitation of 20 days provided under Art. 151 Limitation Act, 1908 for filing appeal started running from the date of decree or order passed by the High Court in its original jurisdiction---Time spent in obtaining certified copies of the relevant record was not excludable from the period prescribed for filing Intra Court Appeal---Application for condonation of delay was dismissed.

Government of Khyber Pakhtunkhwa through Secretary Industries Commerce and Mineral Development, Peshawar and others v. Frontier Chemicals Industries Ram Bagh, Mardan 2016 SCMR 1410 distinguished.

Ashiq Hussain Sabri v. Secretary Health, Government of the Punjab PLD 2011 Lah. 490 ref.

Khawaja Muhammad Afzal and another v. Sh. Muhammad Sadiq and others 1998 SCMR 179 and Ministry of Defence and 3 others v. Muhammad Athar 2013 MLD 1284 rel.

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

----S.3---Dismissal of suits, etc instituted after period of limitation---Scope---Party, while seeking condonation of limitation has to explain delay of each and every day as the question of limitation is as important as the jurisdiction of the court---Court in terms of S.3, Limitation Act, 1908 is under bounden duty to take notice of the question of limitation, even if not raised in defence by the contesting party. [p. 1977] C

United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380 ref.

(c) Administration of justice---

----Each and every case has its own facts---Court is obligated to decide the lis on the basis of available material and keeping in view the conduct of the parties in the matter.

(d) Constitution of Pakistan---

----Art.25---Limitation Act (IX of 1908), S. 5---Equality of citizens---Limitation---Condonation of delay---Preferential treatment to government---Scope---No distinction can be drawn between an ordinary litigation and the government institutions in the matter of limitation---Every statute is meant to eliminate the discrimination and government institutions cannot be given preferential status before a court of law---Principles of natural justice are founded on the equality of citizens, which is even guaranteed under Art. 25 of the Constitution---State or government cannot be treated differently unless such privilege is extended through a lawful statute.

Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727; Federation of Pakistan through Secretary, Ministry of Finance v. Niaz Ahmad 1997 PLC (C.S.) 750 and Pakistan Railway Advisor and Consultancy Services (PRACS) Railway Burt Institute v. Ch. Muhammad Hussain 2003 CLC 81 ref.

Rana Muhammad Hussain, Assistant Advocate General for Applicants-Appellants.

Muhammad Khalid Mehmood Ayaz for Respondent No.1.

2019 C L C 2021

[Lahore]

Before Atir Mahmood, J

JALAL DIN----Petitioner

Versus

Mst. SALEEM BIBI and another----Respondents

Writ Petition No.22799 of 2017, heard on 25th July, 2019.

Family Courts Act (XXXV of 1964)---

----S.5---Civil Procedure Code (V of 1908), Ss. 12(2), 119 & O.III, R.4(i)---High Court (Lahore) Rules and Orders, Volume-I, Part-A, Chapter 16---Filing of memo. of appearance---Non-filing of Vakalatnama---Effect---Petitioner was husband of respondent who filed suit for recovery of dowry articles and was aggrieved of ex parte judgment passed by Lower Appellate Court in favour of his wife--- Petitioner sought setting aside of judgment on grounds that fake memo of appearance was filed in court on his behalf by respondent---Validity---Memo of appearance only enabled an advocate to plead on behalf of a party for a particular hearing and was yet to be authorized by party to conduct all proceedings---Counsel was prohibited under O.III, R.4(i) C.P.C. from appearance in court without filing Vakalatnama duly signed by party---Such Vakalatnama was deemed to be in force until all proceedings in suit were ended or till such time power of attorney was withdrawn or revoked according to Rules---In case, if lawyer who had filed memo of appearance failed to submit a proper power of attorney on next date fixed, in such case court was to issue fresh notice to party concerned---As no Vakalatnama was submitted on behalf of petitioner therefore, Lower Appellate Court was bound to issue fresh notice inspite of initiating ex parte proceedings---Memo. of appearance which was filed before Lower Appellate Court did not bear name of counsel and it appeared that petition was not properly served and represented before Lower Appellate Court---Findings of Lower Appellate Court were not sustainable in eyes of law and it would be against norms of justice if petitioner was not provided an opportunity to defend appeal filed against him---High Court set aside judgment passed by Lower Appellate Court and remanded matter for decision afresh subject to payment of cost of Rs.100,000/----Petition was allowed in circumstances.

Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118 rel.

Tahir Mahmood for Petitioner along with petitioner in person.

Respondent in person.

Sardar Qasim Hassan Khan, Assistant A.G.

2019 C L C 2041

[Lahore]

Before Muzamil Akhtar Shabir, J

Haji MOHAMMED ILYAS---Petitioner

Versus

Haji MUSHTAQ AHMED through L.Rs.---Respondents

Civil Revision No.80839 of 2017, decided on 14th February, 2019.

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

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Closure of evidence---Plaintiff was provided last and final opportunity to lead evidence---Trial Court was not bound before passing final order to direct the plaintiff to lead evidence subject to payment of costs---Passing or non-passing order to produce evidence subject to costs was discretion of the Court---Exercise of said discretion could not be interfered with by the High Court in its revisional jurisdiction---Conduct of plaintiff remained contumacious as he never produced witnesses in the Court despite availing last and final opportunity---Trial Court was justified to pass order under O.XVII, R.3, C.P.C.---Revision was dismissed, in circumstances.

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

----Art. 129---Presumption of authenticity was attached to the judicial record.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Fayyas Hussain v. Akbar Hussain and others 2004 SCMR 964; Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Kamal Athar v. State 1992 SCMR 282; Muhammad Mansha v. Hashmat Ali and another 2010 YLR 1498; Asmatullah v. Allah Nawaz and others 2007 MLD 1329 and International Multi Leasing Company v. Capital Assets Leasing Corporation Limited and another 2004 CLD 1 rel.

Miss Fouzia Sultana Sheikh for Petitioner.

2019 C L C 79

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

DILAWAR KHAN and 3 others----Petitioners

Versus

MUHAMMAD ZAHIR ALI and another----Respondents

C.R. No.288-A of 2014, decided on 18th December, 2017.

(a) Khyber Pakhtunkhwa Civil Courts Ordinance (II of 1962)---

----S.18---Appeal from civil judge---Forum---Determination---Principle---Exception---Forum of appeal is determined on the basis of valuation of the suit for the purpose of jurisdiction, as given in the plaint---Only exception to such rule is that if the court re-determine the value of the suit for the purpose of jurisdiction, during the proceedings.

Muhammad Ayub v. Dr. Obaiduilah and others 1999 SCMR 394 foll.

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

----S.14---Time consumed in filing of appeal before wrong forum and pursuit of appeal can be excluded/condoned in terms of S.14, Limitation Act, 1908.

Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 foll.

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

----S.14---Civil Procedure Code (V of 1908), O. VII, R.10---Appeal filed in wrong forum---Return of appeal---Delay in filing appeal before proper court---"Sufficient cause"---Scope---Petitioners filed appeal against the decree passed by Trial Court in the High Court---High Court returned the memo. of appeal for presenting the same before the District Judge---Petitioners filed fresh appeal before the District Judge, which was dismissed being barred by time---Petitioners instead of presenting the appeal to the District Judge, which was returned to them, by the High Court filed another/fresh appeal before the District Judge---Validity---Requirement of the law was to present the same memo of appeal to the District Judge which was returned---Gross negligence on the part of the petitioners could not fall within the realm of "sufficient cause" of delay in filing appeal---Revision petition was dismissed, in circumstances.

PLD 2003 SC 46 and 2003 MLD 168 ref.

Muhammad Ayub v. Dr. Obaiduilah and others 1999 SCMR 394; Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 and Mst. Khalida Begum v. Mst. Yasmeen 2000 CLC 1290 rel.

Sardar Tahir Hussain, Amjad Khan and Zahid Mahmood Qureshi for Petitioners.

Respondents Ex parte:

2019 C L C 127

[Peshawar (Bannu Bench)]

Before Abdul Shakoor and Shakeel Ahmad, JJ

Malik MUHAMMAD JALIL----Petitioner

Versus

FEDERAL SECRETARY FOR DEFENSE, ISLAMABAD and 7 others----Respondents

Writ Petition No.680-B of 2018, decided on 5th September, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual obligation---Scope---Contractual rights, commitments, undertaking and obligations have to be enforced through courts of ordinary jurisdiction, which could not be interfered with by the High Court while exercising its constitutional jurisdiction---Normal remedy being suit for contractual rights and obligations was to be availed instead of filing petition under Art. 199 of the Constitution.

Ashraf Ali Akanda v. Abdul Awal, Deputy Magistrate and Special Officer (Aboriginal) Net-rokona Camp and others PLD 1968 Dacca 962 rel.

Millat Tractors and others v. Government of Pakistan PLD 1992 Lah. 68; Ahmad Hassan v. Pakistan Machine Tools Factory 1990 CLC 2007; Pakistan Mineral Development Corporation v. Pak WAPDA PLD 1986 Quetta 181; Sufi Muhammad Ramzan, Contractor, Municipal Committee, Mianwali v. Secretary, Local Government and Rural Development Department, Punjab, Lahore and 2 others PLD 1987 Lah. 262; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; The State of Pakistan v. Mehrajuddin PLD 1959 SC (Pak) 147; Raghvendra v. State of Vindhuja Pradesh AIR 1952 Vindh Pradesh 13; Muhammad Din and Sons Shahdara Mills, Lahore v. The Province of West Pakistan and 5 others PLD 1969 Lah. 823; Ahmad Hassan v. Pakistan Machine Tools Factory 1990 CLC 2007; Muzaffar ud Din v. Chief Settlement Commission 1968 SCMR 1136; The Chandpur Mills Ltd. v. The District Magistrate Tippera and (2) The Province of East Pakistan PLD 1958 SC (Pak) 267; Messrs Momin Motor Company v. The Regional Transport Authority Dacca PLD 1962 SC 108 and Abdul Rahim v. Town Committee 1985 CLC 2805 ref.

Muhammad Rasheed Khan Wazir for Petitioner.

Hazrat Syed Deputy Attorney General for Respondent.

Muhammad Yaqoob Khan Reader to AC Mir Ali.

2019 C L C 160

[Peshawar]

Before Qalandar Ali Khan, J

MIAN MUHAMMAD----Appellant

Versus

ABDUL SATTAR KHAN----Respondent

R.F.A. No.272-P of 2014, decided on 3rd September, 2018.

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

----S. 96---Appeal returned for presentation before proper forum---Fresh appeal, filing of---Competency---Limitation---Condonation of delay---Scope---Appeal was returned for presentation before proper forum---Appellant filed fresh appeal instead of appeal returned to him and no application for condonation of delay was moved with the fresh appeal---Validity---Application for condonation of delay moved with the application for setting aside of ex-parte proceedings before Trial Court which had been dismissed could not serve the purpose and meet the requirement of moving an application for condonation of delay of three years in filing of a fresh appeal---Simply attaching the returned appeal with the fresh appeal could not fulfil the requirement of compliance with the direction of the Court to the appellant for filing the same before proper forum---When appeal was being dismissed for limitation/time-barred then its merits were not necessary to be discussed---Trial Court had properly appreciated evidence available on record while passing the impugned judgment---Appeal was dismissed in circumstances.

PLD 2016 SC 872; 2002 SCMR 677; 1999 SCMR 2353; 1984 SCMR 1508; 2015 MLD 405; 2000 CLC 1290; PLD 1970 Kar. 367; 2007 CLC 1664 and 2011 SCMR 676 rel.

(b) Void Order---

----Order passed by a Court having no jurisdiction would be void. [p. 163 ] B

PLD 1975 SC 331 rel.

Malik Zeb Khan for Appellant.

Abdul Sattar Khan for Respondent in person.

2019 C L C 186

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

ISTEFTANOSH----Petitioner

Versus

Mst. BIBI GUL BADORA and 9 others----Respondents

C.R. No. 45-A of 2009, decided on 14th March, 2018.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 23, 24 & 25---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Remand of case by the Appellate Court---Requirements---Trial Court decreed the suit but Appellate Court remanded the matter for decision afresh on the ground that entire property of deceased had not been included in the suit---Validity---Parties were provided full opportunities to lead their evidence---Trial Court after appreciating the evidence had decreed the suit---Power to remand the case could not be exercised lightly---Appellate Court while exercising the power to remand the case was to examine the evidence; if evidence was not sufficient to pronounce judgment or decide the issue between the parties then matter could be remanded---Appellate Court could itself record evidence if so required and decide the case---Appellate Court had not pointed out the fact which remained undetermined at trial stage---Nothing was on record as to which property of deceased was not included in the suit---If plaintiff had omitted to include a portion of property in the suit to which the cause of action was related then he would face the consequences of being precluded to file a fresh suit on the same cause of action---Findings recorded by the Appellate Court were not based on any evidence---Evidence on record was sufficient for pronouncement of judgment in the present case---Impugned judgment passed by the Appellate Court was not sustainable in the eyes of law which was set aside---Matter was remanded by the High Court to the Appellate Court to decide the appeal on available record---Revision was allowed accordingly.

Rehman Shah and others v. Sher Afzal and others 2009 SCMR 462; Ashiq Ali and others v. Mst. Zahir Fatima and others PLD 2004 SC 10; Fateh Ali v. Pir Muhammad and another 1975 SCMR 221; Sher Muhammad and others v. Jamadar Ghulam Ghous 1983 SCMR 133; Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 and Syed Abdul Hakim and others v. Ghulam Mohiuddin PLD 1994 SC 52 rel.

Muhammad Ilyas Khan for Petitioner.

Sajjad Ahmed Abbasi for Respondent.

2019 C L C 298

[Peshawar (Abbottabad Bench)]

Before Syed Afsar Shah and Syed Arshad Ali, JJ

AHMED ALI---Petitioner

Versus

TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, TEHSIL GHAZI, DISTRICT, HARIPUR and 7 others---Respondents

W.P. No. 912-A of 2017, decided on 8th November, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Interpretation of law---Scope---Direct approach to High Court under Constitutional jurisdiction by avoiding vague, absurd and illusionary remedy is permissible---Interpretation of law under Constitution, rests with superior judiciary.

United Business Lines, S.I.E Gujranwala and another v. Government of Punjab, through Secretary Local Government Lahore and 5 others PLD 1997 Lah. 456 rel.

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

----S. 3---Laches---Scope---Bar of laches is neither absolute nor is equal to bar of limitation under Limitation Act, 1908. [p. 303] B

Barkat Ali v. President/Chief Executive, PTCL Islamabad 2014 PLC (C.S.) 352 and Muhammad Hussain Bhatti v. Province of Punjab 2014 PLC 297 ref.

Umer Baz Khan v. Syed Jehanzeb PLD 2013 SC 268 rel.

(c) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 25, 42 & Third Schedule, Part-III---Imposition of taxes---Tehsil Municipal Administration, powers of---Petitioner was owner of stone crusher plant and was aggrieved of levy of tax/fee by Tehsil Municipal Administration on transportation of sand and crushed stone---Validity---Business of petitioner was not regulated by any of the local government either under provisions of erstwhile North Western Frontier Province Local Government Ordinance, 2001 or Khyber Pakhtunkhwa Local Government Act, 2013---Petitioner placed on file, decision taken by Local Government Council regarding imposing of tax by Tehsil Municipal Officer on mineral products which tax was declared to be not in accordance with Third Schedule, Part-III of Khyber Pakhtunkhwa Local Government Act, 2013---When decision was taken regarding one district, then same was equally applicable to similar activities being carried out in another district---Activities being carried out by petitioner were at par regarding which decision had been taken earlier---High Court declared that Tehsil Council had no authority to levy any tax/fee on production of stone, sand/bajri---High Court declared notification in question as without lawful authority---Constitutional Petition was allowed in circumstances.

Government of Punjab v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108; Israr Ahmed v. Tehsil Naib Nazi, Tehsil Lahore District Swabi 2007 YLR 2623 and Shafi Ullah Khan, Vice President v. Zarai Taraqiati Bank Ltd. 2014 PTD 1345 ref.

Muhammad Shafiq Tanoli for Petitioner.

Abdur Rehman Qadir for Respondents Nos. 1, 2 and 4.

2019 C L C 335

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

Mst. IRUM UN NISA and 8 others----Petitioners

Versus

Mst. NAZ PARVER and another----Respondents

C.R. No. 334-A of 2010, decided on 11th December, 2017.

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

----S. 42---Transfer of Property Act (IV of 1882), S. 54---Suit for declaration---Co-sharer---Sale of land in excess of share---Effect---Mutation---Scope---Sale---Requirements---Vendor was recorded as owner in the entire revenue estate to the extent of land measuring 23 kanals and 11 marlas whereas she sold the land measuring 30 kanals and 6 marlas in Khana-i-Kasht, 06 kanals and 15 marlas in excess of her total entitlement/ownership---Vendor being joint owner and in exclusive possession of the land could validly transfer the land in her possession but same should not exceed her/his entire ownership in the revenue estate/whole property---Co-sharer could not alienate the property more than his share in the whole property in the garb of Hissadari possession---Despite the fact that had transferred her property in column of cultivation, still her name appeared as owner of the land in column of ownership---Sale of suit land through impugned mutation could not be termed as a valid sale---Entries in revenue record/mutation did not confer title on the person who was recorded owner in the column of ownership in the revenue record---No person could transfer better title than he/she himself/herself had---Entries in the revenue record were maintained for fiscal purposes---Impugned mutation was illegal and result of collusion by vendor and vendee with the revenue official---Impugned judgments and decrees passed by the courts below were set aside---Revision was allowed, in circumstances.

Muhammad Muzzafar Khan's case PLD 1959 SC 09; Pakistan in Sajid Khan v. Aya Khan 1986 SCMR 356; Mst. Noor-un-Nisa v. Ghulam Sarwar 1994 SCMR 2087; Abdur Rehman v. Sayed Sultan Ali Shah 1998 SCMR 1589; Khalil Ahmed v. Abdul Jabbar Khan 2005 SCMR 911; Merriam Webster Dictionary and Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner 1984 SCMR 94 rel.

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

----S. 54---'Sale'---Meaning.

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

----S. 54---'Sale'---Essential elements.

(d) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42---Mutation---Scope.

Muhammad Ayub Khan for Petitioner.

Sultan Ahmed Jamshed for Respondent.

2019 C L C 427

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

HIDAYAT ULLAH----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others----Respondents

C.O.C. No.474-D of 2018 with C.M. No.748-D of 2018, decided on 25th September, 2018.

(a) Constitution of Pakistan---

----Art. 204---Contempt proceedings, initiation of---Employee filed constitutional petition against departmental proceedings initiated against him which was disposed of with the direction to the department to proceed against the employee in accordance with law but no final order should be passed till disposal of review petition pending before Supreme Court---Department, despite said order of High Court, passed final order imposing major penalty of reduction to the lower pay scale upon the employee---Validity---Department had not acted in consonance with the order passed by the High Court---Nobody was to be penalized by the inaction of the public functionaries---Public functionaries were bound to act in accordance with law---Operation of impugned order whereby major penalty of reduction to lower pay scale was imposed upon the employee was suspended till the final disposal of review petition by the Supreme Court---Contempt petition was disposed of accordingly.

Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah 3; Chaudhry Zahoor Elahi's case PLD 1996 SC 383; State v. Tariq Aziz and 6 others 2000 SCMR 751 and Mst. Safia Bibi v. Mst. Aisha Bibi PLD 1982 SCMR 494 rel.

(b) Constitution of Pakistan---

----Art. 4---Public functionaries were bound to act in accordance with law.

State v. Tariq Aziz and 6 others 2000 SCMR 751 and Mst. Safia Bibi v. Mst. Aisha Bibi PLD 1982 SCMR 494 rel.

(c) Constitution of Pakistan---

----Art. 5(2)---Everybody was bound to obey the command of the Constitution.

Chaudhry Zahoor Elahi's case PLD 1996 SC 383 rel.

(d) Administration of justice---

----Nobody was to be penalized by the inaction of the public functionaries.

Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah 3 rel.

Muhammad Waqar Alam for Petitioner.

Adnan Ali Khan, Asstt: A.G. for Respondents.

2019 C L C 486

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

NOOR AHMAD----Petitioner

Versus

AZAD KHAN----Respondent

C.R. No.121-D of 2018, decided on 25th October, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Summary suit on the basis of cheque---Application for leave to defend suit---Trial Court granted conditional leave to defend the suit subject to deposit of 1/4th of the suit amount within forty days from the date of order---Validity---Trial Court was required to examine all questions which could or might arise by way of defence as deducible not merely on the basis of what defendant had pleaded or said with regard to his application for leave to defend but with reference to the entire record before the Court---Contents of application for leave to defend did disclose a triable issue and a plausible defence and not a sham one and merit due examination---Defendant had made out a case for grant of leave to defend the suit, in circumstances---Leave to defend suit could be granted unconditionally or subject to such terms as to payment into the Court, giving security or otherwise as the Court did think fit---Condition was not to be harsh, unjust or oppressive and even furnishing of any solvent security including surety was sufficient---No illegality, irregularity or jurisdictional defect had been pointed out in the impugned order passed by the Trial Court---Revision was dismissed in limine accordingly.

Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163; Abdur Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925; Kokab Javed v. Abdul Ahad 2005 CLC 1135; Sala ud Din and others v. Messrs Avon Shoes Co. 1995 MLD 185 and Syed Sharaf Ali Shah's case 2000 CLC 1646 rel.

Zia ur Rehman Kazi for Petitioner.

Nemo for Respondent.

2019 C L C 517

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

MALAL DIN----Petitioner

Versus

MAIZULLAH KHAN and 3 others----Respondents

Writ Petition No. 401-B of 2012, decided on 22nd October, 2018.

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

----O. IX, R. 13 & S. 12 (2)---Specific Relief Act (I of 1877), S. 12---Limitation Act (IX of 1908), Arts. 164 & 181---Suit for specific performance of contract---Ex parte decree, setting aside of---Limitation---Suit was ex parte decreed against which an application under S. 12(2), C.P.C. was moved which was contested by the respondent and after recording evidence same was dismissed---Revision petition against the said order was dismissed and thereafter constitutional petition was disposed of on the statement of applicant that he intended to file an application under O. IX, R. 13 of C.P.C.---Applicant thereafter filed an application under O. IX, R.13, C.P.C. for setting aside of ex parte decree which was dismissed being time-barred---Validity---Limitation for filing application under O. IX, R. 13, C.P.C. when ex parte decree was passed on the date of hearing was one month and in other case it was three years---Time from which the period began to run for setting aside a decree passed ex parte, would be the date of the decree or where the summon was not duly served then when the applicant had knowledge of the decree---Applicant had knowledge of impugned decree when he moved application under S.12(2), C.P.C.---Petitioner availed remedy before wrong forum and time consumed therein was to be computed for the purpose of limitation for filing application under O. IX, R. 13, C.P.C.---Petitioner had failed to prove plausible reason and sufficient cause for his absence from the Court---Constitutional petition was dismissed, in circumstances.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Arts. 164 & 181---Ex parte decree, setting aside of---Limitation---Limitation for filing application under O. IX, R. 13, C.P.C. when ex parte decree was passed on the date of hearing was one month and in other case it was three years---Time from which the period began to run for setting aside a decree passed ex parte would be the date of the decree or where the summon was not duly served then when the applicant had knowledge of the decree.

Haji Umar Daraz Khattak for Petitioner.

Ex parte for Respondents.

2019 C L C 570

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

Haji Malik ADNAN KHAN----Petitioner

Versus

AKRAM KHAN DURRANI and 9 others----Respondents

Election Petition No. 05-B of 2018, decided on 20th November, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 139, 143, 144 & 145---Election petition---Necessary ingredients---Non-filing of notification declaring the returned candidate---Effect---Affidavit of service of copies of petition; annexures and documentary evidence to the respondents under S. 144(2)(c), Elections Act, 2017, requirement of---Significance---Petitioner contested election and being dissatisfied with results assailed the same---Validity---Copy of notification whereby respondent was declared as returned candidate by Election Commission of Pakistan had not been appended with election petition---When there was a specific prayer for declaring election of returned candidate void, illegal and without any effect then annexing copy of notification was essential prerequisite---Election petition must contain affidavit of service under S. 144(2)(c) of Elections Act, 2017, to the effect that copy of petition along with copies of all annexures, including list of witnesses, affidavits and documentary evidence were sent to all respondents by registered post or courier service---Simple affidavit before Additional Registrar of High Court signed on the day of filing of petition did not fulfil requirements as laid down---Non-signing of annexures was also fatal for election petition and same could not be allowed to proceed---Constitutional petition was rejected in circumstances.

2014 SCMR 1477; 2015 SCMR 1585; 2016 SCMR 1312; PLD 2017 Pesh. 111; 2010 SCMR 1877; 2016 SCMR 750 and PLD 2005 SC 600 ref.

Muhammad Ismail v. The State PLD 1969 SC 241 and Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 rel.

Muhammad Asghar Khan Kundi and Bashir Khan Wazir for Petitioner.

Pir Liaqat Ali Shah for Respondent No.1.

2019 C L C 591

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

SHAM LAL and 6 others----Petitioners

Versus

M.E.O. ABBOTTABAD AND GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Pakistan, Islamabad and 2 others----Respondents

Civil Revision No.30-A of 2015, decided on 13th April, 2017.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Constitution of Pakistan, Art. 20---Suit for possession and declaration of immoveable property---Leasehold rights---Lack of proof and documentary evidence---Plaintiffs/petitioners while disclosing themselves to be the members of the Hindu community, claimed the ownership of a temple and a guest house attached with the temple on the basis of being lease holder of the said properties---Documentary evidence on record established that disputed survey numbers were under the ownership of the Federal Government, whereas some part of the land was under the management of Military Estate Office and Cantonment Board---Plaintiffs had categorically admitted in their statements that they had no document in support of their claim; that lease documents were also not available with them regarding the suit survey numbers; and, that they had no proof of forcible dispossession from the suit property---Moreover counsel for the Military Estate Office and Cantonment Board categorically stated in court that the rights of members of the Hindu community under Art. 20 of the Constitution were fully protected and the same would not be interfered with---Plaintiffs failed to point out any non-reading and misreading of the evidence/material available on record of the case, nor there was any jurisdictional error or defect in the proceedings of the Appellate Court---Suit filed by the plaintiffs had been rightly dismissed by the Appellate Court---Revision petition was dismissed accordingly.

Zafar Iqbal Khan and Ms. Shabnam Nawaz for Petitioners.

Aurangzeb Khan Mughal, DAG, Haji Muhammad Yousaf and Yasir Zahoor Abbasi A.A.G. for Provincial Government for Respondents.

2019 C L C 716

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

HUSSAIN GUL----Petitioner

Versus

QEEMAT GUL and 2 others----Respondents

Writ Petition No.1117-B of 2018, decided on 19th December, 2018.

Civil Procedure Code (V of 1908)---

----Ss. 54 & 55---Execution petition---Surety arrested in execution of decree seeking his release---Executing Court was empowered to adopt coercive method to execute decree---Petitioner-surety had given an undertaking to produce the judgment-debtor as and when required but he had failed to fulfil said undertaking---Principle of estoppel was applicable in the case---Petitioner could not be absolved of the liability for which he stood surety---Surety was bound to procure the attendance of judgment-debtor or his surety was to be forfeited by the Executing Court---Executing Court was directed to pass an appropriate order under Ss. 54 & 55 of C.P.C.---Detention of petitioner in a civil prison was to be for some specific period after issuing show-cause notice---Constitutional petition was dismissed in circumstances.

2019 C L C 723

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

MUQADAR HUSSAIN KHAN----Appellant

Versus

YASIR SAADAT KHAN----Respondent

R.F.A. No. 52-A of 2017, decided on 26th November, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2, 3 & 4---Suit for recovery of amount---Dishonouring of cheque---Summary procedure on negotiable instruments---Power to set aside decree---Coercion---Undue force---Scope---Respondent filed suit for recovery of amount mentioned in cheque, dishonoured on presentation---Appellant effected compromise on the very next day with the respondent and the suit was decreed---Plea of appellant was that he was coerced and forced by respondent for recording his compromise statement---Validity---Before filing appeal, appellant never complained before the executing court regarding the alleged coercion, pressure or undue force against the respondent despite the fact that he was duly represented by his counsel---Appellant had concealed the material facts regarding his active participation before the executing court---Appeal, being bereft of merits, was dismissed.

2010 SCMR 78 and 1997 SCMR 586 distinguished.

Syed Sajjad Hassan Shah for Appellant.

Shafqat Iqbal Khan Swati for Respondent.

2019 C L C 741

[Peshawar]

Before Syed Afsar Shah, J

NASIR KHAN----Petitioner

Versus

ZAMIN SHAH and another----Respondents

C.R. No.202-P of 2018 with C.M. No.308 of 2018, decided on 14th January, 2019.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1---Form of appeal---Copy of decree, non-filing of---Effect---Rule 1 of O. XLI, C.P.C. provided that certified copy of the decree had to be appended with the memorandum of appeal---Provision regarding production of certified copy of the decree along with the memorandum of appeal was mandatory---Appeal not accompanied with the certified copy of decree sheet was incompetent.

Zia-ur-Rehman for Petitioner.

Altaf Ahmad for Respondents.

2019 C L C 847

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Mst. GUL NASREEN and 2 others----Petitioners

Versus

MIR ZAMAN and 4 others----Respondents

C.R. No.134-A of 2009, decided on 8th October, 2018.

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

----S. 12(2)---No element of fraud existed---Ex parte decree, setting aside of---Procedure---Trial Court without framing of issues and recording evidence allowed application for setting aside of ex-parte decree observing that there was no element of fraud---Validity---Trial Court had set aside the impugned ex-parte decree in a slipshod and cursory manner without recording pro and contra evidence of the parties despite having controversial and disputed questions---Court was expected to pass order after applying its mind in a judicious manner and not to act mechanically in order to non-suit the parties without any just, fair and reasonable cause---Recording of evidence was not necessary in every case under S.12(2), C.P.C., however, where facts and circumstances of a case required recording of evidence qua factual aspects, then the parties should be provided opportunity to examine witnesses and produce documentary evidence---Impugned order was passed in haste without adhering to the settled principles of law---Matter was remanded to the Trial Court with the direction to record evidence of the parties and decide the same afresh after affording opportunity of hearing to the parties in accordance with law---Revision was allowed, in circumstances.

Muhammad Nawaz Khan's case 2002 SCMR 2003 and Muhammad Altaf v. District Judge and 3 others 2016 YLR 1191 rel.

(b) Administration of justice---

----Court was expected to pass order after applying its mind in a judicious manner and not to act mechanically in order to non-suit the parties.

Bakht Jamal Khan for Petitioners.

Raja Muhammad Fayyaz and Malik Mehmood Akhtar for Respondents.

2019 C L C 897

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

MUHAMMAD RASOOL----Petitioner

Versus

AJAB KHAN and others----Respondents

Civil Revision No.176-B of 2017, decided on 17th December, 2018.

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

----S. 96---Suits for declaration and permanent injunction---Consolidation of suits---Single appeal against consolidated judgment---Maintainability---Independent status of suits after consolidation would end and they would form only one suit---Single appeal was competent against consolidated judgment---Appellants had failed to point out any material irregularity or illegality in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed, in circumstances.

Zahid Zaman Khan and others v. Khan Afsar and others PLD 2016 SC 409 rel.

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

----S. 115---Revision---Onus in petition---Scope.

Petitioner is legally bound to prove that the courts below have committed any material illegality or irregularity or has failed to exercise jurisdiction as vested by law or has exercised jurisdiction not vested by law.

(c) Administration of justice---

----Procedure which furthers administration of justice was permissible even if there was no express provision permitting the same.

Aman Ullah Khan Khattak for Petitioner.

Aseel Khan Khattak for Respondent.

2019 C L C 935

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

UMAR KHAN----Appellant

Versus

NAZIR---Respondent

R.F.A. No.129-A of 2012, decided on 10th December, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Summary suit on the basis of pro note---Non-production of one of the marginal witnesses of pro note---Effect---Plaintiff did not produce second witness of pro note but suit was decreed by the Trial Court---Validity---Plaintiff had failed to produce second marginal witness to prove the execution of pro note---Nothing was on record as to who had scribed the alleged pro note---Trial Court while rendering its findings had failed to appreciate the evidence of the parties in its true perspective---Plaintiff was required to prove the execution of pro note through cogent, reliable and confidence inspiring evidence---Non-production of one of the marginal witnesses of the pro note was fatal to the case of plaintiff---Plaintiff had admitted that second witness of pro note was not coming with him to the Court for evidence---Inference would be drawn against the plaintiff that said witness was not supporting his case with regard to execution of pro note---Impugned judgment and decree passed by the Trial Court were set aside and suit was dismissed---Appeal was allowed, in circumstances.

Shahnawaz Iqbal for Appellant.

Muhammad Naeem Akbar for Respondent.

2019 C L C 955

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

LAND ACQUISITION COLLECTOR, NHA ABBOTTABAD and 4 others----Appellants

Versus

BANARAS KHAN and 10 others----Respondents

R.F.A. No.44-A of 2018, decided on 24th September, 2018.

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

----S. 18----Limitation Act (IX of 1908), Arts. 156, Ss. 5 & 3---Reference to court---Enhancement of compensation---Appeal by authorities---Limitation---Delay---Condonation of---Sufficient cause---Contention of appellant was that delay in filing appeal after period of limitation was immaterial as time was consumed in obtaining departmental approval---Validity---Impugned judgment was passed on 11-10-2017 and authorities applied for attested copies of the same on 26-01-2018 after 107 days which were delivered on 03-02-2018---Present appeal was filed on 07-02-2018 which was barred by 22 days---Delay of each and every day had to be sufficiently explained while filing application for condonation of delay---Government or its department as a party should be treated alike just an ordinary litigant and no preferential treatment could be extended to government department---Appellant had failed to explain the delay of each day satisfactorily in filing of appeal, same was dismissed being time barred.

Collector Land Acquisition Chashma Right Bank Canal Project, WAPDA, D.I. Khan v. Ghulam Sadiq and others 2002 SCMR 677; Government of Pakistan v. Sarkar and others 1997 CLC 434; Food Department Gujranwala v. Ghulam Farid Awan 2010 SCMR 1899; Cholistan Co-operative Wood Development Marketing Union Ltd. Bhawalpur v. Bashir Ahmed and another 1983 SCMR 1105; Commissioner Income Tax v. Zabeel Palace Hotel Peshawar 2011 SCMR 361; Federation of Pakistan through Secretary Ministry of National Food Security and Research v. Agritch Limited PLD 2016 SC 676 and Government of Pakistan v. Frontier Chemical Industries Ram Bagh Mardan 2016 SCMR 1410 ref.

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

----S. 18---Limitation Act (IX of 1908), Art. 156---Reference to court---Appeal before High Court---Limitation---Appeal before High Court against the judgment and decree passed by Referee Judge could be filed within a period of ninety days.

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

----S. 5---Limitation---Condonation of delay---Requirements---Delay of each and every day had to be sufficiently explained while filing application for condonation of the same.

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

----S.3---Dismissal of suit instituted after period of limitation---Scope---Every suit/appeal preferred and application made after period of limitation was to be dismissed.

Collector Land Acquisition Chashma Right Bank Canal Project, WAPDA, D.I. Khan v. Ghulam Sadiq and others 2002 SCMR 677 ref.

Shahid Aziz for Appellant.

Muneer Hussain Lughmani for Respondents.

2019 C L C 1124

[Peshawar (Bannu Bench)]

Before Shakeel Ahmed, J

PIR JALAL UR REHMAN SHAH---Petitioner

Versus

IRFAN KHAN and 4 others---Respondents

Writ Petition No.909-B of 2018, decided on 9th January, 2019.

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

----S. 11---Res Judicata, principle of---Applicability---Scope---Defendants objected to maintainability of suit on grounds that earlier a suit on the same cause of action had already been dismissed---Validity---Principle of Res Judicata was to be attracted only when conditions laid down in S. 11, C.P.C. were squarely satisfied---In the present case, earlier summary suit was dismissed on preliminary point relating to non-appearance of cause of action in favour of defendant---While rejecting earlier plaint it was observed by Trial Court that makers of agreement could pursue or initiate proper proceedings available with them under the law---Earlier suit having been dismissed on technical grounds and not on merits of the case, principle of res judicata was not applicable in subsequent suit.

Abu Bakar's case PLD 1977 Kar. 410 and Syed Inayat Ali Shah's case PLD 1978 Lah. 859 rel.

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

----O. VII, R. 11 & O. XXXVII, Rr. 1 & 2---Penal Code (XLV of 1860), S. 489-F---Suit for recovery of money---Rejection of plaint, refusal of---Acquittal of defendant in criminal case on the subject---Res judicata, principle of---Applicability---Suit for recovery of money on basis of Bank cheque which was dishonored on presentation---Defendant sought rejection of plaint on plea of his acquittal of the charge in criminal case---Trial Court as well as Lower Appellate Court in exercise of revisional jurisdiction concurrently refused to reject the plaint---Validity---Trial Court after having reflected controversy in issue would decide suit after recording evidence on issues already framed---High Court declined to interfere in the judgments passed by two courts below as plea agitated by defendant required evidence to be adduced by both parties---Plaintiff failed to point out any illegality or irregularity or jurisdictional defect in judgments passed by two courts below---Constitutional petition was dismissed, in circumstances.

Abdul Murad Khan v. Noshaba 1992 SCMR 1828; Muqaddar Khan v. Farid Khan and others 2011 CLC 59 and Tariq Muhammad Choudhry Kamboh v. Nazam-ud-Din 1999 SCMR 2396 ref.

Sardar Naeem for Petitioner.

Muhammad Sadiq Khan for Respondents.

2019 C L C 1185

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

JAVED AKHTAR and 8 others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Local Bodies/Government, Peshawar and 5 others----Respondents

Writ Petition No.902-A of 2018, decided on 25th October, 2018.

Land Acquisition Act (I of 1894)---

----S.4 (as amended)---Acquisition of land---Notification of acquisition---Scope---'Public purpose'---Determination---Scope---Petitioners assailed validity of notification issued under S. 4 of Land Acquisition Act, 1894---Contentions of petitioners were that notification was issued in order to deprive them of their land in the garb of extension of graveyard due to influence of their rival politician and that acquiring department had failed to complete the acquisition proceedings within one year, therefore, notification for acquisition stood revoked---Validity---Report of local commission revealed that there existed old graveyards in three directions of the property in question and the same was feasible for the said purpose---Failure of acquiring department to complete the acquisition proceedings within one year would have no bearing on the case of petitioners---Section 4 of Land Acquisition Act, 1894 was amended only in order to avoid escalation in the prices of the acquired land so as to safeguard the interest of landowners---Constitutional petition was dismissed, accordingly.

Muhammad Jehangir Khan for Petitioners.

Yasir Zahoor Abbasi, Assistant Advocate General for Respondents.

2019 C L C 1204

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Mst. KHALIDA BIBI and another----Petitioners

Versus

MUHAMMAD NAEEM----Respondent

C.R. No.407 of 2010, decided on 3rd December, 2018.

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

----Ss. 42 & 54---Suit for declaration, permanent injunction and possession---Mutation---Allegation of fraud and misrepresentation---Burden of proof---Scope---Plaintiff challenged validity of mutation which was attested on the strength of general power of attorney---Plea of plaintiff was that neither he executed general power of attorney in favour of defendant nor he consented for the attestation of mutation---Trial court dismissed the suit and appellate court, while allowing the appeal, decreed the suit---Validity---Plaintiff had neither brought on record copy of mutation nor produced general power of attorney through Registrar Office---Burden of proof laid on the person who challenged the validity of a document on the ground of fraud and misrepresentation---High Court, while allowing the revision petition, set aside the judgment of appellate court and restored that of Trial Court.

2010 SCMR 1351 rel.

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

----Arts. 117 & 120---Fraudulent document---Onus to prove---Burden of proof lies on the person who challenges the validity of a document on the ground of fraud and misrepresentation.

(c) Pleadings---

----Plaintiff has to prove and establish his case on the strength of his own evidence and he cannot get any benefit from the shortcomings and weakness of the case of the defendant.

Hafiz Iftikhar Ahmed for Petitioner.

Mehmood Khan for Respondents.

2019 C L C 1330

[Peshawar (D.I. Khan)]

Before Syed Muhammad Aattique Shah and Shakeel Ahmed, JJ

IMDAD ULLAH KHAN----Petitioner

Versus

VICE-CHANCELLOR, GOMAL UNIVERSITY, D.I. KHAN and 7 others----Respondents

Review Petition No.522-D of 2015, decided on 26th February, 2019.

(a) Review---

----Re-examination of same arguments---Scope---Petitioner sought review of judgment of High Court in constitutional petition whereby he was directed to be appointed as Assistant Professor from retrospective date, however, he was not granted pecuniary benefits with retrospective date---Validity---Reversal of conclusion earlier reached by High Court after full consideration of the question was not possible in exercise of review jurisdiction as review could not be granted for re-examination of same arguments---Petitioner was not able to point out any ground to revisit the earlier judgment---No case for review was made out, petition being devoid of merits, was dismissed.

Muhammad Hussain v. Zohra Bibi PLD 1990 SC 924; Muhammad Sarwar v. Asad Hakim 1983 SCMR 177; Jalal v. Nazir Ahmad 1980 SCMR 320 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 ref.

(b) Review---

----Principles---Principles upon which a review can be granted are that there must be some new point based upon discovery of new evidence which could not with diligence have been found in the previous proceedings---Review petition is not competent where neither any new and important matter or evidence is not discovered nor is any mistake or error apparent on the face of the record---Such error may be an error of fact or of law but it must be self-evident and floating on surface and not requiring any elaborate discussion or process of ratiocination.

Saleemullah Khan Ranazai for Petitioner.

Muhammad Ismail Khan Alizai for Respondents.

2019 C L C 1352

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

MUJEEB UR REHMAN and 2 others----Petitioners

versus

Mst. MEHROON NISA alias Tanzil Begum and 4 others----Respondents

Writ Petition No. 71-B of 2019, decided on 7th March, 2019.

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

----S. 12---Temporary custody of minor---Father, working abroad---Petitioner assailed the order of Guardian Judge whereby he had directed delivery of interim custody of the minor child to his mother---Validity---Petitioner was serving abroad and was not residing in Pakistan---Minor was totally at the mercy of his paternal grandfather and cousin of petitioner, hence, for all practical purposes minor was not having paternal love---Company of grandfather and cousin of petitioner could not be a substitute of mother and father---Maintenance of a child was the responsibility of father---Minor could still have the same level of education and treatment while remaining under the shadow of his mother---Custody of minor could not be allowed to shuttle between the parties---Order passed by Guardian Judge under S. 12, Guardians and Wards Act, 1890 was not to be interfered unless there were compelling circumstances to change the custody---Order of temporary custody of the minor being interim in nature was subject to decision in the main case---Findings of courts below with respect to the interim custody of minor were unexceptional---Trial Court was directed to pass an appropriate order for production and visitation of minor---Constitutional petition was dismissed, accordingly.

Mst. Farah Waqar v. Dr.Waqar Ahmad Khan 2000 YLR 3046 and Mst. Khurshid Begum v. Additional Sessions Judge, Rawalpindi PLD 2004 Lah. 395 ref.

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

----S. 12---Temporary custody of minor---Pre-condition of urgency---Scope---Guardian Judge is empowered to make interlocutory order for production of minor and interim protection of his person and property---Such power could be exercised in the absence of an urgency---Guardian Judge having paternal jurisdiction, interim custody of minor could not be fettered with a pre-condition of urgency.

Muhammad Shah Nawaz Khan Sikandari for Petitioner.

Seemab Ali Shah for Respondent.

2019 C L C 1401

[Peshawar]

Before Ikramullah Khan, J

KHIAL BADSHAH----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through District Officer Revenue, Hangu and 23 others----Respondents

Writ Petition No. 1327-P of 2013, decided on 11th March, 2019.

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

----O. I, Rr. 8, 9, 10 & S. 2 (2)---Representative suit---Non-joinder of necessary party---Dismissal of suit---Scope---Plaintiff filed suit in representative form which was dismissed due to non-joinder of necessary party---Validity---Definition of "decree" did not include dismissal of suit on account of mis-joinder or non-joinder of parties---No suit was to be defeated due to mis-joinder or non-joinder of party---Court might deal with the matter in controversy so far as with regard to the right and interests of the parties actually before it---Trial Court was not to have dismissed the suit of plaintiff due to mis-joinder or non-joinder or impleading name of wrong plaintiff---Impugned orders passed by the Courts below were without jurisdiction which were set aside---Matter was remanded to the Trial Court with the direction to transpose the parties in view of O. I, R. 10, C.P.C.---Constitutional petition was allowed, in circumstances.

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

----O. I, R. 10, O. XLIII, R. 1, Ss. 115 & 104---Suit dismissed in term of O. I, R.10, C.P.C.---Revision---Maintainability---Provisions of S. 104 and O. XLIII, R.1 of C.P.C. did not provide right of appeal where a suit was dismissed in term of O. I, R. 10, C.P.C.---Such order was revisable by the District Judge under S. 115(2), C.P.C.

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

----S. 115---Revision---Scope---Revision did lie against any judgment or order which was passed by the subordinate Court having exercised a jurisdiction not vested in it by law---Where no express right of appeal was conferred then an aggrieved person might file revision petition against void order.

Muhammad Rafiq Khan for Petitioner.

Malik Akhtar Hussain (A.A.G.) for Respondents.

2019 C L C 1424

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

AZAM KHAN and 10 others----Petitioners

Versus

NEAR MARBLE MINING CORPORATION and 3 others----Respondents

C.R. No.101-M of 2015 with C.Ms. Nos. 236, 298 of 2015, 115 and 793 of 2016 and W.P. No. 158-M of 2015, with Interim Relief and C.M. No. 477 of 2015, decided on 14th January, 2019.

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

----S.2---Constitution of Pakistan, Fourth Schedule, Part II, Item Entry No.2; Part I Entry No.18---Mineral relating to nuclear substances---Power to make Rules vests in the Federal Government---Only the Federal Government had the authority to regulate mines to nuclear substances, oil fields and Gas Fields while other mines and mineral development was Provincial subject.

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

----S.9---Suit---Jurisdiction of Civil Court---Scope---Civil Court is a court of ultimate jurisdiction---If litigation has an appropriate remedy before a special court/forum then resort to institution of a civil suit is not permissible.

Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262 and Hakam and others v. Tassadaq Hussain Shah PLD 2007 Lah. 261 rel.

Abdul Halim Khan and Hafiz Ashfaq Ahmad for Petitioners.

Rahim Shah, Asstt: Advocate General, Sher Muhammad Khan and Shams-ur-Rehman for Respondents.

2019 C L C 1483

[Peshawar]

Before Ikramullah Khan, J

Mst. GULFAMA----Petitioner

Versus

Mst. JAMSHEDA and 14 others----Respondents

Civil Revision No.1951-P of 2010, decided on 28th January, 2019.

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

----O. IX, R. 13, O. XX, R. 6, Ss. 12 (2) & 47---Ex parte decree, setting aside of---Limitation---Mutation attested through fraud during execution proceedings---Remedy---Petitioner moved application under O. IX, R 13, C.P.C. for setting aside of an ex-parte judgment and decree which was dismissed and thereafter filed petition under S.12(2), C.P.C. which was also dismissed being time-barred---Validity---No bar existed to challenge any wrong mutation which had adversely affected right of a person through which he was deprived of his legal rights in an immovable property---Findings of Courts below with regard to prayer in the original suit had attained finality which could not be challenged by filing an application under S. 12(2), C.P.C.---Judgment-debtor had already availed alternate remedy under O. IX, R. 13, C.P.C. and he could not succeed---Provisions contained in S. 47, C.P.C. could be availed and objections were to be decided in the mode as a suit---No person was to be deprived of his legal rights on mere technicalities---Petitioner had arguable case but due to ill-advise no proper application was filed on his behalf---Impugned judgments were set aside and petition under S. 12(2), C.P.C. was converted into one under S. 47, C.P.C.---Matter was remanded to the Trial Court with the direction to process the application under S. 47, C.P.C. in accordance with law---Revision was allowed, in circumstances.

(b) Administration of justice---

----No person was to be deprived of his legal rights on mere technicalities. [p. 1486] C

Khalid Rehman for Petitioner.

Aurangzeb Khan for Respondents.

2019 C L C 1562

[Peshawar]

Before Syed Afsar Shah, J

Mst. TUHARAT FIRDOS----Petitioner

Versus

IMTIAZ KHAN and 2 others----Respondents

Writ Petition No. 4841-P of 2016, decided on 13th March, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for dissolution of marriage---Cruelty---Khula'---Scope---Plaintiff-wife filed suit for dissolution of marriage on the ground of cruelty but same was dismissed concurrently---Validity---Plaintiff-wife had failed to prove the element of cruelty on the part of her husband---High Court observed that spouses could not be forced to a life devoid of harmony and happiness---If parties could not live together within the limits ordained by Almighty Allah then proper course was separation---Wife had strained relations with her husband and she was not ready to live with him at any cost---Marriage between the parties was dissolved on the ground of 'khula'---Court might take into consideration reciprocal benefits received by the husband and continuous living together might also be a benefit received---Court could adjust the financial matters so as to direct partial or total restoration of the benefits received by the wife---Plaintiff, in the present case belonged to a poor family and she remained as wife with the defendant and received benefits---Plaintiff-wife was directed to return the cash of rupees one lac and five tola gold ornaments to the husband in lieu of dissolution of her marriage on the ground of 'khula' and she was allowed to retain the house keeping in view the principle of reciprocal benefits---Constitutional petition was disposed of, accordingly.

Attizaz Mansoor for Petitioner.

Muhammad Azam Khan for Respondent.

2019 C L C 1632

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

WAQAR AHMAD----Appellant

Versus

AHMAD HUSSAIN----Respondent

R.F.A. No. 40-M of 2016 with C.M. 640-M of 2016 (N), decided on 15th March, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 4---Summary suit on the basis of cheque---Ex-parte decree, setting aside of---Expression "special circumstances" as mentioned in O.XXXVII, R.4, C.P.C.---Scope---Application for setting aside of ex-parte decree was dismissed being time barred---Validity---Ex-parte decree could be set aside when there were special circumstances---Case of applicant should have been considered on merit---Nothing was on record with regard to presentation of cheque before the Bank concerned and the fact that as to whether defendant had received any notice along with copy of the plaint---Special circumstances existed to set aside the decree enabling the defendant to present his application for leave to defend---Impugned order passed by the Trial Court was set aside---Defendant was to file an application before the Trial Court for leave to defend---Revision was allowed, in circumstances.

Shamsul Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135; Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited Abbottabad PLD 1995 SC 362; National Bank of Pakistan v. Tradewell (Pakistan) Corporation and 2 others 1991 CLC 1243; Tahir A. Khan v. Messrs United Air Travels Ltd. and others 2004 YLR 416 and Mst. Tahira Taj v. Hakim Shah 2011 CLC 950 rel.

Ashfaq Hussain for Appellant.

Iftikhar Ahmad Nasir for Respondent.

2019 C L C 1647

[Peshawar]

Before Ikramullah Khan, J

AZHAR ALI and another----Petitioners

Versus

SALEH MUHAMMAD and 36 others----Respondents

Civil Revision No.324 of 2009, decided on 19th February, 2019.

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

----S.60---Limitation Act (IX of 1908), S.28 (since omitted) & Arts.144 & 148---Suit for redemption of mortgaged property---Limitation---Contention of defendants was that they were mortgagee of suit property and after lapse of more than sixty years plaintiffs could not redeem the same---Validity---Defendants had not succeeded to get decree of foreclose of rights of mortgagor nor ever succeeded in getting decree from competent Court of law on prescription of their title before the target date---Plaintiffs had acquired proprietary rights over the suit property on 26-06-1958 while they had instituted the present suit in the year 2000---Period of limitation against the plaintiffs would commence from 26-06-1958 when they acquired proprietary rights---Present suit filed by the plaintiffs was within time---Every wrong entry in the record of rights did accrue fresh cause of action to the plaintiffs---Plaintiffs had option to file suit for declaration on every denial of rights---Defendants could not deny the proprietary rights of plaintiffs in the suit property nor could claim ownership---Plaintiffs had filed the present suit within prescribed period of limitation, in circumstances---Findings recorded by the courts below were not sustainable---Impugned judgments and decrees passed by the courts below were set aside, in circumstances---Suit was decreed subject to payment of mortgage money---Revision was allowed, in circumstances.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Bilawar Khan v. Amir Sabir Rahman and another PLD 2013 Pesh. 38 and Salam Akhtars' case PLD 2000 Lah. 385 rel.

Muhammad Fahim Wali for Petitioners.

Abid Ali Khan and Muhammad Samiur Rehman for Respondents.

2019 C L C 1690

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmed, J

MUHAMMAD ASLAM and another----Petitioners

Versus

MUHAMMAD SHAFIQULLAH CHAKRIYAL and 3 others----Respondents

W.P. No. 1104-D of 2018, decided on 17th January, 2019.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Proceedings under S.12(2), C.P.C. were in the nature of declaratory suit---Section 12(2), C.P.C. authorized the aggrieved person to challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction---Where, however, the material on record failed to indicate element of fraud or misrepresentation or want of jurisdiction, S.12(2), C.P.C. was not attracted.

Nigar Bibi through LRs v. Salah ud Din Khan Alizai and 3 others PLD 2009 Lah. 67 rel.

Muhammad Waheed Anjum for Petitioner.

Nemo. for Respondent.

2019 C L C 1710

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

SHAFI-UR-REHMAN----Petitioner

Versus

AZIZ-UR-REHMAN and others----Respondents

C.R. No. 128-D of 2017, decided on 22nd November, 2018.

(a) Gift---

----Gift deed---Proof of---Requirements---Contention of plaintiff was that impugned gift deed was based on fraud and misrepresentation---Suit was decreed concurrently---Validity---Gift deed was not effected in presence of defendant and same did not have his signature or thumb impression---Nothing was on record that donor made a declaration of gift which was accepted by the donee and possession of suit land was delivered under gift to the donee---Defendant had failed to prove the factum of gift in his favour---Defendant had not pleaded that suit property was gifted away to him out of love and affection---Donee had not mentioned any date and place where offer and acceptance of gift was made and pursuance thereof possession was delivered to him---Ingredients of a valid gift had not been fulfilled in the present case---Donee was required to specify the date, time and place of the offer made and complied by him and when possession was delivered to him---Scribe of gift deed was not produced to testify the execution of impugned gift deed---High Court observed that impugned gift deed was fraudulent and was never executed---No mis-reading, non-reading of evidence or any illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in, circumstances.

Nasrullah Khan v. Resul Bibi 2001 SCMR 1156 rel.

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

----S. 54---Sale---Sale consideration---Scope---Sale consideration was an essential component of a valid sale.

Dilawar Khan v. Mst. Badshah Zadi PLD 2011 Pesh. 208 and Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner 1984 SCMR 94 rel.

(c) Limitation---

----Question of limitation does not arise in inheritance.

Fazal Jan's Case PLD 1992 SC 811 and Ghulam Ali's Case PLD 1990 SC 1 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court while sitting in revision jurisdiction is not supposed to interfere in the concurrent findings of the lower fora unless it is established the judgments of the two Courts below were without jurisdiction or the two Courts below acted illegally or with material irregularity resulting into mis-carriage of justice.

Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Shah wali v. Muhammad Iqbal PLD 2005 Lah. 2014; Rasheed and others v. Sher Aman and another PLD 2015 Pesh. 192 and Allah Ditta v. Muhammmad Bashir 1988 SCMR 1206 rel.

(e) Administration of justice---

----When basic order was without lawful authority, the entire superstructure built on the same would fall to the ground.

Yousaf Ali's Case PLD 1985 SC 104 and Cresent Sugar Mill's Case PLD 1982 Lah. 1 rel.

Amir Muhammad Baloch for Petitioner.

Sajid Nawaz Saddozai and Haji Salim Nawaz Awan for Respondents.

2019 C L C 1795

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

ALI HAIDER SHAH and 2 others----Petitioners

Versus

AYAAT SHAH----Respondent

Civil Revision No.14 of 2014, decided on 14th November, 2018.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Inheritance---Compromise having effected in the earlier suit---Effect---Principles of estoppel and acquiescence---Applicability---Contention of plaintiffs was that they were owners in possession of suit property---Suit was dismissed concurrently---Validity---When predecessor of plaintiffs had admitted before a competent Court of law that suit property was jointly owned by both the parties then his legal heirs could not subsequently turn around by saying that suit property was exclusively owned by their predecessor---Principles of estoppel and acquiescence were applicable in the present case---Revision was dismissed, in circumstances. [pp. 1798, 1799] A & B

Nazim-ud-Din's case 2016 SCMR 24 rel.

Abdul Halim Khan for Petitioner.

Abdul Marood Khan for Respondent.

2019 C L C 1806

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

MUBARAK SHAH and others----Petitioners

Versus

RAHIM KHAN and others----Respondents

C.R. No. 194-B of 2013, decided on 25th March, 2019.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss.42 & 39---Constitution of Pakistan, Art.19-A---Suit for declaration---Inheritance---Limitation---Maxim: audi alteram partem---Applicability---Contention of plaintiffs was that they had been deprived from the inheritance of their deceased father---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Entries of revenue record were meant for fiscal purposes and every such fresh entry would accrue a fresh cause of action---When State had failed to provide easy access to common man to public record then he should not be bound by any adverse entries of revenue record---Principles of natural justice i.e. audi alteram partem was applicable in every situation and had to be read into every statute---Revenue official was bound to inform the affected person when the entries in revenue record were altered to his detriment---Nothing was on record that plaintiff hailed from any other family---Impugned judgment and decree passed by the Appellate Court were based on proper appreciation of evidence---Revision was dismissed, in circumstances.

Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476 rel.

Haji Zafar Iqbal for Petitioner.

Faqir Mehboob-ul-Hameed for Respondent.

2019 C L C 1817

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

WASEEM UR REHMAN and another----Petitioners

Versus

Qari FATHAT ULLAH and 4 others----Respondents

Writ Petition No. 512-M of 2019 with Interim Relief (N), decided on 13th May, 2019.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1, 2 & 3 & O.XLIII, R.1(r) & S.104---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Trial Court issued notice to the opposite side without granting ad-interim injunction---Appeal---Maintainability---Trial Court only issued notice to the other side but no ad-interim injunction was granted---Plaintiff filed appeal which was converted into revision and restraining order was passed---Validity---Court on the first date of hearing had jurisdiction either to grant or not to grant an ad-interim injunction---Order XXXIX, R.3, C.P.C. was neither a substantive law nor there was repository power of the Court to grant injunction rather it did envisage for issuance of a notice to the other party before granting injunction---Even otherwise Court could grant ad-interim injunction before issuance of notice to the opposite side---Appellate Court had wrongly converted appeal into revision petition---Trial Court should finally decide the application of the plaintiff for temporary injunction---Impugned order was in accordance with law---Constitutional petition was dismissed, in circumstances.

Messrs the Associated Cement Companies Ltd. v. The Province of Punjab PLD 1954 Lah. 151; Rajendraprasad R. Singh v. Municipal Corporation of Gr. Bombay AIR 2003 Bom. 392; Sajjan Kumar Tharad v. Smti Deoris Marbaniang AIR 2011 Gauhati 47; Gajraj Singh and others v. Ranikumar and others AIR 1992 Madhya Pradesh 316 and Ali Associates through Managing Director v. Noor Hussain and 24 others 2017 CLC 857 rel.

Muhammad Javaid Khan and Muhammad Tahir Qasimka for Petitioners.

Adil Khan Tahirkheli for Respondents.

2019 C L C 1862

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MOHAMMAD TAHIR and 3 others----Petitioners

Versus

GHULAM MOHAMMAD and others----Respondents

C.R. No.725-M with C.M. 883 of 2012, decided on 7th November, 2018.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.122---Specific Relief Act (I of 1877), Ss.42 & 39---Suit for declaration and cancellation of instrument---Settlement of Land---Document having not been challenged by a person directly affected---Effect---Contention of plaintiffs was that they were owners in possession of suit property---Suit was dismissed concurrently---Validity---Predecessor-in-interest of plaintiffs despite the fact that he remained alive for six years of alleged settlement did not challenge the same---Plaintiffs had neither any locus standi nor cause of action to challenge the alleged transaction when their predecessor-in-interest by his conduct had shown to have agreed to the said entries---Revision was dismissed, in circumstances.

Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50; Murad Begum v. Muhammad Rafiq PLD 1974 SC 322 and Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016 rel.

Amir Gulab Khan for Petitioners.

Shah Salam Khan for Respondents.

2019 C L C 1992

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

GHULAM QADAR and others----Petitioners

Versus

PATWARI HALQA MUZA DAGAI KHUDA KHEL BUNER and others----Respondents

Civil Revision Petition No.186-M of 2018, decided on 2nd May, 2019.

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

----O.IX, Rr.8, 9, O.I., R.8 & O.VII, R.11---Representative suit dismissed for non-prosecution prior to grant of permission under O.I, R.8, C.P.C.---Subsequent suit---Scope---Plaint, rejection of---Scope---Plaint was rejected on the ground that earlier suit filed by the plaintiffs had been dismissed in default---Validity---Nature and character of both the suits were same and cause of action was also the same---Both the suits had been filed in representative capacity---Earlier suit had been dismissed for non-prosecution---Once suit had been dismissed in default then fresh suit on the same cause of action by the same plaintiffs was barred under O.IX, R.9, C.P.C.---Permission in the earlier suit under O.I., R.8, C.P.C. had not been granted---Penal provision of O.I., R.8, C.P.C. would not attract in the present lis---Impugned orders passed by the Courts below were not correct on legal premises---Impugned judgments and decrees passed by the Courts below were set aside and matter was remanded to the Trial Court for decision afresh in accordance with law---Revision was allowed, in circumstances.

N.E.D University of Engineering and Technology v. Tariq Ali and 2 others PLD 1993 Kar. 626; Datari Construction Co. (Pvt.) Ltd. v. A. Razak Adamjee and others 1995 CLC 846; All Residents through representatives v. Muhammad Ali and 13 others 2010 CLC 1402; Abdul Rauf Shah v. Abdul Qaiyum Shah and 2 others 2016 YLR 2423; Mst. Shamim Akhtar and 4 others v. Mohammad Ashraf and 8 others 2016 MLD 454 and Ajmal Khan v. Mst. Gul Zahira Bibi through legal heirs and 4 others 2016 MLD 1394 ref.

Adam Khan v. Gulla Mir and others PLD 1982 SC 120 rel.

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

----O.IX, Rr.8 & 9---Earlier suit having been dismissed for non-prosecution---Fresh suit---Maintainability---Once suit had been dismissed in default then fresh suit on the same cause of action by the same plaintiffs was barred under O.IX, R.9, C.P.C.

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

----O.I., R.8---Representative suit---Requirements.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 rel.

(d) Administration of justice---

----Act of Court should prejudice none.

(e) Interpretation of statutes---

----When any provision of Statute in its nature was penal then it should be construed strictly.

Habib-ur-Haq for Petitioners.

Mian Fahim Akbar for Respondents.

2019 C L C 2067

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

AQALMAND----Petitioner

Versus

Mst. SALIKA and others----Respondents

Civil Revision No.159-M of 2015 with C.M. No.329-M of 2015, decided on 12th December, 2018.

Inheritance---

----Limitation---Non-framing of specific issue---Effect---Contention of plaintiff was that she had been deprived of the legacy of her predecessor whereas defendant had contended that plaintiff had gifted her share in his favour---Suit was decreed concurrently---Validity---Defendant had failed to establish the sale allegedly made by the plaintiff of her share in the legacy of predecessor-in-interest---Suit property belonged to the predecessor-in-interest of the parties---Plaintiff and defendant had a legal and sharai share in the property of deceased---Defendant had deprived the plaintiff from her share in the inheritance without any justification---Right of succession could not be defeated by law of limitation or even principle of res judicata---Plaintiff, during her lifetime had challenged the adverse entries in the revenue record---Defendant had raised issue of limitation in his written statement and had led evidence in favour of his claim---No prejudice had been caused to the defendant by non-framing of issue on limitation as available record was sufficient to render finding on the said issue---Parties were aware with regard to subject matter of controversy and they had led evidence---Trial Court did not prevent the parties from leading evidence at the trial with regard to controversy canvassed by the plaintiff in the plaint---Non-framing of a specific issue was inconsequential---Revision was dismissed, in circumstances.

Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772; Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others PLD 1961 Dacca 65; Mst. Zeba and 12 others v. Member-III Board of Revenue Baluchistan 1986 CLC 233; Habibullah Jan and others v. M. Hassan Khan and others 1991 MLD 25; Fazal Mahmood and others v. Tajar Khan 1992 MLD 1439; Mansab Ali v. Hafizan and 5 others PLD 1993 Lah. 1; Muhammad Khalid and another v. Muhammad Iqbal and another 2005 CLC 970; Muhammad Yousaf v. Fazal Elahi and 35 others 2017 MLD 1997; Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213; Juma Khan and others v. Mst. Bibi Zenaba and others PLD 2002 SC 823; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Mst. Subhan v. Allah Ditta and others 2007 SCMR 635; Abdul Karim v. Haji Noor Badshah 2012 SCMR 212; Mosam Khan v. Sarfaraz Khan through L.Rs and others 2012 CLC 1944; Musafar v. Mst. Laz Mashal Bibi and others PLD 2014 Pesh. 53; Mst. Baswara v. Hafizullah Khan and others PLD 2015 Pesh 30; Zahir Shah and others v. Shtamand and others 2016 YLR 1532; Riaz Ahmad and 5 others v. Faqir Ahmad Khan 2016 YLR 23; Mst. Janat Bibi through LRs v. Aslam Khan and 13 others 2017 CLC 436; Mst. Soocha and 6 others v. Mst. Khazuna Bibi and 15 others 2017 MLD 1180; Mst. Mumtaz Mai v. Sajjad Hussain and 4 others 2017 CLC Note 61 and Umar Farooq and others v. Humid Ali and others 2018 CLC 254 ref.

Muhammad Rustam and others v. Mst. Makhan Jan and others 2013 SCMR 299; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Ghulam Abbas v. Muhammad Shafi 2016 SCMR 1403; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Gauhar Khanum v. Jamil Jan and others 2014 SCMR 801; Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271 and Abdul Karim v. Haji Noor Badshah 2012 SCMR 212 rel.

Abdul Halim Khan for Petitioner.

Muhtaram Shah for Respondents.

2019 C L C 114

[Balochistan]

Before Jamal Khan Mandokhail, JJ

RAHIM KHAN and 8 others----Appellants

Versus

STATION COMMANDER, STATION HEADQUARTER, ZHOB CANTT. and another----Respondents

Civil Miscellaneous Appeal No. 18 of 2009, decided on 5th September, 2018.

Manoeuvres, Field Firing and Artillery Practice Act (V of 1938)---

----Ss. 9 & 13---Constitution of Pakistan, Art. 24---Suit for declaration and permanent injunction---Suit land being utilized by the Army for field firing and artillery practices---Contention of plaintiffs was that they were owners of suit property but Authorities were interfering in the same---Suit was dismissed by the Trial Court---Validity---Government had not conducted settlement proceedings in the area to maintain the record but it did not dis-entitle a person to be owner of an unsettled property---If a person had proved his ownership through other sources or evidence then such claim of an ownership and entitlement should not be disbelieved merely because of non-availability of revenue documents---Suit land was occupied by a number of people of the area including the plaintiffs---Federal Government had issued notification providing facilities for military maneuvers, field firing and artillery practices over the suit land---Only Provincial Government was competent to issue such a notification---Owners and occupiers of the notified area should be informed before starting military maneuvers, field firing and artillery practices enabling them to shift to a safer places---Impugned notification did not create title or permanent occupancy right nor it could be acquainted with the lease rather it just allowed the Army to utilize the notified property for limited purpose---Government should frame rules for utilizing the notified land---Army should ensure minimum inconvenience to the inhabitants of the area---Beneficiary of the said notification should refrain from interference into the possession of occupier of the notified land---No person should be deprived of his property save in accordance with law---Impugned notification did not deprive the plaintiffs and others from utilizing the land in question---Status of defendants was just a temporary beneficiary by using the land in question only for military maneuvers, field firing and artillery practices---Authorities had no authority to restrain the plaintiffs from using the land in question nor could interfere into their rights except during the period when the execution of military maneuvers, field firing and artillery practices were going on---People of the area would be entitled to resume their routine life over the land in question after completion of such practices whereafter interference in any manner by the defendants in the suit land would be illegal---Impugned judgment and decree passed by the Trial Court were set aside---Army could utilize the notified land only for execution of military maneuvers, field firing and artillery practices with a special care of the safety and security of the people---Authorities should not interfere into the possession of plaintiffs when said practices were discontinued over the land in question---Appeal was allowed and suit was decreed accordingly.

H.V. Sri Niras v. Air Force station AIR 2001 Karnataka 479 rel.

Kamran Murtaza and Adnan Ejaz for Appellants.

Muhammad Usman Yousafzai for Intervener.

Hassan Mengal, Assistant Attorney-General and Saifullah Sanjrani Assistant Advocate-General for Respondents.

2019 C L C 138

[Balochistan]

Before Abdullah Baloch, J

LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY through Managing Director----Petitioner

Versus

GUL HASSAN BHOOTANI and others----Respondents

Civil Revision No.16 of 2013, decided on 17th September, 2018.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Constitution of Pakistan, Art. 10-A---Suit for declaration and cancellation of revenue entries---Sale mutation---Judgment in appeal---Points for determination, non-framing of---Effect---Right of fair trial---Scope---Contention of plaintiff was that impugned sale mutation was based on fraud and collusion with the revenue officer---Suit was dismissed concurrently---Validity---Issues framed, evidence recorded and written statement filed by the defendants had not been taken into consideration---Neither deposition of witnesses had been discussed nor findings on issues had been recorded in accordance with law on its true perspective---Appellate Court had recorded its findings in a cursory manner---Impugned judgment passed by the Appellate Court was non-speaking in circumstances---Appellate Court had failed to decide appeal as per provisions of O. XLI, R. 31, C.P.C., 1908---Documents available on record were not considered properly by the Courts below---Parties to the suit had not been afforded fair opportunity by the Trial Court---No one could be condemned unheard---Impugned judgments and decrees passed by the Courts below were result of mis-reading and non-reading of evidence which were set aside---Matter was remanded to the Trial Court with the direction to provide full and fair opportunity to the parties to defend their claim and decide the same afresh in accordance with law---Revision was allowed accordingly.

Sarwar Khan Awan for Petitioner.

M. Aslam Chishti and Pervez Tanoli for Respondents.

Saifullah Sanjrani, Assistant Advocate-General for Official Respondents.

2019 C L C 261

[Balochistan]

Before Muhammad Ejaz Swati, Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ

Mir SHOAIB NOSHERWANI----Petitioner

Versus

Mir MUHAMMAD ISMAIL PEERAKZAI and 5 others----Respondents

C.P. No.310 of 2013, decided on 21st June, 2018.

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

----S. 99(cc)---Conduct of General Elections Order [7 of 2002] Art. 8-A---False declaration---Disqualification---Fake degree---Petitioner was aggrieved of rejection of his nomination papers by Returning Officer which was maintained by Election Tribunal---Validity---Petitioner was not only failed in examination but record was also tampered with by him as a result, Disciplinary Committee decided matter against petitioner and he was disqualified to appear in examinations for three years---Petitioner did not challenge decision of Disciplinary Committee and same had attained finality---Petitioner was not only ineligible to contest elections earlier in year 2002 but he had given false declaration with regard to his Bachelor's degree and till date insisted that he passed double B.A.---Petitioner could not produce any B.A. passed degree earlier in year 2002 which itself reflected that he was not righteous, honest or Ameen person at the time of filing of nomination papers to contest earlier elections in year 2002---Courts/Tribunals were empowered to declare any person as such---Petitioner used fake documents not only in year 2002 but also in year 2008 therefore, rejection of his nomination papers vide order in question was based on proper appreciation of law and facts---High Court declined to interfere in the matter as petitioner intentionally misrepresented his educational qualification in his nomination papers, thereby---Constitutional Petition was dismissed in circumstances.

PLD 2016 SC 97; PLD 2013 Lah. 552; PLD 2008 SC 735; PLD 2016 Sindh 107 and 2017 SCMR 206 ref.

Farooq Ahmed for Petitioner.

Zahid Muqeem Ansari for Respondent No.1.

Shaihaq Baloch, Additional A.G., for Official Respondents.

2019 C L C 316

[Balochistan]

Before Mrs. Syeda Tahira Safdar CJ and Muhammad Ejaz Swati, J

ALL PAKISTAN LAND ROUTE CUSTOM AGENT ASSOCIATION through Secretary General and others----Petitioners

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and 2 others----Respondents

C.Ps. Nos. 1023 and 1062 of 2018, decided on 28th September, 2018.

Constitution of Pakistan---

----Arts. 25, 30(2) & 199---Constitutional jurisdiction of High Court---Judicial restraint in policy matters---Reasonable classification and positive discrimination---Presumption in favour of Constitutionality of statutory enactments---Scope---High Court under Art. 199 of the Constitution can exercise judicial restraint and such restraint was to be legally exercised in policy matters---Under Art. 30(2) of the Constitution, mandate of any law could not be called into question on Principle(s) of Policy---Fundamental right under Art. 25 of the Constitution was subject to reasonable restrictions imposed by law and persons situated differently must be treated differently and those similarly placed were to be treated similarly---State was not prohibited to treat its citizens on basis of reasonable classification---Presumption existed in favour of Constitutionality of an enactment and burden was upon the person who challenged such enactment to show that there had been a clear transgression of Constitutional principle(s).

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others, 2001 SCMR 1161 rel.

Tariq Ali Tahir for Petitioners (in C.Ps. Nos. 1023 and 1062 of 2018).

2019 C L C 651

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

IKHTIAR KHAN----Petitioner

Versus

RAIES RAZA MUHAMMAD and 19 others----Respondents

Constitution Petition No.(S)140 of 2017, decided on 31st December, 2018.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Suit for declaration and permanent injunction---Amendment in plaint---Scope---Plaintiff filed suit for declaration and permanent injunction with the averments that he was owner of water channel at his properties while the defendants illegally diverted the water channel towards their properties---Plaintiff through application for amendment in plaint sought inclusion of khasra number in the list of suit properties---Trial Court dismissed the application by observing that it did not disclose any cause of action and the plaintiff was provided several opportunities to record his statement, but he failed to get his statement recorded and wanted to prolong the matter---Appellate Court dismissed revision petition---Validity---Plaintiff had failed to point out any illegality or irregularity, misreading and non-reading of evidence in the concurrent findings of the courts below---Constitutional petition was dismissed accordingly.

Anwar-ul-Haq Chaudhary for Petitioner.

Muhammad Sadiq Ghuman for Respondents.

Muhammad Aslam Jamali, Assistant Advocate General for official Respondents.

2019 C L C 1096

[Balochistan]

Before Mrs. Syeda Tahira Safdar, C.J and Muhammad Ejaz Swati, J

Syed ABDUL MANAN and others----Appellants

Versus

Malik ASMATULLAH and others----Respondents

Regular Second Appeal No. 04 and Civil Revision Petition No.355 of 2000, decided on 28th September, 2018.

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

----Ss. 14, 17, 21, 23 & 47---Qanun-e-Shahadat (10 of 1984), Arts. 100 & 101---Balochistan Land Revenue Act (XVII of 1967), S.52---Limitation Act (IX of 1908), Art.144 (since omitted)---Suit for declaration and possession---Limitation---Compromise by the attorney on behalf of his principal---Reference to arbitration without intervention of the Court---Possession on the suit property---Document more than thirty years old---Effect---Revenue entries---Presumption of truth---Contention of plaintiffs was that they were owner of suit property---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Principal of attorney had not authorized him to refer the matter to the arbitrator or enter into compromise with the defendants---Attorney should have sought permission from the principal for such act, in circumstances---Act of attorney in absence of any such permission was misrepresentation and it had element of fraud---Purported award was not only undated but it also did not contain the names and signatures of arbitrators---Terms of said award could not be enforced, in circumstances---When parties to the suit had agreed that matter in question should be referred to arbitration then they might, before announcement of judgment, apply to the Court in writing for an order of reference---Where parties to the suit had agreed or consented to refer the matter to arbitration, Court could refer the same to arbitrator and specify the time for making the award---Parties who had agreed to refer matter to arbitrator would be bound by such award---Reference to arbitration and an award in the pending suit without intervention of the Court would be nullity and such award could not be made rule of the Court---Presumption could not be attached to the document more than thirty years old when defendant had denied the same---Parties should prove said document in accordance with law---Presumption of truth was attached to the revenue entries unless rebutted through cogent evidence---Longstanding impugned mutation in favour of a party could not be disturbed due to presumption of truth attached to such entries---Impugned mutation was not challenged by the vendor in his lifetime and defendants had no locus standi to assail the same---Possession was an incident of ownership and it could be transferred by the owner of an immovable property to another---Possession would be important when there was no title document and other relevant record---Once a document and record of title came before the Court then it was the title which had to be taken into consideration---Possession on suit property could not be considered in vacuum---Mere longstanding possession would not be good against the rightful owner and the assumption that he was in peaceful possession would not work and could not operate against the true lawful owner---Plaintiffs were owners of suit property and they had sought relief of possession---Evidence produced by defendants spoke about possession which could not work against the plaintiffs---Plaintiffs had adopted due course of law by filing suit for possession---Defendants while filing written statement had denied the title of plaintiffs and raised question of limitation---Limitation would run from the date when written statement was filed by the defendants, in circumstances---Defendants had no title document to continue their possession---Revision was dismissed, in circumstances.

Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Messer S.M. Qasim and Co. v. Messer Shah Azimuddin PLD 1962 (WP) Lah. 95; Allah Bakhsh v. Mst. Shamshad Begum and 2 others 1991 MLD 1937; Mst. Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967; Abdul Karim and 3 others v. Mst. Zar Bibi PLD 1996 Quetta 1; Nazir Ahmed deceased through LRs v. Karim Bakhsh (Late) through LRs, 2017 SCMR 1934; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; 1996 SCMR 1539 and 2010 SCMR 1630 rel.

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

----O. VI, R. 7---Departure from pleadings---Effect---Anything stated outside the scope of suit, averments cannot be looked into---Order VI R. 7, C.P.C. not only excludes the element of surprise, but also precludes the party from proving what has not alleged or pleaded.

PLD 1976 SC 469; 1968 SCMR 804; 1996 SCMR 336 and 2006 SCMR 562 rel.

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

----O. XIII, R. 4---Endorsement on documents admitted in evidence---Scope---Document not to be exhibited unless proved---Marked document could not be taken into consideration.

2011 SCMR 1013 and 2005 SCMR 152 rel.

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

----Art. 100---Document more than thirty years' old---Presumption---Condition---Presumption could not be attached to the document more than thirty years old when defendant had denied the same---Parties should prove said document in accordance with law---Presumption of truth was attached to the revenue entries unless rebutted through cogent evidence---Longstanding impugned mutation in favour of a party could not be disturbed due to presumption of truth attached to such entries---Impugned mutation was not challenged by the vendor in his lifetime and defendants had no locus standi to assail the same.

Adnan Ejaz for Appellants (In R.S.A. No. 04 and for Petitioners in Civil Revision Petition No.355 of 2000).

Mujeeb Ahmed Hashmir for Private respondents (In R.S.A. No. 04 and Civil Revision Petition No.355 of 2000).

Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (In R.S.A. No. 04 and Civil Revision Petition No.355 of 2000).

2019 C L C 1164

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD YOUSAF KHAN----Petitioner

Versus

MALIK NAEEM KHAN BAZAI and 18 others----Respondents

Election Petition No.49 of 2018, decided on 7th December, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 139 & 144---Election petition---Election for the seat of Member Provincial Assembly---Allegations of illegal and corrupt practices---Proof---Requirements---Delimitation of constituencies---Effect---Principle of acquiescence---Applicability----Petitioner had failed to put forward particulars of corrupt and illegal practices or other illegal acts allegedly committed by the respondent and his supporters---Nothing was on record with regard to the persons who allegedly committed corrupt or illegal practices---Petitioner had relied on vague and general allegations of corrupt and illegal practices during the course of election---Election process had started with the issuance of election programme and consisted of various links and stages in that behalf---If any of such links was challenged that would tantamount to challenging the said process of election---Stage of delimitation of constituencies had taken place prior to election and was altogether distinct from the election process announced in an election programme---Matter of delimitation of constituencies was not within the jurisdiction of Election Tribunal---Respondent had participated in the election and was elected---Election Tribunal could not sit in appeal to review the constituencies and process of delimitation carried out by the Election Commission---Petitioner had participated in the election without raising any objection and after losing the same he could not be allowed to challenge the election of respondent due to his conduct in view of principle of acquiescence---Election petition was dismissed, in circumstances.

Muhammad Afzal v. Mian Miraj Din 1967 Lah. 689; Election Commission of Pakistan through its Secretary v. Javaid Hashmi PLD 1989 SC 396; Worker's Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 and Pakistan Peoples Party v. Government of Punjab PLD 2014 Lah. 330 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Scope.

Under Articles 189 and 190 of the Constitution, law declared by the Supreme Court becomes law of the land and is binding not only on all Courts in Pakistan but also on all organs of the State and there is no escape from acceptance, obedience, or compliance of an order passed by the Supreme Court, which is the final and the highest Court in the country and no one can be allowed to violate the same, while taking shelter behind technicalities. Effect of the Supreme Court's judgement cannot be eroded or nullified through any executive or administrative instrumentality and even legislature cannot destroy, annul, set aside, vacate, reverse or modify a final judgement of a Court of competent jurisdiction. [p. 1169] B

Mir Alam Gul v. Ismail PLD 1990 SC 926; Ashiq Hussain alias Muhammad Ashraf v. State PLD 1994 SC 879; Province of the Punjab v. Haji Yaqoob Khan 2007 SCMR 554 and Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan PLD 2006 SC 66 rel.

(c) Constitution of Pakistan---

----Art. 4---Every citizen had inalienable right to be treated in accordance with law.

Naseebullah Tareen and Abdul Haq Mandokhel for Petitioner.

Barrister Muhammad Aamir Lehri and Iqbal Ahmed Kasi for Respondent No.1.

Rafique Langov and Jameel Ramzan, Legal Advisors, ECP for Official Respondent.

2019 C L C 1291

[Balochistan]

Before Mrs. Syeda Tahira Safdar CJ and Muhammad Ejaz Swati, J

NOOR AHMED and 2 others----Appellants

Versus

BASHIR AHMED and others----Respondents

R.F.A. No.169 of 2009, C.M. Appeal No.14 of 2015 and Civil Revision No. 78 of 2018, decided on 30th November, 2018.

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

----S. 92---Specific Relief Act (I of 1877), S. 42---Suit for declaration against trust property without consent of Advocate General---Maintainability---Trust had been created in the land in question for public purpose of religious/charitable in nature---Permission of Advocate General for instituting a suit was mandatory----No consent of Advocate General had been obtained---Trial Court had passed decree against law in favour of plaintiffs---Impugned judgments and decrees passed by the Courts below were not sustainable which were set aside---Revision was allowed, in circumstances.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 rel.

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

----S. 42---Suit for declaration and partition---Shamilat Deh---Effect---Land in question was Shamilat Deh---Nothing was on record with regard to names or shares of the sharers of suit land---Civil Court had limited jurisdiction with regard to Shamilat Deh land---No specific share could be declared to be in possession of any land owner unless Shamilat Deh land was partitioned by metes and bounds by revenue authorities---Shamilat Deh land whenever divided was to be divided in accordance with ancestral shares of the proprietors amongst them---Other residents of the village, occupants of land or tenant at will or even the owner of land who acquired ownership right as Malik-Qabza would not be entitled to any share in the common property of village Shamilat---Trial Court had passed decree against law in favour of plaintiffs---Impugned judgments and decrees passed by the Court below were not sustainable which were set aside---Revision was disposed of accordingly.

1993 SCMR 381 and Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214 rel.

Tariq Ali Tahir for Appellants (in R.F.A. No.169 of 2009).

Syed Manzoor Ahmed Shah for Respondents Nos.1 to 11 (in R.F.A. No.169 of 2009).

Zahoor Ahmed Baloch, Assistant A.G. for Official Respondent (in R.F.A. No.169 of 2009).

Tariq Ali Tahir for Appellants (in Civil Miscellaneous Appeal No.14 of 2015).

Syed Manzoor Ahmed Shah for Respondents Nos.1 to 11 (in Civil Miscellaneous Appeal No.14 of 2015).

Zahoor Ahmed Baloch, Assistant A.G. for Official Respondent (in Civil Miscellaneous Appeal No.14 of 2015).

Nemo for Petitioners (in Civil Revision Petition No.78 of 2018).

Tariq Ali Tahir for Respondents Nos.1, 2 and 2(i) to 2(xi) (in Civil Revision No.78 of 2018).

Zahoor Ahmed Baloch Asstt. A.G. for Official Respondents Nos.1 to 11/decree holders (in Civil Revision Petition No.78 of 2018).

Zahoor Ahmed Baloch, Additional A.G. for Official Respondent (in Civil Revision Petition No.78 of 2018).

2019 C L C 1520

[Balochistan]

Before Abdullah Baloch, J

KHAIR JAN----Petitioner

Versus

ABDUL QUDOOS BIZANJO and 22 others----Respondents

Election Petition No. 35 of 2018, decided on 19th December, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 139 & 144---Election petition---Election for the seat of Member Provincial Assembly---Allegations of illegal and corrupt practices---Burden of proof---Benefit of doubt---Onus to prove allegations of rigging and use of corrupt and illegal practices was on the petitioner---General allegations of illegal and corrupt practices of rigging in different polling stations had been leveled against the respondent---Written complaint by mentioning the name of any particular officer/official abetting the respondent in the alleged rigging had not been made---Particular act of illegal and corrupt practice was not assigned to any particular person---No material substance had been produced to prove the case of corrupt and illegal practices against the respondent---Benefit of doubt had to be extended to the party against whom allegations had been levelled---Petitioner was required to narrate full particulars of incorrect declaration, illegal and corrupt practices along with supporting evidence---General allegations without supporting evidence could not be taken into consideration having not fulfilled the mandatory requirements of S.144 (1)(a)(b) of Elections Act, 2017---Petitioner had failed to shift the burden of proof---Huge difference between the votes secured by the petitioner and respondent was on record---Order for recounting or verification of thumb impressions would be justified where there was prima facie evidence of rigging and casting of invalid ballots on the record---Petitioner had failed to establish the charge of illegal and corrupt practices---Election petition was dismissed, in circumstances.

Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 rel.

Nadir Ali Chalgari for Petitioner.

Tariq Ali Tahir and Nadeem Sheikh for Respondent No.1.

Khalil-uz-Zaman, Additional A.G. for the State.

Jameel Ramzan, Legal Advisor ECP and Naseer Ahmed Senior Assistant ECP.

2019 C L C 1543

[Balochistan]

Before Abdullah Baloch, J

ABDUL KHALIQ----Petitioner

Versus

SARDAR SANAULLAH ZEHRI and 12 others----Respondents

Election Petition No.31 of 2018, decided on 31st December, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 139 & 144---Election petition---Election for the seat of Provincial Assembly---Allegations of illegal and corrupt practices---Proof---Requirements---Verification of thumb impression---General allegations of illegal and corrupt practices had been leveled against polling officials---Petitioner had failed to mention the name of any of the officials who indulged in the illegal and corrupt practices---Statements of petitioner's witnesses were silent with regard to polling stations, time and persons involved in the alleged rigging---Nothing was on record to prove a case of illegal and corrupt practices warranting declaration of returned candidate to be declared as void---Order for verification of thumb impression would be justified if prima facie evidence of rigging and casting of invalid ballots was available on record---No such evidence was available on record in the present case---Election petition was dismissed, in circumstances.

Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 rel.

(b) Administration of justice---

----If law had prescribed a method for doing of a thing in a particular manner then same should be followed in letter and spirit and doing of a thing in the manner other than the provided manner would not be permitted under the law.

Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.

Kamran Murtaza and Tahir Ali Baloch for Petitioner.

Shah Muhammad Jatoi and Barrister Ali Ahmed Zehri for Respondent No.1.

Jameel Ramzan and Rafique Ahmed Langove, Legal Advisors ECP and Naseer Ahmed, Senior Assistant ECP.

2019 C L C 1685

[Balochistan]

Before Muhammad Ejaz Swati and Naeem Akhtar Afghan, JJ

BALOCHISTAN UNIVERSITY OF INFORMATION AND TECHNOLOGY AND MANAGEMENT SCIENCES, QUETTA----Appellant

Versus

NAWAB BROTHER (PVT.) LIMITED----Respondent

R.F.A. No. 56 of 2018, decided on 13th May, 2019.

Arbitration Act (X of 1940)---

----Ss. 20, 29, 30 & 33---Arbitration agreement---Award---Objection---Arbitrator was appointed who submitted his award in the Court wherein principal amount with markup on the same was granted till payment---Objections raised against the award were rejected and it was made Rule of the Court---Validity---Court while examining the validity of award could not act as a Court of Appeal and make reappraisal of evidence recorded by the arbitrator in order to discover the error or infirmity in the award unless such error or infirmity was on the record---Award, in the present case, was based on documentary evidence which did not require reappraisal of evidence---No infirmity had been pointed out in the impugned award---Nothing was on record with regard to misconduct of arbitrator---Arbitrator had no authority to grant any markup on the principal amount from the date of award till payment---Markup with effect from the date of award till realization of principal amount awarded by the arbitrator was without competence---Appeal was dismissed, accordingly.

PLD 2011 SC 506; PLD 2003 SC 301; 2002 SCMR 366; 1983 SCMR 718 and 1981 CLC 311 ref.

PLD 1996 SC 108 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 rel.

Akram Shah for Appellant.

Ghulam Hussain for Respondent.

2019 C L C 1781

[Balochistan]

Before Abdullah Baloch, J

UMER DIN----Petitioner

Versus

MAIRAJ-UD-DIN and another----Respondents

Civil Revision No.49 of 2017, decided on 24th April, 2019.

Civil Procedure Code (V of 1908)---

----S.96---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Ex-parte decree---Appeal---Limitation---Condonation of delay---Sufficient cause---Defendant after filing written statement disappeared and was proceeded against ex-parte---Suit of plaintiff was decreed ex-parte against which appeal was dismissed being time-barred---Validity---Ex-parte order passed by the Trial Court was appealable within thirty days---Appellant did not prefer appeal against ex-parte order within time---Application for condonation of delay did not describe any plausible explanation and sufficient cause---Appellate Court had rightly dismissed the appeal being time barred---No illegality, infirmity or jurisdictional defect had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed, in circumstances.

Mehdi Hassan through Legal Heirs and others v. Punjab Co-operative Bank and others 2019 YLR 1 and Mubarak Masih v. Muhammad Yaqoob 2019 CLC 321 rel.

Shah Jahan Khan for Petitioner.

Syed Iqbal Shah for Respondent.

Saifullah Sanjarani Assistant Advocate General for the State.

2019 C L C 1825

[Balochistan]

Before Mrs. Syeda Tahira Safdar, C.J. and Muhammad Ejaz Swati, J

Messrs JEEAND COAL COMPANY through Managing Partner and others----Petitioners

Versus

APPELLATE AUTHORITY/SECRETARY, MINES AND MINERALS DEVELOPMENT DEPARTMENT and others----Respondents

C.Ps. Nos. 707, 626 of 2012, 32 of 2014, 877 of 2015 and 788 of 2016, decided on 21st May, 2019.

Balochistan Mineral Rules, 2002---

----Rr.14, 17 & 77---Mining lease, grant of---Prospecting license---Petitioner was a mining company who was issued prospecting license for purpose of coal mining over an area of 1920 acres and mining lease for a period of 20 years was granted---On application filed by respondents, authorities excluded area measuring 215 acres from the lease granted to petitioner---Validity---Finding of appellate authorities lacked considerations of provisions of laws and facts as to whether respondents were seeking prospecting license/No Objection Certificate or exclusion of land lease to petitioners---All such aspects of matter required reconsideration of authorities---High Court set aside order passed by authorities and remanded matter to decide the same in accordance with law including question of prospecting license granted in favour of respondents---Constitutional petition was allowed accordingly.

Syed Ayaz Zahoor for Petitioner (in C.P. No.707 of 2012).

Zahoor Ahmed Baloch, Assistant Advocate General for Respondents Nos.1 to 3 (in C.P. No.707 of 2012).

Muhammad Riaz Ahmed for Respondents Nos.4 to 6 (in C.P. No.707 of 2012).

Ahsan Rafique Rana for Petitioners (in C.P. No.626 of 2012).

Ghulam Mustafa Butt for Respondents Nos.3, 5 and 7 (in C.P. No.626 of 2012).

Muhammad Riaz Ahmed for Respondent No.4 (in C.P. No.626 of 2012).

Zahoor Ahmed Baloch, Assistant, A.G. for Respondents (in C.P. No.626 of 2012).

Syed Ayaz Zahoor for Petitioners (in C.P. No.32 of 2014).

Muhammad Aamir Nawaz Rana for Respondents 3, 4, 6 to 9 and 11 to 16 (in C.P. No.32 of 2014).

Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (in C.P. No.32 of 2014).

Ms. Sana Suleman for Petitioner (in C.P. No.877 of 2015).

Syed Ayaz Zahoor for Respondent No.1 (in C.P. No.877 of 2015).

Zahoor Ahmed Baloch, Assistant A.G. for Respondent (in C.P. No.877 of 2015).

Syed Ayaz Zahoor for Petitioner (in C.P. No.788 of 2016).

Muhammad Aamir Nawaz Rana and Nadir Ali Chalgari for Respondent No.4 (in C.P. No.788 of 2016).

Zahoor Ahmed Baloch, Assistant A.G. for Respondent (in C.P. No.788 of 2016).

2019 C L C 2016

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

LAL BIBI and 10 others----Petitioners

Versus

ABDUL REHMAN and 8 others----Respondents

Constitutional Petition No.164 of 2018, decided on 1st August, 2019.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.3 & S.12(2)---Suit for declaration and permanent injunction---Compromise decree, setting aside of---Limitation---Application under S.12(2), C.P.C.---Fraud and misrepresentation---Non-framing of issues---Effect---Trial Court dismissed petition for setting aside of compromise decree but Appellate Court remanded the matter for decision afresh after recording of evidence---Validity---Petitioners had raised specific plea of fraud and misrepresentation which had been denied by the respondent while submitting reply of petition---Parties should have been provided reasonable opportunity to produce their evidence, in circumstances---Framing of issues in every application under S.12(2), C.P.C. was not necessary but in certain cases issues should be framed and evidence was required for just conclusion---No illegality or irregularity had been pointed out in the impugned order passed by the Revisional Court---Constitutional petition was dismissed, in circumstances.

Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 rel.

Mumtaz Hussain Baqri for Petitioners.

Syed Muhammad Tahir, Gul Bibi and Taj Bibi for Respondents Nos. 2 and 7.

2019 C L C 2057

[Balochistan]

Before Abdul Hameed Baloch, J

Haji MUHAMMAD AMIN----Petitioner

Versus

Hafiz ABDUL MALIK and 3 others----Respondents

Civil Revision No.270 of 2015, decided on 19th August, 2019.

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

----O.XLI, R. 31---Judgment in appeal---Points for determination, non-framing of---Effect---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Appellate Court was to assess evidence produced by the parties and examine findings recorded by the Trial Court and record its reasons for upholding or reversing the same---Appellate Court was bound to decide the dispute under O. XLI, R. 31, C.P.C. failing which judgment would not be according to law---Judgment of Appellate Court was to contain the points for determination of dispute and must have reasons for decision, which were lacking in the impugned judgment---Plaintiffs had prayed for cancellation of mutation but no order had been passed by the Appellate Court for cancellation of mutation or otherwise---Impugned judgment and decree passed by the Appellate Court were set aside and matter was remanded for decision afresh according to provisions of O.XLI, R.31, C.P.C.---Revision was allowed, in circumstances.

Jan Muhammad v. Mulla Abdul Rehman and 4 others PLD 1998 Quetta 34 rel.

(b) Appeal/revision---

----Appeal/revision was continuation of suit.

Khalid Kubdani for Petitioner.

Qazi Abdul Rab for Respondents Nos.1 and 2.

Jamil Ahmed Kakar for Respondent No.3.

Muhammad Aslam Jamali, Assistant Advocate-General for the State.

2019 C L C 75

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

KHADIM HUSSAIN and 3 others----Appellants

versus

AZAD GOVERNMENT through Chief Secretary and 10 others----Respondents

Civil Appeal No.283 of 2017, decided on 16th March, 2018.

(On appeal from the judgment of the High Court dated 8-7-2017 in Writ Petition No.431 of 2014).

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

----S. 44---Civil Procedure Code (V of 1908), S. 92 & O. I, R. 8---Writ petition---Maintainability---Aggrieved person---Locus standi---Changing the name of a school---Change in the name of a school was challenged through writ petition which was dismissed by the High Court being not maintainable---Validity---Petitioners were not residents of the Union Council where the school was located---Petitioners being not aggrieved of the impugned notification had no locus standi to challenge the same---Writ petition being in representative capacity written consent of Advocate General had not been obtained before filing the same---Even no permission of the Court had been sought under O. I, R. 8, C.P.C---Writ petition was liable to be dismissed on that score---Writ was competent only where violation of rules or law was pointed out---No such violation having been pointed out, writ petition could not be entertained to resolve the question of academic interest---Appeal was dismissed, in circumstances.

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

----S. 44---Writ petition---Scope---Writ was competent only where violation of rules or law was pointed out.

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

----S. 44---Writ petition---Applicability of provisions of Civil Procedure Code, 1908---Scope---Provisions of Civil Procedure Code, 1908 were applicable to writ proceedings.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 rel.

Raja Sajjad Ahmed Khan, Advocate for Appellants.

Sardar Abdul Sammiee Khan, Advocate for Respondent No.1.

Zubair Ahmed Raja, Additional Advocate-General for Respondents Nos. 2 to 3.

Raja Ibrar Hussain for Respondents.

2019 C L C 774

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J., Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

AZHAR MEHBOOB----Petitioner

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 11 others----Respondents

Civil Review Petition No.38 of 2018, decided on 13th December, 2018.

(In the matter of review from the judgment of this Court dated 15-11-2018 in Civil Appeal No.268 of 2018).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVI, R. 6---Review---Filing of review petition without special leave of court by advocate other than the one who argued the appeal---Scope---Petitioner filed review petition which was drawn by counsel other than the one who appeared in the appeal---Plea of counsel for petitioner was that he had filed application seeking permission to draw the review petition and that he had been engaged with the counsel who argued the appeal---Validity---At the time of hearing the appeal, the counsel representing the petitioner had not appeared and argued---No review petition could be drawn by any advocate other than the advocate who appeared at the time of hearing of the case in which the judgment or order, sought to be reviewed was made---Counsel for petitioner had drawn the application, after the office had reported the defect in the review petition just to cover up the legal requirement---Review petition, being not maintainable, was dismissed.

Sardar Abdul Hameed Khan, Advocate for Petitioner.

Nemo for Respondents.

2019 C L C 877

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

ARSHAD HUSSAIN KHAN and 16 others----Appellants

Versus

INHABITANTS OF ISLAM NAGAR PATTAN SHER ALI KHAN through L.Rs.----Respondent

Civil Appeal No.236 of 2018, heard on 10th September, 2018.

(On appeal from the judgment of the High Court dated 16.04.2018 in Writ Petition No.339 of 2017).

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

----S. 44---Civil Procedure Code (V of 1908), S. 91 & O. I, R. 8---Writ of prohibition---Maintainability---Petitioner had assailed the policy decision of the Government---Writ petition in representative capacity, filing of---Requirements---Government issued notification for construction of Health Center at one place (first place) and thereafter corrigendum was issued for construction of the same at another place---Petition for writ of prohibition by inhabitants of the area was filed to restrain the Government from cancelling the notification to construct health center at the first place and direction was sought for implementation of said notification---High Court accepted writ petition and direction was issued to the Government to construct health center at the first place---Contention of appellants (residents of second place) was that they were not impleaded as party in the writ petition before the High Court and they had been condemned unheard---Validity---Civil Procedure Code, 1908 was applicable to the writ proceedings before the High Court---Permission of Advocate General for filing writ petition in representative capacity or permission of Court was condition precedent---Writ petition in representative capacity (by the residents) without obtaining permission of Advocate General or the Court was not competent and was liable to be dismissed on said sole ground---Places in question were two different villages located in the same vicinity---Notification for construction of Health Centre had not been specifically challenged by amending the writ petition before High Court---Even residents of said area who were necessary party and had right to be heard were not impleaded in the line of respondents before the High Court---Order which was not subject matter of writ petition could not be quashed---Direction in such circumstances could not be issued without hearing the said inhabitants---Policy decision made by the Government could only be challenged in writ jurisdiction when same was violative of any law or rules or against Fundamental Rights of the citizens---Court could not substitute its findings in place of the Government officials as it was their exclusive domain to determine the suitability or make policy with regard to development projects---Impugned judgment passed by the High Court was vacated in circumstances---Writ petition was dismissed and Government was directed to start construction of the project without any further delay---Appeal was allowed accordingly.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Mir Alam and 2 others v. Sahibzada and 7 others 2007 SCMR 1157; Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Ramessa Khalid v. Government of Punjab PLD 2013 Lah. 45 and Ch. Latif Akbar and 261 others v. Azad Government and 10 others 2017 SCR 305 ref.

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

----S. 44---Policy decision made by the Government---Writ petition---Maintainability---Such decision of the Government could only be challenged in writ jurisdiction when same were violative of any law or rules or against Fundamental Rights of the citizens.

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

----S. 44---Civil Procedure Code (V of 1908), S. 91 & O. I, R. 8---Writ petition in representative capacity, filing of---Condition---Permission of Advocate General for filing writ petition in representative capacity or permission of Court was condition precedent.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Mir Alam and 2 others v. Sahibzada and 7 others 2007 SCMR 1157 and Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

Shahzad Shafi Awan, Advocate for Appellants.

Barrister Hamayun Nawaz Khan, Advocate for Respondents.

2019 C L C 991

[Supreme Court (AJ&K)]

Present: Ghulam Mustafa Mughal, J

QAMAR ALAM and 2 others----Petitioners

Versus

Malik NASEEM and others----Respondents

Civil P.L.A. No. 289 of 2018 and Civil Miscellaneous No. 144 of 2018, decided on 4th September, 2018.

(On appeal from the order of the High Court dated 23-5-2018 in Revision Petition No.228 of 2017).

Civil Procedure Code (V of 1908) ---

----S. 75, O. XXVI, R. 1 & O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Interim injunction, grant of---Local commission, appointment of---Scope---Interim injunction granted in favour of plaintiff was vacated against which appeal was filed wherein Appellate Court set aside the order of Trial Court with the direction to appoint a local commission and decide the case afresh---High Court dismissed revision petition filed against the order of Appellate Court---Validity---Civil Court was vested with the jurisdiction to appoint the local commission at any time while exercising powers under S. 75 read with O. XXVI, C.P.C.---Said power could be exercised for ascertaining the true position on the spot with regard to subject matter of dispute---Civil Court even otherwise had inherent jurisdiction to appoint the local commission for coming to just decision in the civil cases---Neither Appellate Court had acted illegally while appointing the commission nor impugned order was illegal or contrary to law---No legal question of public importance was involved in the present case---Petitioner had failed to make out a valid ground for grant of leave---Petition for leave to appeal was dismissed by the Supreme Court in circumstances.

Muhammad Yaqoob Khan Mughal and Ch. Muhammad Manzoor, Advocate for Petitioners.

Maqbool-ur-Rehman Abbasi, Advocate for Respondent No.1.

2019 C L C 1466

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

RIAZ UR REHMAN QURESHI and 14 others----Appellants

Versus

AZAD JAMMU AND KASHMIR COUNCIL through Secretary and 10 others----Respondents

Civil Appeal No. 18 of 2018, decided on 29th November, 2018.

(On appeal from the judgment of the High Court dated 26-10-2017 in Writ Petition No.345 of 2014).

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

----O. II, R. 2 & S. 11---Relinquishment of any portion of the claim---Subsequent writ petition---Res judicata principle of---Applicability---High Court had dismissed writ petition in limine on the ground that same was hit by the principle of estoppel---Validity---Main relief of petitioners was assessment orders which were subject matter of both the writ petitions---Petitioners in the subsequent writ petition had challenged the vires of impugned legislation on the basis of assessment orders---Said relief was available to the petitioner and same could have been included in the earlier writ petition---Every suit should include the whole claim which the plaintiff was entitled to make with regard to the cause of action---Plaintiff might relinquish any portion of his claim in order to bring his suit within the jurisdiction of the Court---Where plaintiff had omitted to sue or intentionally relinquished any portion of his claim then he could not afterwards sue with regard to said portion of claim so omitted or relinquished---Order II, R. 2, C.P.C. did prohibit to split the cause of action and if a person was in possession of several cause of actions against same defendant or same defendants jointly then he had to unite the cause of actions and could not be allowed to file suit after splitting the same---Mere adding the prayer of challenging the vires of legislation did not provide the petitioners separate cause of action---Where any relief was available but was not claimed then it would be deemed to have been waived---No subsequent suit could be filed after dismissal of previous one on the ground of constructive res-judicata---Appeal was dismissed, in circumstances.

Mahdi v. Muhammad Ramzan and 3 others 1994 MLD 686; Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139; Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCMR 464 and Board of Trustees and another v. Muhammad Azam Durrani 2004 SCR 401 ref.

Abdul Rehman and another v. Income Tax Officer, Mirpur Circle and another 1993 CLC 1101; Nawabzada Muhammad Zaman Khan's case 2014 MLD 1417; Haji Mir Alam Shah's case 2004 CLC 1100; Akbar Ali Malik v. Chairman, A.K. M.I.D.C. and others 1999 MLD 236 and National Bank of Pakistan v. Hashim Khan 1995 CLC 88 rel.

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

----O. II, R. 2---Every suit was to include the whole claim which the plaintiff was entitled to make with regard to the cause of action---Plaintiff could relinquish any portion of his claim in order to bring his suit within the jurisdiction of the Court---Where plaintiff had omitted to sue or intentionally relinquished any portion of his claim then he could not afterwards sue with regard to said portion of claim so omitted or relinquished---Order II, R. 2, C.P.C. did prohibit to split the cause of action and if a person was in possession of several cause of actions against same defendant or same defendants jointly then he had to unite the cause of actions and could not be allowed to file suit after splitting the same.

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

----S. 11---Constructive res judicata---Scope---No subsequent suit could be filed after dismissal of previous one on the ground of constructive res judicata.

Babar Ali Khan, Advocate for Appellants.

Muhammad Rafique Dar, Advocate for Respondents.