CLC 2020 Judgments

2020 C L C 128

[Chief Court Gilgit-Baltistan]

Before Malik Haq Nawaz and Ali Baig, JJ

Mst. KHALASA BEGUM----Appellant

Versus

SAMAR ABBAS through Next Friend----Respondent

C.F.A. No.53 of 2018, decided on 17th June, 2019.

Succession Act (XXXIX of 1925)---

----S. 372---Civil Procedure Code (V of 1908), O. XXI, R. 23 & Ss.2(2)(14)---Succession certificate---Execution petition---Objection petition---Execution petition was filed for implementation of succession certificate wherein objection application was moved but same was dismissed---Contention of petitioner was that succession certificate was not a decree and same was not executable---Validity---Succession certificate did not fall within the ambit of decree and it merely declared that legal heir of the deceased was entitled to recover the amount mentioned in the said certificate---Succession certificate was not capable of being executed as a decree or order of the Court---Impugned order passed by the Court below was set aside and execution petition was dismissed by allowing objection petition---Appeal was allowed, in circumstances.

AIR 1986 Karnataka 167 and 1991 CLC Pesh. Note 199 ref.

Islam-ud-Din for Appellant/Petitioner.

Ghulam Haider for Respondent.

2020 C L C 340

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

DAULAT NAZIR----Petitioner

Versus

BAGDUR KHAN and others----Respondents

Civil Revisions Nos.04 and 05 of 2018, decided on 25th April, 2019.

Gilgit Baltistan Right of Prior Purchase Regulation, 1938---

----Regln. 5---Civil Procedure Code (V of 1908), O. VII, R. 11 & O.VI, R. 17--- Pre-emption suit qua sale of a shop---Plaint, rejection of---Amendment of plaint---Scope---Trial Court rejected plaint against which appeal was filed wherein plaintiff moved application for amendment of plaint which was dismissed---Validity---No right of prior purchase did exist with regard to sale of shop, serai or market or other property used as a place for transaction of public business---Trial Court had rightly rejected plaint in the present suit---Petitioner through proposed amendment wanted to fill up defects/lacunas in the suit which was not permissible under the law---If proposed amendment was allowed then it would change the complexion of the suit and new cause of action would be introduced---Parties, in the present suit, were followers of Fiqa Jafaria---Right of pre-emption was not available on the basis of vicinage, contiguity and participation in the amenities attached to the suit property---Suit of pre-emptor was not maintainable, in circumstances---Impugned orders had been passed by the Courts below in accordance with law---Revision was dismissed, in circumstances.

Section 249(2) of the Muhammadan Law by D.F. Mulla ref.

JoharAli for Petitioner.

Latif Shah for Respondents Nos.1 to 3.

A.A.G. and Dy. A.G (Civil) for Respondents Nos.4 and 5.

2020 C L C 1472

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUJAHID WALI and others----Petitioners

Versus

Mst. FELEELI and others----Respondents

Civil Revision No.43 of 2018, decided on 28th June, 2019.

Civil Procedure Code (V of 1908)---

----O.I, R.10---Suit for declaration and permanent injunction---Impleadment of a party---Suit was dismissed by the Trial Court against which an appeal was filed---Plaintiffs moved an application before the Appellate Court to add defendants in the suit---Appellate Court accepted the said application---Validity---Proposed defendants were necessary and proper parties to the suit and they might be impleaded in the same---Trial Court or Appellate Court had ample power to allow such proposed defendants to be impleaded in the suit if they had some right or interest in the subject matter or cause of action---Courts had discretion to add the parties at any stage of proceedings to avoid multiplicity of proceedings and to arrive at fair and correct conclusion---Appellate Court had not committed any irregularity or illegality while passing the impugned order---Revision was dismissed, in circumstances.

2004 MLD 1395 rel.

Raja Shakeel Ahmed for Petitioners.

Abdul Malik for Respondents.

2020 C L C 1486

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD AMIN----Appellant

Versus

COLLECTOR LAND ACQUISITION/DEPUTY COMMISSIONER DISTRICT DIAMER and 5 others----Respondents

C.F.A. No. 26 of 2019, decided on 26th June, 2019.

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

----O. XVII, R. 3---Land Acquisition Act (I of 1894), S.18---Reference to court---Closure of evidence---Impugned order had been passed in a hasty manner without providing a reasonable time to the petitioner for production of his evidence---Rights of the parties should be decided upon merits rather than dismissing the matter on technical grounds---Trial Court had committed material irregularity while passing the impugned order, in circumstances---Impugned order passed by the Trial Court was set aside---Reference petition should be deemed to be pending before the Referee Court and a single opportunity to adduce evidence was to be provided to the petitioner---Appeal was allowed accordingly.

2001 SCMR 159 rel.

(b) Administration of justice---

----Courts are sanctuaries of the rights of litigants.

(c) Administration of justice---

---Courts were not to hesitate in exercising powers to do real and substantial justice.

(d) Administration of justice---

---Justice hurried is justice buried.

Saeed Ahmed and Hadayat Mir for Petitioner.

2020 C L C 1529

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed and Ali Baig, JJ

JAN ALAM----Petitioner

Versus

TALIB SHAH and others----Respondents

Writ Petition No.142 of 2018, decided on 26th September, 2019.

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

----O. VI, Rr. 17 & 18---Suit for declaration and permanent injunction---Amendment of plaint---Plaintiff moved application for amendment of plaint which was dismissed by the Trial Court but Appellate Court accepted the same---Appellate Court directed the plaintiff to submit amended plaint in the Trial Court on the next date of hearing---Plaintiff failed to submit amended plaint and his right to submit amended plaint was struck off---Validity---Plaintiff was bound to file amended plaint on the next date of hearing in the Trial Court fixed by the Appellate Court while allowing his petition---Provision of O.VI, R.18, C.P.C. was mandatory in nature---Plaintiff had violated the said provisions of law by not filing amended plaint in the Trial Court---Where appellate or revisional Court had allowed amendment then Trial Court could not extend the time for filing of amended plaint---Writ petition was dismissed, in circumstances.

(b) Administration of justice---

----Law favours the vigilant, not the indolent.

Munir Ahmed for Petitioner.

Faqir Shakir for Respondents.

2020 C L C 1892

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ and Ali Baig, J

MUHAMMAD SHAFI KHAN----Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 2 others----Respondents

Suo Motu 03 of 2020 converted into W.P. No.72 of 2020, decided on 27th April, 2020.

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

----Art.71---Writ petition---Scope---Petitioner requested the court to take suo motu action against the notification whereby the Provincial Government had directed the Accountant General to deduct five days salary of the government employees from BPS-06 and above for contribution to emergency fund for the control of COVID-19---Validity---Authorities had altogether fixed same ratio of deduction from top to bottom which was against the spirit of justice and equity---Chief Court converted the petition into a writ petition and directed the authorities to deduct one day's pay of employees holding BPS-06 to 16, two day's pay of the employees holding BPS-17 to 19 and three day's pay of the employee's holding BPS-20 and above---Writ petition was disposed of accordingly.

(b) Government of Gilgit-Baltistan Order, 2018---

----Art.71---Writ petition---Violation of fundamental rights---Scope---Chief Court on the request of a citizen may take cognizance if gross transgression of fundamental rights is identified---Chief Court is constitutionally assigned the role of interpreting and applying the law, adjudicating upon matters arising among Governments or its stake holders or between citizens and Governments inter se and enforcing the fundamental rights.

(c) Government of Gilgit-Baltistan Order, 2018---

----Art.71---Writ petition---Conversion of proceedings---Scope---Chief Court has ample powers to mould a relief or to convert one type of proceedings into another type of proceedings.

Amjad Hussain, Zuhaib Ali Shah and Waqas Ahmed for Petitioners.

Assistant Advocate General for Respondents.

Nadeem Ahmed, Dy. Accountant General AGPR Gilgit.

2020 C L C 1907

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

JAN ALAM----Appellant

Versus

GHULAM MOHAMMAD----Respondent

C.F.A. No.21 of 2019, decided on 30th September, 2019.

Limitation Act (IX of 1908)---

----Ss.14, 5 & 2(7)---West Pakistan Civil Courts Ordinance (II of 1962), S. 18---Exclusion of time of proceeding bona fide in court without jurisdiction---Appeal---Good faith---Condonation of delay---Scope---Appellant assailed the dismissal of his suit before the District Court which returned the appeal by holding that it lacked pecuniary jurisdiction in the matter---Appellant, thereafter, filed the appeal after about one year of the passing of impugned judgment---Validity---Section 14 of Limitation Act, 1908 permitted the exclusion of time only for proceedings prosecuted in good faith in wrong forum therefore, in order to make out sufficient cause under S.5 of Limitation Act, 1908, appellant had to prove that he had acted in good faith in presenting his appeal in the wrong forum---Provisions of S.18 of West Pakistan Civil Courts Ordinance, 1962, were plain and there was no complication, whatsoever about the facts relevant to the question of the proper forum for filing the appeal---Presentation of appeal in the District Court was an act of gross negligence on the part of the counsel for the appellant---Counsel for the appellant had not filed application under S.5 of Limitation Act, 1908---Appeal, being time barred, was dismissed.

PLD 1977 SC 102 ref.

Asadullah Khan for Appellant.

Ehsan Ali for Respondent.

2020 C L C 952

[High Court (AJ&K)]

Before Chaudhary Khalid Yousaf, J

NIAZ AHMED and 3 others----Petitioners

Versus

Mst. MUSHARAF SHAHEEN----Respondent

Revision Petition No.160 of 2018, decided on 29th January, 2020.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10---Specific Relief Act (I of 1877), Ss. 42 & 54---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5, Sched.---Suit for declaration and permanent injunction with regard to land given as dower---Maintainability---Plaint, return of---Plaintiff-wife filed a suit for declaration and permanent injunction regarding land given to her as dower---Trial Court returned the plaint for presentation before Family Court---Validity---Family Court had exclusive jurisdiction to entertain and adjudicate all the matters which fell within the Schedule of Azad Jammu and Kashmir Family Courts Act, 1993---If dispute was between the spouses then Family Court was the right forum but if it was between the spouses and third party with regard to property given in lieu of dower then Civil Court had jurisdiction to resolve the said controversy---Dispute, in the present case, was between the widow and the third party i.e. brothers and sisters of her deceased husband---Civil Court was the appropriate forum to decide the present matter---Impugned orders passed by the Courts below were set aside and suit was transferred to the Court of Senior Civil Judge for its decision on merits---Revision was allowed, in circumstances.

PLD 2018 SC (AJ&K) 31 and Syed Iqbal Shah v. Syeda Tahira Bibi and 3 others 2019 MLD 576 rel.

Alia Abd-ur-Rehman for Petitioners.

2020 C L C 1077

[High Court (AJ&K)]

Before Chaudhary Khalid Yousaf, J

MUHAMMAD BASHIR----Appellant

Versus

MUHAMMAD NAEEM and 7 others----Respondents

Civil Appeal No.76 of 2017, decided on 17th January, 2020.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. IX, R. 8---Suit for specific performance of agreement to sell---Earlier suit having been dismissed for non-prosecution---Plaint, rejection of---Scope---Defendant moved application for rejection of plaint on the ground that earlier suit on same cause of action had been dismissed for non-prosecution and present suit was not maintainable---Trial Court rejected the plaint under O. VII, R.11, C.P.C.---Validity---If case was fixed for hearing then under O.IX, R.8, C.P.C. fresh suit was precluded---Date of hearing would mean the date when Court had to apply its mind on the pleadings of the parties, when issues were framed, evidence was to be recorded and arguments were to be heard---Earlier suit in the present matter was fixed for summoning of defendants and due to non-appearance of plaintiff same was dismissed for want of prosecution---Earlier suit was not fixed for hearing and plaintiff could file the fresh suit on same cause of action---Impugned order was not sustainable, in circumstances, which was set aside---Matter was remanded to the Trial Court for decision afresh on merits after recording evidence of the parties---Appeal was allowed, in circumstances.

Ghulam Mustafa v. Aurangzeb 2008 SCR 87 rel.

Ch. Muhammad Basharat for Appellant.

2020 C L C 1311

[High Court (AJ&K)]

Before Raza Ali Khan, J

MUHAMMAD MASOOM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and another----Respondent

Writ Petition No.186 of 2018, decided on 15th October, 2019.

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S.13---Decree---Enforcement of---Duty of executing court---Scope---Petitioner assailed order passed by executing court whereby he was ordered to pay, besides the decretal amount, an amount of Rs.5,00,000/- in light of an agreement between the parties---Contention of respondent was that the decree was passed on the basis of compromise between the parties and in the light of said agreement, it was agreed that if the petitioner, without any reason, would divorce the respondent, he would be bound to pay the said amount---Validity---Record revealed that the respondent was declared entitled to dower of Rs. 44,445/---Trial court had not declared that if the petitioner would divorce the respondent without any reason, she would be entitled to Rs.5,00,000/- in the light of said agreement---Executing Court had to execute the decree as it was and could not go beyond it---Executing court had travelled beyond the scope of the decree---Petition was accepted and the impugned order was set aside, in circumstances.

2016 YLR 1836 and 2017 CLC Note 101, p.113 ref.

Azad Jammu and Kashmir Board of Intermediate and Secondary Education, Mirpur through Chairperson and 3 others v. Abdul Qayyum Qamar PLD 2003 SC(AJ&K) 14 rel.

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

----S.47---Questions to be determined by the Court executing decree---Duty of executing court---Scope---Executing court has to execute the decree as it is and cannot go beyond it.

Azad Jammu and Kashmir Board of Intermediate and Secondary Education, Mirpur through Chairperson and 3 others v. Abdul Qayyum Qamar PLD 2003 SC(AJ&K) 14 rel.

Sardar Aamir Jamil for Petitioner.

2020 C L C 1691

[High Court (AJ&K)]

Before Chaudhary Khalid Yousaf, J

HALEEMA BIBI----Appellant

Versus

AZEEM and 2 others----Respondents

Family Appeal No.41 of 2019, decided on 29th April, 2020.

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5 & Sched.---Contract Act (IX of 1872), Ss.19 & 19-A---Suit for jactitation of marriage---Voidability of agreement of marriage without free consent---Power to set aside contract induced by undue influence---Scope---Plaintiff assailed order passed by Judge Family Court whereby her suit for jactitation of marriage was dismissed and the marriage was dissolved on the basis of khula---Validity---Plaintiff had, soon after the alleged nikah ceremony, went to the police station and lodged a compliant against her father and her alleged bridegroom, which strengthened the argument that her signature and thumb impression were taken with undue influence---Consent obtained by coercion or undue influence did not validate the marriage---Witnesses of the alleged nikah ceremony were not produced before the court---Appeal was accepted and the nikah was declared to be null and void.

(b) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S.5 & Sched.---Contract Act (IX of 1872), S.19---Marriage---Concept---Voidability of agreement without free consent---Scope---Marriage is a civil contract based on mutual consent on the part of a man and woman---Solemnization of marriage requires Ijab-o-kabul, that there should be a proposal made by or on behalf of one of the parties and an acceptance of the proposal by or on behalf of the other, in the presence of two male or one male and two female witnesses, as the case may be, who must be sane adult---Ijab-o-kabul should be without fear or undue influence or fraud---Marriage without a free consent of both the parties would not be legally valid---Consent obtained by coercion or undue influence from any of the parties would make the marriage invalid.

(c) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S.5 & Sched.---Contract Act (IX of 1872), S.19---Marriage---consent of woman---Necessity---Scope---Guardian of woman---Responsibility---Scope---Voidability of agreement without free consent---Scope---Guardians are enjoined by Islam to get their daughters married after getting their consent---Consent of a woman is necessary; she cannot be compelled to enter into a marriage contract without her free will and consent---If a girl is married to a person who is not of her choice and girl signs the nikahnama unwillingly by force or fear of her guardian, the same cannot be termed as valid marriage, because guardian's consent is no substitute for the girl's consent.

Malik Shahnawaz Khan for Appellant.

2020 C L C 1739

[High Court (AJ&K)]

Before Raza Ali Khan, J

The INHABITANTS OF VILLAGE AWAN PATTI CONSTITUENCY NO.6 TEHSIL AND DISTRICT MUZAFFARBAD, AZAD JAMMU AND KASHMIR ----Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Physical Planning and Housing and 7 others----Respondents

Writ Petition No.621 of 2020, decided on 23rd June, 2020.

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

----S. 44---Writ petition---Maintainability---Development scheme, up-gradation of---Authorities upgraded and shifted water supply scheme wherein village of petitioners was not included---Contention of petitioners was that authorities with mala fide intention had approved up-gradation of water supply scheme and petitioners had been deprived from the same on the basis of liking and disliking---Validity---Writ jurisdiction could only be invoked when an officer or authority by compulsion of statute was required to perform a duty---Petitioners must satisfy the Court that they had legal right to the performance of legal duty as distinct from mere discretion of the authorities---Authorities, while extending and upgrading the old scheme had launched a greater scheme for the benefit of public-at-large---Competent authority had prerogative to decide a technical matter and execute the same technically---Petitioners had failed to point out that decision of authorities was against any statutory provision of law---Petitioners had no locus standi to challenge the present water supply scheme, in circumstances---Court was not to interfere in administrative matters as administrative authorities were specialists in the matters relating to development projects---Court did not have expertise in such matters and should leave the said matters on the discretion of concerned authorities---Excessive interference by exercising writ jurisdiction in the function of Executive was not proper---Government had prerogative to launch a scheme and prepare its design---High Court in writ jurisdiction could not decide as to where a scheme should be launched---Writ jurisdiction could only be issued where any law, rules and policy of government had been violated or any fundamental right of state subject had been infringed---No vested right of petitioners had been infringed from the impugned action of the authorities---Authorities in the larger interest were directed to prepare and launch some scheme to facilitate the village of petitioners either by lifting the water or through any other mode---Writ petition being not maintainable was dismissed, in circumstances.

2017 SCR 236; 2019 SCR 703; 2005 SCR 259; 2016 SCR 696 and 2001 YLR 3367 ref.

2016 SCR 853 and Azad Government and others v. Muhammad Iqbal and others 2004 MLD 844 rel.

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

----S.44---Writ petition---Maintainability---Writ could only be issued where any law, rules and policy of government had been violated or any fundamental right of state subject had been infringed.

Raja Shujjat Ali Khan and Raja Tariq Bashir for Petitioners.

Raja Ayyaz Ahmed, A.A.G. and Ch. Ismail, Legal Advisor on behalf of Official Respondents.

2020 C L C 47

[Islamabad]

Before Miangul Hassan Auranbgzeb, J

KHALIDA BIBI----Petitioner

Versus

Mst. SHABNAM UN NISA and 12 others----Respondents

W.P. No. 4267 of 2016, decided on 26th July, 2019.

(a) Suit Valuation Act (VII of 1887)---

----S.3---Civil Procedure Code (V of 1908), O.I, R. 10---Value of the suit for purposes of Court fee and jurisdiction, question of--- Determination---Impleading as necessary party--- Petitioner filed application for impleading her as defendant in suit filed by plaintiffs for specific performance, declaration and permanent injunction on basis of an agreement to sell regarding plot in question---Application was dismissed by Trial Court but Lower Appellate Court allowed same and petitioner was impleaded as one of the defendants---Validity---Plaintiffs in their suit had pleaded that value of suit for purposes of court fee and jurisdiction was Rs. 70,000,000/- ---Valuation in said suit was far in excess of Rs. 25,000,000/- and same was more than pecuniary jurisdiction of the Lower Appellate Court---Ignorance of law could not be a valid defense and an order, judgment or decree passed by court without jurisdiction was nullity---Invalidity could be set up whenever and wherever it was sought to be enforced or relied upon even at stage of execution and even in collateral proceedings--- Defect of jurisdiction whether pecuniary or territorial or whether it was in respect of subject matter of action had to strike at very authority of court to pass any order, judgment or decree and such defect could not be cured even by consent of parties---High Court set aside order passed by Lower Appellate Court and restored that of Trial Court---Constitutional petition was allowed accordingly.

Park View Enclave (Pvt.) Ltd. v. Capital Development Authority 2018 CLC 947; Muhammad Ashraf 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; Muhammad Imran v. President Kasb Bank Ltd. and another 2014 CLC 561; Muhammad Ayub v. Obaidullah 1999 SCMR 394 and Major Muhammad Noman v. Usman Habib PLD 2019 Isl. 255 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Scope---Issue of laches is required to be considered with reference to fact of each case and no hard and fast rule can be laid down in such behalf.

S.A. Jameel v. Secretary to the Govt. of Punjab Cooperative Department 2005 SCMR 126 and Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883 rel.

Sardar Muhammad Aftab for Petitioner.

Sharafat Ali Chaudhry for Respondents Nos.1 to 3.

Muhammad Shoaib Chaudhry and Ch. Adil Javaid for Respondents Nos.4 to 10

Safdar Janjua for Respondent No.11.

2020 C L C 84

[Islamabad]

Before Miangul Hassan Aurangzeb, J

HASHMAT MEDICAL AND DENTAL COLLEGE----Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through President and others----Respondents

Writ Petition No.855 of 2018, decided on 21st March, 2018.

Pakistan Medical And Dental Council Ordinance (XXXII of 1962)---

----S.11---Constitution of Pakistan, Art. 199---Constitutional Petition---Recognition of medical institution and qualification---Scope---Petitioner/College, prayed for an interim relief of mandatory injunction to the University directing to conduct MBBS examination for students admitted in the college---Contention of petitioner was that on Pakistan Medical and Dental Council's website petitioner was shown as "Recognized, allowed to admit 100 MBBS students per year" and that there was nothing unlawful in admitting students---Council, inter alia, submitted that the recognition of a medical college by itself did not entitle the students admitted in such a college to be permitted to sit in an examination; that the affiliation of a medical college with a university had to be approved by the Council and that the admissions in petitioner college was stopped because an inspection of the college was resisted by its administration---Validity---Petitioner college was not able to obtain the marks required for the recognition of a medical college---Validity---Held, High Court could not direct the university to conduct the MBBS examination of the students admitted by the petitioner college---Petitioner college had made the admissions despite explicit warnings and cautions by the Council---High Court observed that conduct of the petitioner College did not deserve any interim relief----Application for grant of mandatory injunction was disposed of, accordingly.

Civil Appeals Nos.888 to 890 of 2015 distinguished.

Muhammad Ahsan Bhoon for Petitioner (in Writ Petition No.855 of 2018).

Qausain Faisal Mufti for Petitioner (in Writ Petition No.791 of 2018).

Dr. Babar Awan for Petitioner (in Writ Petition No.943 of 2018).

Dr. Waseem Hashmi, Registrar PM&DC.

Ms. Sara Rubab Nasir, Chief Legal Officer and Professor Dr. Salim Khattak, P.M.&D.C.

Sohail Safdar, Deputy Registrar, RIPHAH.

2020 C L C 131

[Islamabad]

Before Mohsin Akhtar Kayani, J

Dr. AQUEEL WARIS----Petitioner

Versus

IBRAHIM AQUEEL WARIS----Respondent

Writ Petition No.1475 of 2019, decided on 31st May, 2019.

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

----Ss. 5, Sched. & 17-A---Constitution of Pakistan, Arts. 4 & 10-A---Suit for recovery of maintenance allowance---Interim order---Interim maintenance, fixation of---Contention of petitioner-father was that interim maintenance fixed by the Family Court was exorbitant---Validity---Any such order in which financial capacity of father viz-a-viz his own expenses had not been considered properly then interim maintenance fixed by the Family Court would be unjust, perverse, harsh, excessive and fanciful---No appeal had been provided against the order of interim maintenance and in such a manner, father had been deprived of constitutional guarantee of equal protection of law---Order of higher maintenance in favour of minor would create financial problems for a father---When he would not be able to comply with the terms of the interlocutory order, his right to contest the suit on merit would close and would be knocked out by the court----Interlocutory orders of Family Court could not be assailed in constitutional jurisdiction---Father should not be punished by way of interim maintenance allowance---Interim maintenance fixed by the Family Court, in the present case, was exorbitant but High Court in constitutional jurisdiction would not determine the factual aspect of adequacy or inadequacy of said maintenance---Family Court was directed to decide the suit within the period of one month so that father could only be burdened with interim maintenance for one month which would be subsequently merged into final judgment---Constitutional petition was dismissed, in circumstances.

Surah Baqarah; Surah Talaq; Ali Adnan Dar v. Judge Family Court PLD 2016 Lah. 73; Amir Mehmood Hussain v. Niha Amir Syed 2011 MLD Lah. 1105; Tahir Ayub Khan v. Miss Alia Anwar 2015 YLR 2364; Minhaaj Saqib v. Najum ul Saqib and others 2018 CLC 506; Shameneh Haider and others v. Haider Ali Khan 2018 CLC Note 43; Tahir Ayub Khan v. Miss Alia Anwar 2015 YLR 2364; Ibrar Hussain v. Mehvish Rana and others PLD 2012 Lah. 420; Muhammad Shahbaz Khalid v. Judge Family Court, Lahore PLD 2013 Lah. 64 and Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447 rel.

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

----S.17-A---Interim maintenance, fixation of---Imperative duty of the Family Court to adopt a pragmatic approach and fix interim maintenance---Principles enumerated.

i. Financial status of father shall be kept in view, which should be based upon salary slips, bank statements, income tax record, and business income reflected on record or through any other documentary proof placed by either side in the Court.

ii. Interim maintenance should be fixed not on hard and fast principles, rather based upon a tentative view.

iii. Maintenance should not be fixed on a higher side, which may result into technical knockout of the father so that he could not able to pay the interim maintenance, therefore, his option should also be considered for payment of interim maintenance, which he agrees to pay before the Family Court.

iv. In cases, where father has not explained his monthly income or his financial status in the pleadings, rather concealed his income, the Family Court can rely upon the facts narrated in plaint or on the basis of attached documents vis-a-vis the needs of minor and the verbal stance given by father without reference to his written statement will not be considered justified, hence the Family Court shall exercise discretion to fix the interim maintenance while applying the above principles.

v. In cases, where determination of adequacy or inadequacy of quantum of maintenance requires factual inquiry and evidence in trial, the maintenance should be fixed after consultation with the father and mother as well as keeping in view the day-to-day requirements of minor.

vi. The needs of minor should be considered on the basis of social stratification of family in which minor has been brought up.

vii. The financial status of father could also be considered on the basis of facts narrated in pleadings of the parties, which includes the living standard and previous matrimonial life of the parties in which the mother/wife has been provided with particular kind of living, housing facilities, transportation, gifts, immovable properties of husband and the lifestyle in which husband/father was living prior to separation or divorce or before the institution of suit for maintenance.

viii. In cases, where father being civil servant or employee of any organization, department or company has not appended his salary slips or bank statements, the Family Court shall ask for an undertaking or affidavit regarding his salary and thereafter shall fix the interim maintenance, however after the trial of the case, if the court comes to the conclusion that at the time of fixation of interim maintenance allowance the father/husband has stated a fact beyond his pleadings or undertaking, which is found to be false, such father be burdened with heavy costs and action of perjury may also be initiated against him.

ix. The Family Court may also call the employer of father, HR department, admin department, bank managers, land revenue department, tax record, and banking details as well as salary details of the father directly from the relevant offices while deciding the question of interim maintenance for a prima facie view to fix the allowance in favour of minor so that no inadequacy is attributed while fixing the maintenance allowance. [p. 140] E

Asma Shabbir Malik for Petitioner.

Muhammad Farhan Ali Khokhar for Respondents Nos.1 and 2.

2020 C L C 173

[Islamabad]

Before Mohsin Akhtar Kayani and Aamer Farooq, JJ

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY, ISLAMABAD----Appellant

Versus

GUJRANWALA ENERGY (PVT.) LIMITED----Respondent

I.C.A. No.234 of 2016 in Writ Petition No. 2817 of 2014, decided on 18th April, 2019.

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

----Ss. 7(2)(g) & 47---National Electric Power Regulatory Authority (Fines) Rules, 2002, R. 5---National Electric Power Regulatory Authority (Review Procedure) Regulations, 2009, Regl. 3---Intra court appeal---Maintainability---Availability of review jurisdiction---Scope---National Electric Power Regulatory Authority ("Authority") assailed order of Single Judge of High Court whereby writ petition of respondent was allowed---Authority had initiated proceedings against the respondent through a show cause notice, which culminated into an order by the Authority---Review petition filed by respondent under R. 5 of National Electric Power Regulatory Authority (Fines) Rules, 2002 read with Regl. 3(2) of National Electric Power Regulatory Authority (Review Procedure) Regulations, 2009 was dismissed---Authority, in response to the objection regarding maintainability, argued that no power of review was provided to the Authority---Validity---One of the functions of the Authority under S.7(2)(g) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, was to review its order, decisions or determinations---Pursuant to S.47 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 various rules and regulations were framed by the Authority including the National Electric Power Regulatory Authority (Review Procedure) Regulations, 2009---Authority could, under Regl.3(1) of National Electric Power Regulatory Authority (Review Procedure) Regulations, 2009, at any time, on its own motion, review any order passed by it and in so reviewing modify, reverse or confirm the same---Likewise, under S.3(2) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, any party aggrieved from any order of the Authority and upon discovery of new and important matter of evidence or on account of some mistake or error apparent on the face of record or from any other sufficient reasons, could file motion seeking review of such order---Under R.5 of National Electric Power Regulatory Authority (Fines) Rules, 2002, any person upon whom fine had been imposed could file an application for review---Authority under National Electric Power Regulatory Authority (Review Procedure) Regulations, 2009 had suo motu power to review its decision, hence, it had remedy of review---Remedy of review was available to the Authority, hence, the appeal was not maintainable---Intra-court appeal was dismissed.

National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited PLD 2015 Lah. 661 distinguished.

Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another 2012 SCMR 114 ref.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 rel.

(b) Law Reforms Ordinance (XII of 1972)---

----S.3---Intra court appeal---Scope---Where remedy of appeal, revision or review is provided against original order, against which petition under Art. 199, Constitution has been filed, intra court appeal is not maintainable.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 rel.

(c) Law Reforms Ordinance (XII of 1972)---

----S.3---Intra court appeal---Maintainability---Scope---Section 3(2) of the Law Reform Ordinance, 1972 shows that it is not a requirement of law that any party aggrieved should have availed remedy of appeal, revision or review; it is sufficient that the prescribed law provides remedy of review, appeal or revision.

Asghar Khan and Faisal Atta for Appellant.

Omer Azad Mailk and Hamza Khokhar for Respondent.

2020 C L C 249

[Islamabad]

Before Miangul Hassan Aurangzeb, J

JAHANGIR HUSSAIN----Petitioner

Versus

NEGHAT REHMAN and others----Respondents

W.P. No.2171 of 2013, decided on 8th October, 2019.

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

----Ss. 17 & 2(g)---Eviction petition by co-owner---Maintainability---Personal bona fide need of one of the landlords---Effect---Petition for eviction by co-owner was dismissed by the Courts below without recording evidence---Validity---Co-owner of rented premises had right to file eviction petition---Mere execution of lease deed by one of the co-owners by itself did not deprive the remaining co-owners of their legal right which accrued through operation of law---Eviction petition by the co-owner who had not executed lease deed was maintainable---Personal bona fide need of one of the landlords could be a valid ground for filing eviction petition---Tenant was bound to pay rent to the landlords in proportion to their respective shares in the demised premises unless the landlords had authorized one amongst them or a third party/attorney to receive rent---Impugned orders passed by the Courts below were set aside and matter was remanded to the Rent Controller for decision in accordance with law---Constitutional petition was allowed, in circumstances.

Daood Khan v. Sultan Muhammad PLD 2019 Quetta 113; Bahadar Khan v. Abdul Khaliq 2018 MLD 298; Abdul Hussain Tehirally v. Additional District Judge 2016 CLC 1024; Dr. Masooma Hasan v. Muhammad Hafeez 2015 MLD 1755; Muhammad Esa Godil v. Mst. Sitara Jamil 2014 YLR 1901; Mst. Rehana Hafeez v. Muhammad Ali 2014 CLC 1242; Asmat Ullah v. Amanullah Khan 1991 MLD 20 and Ashiq Ali v. Naeem-ur-Rehman Tahir 1996 MLD 1131 rel.

Manzoor Hussain for Petitioner.

2020 C L C 427

[Islamabad]

Before Athar Minnallah C.J and Miangul Hassan Aurangzeb, J

Mst. TAHIRA NOOR and others----Appellants

Versus

SHAHID HUMAYUN and others----Respondents

R.F.A. No.199 of 2015, decided on 1st July, 2019.

(a) Benami transaction---

----Burden of proof---Document, proof of---Requirements---Contention of plaintiffs was that defendant was Benami owner of suit property---Suit was decreed by the Trial Court---Validity---Burden of proving that a particular sale was Benami and that purchaser was not the ostensible owner would be on the person who had asserted it to be so---Said burden would be discharged by adducing evidence of a definite character---Party alleging plea of Benami must prove that the purchase money was provided by the real owner and not by the ostensible owner--When suit property was purchased the plaintiffs were students and could not be expected to have the sources to make the purchase---Plaintiffs had not produced any documentary evidence in order to discharge their burden that their father had purchased the suit property---Title document of suit property had been issued on 31-03-1975 i.e. prior to enactment of Qanun-e-Shahadat, 1984 and only one attesting witness was sufficient to prove the execution of said document---Title document of suit property was in the possession of defendant---Motive for Benami transaction was ambiguous and vague---Impugned judgment and decree passed by Trial Court were set aside and suit was dismissed.

Chuttal Khan Chachar v. Mst. Shahid Rani and another 2009 CLC 324; Ghulam Murtaza v. Asia Bibi PLD 2010 SC 569; Bilqees Begum v. Registrar of Properties and another PLD 2006 Kar. 617; Mst. Alim Jan v. Sahib Jan 2014 YLR 385; Kaleem Hyder Zaidi v. Mehmooda Begum 2006 YLR 599; Muhammad Arif v. Haji Waheed-ul-Haq 2017 YLR 224; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool PLD 2008 SC 146; Zardullah Khan v. Mst. Ruqiyya Hanif Maniar 2014 YLR 1840; Wali Bhai through General Attorney v. District Judge, Hyderabad 2015 YLR 1714; Messrs Nagina Cotton Mills Ltd. v. Asif Dinnar 2013 YLR 839; Abdul Majeed v. Amir Muhammad 2005 SCMR 577; S.Abid Ali v. Syed Inayat Ali 2010 CLC 1633; Hameeda Begum v. Farzand Ali 2002 YLR 1311; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Province of the Punjab through Secretary Irrigation and Power Department P.W.D. v. Ch. Mehraj Din & Co. 2003 CLC 504; Muhammad Hussain v. Khushi Muhammad 2003 CLC 478; Syed Habib Mehmood v. Mst. Bilqees Fatima 1997 MLD 390; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool PLD 2008 SC 146; Sher Muhammad v. Muhammad Sharif PLD 1946 Lah. 117; S. Iqbal Ahmad through Legal Heirs v. Jawaid Iqbal 2011 CLC 29; Akram Moquim Ansari v. Mst. Asghari Begum PLD 1971 Kar. 763; Iqbal Ahmed Turabi v. The State PLD 2004 SC 830; Walayat Bibi alias Rani v. Liaqat Ali alias Fayaz Ahmad 2006 YLR 2466; Kamran Ahmed v. The State 2006 YLR 2470; Mst. Sabira Begum v. Hakim Muhammad Akhtar 1993 MLD 955; Abdul Majeed v. Amir Muhammad 2005 SCMR 577; Siraj Ahmed Nomani v. lftikhar Ahmed Nomani 2004 CLC 782; Mst. Muhammadi Begum v. S. Salahuddin Ahmad PLD 1992 Kar. 86; Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209; Dr. Muhammad Riaz Mirza v. Muhammad Yousaf Mirza 2005 YLR 2213; Syed Ansar Hussain v. Khawaja Muhammad Kaleem 2006 CLC 732; Aftab Nasir v. Mst. Fazal Bibi PLD 1965 (W.P.) Lah. 550 and Muhammad Ali v. Sakar Khanoo Bai PLD 1984 Kar. 97 ref.

Muhammad Amin v. Sardar Ali PLD 2006 SC 318; Mst. Rasheeda Begum v. Muhammad Yousaf 2002 SCMR 1089; Bilawal v. Abdul Razzak 1990 SCMR 1336; Muhammad Yasin v. Muhammad Latif 2016 CLC 553; Allah Dad v. Fazal Haq 2010 YLR 1766; Jain Khan v. Muhammad Zaman 2005 YLR 1456; Dr. Sadiq Hussain v. Mst. Maqbool Begum 2005 CLC 368 and Mst. Said Khoban v. Momin Khan 2003 CLC 78 rel.

(b) Pleadings---

----Party could not travel beyond its pleadings.

(c) Benami transaction---

----Determination---Guiding factors enumerated.

In order to determine whether a transaction is benami or not, the Courts are usually guided by the following factors:

(1) the source from which the purchase money came;

(2) the nature and possession of the property, after the purchase;

(3) motive if any, for giving the transaction a benami complexion;

(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;

(5) the custody of the title-deeds after the transaction; and

(6) the conduct of the parties concerned in dealing with the property after the sale.

(d) Benami transaction

----Burden to prove that a particular sale was benami---Principles.

The burden of proving that a particular sale is benami and that the apparent purchaser is not the real purchaser always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly raising an inference of that fact. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail.

Shaukat Rauf for Appellants.

Ms. Shahina Shahab-ud-Din for Respondents Nos.1 and 2.

Rizwan Shabbir Kayani for Respondent No.3.

2020 C L C 574

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD IMRAN BASHIR MALIK----Petitioner

versus

AMERA KHAN and 2 others----Respondents

Writ Petition No.2721 of 2019, decided on 20th September, 2019.

Civil Procedure Code (V of 1908)---

----S. 115 & O. VII, R. 2---Money suit---Execution petition----Suo motu revisional jurisdiction---Scope---Suo motu order for expeditious disposal of execution petition by District Judge---Validity---Decree holder approached District Judge who passed direction under S. 115, C.P.C. for expeditious disposal of execution petition---Validity---Jurisdiction to be exercised under S. 115, C.P.C. was of supervisory nature---Jurisdiction of District Court under S. 115, C.P.C. in a matter was to the extent of Rs.25,00,000/---Such jurisdiction could be exercised on an application made by any person or even suo motu, subject to pecuniary jurisdiction of the Court in a case decidedwhere no appeal was provided---Suo motu revisional jurisdiction could only be exercised where matter was pending before the Court and some illegality or jurisdictional error had come to the notice of the Court---No application in the present matter had been filed nor any illegality or jurisdictional error had been brought before the District Judge---District Court was not competent to pass the impugned order as valuation of suit was beyond its pecuniary jurisdiction---District Court or even High Court had no inherit or suo moto power to issue direction or pass order when no lis was pending before it---District Court had supervisory and administrative control but that was only to the limited extent---Once judgment and decree was passed and execution petition was filed then Executing Court was to proceed in accordance with law and was not to wait for judgment debtor to file an appeal---When execution proceedings were stayed or any other injunctive order was passed by the Appellate Court then Executing Court was to obey the said order---Impugned order passed by the Court below was set aside---Constitutional petition was allowed, in circumstances. [

Hafeez Ahmad and others v. Civil Judge, Lahore PLD 2012 SC 400 and Major Muhammad Nouman v. Usman Habib PLD 2019 Isl. 255 rel.

Khurram Mahmood Qureshi for Petitioner.

2020 C L C 608

[Islamabad]

Before Athar Minnallah, CJ and Miangul Hassan Aurangzeb, J

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

Versus

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

F.A.O. No.81 of 2018, decided on 11th December, 2019.

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

----Ss.14, 17, 26-A, 30, 33 & 39---Arbitration award, setting aside of---Making award rule of court--- Principle of estoppel---Applicability---Parties entered into contract for renovation of motorway roads with provision of bonus for early completion of contract---Appellant assailed order passed by sole arbitrator for award of bonus for early completion of contract whereas respondent did not file any objection against award---Validity---Even though arbitrator had reduced claim of respondent for early completion bonus, respondent had not filed any objections to the award---Mere fact that respondent filed application under Ss. 14 and 17 of Arbitration Act, 1940, implied that respondent accepted the award---Issue regarding claim of respondent for early completion on basis of having completed works prior to revised/extended contract completion date had become immaterial---Appellant had filed objections to award even though it had not challenged determination of Engineer whereby respondent was held entitled to an early completion bonus---Appellant could have challenged determination of Engineer but it had not done so---Having not challenged such determination, appellant was estopped from objecting to award which was absolutely in conformity with determination of Engineer---High Court declined to interfere in the order and award passed by forums below---Appeal was dismissed in circumstances.

2017 CLC Note 44; 2013 CLD 1483; 2005 YLR 2709; 2004 SCMR 590; PLD 2003 SC 301; 1994 MLD 2348; 1987 CLC 383 and PLD 1982 Kar. 260 ref.

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

----Ss.30 & 33---Objection to award---Scope---Objections to an award and more so an appeal against an order to make an award a rule of court, cannot be heard like an appeal from an award.

PLD 1996 SC 108; Federation of Pakistan v. Joint Venture Kocks K.G./RIST PLD 2011 SC 506 and Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1984 SCMR 597 rel.

Ali Nawaz Kharal for Appellant.

Babar Ali Khan for Respondent No.1.

2020 C L C 653

[Islamabad]

Before Miangul Hassan Aurangzeb, J

S.M. TARIQ KHAWAJA----Petitioner

Versus

REGISTRAR COOPERATIVE SOCIETIES, ISLAMABAD and 3 others----Respondents

Writ Petition No.4199 of 2017, decided on 17th December, 2018.

(a) Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 59---Constitution of Pakistan, Art. 199--- Constitutional petition---Execution of order---Possession of property, non-transfer of---Petitioner was member of Housing Society and was owner of three plots---Petitioner was aggrieved of non-transfer of physical possession of the plots by the Housing Society, despite order passed by nominee of Registrar Cooperative Societies---Validity---Petitioner had filed application under S.54 of Co-operative Societies Act, 1925 and almost five years had passed since he was striving for his right to gain possession of the plots owned by him---Housing Society instead of facilitating the petitioner in gaining possession of his owned plots was creating hurdles in his way---Endeavors of petitioner were successful when nominee of Registrar allowed application under S.54 of Co-operative Societies Act, 1925, of petitioner and directed the Housing Society to hand over possession of his plots---Appeal filed by Housing Society against order of the nominee of Registrar was dismissed and the original order had attained finality for all intents and purposes--- High Court imposed costs throughout upon the Housing Society for its conduct---Constitutional petition was allowed in circumstances.

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

----O.XXI, R.1---Execution of decree---Duty of court---Executing forum/court cannot go behind decree/order which is to be executed.

Ghulam Fareed Chaudhry for Petitioner.

Naseem Ahmad Shah for Respondents Nos.1 and 2.

Babar Saeed Butt for Respondents Nos.3 and 4.

2020 C L C 675

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NAUMAN AZHAR----Appellant

Versus

CELVAS PRIVATE LIMITED through Authorized Officer and others----Respondents

F.A.O. No.172 of 2019, decided on 21st November, 2019.

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

----O. XXXIX, Rr. 1 & 2 & O. XLIII, R. 1(r)--- Limitation Act (IX of 1908), Art. 156--- Appeal against interim injunction--- Limitation--- Limitation period for filing an appeal against order passed under O.XXXIX, Rr. 1 and 2, C.P.C. is ninety days.

2015 YLR 209 and 2010 MLD 1578 ref.

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

----O. XXXIX, Rr. 1 & 2 & O. XLIII, R. 1--- Suit for declaration, injunction and damages---Interim injunction---Quantifiable loss---Defendant was aggrieved of interim injunction granted in favor of plaintiff---Plea raised by defendant was that loss caused to plaintiff could be remedied in terms of money therefore, interim injunction could not have been granted---Validity---If loss of plaintiff was measurable in terms of money, injunction could not be granted---Mandate of S.56(i) of Specific Relief Act, 1877 was that no injunction should be granted when equally efficacious relief could be obtained by any other usual mode of proceedings--- Since plaintiffs had sought recovery of a quantified amount in their suit against defendant and since loss caused to plaintiffs by breach of oral agreement could be measured in terms of money, question of any irreparable loss to plaintiffs did not arise---Existence of all three ingredients, i.e., irreparable loss; balance of convenience and strong prima facie arguable case were necessary, for a court to grant interim injunction---High Court set aside orders passed by Trial court as essential element of irreparable loss to plaintiffs was lacking---Appeal was allowed in circumstances. [pp. 679, 680] B & C

Mehran Sugar Mills v. Sindh Sugar Corporation Limited 1995 CLC 707; Qasimabad Enterprises v. Province of Sindh 1998 CLC 441; I. Puri Terminals Limited v. Port Qasim Authority 2003 CLD 153; Muhammad Hussain Khan v. N.I.B. Bank Limited 2009 CLD 42; Ghulam Nabi Shah v. Pakistan International Airline Corporation 2013 PLC C.S. 768; Muhammad Kashan v. Coca Cola Export Corporation 2015 CLD 1513; Ghulam Nabi v. Seth Muhamamd Yaqoob PLD 1983 SC 344; Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092; Imtiaz Ali Khan Babar v. Federation of Pakistan 2018 CLD 80; Muhammad Aslam v. Muhammad Khan 1999 SCMR 2267; Muhammad Yousaf v. Ch. Tajammal Hussain 2019 CLC Note 38; Ghulam Muhammad v. Ashiq Hussain 2018 MLD 1449 ref.

Imran Feroze Malik for Appellant.

Barrister Raja Jibran Tariq Ali for Respondents Nos.1 and 2.

2020 C L C 731

[Islamabad]

Before Mohsin Akhtar Kayani, J

MARKET COMMITTEE, ISLAMABAD CAPITAL TERRITORY (ICT) through Chairman----Petitioner

Versus

METROPOLITAN CORPORATION ISLAMABAD and 10 others--- Respondents

Writ Petition No.1406 of 2017, decided on 3rd July, 2019.

(a) Islamabad Capital Territory Agricultural Produce Markets Ordinance (CXVIII of 2002)---

----S.4(3)---Phrase 'no local authority notwithstanding anything contained in any other law'---Scope---Legislature has used the phrase 'no local authority notwithstanding anything contained in any other law', which refers mandatory concept and exclusive authority to Market Committee under Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002, to perform all functions in notified market area, to establish or use any place for purchase or sale of agriculture produce or set up for such purpose---No other authority is vested with any such function in notified area.

(b) Islamabad Capital Territory Agricultural Produce Markets Ordinance (CXVIII of 2002)---

----Ss.7, 21 & 36---Market Committee---Federal Government, role of---Market Committee is subordinate to Federal Government--- No specific power is available under Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002, for levy of any tax, charge or fee at their own in notified area---Market Committee is dependent on the directions of government for each and every function need to be performed---Market Committee for its management and control is not independent, rather is dependent as a subordinate establishment to perform function enumerated in Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002.

(c) Islamabad Capital Territory Agricultural Produce Markets Ordinance (CXVIII of 2002)---

----Ss.2 (a) (j), 7 & 21---Islamabad Capital Territory Local Government Act (X of 2015), Ss.2 (t), 92, 93 & 94---Capital Development Authority Ordinance (XXIII of 1960), Ss.6, 11, 15-A, 49-C---Market Committee---Powers---In the present case, dispute was with regard to regulating and control of Weekly Bazars established in different sectors in Islamabad Capital Territory---Market Committee claimed that Capital Development Authority had no authority to have control over such Bazars---Validity---If market was established by Market Committee under Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002, only then the provisions of Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002, could be applied in that market area---Market Committee constituted under Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002, could establish its own market independently and could regulate sale and purchase of agricultural produce within that market as the Committee had no jurisdiction to enter into any other area which was being regulated by Union Councils, Municipal Corporation or Capital Development Authority---Any agricultural produce under Islamabad Capital Territory Agricultural Produce Markets Ordinance, 2002, when exited from the notified market (established by Market Committee) and was shifted to other markets, shops, bazar, weekly bazar or any other bazar notified by Municipal Corporation Islamabad or Union Councils, as the case could be, its pricing factor could only be monitored under Islamabad Capital Territory Local Government Act, 2015 by Municipal Corporation Islamabad under its regime---Union Councils could charge any levy or tax on any market or sale of animals or cattle in market as it fell within the domain of Metropolitan Corporation Islamabad---Union Councils within their territorial jurisdiction could impose taxes or charge fee only authorized / notified by government in official gazette and they were not authorized to give open tender at their own or collect any sale proceeds by auction of any of the rights in Union Councils territory for establishment of any market---After establishment of Municipal Corporation Islamabad under Islamabad Capital Territory Local Government Act, 2015, municipal functions previously controlled by Capital Development Authority stood transferred by efflux of law to Municipal Corporation Islamabad and by overlapping jurisdiction for such specific trades / licences fell within the administrative control of Municipal Corporation Islamabad---Capital Development Authority could not issue any such license or perform such functions nor could regulate in future any license earlier issued prior to promulgation of Islamabad Capital Territory Local Government Act, 2015---Constitutional petition was dismissed in circumstances.

(Suo Motu Case No.13/2019) PLD 2011 SC 619; Muhammad Ikhlaq Memon v. CDA 2015 SCMR 294; Syed Mushahid Shah v. Federal Investment Agency and others 2017 SCMR 1218; FECHS v. DG FIA, Islamabad 2019 CLC 347; FGEHF v. Malik Ghuma Mustafa PLD 2019 Isl. 1; References by Judge Special Court-II (CNS) 2006 PCr.LJ 921; Muhammad Saleem v. The State 2002 PCr.LJ 216; IG of Police, Punjab v. Mushtaq Ahmad Warraich PLD 1985 SC 159; Packages Limited v. Muhammad Maqbool PLD 1991 SC 258; Muhammad Mohsin Ghuman v. Government of Punjab 2013 SCMR 85; Muhammad Sheraz v. Chief Secretary, Government of KPK PLD 2014 Pesh. 170; Abdul Samad v. Iqbal Ahmad Khan Lodhi, PCS District Tribunal, Lahore PLD 1972 Lah. 41; Mumtaz Ali Khan Rajban v. Federation of Pakistan PLD 2001 SC 169; Khudai Dad v. The State PLD 1997 Quetta 69; Kohinoor Sugar Mills v. Market Committee Jauharabad, District Sargodha PLD 1976 Lah. 1284; Hyesons Sugar Mills Ltd. Karachi v. Market Committee Khanpur PLD 1976 Lah. 1334; Noor Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Market Committee Kundian v. Town Committee, Khudian 1992 SCMR 1403 ref.

Abdul Wahid Qureshi for Petitioner.

Raja M. Aftab Ahmed, AAG.

Amir Latif Gill for Respondents Nos.1 to 4 (MCI/CDA).

Naseem Ahmad Shah and Aman Ullah for Respondents Nos.6 and 9 G.M. Mehdi, Law Officer, DMA.

2020 C L C 760

[Islamabad]

Before Miangul Hassan Aurangzeb, J

The IMPERIAL ELECTRIC COMPANY (PRIVATE) LIMITED through Chief Financial Officer----Petitioner

Versus

Messrs ZHONGXING TELECOM PAKISTAN (PRIVATE) LIMITED through Chief Executive and 2 others----Respondents

Civil Revision No.224 of 2018, decided on 9th December, 2019.

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

----Ss.11, 12 & 34---Arbitrator, removal of---Trial Court stayed proceedings of the suit and referred the matter to arbitrator---Plaintiff sought removal of arbitrator as he had refused to adjudicate upon the dispute---Trial Court dismissed the application filed by plaintiff---Validity---Willingness of arbitrator to enter upon reference and to adjudicate upon contractual duties between parties to reference was sine qua non for arbitration proceedings---Responsibility to sit as an arbitrator could not be thrust on a person unwilling or not having sufficient time to discharge responsibility of arbitrator---Arbitrator had failed to use all reasonable dispatch in entering on reference, requirement in S.11(1) of Arbitration Act, 1940 to remove him was satisfied---Petitioner had moved application under S.12(1) of Arbitration Act, 1940 before the Trial Court; S.12(1) provided inter alia that where the Court removed one or more arbitrators the Court could on the application of any party to the arbitration agreement, appoint persons to fill the vacancies---Disputes between parties could be referred to sole arbitrator appointed with consent of parties---Since parties could not concur on appointment of arbitrator, High Court while deciding revision against order of Trial Court refusing to remove arbitrator, had jurisdiction not to just remove named arbitrator who refused to enter upon reference but could also appoint an arbitrator in his place---High Court set aside order passed by Trial Court and appointed new sole arbitrator after removing previous arbitrator for not entering on reference by failing to use all reasonable dispatch---Revision was allowed accordingly.

Province of East Pakistan v. Abdur Rashid 1970 SCMR 319; Union of India v. Prafulla Kumar Sanyal 1979 3 SCC 631 and Messrs Guru Nanak Foundation v. Messrs Rattan Singh and Sons AIR 1981 SC 2075 rel.

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

----Preamble---Object, purpose and scope of Arbitration Act, 1940---Provisions of Arbitration Act, 1940 were to be interpreted in such a manner as to achieve essential objective of speedy adjudication through a domestic forum---Very purpose of Arbitration Act, 1940 is to achieve adjudication within a short time by avoiding time consuming procedure in civil courts---Policy of law is that arbitration proceedings not to be unduly prolonged.

Ms. Habiba Alvi for Petitioner.

Muhammad Shakeel Awan and Raza Ullah Khan Niazi for Respondent No.1.

2020 C L C 839

[Islamabad]

Before Aamer Farooq, J

ABDUL GHAFFAR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary

and 3 others----Respondents

Writ Petition No.4715 of 2018, decided on 31st of January, 2020.

(a) Constitution of Pakistan---

----Arts. 175 & 199---Constitutional jurisdiction---Islamabad High Court---Territorial jurisdiction---Scope---Jurisdiction of Islamabad High Court under Art. 199 of the Constitution is extended to any person carrying on affairs of Federation, a Province or a Local Authority within territorial jurisdiction of court---Jurisdiction of Islamabad High Court is somewhat different from other four provincial High Courts inasmuch as jurisdiction of provincial High Courts is extended to the extent of Federation, a Province and Local Authority---Islamabad Capital Territory is not a province but has special status of Federal Capital and jurisdiction of Islamabad High Court extends to Federation, affairs of Islamabad Capital Territory and Local Authorities.

Lt.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 fol.

(b) Elections Act (XXXIII of 2017)---

----Ss. 167 & 173---Constitution of Pakistan, Arts. 62(1)(f) & 199---Constitutional petition---Quo warranto, writ of---Disqualification of candidate---Mis-statement---Concurrent jurisdiction---Petitioner was voter and had sought disqualification of respondent who was notified as Member of Provincial Assembly---Plea raised by petitioner was that he made mis-declaration regarding his educational qualification--- Validity---Conduct of elections under the Constitution was sole responsibility of Election Commission of Pakistan hence all elections were conducted by such Constitutional body--- Election Commission of Pakistan as Constitutional body fell within the definition of "person carrying on affairs of Federation" for the purposes of Art. 199 of Constitution---Election Commission of Pakistan had its principal establishment at Islamabad with regional offices in four Provinces---Notification of a returned candidate was issued by principal office of Election Commission of Pakistan and record as well as affairs of all elected representatives whether of parliament (National Assembly and Senate) or provincial assemblies were regulated by Election Commission of Pakistan from Islamabad--- Islamabad Capital Territory in such matters had concurrent jurisdiction with provincial High Court--- High Court declared respondent as disqualified from holding position of Member Provincial Assembly under Art. 62(1)(f) of Constitution, as he wrongfully mentioned his qualification as Bachelors of Business Administration and made false declaration--- High Court directed Election Commission of Pakistan to de-notify respondent as successful candidate---Constitutional petition was allowed in circumstances.

Sher Baz Khan Gaadhi v. Muhammad Ramzan and others 2018 SCMR 1952 and Suo Motu Case No.8 of 2018 PLD 2019 SC 201 rel.

Muhammad Usman Dar v. Khawaja Muhammad Asif and others PLD 2018 Isl. 214; Khawaja Muhammad Asif v. Muhammad Usman Dar and others 2018 SCMR 2128 and Lt.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 ref.

Muhammad Sarwar Chaudhary for Petitioners.

Sana Ullah Zahid for Respondent No.1.

Ms. Kulsum Khaliq for Respondent No.4.

2020 C L C 879

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SANA AIZAD and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE VII/GUARDIAN APPELLATE COURT, ISLAMABAD-WEST and others----Respondents

W.P. No.744 of 2019, decided on 24th July, 2019.

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

----S. 25---Custody of minor---Clausula rebus sic stantibus, doctrine of---Applicability---Mother moved application for custody of minor son wherein compromise was effected that she would take the minor alongwith her to the United Kingdom---Application for visa of minor was rejected and mother proceeded abroad without the minor son---Petitioner being mother of minor filed application for appointment of guardian whereas respondent (father) moved application for custody of minor---Petition of mother was dismissed whereas that of father was accepted concurrently---Validity---Petitioner mother was in the United Kingdom whereas minor was in the custody of his maternal grandparents---Application of minor for visa to the United Kingdom had been turned down---Father was justified in seeking minor's custody, in circumstances---Contract or treaty between the parties had become inapplicable because of a fundamental change of circumstances---Doctrine of clausula rebus sic stantibus was applicable in the case---No advantage could be taken by the petitioner mother from the statement of father agreeing before the Guardian Court that minor's custody should remain with her---Impugned judgments passed by the Courts below granting custody of minor to his father did not suffer from any irregularity---Guardian Court had fixed an adequate visitation schedule of minor---Declaration of Guardian Court that petitioner mother would not be entitled for permanent custody of minor in case of her return to Pakistan was not justified, which was set aside---Constitutional petition was disposed of, in circumstances.

Mst. Zahida Kiani and another v. Capt. (Rtd.) Shahid Ali Khan 1993 SCMR 2303; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Ghulam Mustafa v. Shamim Akhtar and 2 others 2017 YLR Note 45 and Ganj Bibi v. Muhammad Younas and another 2011 CLC 1062 ref.

Mujtaba Haider Sherazi for Petitioners.

Ms. Jamila J. Aslam, for Respondent No.3.

2020 C L C 907

[Islamabad]

Before Aamer Farooq and Fiaz Ahmed Anjum Jandran, J

Messrs DJM SECURITIES (PVT.) LTD. through Chief Executive----Appellant

Versus

Messrs MUHAMMAD AHMED NADEEM SECURITIES (SMC (PVT.)) LTD. through Managing Director and 3 others----Respondents

F.A.O. No.01 of 2011, decided on 21st January, 2020.

Civil Procedure Code (V of 1908)---

----Ss.19, 20 & O.VII, R.11 ---- Institution of suit---Territorial jurisdiction --- Suit for compensation of wrong done to be instituted at local limits of the jurisdiction of one Court ----Scope---Question before High Court was whether suit for recovery and permanent injunction filed by customer against Stock Exchange Broker was liable to rejected as the same was filed in Civil Court at place "I" whereas the defendant and plaintiff were both based in place "K" ---- Held, that parties and cause of action accrued pertained to place "K" --- Main relief for recovery of amount attracted Ss. 19 and 20 of C.P.C. where parameters for determination of jurisdiction of Civil Court in such suits were laid down and per which the same where to be instituted were defendants resided or cause of action arose ---- Suit filed at place "I" was therefore liable to be rejected under O. VII, R. 11, C.P.C. --- Appeal was allowed, accordingly.

Province of Punjab through Secretary to Government of Punjab, Communication and Works Department, Lahore and another v. Messrs Muhammad Turfail and Company through Muhammad Tufail (deceased) through Legal Heirs PLD 2017 SC 53 rel.

Syed Asad Ali Saeed for Appellant.

Fazli Raziq Janjua for Respondent No.1.

2020 C L C 917

[Islamabad]

Before Miangul Hassan Aurangzeb, J

WAZIR KHAN----Petitioner

Versus

NAZAR JAFFAR and others----Respondents

Civil Revision No.195 of 2019, decided on 12th December, 2019.

Civil Procedure Code (V of 1908)---

----S. 115---Revision, filing of---Requirements---Petitioner had not filed with the revision petition documents which were part of the record before the Trial Court---Revision petition was liable to be dismissed on such sole ground---Office of the Court was directed not to entertain revision petition without a certificate from the petitioner or his counsel that the requirements of S. 115, C.P.C. had been complied with by furnishing copies of pleadings, documents and orders of the Court below along with revision petition---Revision being not maintainable was dismissed, in circumstances.

Mst. Banori v. Jilani PLD 2010 SC 1186; Arshad Ahmad alias M. Arshad and others v. Muhammad Yar and others PLD 2012 Lah. 483 and Muhammad Yousaf v. Fazal Ellahi 2017 MLD 1997 rel.

Sher Afzal Khan Marwat for Petitioner.

Messrs Riasat Ali Azad and Muhammad Bilal Mughal for Respondent No.1.

2020 C L C 1021

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD AYUB----Petitioner

Versus

MUZAFFAR KHAN (Deceased) and 5 others----Respondents

W.P. No.418 of 2016, decided on 13th December, 2019.

Civil Procedure Code (V of 1908)---

----S.92---Object of S.92, C.P.C.---Trust property----Suit for restoration of possession of immovable property---Requirements---Consent of Advocate General to file suit---Suit was dismissed concurrently on the ground that permission of Advocate General had not been obtained before filing the same---Validity---Defendants were not owners of suit property but only its administrators---Court, in the present suit, was only to determine whether plaintiff was in possession of the suit property before he was dispossessed from the same by the defendants---Court could not determine question of title, right or legal character in the present suit---Dismissal of suit for possession did not debar plaintiff from filing a suit for declaration as to his ownership with regard to suit property---Suit under S.92, C.P.C. was of a special nature which presupposed the existence of a public trust of religious or charitable character---Object of S.92, C.P.C. was to protect a public trust of a charitable and religious nature from being subjected to harassment by suits filed against it---When plaintiffs did not sue to vindicate the right of public but seek a declaration for their individual or personal right then S. 92, C.P.C. had no application---Where suit was with regard to waqf property then same could be dismissed on the sole ground that consent of Advocate General under S.92, C.P.C. had not been obtained prior to filing the suit---If suit property was not waqf property or relief prayed for did not fall within the scope of S.92, C.P.C. then consent of Advocate General for filing the suit was not necessary---Suit with regard to waqf property could proceed only on the allegations that there was breach of trust or that directions from the Court were necessary for the administration of the trust---Plaintiff, in the present suit, had not sued to vindicate the rights of the public nor same had been filed in the representative capacity---Plaintiff had filed the suit for possession for a personal relief and it could not be held to have been under S.92, C.P.C.---Restoration of possession was not one of the reliefs for which permission of Advocate General as contemplated under S.92, C.P.C. was required---Courts below had erred by dismissing the present suit on the ground that consent of Advocate General had not been obtained before filing the same---Nothing was on record that plaintiff was in possession on the suit property and defendants had forcibly dispossessed him---Courts below had not committed any jurisdictional irregularity while dismissing the present suit---Constitutional petition was dismissed, in circumstances.

PLD 1989 SC 282; Mst. Majeedan v. Muhammad Naseem 2001 SCMR 345; Canal View Cooperative Housing Society v. Javed Iqbal PLD 2004 SC 20; Debendra Mohan Das v. Muhammad Afrazuddin PLD 1965 Dacca 269; Abdul Aziz v. Dolat Bibi PLD 1973 Lah. 125; Muhammad Rafique v. Muhammad 1989 CLC 1318; Zahir Hussain v. Bashir Muhammad 2012 CLC 377; Tehseen Asghar v. Additional District Judge, Burewala 2018 MLD 617 and Amina Welfare Trust (Regd.) v. Ashfaq Ahmad Qureshi PLD 2016 Lah. 460 rel.

Imran Ali Kayani for Petitioner.

Naseer Anjum Awan for Respondent No.4.

2020 C L C 1119

[Islamabad]

Before Aamer Farooq, J

Syed ALTAF HUSSAIN SHAH and others----Petitioners

Versus

MULTI PROFESSIONAL COOPERATIVE HOUSING SOCIETY through General Secretary and 4 others----Respondents

C.R. No.204 of 2014, decided on 20th December, 2019.

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

----S.12(2)---Application under S.12(2), C.P.C.---Locus standi---Application under S. 12(2), C.P.C. can be filed by a person, who is aggrieved and such person need not be a judgment debtor or a party to proceedings.

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

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.12(2), C.P.C.---Limitation---No specific period of limitation is provided for filing of an application under S. 12(2), C.P.C. and as a result thereof, Art. 181 of Limitation Act, 1908 is applicable--- Application under S. 12(2), C.P.C. can be filed within three years of date of order/judgment and decree.

Sarfraz v. Muhammad Aslam Khan and another (2001 SCMR 1062 rel.

(c) Punjab Pre-emption Act (I of 1913)---

----S.4---Civil Procedure Code (V of 1908), S.12(2)---Limitation Act (IX of 1908), Art. 181---Suit for pre-emption---Application under S.12(2), C.P.C.---Limitation---Predecessor-in-interest of petitioners filed suit for possession through pre-emption which was decreed by Trial court in his favor in year 1987--- Respondents filed application under S.12(2), C.P.C. and same resulted into setting aside of judgment and decree passed by Trial Court--- Plea raised by petitioners was that they were entitled to judgment and decree under Islamic Law of Preemption---Validity---Judgment and decree was passed by Lower Appellate Court on 11-10-1987 and agreement to sell was entered into between petitioners and respondent in 1995, hence respondent was well-aware of their title acquired by petitioners on basis of judgment and decree which was void and nullity--- Since at that time, respondent was beneficiary of such judgment and decree, hence it decided to remain silent but when transaction was investigated and petitioners were made to return amount of sale consideration received from respondent, latter decided to challenge judgment and decree in favour of predecessor-of-interest of petitioners--- Application under S. 12(2), C.P.C. filed by respondent was barred by limitation and even same was filed with deliberate delay of considerable time--- Judgment and decree passed by Trial court on 11-10-1987 was not tenable as plea on behalf of petitioners that they were entitled to judgment and decree under Islamic Law of Preemption was without substance---Predecessors-of-interest of petitioners specifically pleaded case and led evidence in light of Punjab Preemption Act, 1913 and not Islamic Law---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as no jurisdictional error or illegality was committed---Revision was dismissed in circumstances.

Umar Din and another v. Muhammad Sadiq Hussain and 15 others 1993 SCMR 1089; Government of NWFP through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah. 942 rel.

Sher Baz Khan and others v. Additional District Judge and 3 others 2016 YLR 452; Mehr Moman Khan v. Ghulam Abbas and 3 others 2001 SCMR 1979; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062; Darvesh Ali v. Munir Khan and others 2001 CLC 1431; Mst. Zaira Khatoon v. Mst. Kishwar Jamal 2009 MLD 67; Ghulam Hamdani v. Muhammad Iqbal and 9 others 1991 SCMR 1668 and Allah Ditta v. Mst. Khurshid Bibi 1995 SCMR 1203 ref.

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

----S.151---Inherent powers of court---Scope---Court in order to secure ends of justice can correct a mistake or set aside an order based on illegality under S. 151, C.P.C.

Cotton Export Corporation of Pakistan (Pvt.) Ltd. Karachi v. Messrs Awami Cotton Ginners and 7 others PLD 1995 Kar. 282; Muhammad Sadiq and others v. Ali Asghar Khan and others 1995 CLC 1529; Muhammad Shibli Khan v. IU Khan, Member Board of Revenue and another PLD 1976 Lah. 269; Aquil Lotia v. Daily Ausaf Karachi through Chief Editor and another PLD 2007 Kar. 594 and Saif-ud-Din v. Zain-ud-Din PLD 1973 Kar. 210 rel.

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

----S. 115---Revision---Suo motu powers of High Court---Scope---High Court in exercise of powers under S. 115, C.P.C. has suo motu powers to correct any wrong or illegality when same comes to its notice.

Major Muhammad Nouman v. Usman Habib and others PLD 2019 Isl. 255 rel.

Muhammad Munir Peracha, Nauman Munir Peracha and Shakil-ur-Rehman for Petitioners.

Wajid Hussain Mughal for Respondents.

2020 C L C 1138

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD SALEEM NAWAZ MALIK----Petitioner

Versus

HIGHER EDUCATION COMMISSION and another----Respondents

Civil Revision No.04 of 2020, decided on 19th February, 2020.

Contract Act (IX of 1872)---

----Ss.128 & 127---Contracts of guarantee---Surety's liability---Principal, if it failed to fulfill obligations under a contract, then principal's surety stepped into shoes of such principal and as such, such surety was responsible as the principal---Guarantor could not resort to technicalities to defeat claim of a creditor.

Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72; Messrs Huffaz Seamlen Pipe Industries and 2 others v. Messrs Security Leasing Corporation Ltd. 2002 SCMR 1419 and Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others 2006 CLD 687 rel.

Shahid Kamal Khan for Petitioner.

Binyamin Abbasi for Respondent No.1.

Riasat Ali Azad for Respondent No.2.

2020 C L C 1181

[Islamabad]

Before Faiz Ahmad Anjum Jandran, J

SHEHZADI FATIMA ALI----Applicant

Versus

NADIA ASGHAR and 2 others----Respondents

Civil Revision No.06 of 2020, decided on 30th January, 2020.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of case---Scope---Allegation of bias in trial judge---Application filed by petitioner/defendant for transfer of suit was dismissed---Validity---Transfer of the case was sought on the ground of biasness of trial judge---Testing the case on the above touchstone, it did not fall in any of the categories of bias as laid down in Pakistan Newspaper Society v. Federation of Pakistan PLD 2012 SC 1---Case could not be transferred as a matter of routine or at the whims of the parties---Administration of justice required that litigant should have confidence in the judicial system---Application could be filed for transfer of a case when a party had sufficient reasons, grounds and evidence in his/her possession regarding pecuniary interest, bias of judicial officer, such elements were not available in the present case---Allegations levelled revealed that no substantial evidence had been attached/annexed along with the application for transfer of the case---Most of the allegations were of vague and evasive nature having no substance---Apprehension of not getting justice from the hands of the Court could not be a ground for transfer of case---One had to prove bias through trustworthy evidence---Revision petition was dismissed accordingly.

General (R.) Pervez Musharaf v. Nadeem Ahmad, Advocate and another PLD 2014 SC 585; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Reayat Khan another v. Nadir Khan and another 2016 YLR Note 89 and Liaqat Ali v. Ghulam Huassan and 4 others 2013 MLD 454 ref.

Zafar Iqbal v. Manzoor Hussain 1994 CLC 886 rel.

Petitioner in person.

2020 C L C 1219

[Islamabad]

Before Mohsin Akhtar Kayani, J

CAPITAL DEVELOPMENT AUTHORITY (CDA), through Chairman----Petitioner

Versus

EJAZ MEHMOOD----Respondent

Civil Revision No.378 of 2018, decided on 9th March, 2020.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Chap. XII---Canons of Professional Conduct and Etiquette of Advocates--- Counsel and client relationship---Duties of advocates---Advocates primary duty is to give his opinion in the best interest of his client in accordance with law so that legal right of his client can be achieved from the Court of law--- Advocate is an agent of principal i.e. his client and if he fails to disclose a material fact to its client when an opinion has been sought or conceal material fact from a court of law or he is aware that what he is disclosing before the Court through a fact not reflected from the record or in evidence placed before the Court, he becomes part of misconduct or accomplice to the situation---High Court observed that lawyers should take every remedial measures so that Court of law may not reach at wrong conclusion--- Even a lawyer may refuse to offer such material, document or fact that he reasonably believes to be false.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss.115 & 151---Suit for declaration and permanent injunction---Allegation of fraud---Aid of justice---Plaintiff claimed to be owner of suit plot and Trial Court decreed the suit against Capital Development Authority (CDA)--- Appeal filed by the Authority was dismissed by Lower Appellate Court as the same was barred by limitation--- Validity--- Systematic fraud was played by CDA officials in order to give benefit to a person who was not entitled for plot under Rehabilitation Policy--- Counsel for CDA was also part of such fraud and the same was reflected from statement made by Deputy Director Land of CDA, who accepted claim of plaintiff, whereas CDA denied his claim in written statement "being denied for want of knowledge"---Court, in such situation could not sit as silent spectator rather was to discharge its Constitutional and legal obligation---High Court exercised its powers in terms of S.115(1), C.P.C. read with S.151, C.P.C. to eliminate fraud by exercising inherent powers and discretionary jurisdiction, especially when illegality was noticed by the Court--- Such power could only be exercised in aid of justice and not to defeat its ends---Power under S.115, C.P.C. was not to be exercised to correct every irregularity in exercise of jurisdiction but the same had to be exercised where grave injustice or hardship on account of fraud was apparent---Plaintiff was not able to justify his eligibility and entitlement under the law as well as under the polices involved, which was not appreciated by two Courts below---High Court, in exercise of revisional jurisdiction, set aside concurrent findings of two Courts below and remanded the matter to Trial Court for decision afresh while considering the record of CDA---Revision was allowed accordingly.

Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Muhammad Saee v. Mst. Sharaf Elahi and others 2010 SCMR 1358; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Kenneth F. Solomon and Sterathal Katzaelson Montigny LLP v. Judith Matte-Thompson and 166376 Canada Inc. 2019 SCMR 738; Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627; Government of Khyber Pakhtunkhwa through Secretary Industries Commerce and Mineral Development, Peshawar and others v. Frontier Chemical Industries Ram Bagh, Mardan 2016 SCMR 1410 and Abdul Rahim and others v. The State 1981 SCMR 294 ref.

Province of Punjab through Collector District Lahore v. Muhammad Latif 2010 CLC 1215; Asmatullah v. Amanat Ullah PLD 2008 SC 155; Miss Kiran Arif Man v. Miss Kinza Khalid PLD 2008 Isl. 11; Mst. Banori v. Jilani PLD 2010 SC 1186; Hafeez Ahmad v. Civil Judge, Lahore PLD 2012 SC 400; Nazim-ud-Din v. Sheikh Zia-ul-Qamar 2016 SCMR 24; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582 Col. (Rtd) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630; Government of Balochistan through Secretary Board of Revenue, Balochistan Quetta and others v. Muhammad Ali and 11 others and 2007 SCMR 1574 and Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627 rel.

Amir Latif Gill for Petitioner.

2020 C L C 1251

[Islamabad]

Before Athar Minallah CJ and Miangul Hassan Aurangzeb, J

KAMIL REHMAN and others----Petitioners

Versus

Haji REHMAN BANGASH and another----Respondents

R.F.A. No.09 of 2017, decided on 14th November, 2019.

(a) Benami transaction---

----Motive---Scope---Motive on part of person who claims to have advanced sale consideration plays an important role in determining nature of transaction---Principles for determination as to whether transaction was benami, stated.

Ghulam Murtaza v. Mst. Asia Bibi PLD 2010 SC 569; Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209; Abdul Majeed v. Abdul Rasheed PLD 2016 Lah. 383; Ansar Hussain v. Muhammad Karim 2006 CLC 732; Muhammad Riaz Mirza v. Muhammad Yousaf Mirza 2005 YLR 2213 and Muhammad Rafique v. Khalida Shehzadi 2003 CLC 559 rel.

(b) Benami transaction---

----Title documents---Scope---While seeking declaration that transaction for purchase of property is benami in nature, it is important for plaintiff not just to plead that he in possession of title documents but also to produce same in his evidence.

Muhammad Nawaz v. Shahida Perveen PLD 2017 Isl. 375; S.Iqbal Ahmad v. Jawaid Iqbal 2011 CLC 29 and Abdus Samad Khan v. Abdullah 1989 CLC 1563 ref.

(c) Pleadings---

----Fact not pleaded---Maxim: Secundum allegata et probata---Applicability---Pleadings are treated as foundations of a case specially in civil matters--- Fact having not been pleaded cannot be allowed to be taken or agitated at a subsequent stage---Maxim: Secundum allegata et probata (according to what is alleged and proved) can be pressed into service.

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

----Arts.117 & 120---Suit for declaration and injunction---Benami transaction---Proof---Onus to prove---Plaintiffs claimed to be actual owners of house in question as same was purchased by their predecessor-in-interest and asserted that defendant was just a benami owner on their behalf---Trial Court dismissed suit of plaintiffs while defendant sought recovery of possession through an independent suit which was decreed---Validity---Defendant admitted that between year 1989 and 1996, house in question was used to be given on rent by plaintiffs and/or their sons with consent of defendant--- Defendant also asserted that after he returned from abroad rent was paid to him, however, he took position that in year 1996 house in question was given on rent without his consent and it was not until 1998 that he filed suit for possession--- Defendant contradicted himself by deposing that he along with his family lived in house in question until 1995 whereafter he went abroad and his family moved with plaintiffs---Too many contradictions existed between pleadings and evidence of defendant but weaknesses in his case did not have consequence of decreeing suit of plaintiffs for declaration to the effect that they were beneficial owners of suit property--- Initial burden of proof was on party who alleged that an ostensible owner was a benamidar for him--- Weaknesses in defense evidence could not relieve plaintiff from discharging burden of proof on him--- Plaintiffs were unable to establish that they were in possession of house in question as well as title documents--- Plaintiffs were unable to prove that their predecessor-in-interest provided funds for purchase of house in question and motive to enter into benami transaction--- High Court declined to interfere in quantum of compensation held by Trial Court to be payable to defendant between 1998 until he got possession of house in question as defendant failed to prove that such compensation was in any manner inadequate--- Appeal was dismissed in circumstances.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 rel.

Naushad Shamsuddin Fancy v. New Jubilee Insurance Company Limited 2007 CLC 1448; Abdul Majeed v. Amir Muhammad 2005 SCMR 577; Malik Muhammad Zubair v. Malik Muhammad Anwar PLD 2004 Lah. 515; Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui 2003 MLD 319; Asal Muhammad v. The State PLD 1994 Pesh. 214; Muhammad Siddiqui v. T.J. Ibrahim & Company 2001 SCMR 1443; Shalimar Limited v. Raisuddin Siddiqui 1979 CLC 338; Ismail Dada Adam Soomar v. Shorat Bano PLD 1960 Kar. 852; Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574; Abdul Ghani v. Muhammad Shafi 1991 CLC 1706; Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146; Bilqees Begum v. Registrar of Properties PLD 2006 Kar. 617 and Muhammad Arif v. Waheed-ul-Haq 2017 YLR 224 ref.

Tahir Mahmood Abbasi and Muhammad Arbab Alam Abbasi for Appellant.

Abdur Rashid Awan and Zahid Ayub Rathore for Respondents.

2020 C L C 1282

[Islamabad]

Before Aamer Farooq, J

Mst. SABIHA LAEEQ----Plaintiff

Versus

DISTRICT AND SESSIONS JUDGE WEST ISLAMABAD and another----Respondents

Writ Petition No.352 of 2020, decided on 6th February, 2020.

Islamabad High Court Member Inspection Team (MIT) Powers, Duties and Functions, Rules, 2014---

----R.2---Member Inspection Team (MIT), jurisdiction of---Petitioner, in constitutional petition under Art.199 of the Constitution sought indulgence of High Court to direct Civil Court for early disposal of his pending litigation---Validity---Held, it was within the domain of MIT of High Court to speedily process complaints regarding work and conduct of judicial officers of subordinate Courts; to issue directions from time to time for regulating work of subordinate Courts; to redress grievances of public relating to delays, obstacles and irregularities in disposal of cases by subordinate Courts as well as grievances of public arising due to illegalities, high-handedness, violation of rules and regulations--- MIT had specific power to issue appropriate direction to subordinate Court where he could feel that there was delay in disposal of any case before the Court--- High Court declined to interfere in the matter as the petitioner had alternate and efficacious remedy before MIT of High Court---Constitutional petition was dismissed in circumstances.

2020 C L C 1434

[Islamabad]

Before Miangul Hassan Aurangzeb, J

TELCONET PRIVATE LIMITED----Petitioner

Versus

I.E.S.C.O and others----Respondents

W.P. No.3140 of 2019, decided on 14th February, 2020.

Constitution of Pakistan---

----Art.199---Asian Development Bank Standard Bidding Documents----Constitutional petition--- International bidding--- Single Stage Two Envelope Bidding Procedure--- Subsequent event--- Petitioner company participated in bidding of project financed by Asian Development Bank under Single Stage Two Envelope bidding procedure--- Petitioner company was aggrieved of rejecting its Technical Bid by authorities---Authorities during pendency of petition before High Court, opened Financial Bid of sole qualified bidder which was less than that quoted by petitioner company--- Effect--- High Court had ample jurisdiction to look into subsequent events for the purpose of giving complete and effective relief in a case--- Nature of subsequent developments was such that the same would make further proceedings purely of an academic nature and an exercise in futility--- Contract was to be awarded to a technically qualified bidder whose financial bid was the lowest--- Financial bid of petitioner company was for an amount more than the one quoted by successful bidder in its financial bid--- High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262; Mst. Muhammadi and others v. Ghulam Nabi 2007 SCMR 761; Syed Bhais (Pvt.) Ltd. v. Government of The Punjab Excise and Taxation Department PLD 2000 Lah. 20; Amina Begum v. Ghulam Dastgir PLD 1978 SC 220; Saeeda Khatoon v. House Building Finance Corporation PLD 1998 Kar. 99; Sheikh Fazal Rehman and Sons Limited v. Ghee Corporation of Pakistan 2003 CLC 1823; Ch. Riyasat Ali, Advocate v. Returning Officer 2003 CLC 1730; Muhammad Rashid v. Member (Revenue), Board Of Revenue, Punjab 2001 MLD 548; Muhammad Nazir v. Collector/Deputy Commissioner, Lahore 2001 CLC 767; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Disciplinary Committee of University of Punjab v. Abdul Majid 1984 SCMR 1302; Muhammad Ilyas Suleri v. Muhammad Naseem Khan 1993 CLC 417; Liver Brothers (Pakistan) Ltd. v. Senior Member, National Industrial Relations Commission PLD 1986 Lah. 90; Shahsawar and others v. The State 2000 SCMR 1331; Ardeshir Cowasjee and others v. Sindh Province and others 2004 CLC 1353; M. Enver Shaukat v. Federation of Pakistan 1981 PLC (C.S.) 15; Zafar Iqbal v. Province of Sindh PLD 1973 Kar. 316; Doaba Goods Forwarding Agency Limited v. Province of Punjab 1971 SCMR 527 and Abdul Hameed v. Muhammad Shahidullah PLD 1969 SC 535 rel.

Malik Qamar Afzal, Saad Khan and Misbah Ashiq for Petitioner.

Tahir Maqsood Butt for the petitioner (in Writ Petition No.3542 of 2019).

Muhammad Asif Khan for Respondent No.1/I.E.S.C.O.

Noor-ul-Najam for Respondent No.4/P.P.R.A.

Shehzad Ata Elahi and Shameer Naveed for Respondent No.7.

2020 C L C 1461

[Islamabad]

Before Aamer Farooq, J

MASOOD ALAM----Petitioner

Versus

Haji MUBARAK HUSSAIN and others----Respondents

Writ Petition No.4544 of 2019, decided on 29th January, 2020.

Civil Procedure Code (V of 1908) ---

----S.47---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Execution petition seeking possession of suit property---Maintainability---Suit for specific performance was field wherein no prayer for possession of suit property was made---Decree-holder moved application for possession of suit property which was accepted---Validity---Decree of specific performance did include not only execution of necessary documents but putting vendee in possession as well---Where relief for possession was not prayed for and consequently decree passed in the suit for specific performance was also silent with regard to delivery of possession then notwithstanding such omission Executing Court was not barred from granting relief of possession---If plaintiff had not made prayer in the suit for specific performance even then he, being decree-holder could not be denied the benefits of the decree for specific performance---Constitutional petition was dismissed, in circumstances.

Mst. Razia Bibi v. Muhammad Shareef and another PLD 2011 Lah. 450 and Abdul Habib v. Fazal Muhammad and 2 others 2012 MLD 1856 distinguished.

Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Khadim Hussain and 2 others v. Waris Ali and another 2005 CLC 1144; Birgis Jahan Bajiga Malik v. Muhammad Hasan and others PLD 1964 Dacca 202; Momtazul Karim and others v. Abu Hussain and another 1970 SCMR 816 and Muhammad Riaz and others v. Qaim Ali and others PLD 2019 Lah. 97 rel.

Ahmad Iqbal Maiken for Petitioners.

Sardar Muhammad Ashfaq Abbasi for Respondent No.1.

2020 C L C 1582

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD SADEEQ----Petitioner

Versus

PERVAIZ KHAN and 2 others----Respondents

Civil Revision No.200 of 2019, decided on 21st April, 2020.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 27 & O. VII, R. 14---Production of additional evidence before Appellate Court---Requirements---Expression "substantial cause"---Scope---Suit was dismissed against which appeal was filed wherein application for production of additional evidence was moved, which was dismissed---Suit was dismissed concurrently---Validity---Plaintiff neither attempted to produce the document in question before the Trial Court nor said Court had refused to admit the same in the evidence---Appellate Court was not of the view that evidence sought to be produced was required to enable to pronounce judgment---Question of 'substantial cause' would depend upon facts and circumstances of each case---Plaintiff had neither mentioned any specific provision of law nor any reason for non-production of document in question before Trial Court---Plaintiff had not annexed copy of said document with his plaint---Plaintiff having ample opportunity to produce proposed document had failed to produce the same before Trial Court---Appellate Court could take additional evidence only if evidence produced by the parties was defective or insufficient and said evidence was necessary for adjudication of the matter---Appellate Court could allow additional evidence either on an application by any of the parties or even suo motu---Plaintiff had not moved any application for summoning of record from the office of Sub-Registrar---No one could be allowed to fill up omission or lacuna in the case before the Appellate Court---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Mad Ajab and others v. Awal Badshah 1984 SCMR 440; Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20; Taj Din v. Jumma and 6 others PLD 1978 SC (AJ&K) 131; Nazir Hussain v. Muhammad Alam Khan and 3 others YLR 2000 SC (AJ&K) 2629; Abdul Hameeq and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671; Nazir Ahmed and 3 others v. Mushtaq Ahmed and another 1988 SCMR 1653; Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430 and 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 rel.

Raja M. Saleem Satti for Petitioner.

Abdul Kamran Butt and Kaleem Ullah Pirzada for Respondents.

2020 C L C 1605

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs TELECOM FOUNDATION----Appellant

Versus

Messrs ASKO ENTERPRISES----Respondent

F.A.O. No.12 of 2011, decided on 8th June, 2020.

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

----First Schedule, Para 3---Phrase "entering upon the reference"--- Scope--- Phrase "entering upon the reference" has not been defined in Arbitration Act, 1940--- Arbitrator enters on a reference when he first applies his mind to dispute or controversy before him and exercises any judicial function in furtherance of the work of arbitration.

Muhammad Shafi v. Muhammad Sabir PLD 1960 Lah. (W.P.) 591 rel.

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

----Ss. 14, 17, 30, 39 & First Schedule, para 3--- Award making rule of Court--- Filing of award in Court--- Limitation--- Extension of time--- Misconduct--- Plaintiff filed application in Trial Court for direction to arbitrator to file award in Court--- Trial Court set aside the award on the basis of objection that it was not filed in Court beyond limitation as it was a misconduct--- Validity--- Arbitrator was to make award within four months after the date of entering upon reference--- Arbitrator was entitled under Paragraph 3 of First Schedule to Arbitration Act, 1940, to make award within such extended time for making the award and did not impose any obligation on a party to make a formal application in such behalf--- Award made beyond period of four months was neither invalid nor void merely on such account--- Where after expiry of four months, if a party had been appearing before arbitrator without any protest or demur and never took the objection that time for making award had expired, such party would be deemed to have waived the implied condition as to time--- Such party was estopped from challenging validity of award on the ground of same having been made beyond time--- Power to extend time for making award could also be exercised by an appellate Court--- Arbitrator did not commit any 'misconduct' as understood in arbitration parlance by engrossing award dated 30-5-2000 on stamp paper issued on 1-7-2000---By doing so arbitrator simply carried out a ministerial act which was not concerned with any of his adjudicatory responsibilities in regard to the reference---Time for completing arbitration proceedings was extended until date when award was rendered and defendants' objections to award were dismissed--- Application under S. 14(2) of Arbitration Act, 1940 of plaintiff seeking filing of award in Court and making the same as rule of Court was allowed--- High Court set aside judgment passed by Trial Court and made award rule of the Court--- Appeal was allowed in circumstances.

Muhammad Shafi v. Muhammad Sabir PLD 1960 Lah. (W.P.) 591; J.K. Enterprises v. Win Medicare Ltd. 1998 (1) Arb LR 390; Tejpal Jamunadas v. B. Nathmull & Co. AIR 1920 Cal. 115; State of Punjab v. Hardyal AIR 1985 SC 1920; Hindustan Steel Works v. Rajaasekhar Rao 1987 SCC (4) 93; WAPDA v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Co. PLD 1990 SC 359; Syed Mukhtar Hussain Naqvi v. Mst. Hajiani Zubaida 2003 YLR 3289; Messrs Khan Brothers and Associates v. Director General Food, Government of Pakistan 1998 CLC 1671; Pakistan Swedish Institute of Technology Garment Production Unit v. The Karachi Port Trust 1997 MLD 2034; Haji Ghulam Muhammad v. Federation of Pakistan PLD 1967 Lah. 204; Civil Aviation Authority v. KIST Consultants (Pvt.) Ltd. 1998 SCMR 2393; Managing Director, Karachi Fish Harbour Authority v. Messrs Hussain (Pvt.) Ltd. 2014 CLC 1519; Umar Hayat v. Province of Punjab through District Officer, Revenue, Jhang 2003 YLR 828; Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority PLD 2002 Kar. 427; Pakistan Agricultural Storage and Services Corporation v. Messrs Sheikh Muhammad Latif 1999 MLD 2773; Hakim Muhammad Ibrahim v. Muhammad Ibrahim 1999 MLD 1738; Saeeda Baig v. Mian Muhammad Amin 1995 MLD 187; Messrs Vaseem Construction Co. v. Province of Sindh 1991 CLC 1081; and WAPDA through its Chairman v. Khanzada Muhammad Abdul Haq Khan Khattak & Co. 1983 CLC 1792; Shafiq Waheed v. Muhammad Hasan Khan 1989 ALD 504; Dasaratha Rao v. Ramaswamy AIR 1956 Mad. 134; Parshottamdas v. Kekhushru AIR 1934 Bom. 6; Mst. Farida Malik v. Dr. Khalida Malik 1998 SCMR 816; Frick India Ltd. v. Executive Engineer, P.H. Division AIR 1975 P&H 39 and Gopal Krishan v. Union of India AIR 1955 Punjab 145 ref.

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

----S.14 (2)---Limitation Act (IX of 1908), First Schedule, Art. 178--- Filing of award--- Limitation--- Provision of Art.178 of First Schedule to Limitation Act, 1908, applies to application under S. 14(2) of Arbitration Act, 1940, made by a party---No time limit for arbitrator or umpire to file award in Court.

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

----S.14(1)---Notice, issuance of---Requirement--- Issuance of notice in writing under S.14 (1) of Arbitration Act, 1940, to parties as to making of award is considered to be mandatory.

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

----Ss.14(1)(2) & 42--- Limitation Act (IX of 1908), Arts.178 & 181 First Schedule--- Filing of award---Limitation---Starting point---Contention of defendant was that application under S.14(2) of Arbitration Act, 1940, filed by plaintiff was barred by limitation---Validity---Party's knowledge as to making of award from a source other than a notice in writing from arbitrator in accordance with Ss.14(1) and 42 of Arbitration Act, 1940 would not be terminus a quo / starting point of limitation under Art.178 of First Schedule to Limitation Act, 1908--- Limitation period of 90 days provided in Art. 178 of First Schedule to Limitation Act, 1908, was to commence from the 'date of service of notice of making of the award'--- Arbitrator did not issue notices to parties as to making of award in accordance with S.42 of Arbitration Act, 1940, nor plaintiff was served with such notice--- In absence of notice from Arbitrator as to rendering of award, limitation period for application for filing award in Court was not governed by Art.178 of First Schedule to Limitation Act, 1908, but residuary provisions of Art. 181 of Limitation Act, 1908, which provided a limitation period of three years, was applicable--- Application was not barred by limitation in circumstances.

Akbar Hussain v. Muhammad Tayyeb PLD 1995 Kar. 452; Muhammad Wasi Saigal v. Shaikh Rashid Ahmad 1994 CLC 1406; Dil Muhammad v. Additional District Judge, Sahiwal 1991 MLD 2068; Muhammad Wasi Saigol v. Shaikh Rashid Ahmad 1988 CLC 267; Holaram Verhomal v. Governor General AIR 1947 Sindh 145; Abdul Qayum Khan v. M.A. Qudus Khan PLD 1964 (W.P.) Kar. 66; Misri Lal v. Bhagwati Prasad AIR 1955 Allah. 573; Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajee Poddar AIR 1955 Nagpur 126; Muhammad Shafi v. Muhammad Sabir PLD 1960 Lah. (W.P.) 591 and Sardar Muhammad Khan v. Muhammad Jafar Khan 2010 YLR 164 rel.

Syed Ishtiaq Haider for Appellant.

Khawaja Farooq Mehta for Respondent.

Barrister Ehsan Ali Qazi, Amicus Curiae.

2020 C L C 1658

[Islamabad]

Before Aamer Farooq, J

PRIVATE SCHOOL ASSOCIATION ISLAMABAD (PSAI) through Secretary----Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary Ministry of Federal Education and Professional Training, Pak Secretariat, Islamabad and 2 others----Respondents

Writ Petition No.2274 of 2019, decided on 28th February, 2020.

Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act (XI of 2013)---

----Ss.2(a), 5 & 6---Regulation of fee structure--- Private Educational Institutions Registration Authority (PEIRA), powers of--- Dispute was with regard to notices issued by Islamabad Capital Territory Authority (PEIRA) for recalculation of fee in the light of decision of the Supreme Court---Validity---Authority despite absence of Rules could regulate fee, which it was to do, as fixation of fee and enhancement could not be left unregulated especially in times of escalatory trend in prices of all items and contraction of economy resulting in limited resources for parents to educate their children--- Balance was to be maintained by PEIRA keeping in account the quality of education and other facilities which were offered by school with a reasonable return over the expenses--- High Court set aside the notices issued by Islamabad Capital Territory Authority PEIRA as the same were without lawful authority and the Authority could issue fresh notices for regulation of fee pursuant to powers provided under Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013---High Court directed the Authority to keep in regard the observations made by High Court while regulating the fee---Constitutional petition was disposed of accordingly.

Educational Services (Pvt.) Limited and 4 others v. Federation of Pakistan and another PLD 2016 Isl. 141; Educational Services Private Limited and 3 others v. Federation of Pakistan and another 2018 MLD 624 and Civil Appeals Nos. 1095-1097, 134-L, 1021-1026, 1138, 1154-1158, 1486 and 1487/2018 rel.

Mrs. Shireen Imran, Barrister Husnain Ali Ramzan, Wajid Hussain Mughal, Azeem ul Qader, Syed Hamid Ali Shah, Salim ur Rahman, Agha Syed Muhammad Murtaza Moosavi and Hazrat Younas for Petitioners.

Rashid Hanif, Syed Muhammad Bilal Ahmed and Raja Saad Sultan, Assistant Attorney General for Respondents.

2020 C L C 1804

[Islamabad]

Before Miangul Hassan Aurangzeb and Ghulam Azam Qambrani, JJ

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad----Appellant

Versus

MUHAMMAD HANIF ABBASI and 4 others----Respondents

Regular First Appeal No.09 of 2012, decided on 8th June, 2020.

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

----O.XX, R.5---Qanun-e-Shahadat (10 of 1984), Arts. 72, 73, 76, 77 & 162---Specific Relief Act (I of 1877), S.42---Suit for declaration and recovery of damages---"Judgment"---Requirements---Documents---Proof---Secondary evidence, production of---Essentials---Defendant did not produce defence despite availing numerous opportunities and his right of defence was closed---Trial Court, after hearing ex parte arguments decreed the suit---Validity---Trial Court had failed to render its findings with reasons on each separate issue---Non-speaking judgment had been passed without application of judicial mind in the case---Trial Court had failed to deliver judgment as was required under the law---Copies of documents produced by the plaintiffs did not dispense with the requirements of formal proof of documents by primary evidence---Secondary evidence could be admitted only on one or more conditions laid down in Art.76 of Qanun-e-Shahadat, 1984 having been satisfied by the party tendering such evidence---Secondary evidence could not be admitted on the contents of document without the production of original having first been accounted for---Receiving of secondary evidence without objection by the party against whom it was tendered or required to be used in evidence could not ordinarily object to the admission of such evidence at any subsequent stage subject to provisions of Art.162 of Qanun-e-Shahadat, 1984---Admitting copy of a document in evidence and reading the same without observing legal requirements of Art.76 of Qanun-e-Shahadat, 1984 would be illegal---Neither executants of the documents nor the witnesses nor such documents in original had been produced in the Trial Court for inspection purposes---Such documents without formal proof could not be relied upon---Trial Court placing reliance upon such documents had proceeded to pass the impugned judgment and decree, which could not be allowed to hold field---Trial Court, in the present case, had received documents in evidence improperly without production of their originals and without permitting secondary evidence---Mere consent or omission to object to the reception of inadmissible evidence could not be treated as a valid and legal piece of evidence---Matter was remanded by High Court to the Trial Court for decision afresh, rendering its findings as per mandate of O.XX, R.5, C.P.C.---Impugned judgment and decree were set aside---Suit of plaintiffs was to be deemed to be pending before the Trial Court for decision afresh---Appeal was allowed, in circumstances.

Pakistan Refinery Ltd. v. Barrett Hodgson Pakistan (Pvt.) Ltd. 2019 SCMR 1726; Mst. Fatima and 2 others v. Najeeb Ullah and another 2020 CLC 780; Feroz Din and others v. Nawab Khan and others AIR 1928 Lah. 432; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Muhammad Farooq Marfani v. Abdul Qadir Tawakal and 7 others PLD 2004 Kar. 595; Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 and East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 rel.

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

---Arts.76 & 77----Secondary evidence, production of---Requirements---Secondary evidence could be admitted only on one or more conditions laid down in Art.76 of Qanun-e-Shahadat, 1984 having been satisfied by the party tendering such evidence---Party in whose possession the document was, was to be given notice for production of the same in the Court---Party for production of secondary evidence should prove that original documents was in possession or power of the person against whom it was sought to be proved and such person had not produced it or original document had been destroyed or lost---Secondary evidence could not be admitted on the contents of document without non-production of original having first been accounted for---Reception of secondary evidence without objection by the party against whom it was tendered or required to be used in evidence could not ordinarily object to the admission of such evidence at any subsequent stage subject to provisions of Art.162 of Qanun-e-Shahadat, 1984.

(c) Administration of justice---

----No one could be knocked out on the basis of technicalities.

(d) Administration of justice---

----Party could succeed on the strength of his own case and not upon the weakness of opposite's case.

PLD 1958 Privy Council 161 rel.

Muhammad Nazir Jawad for Appellant.

Raja Ishtiaq Ahmed for Respondent.

2020 C L C 1864

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD TARIQ and others----Petitioners

Versus

SABIRA BIBI and others----Respondents

C.R. No.442-D of 2003, decided on 15th April, 2020.

(a) Islamic Law---

----Inheritance---Person dying issueless---Order of succession---Full sister taking precedence over consanguine brothers---Issueless deceased left behind a sister and a nephew and her estate devolved upon them---Consanguine brothers filed a suit that the nephew was not entitled to inherit as his father had died prior to the opening of inheritance---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---If deceased had a sister as sole sharer then she would inherit half of the estate and if there were more than one sister then sisters would cumulatively inherit 2/3rd share and remainder in both the cases would go to residuaries---Sister or sisters who were heirs after inheriting as sharers would also inherit as residuaries---Where deceased was issueless and was survived by sisters and consanguine brothers and sisters then after ½ share was given to full sister as a sharer (2/3rd in case of more than one sister) rest of the share would go to the residuaries---Full sister would rank higher than consanguine brothers and sisters and full brother's sons would also rank lower to the full sister and consanguine brothers and sisters---Half share of the estate of deceased would devolve upon her sister who would inherit the same as sharer---Remaining property of deceased would devolve upon residuaries or distant kindred as she had no other sharers---Nephew of deceased was residuary to her estate and so was her sister as well as consanguine brothers and sisters---Sister of deceased after receiving her share as a sharer would also receive the remainder estate as residuary being higher in preference than consanguine brothers and her nephew---Consanguine brother (plaintiffs) were not entitled to inherit from the estate in question in circumstances---Appellate Court had committed material irregularity while passing the impugned judgment and decree---Impugned judgment and decree passed by the Appellate Court were not sustainable which were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Abdul Qadir and others v. Allah Daad and others 1997 CLC 48; Kabir Hussain and 3 others v. Mst. Iqbal Bibi and 2 others 1991 MLD 1681 and Lal and others v. Barkhurdar and others 1996 SCMR 1964 ref.

'Principles of Muhammadan Law' by D.F. Mulla under Hanafi Law of Inheritance and Saadullah and others v. Mst. Gulbanda and others 2014 SCMR 1205 rel.

(b) Islamic Law---

----Inheritance---Classes of legal heirs---Scope.

Malik Muzaffar Khan Awan for Petitioners.

Rai Tanveer Asghar for Respondents.

2020 C L C 1964

[Islamabad]

Before Lubna Saleem Pervez, J

Syed AMIR ABBAS SHAH KAZMI----Petitioner

Versus

AMIR RASHID MALIK and others----Respondents

Civil Revision No.80 of 2020, decided on 23rd July, 2020.

Specific Relief Act (I of 1877)---

----Ss.40, 42 & 54---Civil Procedure Code (V of 1908), Ss. 47, 115 & 151---Suit for cancellation of document, declaration and injunction--- Settlement, implementation of---Executing Court, jurisdiction---Civil suit between the parties was disposed of on the basis of consent decree---During execution proceedings, judgment debtor sought direction from Executing Court to comply with the out of Court settlement arrived at by both the parties--- Executing Court dismissed the application filed by judgment debtor---Validity---Application did not fulfil requirements of S.47, C.P.C. and the same was filed under S.151, C.P.C. invoking inherent jurisdiction of Court as in the application direction was sought to be issued to decree holder to appear before concerned authorities and transfer land in his favour--- Executing Court dismissed the application as it could not enforce any subsequent out of court settlement on decree holder and issued directions for compliance of terms agreed upon by the parties through settlement agreement--- Executing Court was bound to remain within the four corners of judgment / decree--- Any subsequent development between parties out of Court through any settlement agreement, raising factual controversies were not implementable by Executing Court--- High Court declined to interfere in order passed by Executing Court as the same did not suffer from any jurisdictional defect--- Revision was dismissed in circumstances.

Samba Bank Ltd. v. Messrs Syed Bhais 2013 CLD 2080; Bahadur Shah v. Contractor Rehman Shah 2018 CLC 73; Dewan Sugar Mills Ltd. v. Messrs Trading Corporation of Pakistan (Pvt.) Ltd. 2018 YLR 2337 and Muhammad Naeem Khan Ghauri v. Jameel Akhtar Khan 2019 CLC Note 23 ref.

Saad Ahmad Rajpoot for Petitioner.

Ch. Qaiser Nazir Sipra for Respondents.

2020 C L C 1989

[Islamabad]

Before Athar Minallah, CJ and Miangul Hassan Aurangzeb, J

RAFAQAT HUSSAIN RAJA and others----Appellants

Versus

MUJIB-UR-REHMAN KIANI----Respondent

R.F.A. No.74 of 2014, decided on 3rd December, 2019.

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

----O.VII, R.2---Limitation Act (IX of 1908), Art.28---Money Suit---Claim for damages due to false allegations and distress---Limitation---Proof of allegations---Requirements---Suit was decreed by the Trial Court---Validity---Plaintiff had appeared as a sole witness and had not produced any independent evidence to substantiate his allegations---Plaintiff had not produced any witness before whom allegation had been made by the defendants---Trial Court while passing decree against the defendants had violated the settled norms of justice---Plaintiff had produced prescription before the Trial Court but author of the same had not been examined---Said prescription had not been formally exhibited and no evidentiary value could be given to the same---Plaintiff had to establish that defendants had acted in a calculated manner with malice and bad intent to cause him physical and mental injury---Plaintiff had failed to discharge the said burden to justify his claim for damages against the defendants---Bare allegations of malice and prejudice could not be made the yardstick for award of damages---Suit for compensation for illegal, irregular or excessive stress should have been filed within one year from the date of stress---Present suit was time barred, in circumstances---Plaintiff had failed to prove allegations against the defendants and impugned decree was not sustainable---Impugned judgment and decree passed by the Trial Court were set aside and suit was dismissed---Appeal was allowed in circumstances.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

Ahmed Hassan v. Muhammad Arshad 2016 PLC (C.S.) 845 and Shazia Qamar v. Bashira Bibi 2016 CLC 15 rel.

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

----S.144---Restitution---Scope.

Restitution of property follows automatically upon the decree being varied or reversed in appeal and a specific direction for restitution is not necessary to be made by the appellate Court.

Restitution of possession to a party who succeeds in getting an adverse order reversed in appeal is nothing more than retracing the steps to nullify the proceedings whereby the party who was not entitled to the benefit had obtained it from the Court under false colours.

Section 144 of the Code of Civil Procedure, 1908 provides inter alia that when a decree passed against a party is reversed, the Court of first instance shall, on the application of such a party, entitle to benefit by way of restitution may make orders, including orders for refunds etc. Section 144 is an embodiment of the doctrine of restitution and has been held not to confer any new substantive right which an aggrieved party does not possess under the general law. Court has the inherent power to direct restitution, and that Section 144, C.P.C. is not exhaustive. Where an appellate Court orders restitution it does so in exercise of its inherent powers under Section 151, C.P.C. and not under Section 144, C.P.C.

Sh. Mehraj Din v. Ghulam Muhammad PLD 1965 Lah. 374; Khalid Rasool v. Muhammad Sharif 1987 CLC 253 and Mahmood ul Hassan v. District Judge, Chakwal 2009 YLR 780 rel.

Muhammad Saleem and Birjis Rizvi for Appellants.

Mujib-ur-Rehman Kiani/Respondent in person.

2020 C L C 2024

[Islamabad]

Before Ghulam Azam Qambrani, J

BAKHT BAIDAR----Petitioner

Versus

GHULAM NABI and 3 others----Respondents

Civil Revision No.42 of 2017, decided on 4th September, 2020.

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

----S.41---Ostensible owner, transfer by---Equitable principle---Applicability---Pre-conditions---Essential ingredients for application of S.41 of Transfer of Property Act, 1882, are (a) the transferor was ostensible owner; (b) transfer was made by consent express or implied of the real owner; (c) transfer was for consideration; and transferee while acting in good faith had taken reasonable care before entering into the transaction---Such four imperative ingredients must co-exist in order for a person to take the benefit of equitable principle.

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

----Ss.12, 22, 27 (b)& 54---Suit for specific performance of agreement to sell and permanent injunction---Discretionary relief, refusal of--- Bona fide purchase for valuable consideration without knowledge---Plaintiff claimed that owner of suit property despite executing agreement to sell in his favour and receiving full consideration amount, transferred the same in favour of defendant---Both the Courts below concurrently dismissed the suit and appeal filed by plaintiff---Validity---Record proved that defendant was bona fide purchaser of disputed plot without notice of any prior agreement to sell between plaintiff and the owner, therefore, provision of S.27(b) of Specific Relief Act, 1877, was not applicable---Grant of specific relief was discretionary in character and Court was not always bound to decree suit of specific performance in cases where agreement was proved---Court had to exercise discretion judicially and not arbitrarily---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of facts by Courts below---Scope---High Court does not normally go beyond concurrent findings of fact recorded by Court below, unless it is shown that the findings on the face of it are against evidence or so patently improbable, or perverse that to accept would amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of evidence, or finally if finding can be demonstrated to be physically impossible---Such is the practice and rule of the Court in civil revisions, burden lies rather heavily on petitioners to show that concurrent findings recorded by Courts below are not sustainable on the record and should be interfered with by High Court---High Court does not meddle with the findings of fact reached by the Court below when it is satisfied that the findings of the Court below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867 : rel.

Muhammad Habib Ullah Khan for Petitioner.

Khalid Pervaiz for Respondent No.1.

Malik Javaid Iqbal Wains for Respondent No.2.

Najam Hanif Sheikh for Respondent No.3.

2020 C L C 1

[Sindh (Sukkur Bench)]

Before Abdul Maalik Gaddi and Arshad Hussain Khan, JJ

Agha QURBAN ALI and others----Petitioners

Versus

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

Constitution Petitions Nos.D-1004, D-1005 and D-1006 of 2019, decided on 16th July, 2019.

(a) Elections Act (XXXIII of 2017)---

----Ss. 60(2)(a), 62(9)(a) & 231---Sindh Local Government Act (XLII of 2013), Ss. 37(5) & 79(2)---Constitution of Pakistan, Arts. 63(1)(d), 63(1)(k), 140-A, 225 & 260---"Service of Pakistan"---Definition---Petitioners sought disqualification of respondent on grounds that he was already elected member of Local Government---Returning Officer rejected nomination papers of respondent but Appellate Tribunal accepted the same---Validity---Respondent was elected member/Chairman of Sindh local government but was not appointed/employed by Local Government and their positions did not come in definition of 'Service of Pakistan' under Art. 260 of the Constitution---Post of Mayor/Chairman of any council was not declared by Provincial or Federal Government or any court of law being 'Service of Pakistan' but were out of definition provided under Art. 260 of the Constitution---Firstly it had to be established that office in question, i.e., "service of Pakistan" was an office of profit, controlled by Provincial Government, having authority to appoint and remove Chairman---Contesting candidate was firstly elected representative and secondly, after his election as member of District Council or Town Committee, he was further elected as Chairman by elected members and could only be removed from such post through a no confidence motion as provided under law---High Court declined to interfere in the order passed by Election Tribunal as it had rightly allowed respondent to contest elections---Claim of petitioner was rejected through valid and sound reasons---Constitutional petition was dismissed in circumstances.

Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Fozia Khalid v. Election Appellate Tribunal and others PLD 2018 Lah. 895; Muhammad Ayub v. Ubedullah Khan and others PLD 2004 SC 479; Suo Motu Case No.8 of 2018 and Civil Misc. Application No.649-L of 2018 along with other petition PLD 2019 SC 201; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-1 and others 2013 SCMR 1246; Syed Sadaruddin Shah v. Provincial Election Commission through DEO and 4 others 2016 MLD 1953; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Muhammad Hanif Abbasi v. Jahangir Khan Taren and others PLD 2018 SC 114; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and others PLD 1989 Kar. 404; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Notification dated; 14th June, 2018, issued by the Election Commission of Pakistan; Muhammad Mubeen-Us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Syed Wajih-Ul-Hassan v. Muhammad Khalid Alvi and 3 others 2010 PLC (C.S.) 1308; Shivamurthy Swami Inamdar and Veerabhadrappa Veerappa v. Agad Sangana Anadanappa and Chanbasangouda Hanumanthagouda Patil and another 1971 (3) SCC 870 and Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Kolhe and others AIR 1975 SC 575 ref.

Ghazanfar Ali v. Appellate Authority/Additional District Judge Sahiwal and others PLD 2016 SC 151 rel

(b) Constitution of Pakistan---

----Arts. 199 & 225---Constitutional jurisdiction of High Court---Election Dispute---Principle---Generally in election process, High Court cannot interfere with by invoking its Constitutional jurisdiction under Art. 199 of Constitution in view of Art.225 of the Constitution---Such is subject to an exception that where no legal remedy is available to an aggrieved person during process of election or after its completion against order of election functionaries which is patently illegal, without jurisdiction being coram-non-judice.

Mukesh Kumar G. Karara and Niazuddin N. Memon for Petitioner (Constitution Petition Nos.D-1004 to D-1006 of 2019).

Ovais Ali Shah and Deedar Ali Chohan for Respondent No.4 (Constitution Petition Nos.D-1004 to D-1006 of 2019).

Muhammad Mehmood Khan Yousifi, D.A.G. along with Aijaz Anwar Chohan, Director Election, Karachi and Rana Abdul Ghaffar, Regional Election Commissioner.

Agha Athar Hussain, A.A.G.

2020 C L C 14

[Sindh]

Before Nadeem Akhtar, J

Messrs SHELL PAKISTAN LIMITED through Authorized Officer----Petitioner

Versus

Rana AZHAR ALI KHAN through L.Rs. and others----Respondents

C.Ps. Nos. S-897 and S-799 of 2010, decided on 1st April, 2019.

(a) Constitution of Pakistan----

----Art.199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of fact---Such well reasoned findings of fact could not be called in question in the constitutional jurisdiction of the High Court unless there was any jurisdictional defect or misreading or non-reading of evidence.

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

----S.15---Stamp Act (II of 1899), S. 29(c)---Lease agreement---Registration of stamp paper by lessee---Scope---Section 29(c) of Stamp Act, 1899, provided that in absence of agreement to the contrary, the expense of providing the proper stamp paper shall be borne by the lessee or intended lessee----No evidence or material whatsoever, was produced by the lessee before the Rent Controller to show that there was agreement between the parties that the lessor was obliged to arrange for registration of the lease deed or to pay the charges/stamps in relation thereto---Under S.29(c) of the Stamp Act, 1899 it was the responsibility of lessor to get the said deed registered and to bear the expenses in respect thereof.

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

----S. 15(2)(ii)---Default in payment of rent---Scope---Payment of rent due within 60 days---Monthly rent was not tendered by the lessee either within period stipulated in the deed or within 60 days from the date when monthly rent became due and payable---In either case the lessee had committed default in payment of monthly rent.

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

-----O. XLI, R. 27(1)-----Production of additional evidence at appellate stage----Principles----First Appellate Court could take additional evidence only if after examining the evidence produced by the parties it came to the conclusion that the same was inherently defective or insufficient, and unless additional evidence was allowed, judgment could not be pronounced---Only such additional evidence could be permitted to be brought on record at the appellate stage which was required by the appellate Court itself for final or conclusive adjudication in the matter, or for any other substantial cause---Sole criterion as to whether additional evidence should be allowed or not depended upon the question whether or not the appellate Court required the evidence "to enable it to pronounce a satisfactory and complete judgment or for any other substantial cause"; in such an event, the appellate Court may allow additional evidence either on an application by any of the parties or even suo motu.

Parshotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 Privy Council 143; Mad Ajab and others v. Awal Badshah 1984 SCMR 440; Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC(AJ&K) 20; Taj Din v. Jumma and 6 others PLD 1978 SC (AJ&K) 131; Nazir Hussain v. Muhammad Alam Khan and 3 others 2000 YLR 2629 SC (AJ&K); Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671; Nazir Ahmed and 3 others v. Mushtaq Ahmed and another 1988 SCMR 1653 and Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430 ref.

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

----S. 10(3)----Default in payment of monthly rent----Refusal of landlord to accept monthly rent----Contention of the lessee, in order to justify the default in payment of monthly rent was that landlord refused to accept monthly rent from them----Held, if the landlord refused to accept monthly rent, the lessee was required under subsection (3) of S.10 of the Sindh Rented Premises Ordinance, 1979 to tender the monthly rent to landlord through money order and in case of refusal by the latter, it was required under the said provision to deposit the rent in Court.

Muhammad Umar Akhund for Petitioners (in C.P. No.S-897 of 2010 and Respondent No.2 in C.P. No.S-799 of 2010).

Rahim Junejo holding brief for Muhammad Anwar Tariq for Respondent (in C.P. No.S-799 of 2010 and respondent No.2 in C.P. No.S-897 of 2010).

Sarmad Hani for Respondent No.1.

Respondents Nos.3 and 4 in person in both petitions.

2020 C L C 60

[Sindh]

Before Nadeem Akhtar, J

SULTAN-UL-ULOOM, MIR USMAN ALI KHAN ACADEMY, through Secretary----Petitioner

Versus

ANIS-UR-REHMAN and another----Respondents

Constitutional Petition No.S-654 of 2011, decided on 26th July, 2019.

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

----S.15(3)----Eviction petition---Grounds being reconstruction of premises and bona fide personal need of landlord---Right of tenant after reconstruction of building---Rent Controller ordered eviction---Appellate Court maintained order of eviction with directions to the landlord to demolish building within three months, erect the new building with shops on ground floor within one year and to hand over possession of new shops to the tenant---Validity---Held, that landlord was not obliged to construct new building according to the need, requirement or desire of tenant especially when possession of the demised premises was sought by the landlord also on ground of personal need with a specific purpose---Keeping in view the aims and objectives of the landlord and its purpose and requirement for constructing the new building, which were not disputed and findings in respect whereof had attained finality, it would be unjust to allow any kind of commercial business, activity or shop in the new building to be constructed for the sole purpose of promotion of education and other literary objects---Where the ground of reconstruction was coupled with the personal need of the landlord and the need was of such nature that the tenant could not be accommodated in newly constructed/erected building, the tenant would not be entitled to seek restoration of possession of the rented premises under subsections (3) and/or (4) of S.15 of the Ordinance----Right of the tenant to seek restoration of possession would come into play if the reconstructed building was of the same type or character and was suitable for the same use as was the old building---Eviction order passed by Rent Controller was restored.

Ghulam Nabi v. Mushtaq Ahmed PLD 1980 SC 206; Abdul Bari v. Khadim Hussain PLD 1978 SC 78 and Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 ref.

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

----S.15(3)---Eviction of the tenant on both the grounds of personal requirement and reconstruction in same proceedings would not be illegal as the said two grounds are not mutually destructive.

Moin Azhar Siddiqui for Petitioner.

Javaid Musarrat for Respondent No.1.

Respondent No.2 in prson.

2020 C L C 92

[Sindh (Sukkur Bench)]

Before Muhammad Shafi Siddiqui, J

MUZAFFAR ALI BROHI----Petitioner

Versus

Meer NADIR ALI MAGSI and 14th others----Respondents

Election Petition No.07 of 2018, decided on 15th January, 2019.

(a) Election Rules, 2017----

----R. 140---Election petition---Non-verification of----Effect---Rule 140, Election Rules, 2017 was not meant to cater to shortfalls of mandatory requirements such as verification---Dismissal of petition was justified.

Election Petition No.S-03 of 2018 ref.

(b) Elections Act (XXXIII of 2017)---

----Ss.142, 143 & 144---Civil Procedure Code (V of 1908), O.VI, Rr.14 & 15---Contention that in terms of S.144(4) of the Elections Act, 2017 election petition was required to be verified strictly in terms of O.VI, R.15, C.P.C.---Consequence of non-compliance was rejection of petition as provided under S.145(1) of the Act---In the present case, verification of petition was neither signed by the petitioner/deponent nor verified in terms of O.VI, R.15, C.P.C.---Affidavit in support of petition was silent as to the requirements of O.VI, R.15, C.P.C.--- Affidavit was only signed by Assistant Registrar, Affidavit and Verification Branch of High Court which did not meet the requirement of law---No affidavit in evidence, in circumstances, had been filed as such there was no prime witness of the allegations raised in the memo. of petition---Verification clause of the petition was not signed by the petitioner---Oath Commissioner had not signed the affidavit as such verification was not sworn as per requirements of Oaths Act, 1873---Constitutional petition was dismissed in circumstances.

Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 and Election Petition No.S-03 of 2018 ref.

Ghulam Murtaza Shaikh for Petitioner.

Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo for Respondent No.1.

Shahryar Imdad Awan, Assistant Advocate General Sindh.

2020 C L C 117

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MASTER MOTOR CORPORATION (PVT.) LIMITED through Authorized Representative----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Industries and Production and 2 others----Respondents

Constitutional Petitions Nos. D-3552 of 2017 and D-1264 of 2018, decided on 12th February, 2019.

Automotive Development Policy, 2016-21---

----Constitutional petition---Greenfield status, conferment of---Principle---Petitioner was a motor company and had assailed conferring of Greenfield status upon respondent company---Plea raised by petitioner was that award of such status was not in consonance with Automotive Development Policy 2016-21---Validity---Forland Vehicles were marketed in Pakistan in past and said brand itself was not novel to the market---Brand of Kia and Hyundai were also not new to market as same were being assembled in Pakistan previously--- Subsequent to termination of such activity and with a view to reintroduce such brand in market, Greenfield status was conferred upon new entrants who had sought to reintroduce brand to Pakistan---Petitioner itself was conferred with Greenfield status in order to assemble and purvey Changan vehicles which were also previously being assembled and purveyed in Pakistan by another entity---High Court declined to interfere in the matter as conferring of Greenfield status was done in uniform manner and same could not be termed to be arbitrary and/or discriminatory---Constitutional petition was dismissed in circumstances.

Zainab Garments v. Federation of Pakistan and another PLD 2010 Kar. 374; Jalal and another v. The Punjab Provincial Corporate Bank and another 1999 YLR 2204; Shaheen Cotton Mills, Lahore v. Federation of Pakistan, Ministry of Commerce through Secretary PLD 2011 Lah. 120; Tahir Humayun v. High Court of Balochistan PLD 2016 Quetta 56; Asif Fasihuddin Khan v. Government of Pakistan 2014 SCMR 676; Messrs MIA Corporation v. Pakistan PWD and others PLD 2017 Isl. 29; Shamim Khan v. Pakistan Defence Housing Authority 1999 YLR 410; Saad Muhammad Shaheen Al-Soofi and 8 others v. Principal and Chairman, Academic Council, Sindh Medical, Karachi and another 1982 CLC 805; Messrs Phoenix Mills and others v. City District Government, Karachi PLD 2003 Kar. 83; Dildar Ali v. D.C.O. Chiniot and others 2015 CLC 1141; Shaukat Ali and others v. Government of Pakistan, Ministry of Railway and others PLD 1997 SC 342; Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279; Hassan Bux v. Board of Intermediate and Secondary Education, Hyderabad through Chairman and others 2017 PLC (C.S.) 350; Ghulam Fatima and another v. Border Area Allotment Committee and others 1982 CLC 2217; Zeeshan Bhatti v. Maqbool Bhatti and another PLD 2001 SC 415; Syed Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; The Chief Settlement Commissioner v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Landale and Morgan Pakistan Ltd. v. The Chairman Jute Board Dacca and another 1970 SCMR 853; Mohammad Abdul Salaam v. Chairman East Pakistan Election Authority and others PLD 1965 Dacca 231; Najeebullah and others v. Director NADRA and others PLD 2016 Bal. 1 and Pakcom Ltd. v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Barrister Abid Shahid Zuberi Barrister Ayan Mustafa Memon for Petitioner (in C.P. No.D-1264 of 2018).

Barrister Ravi R. Pinjani for Petitioner (in C.P. D-3552 of 2017).

Sheikh Liaquat Hussain Assistant Attorney General for Respondent (in both petitions).

Asim Ayaz Deputy General Manager Incharge (Policy) Engineering Development Board for Respondent No.2 (in both petitions).

Mukesh Kumar G. Karara for Respondents Nos.3 (in both petitions).

2020 C L C 148

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

FAIZ AHMED----Petitioner

Versus

Mst. SONI and 2 others----Respondents

Constitutional Petition No.S-163 of 2018, decided on 30th August, 2018.

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

----S. 5, Sched---Suit for recovery of maintenance allowance for wife and children---Husband is under obligation to maintain his wife and father is obliged to provide maintenance to his son till he attains majority and to his daughter till she gets married and maintenance includes food, shelter, clothing and all other things which are necessary for the life.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction could not be converted into appellate jurisdiction---Disputed questions of facts could not be re-agitated in constitutional jurisdiction---Findings of fact recorded by the Courts below could not be disturbed in constitutional jurisdiction of High Court---High Court had to consider whether the grant of relief prayed for would foster the cause of justice or it would perpetuate injustice.

(c) Pleadings---

----Parties are bound by their pleadings---Evidence adduced beyond the pleadings is not permissible under the law---Party has to first plead facts and pleas in the pleadings and then to prove the same through evidence and no one can be allowed to improve the case beyond what is originally set-up in the pleadings---Evidence or argument with regard to a plea not taken in the pleadings cannot be looked into and no one is allowed in a judicial proceeding to adduce evidence in support of contention not pleaded by him, which can certainly be ruled out of consideration and the decision of the case cannot rest on such evidence and contention beyond the pleadings.

Aslam Sipio for Petitioner.

Waqar Ahmed Leghari for Respondent No.1.

Habib-ur-Rehman Jamali, Assistant Advocate-General.

2020 C L C 163

[Sindh]

Before Fahim Ahmed Siddiqui, J

Mst. ANJUM SHEHNAZ and others----Plaintiffs

Versus

KARACHI DEVELOPMENT AUTHORITY through Director General and others----Respondents

Civil Suit No.1555 of 2006, decided on 21st February, 2019.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1---Suit having been filed during pendency of a constitutional petition---Withdrawal of constitutional petition without seeking permission to file a fresh suit---Effect---Proper course available to the plaintiffs was to approach the Court for withdrawal of constitutional petition before filing of present suit---Plaintiffs at the time of withdrawal of constitutional petition must have sought permission for filing of present suit---Plaintiffs neither withdrew constitutional petition filed before the institution of present suit nor sought any permission for the same---Present suit was not maintainable in circumstances.

Umed Ali and 12 others v. Government of Sindh and others PLD 2007 Kar. 224 and Muhammad Yar (deceased) through LRs and others v. Muhammad Amin (deceased) through LRs and others 2013 SCMR 464 rel.

Muhammad Akram Siddiqui for Plaintiffs.

Nemo. for Respondents.

2020 C L C 179

[Sindh]

Before Syed Hassan Azhar Rizvi and Aziz-ur-Rehman, JJ

AHMED ASIF SIDDIQUI and others----Petitioners

Versus

IIIrd ADJ EAST KARACHI and others----Respondents

Constitutional Petitions Nos.D-324 and D-323 of 2017, decided on 26th February, 2019.

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

----O. XXI, Rr. 84, 85, 89, 90 & 91 & S. 65---Partition of immovable property---Execution petition---Auction of property---Requirements---Executing Court passed order for holding fresh auction but Appellate Court set aside the same with the direction to complete sale proceedings in favour of auction purchaser---Contention of petitioners-decree holders was that they were ready to purchase the shares of other legal heirs but Court Auctioneer had not mentioned the said offer in his auction report---Validity---Offer of legal heirs in the matter of inheritance should be given preference over the offer of third party subject to the ability to match the highest bidder---Judgment-debtors and decree-holders did not extend their consent in favour of auction purchaser rather they themselves had shown their intention to purchase the subject property for higher amount than the offered amount of auction purchaser---Court or officer holding the sale, if authorized in this regard, had discretion to decline the acceptance of highest bid if offered price was either inadequate and/or otherwise the property under auction/sale had the potential to fetch more price than the offered one---Executing Court was aware with regard to location of the subject property and its market value---Submission of bid did not mature into a contract until and unless same was accepted---Nazir of the Court who was sent execution petition was not competent to accept or refuse any bid---Nazir of the court, in the present case, had acted as an agent of the seller but ex-facie he was not vested with the power either to accept or refuse any of the offers received by him and offer was placed before the Executing Court---Deposit of 25% of the bid amount was subject to its realization---Auction purchaser could not claim any legal/vested right in the subject property mere on the basis of deposit of 25% of the bid amount---No right/title in the auctioned property should be deemed to be created/transferred in favour of any bidder unless bid was forwarded to and accepted by the Court---Once sale was accepted and balance 75% of the bid amount was deposited within fifteen days then such bid would be deemed to have been confirmed automatically if otherwise no order for confirmation of sale was passed---Ownership right in the auctioned property would be deemed as vested in the successful bidder from the date when auction was held---Mere participation in the auction proceedings and floating a highest bid by an auction purchaser did not clothe him with any right in the property being auctioned---Auction purchaser on the basis of his highest bid could not claim any right and/or had any locus standi to challenge the order passed for re-auction/sale of property by the Executing Court until and unless such offer of auction purchase was accepted---Offer of auction purchaser had been rejected in the present case and he could not ask for deposit of balance of 75% amount---Provisions of Order XXI, Rr. 84 & 85, C.P.C. were mandatory in nature and on non-compliance thereof property under auction/sale was liable to be re-sold forthwith---Appellate Court had failed to appreciate that subject property belonged to the legal heirs of deceased---Executing Court was not only to act as custodian of legal heirs but it had power either to accept or reject any of the bids whether it was lowest or highest---Appellate Court had wrongly exercised jurisdiction after rejection of highest offer/bid of auction purchaser by the Executing Court and committed illegality and irregularity while passing the impugned order---Impugned order passed by the Appellate Court was set aside and Nazir of the Court was directed to conduct sale of subject property afresh and parties were allowed to participate in the same---Constitutional petition was allowed, in circumstances.

Munnalaldanr and another v. Gopilal Nathuram and others AIR 1940 Nagpur 337 ref.

Mst. Mehwish Kashif through Attorney/Husband v. Messrs Summit Bank Ltd. and 4 others 2014 CLC 1424; Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others PLD 1953 L 143; Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Messrs Irisma International and 3 others v. United Bank Limited, Karachi and another 2006 CCD 832 and Messrs Capital Poultry Feed and Dall Mills and others v. Presiding Officer of Banking Court, Islamabad and others 2016 CLD 1260 distinguished.

Munshi Muhammad and another v. Faizanul, Haq and another 1971 SCMR 533; Muhammad Ikhlaq Memon v. Zakaria Ghani and others 2005 CLD 1589 and Captain-PQ Chemical Industries (Pvt.) Ltd. v. Messrs A.W. Brothers and others 2004 SCMR 1956 rel.

(b) Words and phrases---

----'Sale'---Elements---Transfer of property or title for a price; agreement by which such a transfer takes place---The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable of being transferred, and (4) a price in money paid or promise.

Black's Law Dictionary [Seventh Edition] rel.

Muhammad Khalid for Petitioners Nos.2 to 4 (in Constitutional Petition No.D-324 of 2017).

Riaz Ahmed Phulpoto for Respondent No.8 (in Constitutional Petition No.D-324 of 2017).

Junaid Alam Khan for Auction Purchaser (in Constitutional Petition No.D-324 of 2017).

Riaz Ahmed Phulpoto for Petitioner (in Constitutional Petition No.D-323 of 2017).

Junaid Alam Khan for Respondent No.1 (in Constitutional Petition No.D-323 of 2017).

Muhammad Khalid for Petitioners Nos.2 to 5 (in Constitutional Petition No.D-323 of 2017).

2020 C L C 232

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MIRPURKHAS SUGAR MILLS LIMITED and 16 others----Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and 7 others----Respondents

C.Ps. Nos. 8591, 8592 and 8624 of 2018, decided on 5th March, 2019.

Sindh Sugar Factories Control Act (XXII of 1950)---

----S. 16[as amended by Sugar Factories Control (Sindh Amendment) Act (X of 2009)]--- Notification No. 8(142)/S.O.(Ext.)/2018-19 dated 07-12-2018--- Constitution of Pakistan, Art. 130---Decision of Provincial Government--- Scope--- Petitioners were aggrieved of Notification No. 8(142)/S.O.(Ext.)/2018-19 dated 07-12-2018 whereby Provincial Government fixed price for supply of sugarcane to sugar factories--- Validity--- Power to fix minimum support price for sugarcane was vested in "Provincial Government" and by definition same was required to mean Provincial Cabinet--- No decision in such regard was taken by Cabinet or even by the Chief Minister on or before date when notification in question was issued--- Even subsequent to issuance of notification, in Cabinet meeting post-facto rectification was sought to be accorded without any identification of decision or decision maker in such regard--- High Court set aside notification in question as same was issued otherwise than in accordance with law---Constitutional petition was allowed accordingly

Mustafa Impex and others v. The Government of Pakistan and others PLD 2016 SC 808 and Karamat Ali and others v. Government of Sindh PLD 2018 Sindh 8 rel.

Ijaz Ahmed Zahid for Petitioners (in C.P. No.D-8592 of 2018).

Abdul Sattar Pirzada Barrister at Law for Petitioners (in C.P. Nos.D-8591 and 8592 of 2018).

Mamoon N. Chaudhry for Petitioners (in C.P. Nos.D-8591 and 8592 of 2018).

Syed Mureed Ali Shah for Petitioner (in C.P. Nos.D-8591 and 8592 of 2018).

Kafeel Ahmed Abbasi Deputy Attorney General for Respondents.

Jawad Dero Additional Advocate-General for Respondents.

Rafiq Ahmed Kalwar for Sindh Abadgar Board.

Abdul Samad Shaikh Focal Person (Legal) Agriculture Department.

Nawab Zubair Talpur President Sindh Growers Alliance.

Muhammad Masroor Soomro Member Executive Committee Sindh Abadgar Board for Respondents.

Muhammad Anwar General Secretary Sindh Growers Alliance for Respondents.

2020 C L C 254

[Sindh]

Before Nadeem Akhtar, J

NIZAR NOOR and others----Petitioners

Versus

AMEER ALI and others----Respondents

Constitutional Petition No. S-90 of 2007, decided on 8th July, 2019.

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

----S. 2(i)--- Term 'rent'--- Connotation--- Definition of 'rent' contained in section 2(i) of Sindh Rented Premises Ordinance, 1979 includes "electricity charges" which are payable by the tenant.

Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671; Muhammad Afzal v. IInd Addl. District and Sessions Judge and 2 others PLD 2008 Kar. 189; Muhammad Qasim v. VIth Additional District and Sessions Judge Karachi Central and 2 others 2008 CLC 446; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28; Dr. Syed Ateeq Ahmed v. Mst. Nargis Jamal 1989 CLC 160; Syed Adil Hussain v. Mst. Majda 2000 CLC 1982; Syed Kazim Raza Afridi and others v. District Judge and others PLD 2005 Kar. 425; Badruddin v. Muhammad Yousuf 1994 SCMR 1900 and Mst. Rehana Begum v. Mst. Shagufta 1995 SCMR 323 rel.

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

---- S. 15--- Default--- Subsequent payment--- Effect--- Once default is committed it cannot be wiped out by subsequent payment.

Reckitt and Colman of Pakistan Ltd. v. Saifuddin G. Lotia and 3 others 2000 SCMR 1924 and Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another 2009 SCMR 453 rel.

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

---- Ss. 2(i) & 15(2)(ii)--- Ejectment petition---Default in payment of utility bills---Effect---Landlords sought ejectment of tenant on grounds of non-payment of utility bills--- Rent Controller directed tenants to vacate premises but Lower Appellate Court set aside the same--- Validity--- Lower Appellate Court failed to appreciate that it was a statutory tenancy and as such rights and liabilities of both the parties were to be governed by Sindh Rented Premises Ordinance, 1979--- Term 'rent' under section 2(i) of Sindh Rented Premises Ordinance, 1979 included "water charges", "electricity" charges and "such other charges that were payable by tenant" but were unpaid--- Landlords never pleaded or claimed that tenants were liable to pay electricity charges directly to them instead of paying same to the electric company--- Tenants committed default in payment of electricity charges and because of their default, electricity supply of demised premises was disconnected--- Lower Appellate Court wrongly held that landlords failed in proving that tenants had committed willful default in payment of electricity charges as electricity meter was not in name of landlords and demised premises was handed over to tenants without electricity--- High Court, in exercise of Constitutional jurisdiction, directed tenants to vacate demised premises and to handover vacant and peaceful possession to landlords and set aside judgment passed by Lower Appellate Court---Constitutional petition was allowed accordingly.

Badruddin v. Muhammad Yousuf 1994 SCMR 1900; Mst. Rehana Begum v. Mst. Shagufta 1995 SCMR 323; Muhammad Usman v. Dr. Muhammad Hanif 1999 SCMR 2234 and Muhammad Aslam v. Karachi Electric Supply Corporation Ltd., 1988 CLC 482 rel.

Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Muhammad Ashraf v. Abdul Ghafoor and 4 others 1999 SCMR 2633; Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704; Muhammad Ashraf v. Mst. Noor Jehan 1984 CLC 1938; Mrs. Alima Ahmad v. Amir Ali PLD 1984 SC 32; Pakistan State Oil Company (Ltd.) through Authorized Officer v. Muhammad Rafique and 4 others 2010 CLC 1300; Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi (decd.) through L.Rs. PLD 2007 SC 304 and Gulshan Ara v. The State 2010 SCMR 1162 ref.

Abdul Qadir Khan for Petitioner.

Yousuf Moulvi for Respondents Nos.1 and 2.

District Judge, Karachi South.

VIth Senior Civil Judge and Rent Controller, Karachi South.

2020 C L C 275

[Sindh]

Before Syed Hasan Azher Rizvi and Adnan Iqbal Chaudhry, JJ

SAGA SHIPPING AND TRADING CORPORATION LIMITED and 2 others----Appellants

Versus

WALIA STEEL INDUSTRIES PLC through Attorney and 5 others----Respondents

High Court Appeal No.85 of 2018 in J.M. No.59 of 2017 (Suit No.1300 of 2017), decided on 7th May, 2019.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XXIII, R. 3---Withdrawal of suit--- Authority--- Plaintiff company was aggrieved of withdrawal of suit on basis of compromise which was result of misrepresentation and fraud---Single Judge of High Court in exercise of powers under S. 12(2), C.P.C. set aside compromise--- Validity--- To obtain withdrawal of suit it was presented to court by representatives of parties as they had entered into compromise out of court--- To dispute alleged compromise, plaintiff had filed application with affidavits of three persons who were among five attorneys appointed by plaintiff company for purposes of suit--- All three persons were associated with a law firm who stated that plaintiff company had always given its instructions directly to the advocate and not to any of attorneys--- Managing Director of plaintiff company also filed affidavit stating that there was no compromise with defendant Shipping Company and no instructions had ever been given to representative to withdraw suit nor representative had any authority to do so--- High Court declined to interfere in order passed by the Single Judge of High Court as there was no out of court compromise and a case of misrepresentation was established---High Court appeal was dismissed in circumstances.

Noor Muhammad v. Muhammad Siddique 1994 SCMR 1248; ANSW Enterprises v. Askari Commercial Bank Ltd. PLD 2001 SC 107; Azhar Asia Shipping Agency v. Ghaffar Corporation PLD 1996 SC 213; and Arokey Limited v. Munir Ahmed Mughal PLD 1982 SC 204 and Shabana Irfan v. Muhammad Shafi Khan 2009 SCMR 40 distinguished.

Lahore Development Authority v. Firdous Steel Mills 2010 SCMR 1097 and Islah High School, Chiniot v. Jawad Hussain 1996 SCMR 193 ref.

Azhar Maqbool Shah for Appellants Nos.1 and 3.

Chaudhry Muhammad Iqbal for Appellant No.2.

Jawad A. Sarwana for Respondent No.1.

Nemo for Respondents Nos.2, 3, 5 and 6.

Muhammad Rashid Arfi for Respondent No.4.

2020 C L C 300

[Sindh]

Before Muhammad Faisal Kamal Alam, J

SHAHZAD NABI----Plaintiff

Versus

NASEER TURABI and 9 others----Defendants

Suit No.1680 of 2015, decided on 18th October, 2019.

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

----S. 12---Suit for specific performance of agreement to sell immoveable property---Requirements---Deposit of balance amount---Object and purpose of direction to deposit balance sale price in Court---Scope---Object and purpose of giving directions to deposit balance sale price in Court was to test bona fides, readiness and willingness of plaintiff besides tentatively assessing his financial ability --- Readiness and willingness of a party to purchase a property was directly linked with such party's financial soundness ---- Terms "ready" and ""willing" to complete sale could not be claimed by a party merely by stating so, but should be demonstrated through tangible evidence, inter alia, by depositing the balance in Court --- Merely furnishing documents of some other immoveable property which belonged to some other person could not be accepted as compliance of order of the Court to deposit balance amount ---Mandatory in a suit for specific performance of agreement to sell immoveable property that the plaintiff / buyer deposit the balance amount in court otherwise non-compliance of such direction to deposit amount, would result in dismissal of the suit.

Adil Tiwana and others v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Sardar Ali Shah and others v. Ghufran Ullah and others 2011 CLC 1787; Muhammad Shoaib v. Jamila Khatoon 2015 YLR 1213 distinguished.

Hamood Mehmood's case 2017 SCMR 2022 rel.

(b) Contract Act (IX of 1872)

----Ss. 73 & 74 --- Specific Relief Act (I of 1877), S. 12---Breach of contract---Consequences --- Compensation for loss or damage caused by breach of contract --- Compensation for breach of contract where penalty was stipulated for---Contract for sale of immoveable property---Earnest money, forfeiture of Discretion of Trial Court ---- Scope--- Advance or earnest money could be forfeited if a purchaser backtracked from his / her contractual commitments --- Parties may determine expected losses and agree for an amount to be paid in breach of contract and earnest money was part of purchase price when transaction went forward, and same was forfeited when a transaction fell though by reason of fault and failure of vendee ---- Discretion, however lay with the Court to interpret and implement a forfeiture clause in an agreement --- Court, if forms an opinion, that amount mentioned in an agreement as liquidated damages for breach, penalty or forfeiture; was unreasonable, then it was not necessary to implement such clause --- Court was not to permit a party to keep the entire amount if it was exorbitantly high and unreasonably harsh.

Messrs Ravians Paper's case 2004 CLD 984 and Baghpati's case 2017 CLC Note 4 rel.

Tariq Hussain for Plaintiff.

Farhatullah for Defendants Nos.1 to 7.

Akhter Hussain and Muhammad Masaud Ghani for Intervener.

Ms. Leela @ Kalpana Devi, AAG.

2020 C L C 323

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

Messrs AM & MJ BUILDERS (PVT.) LIMITED through Director----Petitioner

Versus

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

Constitutional Petition No.D-842 and C.M.A. No.3230 of 2019, decided on 12th June, 2019.

Sindh Public Procurement Rules, 2010---

---- R. 47(2)--- Pakistan Engineering Council Engineering Works Bye-Laws, 1987, Byelaw 4(7)--- Constitution of Pakistan, Arts. 18 & 25---Procurement of public works---Pakistan Engineering Council licence--- Petitioner was a duly licensed contractor who assailed previous work experience made a condition necessary for contractors to participate in tender--- Validity--- Licence issued by Pakistan Engineering Council did not certify ability of bidder nor was certification in respect of competence and guaranteed satisfactory performance of any works to be performed by contractor for a procuring agency---If procuring agency was of the view that some previous experience of certain works was necessary then incorporation of such condition in tender could not be held to be discriminatory as it was applied to all bidders---Nine bidders had already participated and plea of petitioner was misconceived--- Condition in question was neither discriminatory in nature nor was a restraint on trade as contained by placing reliance on Arts. 18 and 25 of the Constitution--- Once it was made applicable to all, then it could not be set aside on sole ground that it did not entitle a new contractor to enter in bidding process--- Such plea would have sufficed at the most if there were not any other bidder except one or two---High Court declined to interfere in the matter in circumstances--- Constitutional petition was dismissed in circumstances.

Ali Raza Baloch for Petitioner.

Noor Hassan Malik, Assistant A.G. along with Ahsan Ali Chohan, XEN, Public Health Engineering Department, Sukkur for Respondent No.4.

2020 C L C 331

[Sindh]

Before Muhammad Faisal Kamal Alam, J

ISMAIL MEMORIAL TRUST through Trustee----Plaintiff

Versus

KARACHI CO-OPERATIVE HOUSING SOCIETIES UNION LIMITED Administrator/Chief Officer and 2 others----Defendants

Suit No.620 of 1994, decided on 6th May, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 9---Suit for declaration and permanent injunction---Suit against dispossession of immovable property---Lessee and lessor---Cancellation of lease---Scope--- Plaintiff a registered trust sought, declaration to the effect that Trust was lessee of the Authorities (defendants) and the authorities had illegally and forcibly dispossessed the Trust, therefore, it was entitled to possession of the suit property---Validity---Unrebutted evidence showed that initially allotment order was given to the Trust specifically for construction of a hospital---Authorities claimed that certain amenity plots were handed over to the Metropolitan Corporation for development of parks---Witness of authorities admitted in cross-examination that no proceedings for cancellation of lease were initiated---Other witness of the authorities admitted in cross-examination that no notice was issued for inviting the public objections prior to conversion of suit property into park---Appraisal of evidence showed that till date the ownership of the Trust in respect of suit property was intact and the suit property though not in possession of Trust was still lying vacant---Authorities failed to point out any plausible documentary evidence to substantiate their arguments that before taking possession of the suit property by the Metropolitan Corporation, a due process was followed and/or any park thereafter was developed---No notification or amended layout plan was filed in evidence to show that the suit property, when transferred to the Metropolitan Corporation subsequently, also vested in it---Registered ownership lease could only be cancelled through a proper procedure and not otherwise---Authorities could not have transferred the suit property belonging to Trust to the Metropolitan Corporation without resorting to the requirement mentioned in the lease agreement---No complaint was lodged against the Trust regarding the usage of suit property for any other purpose than construction of hospital---Trust was owner/sub-lessee of the suit property and after having been illegally dispossessed therefrom by the authorities Trust was entitled to the re-possession of the same---Suit was decreed, in circumstances.

Muhammad Saleem Asar and others v. Karachi Building Control Authority and others 2008 YLR 233; A. Razzak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Limited and another 2005 SCMR 142; Abdul Haq v. Thakumal and 4 others 2017 YLR 1816 and Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023 ref.

Yawar Farooqui and Irfan Ahmed Memon for Plaintiff.

Arif Bilal and Seema Yaseen for Defendant No.1.

Muhammad Shaban Solangi for Defendants Nos.2 and 3.

2020 C L C 344

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

UMAID ALI----Petitioner

Versus

The ELECTION COMMISSION OF PAKISTAN through Secretary and 4 others----Respondents

C.P. No.D-493 of 2018, decided on 31st May, 2019.

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

----S. 36(1)(i)---Disqualification----Town Committee---Election---Pecuniary interest---Candidate being Government contractor had pecuniary interest in affairs of Town Committee where he remained Member/Chairman---Candidate assailed the order of Election Commission wherein he was disqualified from holding office of Chairman/Member of Town Committee----Held, not only could the disqualification be predicated in respect of work to be done or goods to be supplied to a Council but such disqualification was also attracted if a person had otherwise any direct pecuniary interest in the affairs of the said Council-----Section 36(1)(i) of the Sindh Local Government Act, 2013 contained two disjunctive segments and the candidate had been unable to demonstrate before the Election Commission that he had no pecuniary interest in the affairs of the Committee where he remained Member/Chairman---Constitutional petition dismissed.

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

----S. 36(2)(b)----Jurisdiction and power of Election Commission of Pakistan to unseat a Member or Holder of elective office---Scope---Section 36 of Sindh Local Government Act, 2013 expressly provided that the person shall be disqualified from being elected or chosen and/or from being a member of the Council if the disqualifications prescribed in the said provision were attracted---Phrase "being a member" signified that a person who was subsisting as a member could be disqualified by the Election Commission under the provisions of S.36(2)(b) of the said Act.

Abdul Latif v. Election Commission of Pakistan and another 2018 CLC 227 and Abdul Latif v. Election Commission of Pakistan and another in C.P. No.4355 of 2017 ref.

M. Junaid Farooqui for Petitioner.

Jawad Dero Additional Advocate-General for Respondents.

S. Haider Imam Rizvi for Respondent No.5.

Abdullah Hinjrah, Law Officer Election Commission of Pakistan.

2020 C L C 365

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

ALI MUHAMMAD and 4 others----Applicants

Versus

Learned ADDITIONAL DISTRICT JUDGE-III, DADU and 14 others----Respondents

Civil Revision Application No.253 of 2018, decided on 5th July, 2019.

Civil Procedure Code (V of 1908) ---

----O. XLI, R. 31---Suit for declaration---Judgment in appeal---Points for determination, non-framing of---Effect---Appellate Court was to scan and examine the material available on record as well as evidence adduced by the parties---Compliance of O. XLI, R. 31, C.P.C. was mandatory in nature and Appellate Court could not evade the said provision---Appellate Court had failed to record reasons upon each and every issue framed by the Trial Court; to decide the controversy in the purview of evidence adduced by both the parties; and no reason had been furnished while dismissing the appeal---Appellate Court had failed to comply with the mandatory provisions of O. XLI, R. 31, C.P.C. while deciding the matter---No points for determination had been framed by the Appellate Court nor any findings had been recorded on the same---Matter was remanded to the Appellate Court with the direction to decide the same afresh---Revision was allowed accordingly.

2018 SCMR 76 and 2018 SCMR 1616 ref.

Imdad Ali Unar and Ghulam Murtaza Shaikh for Applicant.

Raja Jawad Ali Sahar for Respondents.

Intizar Hussain Qureshi for the State.

2020 C L C 371

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD NASEEM JAN and 3 others----Plaintiffs

Versus

MUHAMMAD AZEEM JAN and others----Defendants

C.M.A. No.5152 of 2018 in Suit No.821 of 1999, decided on 21st February, 2019.

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

----O. VII, R.18---Additional evidence----Deed of power of attorney was misplaced at the time of filing of the suit----Tendering of fresh power of attorney when suit was at the verge of finalization----Validity---Any new document, which was not in existence at the time of filing of suit or even at the initial stage of suit, could not be considered as a piece of additional evidence----Law had provided a mechanism for establishing a missing or lost documents and the same course ought to be adopted by plaintiff through examination of witnesses instead of creating a fresh similar document---Application for filing of additional evidence was dismissed.

M.S. Qureshi for Plaintiff No.1.

Mirza Atif for Plaintiffs Nos.2 to 3.

Mirza Sarfraz Ahmed for Defendants (in Suits Nos.821 of 1999 and 18 of 2012).

2020 C L C 377

[Sindh]

Before Yousuf Ali Sayeed, J

ABDUL QUDUS ALVI----Plaintiff

Versus

The NED UNIVERSITY OF ENGINEERING AND TECHNOLOGY through Registrar and 2 others----Defendants

Suit No.1878 of 2018, decided on 30th May, 2019.

Civil Procedure Code (V of 1908)---

-----O.XXIII, R.1(3)---Constitution of Pakistan, Art.199---Constitutional petition, withdrawal of---Fresh suit---Bar under O.XXIII, R.1(3), C.P.C.---Applicability---Plaintiff filed constitutional petition but thereafter withdrew the same unconditionally---Plaintiff filed suit with regard to same subject matter---Validity---Held, withdrawal of constitutional petition did not serve to bar the suit under O.XXIII, R.1, C.P.C.

Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551 and Shahbaz Khan v. Additional District Judge, Ferozewala and others 2017 SCMR 2005 distinguished.

Amber Ahmed Khan v. P.I.A. Corpn. PLD 2003 Kar. 405 and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others AIR 1987 SC 88 rel.

Maula Bux Khatian for Plaintiff.

Khalid Javed for Defendants Nos.1 and 2.

2020 C L C 384

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

ALAMZAIB----Applicant

Versus

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

R.A. No.S-08 of 2018, decided on 11th February, 2019.

Civil Procedure Code (V of 1908) ---

----O. XLI, R. 19---Limitation Act (IX of 1908), S. 5---Appeal dismissed in default---Restoration of---Limitation---Condonation of delay---Petition for restoration of appeal was dismissed being time barred---Contention of applicant was that due to illness he could not file petition for restoration of appeal within time---Validity---Applicant and his counsel after filing of appeal did not take interest in proceeding with the matter---Petition for restoration of appeal was moved with delay of fifty days along with an application for condonation of delay---No affidavit of counsel had been filed with the application for restoration of appeal---Alleged medical certificate filed along with the petition was manipulated one---Neither counsel for appellant nor any person as attorney appeared to satisfy the Court that appellant was vigilant in pursuing his case with due care---Counsel for the appellant could himself file application for restoration of appeal with his own affidavit in time---Appellate Court was justified to pass the impugned order for dismissal of appeal for non-prosecution---Delay of each and every day had not been accounted for---Law did favour disposal of cases on merits but it would help the vigilant and not the indolent---No illegality had been committed by the Appellate Court while passing the impugned order---Revision was dismissed, in circumstances.

Suresh Kumar for Applicant.

Wali Muhammad Jamari, Assistant A.G. along with Abdul Hameed Assistant D.C. Office Jamshoro.

2020 C L C 392

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD SHAMSHAD SULAIMAN----Petitioner

Versus

Mst. ALMAS BEGUM and 2 others---Respondents

Constitution Petition No.S-2651 of 2017, decided on 17th November, 2018.

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

----S. 15---Ejectment petition---Bona fide personal need of landlord---Non-mentioning of good faith by the landlord---Effect---Where landlord was willing to get vacated rented premises without good faith, application of landlord would not be allowed on ground of personal need---If the Rent Tribunal had mentioned in his findings "good faith" of "personal need" of landlord; word "bona fide" was not necessary to be mentioned as said word was synonyms with "good faith".

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

----S.15---Ejectment petition---Bona fide personal need of landlord---Contention that landlady did not require the demised premises in good faith but wanted to sell as such purpose did not amount to bona fide need---Validity---Point of selling the premises by landlady was not taken by tenant before two forums below---No such intention was mentioned by landlady in her affidavit in evidence, wherein she had taken plea that she needed the premises to house her daughter---Landlady was not cross-examined on that point; tenant could not take refuge from something mentioned in the pleadings---Landlady was a retired ailing old lady as such her intention that she needed her daughter to be settled in demised premises, appeared to be coherent and reasonable---Owner could sell her/his property at any moment even without getting the same vacated---No doubt under Sindh Rented Premises Ordinance, 1979, rented premises could not be vacated solely on ground of selling the same but it was nowhere mentioned in the said Ordinance that after getting the premises vacated owner could not sell the same---Landlady had established her personal need---Findings of two courts below did not require any interference.

PLD 1981 SC 246 rel.

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

----S. 15---Civil Procedure Code (V of 1908), Preamble---Application of Civil Procedure Code, 1908 to proceedings under Sindh Rented Premises Ordinance, 1979---Scope---Application under the Ordinance could not be equated with plaint of civil suit---Provisions of C.P.C. were not applicable to the same.

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

----S. 15---Ejectment petition---Default in payment of rent---Contention that period of default in payment of rent was not mentioned in the ejectment application, therefore, tenant was not a "defaulter"---Validity---Admittedly tenant used to pay rent through cheque, which was deposited in landlady's Bank account---Statement of Bank account was annexed by the landlady which showed default of 8 months---Default of tenant was established in view of Bank statement.

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

----Arts.86 & 87---Bankers' Books Evidence Act (XVIII of 1891), S.8---Computer generated Bank statement without seal of Bank---Admissibility in evidence---Contention that Bank statements did not bear signature of concerned officials and seal of Bank therefore such statements were not admissible---Landlady's counsel referred to Art.87 of Qanun-e-Shahadat, 1984, regarding certified copies of public record---Held, Bank statement was admissible as certified copy under S.8 of Bankers' Books Evidence Act, 1891 and not under Qanun-e-Shahadat, 1984---Such certified copy did not require seal of Bank, because Bank statement was not a public record but as per provisions of Art.86 of Qanun-e-Shahadat, 1984 was a private document.

Iftikhar Javed Qazi for Petitioner.

Shahida Jatoi for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2020 C L C 410

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

ASSETLINK ASIA (PVT.) LTD. and others----Petitioners

Versus

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

C.Ps. Nos.D-7687 and D-8172 of 2017, decided on 12th February, 2019.

Public Procurement Rules, 2004---

----Rr. 17 & 36(c)(iv)--- Post contract, alterations in terms and conditions---Mis-procurement--- Petitioner was a constituent entity successful bidder who was aggrieved of post bidding modifications in procurement process in order to award contract to unsuccessful bidder---Validity---Criteria for pricing of bids contained in bidding documents did not place un-successful bidder in the category of successful bidder and on the contrary deemed un-successful bidder to be the least qualified to be awarded the contract---Subsequent modifications in pricing criteria inspired a stranger to the proceedings and upon the request of un-successful bidder itself could not be considered to be a transparent or tenable---Procurement agency remained competent to ask for additional information pursuant to R.17 of Public Procurement Rules, 2004 and had competence to revise any aspect of evaluation criteria pursuant to R. 36(c)(iv) of Public Procurement Rules, 2004---Such power could only be exercised if such revisions were communicated to all bidders equally at time of invitation to submit bid and sufficient time was allowed to bidders to revise their bids--- Such prescription was not followed and modification in evaluation criteria was undertaken subsequent to opening of technical bids and also post opening of financial bids--- No subsequent variation possible in terms of a tender, especially when such a change was to manifest advantage of an otherwise un-successful bidder--- Belated unjustified parachuting of the lowest bidder into tender process, manner adopted for modification of evaluation criteria post opening of bids and implementation of such modifications could not be considered to be transparent and / or in public interest--- High Court set aside tender process culminating into contract as it was manifest violation of law--- Constitutional petition was allowed in circumstances.

Popular International (Pvt.) Ltd. v. Province of Sindh PLD 2016 Sindh 19; Salahuddin Dharaj v. Province of Sindh PLD 2013 Sindh 236; Atta Ullah Khan Malik v. Federation of Government of Pakistan PLD 2010 Lah. 605; Pakistan Gas Port Ltd. v. Sui Southern Gas Co. Ltd. and others PLD 2016 Sindh 207; Habibullah Energy Limited v. Water and Power Development Authority 2008 YLR 2612; Muhammad Ayub and Brothers v. Capital Development Authority Islamabad PLD 2011 Lah. 16 Toyota Garden Motors (Private) Limited v. Government of Punjab and others PLD 2012 Lah. 503 and PLD 2011 SC 619 ref.

Haider Waheed and Abdul Moiz Jaferi for Petitioner (in C.P. No.D-7687 of 2017).

Asad Iftikhar for Petitioners (in C.P. No. D-8172 of 2017).

Ishrat Zahid Alvi Assistant Attorney General (in both petitions) for Respondent No.1.

Shahid Ali for Respondent No.2 (in both petitions).

Ali Aziz for Respondent No.3 (in C.P. No. D-7687 of 2017)

Kashif Imaduddin and Abdul Hameed for Respondent No.3 (in C.P. No. D-8172 of 2017 and for respondent No.4 (in C.P. No.D-7687 of 2017).

2020 C L C 454

[Sindh]

Before Muhammad Junaid Ghaffar, J

PAKISTAN NATIONAL SHIPPING CORPORATION and 9 others----Plaintiffs

Versus

Messrs CONISTON LIMITED through Principal Officer and another----Defendants

C.M.As. Nos.9966, 8738, 8739 and 7806 of 2018 in Suit No.1039 of 2018, decided on 25th February, 2019.

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

----O. VII, R. 11--- Rejection of plaint--- Procedure--- Once a party comes before court seeking rejection of plaint under O. VII, R. 11, C.P.C., presumption is attached to such claim that court is vested with some jurisdiction to examine plaint and reject it--- Application under O.VII, R.11, C.P.C. can only be entertained by court of competent jurisdiction--- Plaint can only be rejected by a court which otherwise has jurisdiction to entertain suit/plaint and to decide entire lis on merits--- If during such proceedings application is filed by defendant for rejection of plaint on grounds mentioned in O. VII, R.11, C.P.C., court that has jurisdiction can decide application either way--- Once it is pleaded on behalf of defendant that court has no jurisdiction, no such application can be filed and entertained under O.VII, R.11, C.P.C. by same Court.

(b) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

---- S. 3--- Specific Relief Act (I of 1877), Ss. 42 & 56--- Civil Procedure Code (V of 1908), Ss. 19 & 20 & O. XXXIX, Rr. 1 & 2--- Anti-suit injunction, grant of--- Jurisdiction of court--- Cognizance by foreign court--- Arrest and release of vessel--- Cause of action--- Plaintiff was a Pakistan Shipping Company whose vessels were arrested by orders of court in South Africa against complaint of defendant--- Plaintiff sought anti-suit injunction against defendant company on grounds that High Court adjudicating arbitration had jurisdiction to issue anti-suit injunction--- Plea raised by defendant was that matter was pending before court in South Africa and courts in Pakistan had no jurisdiction--- Validity--- Jurisdiction to grant anti-suit injunction was to be exercised with very considerable caution and for that reason was probably very rarely exercised--- Injunction would in such circumstances only be granted where very clearest case of oppression was made out--- When other ingredients for grant of an anti-suit injunction were lacking, court could not exercise such jurisdiction--- Nature of proceedings in both jurisdictions was also needed to be examined and for establishing ingredients of it being oppressive and vexatious, it ought to have been of same nature in substance--- Cause of action was to be examined with care and due regard was to be given before passing of any such injunctive order which was also lacking--- Since court in South Africa was already seized of the matter, there was no other proposed action in line, any exercise of jurisdiction by High Court would tantamount to transgressing norms of judicial restraint--- It was but natural that it should be left with court seized of the matter to decide whether it had any jurisdiction or not--- High Court observed that it was not appropriate and would be violative of principles of comity that one court would injunct another court on ground of forum non conveniens--- Plaintiffs failed to make out any prima facie case for grant of anti-suit injunction--- Neither balance of convenience lay in their favour nor any question of an irreparable loss arose--- Defendant was not within personal jurisdiction of High Court and it was a futile exercise to pass any restraining order regarding its enforceability--- Application was dismissed accordingly.

Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525; Ehsanul Haq Piracha and others v. Tajammul Hussain 1991 CLC Note 216 p. 169; Messrs Popular Pharmacy, Karachi v. Messrs Nova Bio Medical and others PLD 1996 Kar. 411; Munawar Ali Khan v. Marfani & Co. Ltd. PLD 2003 Kar. 382; Builders Association Ltd. v. The Federation of Pakistan and others PLD 1986 Lah. 171; Muhammad Yasin and others v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395; Province of Punjab through District Collector, Mianwali and others v. Mehmood-ul-Hassan Khan 2007 SCMR 933; Burger King Corp v. John Rudzewicz 471 US 462; Independent News Service (Pvt.) Limited v. India Broadcast Live LLC and others (2007) ILR 2 Delhi 1231; Province of Punjab v. Muhammad Tufail and Company PLD 2017 SC 53; Habib Bank Ltd. v. WRSM Trading Company, LLC PLD 2018 SC 795; The Hub Power Co. v. WAPDA 1999 CLC 1320; Modi Entertainment Network and and others v. W.S.G Cricket PTE. Ltd. AIR 2003 SC 117; Oil and Natrual Gas Commission v. Western Company of North America AIR 1987 SC 674; A Milton and Co. v. Ojha Automobile Engineering Co. AIR 1931 Cal 279; Hussain A. Haroon v. Mrs. Laila Sarfaraz 2003 CLC 771; Mst. Salma Jawaid v. S. M. Arshad PLD 1983 Kar. 303; Jannana De Malucho Textile Mills Ltd. v. Waqar Ahmed PLD 1972 SC 34; Umapati Choudhuri v. Subodh Chandra Choudhuri AIR 1953 Calcutta 377; Mst. Afshan v. Syed Kamran Ali Shah 2013 CLC 1220; Central Board of Revenue, Islamabad v. WAPDA 2014 PTD 1861; Development Authority v. Central Board of Revenue 2005 PTD 2131; Printing Corporation of Pakistan v. Province of Sindh PLD 1990 SC 452; Province of N.W.F.P. v. Pakistan Telecommunication Corporation PLD 2005 SC 670; National Fertilizer Marketing Ltd. v. Secretary Local Government and Rural Development Department 1992 MLD 1203; Workers' Compensation Board and others v. Amchem Products Incorporated and others [1993] I SCR 897; (India TV) Independent News v. India Broadcast Live LIc and others 2007 (35) PTC 177; Airbus Industrie Gie v. Patel and others [1997] 2 LLR Vol-2 page 8; Vulcan iron Works v. Bishumbhur Prosad 36 Calcuta 233; Castanho v. Brown and Root (UK) Ltd. [1980] 1 All ER 689; Magotteaux Industries (Pvt.) Limited and others v. AIA Engineering Limited 155 (2008) DLT 73; Airbus Industries G.I.E v. Patel and others [1998] 2 All ER 257; ([1997] 2 Lloyd's Rep 8 and Amchem Products Inc. v. British Columbia (Workers Compensation Board) (1993) 102 D.L.R (4th) 96 Can SC ref.

(c) Foreign Court---

----Administration of justice---Foreign court---Concurrent jurisdiction---Comity, principle of--- Applicability--- Comity does not demand of a court possessing jurisdiction to abdicate its duty to decide a dispute in favour of a foreign court possessing concurrent jurisdiction--- It would be a dereliction of duty if former declines to adjudicate so as to enable a 'forum non conveniens' court to proceed with hearing of a lis filed or intended to be filed before it.

Hilton v. Guyot, 159 U.S. 113 (1895) rel.

Obaid-ur-Rehman for Plaintiffs.

Shaiq Usmani along with Syeda Ayesha Sarfraz for Defendant No.1.

Agha Zafar Ahmed for Respondent No.2.

2020 C L C 515

[Sindh]

Before Muhammad Faisal Kamal Alam, J

FAIR SEA INTERNATIONAL FZC----Plaintiff

Versus

MV "MISKI" and others----Defendants

Admiralty Suit No.07 of 2018, decided on 23rd September, 2019.

(a) Maritime and shipping---

----"Necessaries", meaning of---Necessaries were goods or materials and in some cases services, provided to a ship for its operation or maintenance---Specific classes of goods, materials and services which qualified as "necessaries" varied to some extent from jurisdiction to jurisdiction, but in general, "necessaries" included such items as bunkers, supplies, repairs towage and stevedoring.

The Maritime and Shipping Dictionary by Aga Faquir Mohammad, Advocate Supreme Court of Pakistan and British Shipping Laws, General Editor, The Hon. Sir Bushby Hewson ,Volume 11. The Merchant Shipping Acts rel.

(b) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss. 3 & 4---Merchant Shipping Ordinance, 2001 (LII of 2001) Ss.549, 550 & 551---Admiralty Jurisdiction of the High Court---Determination of claims under the said Jurisdiction---Award of damages---Precedence of claims---Maritime liens---Liens for wages of crew and master of a vessel---Claims of the Port Authority to have priority---Scope---Wages of crew and master of a vessel were covered under Ss. 549, 550, and 551 of the Merchant Shipping Ordinance, 2001 and such category of claims, were a "maritime lien", which was charge on the res (vessel) and travelled with such vessel --- Such claim had precedence over claim of a mortgagee of vessel --- Charges / dues of a Port Authority were to be ranked at top of all claims provided that such Port Authority had acted diligently --- In a case for multiple claims, first claims / outstanding dues of the Port Authority had to be settled, then wages / claim of crew as determined should be settled where after a mortgagee Bank's claim was to be settled /determined.

Bourbon Maritime (Pvt.) Ltd. v. M.V. Salaj and others 2018 SCMR 1828; Twaha v. The Master M.V. 'Asian Queen' and 2 others PLD 1982 Kar. 749 and Hong Leong Finance Limited v. M.V. Asian Queen through Nazir High Court PLD 1991 SC 1021 rel.

Syed Noman Zahid Ali for Plaintiff.

Nemo. for Defendants.

Dr. Chaudhry Wasim Iqbal, Official Assignee.

2020 C L C 534

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

WORLD CALL CABLE (PVT.) LTD. through Chief Executive Officer----Petitioner

Versus

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

C.P. No.D-324 of 2018, decided on 5th December, 2019.

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

---- S. 26--- Pakistan Electronic Media Regulatory Authority (PEMRA) (Council of Complaints) Rules, 2010, R.8 (4)--- Council of Complaints---Powers---Scope---Cognizance, taking of--- Eventual purposefulness of Council of Complaints is to recommend appropriate action if found for violation of the codes of program content and advertisements as approved by the Authority--- Additional exercise of jurisdiction by Council of Complaints has been added under R.8(4) of PEMRA (Council of Complaints) Rules, 2010, that the Council may take cognizance of such matters as referred to it by the Chairman or the Authority and render its opinion thereon--- If such powers are regarded as powers of the Authority to refer any matter for opinion, then the same cannot travel or regarded beyond the power and jurisdiction of Council of Complaints or the Authority under S.26 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

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

----Ss.26, 29 & 30-A---Pakistan Electronic Media Regulatory Authority (PEMRA) (Council of Complaints) Rules, 2010, Rr.8 & 10---Appeal, right of---Scope---Show-cause notice---Petitioner company was aggrieved of show cause notice and decision of Pakistan Electronic Media Regulatory Authority (PEMRA) whereby penalty of fine was imposed for causing obstruction in official functions--- Plea raised by Authority was that right of appeal was available to petitioner company---Validity---Right of appeal was a right of entering into a superior Court and invoking its aid and interposition to redress error of the forum below---Such was essentially continuation of original proceedings as a vested right of litigant to avail remedy of appeal provided for appraisal and testing soundness of a decision and proceedings of the Court below---Right of appeal was not a mere matter of procedure but it was a substantive right---While considering matters in appeal, appellate Courts could affirm, modify, reverse or vacate the decision of lower Courts--- Communication by PEMRA to petitioner imposing fine on recommendation or opinion of Council of Complaints could not be considered decision of Authority which also lacked pre-requisites and niceties of R. 10 of PEMRA (Council of Complaints) Rules, 2010, in which Authority (PEMRA) had to take into consideration the recommendations made by the Council in each matter and could approve recommendations or disagree with recommendations while recording reasons in writing for the same and could pass such order as deemed appropriate or refer the matter back to the Council for reconsideration if so considered necessary in the opinion of the Authority---No decision was in field against which appeal could have filed and proceedings arising from show-cause notice should have to be initiated under S.29 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, without recourse to Council of Complaints--- High Court set aside the decision of Pakistan Electronic Media Regulatory Authority and observed that the Authority could initiate proceedings against petitioner in accordance with S. 29 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Constitutional petition was allowed in circumstances.

Khurram and others v. Federation of Pakistan and others PLD 2016 Sindh 557; M.Q.M. and others v. Province of Sindh and others 2014 CLC 335; C. Carr Delegated Legislation: threee Lectures (1921) P. 2 Judicial Review of Public Actions by Justice (R) Fazal Karim, Chapter. 3, page 1281, Vol.2 and Bennion on Statutory Interpretation, Fifth Edition Comment on Code S 59. Page 263 "Principles of Statutory Interpretation" by Justice G.P. Singh 12th Edition, 2010 p. 1051 ref.

Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 rel.

(c) Constitution of Pakistan---

----Art. 199--- Judicial review--- Object, purpose and scope--- Judicial review is Court's regimen and command to review legislative and executive actions to maintain and sustain the rule of law--- Under the dominion of Judicial review, the Court reviews lawfulness of a decision or action made by a public body--- Court may invalidate laws, acts and governmental actions that are incompatible with higher authority more so, an executive decision may be invalidated for being unlawful and also maintains check and balance--- Judicial review is an audit and taking stock of legality of decision made by public bodies likewise all corpuses exercising functions of a public law nature are susceptible to challenge--- Judicial review can be sought on the grounds that a decision arises when a decision-maker misdirects itself in law, exercises a power wrongly or improperly purports to exercise a power that it does not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it; a failure to observe statutory procedures or natural justice; or in breach of legitimate expectation, either procedural or substantive.

Tariq Aziz-ud-Din's case; Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 14309-G of 2009 and 2011 PLC (C.S.) 1130 rel.

Fahad Ali Hashmi for Petitioner.

Kashif Hanif for Respondents Nos.1 and 2.

Mohammad Nadeem Khan, Assistant Attorney General.

Hussain Bohra, Assistant Attorney General.

2020 C L C 583

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

PROVINCE OF SINDH, through Secretary and 4 others----Applicants

Versus

HOAT ALI----Respondent

Civil Revision Application No.60 of 2011, decided on 12th December, 2018.

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

----S. 100---Second appeal---Scope---Second appeal could be filed when decision of Court below was contrary to law or usage having force of law; or when some material issue of law had not been decided and when there was substantial error or procedural defect which had resulted in erroneous or defective decision.

Cantonment Board Rawalpindi v. Mohammad Sharif through Legal Heirs PLD 1995 SC 472 and Sheikh Faqeer Mohammad v. Mohammad Din 1993 SCMR 1955 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was limited which could be exercised only in those cases where subordinate Court had exceeded its jurisdiction or had declined to exercise its jurisdiction or acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law---Remedy of revision before High Court could be availed in case no appeal lay against the order which had been impugned in the revision petition.

PLD 1957 Kar. 663; PLD 1976 Kar. 623; PLD 1977 Kar. 297; 1997 CLC 893; 2012 CLC 377; 2010 SCMR 1408; 2004 PTD 1944; 2009 CLC 759; 2003 MLD 1485; 2001 MLD 401; 2006 YLR 1496; 2018 CLC 1524; 2003 SCMR 41; 2008 SCMR 521; PLD 2008 SC 571; 2018 SCMR 1385 and 2017 CLC 1085 ref.

2016 MLD 1926; 2017 CLC 495; 2018 YLR 1557; 2006 SCMR 721 and PLD 2009 Lah. 518 rel.

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

----Art. 113---Admitted facts need not to be proved.

(d) Administration of justice---

----No one could be penalized on account of lapse and negligence made by the others.

Ahmed Ali Shahani, Assistant Advocate General for Applicant.

Kalandar Bux Phulpoto for Respondents.

2020 C L C 602

[Sindh]

Before Muhammad Junaid Ghaffar, J

SAFE MIX CONCRETE LIMITED through Company Secretary---Plaintiff

Versus

PAKISTAN through Secretary (Revenue Division) and 4 others---Defendants

Suit No.1180 and C.M. No. 8874 of 2018, decided on 12th September, 2019.

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

----S. 20(c)--- Jurisdiction of court---Principle---Provisions of S.20(c), C.P.C. confer jurisdiction on court in a civil suit when cause of action arises wholly or in part within territorial jurisdiction of a court--- Suit is competent before a court where even a part or fraction of a cause of action arises---Only contents of plaint are to be looked into in deciding such matters.

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

-----Ss. 20, 9, O. VII, R. 10 & O. XXXIX, Rr. 1 & 2---Territorial jurisdiction of court---Plaint, return of---Scope---Plaintiff was taxpayer who was issued show-cause notice by defendant authorities on discrepancies found during audit and sought restraining order from court---Authorities assailed maintainability of restraining order on grounds that court lacked territorial jurisdiction---Validity---Held, in such matters it was to be seen what main relief was sought by plaintiff---Main relief sought by plaintiff was legality and jurisdiction in issuing show-cause notice by defendant authorities--- Merely for fact that some letters/clarifications issued by Federal Board of Revenue were also impugned, no cause of action could be claimed to have accrued within territorial jurisdiction of court--- Existence of plaintiff within territorial jurisdiction of court did not confer any such jurisdiction as no cause of action accrued within territorial jurisdiction of court either wholly or partly--- Case of plaintiff was against defendant directly and it was only a consequential relief which was being claimed against other defendants--- Such relief would only be available once it was granted as prayed against defendant--- High Court declined to interfere in the matter and returned plaint under O.VII, R.10, C.P.C. as there was no territorial jurisdiction to pass any judgment or decree---Suit was disposed of accordingly.

Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18; LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; Messrs Land Mark Associates through Partner v. Sindh Industrial Trading Estate Ltd. through Chief Executive Officer and another 2018 YLR 2143; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334 and Messrs Ibrahim Fibres Ltd. through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others PLD 2009 Kar. 154 distinguished.

Murlidhar P. Gangwani (Engineer v. Engineer Aftab Islam Agha and others 2005 MLD 1506 and Messrs Dewan Scrap (Pvt.) Limited and another v. Customs, Central Excise and Sales Tax Appellate Tribunal and others 2003 PTD 2127 rel.

Ahmed Hussain for Plaintiff.

S. Mohsin Imam Wasti for Defendant No.2.

Ameer Bux Metlo for Defendant No.3.

2020 C L C 632

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Adnan Iqbal Chaudhry, JJ

SAJJAD AHMED CHANDIO----Petitioner

Versus

The STATE and others----Respondents

Constitutional Petition No.D-2847 and M.A. No.11238 of 2017, decided on 24th July, 2019.

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

----Ss. 85 & 86---Naming of roads, streets, government institutions, etc.---Principles---Petitioner assailed naming of public roads, streets and other institutions against names of political personalities or their family members which were constructed at cost of public exchequer---Validity---If a political figure had enjoyed unblemished record he could qualify (demanding judicial discretion) to earn such honour but his family members could not qualify for the same---Such naming/renaming could only be done by officials under some notification/order with an objective to make local or national/international people aware about real heroes in their personalities---One in authority should have insisted upon unblemished record and service for nation even while considering a political figure for such purpose---Manner in which naming/renaming was dealt with and specific guidelines were provided in separate Chapter of Sindh Local Government Act, 2013 and it showed as to who could qualify for naming/renaming's honour for local or national projects/buildings etc.---High Court directed the authorities to ensure compliance of provisions of Ss. 85 and 86 of Sindh Local Government Act, 2013 in its letter and spirit regarding buildings, roads, bridges, gates of cities, towns and districts etc., which were situated in their respective jurisdictions---High Court observed that compliance would mean removal of all such names which did not squarely fell within specified categories and renaming would be made strictly following guidelines as mentioned in S.86 of Sindh Local Government Act, 2013---High Court further directed that if any person was interested to have continuity of his name or name of his predecessor on any building, park, gate, etc., he would have to satisfy category as mentioned in S. 86(d) of Sindh Local Government Act, 2013, i.e., to bear all costs of such buildings etc., including land costs--- High Court directed the authorities to supervise and remove names not falling within such categories with consultation of respective departments---Constitutional petition was allowed accordingly.

Secretary Punjab Public Service Commission Lahore and others v. Aamir Hayat and others 2019 SCMR 124 rel.

Petitioner Present in person.

Aslam Pervez Khan, Assistant Attorney General for Pakistan.

Allah Bachayo Soomro, Additional Advocate-General, Sindh.

Imran Qureshi for Respondent No.6.

Fayyaz Ahmed Laghari for Respondent No.14.

2020 C L C 669

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

NIAZ ALI and another----Applicants

Versus

Mst. AISHA and another----Respondents

R.A. No.S-168 of 2006, decided on 31st May, 2019.

(a) Islamic law---

----Pre-emption suit by tenant---Maintainability---Right of pre-emption was a feeble right and same only accrued after completion of sale with a bonafide transaction and fulfilling the conditions attached to it---Mortgagee, tenant or mere Benamidar was not entitled to right of pre-emption---Pre-emptor could not pre-empt until he had proved his title---Mere possession did not give right of pre-emption---For establishing right of pre-emption there must be absolute ownership in the contiguous land---Plaintiffs were tenant and right of pre-emption could not be claimed High Court observed that present suit had not been properly drafted and seller had not been made party nor substitution had been sought in the prayer clause---Plaint did not disclose source of knowledge with regard to sale and when Talb-i-Muwathibat and Talb-i-Ishhad were performed---Not only necessary ingredients in respect of claim of plaintiff was missing but plaintiffs had no cause of action---Plaint had rightly been rejected by the Courts below---Revision was dismissed, in circumstances

Imam Abu Hanifa and Imam Muhammad rel.

(b) Islamic law---

----'Pre-emption'---Exercise of right of pre-emption---Requirements detailed.

The right of pre-emption or Shufaa is the right possessed by one person to acquire a property sold to another in preference to that other by paying a price equal to that settled, or paid by the latter. In the language of the law it is a right to take possession of a purchased parcel of land, for a similar (in kind and quality) of the price, that has been set out on it to the purchaser. Prior to operation of the right of pre-emption or 'shufaa' besides the imperative conditions regarding demands or 'Talbs', it is also necessary that there must be three conditions present in order to give a valid claim of such right. The first is that the pre-emptor must himself own property, Secondly, there must be a sale of certain property, and Thirdly, there must be certain relationship between the pre-emptor and the vendor in relation to the sold property. From the definition of pre-emption, it clarifies that the right of pre-emption is a feeble right and the same only accrues after completion of sale with a bona-fide transaction and after fulfilling the condition attached to it. A pre-emptor must be owner of the property in order to claim right of pre-emption. The principle does originate from the tradition, and is unexceptionable to the extent that the tradition of Prophet (P.B.U.H). The right of pre-emption, the milkiyat or the proprietor's interest in the property on which he based his right must be in him till the decree by a Qazi. It is necessary for a pre-emptor that he must enjoy full right of ownership on his property through which he is claiming his right but it is not necessary that he should be in actual possession of it. A mortgagee, tenant or mere Benamidar is not entitled to a pre-emption on any of the grounds the claim is founded. The pre-emptor cannot pre-empt until he has proved his title. Thus mere possession gives no right of pre-emption or 'Haq-e-Shuffa'. For establishing right of pre-emption 'Haq-e- Shuffa' there must be absolute ownership or 'Milkyet' in the contiguous land. For establishing the right of pre-emption through Talb-e-Khashoomat, it is necessary that before the Court firstly a direction is sought against the seller with a prayer that the purchaser be substituted with the preemptor. And if the seller is not found then the preemptor has a right to go after the purchaser.

Bailie 1.475 and Outlines of 'Muhammadan Law' by Asaf Ali Asghar Fyzee p. 289 rel.

Arbab Ali Hakro for Applicants.

Muhammad Arshad S. Pathan for Respondents Nos.1 and 2.

2020 C L C 701

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

Messrs MUHAMMAD BUILDERS (PVT.) LTD. through Managing Director and Attorney----Petitioner

Versus

The PROVINCE OF SINDH through Chief Secretary and 13 others----Respondents

Constitution Petition No.D-730 of 2012, decided on 21st March, 2019.

Cancellation of Bogus Entries (In the Record of Rights) of Government Land Act (IX of 2009)---

----S.3---Constitution of Pakistan, Art. 199--- Constitutional petition--- Cancellation of bogus revenue entries--- Petitioner claimed to be owner of land in question and assailed cancellation of entries in revenue records---Validity---Revenue authorities in suo motu proceedings cancelled land in question granted in favour of person from whom petitioner had purchased lands---Endorsement of such lands was assailed but only ex parte decree against same was obtained and High Court had suspended that ex parte decree---High Court, in exercise of Constitutional jurisdiction, declined to interfere in the matter---Relief under Art. 199 of the Constitution was discretionary and same would not be exercised in favour of person whose own title was dubious and did not convey him any right to hold government land---Constitutional petition was dismissed, in circumstances.

Suo Motu Case No.16 of 2011 ref.

Muhammad Arshad S. Pathan for Petitioner.

Allah Bachayo Soomro, Addl. A.G. along with Ghulam Rasool Panhwar, Assistant Commissioner, Kotri.

2020 C L C 721

[Sindh]

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

PORT QASIM AUTHORITY----Appellant

Versus

INDUSTRIAL MANAGEMENT AND INVESTMENT CO. LTD. and 2 others----Respondents

High Court Appeal No.104 of 2018, decided on 24th December, 2018.

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

----S.51 & XXIII, R. 3---Consent decree, execution of---Intention of parties, determination of---Transfer of land allotment to nominee---Transfer fee---Scope---Respondents sought execution of consent decrees and relied on the words "same lines/procedure adopted earlier" appearing in the consent decrees to refer the fact that the appellant/Authority had previously allowed the transfer of allotment to a nominee---Authority's case was not that the land allotted to the respondents could not be leased to their nominee rather the dispute was with regard to the charges for executing such lease in favour of the nominee---Charges for executing such lease as per Authority's Land Allotment Policy was the transfer surcharge however, the respondents claimed that the transfer surcharge was in breach of the words "same lines/procedure adopted earlier" and hence in breach of the consent decrees---Validity---Decree passed pursuant to a compromise was essentially a contract between the parties which was superadded with the command of the court and therefore a compromise decree was subject to the incidents of a contract---Context of the contract and the intent of the parties at the time of entering into contract had to be seen for determination of the rights and liabilities---Authority had obtained a fee for transfer of rights to the nominee from the earlier allottee---Matter of transfer fee was never an issue between the parties at the time of compromise---Reference in the consent decree to the words "same lines/procedure adopted earlier", was not a reference to the transfer fee/charges; rather the intent of the parties was that in the event the respondents desired to transfer their rights in the allotments to a nominee, the Authority would not object to that as it had allowed such transfer at an earlier point in time---When the compromise was arrived at, the respondents had not applied to the Authority for leasing the land to their nominee---Transfer surcharge as claimed by the Authority for leasing the allotted land to the respondents' nominee was a matter not covered by the compromise and beyond the scope of the consent decree---Executing court could not go beyond the decree---Consent decree could not be executed to compel the Authority to lease the land to the nominee without receiving the transfer surcharge as per its Land Allotment Policy---Appeal was allowed and the execution applications were dismissed.

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

----O.XXIII, R.3---Consent decree---Effect---Decree passed pursuant to a compromise under O.XXIII, R.3, C.P.C. is essentially a contract between the parties which is superadded with the command of the Court and therefore a compromise decree is subject to the incidents of a contract.

Nazir Ahmad v. Ghulama 1987 SCMR 1704 ref.

(c) Contract---

----Interpretation of---Scope---Primary rule for interpretation of a contract is that the context of the contract and the intent of the parties at the time of entering into the contract have to be seen.

House Building Finance Corp. v. Shahinshah Humayun Cooperative Housing Society 1992 SCMR 19 and Saudi-Pak Industrial and Agricultural Investment Co. v. Allied Bank of Pakistan 2003 CLD 596 ref.

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

----S.47---Execution of decree---Powers of Executing Court---Scope---Executing court cannot go beyond the decree.

Ali T. Ebrahim for Appellant.

Mansoor-ul-Arfin for Respondents.

2020 C L C 751

[Sindh]

Before Muhammad Faisal Kamal Alam, J

ZAIBA KABLY----Plaintiff

Versus

TARIQ NAZIR BUKHARI----Defendant

C.M.A. No.2422 of 2014 in Suit No.1417 of 2012, decided on 2nd April, 2019.

Civil Procedure Code (V of 1908)---

----Ss.19, 20 & O.VII, R.10---Suit for declaration and damages---Jurisdiction of court---Office objection---Plaintiff sought recovery of entire sale price and damages on grounds that land in question was not physically available---Office as well as defendant raised objection that High Court had no jurisdiction---Validity---Claim of plaintiff was severable from subject property and plaintiff was not claiming any right or interest in subject property---Plaintiff was demanding her money/sale price back together with damages if at all she was able to prove same---Jurisdiction of High Court was not ousted as defendant was resident of Karachi, sale agreement which though was no longer enforceable was also executed at Karachi and payments were also made at Karachi---Suit was maintainable in circumstances.

Haji Riaz Ahmed Mir v. Brig. (Retd.) Ch. Muhammad Sharif PLD 2003 Kar. 45 ref.

Ghulam Fareed v. Shahid-ud-Din Tughalaq PLD 2008 Kar. 536; Muhammad Naved Islam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176 and Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450 distinguished.

Muhammad Ali Lakhani for Plaintiff.

Muhammad Vawda for Defendant.

2020 C L C 774

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

DILBAR KHAN NIZAMANI through Special Attorney----Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary Government of Sindh and 2 others----Respondents

C.P. No.D-2217 of 2019, decided on 31st May, 2019.

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

----S.80(2)----Functions and dominion of Chairman Municipal Committee assigned to Vice-Chairman---Compulsion or mandatory requirement to issue notification----Chairman unable to perform his duties personally due to his confinement in jail---Entrustment of his official responsibilities to Vice-Chairman to exercise powers and functions without notification under S.80(2) of the Sindh Local Government Act, 2013---Legality---Vice-Chairman in absence of the Chairman may perform his duties as Chairman in terms of S. 80(2) of the said Act without notification but all major and policy decisions would be taken subject to meaningful consultation with the Chairman in prison.

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

----S.80(2)----Chairman Municipal Committee incarcerated in jail---Right to be informed of up-date---Elected Chairman despite his confinement in jail as under trial prisoner had right to be acquainted with and up-to-date with the functions and performance of duties by all other office bearers of the Committee and employees which was concomitant to the proper working of Committee.

Muhammad Junaid Farooqui along with Muhammad Chuttan for Petitioner.

Ali Safdar Deeper, AAG.

Akhlaque Khan Yousufzai, Research Officer, Local Government Department, Government of Sindh.

2020 C L C 785

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

Mrs. AFROZ SHAH and another----Appellants

Versus

ADVOCATE GENERAL SINDH and 11 others---Respondents

H.C.As. Nos.279, 321 of 2018 and 137 of 2019, decided on 5th April, 2019.

Civil Procedure Code (V of 1908)---

----Ss. 92, 93, 96 & O. XLI, R. 31---Removal of trustees--- Non-framing of issues---Failure to record evidence---Plaintiff was original trustee of public trust who was aggrieved of judgment and decree passed by Single Judge of High Court to add new trustees without framing issues or leading evidence--- Validity--- Judgment in question granted final relief for removal of trustees and appointment of a new set of trustees at preliminary stage while circumscribing right of parties to defend themselves against allegations leveled against suit--- Neither Advocate-General nor other defendants could establish that method of proceeding with a civil suit prescribed in C.P.C. could be dispensed with if a suit was brought under S.92, C.P.C. thereof--- Passing of decree at preliminary stage without having framed issues and/or having provided parties with opportunity to lead evidence in order to prove/disprove respective claims was unsustainable---Division Bench of High Court set aside judgment and decree passed by Single Judge of High Court and remanded the same for decision afresh on merits.

Haji Farmanullah v. Latif-ur-Rehman 2015 SCMR 1708; Province of Sindh through Secretary (LU) and others v. Haji Ghano Khan Jatoi and others 2012 CLC 1372 and Ghazala Rahman v. Najma Sultana and others 2012 MLD 188 rel.

Mureed Ali Shah for Appellants (in H.C.A. No. 279 of 2018).

Malik Naeem Iqbal for Appellant (in H.C.A. No.321 of 2018).

Mohammad Mansoor Mir for Appellant (in H.C.A No. 137 of 2019).

Salman Talibuddin Additional Advocate General for Respondents.

Adnan Ahmed for Respondents 2, 6, 7, 8 and 10 (in H.C.A. No. 279 of 2018).

2020 C L C 797

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

PUBLIC INTEREST LAW ASSOCIATION OF PAKISTAN (PILAP) through Authorised attorney----Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others----Respondents

C.P. No.D-977 of 2019, decided on 11th December, 2019.

Pakistan Airports Security Force Act (LXXVII of 1975)---

----S.6---Equipment, procurement of--- Powers and duties of Airport Security Force (ASF)---Petitioner was aggrieved of use of locally manufactured explosive detection devices by Airport Security Force (ASF)--- Validity---Airport Security Force was responsible to maintain and provide foolproof security and to take all best possible measures which they had already undertaken to provide---Providing new equipment or state-of-art detective machines/equipment was responsibility of Civil Aviation Authority--- High Court directed ASF to maintain foolproof safety and security at all airports, aerodromes, aircraft and civil aviation installations and also to safeguard civil aviation against acts of unlawful interference in accordance with provisions of S. 6 of Pakistan Airports Security Force Act, 1975---High Court also directed Director-General Civil Aviation Authority and Director-General ASF to convene high profile meeting to revisit security measures in larger public interest and in case further endeavors/measures were required---Constitutional petition was disposed of accordingly.

Abdul Moiz Jafferi for Petitioner.

Kafeel Ahmed Abbasi, D.A.G.

Sarfaraz Ahmed, Assistant Director (Legal), A.S.F.

2020 C L C 822

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

FAYSAL BANK LIMITED and another---Petitioners

Versus

BANKING MOHTASIB and others---Respondents

C.Ps. Nos. D-2819 of 2016 and D-7326 of 2018, decided on 26th June, 2019.

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

----Ss.2(c) & 10---Banking Companies Ordinance (LVII of 1962), S.82---Constitution of Pakistan, Art. 199---Constitutional petition---Banking Mohtasib, jurisdiction of--- Petitioner was account holder in the defendant Bank from which almost her entire amount was fraudulently misappropriated---Banking Mohtasib decided case in favour of petitioner and the President validated the same---High Court in exercise of Constitutional jurisdiction suspended order passed by Banking Mohtasib on grounds that Mohtasib did not have jurisdiction to entertain such matters---Validity---Prima facie it was borne out from order of Mohtasib that culpability was manifest from admitted facts and documents arrayed before Mohtasib---High Court declined to interfere in order passed by Mohtasib as jurisdiction of Mohtasib to entertain, proceed with and decide with complaints was maintained by court and respondent Bank was unable to point out any infirmity in orders passed by Mohtasib and the President---Order of Mohtasib was suspended by High Court however, as a consequence of determination of case, interim orders stood vacated and there was no impediment to enforcement of order of Mohtasib by forum statutorily prescribed in such regard---High Court set aside application for suspension of order of Mohtasib and also directed petitioner to approach Mohtasib for implementation of order under S. 10(2) of Federal Ombudsmen Institutional Reforms Act, 2013---Application was allowed accordingly.

Muslim Commercial Bank Limited v. Federation of Pakistan and others C.P. No. D-905 of 2017 and Soneri Bank v. Pakland Corporation Private Limited and others High Court Appeal No. 51 of 2013 rel.

Kashif Hanif for Petitioner (in C.P. No. D-2819 of 2016) and for Respondent No. 2 (in C.P. No. D-7326 of 2018).

Malik Naeem Iqbal and Khurram Memon for Petitioner (in C.P. No.D-7326 of 2018) and for Respondent No. 2 (in C.P. No.D-2819 of 2016).

Abdul Razzaq for Respondent No. 1 (in both Petitions).

Manzoor-ul-Haq for Respondent No. 3 (in C.P. No. D-7326 of 2018).

Kafeel Ahmed Abbasi, Deputy Attorney General.

2020 C L C 851

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

SINDH PETROLEUM AND CNG DEALERS' ASSOCIATION and 15 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary and 3 others----Respondents

C.Ps. Nos. D-7097, D-7480, D-7950, D-8093, D-8127, D-8132, D-8137, D-8138, D-8229, D-8740 of 2018, D-1455, D-1557 of 2019 and H.C.As. Nos.382 and 398 of 2018, decided on 3rd September, 2019.

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

----Ss. 6(2)(s), 4(4) & 8(3)--- Natural Gas Tariff Rules, 2002, Rr. 4, 7, 17, 18, 21 & 22---Determination of gas prices--- Alternate and efficacious remedy--- Statutory timeframe, non-adherence to--- Petitioners were Compressed Natural Gas distributors and were aggrieved of determination of sale price of natural gas by Oil and Gas Regulatory Authority (OGRA) towards Sui Southern Gas Company (SSGC)--- Plea raised by petitioners was that OGRA and SSGC had not determined issue within statutory period--- OGRA and SSGC maintained that delay was caused due to interim government tenure--- Validity--- SSGC had no control over actions of Federal Government, caretaker or otherwise and it was never failure of Federal Government to advise--- First advice of caretaker Federal Government was to hold prices pending a decision by incoming elected government and same was followed by advice of elected government to notify prices--- Fixation of gas prices was a public duty and any failure or delay in performance of such duty caused inconvenience/injustice to persons who had no control over those entrusted with duty--- Even if a price determination was delayed, licensee was at liberty to account for shortfall and any costs associated therewith in next assessment--- Detriment to consumer was that instead of an increase being staggered, over period that it was occasioned, entire impact was borne at one go when compounded cost was taken into account--- In case of increasing prices, any delay or denial of an increase in a year would compound quantum in following year which was prima facie undesirable from a consumer point of view--- If Federal Government failed to advise within time and authority failed to exercise its authority to notify its own determination, then no rate revision was possible pending subsequent evaluation cycle, regardless of any escalation in cost components--- Gas pricing structure was a policy driven decision which merited interference only if demonstrably contrary to Fundamental Rights---Petitioners claimed to be financially challenged by rise in natural gas prices but were unable to demonstrate that price structure was arbitrary, discriminatory or contrary to any Fundamental Right---Petitioners were unable to justify their challenge to notification in question and opted to eschew fora provided for redressal of their grievances by governing law--- High Court maintained notification in question---Constitutional petition was dismissed in circumstances.

Lucky Cement Limited v. Federation of Pakistan and others (Writ Petition 5571-P of 2018); Khalid Mehmood v. Federation of Pakistan and others (Writ Petition 9466 of 2019); Mustafa Impex Karachi v. Government of Pakistan and others PLD 2016 SC 808; Pakistan Beverage (Private) Limited v. Federation of Pakistan and others Suit 1978 of 2015; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 and Reference 01 of 1988 PLD 1989 SC 75 rel.

RCD Ball Bearing Limited v. SESSI PLD 1991 SC 308; Statutory Interpretation by Eskeridge, Frickey and Garrett American Casebook Series published by West; R v. Soneji [2005] UKHL 49 [2005] All ER 321; The State v. Imam Buksh 2018 SCMR 2039; Collector of Sales Tax Gujranwala and others v. Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340; Zila Council Jhelum v. Pakistan Tobacco Company Limited and another PLD 2016 SC 398 and Sui Northern Gas Pipelines Limited v. Federation of Pakistan Civil Appeal 159-L of 2018 ref.

(b) Maxim---

----Nova constitutio futuris formam imponere debet, non praeteritis--- Connotation--- New law should regulate what is to follow and not past.

Zila Council Jhelum v. Pakistan Tobacco Company Limited and another PLD 2016 SC 398 rel.

Makhkdoom Ali Khan, Hussain Ali Almani for Petitioners (in C.Ps. Nos.D-8093 and 8229 of 2018).

Mohsin Shahwani for Petitioner (in C.P. No. D-7097 of 2018).

Ameen Bandukda for Petitioners (in C.Ps. Nos. D-7950 of 2018 and 1557 of 2019).

Naveen Merchant for Petitioner (in C.P. No. D-8740 of 2018).

Abdul Rahman, Ahmed Madni (in C.P. No. D-7480 of 2018).

Naeem Suleman, Arshad Hussain for Petitioners (in C.Ps. Nos.D-8127 of 2018 and 1455 of 2019).

Nahl Chamdia for Petitioners (in C.Ps. Nos. D-8093 and 8229 of 2018).

Junaid Mukhtar Siddiqui for Petitioners (in C.P. No. D-8132 of 2018).

Syed Mohsin Ali (in C.Ps. Nos. D-8137 and 8138 of 2018).

Khalid Javed Khan and Uzair Qadir for Appellant (in H.C.A. Nos.382 and 398 of 2018).

Zahid F. Ebrahim Additional Attorney General for Respondents.

Kafeel Ahmed Abbasi, Deputy Attorney General for Respondents.

Hussain Bohra Assistant Attorney General for Respondents.

Khalid Javed Khan and Uzair Qadir for (SSGC).

Asim Iqbal and Mr. Farmanaullah (for OGRA)

Ms. Naveen Merchant (H.C.A. No. 382 of 2018 for respondent No.3).

Ms. Sofia Saeed Shah (H.C.A. No. 398 of 2018 for respondent No.3)

2020 C L C 928

[Sindh]

Before Zafar Ahmed Rajput and Mrs. Kausar Sultana Hussain, JJ

SGS SA through authorized Attorney and 3 others----Appellants

Versus

SYED FARUKH MAZHAR----Respondent

H.C.A. No.53 of 2018, decided on 18th March, 2019.

Civil Procedure Code (V of 1908)---

----S. 75, O.XXVI, R.1, O. X, Rr. 1-A & 1-A (ii), O. XVIII, R. 4 & O.XXVI, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Commission appointed by Court---Role---Scope---Plaintiff moved application for appointment of commission to record evidence of the parties which was accepted---Contention of defendant was that Commission could only be appointed with the consent of the parties---Validity---Witnesses produced before the Court by the parties were to be examined by the Court---Court could issue Commission to examine the witnesses either suo motu or on the application of party to the suit or the witness to be examined---If any person residing within the jurisdictional limits of Court was exempted from attending Court or he was sick or infirm then Court could appoint Commission to record his evidence---Rules of procedure were subservient to the cause of justice and same could not be interpreted in a manner to whittle down the proceedings or to frustrate the ends of justice---Role of Commission was limited to the extent of recording evidence of the parties---Any objection raised by either side during recording of evidence could be brought before the Court for determination---Commission could not perform a judicial function nor Court could delegate its powers to Commission to decide the dispute---Commission only performed ministerial functions and evidence recorded by it should be placed before the Court---Court had power to record its findings on the basis of evidence before it and determine question as to believing or disbelieving evidence---No illegality or irregularity had been pointed out in the impugned order passed by the Trial Court---Appeal was dismissed, in circumstances.

Mrs.Badar Rahim v. Hammad Asif Dosslani and another 2009 CLC 459 and Jamil Ahmed v. Late Saifuddin through legal representatives 1997 SCMR 260 ref.

Mst. Shagufta Noor v. Mst. Ishrat Jehan and another 2012 CLC 1902; Mrs. Shahnawaz and others v. Hamid Ali Mirza 2006 CLC 1736; H.M. Saya and Co. v. Wazir Ali Industries Limited PLD 1969 SC 65; Muhammad Hanif v. District Judge/Election Tribunal, Multan and others 1983 CLC 2965; Khawaja Feroz v. Muhammad Dawood and others PLD 2008 Kar. 239 and Talib Hussain Nakai v. Muhammad Hayat PLD 2011 Lah. 207 rel.

Sajid Zahid for Appellants.

Khawaja Shams-ul-Islam, Shahzad Mehmood and Imran Taj for Respondent.

2020 C L C 946

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

Messrs SERI SUGAR MILL LIMITED through Admn. Manager----Appellant

Versus

UNION COUNCIL SERI through Administrator----Respondent

IInd Appeal No.S-28 and C.M.A. No. 580 of 2011, decided on 11th February, 2019.

Sindh Local Government Ordinance (XII of 1979)---

----Ss. 60, 63 & 64---Levy of taxes---Collection and recovery of taxes---Scope---Liability on account of taxes---Suit filed by plaintiff (Union Council) for recovery of octroi tax on sugar cane from the defendant (Sugar Mill) was concurrently decreed---Defendant contended that it had not entered into an agreement with the Union Council for collection of octroi tax; that it had not recovered the octori tax for the Union Council and that recovery rights of octroi tax were leased out by the Union Council to a contractor and the growers of sugar cane had made payment to the said contractor---Validity---Plaintiff, Union Council being authorized to recover the taxes and fees in its area, had informed the defendant Mill that octroi tax on sugar cane would be recovered by it---Plaintiff had produced a letter which was duly received by the defendant, in which the defendant was clarified that recovery of octroi tax on sugar cane would be made by the plaintiff Union Council and it was asked to maintain separate record---Witness of defendant had admitted that octroi tax on sugar cane from the growers was deducted---Lease agreement executed between plaintiff Union Council and the contractor revealed that the contract was only for collection of wheel tax---Contractor, examined as defendant's witness, stated that he had recovered the amount of octroi tax, but not a single receipt of such payment was produced to show that actually the octroi tax was recovered by the said contractor---Judgments passed by courts below were based on proper appraisal of evidence and did not suffer from any illegality or any jurisdictional defect---Appeal, being devoid of merits, was dismissed.

Arbab Ali Hakro for Appellant.

Wali Muhammad Jamari, Assistant, A.G.

Mir Ghulam Hussain Chairman Union Council Seri.

2020 C L C 956

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar and Khadim Hussain Tunio, JJ

PIR BUX----Petitioner

Versus

PROVINCE OF SINDH through Secretary Education

Government of Sindh and 10 others----Respondents

Constitutional Petition No.D-606 of 2019, decided on 16th May, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Frivolous litigation---Factual controversy---Awarding of costs---Scope--- Petitioner sought issuance of direction by the High Court to the official authorities to constitute a team headed by District and Sessions Judge to make thorough inquiry about the obtaining of educational degree by respondent---Petitioner contended that he had a dispute with the respondent and his relatives over a piece of land; that a civil suit in that respect was pending adjudication and that he had also filed an application against the respondent in the court of Sessions Judge---Validity---Petitioner, in order to pressurize respondent had mentioned other facts; for instance, that he was serving in a school and simultaneously he was attending his classes in university to obtain the degree; that concerned Supervisor Primary Education on his surprise visits had made certain visiting notes against him; that his wife had obtained amount from Zakat Fund although she did not deserve the same, etc---Petitioner was making efforts to utilize the extraordinary constitutional jurisdiction for the purpose of obtaining his personal interest and gains---Petitioner had already resorted to civil as well as criminal remedies; filing of constitutional petition on same facts and grounds was nothing but to drag the respondent into frivolous and vexatious litigations and also to waste precious time of the court---Disputed facts were involved in the case which could not be determined without undertaking the exercise of recording evidence, which could not be done in exercise of extraordinary constitutional jurisdiction---Constitutional petition was dismissed in limine with costs.

Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Extraordinary jurisdiction and discretionary jurisdiction---Abuse of process of law---Scope---Jurisdiction of High Court under Art. 199 of the Constitution is extraordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of process of law---Constitutional jurisdiction is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but cannot be allowed to be invoked for extending protection to ill-gotten gains.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Frivolous litigation---Awarding of costs---Scope---Court is under a duty to take effective measures against obstinate litigants who resort to frivolous or fraudulent litigation---Petitioner, in a constitutional petition, wasting precious time of the court, should be burdened with heavy costs and the court can award heavy costs for harassing others or dragging them in frivolous litigation---High Court in exercise of jurisdiction under Art. 199 of the Constitution can award, in appropriate cases, costs to compensate a party made to suffer unnecessarily through frivolous litigation---Proceedings under the law of contempt can also be initiated against such litigant and the one who has drafted such petition.

Azhar Iqbal v. Government of Pakistan PLD 2015 Isl. 140 foll.

Jan Muhammad Khaskheli for Petitioner.

2020 C L C 984

[Sindh]

Before Muhammad Faisal Kamal Alam, J

ABDUL SATTAR SHAIKH----Plaintiff

Versus

ADEEL ZAHOOR MALIK and others----Defendants

Civil Suit No.1767 of 2014, decided on 30th May, 2019.

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

----O.VI, R.1--- Written statement--- Proof--- Written statement by itself does not have any evidentiary value unless deponent of pleadings (plaint or written statement), enters into witness box to lead evidence.

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

----Arts. 49, 90, 92, 129 (e) & (f)--- Relevant fact--- Presumption--- Entry in public record---Passport---Entry and exit stamps are relevant fact in view of Art.49 of Qanun-e-Shahadat, 1984--- Passport is official document and entries made therein by a competent government agency viz Federal Investigation Agency (FIA) carry presumption of genuineness attached to it as an official document and official acts as envisaged in Arts. 90, 92, 129 (e) and (f) Qanun-e-Shahadat, 1984.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 17, 79, 117 & 120---Specific performance of agreement to sell---Execution of agreement to sell---Onus to prove---Principle---When authenticity of sale agreement is seriously disputed, onus is on the person who produces it to prove the agreement by at least examining two attesting / marginal witnesses.

Mehmood Anwar through Special Attorney v. Abdul Hanan and 3 others 2018 YLR 742; Muhammad Yousuf Khan v. Haji Barat and another 2018 MLD 904; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 rel.

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

----Ss.39, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Civil Procedure Code (V of 1908), O.XX, R.12(1)(b)---Suit for cancellation of agreement, declaration, injunction, recovery of damages and mesne profit---Agreement to sell---Failure to produce two witnesses---Effect---Plaintiff claimed to be owner of suit plot and alleged that agreement to sell relied upon by defendant was forged document as on date of execution of the agreement plaintiff was not in Pakistan---Validity---Burden was on defendant to prove execution of sale agreement in question as it was a disputed document---Failure to examine second attesting witness, who though was his employee, was fatal to the case of defendant as no plausible reason was given for not examining the second marginal witness---Defendant failed to prove execution of sale agreement in question---Plaintiff was entitled to mesne profit as the conclusive evidence about wrongful / illegal possession of defendant over suit plot did not require inquiry as mentioned in O.XX, R. 12 (1)(b), C.P.C.--- Plaintiff was entitled to receive mesne profit from the date of knowledge of use of his plot till the amount of mesne profit would realise---Suit was decreed accordingly.

Falak Sher v. Province of Punjab and others 2017 SCMR 1882; Haji Muhammad Khan v. Muhammad Nasir Khan and others 2007 YLR 2067; Mansoor Ashraf v. Province of Sindh and others SBLR 2017 Sindh 105, Mst. Talat Ejaz's case (C.P. No. D-1608 of 2005); Pir Masoom Jan Sarhandi v. Ms. Talat Ejaz (Civil Petition No.2086 of 2015) and Dr. Arifa Farid and others v. Mitha Khan and others (Suit No.2322 of 2014) ref.

Mehmood Anwar through Special Attorney v. Abdul Hanan and 3 others 2018 YLR 742; Muhammad Yousuf Khan v. Haji Barat and another 2018 MLD 904; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 and Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 rel.

(e) Damages---

----General and special--- Distinction--- Broadly damages are of two kinds; general and special--- Special damages are awarded only when a party successfully proves actual losses suffered by him / her through positive evidence.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 and Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 rel.

Ms. Usma Khan for Plaintiff.

Muhammad Shahid Qadeer for Defendants Nos.1 and 2.

Nemo. for others Defendants.

Dhani Bux Lashari for SBCA along with Muhammad Shahid, Deputy Director Gulshan-e-Iqbal Town, Karachi.

2020 C L C 1029

[Sindh]

Before Fahim Ahmed Siddiqui, J

TAIMOOR MIRZA----Petitioner

Versus

MALIHA HUSSAIN and others----Respondents

C.P. No.S-806 of 2019, decided on 1st August, 2019.

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

----S.25---Family Courts Act (XXXV of 1964), S. 17---Qanun-e-Shahadat (10 of 1984), Preamble---Petition for custody of a minor---Additional evidence, production of---Requirements---E-mail or other digital Communications---Evidentiary value---Scope---Confronting witness with his earlier statement---Scope---Application for production and confrontation of e-mail to the witness was dismissed on the ground that same was not annexed or mentioned in the pleadings---Validity---Provisions of Qanun-e-Shahadat, 1984 were not applicable to the proceedings before Family Court but basic principle for recording evidence should be considered---Family Court could adopt any procedure which was not expressly barred or prohibited by law---Cross-examination was a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief---Party conducting cross-examination could ask leading questions and confront the witness with previous statements whether same pertained to some other proceedings or event, subject to relevancy with the issue---E-mail or other digital communication of a witness might be treated as previous statement and confronted during cross-examination---Defendant in a family suit had to disclose all the documents relied by him---E-mail was a form of documentary evidence and same could be admitted as evidence---Measures were to be taken to protect the integrity and authenticity of email by digital signature and encryption---Reliability of email or other electronically generated documents might be subject to attack but a party could not be restrained to present it in the Court as a documentary evidence---If e-mails or other digital documents were generated or originated by a witness then same could be confronted to him during his cross-examination---Impugned orders passed by the Courts below were set aside, in circumstances---Petitioner might confront the respondent in the witness box during cross-examination with all the digitally created and communicated documents by her through email or social media, subject to relevancy of the same---Constitutional petition was allowed, in circumstances.

Muhammad Ijaz Ahmed Chaudhri v. Mumtaz Ahmed Tarar 2016 SCMR 1; Anwar Ahmed v. Mst. Nafisa Bano 2005 SCMR 152; Abdul Aziz v. Gulzar Ahmed 2006 CLC 1237; Mrs. Nargis v. Muhammad Tariq Moten SBLR 2012 Sindh 542; Allied Bank Ltd v. Asif Aziz Memon 2006 PLC 448; Messers Asghar Ali & Bros v. United Bank Ltd. 1987 CLC 504; Khizar Hayat v. Judge Family Court, Sargodha and another 2018 MLD 1480; Mst. Talat Shaheen and others v. Muhammad Ibrar and others 2012 MLD 216 and Alamgir Khalid Chughtai v. The State PLD 2009 Lah. 254 ref.

Amjad Ali and another v. Mst. Samara Yasmeen and 2 others 2012 MLD 14 rel.

Amel Khan Kasi and Waqar Ahmed for Petitioner.

Rauf Ahmed Butt for Respondent No.1.

2020 C L C 1068

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

ASMA HASSAN and another----Petitioners

Versus

ASKARI BANK LIMITED----Respondent

First Appeal No.82 of 2018, decided on 13th March, 2019.

Limitation Act (IX of 1908)---

----S.4---Court closed when limitation period expires---Effect---Appeal filed during summer vacations---Office objection---Scope---Appeal filed by the appellant was objected to by the office on the ground that it was filed after expiry of 30 days limitation period---Validity---Date upon which limitation began to accrue was during the summer vacations of the Court---Thirty days limitation period also expired during vacations---Appeal, held, could have been instituted on the first day when the court opened---Appellant, however, preferred the appeal during the summer vacation but after expiry of limitation period---Appeal filed during the vacations was accompanied by applications seeking an urgent hearing and also an interim relief---Benefit of S. 4, Limitation Act, 1908 subsisted in favour of the appellant---Office objection with regard to limitation was overruled and the appeal was determined to have been preferred in time.

Umar Baz Khan v. Syed Jehanzeb and others PLD 2013 SC 268; Khushi Muhammad and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Haider Ladhu Jaffar and another v. Habib Bank Ltd. and others 2014 CLC 725; Ikramullah and others v. Said Jamal 1980 SCMR 375; Mst. Almay v. Hashmatay 1989 MLD 3831; Abdus Sattar and others v. Nawab Din and others 1989 SCMR 1204; Fazal Karim and another v. Ghulam Jilani and others 1975 SCMR 452 and Nazar Muhammad v. Murad Ali and others PLD 1960 (W.P.) Lah. 757 distinguished.

Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 ref.

Province of Punjab v. Muhammad Saleem PLD 2014 SC 783 rel.

Mrs. Shabana Ishaque for Petitioner.

Mohammad Ishaq Ali for Respondent.

2020 C L C 1081

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

JAAG BROADCASTING SYSTEMS (PRIVATE) LIMITED, through Duly Authorized Person----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY A BODY CORPORATE through Chairman and another----Respondents

Constitution Petition No.D-1218 and C.M.A. No.5486 of 2016, decided on 1st February, 2019.

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

----Ss.8 (5), 20 (g) & 26 (5)--- Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 15(1)--- Television Broadcast Station Operations Regulations, 2012, Rgln. 14 (1) (2)--- Electronic Media (Program and Advertisement) Code of Conduct 2015, Cls. 1(g), 3 & 7(1)(2)---Imposing of penalty---Council of Complaints---Jurisdiction---Term 'suitable compensation'---Scope---Petitioner company was aggrieved of the recommendation of Council of Complaints forwarded to Pakistan Electronic Media Regulatory Authority on the complaint filed by respondent---Validity---Word 'suitable compensation' was vague terminology and it was not necessary that a quantum suitable for petitioner would also be suitable for the complainant---Such aspect was not considered in order as to whether compensation could be awarded or whether it was within the jurisdiction and power of Council of Complaints to grant such relief or not---All such questions referred were not considered and appreciated by the authority while acting or accepting any recommendations of the Council, which the Authority had failed to consider---High Court converted Constitutional petition into appeal and remanded the matter to Pakistan Electronic Media Regulatory Authority to pass speaking order on the recommendations given by Council of Complaints---Petition was disposed of accordingly.

Mohammad Vawda for Petitioner.

Ishrat Zahid Alvi, Assistant Attorney General.

2020 C L C 1099

[Sindh]

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

ARSHAD RIAZ MUGHAL, ADVOCATE----Appellant

Versus

PROVINCE OF SINDH through Chief Secretary----Respondent

C.P. No.D-2110 2020, decided on 9th April, 2020.

(a) Sindh Epidemic Diseases Act, 2014 (VIII of 2015)---

----S.3(1)---Constitution of Pakistan, Art.25---Covid-19 (Corona) virus---Lockdown implemented throughout the Province to curtail spread of Corona virus---Restrictions on congregational prayers at mosques---Congregation limited to 3 to 5 persons designated for mosques with public not allowed---Whether discrimination---Plea that banks, super stores, Government institutions and courts were open during the lockdown but only mosques had been declared out of bound for public which was discrimination under Art. 25 of the Constitution---Held, that banks, grocery stores and courts were institutions or businesses which were not on the same plane as mosques---Mosques would instead be relatable to places of worship of other faiths---In such regard, it was apparent from the Order issued by Provincial Home Department in exercise of powers under S. 3(1) of the Sindh Epidemic Diseases Act, 2014 that the restrictions on religious gathering applied in similar manner to all religions---Plea of discrimination was, therefore, clearly misplaced.

Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 and Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lah. 206 distinguished.

(b) Constitution of Pakistan---

----Pt. II, Chapt. 2(Arts.8 to 28)---'Principles of Policy'---Scope---Said Principles were only directive principles rather than Fundamental rights---Whilst such Principles were to be regarded as fundamental to the governance of the State, they were not enforceable by any Court.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and Government of Punjab through Chief Secretary v. Dr. Zahoor Ahmed Azhar PLD 2019 SC 32 ref.

(c) Sindh Epidemic Diseases Act, 2014 (VIII of 2015)---

----S. 3(1)---Constitution of Pakistan, Arts. 20, 25& 31---Covid-19 (Corona) virus---Lockdown implemented throughout the Province to curtail spread of Corona virus---Restrictions on congregational prayers at mosques---Congregation limited to 3 to 5 persons designated for mosques with public not allowed---Whether curtailing public's right to congregational prayers was against teachings of Holy Quran and religious directives (fatwas)---Held, that comments of the provincial government and the Order issued by Provincial Home Department in exercise of powers under S.3(1) of the Sindh Epidemic Diseases Act, 2014 ('the Order') reflected that the measures thereby imposed had been put in place after obtaining guidance from religious scholars across all major sects, and copies of the numerous 'fatwas' issued by prominent members of the 'Ulema' endorsing the actions had been placed on record---Said Order did not serve to curtail the right to worship per se, but merely to congregate, and that too, in view of the exigencies of the prevailing pandemic, in the wake of which there was undoubted medical consensus as to the need for social distancing---Furthermore, the step taken by the Provincial authorities to curtail the size of religious congregations at mosques was evidently not a standalone measure targeted at such places of worship in isolation, but was part of a more comprehensive set of measures designed to curtail social interaction as a whole and the resultant spread of disease across the board---Protocols that had generally been put in place appeared to have been designed with due thought as to the outcome sought to be achieved, for a reason that was apparently itself in the public interest under the prevailing circumstances, and a breach thereof at any particular level would inevitably serve to undermine the efficacy of the overall scheme, increase the risk of spread of infection, and endanger human life---Petitioner had not been able to satisfy the court as to the practicality of the precautions proposed by him including safe distancing between worshippers---Ensuring proper distancing between worshippers at mosques would be next to impossible and would even otherwise negate the very purpose of a congregation---Furthermore decision to curtail the size of the congregation was only an interim measure and such measures remained fluid---Decision as to continuance or lifting of restrictions remained subject to review in accordance with the prevailing situation---Constitutional petition being devoid of merit was dismissed.

(d) Constitution of Pakistan---

----Art. 203-D---Federal Shariat Court, jurisdiction of---Scope---Jurisdiction to test the vires of an enactment or order/rule having the force of law purely on the basis of Islamic Injunctions vested exclusively with the Federal Shariat Court.

Petitioner in person.

Jawad Dero, AAG, along with Amanullah Zardari, Focal Person, Home Department, Government of Sindh for Respondent.

2020 C L C 1128

[Sindh]

Before Zafar Ahmed Rajput, J

OASIS TRAVELS (PRIVATE) LIMITED----Petitioner

Versus

DONVAND LIMITED and others----Respondents

CMA No.15149 of 2018 in Suit No.2009 of 2018, decided on 17th December, 2018.

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

----O. XXXIX, Rr. 1 & 2---Contract of guarantee---Interim injunction, refusal of---Scope---Plaintiff sought order restraining the defendant from encashing Bank guarantee---Contention of plaintiff was that the guarantee being a performance guarantee its encashment, whether conditional or unconditional, was in the nature of a penalty, hence, unlawful---Plea of defendant was that it was a simple guarantee which entitled the defendant to its encashment on plaintiff's default in payment of liabilities---Validity---Guarantee made it obligatory on the Bank, as guarantor, to unconditionally and irrevocably pay certain amount on written demand irrespective of any dispute under the contract or between the parties to the contract---Guarantee was undoubtedly irrevocable and unconditional---Encashment of Bank guarantee could not be restrained by an injunctive order---Plaintiff had failed to make out the prima facie case for the grant of injunction in its favour---Balance of convenience also did not lie in favour of the plaintiff and it was not the plaintiff who was likely to suffer in case the injunction was granted---Defendant, on the other hand, would suffer in case an injunction was granted---Application for grant of interim injunction was dismissed.

Province of West Pakistan v. Messrs Mistri Patel & Co. and another PLD 1969 SC 80; Messrs Ayaz Builders through Attorney v. Board of Trustees of the Karachi Port Trust and another 2008 CLC 726; Messrs Zeenat Brothers (Pvt.) Ltd. v. Aiwan-e-Iqbal Authority through Chairman, Aiwane Iqbal Complex, Lahore and 3 others PLD 1996 Kar. 183; Messrs Jamia Industries Ltd. v. Messrs Pakistan Refinery Ltd., Karachi PLD 1976 Kar. 644; Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another 1989 SCMR 379; Ardshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC.), Karachi and 4 others 1999 SCMR 2883; Atlas Cables (Pvt.) Limited v. Islamabad Electric Supply Company Limited and another 2016 CLD 1833; Guangdong Overseas Construction Group Company Ltd. through General Manager v. Creek Marina Private Limited and 2 others PLD 2011 Kar. 304 and Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another 1993 CLC 1926 ref.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 rel.

(b) Contract---

----"Contract of guarantee"---Meaning---Guarantee contains the ingredients of dedicated commitment, absolute undertaking, an unambiguous assurance, unconditional willingness, definite certainty, compliance without objections, sacred obligation and definite responsibility---Guarantee once given cannot be avoided, except on the ground of fraud or misrepresentation.

Halsbury's Laws of England, Volume 20. Fourth Edition, page 49, page 101 rel.

(c) Interpretation of documents---

----Contents of a document, in construing the same, have to be read as a whole.

Basil Nabi Malik for Plaintiff.

Syed Shayan Ahmed for Defendant No.1.

Syed Noman Zahid for Defendants Nos.2 and 3.

2020 C L C 1173

[Sindh]

Before Muhammad Shafi Siddiqui and Mahmood Ahmed Khan, JJ

MUHAMMAD JAMIL----Appellant

Versus

Mst. WAHEEDA ASLAM and others----Respondents

H.C.A. No.381 of 2017, decided on 20th August, 2019.

(a) Partition Act (IV of 1893)---

----S.4---Administration of property--- Parties, status of--- In suit for administration, all parties are deemed to be decree holders and judgment debtors, as the case may require.

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

----O. XXI, R. 89--- Execution of decree--- Sale, setting aside of---Principle--- Where immovable property is sold in execution of decree and any person either owning such property or holding any interest therein by virtue of title acquired before such sale, under provisions of O. XXI, R. 89, C.P.C. can apply to have sale set aside on depositing amount as required under law.

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

----O.XXI, R.89 & O.XXIII, R.3---Sale, setting aside of---Rights of parties---Compromise decree---Suit for administration of property was decreed on the basis of compromise between the parties---Auction of suit property was set aside in favour of the widow of deceased subject to deposit of auction money---Auction purchaser contended that rights of some and / or all parties to the suit had already extinguished---Validity---Widow of the deceased came for execution of decree of money and the decree was matured only on account of her relinquishment of share in immovable property being auctioned--- If widow of deceased had not relinquished her share in property, her money decree would not have been passed as property which she relinquished was auctioned for her money decree--- Consent decree was an agreement that carried sanctity of court of law and respondent could only have approached court for her due share---Respondent was required to at least offer and deposit partial amount which was required by her in part consideration of consent decree which was not found---Widow of deceased had filed execution of recovery of amount only and no alternative prayer was available on her part coupled with required deposit in order for her to claim share in auctioned property--- Widow of deceased might have been entitled to her share at which property could have been sold--- Division Bench of High Court set aside judgment and decree passed by Single Judge of High Court as the widow on acquisition of partial monetary benefit could not claim subsequent benefit / share in property, i.e., both halves---High Court appeal was allowed accordingly.

Muhammad Arif Shaikh for Appellant.

Ms. Saadia Khatoon for Respondents Nos.1 to 3.

2020 C L C 1189

[Sindh]

Before Adnan Iqbal Chaudhry, J

ZAMIR AHMED KHAN and others----Plaintiffs

Versus

MUHAMMAD HASSAN CHINIYOON and others----Defendants

Suits Nos.2319 and 2541 of 2016, decided on 16th September, 2019.

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

----O.VII, Rr.11 & 13---Suit for declaration and permanent injunction---Earlier plaint having been rejected---Subsequent suit---Plaint, rejection of---Effect---Res-judicata, principle of---Applicability---Contention of defendant was that earlier plaint had been rejected and present suit was barred by res judicata---Validity---'Rejection of plaint' and 'dismissal of suit' were distinct legal concepts---Rejection of plaint was not "dismissal of the suit" and did not constitute res judicata---Order VII, R.13, C.P.C. did not preclude a fresh plaint on rejection of previous one---Order passed in the earlier suit did not constitute res judicata, in circumstances---Present suit was based on a separate and subsequent cause of action---Application for rejection of plaint was dismissed, in circumstances.

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

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

----O.XL, R.1---Receiver, appointment of---Requirements---Words "where it appears to the Court to be just and convenient" occurring in O.XL, R.1, C.P.C.---Scope---Power of a civil Court to appoint a receiver under O.XL, R.1, C.P.C. was a discretion to be exercised "where it appears to the Court to be just and convenient"---Where appointment of a receiver was sought to remove a person from possession or custody of the property then party seeking such relief had to demonstrate a right for causing such removal against the person holding possession/custody---Object of appointing a receiver was to preserve the property pending judicial determination of the rights of the parties thereto---Such discretion should be exercised in the cases where it was apparent that the property in dispute was likely to dissipate or where it was likely to become difficult to retrieve or was in danger of being wasted---Status quo order passed by the Court had not deterred construction and expansion of activity on the suit land---Suit land would be encumbered and it would become difficult to restore / retrieve the same unless such activity was checked---Nothing was on record that possession of defendant on the suit property was legal---Plaintiff had a case for interference against the defendant---Application for appointment of receiver was accepted, in circumstances.

Saeed-ur-Rehman v. Ehsanullah Khan Afridi PLD 2007 Kar. 527; Asadullah Mirbahar v. Ayesha Muzahir PLD 2011 Kar. 151 and Naseem-ul-Haq v. Raes Aftab Ali Lashari 2015 YLR 550 rel.

Zamir Ahmed Khan in person (in Suit No.2319 of 2016).

Muhammad Ahmed Pirzada for Defendant No.1 (in Suit No.2319 of 2016).

Nemo for Defendants Nos.2 and 8 (in Suit No.2319 of 2016).

Ghulam Shabbir and Pervez Ahmed Mastoi, Assistant Advocate-General Sindh for Defendants Nos.3 and 7 (in Suit No.2319 of 2016).

Muhammad Ahmed Pirzada for Plaintiff (in Suit No.2541 of 2016).

Ghulam Shabbir and Pervez Ahmed Mastoi, Assistant Advocate-General Sindh for Defendants Nos.1 and 7 (in Suit No.2541 of 2016).

Defendant No.8 in person (in Suit No.2541 of 2016).

2020 C L C 1233

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

RAB DINO and others----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

Constitutional Petitions Nos. D-709, 710, 711, 714, 718, 719, 720, 721, 722, 723, 724, 727, 731, 735, 736, 737, 738, 739, 740, 741, 742, 748, 749, 750, 751, 752, 753, 754, 755, 761, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 778, 779, 780, 782, 783, 784, 785, 786, 787, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 846, 847, 848, 849, 850, 851, 852, 853, 854, 855, 856, 857, 858, 859, 860, 861, 862, 863, 864, 865, 866, 867, 868, 869, 870, 871, 872, 873, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 885, 886, 887, 888, 889, 890, 891, 892, 893, 894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907, 908, 909, 910, 911, 912, 913, 914, 915, 916, 917, 918, 919, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 934, 935, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958, 959, 960, 961, 962, 963, 964, 965, 966, 979, 980, 981, 982, 983, 984, 985, 986, 987, 988, 989, 990, 991, 992, 993, 994, 995, 996, 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1006, 1007, 1010,1011,1012, 1013, 1014, 1015, 1016, 1019, 1020, 1022, 1023, 1024, 1025, 1026, 1027, 1029, 1030, 1031, 1032, 1033, 1034, 1035, 1036, 1037, 1038 and 1041 of 2019. decided on 2nd May, 2019

(a) Ehtram-e-Ramzan Ordinance (XXIII of 1981)---

----Ss. 5, 2, 3 & 4---Ehtram-e-Ramzan---Permission to serve food---Petitioners being owners of hotels/restaurants sought exemption from the provisions of Ehtram-e-Ramzan Ordinance, 1981---Validity---Prohibition provided within Ehtram-e-Ramzan Ordinance, 1981 did apply only during fasting hours and after the same all the eateries might continue their activity and business---Places mentioned (in the present constitutional petitions did not fall within the exemption provided under S.5 of Ehtram-e-Ramzan Ordinance, 1981---Petitioners might seek permission from the concerned Deputy Commissioner if they were functioning within the premises of a railway station, airport, seaport or bus stand, hospital or primary school---District and Sessions Judges and Deputy Commissioners were directed by the High Court to make sure that no restaurant, hotel, beverage stall and tea shop would remain open at public place save to exemption provided within S.5 of Ehtram-e-Ramzan Ordinance, 1981---Deputy Commissioners were directed to ensure that no permission would be granted to a restaurant, hotel, beverage stall or any other business offering edibles if same did not fall within the exemption provided under S.5 of Ehtram-e-Ramzan Ordinance, 1981---Petitioners could approach the concerned Deputy Commissioner if they considered that they did fall under S.5 of Ehtram-e-Ramzan Ordinance, 1981---Deputy Commissioner could not delegate any power to grant exemption and inquiry was to be conducted before granting such permission---Constitutional petitions were dismissed, in circumstances.

(b) Ehtram-e-Ramzan Ordinance (XXIII of 1981)---

----S.5---'Bus stand'---Meaning and scope.

In Section 5 instead of Bus Stop, the word 'Bus Stand' is used which when read in the context, it appears that it does not mean the roadside Bus Stop or Layover, which is a point where a bus stops for boarding and alighting passengers during transition between terminus. A bus stand, also called a bus bay, or bus stand, is a designated parking location where a bus or coach waits out of service between scheduled public transport services. The words 'within the premises' used in clause (b) of Section 5 of the Ordinance, itself indicates that it is not the roadside bus stops or layovers but a separately designated place wherein parking areas for vehicles, waiting areas for passengers and other amenities are provided.

Imdad Hussain A.Shahani for Petitioner (in C.P No.D-709 of 2019).

Sanaullah Thatial for Petitioner (in C.Ps. Nos.D-710 and 714 of 2019).

Mumtaz Ahmed Lashari for Petitioner (in C.Ps. Nos.D-711 and 775 of 2019).

Mumtaz Ali Zardari for Petitioner (in C.Ps. Nos.D-718, 719 and 720 of 2019).

Karim Bux Rind for Petitioner (in C.Ps. Nos.D-721, 722, 723, 724, 727, 862, 863, 928, 930, 931, 932, 933, 987, 993, 994, 995, 996, 998, 999, 1000, 1001, 1002, 1003 and 1004 of 2019).

Junaid Jabbar Belaie for Petitioner (in C.P. No.D-731 of 2019).

Aijaz Ali Bhutto for Petitioner (in C.Ps. Nos.D-735, 736, 753, 771, 773 and 963 of 2019).

Ghulam Farooq Dahri for Petitioner (in C.P. No.D-737 of 2019).

Mumtaz Ali Soomro for Petitioner (in C.P. No.D-738 of 2019).

Niaz Hussain Leghari for Petitioner (in C.Ps. Nos.D-739, 740, 741, 742 and 914 of 2019).

Shaikh Jawaid Ali for Petitioner (in C.Ps. Nos.D-748 and 755 of 2019).

Mohammad Akhtar Bhatti for Petitioner (in C.Ps. Nos.D-749 and 750 of 2019).

Zulfiquar Ali Chandio for Petitioner (in C.P. No.D-751 of 2019).

Roshan Ali Azeem Mallah for Petitioner (in C.P. No.D-752 of 2019).

Jehanzeb Ali Dahri for Petitioner (in C.P. No.D-754 of 2019).

Altaf Hussain Chandio for Petitioner (in C.P No.D-761 of 2019).

Fakhur Din Dahraj for Petitioner (in C.Ps. Nos.D-763 and 774 of 2019).

Meer M.Buriro for Petitioner (in C.P. No.D-764 of 2019).

Muzaffar Ali Laghari for Petitioner (in C.Ps. Nos.D-765, 867, 881, 916 and 917 of 2019).

Mazhar Ali Laghari for Petitioner (in C.Ps. Nos.D-884, 885 and 1014 of 2019).

Mohammad Hassan Chandio for Petitioner (in C.Ps. Nos.D-767, 768, 769, 770, 808, 809, 810, 811, 812, 813, 849 856, 857, 858, 915, 1010, 1036 and 1037 of 2019).

Muhammad Sachal R. Awan for Petitioner (in C.Ps. Nos.D-772, 787 and 798 of 2019).

Riaz Ahmed Siddiqui for Petitioner (in C.P No.D-776 of 2019).

Mir Mal Oad for Petitioner (in C.P No.D-778 of 2019).

Khalil Ahmed Unar for Petitioner (in C.P. No.D-779 of 2019).

Mian Taj Muhammad Keerio for Petitioner (in C.Ps. Nos.D-780, 817, 980 and 1038 of 2019).

Muntazir Mehdi Leghari for Petitioner (in C.Ps. No.D-782 and 785 of 2019).

Mohammad Iqbal Hingoro for Petitioner (in C.Ps. Nos.D-783, 890 and 982 of 2019).

Waqar Ali Leghari for Petitioner (in C.P. No.D-784 of 2019).

Mohsin Raza Gopang for Petitioner (in C.P. No.D-789 of 2019).

Syed Iftikhar Hussain Shah for Petitioner (in C.Ps. Nos.D-790, 791 and 792 of 2019).

Bhagchand Bheel for Petitioner (in C.Ps. Nos.D-793, 794 and 795 of 2019).

Imdad Ali Dahri for Petitioner (in C.P. No.D-796 of 2019).

Aghis-u-Salam Tahirzada for Petitioner (in C.Ps. Nos.D-797, 886, 887, 888, 910, 939, 940 and 953 of 2019).

Mashooque Ali Mahar for Petitioner (in C.P. No.D-799 of 2019).

Abdul Razzak Dasti for Petitioner (in C.P. No.D-800 of 2019).

Syed Sajjad Ali Shah for Petitioner (in C.P. No.D-801 of 2019).

Zulfiquar Ali Chang for Petitioner (in C.P. No.D-802 of 2019).

Ahsan Gul Dahri for Petitioner (in C.Ps. Nos.D-814 and 815 of 2019).

Hameedullah Dahri for Petitioner (in C.P. No.D-816 of 2019).

G.M. Leghari for Petitioner (in C.P No.D-818 of 2019).

Muhammad Yousif Kalhoro for Petitioner (in C.Ps. Nos.D-819, 822, 823, 824 and 908 of 2019).

Abdullah Khan Leghari for Petitioner (in C.P. No.D-820 of 2019).

Sajid Ali Gorar for Petitioner (in C.P. No.D-821 of 2019).

Sikandar Ali Khaskheli for Petitioner (in C.Ps. Nos.D-825, 826 and 827 of 2019)

Moula Bux Narejo for Petitioner (in C.Ps. Nos.D-846 and 847 of 2019).

Muhammad Hussain Khan for Petitioner (in C.Ps. Nos.D-848 and 951 of 2019).

Qadir Bux Ghirano for Petitioner (in C.Ps. Nos.D-850 and 854 of 2019).

Miss. Najma Lakho for Petitioner (in C.Ps. Nos.D-851 and 860 of 2019).

Suleman Dahri for Petitioner (in C.P. No.D-852 of 2019).

Hemandas S. Sanghani for Petitioner (in C.P. No.D-853 of 2019).

Zuhaib Hassan Pahore for Petitioner (in C.P No.D-855 of 2019).

MB @ Nouman Sahito for Petitioner (in C.Ps. Nos.D-859, 861, 892, 906, 954, 955, 956 and 958 of 2019.

Waqar Ali Zaur for Petitioner (in C.Ps. Nos.D-864 and 865 of 2019).

Niaz Mohammad Hingoro for Petitioner (in C.Ps. Nos.D-866 and 912 of 2019).

Muhammad Sadique Buledi for Petitioner (in C.P. No.D-868 of 2019).

Mohammad Asif Zai for Petitioner (in C.P. No.D-869 of 2019).

Shahnawaz Janjhi for Petitioner (in C.Ps. Nos.D-870 and 871 of 2019).

Kanji Mal Meghwar for Petitioner (in C.Ps. Nos.D-872, 873, 874, 875, 876, 877, 878 and 879 of 2019).

Muhammad Aslam Khan for Petitioner (in C.P. No.D-880 of 2019).

Jawaid Ali Buriro for Petitioner (in C.P. No.D-882 of 2019).

Abdul Mueed Shaikh for Petitioner (in C.Ps. Nos.D-883, 899, 966, 984, 986, 991 and 992 of 2019).

Omparkash H.Karmani for Petitioner (in C.Ps. Nos.D-889 and 900 of 2019).

Ashar Majeed Khokhar for Petitioner (in C.Ps. Nos.D-891, 985 and 989 of 2019).

Ghulam Murtaza Shaikh for Petitioner (in C.P. No.D-893 of 2019).

Muhammad Anwar Sangi for Petitioner (in C.P. No.D-894 of 2019).

Sohail Shahzad for Petitioner (in C.Ps. Nos.D-895, 896,897, 898, 918, 920, 924 and 929 of 2019).

Zeeshan Ali Memon for Petitioner (in C.P. No.D-901 of 2019).

Abid Ali Thebo for Petitioner (in C.P. No.D-902 of 2019).

Ahmed Ali Jarwar for Petitioner (in C.P. No.D-903 of 2019).

Sher Ali Behan for Petitioner (in C.P. No.D-904 of 2019).

Irshad Ahmed Ansari for Petitioner (in C.P. No.D-905 of 2019).

Sameeullah Rind for Petitioner (in C.P No.D-907 of 2019).

Abdul Majeed Malak for Petitioner (in C.P No.D-909 of 2019)

Aslam Baig Laghari for Petitioner (in C.Ps. Nos.D-911, 941, 942, 943, 944, 960 and 961 of 2019).

Syed Shahzad Ali Shah for Petitioner (in C.P No.D-913 of 2019).

Sabir Hussain for Petitioner (in C.Ps. Nos.D-919, 990 and 997 of 2019).

Irshad Ali Khoso for Petitioner (in C.P. No.D-921 of 2019).

Shahzad Ali Shah for Petitioner (in C.P. No.D-922 of 2019).

Bilawal Ali Ghunio for Petitioner (in C.Ps. Nos.D-923 and 962 of 2019).

Peeral Majeedano for Petitioner (in C.P. No.D-925 of 2019).

Bheemchand Kolhi for Petitioner (in C.Ps. Nos.D-926 and 927 of 2019).

Mushtaque Ali Tagar for Petitioner (in C.Ps. Nos.D-934, 936, 945, 946, 947, 948, 949 and 950 of 2019).

Badar Rajpar for Petitioner (in C.Ps. Nos.D-935 and 965 of 2019).

Naseer A.Narejo for Petitioner (in C.P. No.D-937 of 2019).

Mohammad Jameel Khan for Petitioner (in C.P. No.D-938 of 2019).

Noor Ahmed Nohrio for Petitioner (in C.P. No.D-952 of 2019).

Shahbaz Khan Rajput for Petitioner (in C.P. No.D-957 of 2019).

Mirza Naeem Baig for Petitioner (in C.P. No.D-959 of 2019).

Muhammad Ahsan for Petitioner (in C.P No.D-964 of 2019).

Riaz Ali Bhatti for Petitioner (in C.P. No.D-979 of 2019).

Muhammad Rahim Gaju for Petitioner (in C.Ps. Nos.D-981 and 1041 of 2019).

Parkash Lal for Petitioner (in C.P. No.D-983 of 2019).

Nasrullah A. Khaskheli for Petitioner (in C.P. No.D-988 of 2019).

Mohammad Aslam Solangi for Petitioner (in C.P. No.D-1006 of 2019).

Ayaz Mohammad Ghangro for Petitioner (in C.P. No.D-1007 of 2019).

Ghulam Mustafa Hingorjo for Petitioner (in C.Ps. Nos.D-1011, 1012 and 1013 of 2019).

Mir Noor Mohammad Talpur for Petitioner (in C.P. No.D-1015 of 2019).

Munir Ahmed Gahothi for Petitioner (in C.P No.D-1016 of 2019).

Muhammad Azhar Arain for Petitioner (in C.P No.D-1019 of 2019).

Miss. Shazia Paras for Petitioner (in C.Ps. Nos.D-1020 and 1034 of 2019).

Kashif Ali Lakho for Petitioner (in C.Ps. Nos.D-1022 and 1023 of 2019).

Badal Gahoti for Petitioner (in C.P. No.D-1024 of 2019).

Zahid Mallah for Petitioner (in C.Ps. Nos.D-1025, 1026 and 1027 of 2019).

Muhammad Suhail Jamali for Petitioner (in C.Ps. Nos.D-1029, 1032 and 1033 of 2019).

Ghulam Nabi Meo for Petitioner (in C.Ps. Nos.D-1030 and 1031 of 2019).

Abdul Majeed Lashari for Petitioner (in C.P. No.D-1035 of 2019).

Petitioner[s] in person (in C.Ps. Nos.D-766 and 786 of 2019).

2020 C L C 1273

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

ARSHAD ALI and others----Petitioners

Versus

Mst. BUSHRA and others----Respondents

C.Ps. Nos.S-808 and S-811 of 2017 and M.As. Nos.7829 and 4021 of 2018, decided on 22nd January, 2019.

Civil Procedure Code (V of 1908)---

----S.114 & O. XLVII, R. 1---Constitution of Pakistan, Art. 199---Constitutional petition---Review of a order---Requirements---Expression 'sufficient reasons'---Scope---Parties, in the present case, had consented for passing direction to the Court below but the High Court disposed of the constitutional petition---Validity---Powers of review could be exercised only when before passing the order (under review) some important facts were not produced by the parties before the Court nor with due diligence same could surface during the proceedings preceding the passing of the order or an omission or error was apparently floating on face of the record---Court of review had limited jurisdiction circumscribed by the definite limits fixed by the language used in the relevant provisions---Error on the part of the Court while passing the order under review was on record---Expression 'sufficient reasons' did include a misconception of fact or law by a Court or even by a counsel---Application for review might be necessitated by invoking the doctrine 'actus curiae neminem gravabit'---Order could be reviewed if there was a mistake or error apparent on the face of record---Constitutional petition had not been decided on merits in the present case---Applicant had made out a case for review of impugned order---Review petition was accepted, in circumstances.

Mst. Nazir v. Hafiz Ghulam Mustafa 1981 SCMR 200; Mst. Rukaya Bibi v. Noor Akbar 1984 NLR 273; Muhammad Aslam v. Nazish Qazi and others 2018 YLR 1771 and Shabana Naz v. Muhammad Saleem 2014 SCMR 343 ref.

Muhammad Arshad S. Pathan for Petitioner.

Syed Babar Ali Kazmi for Respondent No.1.

Habib-ur-Rehman Jamali, Assistant Advocate-General for Respondents Nos.2 and 3.

2020 C L C 1289

[Sindh]

Before Arshad Hussain Khan, J

SALEEM AKHTAR QURESHI---Plaintiff

Versus

HABIB UR REHMAN---Defendant

Suit No. 1187 and C.M.A. No.10986 of 2018, decided on 20th August, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.3 & 2---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery---Summary Procedure on Negotiable Instruments---Application for leave to defend, grant of---Principles---Question before High Court was whether an application for leave to defend should be allowed where factum of execution of cheque was denied by defendant and there existed no arrangement/agreement between the parties requiring consideration---Contention of plaintiff, inter alia, was that said cheque was to be deposited in his account and subsequently be paid to a Bank, as plaintiff had been a guarantor in a finance facility obtained by defendant, upon which defendant had defaulted---Validity---Under S. 118 of the Negotiable Instruments Act, 1881 no doubt a presumption was attached to a negotiable instrument and burden lay upon person denying same to prove such presumption contrary, however said presumption was rebuttable by evidence---In the present case, there was nothing on record to show any agreement/ arrangement between parties whereupon negotiable instrument in shape of a cheque was issued in favour of plaintiff and said cheque was issued without any consideration---Defendant also brought on record evidence to suggest that said cheque had been misplaced and then forged---In absence of any document showing an agreement / arrangement between the parties, the logic for issuance of subject cheque in name of plaintiff, which was to be deposited by plaintiff first in his account and then after encashment thereof, funds were to be paid to the Bank, could only be determined after evidence was led---Requiring deposit of amount of subject cheque in Court would only tantamount to imposing an unduly onerous obligation and would stifle the very grant of leave by rendering it illusory---High Court observed that defendant was entitled to grant of leave to defend, as factum of execution of cheque as well as consideration for payment of said cheque remained clouded and required evidence---Application for leave to defend was allowed, in circumstances.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 and Kodak v. Alpha Film Corporation (1930) 2 KB 340 rel.

Mst. Siddiqa Begum and others v. Irshad Ali Shah PLD 1999 Kar. 311; Muhammad Siddique through Legal Representatives v. Mst. Noor Bibi through Legal Heirs and others PLD 2016 Lah. 140; Habib Bux v. Zahoor-Ul-Hassan 1986 CLC 1119; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925; Khalid Javed Paracha through Authorized Attorney v. Muhammad Khalid 2017 YLR 210; Tasam Ali Bukhari v. Ghulam Mustafa and 4 others 2014 CLC 244; Muhammad Anwar v. Hoechst Pharmaceutical Pakistan (Pvt.) Ltd. and others 1989 MLD 171 and Wash Dev v. Ganvo Mal 2018 MLD 109 distinguished.

Messrs Muslim Commercial Bank Ltd. v. Bank of Credit and Commerce International 1986 MLD 45; Messrs Bashir Engineering Industries and 3 others v. The Muslim Commercial Bank Ltd. and another 1988 CLC 941; Abbas Ali and another v. Asif Abbas and 3 others 2012 CLC 1762; Balooch Akbar Khan v. Muhammad Hussain and another 2004 CLC 356; Manager, Muslim Commercial Bank Limited and another v. Babar 2006 CLC 1309; Asif Nadeem v. Messrs Bexshim Corporation and others 2001 CLC 653; Abdul Karim Jaffarani v. United Bank Ltd. and 2 others 1984 SCMR 568; Pakistan Water and Power Development Authority [WAPDA] v. Messrs Sea Gold Traders through Partners and 2 others 2003 CLD 392; Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291; Habib Bank Ltd. v. Asghar Ali and others 1988 CLC 353; Abdul Malik K. Lakha through Legal Heirs v. Abdul Karim K. Kara PLD 2004 Kar. 399 and Muhammad Shafi v. Abdul Shakoor and 2 others 1986 MLD 151 rel.

M. Ishaque Memon for Plaintiff.

2020 C L C 1322

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

RIZWAN ALI----Petitioner

Versus

AKHTAR HUSSAIN CHAIRMAN APPEAL COMMITTEE PAKISTAN BAR COUNCIL AT KARACHI and others----Respondents

C.P. No.D-3354 of 2018, decided on 29th January, 2019.

Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R. 175-G(b)---Elections of District Bar---Rescheduling--- Petitioner was candidate in District Bar elections and sought cancelation of election on grounds of addition of new members to electoral list---Validity---Elections of District Bar Association had already taken place and elected body was selected as per schedule--- Free exercise of any electoral right was paramount and if there was any direct or indirect influence or attempt to interfere on part of candidate, it amounted to undue influence---Free exercise of electoral right was paramount consideration and a voter was entitled to have an informed choice which was already done by respective Bar Council under law--- High Court declined to interfere in elections of Bar Association in question as elections had already taken place and Constitutional petition was infructuous--- Petition was dismissed in circumstances.

2020 C L C 1331

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

ALLAH RAKHIO----Applicant

Versus

MUHAMMAD USMAN and 2 others----Respondents

R.A. No.117 of 2016, decided on 11th February, 2019.

Civil Procedure Code (V of 1908)---

----O.VII, R. 11---Rejection of plaint---Scope---"Malicious prosecution"---Ingredients---Scope---Plaintiff filed suit for damages on account of malicious prosecution but the plaint was rejected under O.VII, R. 11, C.P.C.---Appellate Court upheld the order of the Trial Court---Validity---Plaintiff had been acquitted in the criminal case on the basis of benefit of doubt---Ingredients for establishing suit for damages on account of malicious prosecution, were namely that the plaintiff was prosecuted by the defendant; the prosecution ended in plaintiff's favour; the defendant acted without reasonable and probable cause; the defendant was actuated by malice; the proceedings had withheld plaintiff's liberty and had also affected his or her reputation and the plaintiff had suffered damages---No question of prosecution without reasonable and probable cause arose in the present case---Petitioner's liberty was not allegedly curtailed by keeping him in custody---Court had not found the case against petitioner to be false---Particulars of damages were also not shown in the plaint---Trial Court had rightly rejected the plaint---Revision was dismissed.

Mazhar Hussain memon for Applicant.

Wali Muhammad Jamari, Asstt. A.G.

2020 C L C 1338

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

Messrs ENGINEER MAJID HUSSAIN ENTERPRISES through Proprietor----Petitioner

Versus

The SECRETARY WORKS AND SERVICES DEPARTMENT GOVERNMENT OF SINDH and 5 others----Respondent

Constitution Petition No.D-561 and M.As. Nos. 3308, 3309, 2279 of 2019, decided on 10th April, 2019.

Sindh Public Procurement Rules, 2010---

----Rr. 30, 31 & 32---Disqualification of contractor---Mechanism for redressal of grievances---Petitioner despite being a contractor, duly registered with the Engineering Council, was declared to be disqualified for participation in the bidding process by the procuring agency---Petitioner challenged such action by sending a letter to the Managing Director of the Public Procurement Regulatory Authority but it was not responded to, therefore, constitutional petition under Art.199 of the Constitution was filed, soliciting similar relief---Validity---Petitioner had preferred his complaint before the Managing Director and not before the Complaint Redressal Committee---Grievance petition should have been filed under R.30(3) of the Sindh Public Procurement Rules, 2010---Complete mechanism was provided under the Sindh Public Procurement Rules, 2010 with a hierarchy for dealing with such petition/application and even an opportunity of appeal/review was also provided under R. 32 of the Sindh Public Procurement Rules, 2010---Alternate and efficacious remedy being available to the petitioner, therefore, constitutional petition was not maintainable---Constitutional petition was dismissed in limine.

Muhammad Hanif Noonari for Petitioner.

No notice was issued for Respondent.

2020 C L C 1344

[Sindh]

Before Muhammad Faisal Kamal Alam, J

The BANK OF KHYBER----Petitioner

Versus

MUHAMMAD TARIQ IKRAM and 4 others----Respondents

Execution Application No.31 of 2014 and C.M.As. Nos.59, 314 of 2018, decided on 8th October, 2018.\

Civil Procedure Code (V of 1908)---

----O.XXI, Rr. 66 & 90---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19(1)---Sale of mortgaged property by Official Assignee---Judgment debtor failing to deposit the required amount in terms of O.XXI, R. 90, C.P.C---Held, that a sale could be set-aside under O.XXI, R. 90, C.P.C provided the judgment debtor complied with the two provisos to the said provision (O.XXI, R.90, C.P.C.)---In the present case, the judgment debtor had not deposited any amount with the Official Assignee in terms of O.XXI, R. 90, C.P.C, which was a mandatory requirement---Secondly, the objection of the judgment debtor about non-compliance of O.XXI, R.66, C.P.C was also not sustainable as the public notice/advertisement / proclamation of sale in newspapers clearly mentioned the reserve price for the subject property with number and title of present Execution application along with the necessary information---Furthermore the auction purchaser had deposited the entire sale price with the Official Assignee---Last auction proceeding for the subject property was vitiated on the ground that the earlier bidder/purchaser could not pay the balance price---Present auction proceeding was third in a row, which clearly led to the conclusion that the entire auction proceeding had been undertaken in a transparent and diligent manner by the Official Assignee and none of the mandatory requisites were lacking in the entire proceeding---Application filed by judgment debtor was dismissed and sale of subject property in favour of auction purchaser was confirmed.

Zakaria Ghani and 4 others v. Muhammad Ikhlaq Memon and 8 others PLD 2016 SC 229 applied.

Ms. Heer Memon and Abdul Sattar Lakhani for Decree Holder.

Muhammad Azhar Faridi for Judgment Debtor No.1.

Mustafa Ali for Auction Purchaser.

2020 C L C 1353

[Sindh]

Before Aziz-ur-Rehman, J

Mst. MUNIBA RAHEEL ----Petitioner

Versus

RAHEEL TAUFIQ FEROZ and another----Respondents

C.P. No.S-928 of 2019, decided on 4th December, 2019.

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

----Ss.12 & 25---Interim custody of minor---Visitation rights of father---Petitioner was mother of minor daughter and had assailed order passed by Family Court regarding interim custody---Validity---Real father could not be deprived of his right to meet his daughter and / or spend time with her---Such restraint would lead to / cause emotional deprivation of the minor daughter on both sides--- Child not only needs love, affection, care and attention of a mother but also that of a father---During litigation between the parties such order or 'interim custody' could not be alleged / called as un-justified and / otherwise harsh and illegal--- Any order passed under S.12 of Guardians and Wards Act, 1890, was not equivalent to an order passed under S.25 of Guardians and Wards Act, 1890---Latter order was to determine rights of parties with regard to 'regular custody' of a minor and that too only after taking into consideration the capacity / position of a party to either maintain a child and / or to provide love and affection to such child---Such like questions could only be decided in a 'final adjudication' of application under S.25 of Guardians and Wards Act, 1890---High Court declined to interfere in the order passed by Family Court with regard to interim custody as there was no 'infirmity' or 'illegality' in the order---Constitutional petition was dismissed, in circumstances.

Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 and Mst. Marium Tariq and others v. SHO of Police Station Defence and others PLD 2015 Sindh 382 distinguished.

Abdul Rauf and 10 others v. Government of Sindh and others 2003 CLC 1602; Akbar Cotton Mills Ltd. v. Messrs Ves/Ojuanojo Objedinenije Tech/Amesh Export and another 1984 CLC 1605; Pakistan International Airlines Corporation v. Air Master (Pvt.) Limited and another PLD 2004 Kar. 77; Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi 1996 SCMR 1165; Bank Al-Falah Limited v. Inter Global Commerce Pakistan [Pvt.] Ltd. and 5 others 2017 CLD 1428; Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 and Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others 1998 SCMR 328 ref.

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

----S.12---Interim custody of minor---Scope---When statute itself has taken away right of appeal against an 'interim order' then such order cannot be assailed / questioned / brought under attack in a Constitutional petition under the exercise of Constitutional jurisdiction of High Court.

Mst. Maham Shabbir v. Salman Haider and others 2014 CLC 330 and Syed Masood Ali v. Mst. Soofia Noushaba and 2 others 1986 CLC 620 rel.

Aamir Mansoob Qureshi for Petitioner.

Asif Ali Pirzada, Naeem Qureshi and Muhammad Asif for Respondent No.1.

Ms. Naushaba Haque Solangi, A.A.G. for Respondent No.2.

2020 C L C 1414

[Sindh]

Before Yousuf Ali Sayeed, J

Messrs QUETTA TEXTILE MILLS LTD. through Authorized Representative----Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources and 4 others----Defendants

Suits Nos. 287, 852, 636, 2470, 698, 798, 797, 2545, 2620, 730, 2590, 683, 731, 814, 749, 682, 750, 699, 2562, 662, 759, 732, 640, 2439, 2529, 684, 716, 681, 642, 2512, 767, 2606, 2564, 768, 638, 641, 637, 689, 715, 799, 639, 2480, 853 of 2015, 2226, 1767, 2018, 2387, 1628, 188, 2167, 634, 502, 400, 389, 73, 395, 747, 1775, 702, 1486, 88, 1672, 393, 387, 2227, 561, 484, 2759, 787, 266, 142, 1673, 1531, 195, 2793 of 2016 and 225, 1030, 1803, 728, 502, 1615 of 2018, decided on 27th February, 2020.

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

----S.8 (3)---National Electric Power Regulatory Authority (Licensing, Application and Modification Procedures) Regulations, 1999, Rgln.2(k)---Industrial unit or Captive Power Plant---Determination---Tariff notification of Gas Supply Company was assailed by plaintiff companies on the ground that they were industrial units and were not covered under the definition of "Captive Power Plants" therefore, they were to be charged accordingly---Validity---No intention to sell surplus power could be discerned on the part of plaintiffs, either at the time of their contracting with Gas Company in terms of supply agreements or thereafter---House Power Generation, in accordance with the agreements, did not meet the test of what constituted a 'Captive Power Plant' for the purpose of National Electric Power Regulatory Authority (Licensing, Application and Modification Procedures) Regulations, 1999, so as to attract the tariff for 'Captive Power'--- No allegation as to any breach of conditions set out in supply agreements was advanced and all plaintiffs had remained and continued to be compliant in that respect---Plaintiffs could not have been migrated by Gas Supply Company from industrial tariff under which they were being charged in terms of notification dated 1-1-2013 to the higher tariff for 'Captive Power' subsequently introduced by Oil and Gas Regulatory Authority in terms of notification dated 23-8-2013---High Court declared that for the purposes of notifications, plaintiffs properly fell within the category of industrial consumers rather than 'Captive Power' and remained subject to industrial tariff in terms of notification dated 1-1-2013 rather than the tariff prescribed under notification dated 23-8-2013---Suit was decreed accordingly.

Civil Appeals Nos.159-L to 214-L of 2018 rel.

Olympia Power Generation (Pvt.) Limited v. Sui Southern Gas Company Limited PLD 2017 Sindh 73 and Messrs Bhanero Energy Limited v. Sui Southern Gas Co. Limited PLD 2017 Sindh 520 ref.

Ms. Soofia Saeed, for Plaintiffs (in Suit Nos. 287, 640, 641, 642, 639, 662, 657, 682, 683, 684, 689, 698, 699, 715, 730, 732, 750, 759, 781, 797, 798, 799, 814, 2545, 2590 and 2620 of 2015 and 73, 395, 400, 484, 502, 747, 1775 and 2793 of 2016).

Ameen Bandukda, for Plaintiffs (in Suits Nos. 852, 853, 2606 of 2015 and 188 and 634 of 2016).

Syed Mohsin Ali, for Plaintiff (in Suits Nos. 2480 and 2514 of 2015, and 88, 266, 389, 561, 702, 1531, 1673, 1767, 2387, 2759, 2793, of 2016, 225 and 728 of 2017).

Ms. Navin Merchant, for Plaintiff (in Suit 2227 of 2016).

Naeem Suleman for Plaintiffs (in Suits Nos. 2439, 2512 and 2564 of 2015 and Suit Nos. 634, 1486 of 2016, 502 and 1030 of 2017).

Faiz Durrani, Samia Faiz Durrani, Ghulam Muhammad and Gharib Shah, for Plaintiff (in Suit No. 387 of 2016).

Arshad Husain Shahzad, for Plaintiffs (in Suits Nos. 2529 and 2606 of 2015, Suit Nos. 195, 393, 2167, 2226 of 2016, 1803 of 2017 and 1615 of 2018).

Muhammad Idrees Sukhera, for Plaintiff (in Suit No. 1628 of 2016).

Manzoor Ahmed Arain for Plaintiff (in Suits Nos. 767 and 768 of 2015).

Darvesh K. Mandhan for the Plaintiff (in Suits Nos. 1672 and 2018 of 2016).

Syed Mehmood Abbas for Plaintiffs (in Suits Nos. 640 of 2015, 787 of 2016).

Anas Makhdoom and Ahmed Faraaj for Plaintiffs (in Suits Nos. 636, 637, 638, and 2470 of 2015).

Muhammad Anwar Kamal, AAG, for Federation.

Asim Iqbal for the Oil and Gas Regulatory Authority and Sui Southern Gas Company Limited, Defendants.

2020 C L C 1465

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

MUHAMMAD ASIM PANHWAR and another----Petitioners

Versus

PROVINCE OF SINDH through Secretary Education Government of Sindh, Karachi and 6 others----Respondents

Constitutional Petitions Nos.D-730 2018 and D-2645 of 2019, decided on 9th March, 2020.

Constitution of Pakistan---

----Arts. 25-A & 199--- Constitutional petition--- Fundamental rights--- Right to education--- Scope--- Petitioner sought indulgence of High Court for direction to authorities repairing and development of schools in question---Authorities assured High Court that maximum development work would be carried out throughout the Province without any discrimination---Effect--- Word 'fundamental' was purposely used to place such rights on higher pedestal than other common rights available to a citizen and also to emphasize upon their importance as being fundamental to the life and existence of citizens--- Constitution guarantees number of valuable fundamental rights to citizens of Pakistan--- Every such right is valuable and important in its own way but right to education is one of the most important rights and is actually 'fundamental' in its literal sense--- Education changes and improves the vision, thinking, knowledge, outlook and attitude of its recipients and resultantly their quality of life and that of their family members improves--- High Court directed to issue notices to concerned authorities for compliance of commitment given in the Court --- Constitutional Petition was allowed accordingly.

PLD 2014 SC 350 ref.

Manzoor Ahmed Panhwar for the Petitioner (in C.P. No.D-730/2018).

Petitioner (in C.P. No.D-2645 / 2019 present in person).

Allah Bachayo Soomro, Addl. Advocate General Sindh along with Ahsan Ali Mangi Secretary School Education Dept., Mansoor Rajput Additional Secretary Education, Dr. Hafeez Siyal Deputy Commissioner Badin, Safar Khokhar Director Education (Primary), Muhammad Aslam D.E.O. (Primary) Badin, Nizam Din Chief Engineer, Ahmed Ali Shah Executive Engineer Matiari, and Tahir Ali Dayo Executive Engineer.

2020 C L C 1475

[Sindh (Hyderabad Bench]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

Mst. BIBI SUNDAS and others----Petitioners

Versus

Mst. BIBI SHAHIDA and others----Respondents

Constitution Petition No.D-1067 of 2018, decided on 21st May, 2019.

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

----O. VIII, R. 10 & O. IX, R. 6---Failure to file written statement by defendants on extended period---Defendants were debarred to file written statement---Opportunity of defendants to cross examine plaintiff on debarring the defendant to file written statement---Validity---Order VIII, R. 10, C.P.C., provided that in case of failure to file written statement on extended period for filing the same, the Trial Court could pronounce judgment against the defendants or make such order in relation to the suit as it deemed fit---Trial Court, in the present case, instead of adopting the said course demanded affidavit of ex parte proof from the plaintiffs, which option was provided under O. IX, R. 6, C.P.C., for non-appearance of the defendant after service---High Court observed that court, while passing a decree in terms of O.VIII, R.10, C.P.C., was required to exercise its discretion with due care and caution and the same had to be based on relevant circumstances, before it proceeded to pronounce judgment without going into the merits of the plaintiff's case---Plaintiff could not be absolved from his responsibility to discharge the burden of proof regarding his claim for which he could be called in witness box and defendant, if he was debarred from filing written statement, was to be given an opportunity to cross-examine---High Court granted chance to the defendants to file a written statement with imposition of costs---Constitutional petition was allowed.

Riazul Haq and others v. Muhammad Asghar and others 2017 SCMR 1841 distinguished.

2019 YLR 602 ref.

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

----O. VIII, R. 10---Failure of defendants to file written statement on extended period---Effect---Order VIII, R. 10, C.P.C., provides that if the Trial Court fixed a time for filing written statement but the defendant deliberately avoided to file the same within such extended time, then the Trial Court will be justified either to pronounce judgment against the defendant or pass some other order such as debarring him to file written statement.

Imdad Ali R. Unar for Petitioners.

Abdul Aziz memon for Respondents Nos.1 to 6.

Allah Bachayo Soomro, Additional Advocate-General, Sindh.

2020 C L C 1489

[Sindh]

Before Fahim Ahmed Siddiqui, J

SOHAIL AHMED----Petitioner

Versus

Mst. TEHNIAT and another----Respondents

C.P. No.S-759 of 2019, decided on 31st July, 2019.

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

----Ss.12 & 17---Interim custody of minor---Matters to be considered by the court in appointing guardian---Scope---Petitioner assailed order passed by Judge Guardian Court whereby his application for interim custody of minor was dismissed---Validity---Matter of interim custody could not be decided without examination of the parties and some material on record---Contention of petitioner that at the time of interim or final custody the wishes of minor were immaterial was contrary to the law as per provision of S.17(3) of Guardians and Wards Act, 1890, which provided that if the minor was old enough to form an intelligent preference, it could be considered by the court---Constitutional petition was dismissed.

Saad Amanullah Khan v. IVth Senior Civil Judge (South), Karachi and 3 others PLD 2008 Kar. 499 distinguished.

Israr Ahmed Abro for Petitioner.

2020 C L C 1503

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

ALI ASGHAR DAWOOD BHOY through Attorney----Appellant

Versus

IBRAHIM----Respondent

First Appeal No.154 of 2017, decided on 27th January, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2, 3 & 5 & O. VII, R. 16---Negotiable Instruments Act (XXVI of 1881), S.118---Qanun-e-Shahadat (10 of 1984), Art.163---Oaths Act (X of 1873), S. 9---Summary suit on the basis of cheque---Negotiable instrument was lost---Proof of---Requirements---Offer for special oath---Withdrawal of---Effect---Petition for leave to appear and defend the suit---Defendant made offer for special oath but same was withdrawn thereafter---Petition for leave to appear and defend the suit was dismissed and suit was decreed by the Trial Court---Validity---Trial Court had power to direct the plaintiff to deposit the negotiable instrument with an official of the Court but it was not mandatory requirement of law---Summary suit was competent on the basis of lost negotiable instrument, which had certain legal presumptions---Plaintiff should have established the existence of such instrument as per provisions of Qanun-e-Shahadat, 1984---Plaintiff, in the present case, had produced copy of cheque and memo of the Bank which might be considered as secondary evidence---Said cheque was not in the name of plaintiff but it was a bearer cheque---Plaintiff who had filed the suit on the basis of lost instrument must give an indemnity to the satisfaction of Trial Court against the claim of any other person upon such an instrument---No such course had been adopted in the present case and suit could not be proceeded under summary jurisdiction---When plaintiff had no evidence in support of his claim and had sought decision on the basis of an oath then he might place his case on a special oath and if same was denied on oath by the defendant then suit of plaintiff would fail---No such oath had been taken by the plaintiff in the present case and offer was made on behalf of defendant---Plaintiff should have administered oath and in case of non-appearance of defendant, the matter might be decided in his favour---If defendant had withdrawn his offer for special oath before its administration then there would be no question of administering oath---Impugned judgment passed by the Trial Court was set aside and matter was remanded for trial afresh---Suit would proceed as an ordinary suit and not as a summary suit---Appeal was allowed, in circumstances.

Asif Nadeem v. Messrs Bexshim Corporation and others 2001 CLC 653 ref.

S.M. Jahangir for Appellant.

Nemo. for Respondent.

2020 C L C 1514

[Sindh]

Before Muhammad Saleem Jessar, J

Syed AZHAR HUSSAIN RIZVI----Applicant

Versus

IRFAN UMAR and another----Respondents

Civil Revision Application No.27 of 2018, decided on 24th October, 2019.

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

----O. XXXVII, R. 2 & Appendix B, Form 4---Summary suit on the basis of cheque---Application for leave to appear and defend---Limitation---Commencement of---Application was dismissed being time barred---Validity---Notice under O. XXXVII, R. 2, C.P.C. for filing of application for leave to appear and defend the suit was to be served upon the defendant in Form 4 of Appendix B, C.P.C. with copy of plaint---Copy of plaint in the present case, was received by the defendant on 30-08-2017 and application for leave to appear and defendant the suit was filed on 09-09-2017 when case was fixed by the Court---Limitation for filing application for leave to appear and defend the suit would commence from the date of receiving copy of the plaint---Trial Court itself fixed 09-09-2017 for the purpose of filing application for leave to appear and defend the suit---Filing of such application on 09-09-2017 would not be hit by any law including law of limitation---Summons must be served in proper manner as prescribed under the law and if copy of plaint was not annexed with the summons then it was not a good service---Copy of plaint, in the present case, was not supplied along with summons to the defendant therefore, he was entitled to extension of time for filing application for leave to appear and defend the suit---High Court observed that defendant was granted leave to appear and defend the suit conditions to be imposed by the Trial Court in accordance with law---Matter was remanded to the Trial Court for proceedings further on merits---Revision was allowed, accordingly.

Mian Muhammad Amjad Amin v. Rana Bashir Ahmed 2004 MLD 938; Ahmed Shah v. Israr-ud-Din 2016 CLC 1100 and Manzoor Ahmed v. Muhammad Iqbal 1994 SCMR 560 distinguished.

Zahoor Ahmed v. Asif Hussain 2001 MLD 1759; Asif Nadeem v. Messrs Bexshim Corporation and others 2001 CLC 653 and Muhammad Yasin v. Sheikh Muhammad Pervaiz 2012 CLC 1141 rel.

(b) Administration of justice---

----Party not to be penalized for the fault of the Court.

(c) Administration of justice---

----When law requires a thing to be done in a particular manner then it must be done in that manner or not at all.

Ms. Mehreen Ibrahim for Applicant.

Muhammad Arshad Tariq for Respondent No.1.

2020 C L C 1532

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

SHEERAZ JAMALI----Petitioner

Versus

PROVINCE OF SINDH, through Secretary Department, Local Government, Hyderabad Region and 3 others----Respondent

Constitution Petition No.D-2406 of 2018, decided on 21st February, 2019.

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

----Ss. 26 & 28---Resignation to be notified---Withdrawal of resignation---Scope---Petitioner, however, sought a declaration to the effect that he had not tendered resignation from the Chairmanship of Union Council---Petitioner, however, admitted that he had tendered resignation from the said post and had signed resignation letter, but took the plea that the resignation letter was not delivered to the competent authority and that the original letter of resignation was retained by him and photocopy of the same was kept in his office, which photocopy was posted by someone without his knowledge and consent---Validity---Such assertion of the petitioner was not tenable for the reason that his basic intention was to resign from the public office---Petitioner had verified the contents of resignation letter by putting a note in local language to the effect that it was written by him and it bore his signature---Nothing was said as to whether the resignation letter was managed one, rather its contents were admitted---Petitioner was precluded from asking its withdrawal or taking the plea that he had not tendered the same---Section 26 of the Sindh Local Government Act, 2013 left no room for any doubt or ambiguity as to the fact that once resignation was accepted, it could not be withdrawn subsequently and "shall" be deemed to have been accepted and the Election Commission was required to issue notification under S.28 of Sindh Local Government Act, 2013 and conduct election under S.36 of Sindh Local Government Act, 2013 on the vacant seat---Petitioner had voluntarily tendered his resignation had remained mum and after lapse of four months of its acceptance by the competent authority had taken somersault which was against the scheme of law, hence he could not ask for its withdrawal, which was duly accepted and acted upon---Petitioner was rightly stopped from performing as Chairman of Union Council by the Chief Election Commissioner---Constitutional petition was dismissed.

(b) Public official---

----Resignation from public office---Scope---Offer of resignation from the public office can be withdrawn at any time before it is accepted---Proposer, who gives the offer has, an absolute right either to give the offer or not to do so and until the offer is accepted, he has an absolute right to withdraw the same.

Mustafa Lakhani and Moinuddin Mangi for Petitioner.

Allah Bachayo Soomro, A.A.G. Sindh along with Amer Mirza, District Election Commissioner Dadu and Rashid Billah Abbasi, Deputy Director, Local Government Department Dadu for Secretary Local Government Karachi and Director Local Government Department Hyderabad.

2020 C L C 1555

[Sindh]

Before Aqeel Ahmed Abbasi and Mahmood A. Khan, JJ

ANJUM REHMAT and another----Petitioners

Versus

SQUADRON LEADER (R) SHAIKH GHULAM SADIQ and others----Respondents

High Court Appeal No.22 of 2014, decided on 27th February, 2020.

Civil Procedure Code (V of 1908)---

----S.144---Restoration of possession---Scope---Remand order--- Final determination of entitlement---After setting aside of decree by Supreme Court, Single Judge of High Court directed the Official Assignee to take over the possession of suit property---Appellant contended that exercise of restitution as provided under S.144, C.P.C. was not available being limited to person entitled and that whole of the order as passed by Supreme Court was not considered and the order of remand as passed while setting aside the decree and such order could not be treated as reversal of decree---Validity---Elements of variation or reversal along with any determination of entitled party were missing and in absence of the same exercise of power under S.144, C.P.C. was not available and warranted, even to the extent of handing over the same to the Official Assignee---Neither disentitlement of appellant stood established nor there was any element of wastage of subject property---Division Bench of High Court set aside order of restoration of possession passed by Single Judge of High Court on account of not being available accordingly without required determination of entitlement---High Court Appeal was allowed in circumstances.

Aquil Usman Dhaduk and another v. Jamil Akhtar Kiyani and 5 others 2004 YLR 122 ref.

Abid S. Zuberi for Appellant.

Khawaja Naveed Ahmed and Mansoor-ul-Arfin for Respondents.

Dr. Chaudry Wasim Iqbal Official Assignee.

2020 C L C 1568

[Sindh (Larkana Bench)]

Before, Khadim Hussain Tunio, J

HEAD MASTER, GOVERNMENT HIGH SCHOOL, RATODERO and 3 others----Applicants

Versus

IMAMUDDIN----Respondent

Civil Revision Application No.S-9 of 2018, decided on 21st February, 2019.

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

----S.96---Limitation Act (IX of 1908), S. 5---Appeal---Limitation---Condonation of delay---Sufficient cause---Scope---Appeal against the judgment and decree of Trial Court was dismissed on the ground of limitation---Validity---Power to condone delay and grant extension of time was discretion of the Court and same was subject to sufficient cause---Technical knock-out could not be considered 'good' when substantive rights of the party were involved---Party seeking condonation of delay was to prove to have acted bonafidly in filing the appeal in time but due to certain reasons it stood prevented---Such reasons must not only be reasonable but also sufficient to convince the conscious of the Court that extension of time would foster the justice---If a party had a case on merits then it would be within safe administration of justice to exercise discretion towards dispensation of justice and not to allow the opposite party to continue enjoying illegal gains in the name of technicalities---Appellant after getting approval from the competent authority had filed appeal before the Appellate Court without loss of further time---If interest of public at large was involved and Government had a case on merits then it would never be advisable to let the public interest go wasted because of negligence of an individual---Valuable rights of Government were involved in the present matter, if appellants were dispossessed from the suit property then not only the students' future would suffer but also the public exchequer---Court in exercise of its jurisdiction had power to deal with the question of limitation---Court had jurisdiction to exercise its discretion for condonation of delay---Courts while exercising its discretionary jurisdiction was to foster the ends of justice and preserve the right of the parties and right a wrong---Case was to be decided on merits rather than technicalities---Delay in filing of the appeal had been explained by the appellants---Defendants had challenged the authenticity and genuineness of the entries being illegal, forged and fabricated---Plaintiff had neither adduced any evidence nor examined any official from the revenue authorities to ascertain the documents he had relied upon---Plaintiff had produced the extract but had not examined author of said document---Mutation entries were only for fiscal purpose and were not title document---Courts below had committed illegality and irregularity while not summoning the original record---Court was competent to exercise such discretion even without an application from the parties---Impugned judgments and decrees passed by the Courts below were not sustainable which were set aside---Delay in filing of appeal, if any, on the part of defendants was condoned, in circumstances---Matter was remanded to the Trial Court with the direction to summon the original record from the concerned authorities and examine their representatives as court witnesses and pass fresh judgment---Revision was allowed, in circumstances.

HAD v. Abdul Majeed PLD 2002 SC 84; Master Moosa Khan and 3 others v. Abdul Haque and another 1993 SCMR 1304; Karachi Water and Sewerage Board, through Managing Director and another v. Muhammad Moosa 2001 CLC 221; Province of the Punjab through Collector v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172; Khan Muhammad Yousuf Khan Khattak v. S.M. Ayoub and 2 others PLD 1973 SC 160 and Khurshed Ali and 6 others v. Shah Nazar PLD 1992 SC 822 rel.

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

----S.42 --- Mutation --- Scope --- Mutation was not a title document.

(c) Administration of justice---

----Courts were to act in the aid of justice.

(d) Administration of justice---

----Technicalities of law to be avoided and discouraged in order to do complete justice.

(e) Administration of justice---

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

Shafi Muhammad Chandio, Additional Advocate General for Applicants.

Abdul Rehman Bhutto for Respondent.

2020 C L C 1599

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

Haji MUHAMMAD ASHRAF QURESHI----Petitioner

Versus

NANKI BAI and 6 others----Respondents

Constitution Petition No.S-830 and M.A. No.2021 of 2018, decided on 3rd October, 2019.

Powers-of-Attorney Act (VII of 1882)---

----S.2---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Application for eviction of tenant --- Power of attorney, validity of---Plea on behalf of tenant that eviction proceedings filed by attorney for the landlady before the Rent Controller had not been filed on the basis of proper General Power of Attorney establishing the actual and valid agency available with the said attorney---Held, that said matter rested between the principal (landlady) and her attorney to which the tenant (petitioner) could not claim to hold any interest to claim any right as long as the Power of Attorney was in compliance to the relevant law i.e. Powers-of-Attorney Act, 1882---No fatal defect to the said attorney was pointed out nor was any established in the concluded rent proceedings---Constitutional petition having no merits was dismissed.

Syed Muhammad Waseem Shah for Petitioner.

2020 C L C 1638

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MUHAMMAD DAWOOD WAGAN and others----Petitioners

Versus

The PROVINCE OF SINDH through Secretary Local Government Department, Karachi----Respondent

C.P. No.D-2231 of 2014, decided on 28th February, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Conversion of amenity plot into a commercial/residential use---Validity---Paramount object of modern city planning was to ensure maximum comforts for the residents of the city by providing maximum facilities---Deviation from the planned scheme would result in discomfort and inconvenience to the others---Conversion of amenity plot into commercial/residential use without inviting and deciding objections was illegal---Encroachment of amenity plot could not be allowed to sustain under the law---Authorities were to look into the matter and restore the possession of amenity plot in accordance with law---Once a Housing Scheme was framed no alterations could be made---Alteration in a scheme could be made for the good of the people at large but not for the benefit of an individual for favouring him at the cost of other people---Infrastructural facilities of a Housing Scheme or Society would be overburdened when land reserved for residential purpose had been converted to commercial use---Conversion of amenity plot to other use would suffer public interest through deprivation---Authorities were bound to restore the amenity plots according to original or revised layout plan---Constitutional petition was disposed of, accordingly.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 rel.

Muhammad Arshad S. Pathan for Petitioners.

Irfan Bughio for HDA/Respondents Nos.2, 3, 6 and 7.

Jhamat Jethanand for Respondents Nos.8 and 9.

Zaheeruddin Sahito for SBCA/Respondents Nos.4 and 5.

Allah Bachayo Soomro, Additional Advocate General, Sindh.

2020 C L C 1670

[Sindh]

Before Nazar Akbar, J

ROSHAN ARA and others----Appellants

Versus

ABDUL KARIM and others----Respondents

Miscellaneous Appeal No.41 of 2019, decided on 11th March, 2020.

Succession Act (XXXIX of 1925) ---

----Ss. 372, 373 & 295---Qanun-e-Shahadat (10 of 1984), Arts. 85 & 128---Specific Relief Act (I of 1877), S. 42---Succession certificate, issuance of---Public document---Presumption of truth---Legitimacy of a child---Proof---DNA test, conducting of---Respondents being sisters of deceased filed application for conducting DNA test of minor son of deceased with the contention that he was adopted son and was not entitled for inheritance---Petition for conducting DNA test and objections were dismissed and succession certificate was issued in favour of petitioners---Validity---Documents produced on behalf of petitioners were official which had not been disputed by the respondents---Respondents should have sought declaration and cancellation of said documents before raising objections to the legal status of minor after death of his mother---Legitimacy of a child or his status as son of deceased could not be disproved by any oral evidence as against documentary evidence from official record which was a public document---Civil Court in presence of documentary evidence could not hold that the child was not born from the marriage of the parties---Father, in the present case, had not challenged that deceased was not mother of the minor son---Respondents had failed to challenge or rebut the evidence of official record of National Database and Registration Authority and other evidence before the Trial Court---DNA test could not be a sole proof of paternity of a child---Trial Court had rightly refused request of respondents for conducting DNA test, in circumstances---Respondents had made a frivolous challenge to the paternity of a child to deprive him from inheritances---Appeal was dismissed in, circumstances.

2012 YLR 1752 distinguished.

Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449; Salman Akram Raja v. Government of Punjab 2013 SCMR 203 and Ghazala Tehsin Zohra v. Ghulam Dastagir Khan PLD 2015 SC 327 rel.

Mirza Sarfaraz Ahmed for Appellants.

Shabbir Ahmed Kumber for Respondents No.2.

Public at Large for Respondent No.3.

2020 C L C 1695

[Sindh]

Before Muhammad Junaid Ghaffar, J

Messrs GENERAL SERVICES and 4 others----Plaintiffs

Versus

CHIEF COLLECTOR OF CUSTOMS and 20 others----Defendants

Suit No.737 and C.M.As. Nos.10274, 6365, 6366, 6367, 6448, 6721, 6525, 12940 of 2019, decided on 1st November, 2019.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Customs Act (IV of 1969), S.12---Civil Procedure Code (V of 1908),O.XXXIX, Rr.1 & 2---Suit for declaration, recovery and injunction---Licensed public warehouse---Application for permanent injunction, refusal of---Scope---Plaintiffs filed suit for declaration, recovery and injunction contending therein that they had obtained a license in terms of S.12 of Customs Act, 1969, for a public bonded warehouse; that its business continued under the management of plaintiffs; that defendant (agent) was hired as a contractor/agent by means of a Special Power of Attorney for running and maintain the warehouse and that after the death of agent, it transpired that goods stored on behalf of several defendants were missing, against which the Customs Department initiated proceedings---Plaintiffs sought a declaration to the effect that they had no connection with the Customs Department and others---Validity---Plaintiffs had no authority to execute the power of attorney---Public warehouse could only be run by a person after issuance of a proper licence by the Customs Authorities under S.12 of Customs Act, 1969, which could not be transferred or sub-let to anyone---Agent of plaintiffs, if ever recognized by Customs Department, could only be recognized as an employee/manager or representative of the plaintiffs and not as their licensee---Plaintiffs had no prima facie case nor balance of convenience was in their favour, whereas, it was the Customs Department who would be caused irreparable loss, if injunction was granted.

Ch. Atif Rafiq for Plaintiffs.

Khalid Rajpar for Defendant No.3.

Ms. Fauzia Rasheed holding brief for Sohail Muzaffar for Defendant No.4.

Omer Memon for Defendants Nos.5 and 13.

Abdul Lateef Shaikh for Defendant No.10.

Hanif Faisal holding brief for Khalid Jawed Khan for Defendant No.11.

Muhammad Imran Khan for Defendant No.15.

Kashif Hanif for Defendant No.16.

Suleman Huda for Defendant No.18.

Adnan Motan.

Kafeel Ahmed Abbasi, DAG.

2020 C L C 1714

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUHAMMAD AYAZ KHAN and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.Ps. Nos. D-2167, D-2387, D-2388, D-2389, D-2390, D-2439 and D-2440 of 2019, heard on 13th November, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition---Scope---Petitioners challenged the order passed by Karachi Port Trust wherein it was observed that Karachi Port Trust was a federal statutory Authority; that trustees were duty bound to safeguard the State land and apply their judicious mind; that in the light of the references cited by the applicants no fresh temporary license was converted from 25 years to 99 years of lease in "C" group area; that being federal statutory Authority no discrimination was done to applicants or any other citizen and that conversion of licence from 25 years to 99 years leases could not be acceded to, hence rejected the applications---Petitioners' counsel wanted to file civil suit for decision on the fate of their claims as to whether they were entitled to the extension of licence from 25 years to 99 years or non---Petitions were disposed of accordingly.

Obaid-ur-Rahman Khan for Petitioners.

Yawar Faruqui for Respondents Nos.2 and 3 (in C.P. No.D-2167 of 2019).

Ms. Nasima Mangrio for Respondent No.2 (in C.P. No.D-2387 of 2019).

Abdur Razzaq for Respondent No.2 (in C.Ps. Nos.D-2388, D-2389, D-2439 and D-2440 of 2019).

Hakim Ali Khan for Respondent No.2 (in C.P. No.D-2390 of 2019).

Hussain Bohra, Assistant Attorney General.

2020 C L C 1720

[Sindh]

Before Nazar Akbar, J

Dr. MUHAMMAD HASSAN and others----Appellants

Versus

ADDITIONAL CONTROLLER OF RENT, CLIFTON CANTONMENT BOARD

and another----Respondents

F.R.As. Nos.31 to 49 of 2016, decided on 6th March, 2020.

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

----S.3---Rent Controller---Jurisdiction---Government building---Neither any other Court nor parties can confer jurisdiction on a Court / Tribunal when it is expressly barred by Cantonment Rent Restriction Act, 1963.

(b) Jurisdiction---

----Question of---Principle---Whenever question of jurisdiction of a Court is raised by any party it has to be decided first by the Court as preliminary issue.

A.M Qureshi v. Government of Sindh and others 1991 SCMR 1103 rel.

(c) Jurisdiction---

----Interim order, passing of--- Principle--- Court having no jurisdiction to adjudicate on dispute between parties on merit, cannot even pass interim order and then penalize parties for its non-compliance.

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

----Ss.3, 17, 19(8) & 24--- Constitution of Pakistan, Arts. 10-A & 23---Eviction of tenant---Property rights---Rent Controller, jurisdiction of---Petitioners were having lease agreements in their favour executed by Federal Government and the Government sought their eviction from Rent Controller on the plea of raising commercial buildings---Validity---Tenants had perpetual right in demised shops under the agreements with Federal Government and whenever the government decided to launch any commercial project by demolishing the property in question, the rights of tenants under existing agreement were to be protected and no effort should be made to wriggle out of the contractual obligations except in accordance with law---Tenants were to be properly informed with relevant material details of any proposed action---Landlord had filed cases in the Court of Additional Rent Controller despite the fact that he had no jurisdiction and then tried to subvert entire trial in the name of S. 19(8) of Cantonments Rent Restriction Act, 1963 which was a mala fide attempt to deprive tenants from their Constitutionally guaranteed lawful right in demised shops---High Court in exercise of appellate jurisdiction set aside eviction orders passed by Rent Controller---Appeal was allowed in circumstances.

Suo moto Case No.04 of 2010 PLD 2012 SC 553; Inaam-ul-Haq v. Muhammad Ali Shaheen and another 2013 CLC 904; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Minisry of Law and others PLD 2013 SC 501; Zulfiqar Ahmed khan v. Station Commander, Station Headquarters, Karachi and another 2010 CLC 354 and Ghulam Mustafa Bughio v. Additional Controller of Rents, Clifton and others" 2006 SCMR 145 ref.

M.H Mussadaq v. Muhammad Zafar Iqbal 2004 SCMR 1453; Khawaja Muhammad Mughees v. Mrs. Sughra Dadi 2001 SCMR 2020; Asif Najma Ansaizi v. Mrs. Mariam Mirza and another 2014 MLD 1304; Arif Lakhani v. Irfan Nazar and another 2014 CLC 1756; Uzma Construction Co. v. Navid H. Malik 2015 SCMR 642; Muhammad Saqib v. S.M Mushtaq 2015 YLR 723; Mian Muhammad Lateef v. Mst. Nasima Warsi through L.R 2009 CLC 279; Najma Aziz Sethi v. Muhammad Azeem Butt 2008 MLD 42; Dawood Khan through Attorney v. Sheraz Ahmed 2009 YLR 1238; Zulfiqar Ahmed Khan v. Station Commander, Station Headquarters, Karachi an another 2010 CLC 354; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Mrs. Ghazala Iftikhar v. Controller/Additional Controller of Rents and another 2012 YLR 74 and Abdul Latif and another v. Messrs Parmacie Plus 2019 SCMR 627 distinguished.

Mohsin Qadir Shahwani for Appellants (in R.F.As. Nos.31 to 49 of 2016).

Nemo. for Respondent No.1.

Muhammad Asif Malik for Respondent No.2.

2020 C L C 1746

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Dr. ABDUL RASHID PARACHA through his duly constituted attorney----Plaintiff

Versus

The DEFENCE HOUSING AUTHORITY through Administrator and 8 others----Defendants

Suit No.1316 of 2000, decided on 20th January, 2020.

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

----S.3---Suit for declaration and injunction---Maintainability---Limitation--- Scope--- Plea raised by defendant was that suit was not maintainable as it was barred by limitation--- Validity--- Limitation was a mixed question of fact and law, particularly where question of law was dependent on determination of other issues--- Plaintiff should not be non-suited unless either there was incriminating evidence against plaintiff that his claim was a time barred one or the issue could be decided on the basis of undisputed record.

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

----Ss. 27(b),42 & 54--- Transfer of Property Act (IV of 1882), S.41--- Qanun-e-Shahadat (10 of 1984), Art. 92--- Suit for declaration and injunction--- Transfer by ostensible owner--- Bona fide purchaser for valuable consideration without notice--- Plaintiff claimed to be owner of suit property and alleged that transfer of the same in favour of defendants was result of fraud---Validity---Defendants produced conveyance deeds in support of their pleas that they had purchased respective subdivided plots through a valid registered instrument--- One of the defendants also produced lease in favour of other defendant issued by Defence Housing Authority--- Both defendants could not be contradicted by plaintiff who could not challenge documents exhibited by defendants which were Transfer order; approved building plan; completion certificate; and subsequent transfer order, all documents issued by public offices--- Such documents were public documents and their authenticity was not challenged, therefore, genuineness as contained in Art. 92 of Qanun-e-Shahadat, 1984, and the same was attracted to documents so exhibited--- Both defendants were bona fide purchasers for value without notice was relevant--- Such principle was developed by Courts while expounding S. 41 of Transfer of Property Act, 1882 & 27(b) of Specific Relief Act, 1877--- Suit was dismissed in circumstances.

Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704; Shamshair Ali v. Mukhtiarkar (Revenue) and City Survey Officer and 2 others 2016 CLC Note 22; Shahnawaz Mallah and 2 others v. Raza Muhammad Brohi 2013 CLC 792; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Muhammad Ijaz Ahmad v. Mumtaz Ahmed Tarar 2016 SCMR 1; Kuhinoor Tobacco Company (Pvt.) Ltd. v. S.M. Idrees Allhawala 2013 CLC 1789; Chaudhry Muhammad Saeed v. Custodian Evacuee Property of AJ&K 2017 YLR SC(AJ&K) Note 193; Wahab Ali v. Frontier Pharmaceutical (Pvt.) Ltd. 2015 MLD 111; Wali v. Akbar 1995 SCMR 284; Farzand Ali v. Bashir Ahmad 2016 YLR 1233; Lt. CDR. Mirza Mansoor Hussain Zazalbash v. Syed Mohammad Faheem 2016 YLR 748 and Pakistan Defense Housing Authority v. Lt. Cdr. Mirza Mansoor Hussain Qazalbash and 4 others Unreported decision given in HCA No.328 of 2015 distinguished.

Muhammad Sarwar and another v. Fazal Rehman 1982 CLC 1286; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Lt. CDR. Mirza Mansoor Hussain Qazalbash through Attorney v. Syed Mohammad Faheem and 4 others 2016 YLR 748; Messrs Raees Amrohvi Foundation (Regd.) v. Muhammad Moosa and others 1999 CLC 296; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Muhammad Moin Khan deceased represented by Legal representatives v. Chief Settlement Commissioner, Pakistan Lahore and 2 others PLD 1961 SC 436; Officer on Special Duty, Central Record Office and others v. Bashir Ahmad and 9 others 1977 SCMR 208; Ghulam Rasool v. Noor Muhammad 2017 SCMR 81; Agha Wazir Abbas v. The State 2003 PCr.LJ 1353 and Usman's case PLD 1975 Kar. 352 ref.

Shahan Karimi for Plaintiff.

Nazar Hussain Dhoon and Shahid Hussain for Defendant No.1.

Imtiaz Ali Effendi for Defendant No.6.

Akhter Hussain and Muhammad Masood Ghani for Defendant No.8.

Muhammad Abdur Rahman for Defendant No.9.

Mirza Tanveer Ahmed, Focal Person, FIA Immigration, JIAP, Karachi.

Nemo. for Defendants Nos.2, 3, 4, 5 and 7.

2020 C L C 1767

[Sindh]

Before Mahmood A. Khan, J

AL-RUKAYA TRADERS/SOLE PROPRIETORSHIP through Attorney----Appellant

Versus

CENTRAL BOARD OF REVENUE, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others----Respondents

H.C.A. No.194 of 1997, decided on 16th March, 2020.

Specific Relief Act (I of 1877) ---

----S. 42---Customs Act (IV of 1969), S. 217(2)---Civil Procedure Code (V of 1908), O.VII, R.11--- Suit for declaration---High Court, jurisdiction of---Rejection of plaint---Suit was rejected due to bar on account of restriction imposed under S.217(2) Customs Act, 1969---Validity---Issue revolved around the element of jurisdiction available to High Court of Sindh on Original Side to be treated as Civil Court or otherwise---High Court of Sindh was entertaining civil matters with higher pecuniary valuation which was the only exception in the whole of Pakistan--- Both restrictions of S.217(2) of Customs Act, 1969, as well as S.42 of Specific Relief Act, 1877, were not restricted---Referee Judge set aside the order passed by Single Judge of High Court whereby the plaint was rejected---Suit was restored in circumstances.

Chief Settlement Commissioner v. Muhammad Fazil Khan PLD 1975 SC 331; Syed Mushtaque Hussain v. Riaz Muhammad Hazarvi PLD 1978 Kar. 612; Saleem Impex v. Central Board of Revenue 1999 MLD 1728; Khyber Traders Proprietorship v. Central Board of Revenue and others 1994 MLD 1473; Messrs Al-Rukiya Traders v. Central Board of Revenue and others 1995 CLC 1456; Usman Punjwani and others v. Govt. of Sindh and others 1996 CLC 311; Messrs K.G Traders and another v. Dy. Collector of Customs PLD 1997 Kar. 541; Union of India v. Tarachandar Gupta AIR 1971 SC 558; Collector of Customs and another v. Abdul Razzak PLD 1996 Kar. 451; Qureshi Vegetable Ghee Mills, Magla v. Deputy Collector Excise and Taxation, Mirpur and others 1994 MLD 904; Union of India v. Ayed Ram AIR 1958 Patna 439; Secretary of State v. Mask & Co. AIR 1940 Privy Council 105; Union of India v. Vittappa Kamath and another AIR 1957 Madras 110; The Province of Orissa and another v. Durjodhan Das Gaontia and others AIR (38) 1951 ORISSA 342; Asia Petroleum Ltd. v. Federation of Pakistan 1999 PTD 1313; Al-Waris Trader v. Federation of Pakistan 2002 PTD 173; Abbasia Cooperative Bank v. Hakim Hafiz PLD 1997 SC 3; Shell Pakistan v. Federation of Pakistan YLR 1999 Page 1661; State v. Tariq Aziz 2000 SCMR 751; Punjab Province v. Federation of Pakistan PLD 1956 FC 72; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1967 SC 698; Secretary of State v. Mask & Co. AIR 1940 P.C. 105; Pakistan Government v. Pak Cement Ind. Ltd. PLJ 1975 Lah. 295; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan PLD 1975 SC 331; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan PLD 1975 SC 624; Chairman of Giridib Municipality v. Srish Chandra Mozumdar ILR 1908 Culcutta 35 Page 859; Partap v. Secretary of State CLJR 1922-35 Page 304; Messrs Best & Co. Ltd. v. The Collector of Madras 1918-35 Madras L.J 23; Dhulabhai v. State of M.P. AIR 1969 SC 78 and West Bangal v. The India I&S Co. AIR 1970 SC 1298 ref.

Searle IV Solution (Pvt.) Ltd. and others v. Federation of Pakistan and others reported as 2018 SCMR 1444 rel.

None present for Appellant.

None present for Respondents.

2020 C L C 1784

[Sindh]

Before Muhammad Junaid Ghaffar, J

Messrs ZAFA PHARMACEUTICAL LABS (PVT.) LTD. through authorized representative----Plaintiff

Versus

FEDERATION OF PAKISTAN through the Secretary Ministry of National Health Services and 3 others---Defendants

C.M.A. No.7247 of 2019 in Suit No.840 of 2019, decided on 13th March, 2020.

(a) Drugs Act (XXXI of 1976)---

----Ss.9 & 43---Drugs (Appellate Board) Rules, 1976, Rr.4 & 5---Drugs Appellate Board---Powers of revision of Appellate Board---Scope---Question before High Court was whether while exercising power of revision under R.5 of Drugs (Appellate Board) Rules, 1976, the Appellate Board could exercise the same in respect of its own decisions / orders---Held, that per S.9(1) of Drugs Act, 1976, Appellate Board had been conferred powers to decide appeals filed by persons aggrieved by decision of Licensing Board, Registration Board or other Authorities and had power of revision over any such decision on its own motion---Section 9 of Drugs Act, 1976 did not confer any power on Appellate Board for revision of any of its own decisions---Rule 5 of Drugs (Appellate Board) Rules, 1976 was to be read in juxtaposition with S.9 of Drugs Act, 1976, which revealed that intention of said Rule was in conformity with main statute and Rules must yield to the main statute and not vice versa---Furthermore, R.4 of Drugs (Appellate Board) Rules, 1976 stated that order of Appellate Board shall be final, hence if said order was to be regarded as final, then any alleged power of revision being vested in Appellate Board in respect of its own order(s) was meaningless---High Court held that exercise of power of revision in terms of R.5 of Drugs (Appellate Board) Rules, 1976 was only available for orders and decisions of authorities mentioned in S.9(1) of Drugs Act, 1976.

Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358; Choudhry Ghulam Rasool through L.Rs v. Mistri Ghulam Rasool 2018 CLC 1099; Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore and others 1973 SCMR 455; Liaquat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Ishtiaq Ahmed v. Hon'ble Competent Authority 2016 SCMR 943; Collector, Sahiwal and 2 others v. Mohammad Akhtar 1971 SCMR 681; Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 SC 358; Messrs E. Merck (India) Ltd. and another v. Union of India and another AIR 2001 Delhi 326; Vincent Panikurlangara v. Union of India and others AIR SC 990 and Merck Sharp and Dohme Corporation v. Glenmark Pharmaceuticals Ltd. [CS (OS) 586/2013 and CC No.46/2013 and I.As. Nos. 9827/2013, 8048/2014 and 13626/2015] ref.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Hirjina Salt Chemicals (Pak.) Ltd. v. Union Council, Gharo and others 1982 SCMR 522 rel.

(b) Interpretation of statutes---

----Subordinate and delegated legislation---Construction---Rules could not travel beyond scope of main Act / statute under which the same were framed and all possible effort was to be made to read such Rules in line with intention of the Legislature---Rule-making power could not be exercised to override provisions of the Act / statute itself.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Hirjina Salt Chemicals (Pak.) Ltd V. Union Council, Gharo and others 1982 SCMR 522 rel.

Arshad Tayeably and Waqar Ahmed for Plaintiff.

Ishrat Zahid Alvi, Assistant Attorney General along with Syed Hakim Masood, FID, DRAP, Karachi.

Faisal Siddiqui along with Mohamed Vawda for Defendant No.4.

2020 C L C 1817

[Sindh]

Before Yousuf Ali Sayeed, J

CHINA HARBOUR ENGINEERING COMPANY LIMITED----Plaintiff

Versus

KARACHI PORT TRUST through Chairman and others----Defendants

Suit No.Nil (392) of 2018, decided on 27th January, 2020.

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

----O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---"Performance Guarantee", encashing of---Principle---Fraud Exception---Plaintiff had issued "Performance Guarantee" to defendant company in execution of contractual obligations---Dispute was with regard to encashing of the "Guarantee"---Validity---Once a call had been made the Court could not grant injunctive relief against the beneficiary as right to payment under the instrument had already crystallized when the call was made---Injunction could be granted in theory, only if fraud exception were satisfied---No plea was raised as to fraud underpinning the call for encashment of the Guarantee--- Such call was not within the validity of Guarantee or otherwise not in consonance with the terms--- High Court declined to issue injunction restraining encashment of the Guarantee in favour of plaintiff and against defendant as no prima facie case was made out--- Application was dismissed, in circumstances.

Pakistan Engineering Consultants v. Pakistan International Airline Corporation and others 1989 SCMR 379; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; State of Maharashtra and another v. Messrs National Construction Company, Bombay and another 1996 SCC (1) 735; Hindustan Steel Works Construction Ltd. v. Tarapore & Co. and another 1996 SCC (5) 34; Cargill International v. Bangladesh Sugar and Food Industries Corporation [1996] 2 LLR 524 and Pakistan Engineering Consultants v. Pakistan International Airline Corporation and others 1993 CLC 1926 rel.

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

----O.XXIX, R.1---Suit for declaration and injunction---Maintainability---Authority to file suit---Proof---In execution of contractual obligations plaintiff had issued Performance Guarantee to defendant company---Dispute was with regard to encashing of the Guarantee---Validity---Power of attorney was executed and notarized at Beijing (China) and was not attested through Pakistan's Diplomatic Mission in the country---National Certificate appended with the Attorney bore the date of 8-11-2018 and it was even otherwise evident from the wording of the document that the same could not have been executed and been in place as on 17-2-2018---Power of attorney mentioned notional / provisional number of the suit, which could only have been known following institution of the suit---Power of attorney related to legal proceedings 'instituted' before High Court--- Such power of attorney was executed subsequent to institution of the suit in an endeavor to provide cover to absence of power of authority in favour of the person who filed the suit---Ratification of such defect was not permissible, as such Power of Attorney was of no avail---Suit was filed without proper authorization---Suit was dismissed, in circumstances.

Pakistan Engineering Consultants v. Pakistan International Airline Corporation and others 1993 CLC 1926; Messrs Zeenat Brother (Pvt.) Limited v. Aiewan-e-Iqbal Authority through Chairman, Aiwan Iqbal Complex Lahore and 3 others PLD 1996 Kar. 183; Messrs Continental Cable (Pvt.) Ltd. v. Messrs China Harbor Engineering Co. Ltd. and another 2011 CLD 1625; RD Harbottle (Mercantile) Ltd. v. National Westminster Bank Ltd. [1978] QB 146; Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. [1978] QB 159; Alternative Power Solution Ltd. v. Central Electricity Board [2015] 1 WLR 697; American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396; Abdul Rahim v. United Bank Limited PLD 1997 Kar. 62; Razo (Pvt.) Limited v. Director, Karachi City Region Employees Old Age Benefit Institution and others 2005 CLD 1208; Muhammad Siddiq Muhammad Umar v. Australasia Bank PLD 1966 SC 684 and Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 ref.

Hassan Mandviwala for Plaintiff.

Badar Alam for Defendant No.1.

Nemo. for Defendants No.2.

2020 C L C 1857

[Sindh]

Before Adnan Iqbal Chaudhry, J

IFTIKHAR AHMED QURESHI and others----Applicants

Versus

MUHAMMAD ABRAR AHMED QURESHI through Attorney and others----Respondents

J. Misc. Applications Nos.49 of 2018 and 74 of 2015 in Suit No.136 of 2012, decided on 2nd March, 2020.

Civil Procedure Code (V of 1908)---

----O.IX, R.13 & O.V, Rr.10, 20 & 25---Suit for specific performance---Ex parte decree, setting aside of---Substituted service---Requirement---Substituted service should be presumed to be personal but same was rebuttable---Publication in newspaper should be made when Court was satisfied that defendant was avoiding service or there was some reason to believe that summons could not be served in ordinary manner---Substituted service should be adopted when ordinary modes of service had been exhausted---Applicant was residing abroad and no summons was sent abroad as required under O.V, R.25, C.P.C.---Nothing was on record that the dispatched summons were delivered or tendered within the meaning of O.V, R.10, C.P.C.---No presumption of service did attach to the summons sent by a private courier service---Prior to publication neither available modes of service had been exhausted nor there was a verification that the modes of service so used had failed---Nothing was on record that applicant was aware with regard to the suit---Summons, in the present case, had not been published under the authority of Trial Court and even publication was not in the prescribed form---Applicant had not been served in the case, in circumstances---Ex parte judgment and decree were set aside and suit was restored.

Sea Breeze Ltd. v. Padma Ramesh 2012 MLD 39 and Dadabhoy Cement Industries Ltd. v. NDFC PLD 2002 SC 500 ref.

Nargis Latif v. Feroz Afaq Ahmed Khan 2001 SCMR 99; Muhammad Anwar v. Abdul Haq 1985 SCMR 1228; Haji Akbar v. Gul Baran 1996 SCMR 1703 and Inayatullah v. Syed Khursheed Ahmed Shah 2014 SCMR 1477 rel.

Muhammad Mushtaque and Naseem Akhtar for Applicant (in J.M. Application No.49 of 2018).

Shahenshah Hussain for Respondent No.1 (in J.M. Application No.49 of 2018).

Hyder Raza Arain for Applicant (in J.M. No.74 of 2015).

Farhan Zia Abrar for Respondent No.1 (in J.M. No.74 of 2015).

2020 C L C 1878

[Sindh]

Before Nazar Akbar, J

Mst. MUNEERA KHATOON----Applicant

Versus

CITY DISTRICT GOVERNMENT KARACHI (CDGK) through District Coordination Officer and others----Respondents

R.A. No.27 of 2019, decided on 18th May, 2020.

Civil Procedure Code (V of 1908)---

----Ss.96, 115 & O.I, R.10---Appeal or revision on behalf of a party having no grievance against dismissal of suit---Maintainability---Applicant was impleaded in the suit under O.I, R.10, C.P.C., but she neither filed written statement nor appeared in the witness box---Suit was dismissed on merits against which no appeal had been filed on behalf of plaintiff---Validity---Defendants were not supposed to have any grievance against the dismissal of suit unless they had raised a counter claim in their written statement against the plaintiff which had also been dismissed or not decided by the Trial Court---No adverse observations had been passed against the applicant in the case---If applicant wanted the suit to be decreed then she should have either filed a separate suit or should have paid court fee to become co-plaintiff provided she had any claim in the suit property to be adjudicated in her favour---Applicant, after having been impleaded as defendant had not filed written statement nor she had appeared in the witness box---Suit had been dismissed on merits against which no appeal had been filed on behalf of plaintiff---Present suit could not be decreed against main contesting defendants on appeal by one of the defendants who had not filed even written statement in the Trial Court---Applicant was not aggrieved person in consequence of impugned judgment---Revision as well as appeal pending before Appellate Court filed by the applicant were not maintainable, which were dismissed with cost, in circumstances.

H.M Yahya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Syed Musarat Hussain Zaidi and another v. Syed Salim Jawaid Zaidi and another PLD 1983 Kar. 548; Habibullah v. Zakir Ali and another PLD 2000 Kar. 238 and Mst. Arfa Arif v. Mst. Kulsoom Naqvi PLD 2000 Kar. 31 rel.

Ghulam Mohiuddin for Applicant.

Nemo. for Respondent No.1.

Zareena for Respondent No.2.

Shahzada Ali Naqvi for Respondent No.3.

Nemo. for Respondent No.4.

Nemo. for Respondent No.5.

Nemo. for Respondent No.6.

Muhammad Saulat Rizvi A.A.G.

2020 C L C 1920

[Sindh]

Before Khadim Hussain M. Shaikh, J

GHULAM HUSSAIN and 11 others----Petitioners

Versus

SHO P.S. NASEERABAD and 5 others----Respondents

C.P. No.S-121 and M.A. No.252 of 2020, decided on 14th May, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Dispute as to ownership of property---Mutation---Scope---Contention of petitioners was that they were owners of suit property---Validity---Mutation was not a title document and it did not confer any right, title or interest---Burden of proof did lie upon the person in whose favour mutation had been attested to establish the genuineness of transfer of property---Petitioners, in the present case, in order to exercise constitutional jurisdiction, should have established clear legal right over the suit property---Constitutional jurisdiction of High Court was intended to provide expeditious remedy in a case where illegality of impugned action of executive or other authority was floating on the surface which could be established without any inquiry---Petitioners had failed to prove their ownership and title over the suit land---Title and ownership of suit property could not be established in constitutional petition---Petitioners should have established their title and ownership right over the suit land by adducing evidence before the Court of competent jurisdiction---Constitutional petition had been filed by the petitioners with mala fide intention to abuse the process of law---Constitutional petition being not maintainable was dismissed in limine.

Habibullah G. Ghouri for Petitioners.

2020 C L C 1927

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

Messrs S.R.T. ASSOCIATES through Proprietor----Petitioner

Versus

The DIRECTOR GENERAL FRONTIER WORKS ORGANIZATION, RAWALPINDI and 3 others----Respondents

High Court Appeal No.47 of 2018, decided on 28th February, 2020.

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

----O.XIII, Rr.2 & 3---Documents, admissibility of---Objections---Categories---Admissibility of documents in evidence may be classified in two categories; (i) objection regarding permissibility of production of document on the basis that the same is patently inadmissible due to certain reasons and (ii) objection does not dispute admissibility on the ground of its existence but the same is in respect of mode of its production or proof alleging though document is irregular or insufficient due to some deficiency within the document---In the first category, merely because a document has been marked as 'an exhibit' without disputing it at the time of production, an objection regarding its admissibility is not excluded and the same is available even at the appellate stage; for second category entering any objection at appellate stage cannot be entertained and the same is against the rule of fair play as well as the jurisprudence of evidence--- If objection regarding admissibility of such documents was placed at appropriate point of time, the opposing party might have an opportunity to cure such inadmissibility or may be able to reason out about the deficiency pointed out in the objection.

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

----O.VII, R.2---Suit for recovery of money---Proof---Plaintiff entered into an agreement with defendants for supplying certain construction machineries on agreed monthly rent---Plaintiff sought recovery of alleged outstanding rent as well as certain damages---Single Judge of High Court dismissed suit filed by plaintiff---Validity---Plaintiff admitted returning of equipment permanently in his legal notice---Plaintiff had repeatedly relied upon legal notice which was served upon defendants on his behalf and was produced during his evidence---Legal notice was silent about the figure claimed by plaintiff in his plaint---Plaintiff did not prefer any claim regarding amount in question and also it was not clarified as to how the amount was calculated---Plaintiff failed to establish amount as due in respect of the contract for supply of plants and machineries to defendants---Judgment and decree passed by Single Judge of High Court did not suffer from any infirmity, illegality or irregularity as plaintiff failed to discharge his onus---No misreading or non-reading of available evidence in judgment and decree passed by Single Judge of High Court was noticed---High Court Appeal was dismissed in circumstances.

Chief Engineer, Irrigation Department N.W.F.P and 2 others v Mazhar Hussain and 2 others PLD 2004 SC 682; Faisal Afzal Sheikh v. Additional District Judge, Lahore PLD 2004 Lah. 668; Javed Khan v. Ghulam Yasin 2004 CLC 1271 and Sakhi Zaman v. Mst. Shazia and 3 others PLD 2004 Pesh. 104 ref.

Dr. Raana Khan for Appellant.

Barkat Ali Metlo for Respondents Nos.1 and 2.

Khilji Bilal, Assistant Attorney General for Respondents Nos.3 and 4.

2020 C L C 1938

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

MOAZAM ALI KHAN ABBASI----Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Election Commission of Pakistan and 6 others----Respondents

Election Appeal No.S-76 of 2018, decided on 27th June, 2018.

Elections Act (XXXIII of 2017)---

----S.60---Election for the seat of Member Provincial Assembly---Concealment of assets and family tree by the Candidate---Effect---Nomination Form submitted by the candidate was accepted---Contention of petitioner was that candidate had concealed his assets and family tree---Validity---Candidate had submitted Nomination Form with his affidavit and had not mentioned his minor daughter in the said Nomination Form---Unmarried daughter remained under dependency and care of father---Father, after the birth of his child could not devolve the responsibility of his child---Candidate had concealed his landed properties in the name of his wife and minor children---Nomination Form of candidate had been improperly accepted by the Returning Officer---Impugned order for accepting Nomination Form of the candidate was rejected, in circumstances---Appeal was allowed, in circumstances.

Qurban Ali Malano and Nisar Ahmed Bhanbhro for Appellant.

Inayatullah Morio and Asif Ali Abdul Razak Soomro for Respondent No.7.

Oshaque Ali Sangi, Assistant Attorney General.

Rafique Ahmed Abro for Election Commission of Pakistan.

Zaffarullah Jakhrani, Civil Judge and J.M-III/Returning Officer.

2020 C L C 1945

[Sindh]

Before Khadim Hussain M. Shaikh and Irshad Ali Shah, JJ

ASAD JAMAL DAUDPOTO----Petitioner

Versus

ASSISTANT COMMISSIONER RATODERO and 4 others----Respondents

C.P. D-142 and C.M.As. Nos.902, 903 of 2020, decided on 28th April, 2020.

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

----S.54---Registration Act (XVI of 1908), S.17---Constitution of Pakistan, Arts.199 & 172---Constitutional jurisdiction of High Court---Scope---Mutation---Scope---Ownerless property---Petitioner seeking direction for demarcation of property---Contention of petitioner was that he had purchased suit property---Validity---Petitioner had not mentioned descriptions and boundaries of suit land and particulars of alleged sale transaction in his petition---Nothing was on record that seller of suit land was owner of the same---Transferor could transfer his right in the property to the transferee which the transferor was entitled over the property under sale---Mutation was not a title document and it did not confer any right, title or interest---Burden of proof to establish the genuineness of transfer of property lay upon the person in whose favour mutation had been attested---Transfer of the property under sale having value of Rs.100/- and upwards could be made only by a registered instrument which it was not---Alleged sale of subject land was not valid in the eye of law---Petitioner, in order to invoke constitutional jurisdiction of High Court had to establish clear legal right over the suit property---Said jurisdiction was intended to provide an expeditious remedy in a case where illegality of impugned action of executive or other Authority was floating on the surface which could be established without any inquiry---Constitutional jurisdiction of High Court was discretionary in nature which could not be allowed to be invoked by a party who had demonstrated slackness and laxity on his part---Party who was guilty of negligence and laches was not entitled to the equitable relief which was available even otherwise to a party who had come in the Court with clean hands---Petitioner, in the present case, had no clear right or title over the suit land and he had abused the process of law---None of the parties had right or title over the subject property---Authorities were directed to ensure its interest in the suit land---Constitutional petition being not maintainable was dismissed in limine.

(b) Administration of justice---

----Things required to be done in a particular manner 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.

(c) Administration of justice---

----If foundation was illegal and defective then entire structure built on such foundation would fall on the ground.

Inayatullah G. Morio for Petitioner.

2020 C L C 1974

[Sindh]

Before Nazar Akbar, J

MUHAMMAD SAEED AKHTAR and others----Appellants

Versus

TAHA MOBEEN QURESHI through Attorney and others----Respondents

IInd Appeals Nos.65 and 97 of 2012, decided on 10th June, 2020.

Specific Relief Act (I of 1877)---

----Ss.12 & 19---Civil Procedure Code (V of 1908), O. XXXVIII, R.5---Suit for specific performance of agreement to sell---Transfer of suit property to the subsequent purchaser---Breach of contract---Compensation, award of---Attachment of property before judgment---Scope---Suit was decreed with the direction to the executant of agreement to sell to execute conveyance deed in favour of plaintiff but no relief of possession was extended---Validity---Plaintiff had paid all the consideration amount to the defendant/builder of housing society---Defendant had sold suit land in favour of subsequent purchaser and he was bound to refund amount so realized by him to the plaintiff---Builder had failed to complete construction by due date and even he had not returned consideration amount received by him to the plaintiff---Subsequent purchaser had possession of suit property and its sale deed---Execution of conveyance deed through Court in favour of plaintiff would render sale deed in favour of defendants as ineffective---Case of plaintiff for specific performance against the builder had been made out but it had become a case of hardship for the subsequent purchaser---Relief of specific performance, even if contract was enforceable, was discretionary and same could be withheld by the Court---When Court had concluded that grant of relief of specific performance had been made out but it would be a case of hardship to other side or unfair and inequitable to any third party who was not at fault then it should compensate the plaintiff---Builder had breached contract and only execution of title document was not specific performance of a contract of sale of immovable property when plaintiff was not in possession of suit premises---Execution of title document had to be coupled with delivery of possession of suit property to the plaintiff---Court could not grant decree of possession of suit property to the plaintiff owing to the presence of bona fide purchaser of suit premises---Plaintiff should have been granted relief of specific performance with additional compensation, in circumstances---Court in suit for specific peformance could grant two decrees of compensation combined in one judgment in a suit for specific performance---Order of specific performance might be substituted with compensation for it with additional compensation for breach of contract---High Court observed that court, in the present case, should have passed an adequate decree of compensation both as substitution of specific performance and additional compensation for breach of contract---Decree of specific performance of an agreement to sell through execution of title document against the builder in favour of plaintiff was in the field with no result and there was likelihood that builder would avoid the said decree---High Court passed order for attachment of movable and immovable property of builder who had received consideration amount from the plaintiff but had not returned the same---Plaintiff was entitled for adequate compensation keeping in view escalation in valuation of suit premises and value of currency which had gone down due to inflation in the country---Property of builder would remain attached till the judgment was executable---Second appeal was allowed accordingly.

Mohiuddin Molla v. The Province of East Pakistan PLD 1962 SC 119 and Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 rel.

Muhammad Saeed Akhtar for Appellant No.1 (in IInd Appeal No.65 of 2012).

Amanul Haq for Appellant No.2 (in IInd Appeal No.65 of 2012).

Faizan Peshimam for Respondent No.1 (in IInd Appeal No.65 of 2012).

Nemo for Respondent No.2 (in IInd Appeal No.65 of 2012).

Faizan Peshimam for Appellant No.1. (in IInd Appeal No.97 of 2012).

Nemo. for Respondent No.1 (in IInd Appeal No.97 of 2012).

Muhammad Saeed Akhtar for Respondent No.2 (in IInd Appeal No.97 of 2012).

Amanul Haq for Respondent No.3 (in IInd Appeal No.97 of 2012).

2020 C L C 2037

[Sindh]

Before Muhammad Iqbal Kalhoro and Irshad Ali Shah, JJ

Dr. SHEERAZ-UR-REHMAN and others----Petitioners

Versus

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

C.Ps. Nos. D-7001 and D-6721 of 2019, decided on 17th March, 2020.

Sindh Healthcare Commission Act, 2013 (VII of 2014)---

----Ss.4, 26, 28 & 29---Sindh Healthcare Commission Regulations, 2017, Regln. 42---Negligence in medical treatment---Registration of a criminal case against doctor---Allegations of maladministration and malpractice---Effect---Prosecution or other legal proceedings by the Healthcare Commission against doctors---Scope---Negligence of a doctor, determination of---Procedure---Criminal case was registered against the petitioners/doctors due to negligence in medical treatment---Contention of petitioners/doctors was that criminal prosecution for negligence in providing healthcare services against doctors was not maintainable---Validity---Healthcare Commission's powers to improve quality of healthcare service and ban quackery were supervisory in nature---Healthcare Commission could investigate the matter only on complaints or reference with regard to maladministration, malpractice or failure of a healthcare service provider or his employee---Aggrieved person could file complaint before Healthcare Commission and also avail other remedy available under any other law---No specific punishment for medical negligence had been provided anywhere in Sindh Healthcare Commission Act, 2013---Medical negligence could result into a permanent injury or a death of a person---Limiting aggrieved person or his family to only accept amount of fine would be against natural justice---Healthcare Commission could refer any case to the competent forum or law enforcement agencies for appropriate action under relevant laws---Mere lack of necessary care, attention and skill did not expose a doctor to criminal prosecution---Doctor could not be held responsible criminally for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime---Negligent act of a doctor might create a civil liability against him short of a level or degree required to make it a criminal offence---Negligence in civil law might not necessarily be negligence in criminal law---Degree or level of negligence should be much higher for an act to amount a criminal negligence---Negligence which was neither gross nor of a higher degree might provide a ground for an action in civil law but could not form the basis for criminal prosecution---Doctor could not be prosecuted for every mishap or death during medical treatment unless it was established that degree of his negligence was so high as to constitute an offence---Aggrieved person in order to prosecute a doctor should establish that he did something or failed to do something which under the same facts and circumstances no doctor in his ordinary senses and prudence would have done or failed to do---Opinion verifying negligence of a doctor amounting to an offence could only be given by the senior and expert doctors of the same discipline---Sanctioning criminal prosecution against doctors without such a prerequisite would disservice them---High Court observed that where a criminal case alleging medical negligence had been registered against a doctor then investigation officer after formal investigation should first refer the matter to the Healthcare Commission for an opinion from senior doctors in verification of such allegations before proceeding further against him and same should be treated as complaint---Healthcare Commission should convey its report to the investigation officer within a period not later than thirty days of receiving such reference---If report of alleged allegations was positive then same should be treated as a reference by the Healthcare Commission and investigation officer should proceed further in accordance with law---Doctors had been declared negligent in treating the complainant's wife leading to her death and had been fined---Allegations of incompetence, gross negligence and misrepresentation amounting to an offence alleged in the criminal case against the doctors had been established---Criminal prosecution or a remedy other than that against a healthcare service provider for medical negligence was not barred---Investigation Officer was directed by the High Court to resume investigation and submit report before the Trial Court in the light of report of Healthcare Commission---Constitutional petition was disposed of accordingly.

PLD 2019 Lah. 429; PLD 2018 Lah. 762; (Shifa International Hospitals Ltd.) 2011 CLC 463; 2017 CLC 1150; PLD 2018 Lah. 903; 2016 MLD 1810; 2017 YLR 669; 2017 PCr.LJ 192; PLD 2016 SC 581 and AIR 2004 SC 4091 ref.

PLD 2010 Kar. 134 and AIR 2005 SC 3180 rel.

Shahnawaz Ayoub Dahri and Shabeeh Ishrat Hussain for Petitioners (in C.P. No.D-7001 of 2019).

Muhammad Ramzan for Petitioners (in C.P. No.6721 of 2019).

Barrister Sadia Qureshi for Sindh Health Care Commission.

Syed Zulfiqar Ali Shah for Complainant/respondent No.6 along with Respondent No.6 [complainant].

Ms. Nausheeba Haque Solangi, A.A.G. along with Dr. Faiz Ali Mangi, Chief Technical Officer Health Department, Dr. Muhammad Amir Hussain, Director Complaint, SHCC.

Ali Haider Saleem, DPG along with SIP Farman Ali Investigation Officer.

2020 C L C 2063

[Sindh (Hyderabad Bench)]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

ABDUL RAUF NIZAMANI and others----Petitioners

Versus

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

Constitution Petitions Nos.D-7286 to D-7288, D-7384 to D-7389 of 2019, decided on 9th March, 2020.

(a) Precedent---

----Judgment of equal Bench--- Principle--- Earlier judgment of Division Bench of High Court, on same point is binding upon subsequent equal Bench.

Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 rel.

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

----S.27 [as amended by Sindh Local Government (Amendment) Act (V of 2019)]---No confidence motion--- Removal from office---Petitioners were aggrieved of notifications issued in pursuance of vote of no-confidence by simple majority whereby they were removed from their offices---Validity---From initiation of motion of no confidence and culminating in issuance of schedule for fresh election by Election Commission, petitioners failed to identify any infirmity---Challenge to notification for re-election was devoid of merit and de novo deliberation in respect of notifications in question were without merit---Constitutional petition was dismissed in circumstances.

Lahore Development Authority v. Imrana Tiwana 2015 SCMR 1739; Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854; Mehreen Zaibun Nisa v. Land Commissioner PLD 1975 SC 397; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Ellahi Cotton Mills Limited v. Federation of Pakistan PLD 1997 SC 582; Dr. Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956; Mian Asif Aslam v. Mian Muhammad Asif PLD 2001 SC 499; Pakistan Muslim League (Q) v. Chief Executive of Pakistan PLD 2002 SC 994; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719; Messrs Master Foam (Pvt.) Ltd. v. Government of Pakistan 2005 PTD 1537; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Federation of Pakistan v. Haji Muhammad Sadiq PLD 2007 SC 133; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Iqbal Zafar Jhagra v. Federation of Pakistan 2013 SCMR 1337; Mir Shabbir Ali Khan Bijarani and others v. Federation of Pakistan 7 others PLD 2018 Sindh 603; 2003 SCMR 370; 2005 SCMR 186; 2013 SCMR 642; PLD 2014 SC 389; 2014 CLC 335; Zila Council Jhelum v. Pakistan Tobacco Company Limited and another PLD 2016 SC 398; Fundamental Law of Pakistan at page 65; A.K. Brohi; Farooque Jameel v. Province of Sindh and others C.P. D-562 of 2019; Shakeel Ahmed and another v. Province of Sindh and others C.P. D-563 of 2019; Shakeel Ahmed and another v. Province of Sindh and others C.P. D-6643 of 2019; C.P.No.7286 of 2019; Federation of Pakistan v. Aitzas Ahsan and others PLD 1989 Supreme Court 61; Aijaz Ali Khan Jatoi v. Liaquat Ali Khan Jatoi 1993 SCMR 2350 ref.

Tahseen A.H. Qureshi, Ms. Naveen Merchant, Ghulam Nabi Shar, Salman Yousuf for Petitioners.

Jhamat Jethanand, Safdar Hussain Leghari, Dilawar Qureshi for Interveners.

Barrister Shabbir Shah, Additional Advocate-General and Barrister Jawad Dero, Additional Advocate General for Respondents.

2020 C L C 2080

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD HANIF----Petitioner

Versus

ANJUMAN-E-IMAMIA (REGISTERED SOCIETY), through Patron and another----Respondent

Constitution Petitions Nos.S-195, S-196, S-205 of 2010, S-725, S-726, S-757, S-758, S-759, S-764 and S-862 of 2011, decided on 16th April, 2020.

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

----Ss.15 & 21---Ejectment of tenant---Default in payment of rent---Appellate Court, jurisdiction of---Scope---Rent Controller dismissed eviction petition only on the ground of maintainability but Appellate Court allowed the same on the ground of default in payment of rent---Validity---Rent Controller had dismissed eviction petition being not maintainable---Appellate Court should have decided appeal on the question decided by the Trial Court and not on the question which was not decided by it---Right of appeal of aggrieved party due to assuming jurisdiction of Trial Court by the Appellate Court had been curtailed---Tenant had been deprived of a right of an appeal as far as the findings of the Appellate Court on default in payment of rent was concerned---Eviction petition was remanded to the Rent Controller for a decision on merits including ground of default---Constitutional petition was allowed, accordingly.

(b) Sindh Civil Courts Rules---

----Rr.323, 329 & 331---Time requisite for obtaining copy---Exclusion of---Appeal---Condonation of delay---Scope---Applicant was to be intimated with regard to preparation of copies of order or judgment---List of such orders or judgments, copies of which were ready for delivery, should be pasted on the notice board of the Record Keeper---Notice in the present matter was not issued to the applicant who had applied for certified copies of order---Time requisite did include the time till it was intimated to applicant with regard to preparation of certified copy---Applicant in the present case was never intimated with regard to the fact that certified copy of order was ready on a date prior to the date it was received---If time was calculated and the requisite time was included in the time till it was intimated and in its absence till receipt of copy then such time should be excluded as being requisite time---Appeal was filed within time, in circumstances.

Muhammad Nawaz v. Abdus Salam PLD 1997 SC 563; Mian Muhammad Sabir v. Malik Muhammad Sadiq PLD 2008 SC 577 and Anisa Begum v. Atiq ur Rehman 2007 MLD 1385 distinguished.

West Pakistan Industrial Development Corporation Karachi v. Aziz Qureshi PLD 1973 Kar. 222 rel.

Mumtaz Alam Laghari for Petitioners (in C.Ps. Nos.S-725 and S-726 of 2011).

Irfan Ahmed Qureshi for Petitioners (in C.Ps. Nos.S-757 and S-758 of 2011).

Arbab Ali Hakro for Petitioners (in C.Ps. Nos.S-759 and S-764 of 2011).

Aqeel Ahmed Siddiqui for Petitioner (in C.P. No.S-862 of 2011).

Naimatullah Soomro for Respondents / landlord (in C.Ps. No.S-195, S-196 and S-2015 of 2010 and C.P. Nos.S-757 and S-758 of 2011).

2020 C L C 2104

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

MUHAMMAD MANZOOR through L.Rs.----Applicant

Versus

MUHAMMAD YOUNUS MUGHAL----Respondent

R.A. No.54 of 2011 and C.M.As. Nos.1584, 1828 of 2017, decided on 20th September, 2019.

Specific Relief Act (I of 1877) ---

----S.12---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement to sell---Time as essence of contract---Contention of plaintiff was that he was willing to perform his part of contract but defendant had delayed to execute sale deed---Suit was decreed concurrently---Validity---Defendant by his conduct of not returning the earnest amount or bringing any material to justify retaining the same had extended the time violating the principle as to time being essence of contract---Plaintiff was willing to pay sale consideration of suit land according to present market value as available---Plaintiff was directed by the High Court to make payment of sale price of suit property according to the schedule value with the benefit of earnest amount---Possession of suit property on payment of sale price would be available to the plaintiff---If defendant had failed to handover possession of suit property then he would be liable to pay earnest amount with profit from the date of filing of present suit till realization at banking rate---Revision was disposed of accordingly.

Arbab Ali Hakro for Applicant.

Parkash Kumar for Respondent.

2020 C L C 10

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

SHUMAILA MEHMOOD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 4 others----Respondents

Writ Petition No. 42763 of 2019, decided on 11th July, 2019.

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

----O. XVI, R.1---Presentation of list of witnesses within seven days after settlement of issues---None of the parties filed its list of witnesses within statutory period of seven days---Application of respondent already allowed and witnesses summoned---Application of petitioner for the same purpose was dismissed---Validity---Held, that admittedly petitioner was allowed to submit list of witnesses beyond the provided time, therefore there was sufficient reason to also allow the respondent to submit list of witnesses---Discretion exercised in such behalf in favour of respondent was neither arbitrary nor whimsical---Petition being meritless was dismissed.

Gulistan Textile Mills Ltd. and another v. Soneri Bank Ltd and another PLD 2018 SC 322; The Australasia Bank Ltd. v. Messrs Mangora Textile Industries, Swat and others 1981 SCMR 150; Agha Zahid Ali Hilali v. Muhammad Riaz and others C.P. No.1278 of 2013 and Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 ref.

(b) Constitution of Pakistan---

----Arts. 189 & 185(3)---Binding effect of decision/judgment of Supreme Court---Order refusing petition for leave to appeal did not lay down any law---Such order could not be termed as decision/judgment having binding effect under Art.189 of the Constitution.

Haji Zarwar Khan through L.Rs. v. Haji Rehman Bangash and others 2016 SCMR 1976 rel.

(c) Constitution of Pakistan---

----Art. 189---Judgment of larger Bench of the Supreme Court---Preference---Judgment delivered by larger Bench was to be given preference.

Dr. Professor M.A. Cheema, Surgeon, PIC, Lahore v. Tariq Zia and others 2016 SCMR 119 and Faiz ur Rehman v. Haji Yaz Mir and 5 others 2013 YLR 950 rel.

2020 C L C 31

[Lahore]

Before Ch. Muhammad Iqbal, J

SARDAR AHMAD HAYAT and others----Petitioners

Versus

MEMBER (COLONIES), BOARD OF REVENUE and others----Respondents

Writ Petition No. 6747 of 2019, decided on 4th October, 2019.

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

----S.10---Horse Breeding Scheme, 1983, Clauses 3(2) & (5)---Extension of lease---Fresh allotment---Delivery of possession---Petitioners were allotted lease under Horse Breeding Scheme, 1934 which was subsequently extended by Horse Breeding Scheme, 1983 for a period of 10 years from Rabi 2004 to Kharif 2014---Department, on completion of lease, refused to renew same and transferred land in favour of new lessees--- Validity--- Tenancy was non-renewable under clauses 3(2) and 3(5) of Horse Breeding Scheme, 1983 and if any illegal extension/renewal in lease was obtained from incompetent authority, such renewal could not be cited as condition precedent for commission of another violation of law and policy---Petitioners could not claim for getting tenancy under condition of Horse Breeding Scheme, 1934 which was already superseded through Statement of Conditions/Scheme dated 09-08-1983---Order in question and resumption of stud land did not suffer from any jurisdictional defect---Lease period of petitioners had already expired and suit land was allotted on recommendations of District Remount Officer by District Collector to different persons who had already got possession of land before institution of petitions---High Court declined to interfere in order passed by department as same fell under Horse Breeding Scheme, 1983 and observed that there was no need to discuss clause 16 of Horse Breeding Conditions, 1934--Constitutional petition was dismissed in circumstances.

Sardar Muhammad Aslam Sial v. Government of Pakistan and others PLD 1973 Note 148 p. 225; Sardar Muhammad Aslam Sial and 3 others v. Government of Pakistan and 3 others 1985 SCMR 9; Ghulam Muhammad v. Member (Judicial-V), Board of Revenue, Punjab, Lahore and others 2006 YLR 45; Hameedullah and 9 others v. Headmistress, Government Girls School Chokara, District Karak and 5 others 1997 SCMR 855; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641 and Muhammad Arshad Khakwani v. I.U.B. and another 2011 MLD 322 ref.

Mst. Zainab Khatoon v. Member (Colonies) Board of Revenue, Punjab and others 1998 SCMR 1188; Noor Muhammad v. Member, Board of Revenue and others 2006 SCMR 769; Bahawal Sher v. Sajawal Khan and 4 others 1990 SCMR 1139; Raja Muhammad Aslam v. Raja Muhammad Sarwar 2000 SCMR 1006; Syed Amjad Hussain v. Member, Board of Revenue (Colonies), Punjab, Lahore and 4 others 1987 CLC 1868; Raja Muhammad Aslam v. Raja Muhammad Sarwar and others 2000 SCMR 531; Muhammad Nawaz v. Member Board of Revenue and others 2009 SCMR 562 and Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 rel.

(b) Administration of Justice--

----Doing of a thing---Principle---When law prescribes anything to be done in a particular manner, same is to be done as mandated by law--- Any transgression amounts to stepping over authority rendering the act, without lawful authority.

Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Limited and another 2008 SCMR 1148 rel.

(c) Counsel and client---

----Unauthorized statement by Counsel---Prerequisites---Any unauthorized statement giving illegal benefit to a person if got recorded by counsel against record as well as law, such statement cannot be considered valid/qualified admission in that regard.

Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247 and Muhammad Arif through L.Rs. v. District Coordination Officer/Chairman, P&D Board, LDA and others 2016 SCMR 2050 rel.

Salman Akram Raja, Malik Ahsan Mahmood, Usman Ali Bhoon, Umar Akram Chaudhry, Tariq Bashir and Shabbir Hussain for Petitioners.

Azmat Hayat Khan Lodhi, Assistant Attorney General for Pakistan for Respondent No.3

Waseem Iqbal Butt, Assistant Advocate General along with Muhammad Arshad Khan, Naib Tehsildar for Respondents.

Asad Manzoor Butt, Ghazanfar Ali Joiya and Ch. Imtiaz Ahmed Goraya for Respondent No.7 (in W.P.No.6747 of 2019, W.P.Nos.36878 of 2019, 36879 of 2019, 36880 of 2019, 36881 of 2019 and W.P. No.36883 of 2019)

Ayesha Liaqat Butt for Respondents Nos.8 to 25 (in W.P. No.36878 of 2019, 36879 of 2019, 36880 of 2019, 36881 of 2019 and W.P. No.36883 of 2019).

Haroon Mehboob Butt for Respondents Nos.8 to 11 (in W.P.No.6801 of 2019).

Maher Abdul Shakoor for Respondents Nos.8 to 10.

Muhammad Azaz Malik for Respondents Nos.8 to 11 (in W.P.No.6803 of 2019).

2020 C L C 54

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

ZAHID ISLAM----Petitioner

Versus

Mst. REHMAT BIBI and others----Respondents

Civil Revision No. 850-D of 2019, decided on 24th July, 2019.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Transaction with illiterate lady---Requirements---Alleged sale agreement had been executed with an illiterate lady with fragile physical condition having no independent advice by any of her male relatives---Protection which was extended to Pardanasheen lady was given to persons who was weak, ignorant, infirm or unable to look after herself/himself---Person in disadvantaged condition must have independent advice to understand the terms to which he/she was binding himself/herself---Court had to be very careful in recording findings as to execution of agreement by such lady and it would not be sufficient to show that the document was read over to the lady but it must also be proved that she understood its nature and effects---Where evidence had not established that the document was executed by the lady voluntarily out of her free will and consent and she had an independent advice of a close relative and contents of said document were read over to her and the nature of transaction was explained then onus to prove the document by beneficiary would not stand discharged---Nothing was on record that earnest money had been paid to the executant of sale agreement---Evidence and pleadings of plaintiff were contradictory---None of the witnesses was related to the lady---Transaction in question had not been proved through independent evidence as plaintiff's witnesses had admitted that terms of the said transaction were not settled in their presence---No receipt of any payment had been produced---Even alleged agreement was prepared on a plain paper---Plaintiff had failed to prove the existence of transaction or execution of alleged sale agreement and any payment---Revenue record did not have any entry of alleged transaction---Suit had been filed after the period of five years---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.

Jannat Bibi v. Sikandar Ali PLD 1990 SC 642; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868; Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862 and Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 ref.

2020 C L C 68

[Lahore]

Before Shahid Waheed, J

FAISALABAD ELECTRIC SUPPLY COMPANY LIMITED----Petitioner

Versus

MUNIR AHMAD RANJHA and others----Respondents

Writ Petition No.18935 of 2016, heard on 30th October, 2019.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Pleadings----Amendment in pleadings---Allowing amendment to a plaint in a suit---Exercise of discretion by the court under O.VI, R.17, C.P.C.---Principles and scope---Power under O.VI, R.17, C.P.C. was discretionary and be used judicially on consideration of special circumstances of each case and necessary conditions for the same were firstly that amendments do not cause injustice to other side; and secondly that such amendment was necessary for determination of real question in controversy---No party could be allowed to introduce a new cause of action by way of amendment and a court ordinarily should allow an amendment unless it was found that the applicant was acting mala fide or injustice or injury was likely to cause to the opposite party which could not be compensated by cost---Where due to subsequent events original relief sought became inappropriate for deciding a controversy, amendments could be allowed to shorten litigation---Court could allow to cure defective pleadings so as to constitute a cause of action where there was none, provided necessary conditions such as payment of additional court fee or costs of other side were complied with except when there was lapse of time or new cause of action was created---Where Court lacked inherent jurisdiction over a subject-matter, then it could not allow an amendment in pleadings to bring a suit within its jurisdiction and introduction of inconsistent or contradictory allegations could not be allowed---Delay by itself, could not be adequate reason for refusing an amendment under O. VI, R. 17, CPC.

The Land Acquisition Collector, Pak-Arab Refinery Limited and other v. Khan (deceased) and others 2019 MLD 968; Muhammad Ramzan and others v. Liaqat Ali and others 2001 SCMR 1984; Muhammad Hussain v. Fazal Haq and another PLD 1974 Lah. 208; Masood Ali v. Ali Haibat Khan and 2 others PLD 1958 Lah. 340; Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 and Abaid Ullah Malik v. Additional District Judge, Mianwali and others PLD 2013 SC 239 ref.

Sakhi Muhammad through L.Rs. and 9 others v. Ashraf Ali and 3 others 2012 CLC 1581 rel.

Akhtar Ali Monga for Petitioner.

Respondent No.1 in person.

2020 C L C 99

[Lahore (Bahawalpur Bench)]

Before Anwaarul Haq Pannun, J

HUSSAIN BAKHSH----Petitioner

Versus

Mst. RAZIA BIBI----Respondent

Civil Revision No.83-D of 2012, decided on 1st March, 2019.

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

----S.42---Civil Procedure Code (V of 1908), S.11---Multiple mutations Petitioner challenged first mutation in earlier suit which was dismissed----Res-judicata, principle of---Applicability---Every fresh entry in the revenue record gave rise to fresh cause of action to the aggrieved party, mutation in question being a subsequent entry gave rise to a fresh cause of action----Trial Court decided issue against the petitioner but the appellate Court reversed the same which findings had not been challenged---Issue decided against a party, if not challenged, attained finality.

Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah 1996 SCMR 1862 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 ref.

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

----S. 4----Succession----Death of mother----No male heir---Share of sole surviving daughter as only legal heir---Held, in the event of death of any son or daughter of the propositus before the opening of the succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive.

Mst. Bhaggay Bibi and others v. Mst. Razia Bibi and others 2005 SCMR 1595 and Mukhtar Ahmad v. Mst. Rasheeda and another 2003 SCMR 1664 ref.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings--Misreading and non-reading of evidence---Concurrent findings when found to be the result of misreading and non-reading of evidence or material irregularity and illegality, the same could be interfered with in exercise of revisional jurisdiction.

Habib Khan and others v. Bakhtmina and others 2004 SCMR 1668; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 ref.

(d) Constitution of Pakistan---

----Art. 189----Decisions of the Supreme Court----Binding effect---Scope---Any decision of the Supreme Court deciding a question of law, was binding on all other courts of the country.

Iftikharul Haq v. District Canal Officer and others 2005 CLC 1740 ref.

Mian Ameer Ahmad for Petitioner.

Muhammad Ismail Makki for Respondent.

2020 C L C 106

[Lahore]

Before Shahid Bilal Hassan, J

TBEA COMPANY (PRIVATE) LIMITED through Faisal Anwar----Petitioner

Versus

AL'WASAY CONSTRUCTION COMPANY (PRIVATE) LIMITED through Chief Executive----Respondent

Civil Revision No.38920 of 2019, heard on 1st October, 2019.

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

----Ss. 20, 3, 8 & First Sched.----Application to file in Court arbitration agreement---Provisions implied in arbitration agreement--- Appointment of arbitrator----Consent of parties---Sections 20 and 8 of the Arbitration Act, 1940---Nature and scope---Petitioner company impugned order of Trial Court whereby, upon respondent company's application under S.20 of the Arbitration Act, 1940; an arbitrator nominated by respondent was appointed without the consent of the petitioner --- Validity---Under the provisions of Arbitration Act, 1940 it was apparent that consent of parties was sine qua non for appointment of arbitrator and upon any dissent shown by a party, the same would result in a particular arbitrator not being appointed --- Jurisdiction of Trial Court after an application under S. 20 of the Arbitration Act, 1940 was to move, did not allow it to unilaterally appoint a sole arbitrator proposed by one party that was not acceptable to the other party---Provisions of S.8 of the Arbitration Act, 1940 were not applicable to the present case and said provision was separate and distinct from S.20(4) of the Arbitration Act, 1940 and there was no embargo on appointment of more than one arbitrators---Impugned order was therefore made while exercising jurisdiction not vested in Trial Court, and was set aside---High Court remanded matter to Trial Court with direction to appoint arbitrator with consent of parties and expertise --- Revision was allowed, accordingly.

Karachi Dock Labour Board v. Messrs Quality Builders Ltd. PLD 2016 SC 121 rel.

(b) Administration of justice----

----When an act was prescribed to be done in a certain manner, the same must be done in such prescribed manner and not otherwise.

Ms. Asma Hamid and Wajahat Ali Mian for Petitioner.

Muhammad Saeed Sheikh for Respondent.

2020 C L C 157

[Lahore]

Before Jawad Hassan, J

Mian ALI ASGHAR----Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

W.Ps. Nos.68942, 45254 and 64453 of 2019, heard on 22nd November, 2019.

(a) Constitution of Pakistan---

----Arts. 16, 17, 18 & 19---Right to peaceful protest---Scope---Right to peaceful protest and procession was a fundamental right of all the citizens in a democratic country, but said right had been continuously misunderstood as a license to create inconvenience to the general public---Protesters who claimed to espouse their cause often forgot that their right to protest ended when other person's right to free movement and right of trade/business started.

Haji Lal Muhammad's case PLD 2014 Pesh. 199 and A. Jacob's case AIR 1993 Kerala 1 ref.

(b) Punjab Land Records Authority Act (VI of 2017)---

----S.10(2)---Constitution of Pakistan, Arts. 16, 17, 18 & 19---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2017], S.27(a)---Right to peaceful protest---Scope---Protest by contractual employees of Punjab Land Records Authority on (Mall Road) Red Zone, Lahore---Inconvenience to the general public--- Hardships for traders/businesses---Non-coverage of protests on (Mall Road) Red Zone---High Court directed that concerned revenue authorities/ Punjab Land Records Authority (employers) shall negotiate with their protesting employees and resolve the issue and call off their protest today till 02:00 pm; that thereafter, the concerned authorities shall take stern action against any person who continued the protest after 02:00 PM, and also terminate his contract, because it violated the Constitution, laws and the judgments of the High Court; that Pakistan Electronic Media Regulatory Authority (PEMRA) shall ensure that no television channel gave any coverage to the protest(s) being conducted on the (Mall Road) Red Zone and also notify all the channels in accordance with Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2017 and the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015---Order accordingly.

Muhammad Azhar Siddique and Abdullah Malik with the Petitioner in person.

Iqbal Bhali for the Petitioner (in W.P. No.45254/2019).

Sardar Khurram Latif Khosa for Petitioner (in W.P. No.64453 of 2019).

Ms. Alia Ijaz, Assistant Advocate-General with Ahmad Bilal, Section Officer, Home Department, Government of the Punjab, Lahore and Ashfaq Ahmad Khan, DIG (Operations), Lahore.

Waqar Mushtaq Toor with Shaukat Ali, Director General, PEMRA.

Tahir Farooq Tarar, Head Legal, PEMRA.

Muhammad Kashif Pasha and Hamid-ur-Rehman Nasir, Research Officers, Lahore High Court, Lahore.

2020 C L C 243

[Lahore]

Before Rasaal Hasan Syed, J

SHABBIR AHMED and others----Petitioners

Versus

CHOLISTAN DEVELOPMENT AUTHORITY and others----Respondents

Civil Revision No.390-D of 2019, decided on 6th August, 2019.

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

----Arts. 79, 17, 117 & 120---Execution of document---Onus to prove---Person pleading positively existence of transaction, execution of document, thumb impression and signature of alleged executants is under heavy onus to prove the same--- Beneficiary of document is required to establish transaction and also alleged execution by producing two attesting/marginal witnesses--- In cases of thumb impression, same is done by seeking forensic examination of thumb impression in comparison with admitted thumb impression.

Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080; Khaliqdad Khan v. Mst. Zeenat Khatoon 2010 SCMR 1370 and Fida Hussain v. Murid Sakina 2004 SCMR 1043 rel.

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

----S. 12--- Qanun-e-Shahadat (10 of 1984), Arts. 79, 17, 117 & 120---Suit for specific performance of agreement to sell--- Execution of agreement--- Onus to prove--- Principle--- Concurrent findings by courts below--- Plaintiffs filed suit for specific performance of agreement to sell allegedly executed regarding suit property--- Trial court and Lower Appellate Court dismissed the suit and appeal respectively on grounds that evidence produced did not establish any claim of plaintiffs--- Validity--- Where plaintiffs claimed a transaction of sale, execution of an alleged agreement, payment of earnest money, entire onus was on them to prove; firstly, settlement of terms and conditions of alleged transaction; and thereafter, prove execution of alleged agreement and payment of earnest money---Person claiming the agreement was expected to know day, date and month when claimed transaction was allegedly executed or settled and agreement executed--- Entire case of plaintiffs was ill-founded, alleged transaction, agreement and alleged receipts were never proved by any credible or admissible evidence--- Courts below after in-depth scrutiny of evidence had concurrently found that plaintiffs had failed to prove existence or execution of alleged transaction/agreement--- No specific misreading or non-reading of evidence, affecting findings could be pointed out nor any misreading or non-reading was observed--- High Court declined to interfere in judgments passed by two courts below as findings recorded were based on correct analysis and appreciation of evidence which suffered no error of law---Revision was dismissed in circumstances.

Farzand Ali and another v. Khuda Baksh and others PLD 2015 SC 187; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs and others 2013 SCMR 1300 ref.

Mrs. Samina Qureshi for Petitioners.

2020 C L C 264

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood and Mirza Viqas Rauf, JJ

MUHAMMAD NADEEM KHAN and others----Appellants

Versus

MUNICIPAL CORPORATION through Administrator, Jhelum and others----Respondents

I.C.A. No.60 of 2019, decided on 12th November, 2019.

Punjab Local Government Act (XIII of 2019)---

----Ss. 3, 15 & 301--- Arbitration Act (X of 1940), S. 39--- Law Reforms Ordinance (XII of 1972), S. 3(2)--- Intra-Court Appeal--- Maintainability--- Alternate remedy--- Availability--- Appellants were holding tenancy rights in shops owned by Municipal Corporation and they were aggrieved of their auction---Single Judge of High Court declined to interfere in order of auction passed by municipal authorities--- Validity--- Term 'order' used in S. 301 of Punjab Local Government Act, 2019 could not be circumscribed into a particular form--- Any direction, determination in pursuance to some proceedings like proceedings of District Assessment Committee, resulting into finalization of assessment of rent could be termed as an 'order' contemplated in S.301 of Punjab Local Government Act, 2019--- Rent agreements executed inter se parties contained arbitration clause and had provided a mechanism for resolution of disputes inter se parties--- Appellants did not invoke arbitration clause and instead filed Constitutional petition but they had opted to invoke the same that should be proceeded as per mandate of Arbitration Act, 1940 which had provided remedy of appeal in terms of S. 39 of Arbitration Act, 1940--- Division Bench of High Court in view of provisions of S. 39 of Arbitration Act, 1940 declined to interfere in the matter as appellants, under provisions of S. 3(2) of Law Reforms Ordinance, 1972 were precluded to file Intra court appeal--- Intra-court appeal was dismissed in circumstances.

The Webster's New Twentieth Century Dictionary of the English Language Unabridged (Second Edition); Black's Law Dictionary (Tenth Edition); Cambridge Advanced Learner's Dictionary (4th Edition); Oxford Advanced Learner's Dictionary (New 8th Edition); Kitabistan's New Millennium Two-In-One Composite Dictionary; Abdul Jabbar and others v. General Manager (Personnel) Pakistan Railways and others 2018 SCMR 64; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107; Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another 2012 SCMR 114; Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another 2012 SCMR 114; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 284; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Messrs Wak Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (now Commissioner Inland Revenue, LTU Lahore) and others 2018 SCMR 1474 and Messrs Al-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others PLD 2007 SC 79 ref.

Malik Ghulam Mustafa Kandwal for Appellants.

Mujeeb-ur-Rehman Kiani, Additional Advocate-General for Punjab.

2020 C L C 291

[Lahore]

Before Shahid Bilal Hassan, J

IJAZ AHMAD CHAUDHRY----Petitioner

Versus

Learned CIVIL JUDGE and others----Respondents

Writ Petition No.9756 of 2019, decided on 30th October, 2019.

(a) Constitution of Pakistan---

----Art. 199 --- Civil Procedure Code (V of 1908), S. 115 --- Constitutional jurisdiction of High Court ---Scope---Orders amenable to revision under S. 115 of the C.P.C. --- Conversion of Constitutional petition into civil revision --- Scope---- Where an impugned order was revisable under S. 115 of the C.P.C., then a Constitutional petition could be converted into a civil revision under S.115, C.P.C.

Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118 rel.

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

----S. 12---Suit for specific performance of agreement to sell immoveable property --- Depositing of entire / remaining sale consideration by plaintiff in court --- Bilateral contracts --- Scope--- Question before High Court was whether plaintiff seeking to enforce agreement to sell in a bilateral contract, was required to deposit entire sale consideration in court --- Contention of plaintiff, inter alia, was that as per contract, defendants failed to perform certain obligatory acts after initial payment, therefore plaintiff could not be made to deposit entire sale consideration until the defendants performed said acts --- Validity---- In bilateral agreement/contract/settlement(s), participating parties promise each other that they will perform or refrain from performing an act and such type of contract was also known as a "two-sides contract" ---- When plaintiff had already performed first part of agreement, it was the defendants who had to perform their part as agreed between them and on refusal of the same, plaintiff approached Court to force them to perform their part --- In such a case plaintiff could not be forced to deposit whole sale consideration, especially when the agreement was bilateral as well as under certain terms and conditions and both the parties had to perform their parts step by step.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 distinguished.

(c) Contract---

----Business contract --- Nature and types of business contracts --- Formation and nature of consideration in business contracts---Contracts based on validity and execution ---Various types of "business contracts/agreements" used, enumerated and meaning thereof explained.

Abid Saqi, Mudasir Farooq and Sohail Afzal Khan for Petitioner.

2020 C L C 315

[Lahore]

Before Muhammad Ameer Bhatti, J

Malik WASEEM KHOKHAR----Petitioner

Versus

TAIMUR KAMAL and others----Respondents

Civil Revision No.64102 of 2019, decided on 6th November, 2019.

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

----O. XXXIX, Rr. 1 & 2 & O. VII, R. 11---Temporary injunction, grant of---Rejection of plaint by the Appellate Court---Validity---Incompetent suit should be taken off the file at its inception and plaintiff was to be allowed to retrace his steps---Plaint could be rejected even before summoning the defendants or at any stage of suit proceedings---Plaint could only be rejected when the same was pending or was under challenge---Plaint, in the present case, was not pending before the Appellate Court therefore, Appellate Court was to refrain from making any definite opinion with regard to fate of the suit---Adjudication upon merits of the suit was out of scope of Appellate Court when it was not pending before it---Decision of suit on merits was not permissible while dealing with the decision of Trial Court with regard to application for grant or refusal of temporary injunction---Impugned judgment passed by the Appellate Court being based on lack of jurisdiction was nullity in the eye of law---No prayer was made for rejection of plaint in the prayer clause of memo. of appeal before Appellate Court---Impugned judgment passed by the Appellate Court was set aside---Appeal against ad-interim injunctive order would be deemed to be pending before Appellate Court which would decide the same in accordance with law---Revision was allowed, in circumstances.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826; Messrs Paper Corner v. Board of Intermediate and Secondary Education 1991 CLC 740; Niamat Ali and 3 others v. Mst. Sardaran Bibi and 4 others 2003 YLR 51; Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others 2006 MLD 12; Bakht Zada v. Shah Tamash Khan and 5 others 2016 YLR 2337 and Nanik Ram and others v. Ghulam Akbar and 9 others 2016 MLD 52 ref.

Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan 1990 CLC 1473 and Muhammad Khalil Solahria v. Faisalabad Development Authority and others 1991 CLC Note 304 rel.

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

----O. XXXIX, Rr. 1 & 2 & O.XLIII, R. 1(r)---Appeal against ad-interim injunctive order---Maintainability---Appeal against ad-interim injunctive order was maintainable.

Umer Gul v. Malik Abdul Manan and others PLD 1992 Pesh. 76; Pioneer Pakistan Seed Ltd. v. United Distributors Pakistan Ltd. and 5 others 1998 CLC 61 and District Council Haripur through Administrator, Deputy Commissioner, Haripur v. Zaheer Ullah Khan PLD 1994 Pesh. 228 rel.

Muhammad Ahsan Bhoon for Petitioner.

2020 C L C 353

[Lahore]

Before Ch. Muhammad Iqbal, J

SHAHNAZ BEGUM and others----Petitioners

Versus

MUHAMMAD MUNIR through representative and others----Respondents

C.R. No.54567 of 2019, decided on 25th September, 2019.

(a) Easements Act (V of 1882)---

----Ss. 60, 61, 62 & 63---Suit for possession against a licensee---Limitation---Rights of licensee could only be protected for a reasonable time enabling him to vacate the premises---Licence continued till the permission of licensor and the moment such permission was withdrawn or extinguished by operation of law or by violation of terms and conditions of license then such right would come to an end---Possession of licensee after termination of license would be that of mere a trespasser and denial of handing over the possession of the property would give a recurring cause of action---Once a licensee was always a licensee---Licensee was entitled to retain possession of the property till continuation of the permission to retain the same---Limitation for a suit for possession against licensee would start when notice of revocation was issued and if a notice was not served then license would become revoked when suit was filed---No question of limitation would arise in case of permissive possession---Plaintiffs were owners of suit property who had revoked the license of defendant one year before filing the suit---Cause of action arose when licence was revoked one year before filing the suit and not from the date of granting the license of property to the defendant---No illegality or 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 limine.

Mrs. Irene Wahab v. Lahore Deocesan Trust Association 2002 SCMR 300; Zarshad v. Shah Gul PLD 2003 SC 650; Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063; Dilawar Shah v. Jannat Gul PLD 2004 SC 59; Feroz Din Khan v. Muhammad Latif Khan PLD 2012 SC AJK 13; Government of Sindh through Secretary Education v. Begum Aisha Ahmed Ibrahim Bawani PLD 2018 Sindh 431; Commissioner Multan Division Multan and others v. Muhammad Hussain and others 2015 SCMR 58 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

(b) Easements Act (V of 1882)---

----S. 52---'Licence'---Stipulations for a valid licence.

Following are the stipulations for a valid licence:

i. A right is granted by the grantor, ii. The right is to do or continue to do something, iii. The right must be in respect of the immovable property of the grantor, iv. The act which the grant permits must be such as would be lawful but for the permission, and

v. The right must not amount to an easement.

2020 C L C 369

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Syed ALI MANZAR ZAIDI and 6 others----Petitioners

Versus

Syed NAFEES HAIDER and 10 others----Respondents

C.R. No.731 of 2019, decided on 18th June, 2019.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.43, 54 & 55---Suit for declaration, permanent and mandatory injunction---Order of appellate court suspending operation of the impugned order---"Case decided"---Scope---Petitioners assailed order of Trial Court in appeal whereby their application under O. XXXIX, Rr.1 & 2, C.P.C. in a suit for declaration, permanent and mandatory injunctions was dismissed---Appellate Court issued notices to the respondents and suspended operation of the order of trial court by which the petitioners felt aggrieved---Validity---Nothing was finally decided amounting to a challengeable decision and only the operation of the order of trial court was suspended---Suspending the order of dismissal of an application without passing further order for granting any relief or restoring relief that was granted as an ad-interim relief by the trial court at a stage before the said application was dismissed did not tantamount to automatically revive any relief that could have been granted at ad-interim stage as the same had merged in the final order, therefore, there was no finally settled matter to be agitated before and determined by the High Court in the civil revision, which required the impugned decision to be a "case decided"---Revision petition, being premature, was dismissed.

Mian Muhammad Luqman and 5 others v. Farida Khanam and another 1994 SCMR 1991; Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Ltd. and 3 others 2006 SCMR 21 and Abdul Razzaq and others v. Muhammad Ajmal Khan PLD 2018 Lah. 491 ref.

2020 C L C 400

[Lahore (Multan Bench)]

Before Asim Hafeez, J

MANZOOR HUSSAIN (DECEASED) through Legal Heirs and others----Appellants

Versus

MUHAMMAD RAFIQUE and others----Respondents

R.S.A. No.14 of 1996, decided on 20th December, 2019.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 2-A & 3---Limited owner---Right to alienate property---Scope ---Impact of S.2-A of Muslim Personal Law (Shariat) Application Act, 1962, on custom --- Subject matter property was ancestral land, inherited by deceased under prevalent custom, as a grandson --- After demise of deceased subject property was inherited by his mother under custom---Mother alienated the property to a third party against consideration---Plaintiffs, as reversionaries in the estate of deceased, filed a suit challenging the alienation of subject property by deceased's mother---Held, that upon promulgation of S. 2-A of Muslim Personal Law (Shariat) Application Act, 1962, the applicability and persuasive effect of custom stood eradicated for the purposes of disputes relating to succession, amongst the claimants / reversioners of "a male heir", who had acquired any agricultural land under the custom from the person, who at the time of acquisition was a Muslim --- In the present case, the disputes inter se the parties were not with respect to acquisition of property by deceased, a male heir, but amongst the reversioners, who claimed succession / inheritance in the estate of the deceased --- Mother of deceased was also one of the reversioners --- In view of S.2-A of of Muslim Personal Law (Shariat) Application Act, 1962, having retrospective effect, succession of deceased would open on the date of his death, i.e. 15-12-1943, whereupon estate of deceased would ipso-facto devolve upon the legal heirs / reversioners and same became entitled to get their respective shares in accordance with the Muslim Personal Law --- Moreover upon the promulgation of section 2-A, the plaintiffs became co-owners and were entitled to claim share in the property, which claim could not be denied on the objection of limitation--- Courts below had rightly decreed the suit of plaintiffs--- Appeal was dismissed accordingly.

Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Muhammad Yousuf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535; Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 and Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667 ref.

Syed Muhammad Ali Gillani for Appellants.

Malik Ashiq Muhammad Jamal for Respondent.

2020 C L C 493

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

The LOUIS BERGER GROUP and others----Petitioners

Versus

LTH JOINT VENTURE and others----Respondents

C.R. No.293 of 2014, decided on 12th December, 2019.

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

----O. I, Rr. 3 & 10-Necessary party to a suit---Misjoinder of parties--- Impleadment of parties to a suit---Striking out name of a party---Exercise of discretion under O. I, R. 10, C.P.C.---Principles---Question as to who amongst several defendants to a suit was liable to be made subject of a decree at culmination of such suit, would not be relevant enough for purpose of ascertaining status of parties to a suit---Any party who was necessary or proper could be joined in proceedings and a necessary party was one which opted to have been joined and in whose absence no effective decree could be passed---Proper party was one whose presence before Trial Court was necessary in order to enable it to effectually and completely adjudicate and settle all questions involved in a suit---For purpose of adding or striking out a party from a suit, outcome of such suit was immaterial qua the party seeking such addition or striking out---Powers under O.I., R.10, C.P.C. were discretionary and exercise of such powers was to be done by Trial Court after due diligence.

Ali S. Habib and others v. Dr. Sher Afgan Khan Niazi and others 2004 SCMR 1627; Muhammad Imran v. President KASB Bank Ltd. and another 2014 CLC 561 and Ejaz Inayat v. Rt. Rev. Dr. A.J. Malik and others PLD 2009 Lah. 57 ref.

Province of the Punjab through Secretary, Sports Government of the Punjab and another v. Messrs Qavi Engineers (Pvt.) Ltd. through Director and 2 others 2007 MLD 89 and Naveed Merchant v. Safdar Gondal and 4 others 2013 CLD 66 distinguished.

Muhammad Imran v. President KASB Bank Ltd. and another 2014 CLC 561; Ali S. Habib and others v. Dr. Sher Afgan Khan Niazi and others 2004 SCMR 1627 and Ejaz Inayat v. Rt. Rev. Dr. A.J. Malik and others PLD 2009 Lah. 57 rel.

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

----S.115---Revision---Exercise of revisional jurisdiction---Principles---Scope of revisional jurisdiction was circumscribed to eventualities mentioned in S.115 of the C.P.C. and could only be exercised when a petitioner succeeded in establishing that an impugned order suffered from legal infirmities hedged in S. 115, C.P.C. and when some patent illegality was floating on surface of record.

Mian Muhammad Kashif for Petitioners.

2020 C L C 503

[Lahore]

Before Jawad Hassan, J

Mst. ASIYA ASHRAF CHAUDHARY---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.4999 of 2013, heard on 19th November, 2019.

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973) [since repealed]---

----Ss.3, 9 & 13---Constitution of Pakistan, Arts. 23 & 24---Universal Declaration of Human Rights, 1948, Art. 17---Right to compensation for property acquired by Provincial Government/Development Authority for a housing scheme---Scope---State had the right to acquire property for public welfare purposes but at the same time such acquisition was to be followed by prompt and adequate compensation for the affected owners/parties---Article 24 of the Constitution encapsulates said principle---Right to compensation in lieu of acquired property was a fundamental right and was protected at par/equal with the right to property under Art. 24 of the Constitution---Furthermore compensation in lieu of acquired property was an established principle of law both in statute and common law---Said right would remain alive in favour of property owner until discharged/paid---In the present case, perusal of documents produced by the petitioner proved that she was the absolute owner of the subject land and this land was acquired by the Development Authority for the establishment of a housing scheme---Petitioner had provided the concerned authorities all ownership documents and had gone as far as providing the amended copy of the record of rights which included all three Khasra numbers in the mutation showing ownership of the petitioner---Petitioner had a fundamental right towards her property, which was provided and guaranteed under the Constitution as an inalienable right, and she could not be deprived from her property by any authority in an arbitrary manner---Property of the petitioner was acquired nearly three decades earlier by the Provincial Government---Said property had since been developed and sold onwards by the Development Authority, however, the petitioner was yet to be compensated---Despite the claim of the petitioner being admitted by the Development Authority, it had been refused on the basis of mere technicalities, which act was in clear violation of Arts. 23 and 24 of the Constitution---Petitioner was entitled to have the exempted plot along with the amount of compensation to the extent of the remaining acquired land as per her award, however, as the land had been utilized and a structure had since been constructed on it, the best alternative course appeared to be for the Development Authority to provide alternative land in that vicinity to the petitioner as per her entitlement of exempted plot or to pay compensation against that in accordance with the law and rules within a specified time---Constitutional petition was allowed accordingly.

Ch. Muhammad Ishaque, Advocate v. Cantonment Executive Officer, Chunian, District Kasur and another PLD 2009 Lah. 240; Malik Bashir Ahmad and 4 others v. Federal Government of Pakistan through Secretary Cabinet Division and 6 others PLD 2018 Isl. 68; Mst. Bibi Shah Ban (deceased) through L.Rs. and others v. Land Acquisition Collector, A.C., Mardan and others 2019 SCMR 599; Prvince of Punjab through Secretary Irrigation, Government of Punjab, Lahore and 2 others v. Abdul Rehman Shaukat 1999 SCMR 2610; Secretary, Local Government v. Sikandar Hameed and 10 others 2018 MLD 205; Malik Muhammad Ijaz v. Pakistan through Secretary Defense Islamabad and others 2018 CLC 1445; Sheikh Anwar Saeed v. L.D.A. 2015 CLC 1723 and Mst. Mukhtiar Fatima v. Deputy Commissioner, Multan and 2 others 1997 MLD 1792 ref.

(b) Words and phrases---

----'Compensation'---Definition.

Permanent Edition Vol. 8 of Thompson, p.366 ref.

Feisal Hussain Naqvi Advocate Supreme Court and Ameer Hamza Dogar for Petitioner.

Amir Saeed Rawan, Advocate/Legal Advisor LDA, Barrister Umair Niazi, Addl. Advocate-General, Hamid ul Rahman Nasir, Muhammad Kashif Pasha, Civil Judges/Research Officers, Lahore High Court, Research Centre and Ms. Saadia Malik, Assistant Attorney General assisted by Barrister Minahal Tariq for Respondents.

2020 C L C 523

[Lahore]

Before Shujaat Ali Khan, J

BASHARAT ALI CH.---Petitioner

Versus

CHIEF SECRETARY, PUNJAB and others---Respondents

Writ Petitions Nos.177738 of 2018, 12133 of 2019 and Crl. Org. No.194529 of 2018, decided on 4th December, 2019.

Compulsory Teaching of the Holy Quran Act (XXX of 2017)---

----S.34 & Preamble---Error free publication of the Holy Quran---Publishers selling copies of the Holy Quran with Urdu translation containing non-suitable words for Allah Almighty and the Holy Prophet Muhammad (pbuh) --- Inaction on the part of the public functionaries regarding corrections in text and translation of the Holy Quran --- High Court directed that the Provincial as well as Federal Government shall ensure error-free publication of Holy Quran as well as its e-publication on internet along with its authentic translation; that in such regard, role of the Provincial Quran Board and the committee constituted under the Compulsory Teaching of Holy Quran Act, 2017 was pivotal; that any person possessing any copy of Holy Quran with error in its Arabic text or its translation shall approach the Chairman, Provincial Quran Board or the committee constituted by the Federal Government to ensure error-free publication of Holy Quran and its translation; that in the event of such move, concrete steps shall be taken by the Provincial as well as Federal Government to ensure rectification of such errors of Arabic text or translation, in existing copies of Holy Quran, on paper and internet, as well as in future publication of the Holy Quran --- Constitutional petitions were disposed of accordingly.

Mian Muhammad Saeed and Abid Hussain Khichi with the Petitioner.

Ishtiaq A. Khan Additional Attorney-General and Muhammad Zahid, Assistant Attorney General, on Court's call.

Rana Shamshad Khan, Additional Advocate General with Abul Zafar Ghulam Muhammad Sialvi, Chairman Qur'an Board; Athar Masood, Additional Secretary, Auqaf and Religious Affairs Department; Faheem Inaam Mufti, Section Officer (IBM), Auqaf Department; Sohail Akhtar, Inspector, SHO P.S. Islampura and M. Shahbaz Inspector (Legal), CPO Office.

2020 C L C 549

[Lahore]

Before Shujaat Ali Khan, J

Mst. SAMAN NASEER----Petitioner

Versus

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

W.P. No.3812 of 2019, decided on 23rd January, 2020.

(a) Islamic law---

----Marriage---Nikah---Essentials pre-requisites---Three ingredients of a valid marriage were proposal, acceptance and presence of two male or one male and two female witnesses.

Muhammadan Law by D.F. Mullah, para No. 252 ref.

(b) Islamic law---

----Marriage---Nikah---No Wakeel appointed for bride---In the present case, the bride was well educated and more than 27 years of age at the time of Nikah, thus, she was competent enough to enter into Nikah with anybody according to her own whims even without intervention of a third person, in particular a Wakeel.

Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Zarjuma alias Jamna Bibi v. Station House Officer, Police Station Saddar District Bhakkar and 4 others PLD 2009 Lah. 546 and Muhammad Afzaal v. Sessions Judge, Multan and 3 others PLD 2008 Lah. 479 ref.

(c) Islamic law---

----Marriage---Nikah---Witnesses to the Nikah not related to the bride---Only requirement of the law was presence of two male or one male and two female witnesses at the time of offer and acceptance irrespective of the fact that they were closely related to the parties or not --- Furthermore since marriage between the parties in the present case was solemnized against wishes of their families it could not be believed that some immediate family members of the bride would have participated in the said marriage especially when there was great difference between the social/financial status of the parties.

Muhammadan Law by D.F.Mullah, para No. 252 ref.

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

----S.5, Sched.---Suit for jactitation of marriage --- Plaint --- Allegation of a specific fact --- When a party alleged a specific fact it was bound to prove the same.

Petitioner-wife alleged that her signatures and thumb impression, on the alleged Nikahnama, were product of fraud and misrepresentation. Though the petitioner alleged fraud and misrepresentation but she did not specify the same. Had it been sole allegation of fraud then it was exclusive duty of respondent-husband to prove execution of valid Nikah but when the petitioner also alleged impersonation/misrepresentation she was bound to prove that someone else was produced in her place at the time of alleged Nikah but having not done so she miserably failed to prove the allegations levelled in the plaint. Courts below had rightly dismissed the suit for jactitation of marriage filed by the petitioner.

Allah Bakhsh and others v. Bakhsha and others 2003 SCMR 1011; Noor Muhammad v. Jamal Din and others 2000 CLC 305; The HUB Power Co. v. WAPDA 1999 CLC 1320; Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Taj Muhammad Khan through L.Rs and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598; Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703 and Muhammad Haroon v. Mst. Razia Begum and 6 others 2001 CLC 810 ref.

(e) Islamic law ---

----Marriage---Run-away marriage---Place of solemnization of Nikah---Nikah Khawan clarified in his statement that he performed Nikah at his residence---According to the practice in vogue, Nikah was either arranged in the house of the bride, mosque or any wedding hall where the parties choose to celebrate their wedding, thus, solemnization of Nikah in the house of Nikah Khawan especially in the wake of the fact that it was run-away marriage, could not be disbelieved.

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

----S.5---Marriage---Nikahnama---Completion of entries in Nikahnama by a person other than the Nikah Khawan was allowed.

As per section 5 of the Muslim Family Laws Ordinance, 1961, even a person who was not a Nikah Registrar could facilitate performance of Nikah between the parties with the condition that he would bring the factum of Nikah to the Nikah Registrar concerned. In the present case, when the petitioner-wife failed to impeach the conduct of the Nikah Khawan towards performance of Nikah between the parties, mere completion of entries of Nikahnama by his son could not be used to believe that marriage between the parties did not take place.

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

----S.5, Sched.---Suit for jactitation of marriage---Nikahnama---Signature and thumb impressions test---Virginity test---Plea of petitioner-wife that somebody else was managed by the respondent-husband in her place at the time of marriage---Held, that despite such plea the petitioner-wife opposed application of respondent-husband for comparison of her signatures and thumb impressions available on Nikahnama---If the petitioner was sure about the fact that she did not sign/thumb marked the Nikahnama, she was supposed to give consent for their comparison to unveil the truth---Likewise, during evidence the petitioner side offered for virginity test of the petitioner but when respondent moved formal application in that regard, instead of fulfilling the undertaking given during the evidence, the petitioner opposed it tooth and nail which fact also supported plea of respondent that marriage between the parties was consummated.

(h) Islamic law ---

----Marriage---Nikahnama, contents of---Trivial irregularities---Such irregularities could not be used to negate the contents of a Nikahnama which being a public document carried presumption of correctness.

(i) Constitution of Pakistan ---

----Art. 199 --- Constitutional jurisdiction of the High Court---Scope--- Concurrent findings of fact recorded by courts below --- Such findings could not be upset in Constitutional jurisdiction (of the High Court) until and unless they were proved to be perverse or result of arbitrariness.

Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 ref.

Abdul Khaliq Safrani assisted by Muhammad Awais Riaz for Petitioners.

Shoukat Rafiq Bajwa assisted by Faiz ur Rehman for Respondent No.3.

2020 C L C 581

[Lahore]

Before Shams Mehmood Mirza and Shahid Karim, JJ

UMAR HAYAT----Appellant

versus

MUSLIM COMMERCIAL BANK LTD.----Respondent

R.F.A. No.560 of 2016, decided on 29th January, 2020.

Limitation Act (IX of 1908)---

----S.19(1) & First Sched. Art. 64-A---Civil Procedure Code (V of 1908), O.XXXVII---Acknowledgment of liability in writing---Extension in period of limitation---Scope---Such an acknowledgment in writing which extended the period of limitation must be made within the limitation period from the original cause of action.

In the present case, Bank draft was cancelled on 09-09-2002. In the suit filed by the appellant against the Bank, it was clearly stated that the cause of action accrued for the first time on 09-09-2002 when the Bank draft was cancelled. In terms of subsection (1) of section 19 of the Limitation Act, 1908 where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right had been made in writing, signed by the party against whom such property or right was claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. Appellant, in the present case, did not rely upon any such acknowledgment in writing on the part of the Bank in the pleadings and also did not append the said acknowledgment with the plaint. Be that as it may, such an acknowledgment in writing which extended the period of limitation must be made within the limitation period from the original cause of action.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 ref.

In the present case, the acknowledgment was allegedly made on 22-01-2015 by which time the limitation period on the original cause of action had already come to an end by virtue of Article 64-A of the Limitation Act, 1908. This alleged acknowledgment on the part of the Bank, therefore, did not advance the case of the appellant for extending the period for filing the suit on 01-06-2015. Suit was rightly dismissed for being barred by limitation.

Suqrat Mir Basit for Appellant.

2020 C L C 594

[Lahore]

Before Shahid Bilal Hassan, J

IRFAN ULLAH KHAN----Petitioner

Versus

PROVINCE OF THE PUNJAB and others----Respondents

Writ Petition No. 13277 of 2016, heard on 26th September, 2019.

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

----S.41(2)---Suit for declaration---Correction of revenue record by the revenue officer---Assistant Collector prepared Fard Badar whereby he divided one Khata into two and created ownership in favour of respondent and appeal against the said order was dismissed with the observation that Civil Court had jurisdiction in the matter---Validity---Petitioner had approached Civil Court by instituting suit for declaration challenging the vires of Fard Badar---When petitioner and rival party had already approached the Court of ultimate jurisdiction and had challenged the validity of Fard Badar then revenue forum had rightly observed that matter did fall within the jurisdiction of Civil Court---When petitioner had already elected to avail remedy before Civil Court then revenue Courts had rightly withheld themselves from deciding the lis on merits---Petitioner had already knocked the door of Civil Court and doctrine of election would apply in the matter---Constitutional petition was dismissed, in circumstances.

Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Karishna Prabhu (dead) by L.Rs. AIR 1977 SC 1268; Kothandarama Gramani v. Sellammal and others AIR 1959 Madra 524, V 46 C 167; Mst. Sudehaiya Kumar and another v. Ram Dass Pandey and others AIR 1957 All. 270, V 44 C 82 May; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311; Mst. Shireen Khanum v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2001 YLR 2387; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Dr. Muhammad Tahir-Ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2013 SC 413; Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; Muhammad Sarwar v. Additional District Judge, Faisalabad and 5 others 2017 CLC 1361 and Park View Enclave (Pvt.) Ltd. through Chief Financial Officer v. Capital Development Authority through Chairman and 2 others 2018 CLC 947 ref.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828; Muhammad Boota v. Judge Family Court and others 2019 CLC 640 and Raees Ghulam Sarwar through Attorney v. Mansoor Sadiq Zaidi and others PLD 2008 Kar. 458 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could not be considered and dealt with while exercising constitutional jurisdiction.

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

----O.II, R. 2---Splitting of claim---Effect---No one could be allowed to split his claim.

Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others 1996 SCMR 1047; Zahoor Ahmad v. Master Mushtaq Ahmad 2016 CLC 937; D. Cawasji & Co., and others v. The State of Mysore and another 1975 AIR 813 and 1975 SCR (2) 511 rel.

(d) Words and Phrases---

----'Election'---Meaning.

Black's Law Dictionary 11th Edition rel.

Sheikh Usman Karim ud Din for Petitioner.

Shafqat Mahmood Chohan and Mian Muhammad Athar for Respondent.

Musharaf Ali Khan for Respondents Nos.6, 7, 9, 23 to 26.

Syed Shadab Jafri, Additional Advocate General.

2020 C L C 659

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD ASLAM----Petitioner

Versus

Haji ABDUL HAKIM KHAN----Respondent

Civil Revision No.655 of 2018, decided on 13th June, 2019.

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

----S.12(2) & O. XXXVII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 33---Summary suit--- Fraud and misrepresentation---Appointment of a referee on the statement of counsel for the parties---Scope---Decree, setting aside of---Parties jointly expressed their intention for resolution of controversy through their counsel---Referee was appointed on the statements of the counsel for the parties---Refree submitted his report---Trial Court passed decree in the light of report of referee---Contention of petitioner was that he had not authorized his counsel to record conceding statement---Petition for setting aside of a decree was dismissed by the Trial Court---Validity---Referee could only furnish information to the Court as per his personal knowledge---Acquisition of such knowledge was to precede appointment of referee and not subsequent thereto---Such information when furnished did assume the character of an admission of the parties and result in a decision of the lis on the basis thereof---Where a person was called upon to decide the suit after receiving evidence and hearing arguments or collecting material then his role could not be termed as of a referee---Where referee proceeded to examine the witness, hear the parties to reach a conclusion or resolve the dispute then his conclusion would be a decision which could not be treated by the Court as a statement of the referee---Trial Court had proceeded in a mechanical manner and passed a decree on the assumption as if it was statement by referee---Appointment of a counsel as referee could not denude the petitioner of his right to object and challenge the report on the ground of collusion and transgression of mandate as referee---Parties, in the present case, never agreed that referee should record statement but dispute was entrusted to the referee for decision---Mere using of the word "referee" could not render the report to be deemed to be an information in his personal knowledge to make it an admission under Art. 33 of Qanun-e-Shahadat, 1984---No evidence had been recorded by the referee nor any inquiry had been conducted before filing report before the Court---Report of referee could only be treated as award which could not be admitted unless the parties were afforded opportunity to file their objections---Impugned decree had been passed without proper hearing to the petitioner and without permitting objections, therefore, the same was without jurisdiction and void ab initio---Impugned order passed by the Trial Court was set aside and application under S.12(2) of C.P.C. was accepted---Matter was remanded to the Trial Court with the direction to decide the same afresh after affording opportunity to the parties to file objections to the report of referee and lead evidence in support thereof---Revision was allowed, in circumstances.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292 rel.

(b) Words and phrases---

----'Resolution of dispute'---Meaning---"Resolution of dispute" denotes determination and expression of decision.

Sajjad Hussain Tangra for Petitioner.

Syed Muhammad Najam-ul-Saqib Mumtaz for Respondent.

2020 C L C 680

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD WAQAS----Petitioner

Versus

JUDGE FAMILY COURT, LODHRAN and 4 others----Respondents

W.P. No.10648 of 2018, decided on 12th July, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched & S. 14---Suit for recovery of maintenance allowance---Framing of additional issue---Interlocutory order---Appeal---Maintainability---Expression 'a decision given'---Scope---Petition for framing of issue with regard to jurisdiction of the Court to entertain the suit was moved but same was dismissed---Validity---Decision rendered by the Family Court was appealable provided the same was not an interim order or a decision of interlocutory nature---Even order passed during pendency of a suit could not be treated as an interim or interlocutory order if it had finally determined an issue---Appeal under S.14 of Family Courts Act, 1964 was not barred against every interlocutory order and remedy of appeal, unless specifically barred would be available against a decision relating to a right or a remedy provided under the law subject to condition that finality was attached to such an order or decision and nothing remained to be further decided between the parties on the issue---Order with regard to framing of an issue would be deemed to have attained finality and same could not be treated as an interlocutory order---Appeal against the impugned order was maintainable but was not availed---Petitioner having not availed alternate remedy, constitutional petition was not maintainable---Constitutional petition was dismissed, in circumstances

Muhammad Zaffar Khan v. Shehnaz Bibi and 2 others 1996 CLC 94; Imtiaz Ahmad Khan v. Mst. Aqsa Manzoor and others PLD 2013 Lah. 241 and Mst. Naureen v. Ehsan Sabir, Family Judge, Faisalabad and 2 others 2010 CLR 110 rel.

Shamshad-ul-Haq Rana for Petitioner.

Abid Hussain Bhutta, Assistant Attorney General on Court's call.

2020 C L C 693

[Lahore]

Before Ali Baqar Najafi, J

Messrs LAC (PVT.) LTD. through Authorized Representative----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary and 6 others----Respondents

W.P. No.68072 of 2019, decided on 13th December, 2019.

(a) Punjab Procurement Rules, 2014 ---

----R.5---Foreign funded irrigation project---Technical bid and financial bid---Bid validity period, expiry of---Offer remaining non-responsive---Misprocurement---Held, that general and specific guidelines were required to be followed in internationally funded projects as mandatory to ensure fairness---In the present case, there were four pre-qualifications criteria; i.e. eligibility, pending litigation, financial status and construction experience and any bid was required to be assessed on its basis---Bid validity period had expired, therefore, the offer of petitioner remained non-responsive---Bid security period, in the present case, was extended and not the bid validity period, therefore, the offer had become invalid and any violation of the guidelines provided for the project might be considered a mis-procurement---However, its reasons could be communicated under guidelines of the project---As per the understanding between the parties the rate of exchange of US dollar was to be calculated on the date of signing of the contract and not the date of offer since it was experiencing unpredictable fluctuation---Reasons of the bid being non-responsive had been conveyed to the petitioner during the present proceedings, therefore, the petitioner, could avail his remedy in accordance with law (but not through present Constitutional petition)---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Disputed questions of fact---Such questions could not be resolved in Constitutional jurisdiction of the High Court.

Salman Akram Raja for Petitioner.

Saif Ullah Maan for Respondent No.3.

Muhammad Ahmad Pansota for Respondents Nos.6 and 7.

2020 C L C 709

[Lahore]

Before Atir Mahmood, J

Messrs IHSAN SPORTS through Managing Partner----Petitioner

Versus

PAKISTAN CARGO SERVICES (PVT.) LIMITED through Chief Executive / Secretary----Respondent

Civil Revision No233563 of 2018, heard on 15th October, 2019.

(a) Shipper and Agent---

----Recovery of money---Concurrent findings by two courts below---Plaintiff was Cargo Agent who claimed to have delivered cargo in question on behalf of defendant who was shipper---Suit was concurrently decreed in favour of plaintiff by Trial Court and Lower Appellate Court---Validity---Consignment was not sent to consignee at proper address nor there was any evidence that consignee had not received consignment willingly and refused to pay charges---Plaintiff failed to establish through any evidence that he had any cause of action against defendant---Findings of courts below regarding decree of recovery, which was core issue, were result of misreading and non-reading of evidence as well as ignorance of law---Both courts failed to appreciate term 'Free on Board (FOB)' and distinction between 'Airway Bill (AWB)', 'House Airway Bill (HAWB)' and 'Master Airway Bill (MAWB)' which resulted into miscarriage of justice---Normally High Court did not interfere in concurrent findings of facts recorded by two courts below but when there was gross misreading or non-reading of evidence and patent violation of law floating on surface of such concurrent findings, High Court could not shut its eyes---High Court was under obligation to rectify error by interference in illegal findings---Courts below had failed to analyze facts and law on the subject and committed grave irregularity and illegality while passing judgments and decrees which could not be sustained in eyes of law---High Court set aside judgments and decrees passed against defendant as both courts below erroneously decreed suit filed by plaintiff while being contrary to law and to usage having force of law and same were liable to be interfered with--- Revision was allowed in circumstances.

Cress LPG (Pvt.) Ltd. through authorized representative v. M.T. Maria III through Master/Chief Engineer/Chief Officer and others 2018 CLD 972; Mubarik Ali through L.Rs. v. Amroo Khan through L.Rs. 2007 SCMR 1714; Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609; Province of Punjab through Collector, Faisalabad and another v. Rana Hakim Ali and another 2003 MLD 67; State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Messrs. India, Coffee and Ten Distributing Co., Ltd v. The State of Madras, represented by the Collector of Madras AIR 1954 Madras 1030 and Commissioner Income Tax and Wealth Tax, Gujranwala Zone, Gujranwala and others v. Messrs Asif Industries, Alipur Chatta Wazirabad and others 2005 PTD 1145 ref.

Nazim ud Din and others v. Shaikh Zia ul Qamar and others 2016 SCMR 24 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope.

Ms. Saddia Malik for Petitioner.

Respondents proceeded ex parte.

2020 C L C 768

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD SUMAK MALIK and anthers----Petitioners

Versus

MUHAMMAD ASIF KHAN and 3 others----Respondents

Writ Petition No.11256 of 2019, heard on 12th November, 2019.

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

----O. XL, R. 1---Receiver, appointment of---Object, purpose and scope---Custodia legis, principle of---On appointment of receiver by court, property comes into custody of court and passes into legal custody (Custodia legis)--- Main object behind appointment of receiver is to preserve suit property and safeguard interest of true owner--- No doubt receiver is appointed to receive and preserve property or fund in litigation (pendente lite) when it does not seem reasonable to court that either party should hold it or where party is incompetent to do so--- Appointment of receiver is not to be made to prejudice case of either party in anyway--- Discretion is rested with court to make such appointment or not; it has to be exercised judiciously by following norms of justice, so as to protect rights of parties.

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

----O.XL, R.1---Receiver, appointment of---Prerequisites--- Remedy provided in terms of O.XL, R.1, C.P.C. by its very nature is onerous which is to be exercised providently.

Muhammad Usman v. Muhammad Shahbaz and 7 others 2007 MLD 1121 rel.

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

----Ss. 39, 42 & 54--- Civil Procedure Code (V of 1908), O. XXXVIII, R.5, O.XXXIX, Rr. 1 & 2, O.XL, R.1 & O.XLI, R.1---Suit for declaration, injunction, cancellation of document and recovery of money--- Appointment of receiver--- Attachment of property--- Plaintiff filed application for appointment of receiver and attachment of property before judgment regarding suit property---Applications were allowed by Trial Court and order was maintained by Lower Appellate Court---Validity---Trial Court could not to appoint receiver so as to oust defendants from use, command and control, particularly when plaintiff had already assessed his reparable loss in terms of specific amount--- Relief granted under order XXXVIII, R.5, C.P.C. or O.XXXIX, Rr.1 & 2, C.P.C. bore a similar analogy to that of appointment of receiver--- O. XXXVIII, R.5, C.P.C. or O.XXXIX, Rr. 1 & 2, C.P.C. were essentially preventive in nature having common object insofar as they required to preserve subject matter till final disposal of lis--- Receiver had no independent title to property thus it was sine qua non for court to ensure rights of owners of subject property--- Though, in the present case, there were concurrent findings and court exercised restraint while interfering with such conclusion especially in Constitutional jurisdiction but such by itself was not rule of thumb--- Any illegality or perversity in proceedings of court below offending rights of litigants neither could be protected nor perpetuated--- Court could not shut its eyes only for reasons that unanimous orders were under challenge before it despite being illegal--- High Court set aside orders passed by two courts below as appointment of receiver was passed without reasoning and lawful authority and was not liable to sustain---Constitutional petition was allowed in circumstances.

Lala Roshan Lal v. Ch. Muhammad Afzal PLD 1949 Lah. 60; and Owen v. Homan 94 RR 516; Ayub Lambat (Advocate) v. Messrs Valika Properties (Pvt.) and another 2016 CLC (Note) 109 and Mst. Hifsa Naseer v. A.D.J. Gujar Khan and 3 others PLD 2017 Lah. 153 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Interlocutory order---Maintainability of petition---Constitutional petition against interim orders passed by courts below is not maintainable but such is not an absolute rule and case has to be dealt with keeping in view peculiar facts and circumstances---Where courts below on face of it proceed beyond jurisdiction vested to them same can be checked on having been noticed at such early stage to set right path instead of waiting for final culmination of lis.

Sh. Muhammad Siddiq v. Khurram Gulraiz and 2 others 1998 MLD 624; Robina Yasmeen and others v. Rana Javed Iqbal and others 2011 CLC 1779 and Khurram Farooq v. Bank Al-Falah Limited and another 2018 CLD 1417 rel.

Muhammad Sameer Iqbal Awan, Muhammad Aamir Javed Bhatti and Ch. Saeed Zafar for Petitioners.

Syed Muhammad Kaleem Ahmed Khursheed for Respondent No.1.

Mustafa Haroon for Respondent No.2.

2020 C L C 780

[Lahore]

Before Shahid Bilal Hassan, J

Mst. FATIMA and 2 others----Petitioners

Versus

NAJEEB ULLAH and another----Respondents

Civil Revision No.5379 of 2019, heard on 23rd December, 2019.

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

----O. XIII, R. 4---Endorsements on documents admitted in evidence---Scope---Document not produced and proved in evidence but only 'marked' as an exhibit---Such document had no legal value and sanctity in the eyes of law---When a document was not brought on record through witness(s) and duly exhibited, the same could not be taken into consideration by the Court --- Mere marking of a document as an exhibit would not dispense with requirement of proving the same and the same could not be exhibited unless it was proved.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Abdullah v. Provincial Government through Secretary Board of Revenue and 3 others 2014 CLC 285; Inspector-General of Police, Balochistan, Quetta and 4 others v. Ghulam Rasool 2012 CLC 1645; State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Anwar Ahmad v. Mst. Nafiz Bano through Legal Heirs 2005 SCMR 152 and Syed Abdul Manan and others v. Malik Asmatullah and others 2019 CLC 1096 ref.

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

----Art.76---Documentary evidence---Photocopies---Admitting photocopy of a document in evidence and reading the same in evidence without observing legal requirements of Art. 76 of the Qanun-e-Shahadat, 1984 would be illegal.

Feroz Din and others v. Nawab Khan and others AIR 1928 Lah. 432 and Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182. ref.

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

----Art.76---Documentary evidence---Photocopied document---Where neither author of such document nor the witnesses nor its original produced in Court for inspection purposes---Such document, without formal proof, could not be relied upon.

Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 ref.

Zaffar Abbas Khan for Petitioners.

Asmat Ullah Khan Niazi for Respondents.

2020 C L C 792

[Lahore High Court]

Before Ch. Muhammad Masood Jahangir, J

AMEER ABBAS SIAL---Appellant

Versus

PROVINCE OF PUNJAB---Respondent

R.F.A. No. 65999 of 2019, decided on 4th November, 2019.

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

----S.10 ---Punjab Land Revenue Act (XVII of 1967), S. 53---Civil Procedure Code (V of 1908), O. VII, R. 11--- Suit for declaration and injunction---Plaint, rejection of--- Jurisdiction of court---Alternate remedy---Plaintiff was allottee of suit property and was aggrieved of rejection of his plaint---Validity---Better course for plaintiff was to wait for decision of forum originally set up to deal with such grouses and after culmination of all remedies provided under Punjab Land Revenue Act, 1967 before same hierarchy, jurisdiction of civil court could definitely be invoked, if it was shown that orders passed by concerned authorities were excess or abuse of its jurisdiction---Statute provided proper procedure for grouse of petitioner who had rightly set it into motion before proper forum---Approach of Trial Court, leaving it unattended, was unwarranted whereas it should have been last resort---High Court declined to interfere in order passed by Trial court---Appeal was dismissed in circumstances.

Mian Sultan Ali Nanghiana v. Mian Nujr Hussain PLD 1949 Lah. 301; Sultan Ali Nanghiana v. Nur Hussain AIR (36) 1949 Lah. 131; Central Government through the Income Tax Officer, Dera Ismail Khan v. Sher Muhammad Khan and others PLD 1971 Pesh. 153; Abdul Aziz v. Syed Arif Ali and 6 others PLD 1978 Lah. 441 and Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 ref.

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

----O. VII, R. 11--- Rejection of plaint--- Suo motu powers of court--- Procedure--- If on examination of plaint, court comes to conclusion that suit is barred by some provisions of law or it does not disclose cause of action, then it is not only proper rather statutory duty of court to reject plaint; reasons being firstly, that a stillborn suit should be buried in its inception so that no further time is wasted on fruitless litigation; and secondly, that rejection of plaint of suit would give plaintiff a chance to retrace his steps at earliest possible moment--- Court is even empowered to reject plaint suo motu without there being an application filed by defendant so that incompetent suit would be taken off file--- Appellate court is vested with all powers conferred upon Trial court and appeal otherwise is continuation of original proceedings.

Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302 rel.

Munawar-ul-Islam for Appellant.

2020 C L C 808

[Lahore High Court]

Before Shujaat Ali Khan, J

MUHAMMAD MUZAMMIL---Petitioner

Versus

JUDGE FAMILY COURT, PAKPATTAN and others---Respondents

Writ Petition No.4735 of 2017, decided on 14th January, 2020.

Family Courts Act (XXXV of 1964)---

----S. 9(6)---Family Courts Rules, 1965, R. 13---Constitution of Pakistan, Art. 189---Ex-parte judgement and decree setting aside of---Limitation---Mentioning wrong address of defendant---Effect---Petitioner assailed orders of courts below whereby his application for setting aside ex-parte judgment and decree was dismissed---Validity---Held; courts below while deciding the matter had mainly hinged upon the fact that since the petitioner was in knowledge of ex-parte judgment and decree, his application for setting the same was barred by law of limitation---Period of 30 days to assail the ex-parte judgment and decree passed by a Family Court, contained in R.13 of Family Courts Rules, 1965, had been declared ultra vires by the Supreme Court in 1988 SCMR 747---Verdict of Supreme Court, deciding a question of law had binding force upon all organs of the State and while violating the same courts below had committed grave illegality---Respondents had not rebutted that chak (village) number of petitioner was wrongly mentioned in the plaint---Reason provided by the petitioner for setting aside ex-parte judgment and decree was fully justified---Constitutional petition was accepted and the trial court was directed to decide the application for setting aside ex-parte judgment and decree afresh.

Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCMR 747 rel.

Ms. Sumera Fazil Khan for Petitioner.

2020 C L C 817

[Lahore]

Before Shahid Bilal Hassan J

AHMAD DIN (deceased) through L.Rs. and others----Petitioners

Versus

KHUSHI MUHAMMAD and others----Respondents

Civil Revision No.60561 of 2019, heard on 4th December, 2019.

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

----S. 11 & O. VII, R. 11 & O. II, R. 2---Suit for declaration and permanent injunction---Res judicata, principle of---Applicability---Trial Court rejected plaint under O. VII, R. 11, C.P.C.---Validity---Earlier suit with regard to impugned mutation had already been decided finally---Courts below had rightly concluded that fresh suit with regard to same subject matter which had already been decided was barred under S. 11, C.P.C.---Relief which had been omitted in the earlier suit could not be enforced through subsequent suit as second suit was not competent and barred under O. II, R. 2, C.P.C.---When plaint was barred by any law then same should be rejected---Principle of res judicata was attracted in the case---No illegality or irregularity had been committed by the Courts below while passing the impugned judgments and decrees---Revision was dismissed, in circumstances.

Muhammad Chuttal v. Atta Muhammad through L.Rs. 2007 SCMR 373; Owais Ahmed Idris v. Syed Muhammad Waqar Uddin PLD 2014 Sindh 465 and Mst. Zeba and others v. Sher Muhammad and others 2010 YLR 2011 distinguished.

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

----O. II, R. 2---Relinquishment of any part of claim---Effect---When plaintiff had omitted or relinquished any part of claim then he could not sue with regard to said portion of claim so omitted or relinquished afterwards.

Hafiz Muhammad Yusuf for Petitioners.

Rai Khadim Hussain Kharal for Respondents.

Muhammad Arshad Manzoor, Assistant Advocate-General.

2020 C L C 836

[Lahore (Multan Bench)]

Before Jawad Hassan, J

Mst. FATIMA FARYAD and others----Petitioners

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.2956 of 2020, decided on 25th February, 2020.

Constitution of Pakistan---

----Art. 199---Notification No. DS(B)Laptop4thphase/2017---Constitutional petition---"Chief Minister's Laptop Scheme"---Sovereignty, doctrine of---Scope---Petitioners, through constitutional petitions, sought direction to the authorities to issue them the laptops under "Chief Minister's Laptop Scheme"---Validity---Held, Government, under the doctrine of Sovereignty, was bound to adhere to its commitments---Commitments made on behalf of the Government should neither be lightly disregarded nor deliberately ignored---Orderly development of a civilized society required that citizens should be entitled to place implicit faith and confidence on representations which were made by or on behalf of the governmental authorities---Importance of this underlined the sustained thrust towards the industrialization of the country in which both the nationals of Pakistan as well as nationals of foreign countries should have complete confidence that official commitments would be duly honoured and acted upon in letter and spirit---Authorities had offered that if the petitioners approached its Focal Person along with their relevant documents, the matter would be decided in accordance with the policy/criteria---Petitioners were directed by the High Court to appear before the Focal Person and the authorities were directed to deliver laptops to the petitioners, if found eligible, as per policy/criteria---Constitutional petition was disposed of accordingly.

Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, M/o Finance and others 2015 PTD 2304 foll.

National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453 and Bahadur Khan and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and others 2017 SCMR 2066 ref.

Rao Walli Ullah for Petitioner.

Mehr Muhammad Ilyas Wasli, Muhammad Imran Ansari and Mehar Muhammad Riaz for Petitioners in the connected Writ Petitions.

Mian Azhar Saleem Kamlana, Assistant Advocate-General.

2020 C L C 849

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

SAKINA BIBI and another----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, PAKPATTAN SHARIF and 15 others----Respondents

Writ Petition No.79631 of 2017, heard on 25th November, 2019.

Civil Procedure Code (V of 1908)---

----S.12(2)---Setting aside of judgment on ground of fraud, misrepresentation etc.---Adjudication under S.12(2), C.P.C.---Petitioners, impugned in a constitutional petition, orders of courts below whereby their application under S.12(2), C.P.C. was dismissed concurrently---Petitioners sought setting aside of judgment on ground that a fake suit was instituted using their names---Validity---Advocate/counsel who allegedly represented petitioners in said suit was not made party to application under S.12(2), C.P.C. and was not prosecuted---Trial Court compared signatures of petitioners on plaint with the ones made on their application under S.12(2), C.P.C. and found the same identical---Impugned orders were therefore, based on valid reasons---Constitutional petition was dismissed, in circumstances.

Muhammad Ahmad Qayyum for Petitioners.

Shadab Hussain Jaffary, Addl. A.G. for Respondents Nos.3 to 5.

Muhammad Yasin Hatif for Respondent No.6.

Ch. Nasrullah Nasir Bhangu and Zubair Ahmad Virk for Respondent No.7.

2020 C L C 871

[Lahore]

Before Shujaat Ali Khan, J

Messrs GAS DRIVE CNG SERVICE---Petitioner

Versus

SPECIAL JUDGE (RENT), LAHORE and others---Respondents

Writ Petition No.104282 of 2017, heard on 13th January, 2020.

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

----S.22----Arbitration Act (X of 1940), Ss.34, 8 & 20---Stay of legal proceedings in presence of an arbitration agreement----Proceedings under the Punjab Rented Premises Act, 2009---Application for stay of proceedings under S. 34 of the Arbitration Act, 1940 subsequent to filing of application for leave to contest by same party---Scope---Party could move for stay of judicial proceedings pending before a forum prior to filing of a written statement or taking any other steps in such proceedings , and such fact could be verified from conduct of the party concerned---Filing of application for leave to defend in proceedings under Punjab Rented Premises Act, 2009 tantamount to taking other steps in proceedings since in case it was intention of a party to obtain stay of proceedings, it would have filed an application to such effect at the earliest.

Industrial Fabrication Company through M.D. v. Managing Director, Pak American Fertilizer Limited PLD 2015 SC 154; Messrs Nawab Brothers Ltd., Karachi v. Project Director, Office of the Project Director, Special Projects, Planning and Development Department, Karachi and another 1981 CLC 638; Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553; Ghulam Sarwar and others v. Mazharullah 1988 SCMR 310; Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196 and Government of the N.-W.F.P. and others v. Khalid Khan and others 2006 MLD 1897 rel.

Khalid Mahmood Sheikh for Petitioner.

Agha Abu-ul-Hassan Arif for Respondent No.2.

2020 C L C 884

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

FAZAL MAQSOOD and another----Petitioners

Versus

Mst. NASEEM BEGUM and 3 others----Respondents

C.R. No.233259 of 2018, heard on 30th January, 2020.

(a) Islamic law---

----Inheritance---Gift---Compromise---Requirements---Relinquishment by a female from the inheritance---Not public policy---One of defendants having admitted the transaction of gift---Effect---Inheritance mutations in favour of all the legal heirs of deceased were sanctioned according to law---Plaintiffs filed suit with the contention that their father in his life time had gifted entire property in their favour and impugned inheritance mutations were based on fraud---Defendants filed written statement that alleged gift being forged, fictitious and fabricated had been prepared to disinherit the sisters from the legacy of deceased father---Plaintiffs did not produce alleged gift deed during proceedings before the Trial Court---Contention of plaintiffs was that one of the defendants had admitted the transaction of gift before Trial Court whereas another defendant had recorded compromising statement before Appellate Court---Defendants had contended that alleged statements on behalf of defendants were result of coercion and influence and same could not be treated as lawful compromise---Suit was dismissed concurrently---Validity---Plaintiffs had failed to produce original gift deed before the Trial Court---One of the defendants while appearing in the witness box in favour of plaintiffs had admitted the transaction of gift but she had not stated that compromise had been effected---Statement of said witness of plaintiffs was contrary to her written statement---Trial Court was justified to disbelieve the deposition of said witness in circumstances---One of the defendants had submitted compromise deed before the Appellate Court and had even recorded her statement that compromise had been effected---Said defendant thereafter had filed an application that plaintiffs while practicing fraud had procured her statement and no compromise had been effected---Intention to settle the things/disputes through compromise must exist---Defendants had claimed that alleged gift deed was forged and fictitious---Courts below had no other option but to dismiss the suit---Defendants being brothers were dominants of the family and they had procured compromise deed to settle the dispute---Even compromise deeds had been signed only on behalf of defendants and plaintiffs were not its signatories in any capacity---Nothing was on record as to why compromise had been effected and whether defendants had accommodated the sisters against said compromise---Governing words in R.3, O.XXIII, C.P.C. appeared to be not 'compromise' but an 'adjustment' and in absence of an intention and adjustment to other party it could not be termed as lawful---Claim of plaintiffs was based on forged and fictitious document and there was no occasion for its adjustment---Suit property was joint therefore until and unless it was bifurcated a lawful compromise could not be made by some of its co-shares which might have prejudiced the rights/interests of the others---Statements recorded on behalf of defendants had not been acted upon and they had withdrawn the same---Court had discretion to accord compromise as per its satisfaction---Courts below, in the present case, were not satisfied that either there as possibility of lawful compromise or it could be effected---High Court observed that no compromise had been effected rather it was merely a relinquishment which was not favourable to the plaintiffs to establish their right as such relinquishment by a female being against public policy was unlawful---Plaintiffs had failed to point out any irregularity or illegality in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.

Syed Muhammad Ramzan v. Muslim Zaidi and 4 others PLD 1986 SC 66; Mirza Muhammad Siddique v. Muhammad Abdullah 1989 MLD 54; Mehran v. Settlement Commissioner (Lands), Multan, Additional Commissioner (Consolidation), Multan and 21 others 1994 CLC 1079; Sh. Muhammad Fazil v. Sh. Abdul Qadir and 7 others 1997 CLC 243; Muhammad Aslam and others v. Saleem ud Din and others 2006 CLC 1911 and Sardara and Allah Ditta through Legal Heirs and others v. Mst. Bashir Begum and another PLD 2016 Lah. 587 ref.

Sh. Afzal Ahmad v. Ijaz Ahmad and others PLD 1975 Lah. 464; H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609; Khushi Muhammad and others v. Dost Muhammad and others 1997 CLC 1995; Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184; Umar Din and another v. Muhammad Sadiq Hussain and 15 others 1993 SCMR 1089 and Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795 distinguished.

Vir Singh and others v. Kharak Singh and others AIR 1925 Lah. 280; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCMR 374 and Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331 rel.

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

----O.XXIII,R.3,provisos---'Compromise'---Connotation---Compromise---Conditions.

The proviso of R.3, O.XXIII, C.P.C., in fact overrides the provision by elaborating certain procedure for giving effect to the compromise. Anyhow, a compromise is usually sign of weakness, or an admission of defeat, which, however is a way of settling differences by making concessions to each other. Compromise comes from the latin compromissum, which means "mutual promise." In order that a compromise be accepted, there are three conditions; (i) an adjustment of the suit; (ii) to the satisfaction of the Court; (iii) by means of lawful agreement or compromise.

Syed Muhammad Kaleem Ahmed Khursheed for Petitioners.

Waris Ali, Shehroz Tahir, Muhammad Zubair Virk for Respondents Nos.2 and 4.

Muhammad Mehmood Chaudhry and Muhammad Yasin Hatif for Respondent No.3.

2020 C L C 900

[Lahore]

Before Ch. Muhammad Iqbal, J

MEERA SHAFI----Petitioner

Versus

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

W.P. No.17963 of 2019, decided on 27th March, 2019.

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

----Art. 133--- High Court (Lahore), Rules and Orders Vol. 1, Part H, cls. 3 & 4---Recording of evidence---Examination in chief--- Petitioner, under Art. 199 of the Constitution, sought direction to Trial Court to first record examination-in-chief of all witnesses of respondent and thereafter allow petitioner to cross-examine those witnesses---Validity---Complete statement of a witness entailed examination-in-chief, cross examination and re-examination---If a witness had entered witness box, it was legally desirable that his statement in complete be recorded in one session---Fragmentary recording of statement was to be avoided subject to certain legal and well-reasoned exceptions---High Court declined to interfere in recording of evidence by Trial Court as desired by petitioner---Constitutional petition was dismissed in circumstances.

Subh Karan Singh and others v. Kedar Nath Tewari and others AIR 1941 All. 314; Achutana Pitchaiah Sarma v. Gorantla Chinna Veerayya and others AIR 1961 (A.P) 420; Surendra Kumar v. State of Rajasthan 2000 (3) WLC 654, 2002 (1) WLN 395; Muhammad Yasin alias Mithoo and another v. State 2010 PCr.LJ 1253; The case of Management of V. Akhil Bharatiya's case Calcutta High Court, W.P. No.17418 (W) of 2009 and Manikandan alias Pillappa v. State, Madras High Court, Criminal Appeal No.446 of 2013 rel.

(b) Evidence---

----Production of---Principle---Party to arrange sequel of its witnesses according to its own choice--- Court normally avoid interference in such choice as it has to only regulate producing of witnesses.

G.V. Raman and others v. Emperor AIR 1929 Cal. 593 and Lalmani v. Bejai Ram Chaudhari and others AIR 1934 All. 840 rel.

(c) Evidence---

----"Civil" and "criminal" proceedings--- Distinction--- Matter, in civil lis is normally decided on preponderance of the evidence and with logical probabilities which parameters are somewhat different to that of recording of evidence in criminal prosecution case which requires proving of the case till utmost certainty.

2020 C L C 970

[Lahore]

Before Muzamil Akhtar Shabir, J

MUHAMMAD MUZAMAL RIAZ----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHORKOT, DISTRICT JHANG and 6 others----Respondents

Writ Petition No.1126 of 2019, decided on 26th February, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched & S. 17---Contract Act (IX of 1872), S. 128---Civil Procedure Code (V of 1908), S. 145---Suit for recovery of maintenance allowance---Execution petition---Liability of surety to pay decretal amount---Scope---Petitioner stood surety of judgment debtor who was sent to civil prison later on---Executing Court passed direction to the surety for payment of decretal amount---Surety moved an application for summoning of father to satisfy the decree which was dismissed---Validity---If father of minors was poor then it was the obligation of grandfather in easy circumstances to maintain his grandchildren---Grandchildren had right to claim maintenance allowance from their grandfather---Said right of grandchildren did not absolve either judgment debtor or surety from making payment of the decretal amount to the minors in terms of surety bond submitted before the Executing Court by making himself liable to make payment in case the father of the minors did not appear or make said payment---Liability of surety was co-extensive with that of principal debtor unless it was otherwise provided by the contract---Petitioner had submitted surety for Rs.5,00,000/- to be paid in default of judgment debtor and while accepting such liability he had not made the same conditional upon or subject to any claim of the minors against grandfather---Petitioner-surety had no right to claim that the decretal amount be recovered from the judgment debtor or anyone else---Arrest of judgment debtor did not absolve the surety from making payment of decretal amount and his liability was joint and several with the judgment-debtor---Provisions of Civil Procedure Code, 1908 had not been made applicable to the proceedings before Family Court but said Court was empowered to adopt any procedure to regulate its own proceedings and even adopt principles of Civil Procedure Code, 1908---Surety might be proceeded against for enforcement of his liability as provided under S.145 of C.P.C.---Surety had agreed to make payment of decretal amount in case of failure of judgment debtor to do so or on account of his non-appearance---Petitioner could not be absolved from his liability to pay the agreed amount after default---Executing Court had provided sufficient opportunities to the petitioner before proceeding against him---Courts below had passed impugned orders in accordance with law and record of the case---Constitutional petition was dismissed in circumstances.

D.F. Mulla's Principles of Muhammadan Law (First Edition); Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72; Javaid Iqbal v. Judge Family Court and others 2018 MLD 1296; Muhammad Amin v. Judge Family Court and 3 others 2015 YLR 316; Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others 2016 SCMR 1821; Muhammad Tabish Naeem Khan v. Additional District Judge and others 2014 SCMR 1365 and Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361 rel.

Ghulam Rasool Sial for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General and Muhammad Arshad Manzoor, A.A.G. on Court's call.

2020 C L C 982

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh and Muzamil Akhtar Shabir, JJ

Mst. NASRIN----Appellant

Versus

MUSLIM COMMERCIAL BANK LIMITED Through SAM Head, Head, Multan

and 5 others----Respondents

E.F.A. No.09 of 2019, decided on 20th November, 2019.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 54---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 9 & 22---Recovery of finances---Execution of decree--- Attachment of property---Mala fide---Suit filed by Bank was decreed and judgment-debtor resisted execution of decree on grounds that property in question through inheritance from her husband which property could not be put to auction---Validity---Judgment-debtor was trying to frustrate entire execution proceedings and any indulgence at such stage of proceedings could amount to frustrate implementation of decree which otherwise had attained finality---Interference, at such stage could tantamount to interference in already decided matter which culminated by dismissal of objection petition filed by husband of judgment-debtor---Claim of judgment-debtor that transfer of property in her name through inheritance of her husband gave her fresh cause of action was without any basis and legal justification---Judgment-debtor had stepped into shoes of her husband and could not claim better title or rights in property than her husband and such claim, being without any merit was repelled---High Court declined to interfere in order passed by Trial Court as judgment-debtor had failed to point out any illegality, perversity or erroneous exercise of jurisdiction---Appeal was dismissed, in circumstances.

Rana Zia ur Rehman Arif for Appellant.

2020 C L C 1005

[Lahore]

Before Ayesha A. Malik and Asim Hafeez, JJ

STATE LIFE INSURANCE EMPLOYEES COOPERATIVE HOUSING SOCIETY and another----Appellants

Versus

NEMAT ALI NAGRA----Respondent

Intra Court Appeal No.13926 and C.M. No.3 of 2019, decided on 10th February, 2020.

(a) Law Reforms Ordinance (XII of 1972)---

----S.3 (2)---Expression 'arises out of the proceedings'---Connotation--- Expression 'arises out of the proceedings' as employed in S. 3(2) of Law Reforms Ordinance, 1972, envisages commencement or existence of some form of proceedings, out of which application / petition has arisen--- Scope of proceedings enable to identify original order and remedy provided against it.

Pakistan Oil Fields Limited, Rawalpindi v. Province of Punjab, through Secretary Finance Department, Lahore and others 2010 SCMR 328 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 rel.

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

----S.64---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Provisional Transfer Letter---Vested right---Scope---Member of Housing Society assailed Constitutional jurisdiction of High Court against act of the Society reducing size of her plot and failure to hand over the possession---Single Judge of High Court directed the Housing Society to deliver possession of plot and in case of reduction in measurement of plot, the Society was to pay compensation according to market rate---Validity---Provisional transfer letter was issued to the member of the Society which was subject to certain conditions, one of which had allowed the Society to make adjustments in the location and size of provisionally allotted plot---Such condition specifically had stated that prospective adjustment would likely to affect price of plot and in such case necessary monetary compensation was to be made at the time of possession of the plot---Housing Society was justified to arbitrarily reducing measurement of plot of its member---No Fundamental Right of the member was violated and she could claim compensation from the Society for reduction of measurement of land in terms of provisional transfer letter--- Such questions were otherwise not amenable to exercise of Constitutional jurisdiction--- Only provisional transfer letter was issued to the member, which letter per se did not create any enforceable right, seeking enforcement thereof by invoking Constitutional jurisdiction as the same was not permissible--- Intra Court Appeal was allowed in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Lahore Development Authority through Director-General and another v. Commissioner, Lahore Division, Lahore and another 2009 CLC 86; Muhammad Shakoor v. Federal Public Service Commission through its Chairman Islamabad and 2 others 2003 PLC 414; Allah Rakha Choudhary v. Presiding Officer, Vth Sindh Labour Court, Karachi and 2 others 1999 PLC 128; S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/o Housing and Works, Islamabad and others 2013 SCMR 338; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107; Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D., Karachi PLD 2001 SC 182; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited PLD 2015 Lah. 661; Sirajuddin Paracha and 12 others v. Mehboob Elahi and 3 others PLD 1997 Kar. 276; Ch. Gul Muhammad v. Ashraf Industries (Pvt.) Ltd. 2010 YLR 2974; Millat Tractors Ltd. v. Ch. Tawakal Ullah NLR 1993 UC (Civil) 54; Mian Khaliq ur Rehman v. PTA and others 2019 CLC 555; Ministry of Defence and 3 others v. Muhammad Athar 2013 MLD 1284; Government of Punjab and others v. Ishtiaq Ahmad Butt and others 2017 MLD 832; WAPDA and another v. Messrs Ghulam Rasool & Co. (Pvt.) Ltd. through Managing Director 2005 MLD 1165; Ch. Gul Muhammad v. Ashraf Industries (Pvt.) Ltd. 2010 YLR 2974; Abubakar Saley Mayet v. Abbot Laboratries and another 1987 CLC 367; Syed Hussain Haider v. Government of the Punjab through Chief Secretary, Lahore and others 2019 PLC (C.S.) 1; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Human Rights of Pakistan and others v. Government of Pakistan and others PLD 2009 SC 507; Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221; Muhammad Fahimuddin and others v. Province of Sindh through Secretary, Revenue Department Sindh and 6 others 2012 MLD 636; Sheikh Muhammad Tahir v. The State and 2 others 2012 PCr.LJ 1075; Messrs Pak Saudi Fertilizers Ltd. v. The Federation of Pakistan and others 2002 PTD 679; Haleem ur Rehman v. Province of Sindh and others 2019 SCMR 1653; Messrs S.I.S. Corporation (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2018 Isl. 150; Rehmatullah alias Rematoli v. Government of Khyber Pakhtunkhawa through Secretary, Home and Tribal Affairs Peshawar and others PLD 2018 Pesh. 17; Zubair v. Federation of Pakistan through Secretary Establishment Division and 3 others 2016 PLC (C.S.) 259; Aamir Lutuf Ali Zardari v. Province of Sindh and others 2019 CLC 224; Ahmed Khan Floraid Company through owner v. Secretary Mines and Minerals Government of Balochistan and 2 others 2018 YLR 718; Abdul Ghaffar v. Province of Sindh through Secretary Local Government and 9 others 2017 YLR 661; Kausar Shabir v. Station House Officer, Chamkani, Peshawar and 2 others 2018 ICA No.13926/2019 YLR Note 153; Messrs National Highway Authority through Duly Authorised Director (Legal) v. The Chief Secretary, Government of the Punjab, Lahore and 5 others PLD 2017 Lah. 390; Messrs Jubilee Life Insurance Co. Ltd. v. Federation of Pakistan through Secretary Law, Ministry of Law and Justice Division and others 2018 CLD 903; Syed Wajahat Hussain Zaidi v. Banking Court No.1 and others 2018 CLD 1273, Pir Ishfaq Ahmed v. Deputy Commissioner / Land Acquisition Collector, Charsadda and another 2018 CLC 449; Syed Adil Hussain v. Vice-Chancellor, University of Gujrat and 3 others 2018 CLC Note 5; Abdul Qadir Farooqui v. The Federal Ministry of Finance through Secretary Central Board of Revenue, Islamabad and others 2018 CLC 758; Astaghfirullah v. Secretary Irrigation, Peshawar and others PLD 2018 Pesh. 47; Salim Javed Baig and others v. Federal Ombudsman and others PLD 2016 Lah. 248; Messrs Trust Investment Bank Ltd. through Authorized Officer v. Government of Sindh through Secretary Home and 3 others 2016 MLD 278; Najeebullah and others v. Director NADRA, Balochistan, Quetta and others PLD 2016 Bal. 1; Abdul Huq and another v. The Province of Sindh and 10 others 2017 CLC 694 and Ahmad Khan v. Chief Justice and Judges of the High Court of West Pakistan PLD 1968 SC 171 ref.

Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 rel.

Mohammad Nadeem Chaudhry for Appellants.

2020 C L C 1039

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD KHUBAIB----Appellant

Versus

GHULAM MUSTAFA (DECEASED) through LRs----Respondents

R.S.A. No.219 of 2016, heard on 14th January, 2020.

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

----S. 54---Registration Act (XVI of 1908), S. 60---Civil Procedure Code (V of 1908) O. VI, R. 2 & O. VIII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Sale deed---Fraud and misrepresentation---Document, proof of---Requirements---Maxim: Secundum allegata et probata, principle of---Applicability---Registered instrument---Presumption of correctness---Appreciation of evidence---Requirements---Admission against fact---Effect---Contention of plaintiff was that impugned sale deed in favour of defendant was based on fraud and misrepresentation---Suit was dismissed concurrently---Validity---Written statement was silent with regard to essential details qua venue, date and names of witnesses to assert as to when, where and before whom original transaction was settled leading to execution of impugned sale deed---Plaintiff while appearing in the witness box had fully endorsed his pleadings---Onus had shifted upon the beneficiary of sale deed not only to rebut the allegations raised by the adversary but to prove that actually a fair deal of sale was effected and alleged consideration had been paid and plaintiff had voluntarily appeared before Stamp Vendor, Scribe and Sub-Registrar as well---Plaintiff had admitted that his signatures/thumb impressions were procured but with clarity that same were obtained in garb of his affidavit to be submitted for his treatment and admission in the hospital---Defendant being beneficiary was bound to prove the contents of document on which the executant had admitted his signature---Mere admission of putting thumb impression or signatures by any person on some disputed instrument without proving the content thereof would not amount to proving its execution---Whenever execution or validity of a registered document had been denied then such instrument would lose its sanctity of being presumed to be correct rather veracity of registered document would depend upon quantum and quality of evidence to be produced to prove its execution---Only restricted presumption under S.60 of Registration Act, 1908 was attached that registration proceedings had regularly and honestly been carried out by the attesting officer---Said presumption attached to certificate of the document was always rebuttable---Whenever execution of an instrument had been denied then presumption would be deduced to have been sufficiently rebutted and onus would lie upon the person who had alleged execution to prove that the document was executed/registered for the transaction effected between the parties---Presumption in favour of a registered instrument did not dispense with the necessity of showing that person who had admitted the execution before the attesting officer was not an imposter but the genuine one---Possession of suit property had never been handed over to the defendant---Payment of sale consideration followed by delivery of possession was mandatory for sale transaction---Mere registration of sale deed without payment of sale consideration and delivery of possession would not be operative to pass title to the vendee---Neither Lumberdar nor Councilor of concerned revenue estate was accompanying at the time of attestation of impugned sale deed rather Lumberdar of city had identified the vendor which had created doubt to the attestation of sale deed---Identifier, Stamp Vendor and Sub-Registrar were independent witnesses but they had not been produced before the trial Court---Non-production of said witnesses would constrain the Court to infer that had they been examined they would have gone hostile to the beneficiary---Court should appreciate the statement of a party as per its substance and pith---No one should be non-suited while turning out one or two sentences of his deposition---Admission which was wrong on a point of fact or was made in ignorance of a legal right could not be given binding effect---Impugned judgments and decrees passed by the Courts below were set aside and suit was decreed---Second appeal was allowed in circumstances.

Abdul Hameed v. Mst. Aisha Bibi 2007 SCMR 1808; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah 2007 SCMR 1884; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Gopal Das v. Siri Thakir Gee and others AIR 1943 PC 83; Siraj Din v. Jamila and another PLD 1997 Lah. 633; Fakhar-ud-Din through L.Rs. v. Muhammad Iqbal and others 2015 CLC 994; Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 750; Syed Muhammad Sultan v. Kabir ud Din and others 1997 CLC 1580; Mukhtar Ahmad and 4 others v. Taj Din and 3 others 2002 YLR 2660 and Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 rel.

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

----S.100---Second appeal---Interference---Scope---Interference can be made when decision is found to be result of any mis-reading of evidence or ended in wrong conclusion being contrary to law.

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

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

----S. 54---'Sale'---Definition.

"Sale" is transfer of ownership of immoveable property in exchange for a price paid or promised or partly paid or partly promised. In order that a transaction may be "sale", the payment of price must be contemplated. It must be followed by delivery of possession. Whenever these ingredients are lacking, mere registration of sale deed will not be operative to pass title to the vendee.

(d) Pleadings---

----No one could be allowed to set up a new case beyond pleadings.

Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 rel.

(e) Maxim---

----"Secundum allegata et probata"---Applicability---Scope.

Malik Abdul Wahid and Zubair Ahmad Virk for Appellants.

Khawar Ikram Bhatti for Respondent.

2020 C L C 1074

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

NIAGARA MILLS (PVT.) LTD.----Appellant

Versus

WISAL AHMED MONOO and another----Respondents

F.A.O. No.364 of 2016, decided on 2nd June, 2016.\

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

----Ss. 12 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance and permanent injunction---Interim injunction, refusal of---Scope---Suit for possession through specific performance and permanent injunction alleged that the respondents had agreed to sell the suit property and that they had received the cheques of earnest money but had not honoured the transaction---Application for grant of interim injunction was dismissed by the trial court---Validity---Appellant had neither produced original copy of the alleged agreement to sell nor had produced the proof of encashment of cheques---Ingredients of the valid contract did not exist in the matter---Appellant had not been able to prove a prima facie/arguable case for grant of temporary injunction in its favour---No irreparable loss would be caused to appellant if the temporary relief was refused---Neither any agreement nor any correspondence was transformed into a valid contract nor any consideration amount was shown to be paid by appellant---Matter required deeper appreciation of evidence---Order passed by trial court was in accordance with law---Appeal, being devoid of merits, was dismissed.

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

----O.XXXIX, Rr.1 & 2---Interim injunction---Equitable relief---Ingredients---Scope---Injunction being equitable relief can be granted in aid of justice, but not otherwise---No injunction can be issued unless all ingredients i.e. prima facie case, balance of convenience and irreparable loss to the aggrieved party co-exist.

Muhammad Amir Nawaz Bhatti for Appellant.

2020 C L C 1094

[Lahore]

Before Atir Mahmood, J

SALEEM MAHMOOD AKHTAR and 2 others----Petitioners

Versus

ASSISTANT DISTRICT OFFICER and 5 others----Respondents

Writ Petition No.20536 of 2020, decided on 30th April, 2020.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Basic ingredients---Three basic ingredients required for grant of interim injunction were prima facie arguable case; irreparable loss and balance of convenience ---Even if one of the said ingredients was missing, relief could not be granted to party seeking interim injunction.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Scope---Interim relief which did not flow out of the main suit could not be granted through an application for interim injunction.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Concurrent findings of law and fact by courts below---Such findings were immune from interference by the High Court in its constitutional jurisdiction until and unless there was some gross illegality, misreading or non-reading of evidence therein.

Syed Khurshid Anwar Rizvi for Petitioners.

Barrister Haris Azmat for Respondents (On watching brief).

2020 C L C 1125

[Lahore (Multan Bench)]

Before Shahid Karim, J

AMIR SHEHZAD and another----Petitioners

Versus

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

W.P. No.13876 of 2018, decided on 5th November, 2019.

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

----Art.76---General power-of-attorney---Plaintiff denied the existence of any power-of-attorney---Secondary evidence, production of---Requirements---Defendant moved application for production of secondary evidence of original general power-of-attorney, which was allowed on the ground that plaintiff had denied the existence of the same---Validity---Party seeking permission to produce secondary evidence had to prove the loss of original document which necessitated the production of secondary evidence---Trial Court had permitted the defendant to produce secondary evidence without prior proof of loss of the original document---Proof of loss of original document for production of secondary evidence was pre-requisite which could only be done through evidence---Impugned orders passed by the Courts below were not proper and lawful, which were set aside---Trial Court was directed to frame issue with regard to loss of original power of attorney and record evidence and thereafter decide the said issue along with other issues accordingly---Constitutional petition was allowed, in circumstances.

Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 and Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others 2001 CLC 1796 rel.

Malik Arab Hassan Asif for Petitioner.

2020 C L C 1145

[Lahore]

Before Shahid Karim and Rasaal Hasan Syed, JJ

MUHAMMAD MOHSIN YUNAS and others----Appellants

Versus

NATIONAL BANK OF PAKISTAN and others----Respondents

E.F.As. Nos.149 to 154, 265 and 353 of 2016, decided on 3rd March, 2020.

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

----Ss.41 & 51---Civil Procedure Code (V of 1908), O. XXI., R. 58---Bona fide purchasers of property mortgaged with Bank without notice---Bank seeking to auction mortgaged property---Objection petition filed by bona fide purchasers dismissed---Opportunity provided to bona fide purchasers/objectors to lead evidence---Plea of objectors/bona fide purchasers that at the time of purchase of subject property they had consulted the revenue record wherein the factum of mortgage in favour of respondent-Bank was not incorporated, thus, having acquired the property in good faith after exercising reasonable care and due diligence, they were clothed with the status of bona fide purchasers without notice---Held, that objectors should have been allowed an opportunity of evidence, so that their factual stance was properly fleshed out on record to ensure that the plea with regard to prudent behavior could be more deeply and carefully analyzed---Allowing the objectors to substantiate their claim by leading evidence would ensure a more balanced approach---Furthermore the question of any relief/compensation for the objectors under S. 51 of the Transfer of Property Act, 1882 with regard to the construction they had raised on the subject property required recording of evidence---Objectors were not party to the suit and therefore did not have opportunity to support their pleas by evidence --- Appeals were allowed and it was held that objection petitions of the objectors would be deemed to be pending, which shall be decided afresh after framing a specific issue on the plea of bona fide purchasers without notice and also in terms of ingredients of S.51 of the Transfer of Property Act, 1882 by duly providing opportunity of evidence to the parties.

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

----S.51---Improvements made by bona fide holders under defective titles --- Factual inquiry---Application of section 51 of the Transfer of Property Act, 1882 was not a simple question of law rather the factual foundation of the parameters of the said section required it to be investigated and determined so as to render a decision whether transferee could be allowed compensation for improvements or propriety interest in the land on payment of its value.

Barrister Mohammad Ahmed Qayyum, for Appellant (in E.F.A. No.149 of 2016).

Barrister Qadir Buksh for Appellants (in E.F.A. No.265 of 2016 and E.F.A. No.353 of 2016) for Appellants.

Tariq Kamal Qazi for Respondent.

2020 C L C 1178

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MOHAMMAD SAJID----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

W.P. No.14557 of 2019, decided on 27th September, 2019.

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

----S. 5, Sched.---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Suit for jactitation of marriage---Withholding of best evidence---Scope---Petitioner assailed orders passed by courts below whereby suit of respondent for jactitation of marriage was decreed---Validity---Report of Finger Print Bureau clearly mentioned that nikahnama did not bear the signatures of the respondent---Respondent in her plaint as well as evidence had categorically denied having entered into nikah with the petitioner and had stated that she was abducted and raped by the petitioner---Petitioner was required to prove the authenticity of the nikahnama when the same was denied by the respondent---Petitioner himself had appeared in the witness box and had produced his real brother who was also an accused person in the crime---Sole testimony of petitioner's brother was not sufficient especially when the Nikah Registrar and other witnesses were not produced---Presumption could be drawn against the petitioner for withholding best evidence---Suit for jactitation of marriage was rightly decreed in favour of the respondent and against the petitioner---Constitutional petition was dismissed.

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

---Arts. 117 & 118---Burden of proof---Scope---Execution of document---Proof---Scope---When execution of a document is denied by one of the parties, it is for the other party that has to benefit from the said document to prove the genuineness of the same by producing cogent evidence in support of his claim.

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

----Ss. 10 & 11---Stay of suit---Res judicata---Scope---Where previous suits are not dismissed on merits rather due to non-filing of process fee, Ss. 10 & 11, C.P.C. would not apply to the case.

2020 C L C 1184

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD FAYYAZ----Petitioner

Versus

Hafiz LIAQAT ALI and 5 others----Respondents

W.P. No.74234 of 2019, decided on 6th December, 2019.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Specific Relief Act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of document---Amendment in plaint---Plaintiffs during pendency of suit filed application for amendment in the plaint and prayer clause seeking possession of suit property which was allowed---Contention of defendant was that proposed amendment had changed the nature of suit---Validity---Court was to be liberal in allowing amendment in the pleadings which were necessary to determine the matter in issue---No suit be dismissed for the reason that a portion of relief to which the party was entitled had not been claimed in the plaint---Court for amendment of plaint had to examine whether it would substitute or change a cause of action on the basis of which lis had been instituted---Proposed amendment in the present case would not introduce a new cause of action rather same were necessary to decide the real matter in controversy---Plaintiffs were not in possession on the suit property and they should have prayed for the said relief in the plaint---Character of the suit would not change by way of proposed amendment in the present case as suit for declaration could be treated as a suit for specific performance---Party could not be allowed to substitute a new cause of action or introduce a cause of action distinct from the one which was the basis of the suit---Impugned orders had been passed in accordance with law---Constitutional petition was dismissed, in circumstances.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191 and Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 rel.

2020 C L C 1209

[Lahore]

Before Mirza Viqas Rauf, J

IJAZ AHMAD KHAN----Appellant

Versus

EDEN DEVELOPERS (PVT.) LTD. through Chairman Muhammad Amjad----Respondent

Regular Second Appeal No.132 of 2011, heard on 27th February, 2020.

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

----Ss.12 & 22---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement to sell---Time as an essence of contract---Determination of---Procedure---Document produced as "mark" by the party---Evidentiary value---Plaintiff filed suit wherein defendant submitted that remaining sale consideration had not been paid within stipulated period and agreement had been cancelled as time was an essence of contract---Trial Court decreed the suit but Appellate Court dismissed the same---Validity---Time was made essence with the consent of the parties and plaintiff was bound to pay installments as per schedule annexed with the agreement---Plaintiff had not agitated alleged non-performance of the agreement on the part of defendant before any forum---Defendant issued notices to the plaintiff for payment of monthly installments but he had committed default---Even notice for cancellation of agreement was issued to the plaintiff with the direction to pay outstanding amount but he did not pay monthly installments---Amount deposited on behalf of plaintiff had been refunded to him without any objection---Plaintiff was estopped to institute the present suit---None of the party to an agreement could justify his lapse while blaming the other for non-performance of his part---Plaintiff had produced documents as "mark" to prove that defendant had failed to carry out necessary development in terms of agreement---Law did not recognize any such practice and if a document was not produced and proved in accordance with law then it could not be treated as admissible evidence---Time might not be an essence in every agreement and it could be gathered from the facts and circumstances of each case---Agreement to sell did not confer any right to the proposed vendee in the property---Agreement to sell did equip the vendee with a right to file a suit for specific performance for enforcement of the same---Plaintiff was bound to establish his alleged right in the suit property in the light of alleged agreement to sell by leading cogent and convincing evidence---Relief of specific performance was discretionary and it would depend upon judicial conscious of the Court either to grant or refuse the same---Court was empowered to refuse the relief of specific performance even in the cases where agreement had been validly proved by the plaintiff---Plaintiff could not claim the relief of specific performance as a matter of right---Trial Court had misread evidence available on record---Second appeal was dismissed, in circumstances.

State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696; Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 704; " 2017 SCMR 516 and Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

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

----O.XLI, R. 33---Conflict between judgment of Trial Court and First Appellate Court---Effect---Judgment of First Appellate should be given preference over the judgment of Trial Court unless there was any legal infirmity or material irregularity.

Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Mst. Saeeda through her son Muhammad Abid v. Muhammad Naeem and 3 others PLD 2013 Sindh 39. rel.

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

----S.100---Second appeal---Interference---Scope---Judgment of lower appellate court cannot be interfered with in second appeal unless some procedural defect materially affecting such findings is pointed out by the appellant.

Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 rel.

Naveed Shahryar for Appellant.

Muhammad Shahzad Shaukat for Respondent.

2020 C L C 1303

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Messrs SARDAR MOHAMMAD ASHRAF D. BALOCH PRIVATE LIMITED through Authorized Representative----Petitioner

Versus

PUNJAB IRRIGATION DEPARTMENT through Project Director and 6 others----Respondents

Writ Petition No.60432 of 2019, decided on 18th February, 2020.

Punjab Procurement Rules, 2014---

----Rr.5 & 67---Asian Development Bank Procurement Guidelines, paragraph 2.65---International agreement--- Procurement procedure---Grievance Redressal Committee, non-constitution of---Tender in question was financed by Asian Development Bank and petitioner company was declared not technically qualified to compete the tender---Plea raised by petitioner was that Grievance Redressal Committee was not constituted by authorities---Validity---If procurement process funded by Asian Development Bank was carried out under procurement laws of Federal or Provincial Government, then it was against Asian Development Bank Procurement Guidelines and provisions of Loan Agreement with Asian Development Bank---Such was also against R.5 of Punjab Procurement Rules, 2014---As per Asian Development Bank Procurement Guidelines, unsuccessful bidders would be given debriefing to explain reasons of his non-responsiveness at the time of award of contract and if still unsatisfied, bidder could then approach Asian Development Bank in that regard--- Constituting of Grievance Redressal Committee was not covered under Procurement Guidelines of Asian Development Bank and R.5 of Punjab Procurement Rules, 2014, supported the process of procurement followed under financial project---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83 rel.

Barrister Babar Ali Khan for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General Punjab with Qazi Anwar Ali, Procurement Engineer, PMO Canals.

2020 C L C 1314

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUSARAT HUSSAIN----Petitioner

Versus

Mst. ASHRAF SULTANA and 9 others----Respondents

Civil Revision No.1239 of 2016, decided on 16th September, 2019.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1 & O. VI, R. 17---Withdrawal of suit with permission to file fresh one---Plaintiffs filed a suit for declaration on the basis of sale agreement---Application for amendment in the plaint was moved to insert the relief of specific performance during pendency of the suit but same was dismissed---Appellate Court allowed the withdrawal of suit with permission to file fresh suit subject to payment of cost---Validity---Court had discretion for grant of permission to withdraw the suit and file a fresh one when suit was likely to fail due to some formal defects or there were sufficient grounds for the same---Sufficient grounds existed, in the present case, for grant of permission to withdraw the suit so as to file a fresh one---Appellate Court had exercised discretion on legal, cogent and tenable basis while passing the impugned order---Revision was dismissed, in circumstances.

Muhammad Mansha and others v. Sabir Ali 1999 SCMR 1782; Sh. Shajar Hussain v. Haji Abdul Majeed and others 2006 SCMR 913; Pehlwan and others v. Haji Muhammad Murad and others 2005 SCMR 1405 and Ismail v. Fida Ali and Sayyed Iqbal Shabbir PLD 1965 SC 634 rel.

Khan Rustam Khan for Petitioner.

2020 C L C 1390

[Lahore]

Before Ch. Muhammad Iqbal, J

PROVINCE OF PUNJAB through Secretary (Colonies), Board of Revenue, Punjab and others----Petitioners

Versus

MUHAMMAD YAQOOB----Respondent

C.M. No.3263 of 2019 in W.P. No.1049 of 1991, heard on 11th March, 2020.

(a) Fraud---

----Fraud vitiates the most solemn proceedings---Any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled---Any ill-gotten gain achieved by committing fraud cannot be validated under any law.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Khursheed Begum and others v. Inam-ur-Rehman Khan and others PLD 2009 Lah. 552; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Muhammad Akram Malik v. Dr.Ghulam Rabbani PLD 2006 SC 773 rel.

(b) Constitution of Pakistan---

----Art. 199--- Civil Procedure Code (V of 1908), S. 12(2)---Judgment, setting aside of---Fraud---Laches--- Effect--- Authorities assailed judgment passed by High Court in exercise of Constitutional jurisdiction--- Validity--- High Court could decline to intervene or exercise its discretionary and equitable jurisdiction where grant of relief amounted to retention of ill-gotten gains and was competent to pass such order as was necessary for the ends of justice--- If in application under S. 12(2), C.P.C. Court was evinced that main plaint was barred by law and did not disclose any cause of action the Court was competent to reject the plaint and dismiss the suit--- Petitioner had asserted in his Constitutional petition that allotment was made in his favour in year 1953 whereas he filed petition in year 1991 for implementation of order i.e. after lapse of 38 years--- Petitioner remained mum for a period of four decades and did not agitate the matter before competent forum and principle of laches was fully applicable--- High Court in exercise of jurisdiction under S. 12(2), C.P.C. set aside the judgment passed in Constitutional petition---Petition was dismissed in circumstances.

Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Ali Muhammad through Legal Hiers and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi PLD 2002 SC 500; Subhan ud Din and others v. Pir Ghulam PLD 2015 SC 69; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Aslam and others v. Mst.Kundan Mai and others 2004 SCMR 843; Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221; Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708; S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338; Abdul Rasheed v. Ali Bux through L.Rs and others 2016 CLC 1824; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594 and Iqbal Ahmad and others v. Government of Sindh through Secretary and others PLD 2007 Kar. 353 ref.

Waseem Iqbal Butt, Assistant Advocate General for Petitioner.

Nemo. for Respondent.

2020 C L C 1440

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

JUBILEE GENERAL INSURANCE COMPANY LTD.----Petitioner

Versus

RAVI STEEL COMPANY through Proprietor----Respondent

C.R. No.1339 of 2017, decided on 3rd May, 2019.

Civil Procedure Code (V of 1908)---

----S.12(2)---Fraud and misrepresentation---Application under S.12(2), C.P.C. for setting aside of judgment filed during pendency of appeal---Maintainability---Petitioner seeking remedy of appeal and remedy under S.12(2), C.P.C. simultaneously against the same judgment---Effect---Doctrine of election of remedy---Scope---Contents of application filed under S.12(2), C.P.C. as well as grounds of appeal were verbatim/analogous---Petitioner had not claimed that impugned order had been procured through fraud and misrepresentation---Components of the provision of S.12(2), C.P.C. were missing in the application---Pleadings without specifying essential details per se were not sufficient to declare the order having been obtained by practising fraud---Petitioner had failed to make out a case of fraud and misrepresentation whereas other grounds were not enough to bring his case within the ambit of relevant provision---Any order passed erroneously or illegally could not be assailed under S.12(2), C.P.C.---Application under S.12(2), C.P.C. would lie only if order/judgment / decree was obtained by practising fraud---Section 12(2), C.P.C. was not substitute of an appeal and same could not be equated or treated at par to the remedy of review or revision---Remedy provided under S.12(2), C.P.C. could not be availed on the ground that decree had been obtained on the basis of perjured evidence---Questions with regard to credibility of evidence produced in the case was to be decided therein---Application under S.12(2), C.P.C. would not be maintainable merely on the ground that claim was false or lis was incompetent---Decree could not be challenged on merits when applicant was aware of the facts forming the application but had not asserted the said facts in the Court before whom proceedings had been finalized---Findings based on wrong exercise of jurisdiction could only be agitated under S.96 or 115, C.P.C.---Scope of S.12(2), C.P.C. was restricted and applicant was required to prove that fraud and misrepresentation had been committed by the adversary in connection with the proceedings---Applicant could not be allowed to reopen the matter which had been finally disposed of---Applicant prior to filing of present petition had already preferred an appeal and had remained unsuccessful in the same---Applicant against the impugned judgment had three remedies i.e. appeal, review and an application under S.12(2), C.P.C. and one remedy did not exclude the other---Once petitioner had availed the remedy of appeal then Court could not entertain application under S.12(2), C.P.C.---Applicant had no lawful excuse or justification to re-agitate the settled controversy again by resorting to another/different remedy---Revision being not maintainable, was dismissed, in circumstances.

R.V. Narayanaswami Chetti v. Soundarabajan & Co AIR 1958 Madras 43; Messrs Raj Spinning Mills v. Messrs A.N.G.King Ltd. AIR 1959 Punjab 45; Haji Moosa Haji Oomer v. Ahmed Abdul Ghani and another PLD 1968 Kar. 320; Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd. 1989 CLC 2117; Haji Habib & Co. v. Alpha Insurance Co. Ltd. 1992 CLC 1586; Muhammad Iqbal through duly authorized Attorney v. Muhammad Ahmed Ramzani and 2 others 2014 CLC 1392; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Mst. Dilbar Hamid v. Dr. Ghulam Bheek Khan and others 1997 SCMR 610; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Dil Mir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Muhammad Hussain v. Mukhtar Ahmad 2006 SCMR 71; Mst. Sabiran Bibi and others v. Ahmed Khan and others 2008 SCMR 226; S.M. Sohail v. Mst. Sitara Kabir-ud-Din and others PLD 2009 SC 397; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358; Haji Farman Ullah v. Latif ur Rehman 2015 SCMR 1708 and Terrance Williams v. Pennsylvania 2016 SCMR 1561 distinguished.

Waheed Ullah Khan and 2 others v. Kalim Ullah and 3 others PLD 1977 SC 75 (sic); Rehmat Ali v. Additional District Judge 1988 SCJ 761 (sic); Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 and Major (Retd.) Pervez Iqbal v. Muhammad Akram Almas and others 2017 SCMR 831 rel.

Hamid Khan and Tariq Saeed for Petitioner.

Zaheer-ud-Din Babr, Rana Itizar and Atif Mohtashim Khan for Respondents.

2020 C L C 1480

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD SHAFI----Petitioner

Versus

NOOR NABI----Respondent

Civil Revision No.579 of 2020, heard on 15th June, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2 --- Specific Relief Act (I of 1877), S. 12----Suit for specific performance of contract to sell immovable property---Temporary injunction, grant of---Irreparable loss---Scope---Contention of plaintiff, inter alia, was that plaintiff paid entire sales consideration for immoveable property to defendant, and took possession of the same, however, defendant now sought to alienate said property, therefore plaintiff sought that such alienation be restrained --- Validity----Claim of plaintiff was based on an alleged agreement, and statement that defendant received a huge sales consideration and defendant on other hand denied execution of such agreement and claimed that plaintiff was in possession of property as a tenant ---- High Court observed that in said circumstances, plaintiff had a prima facie case, and would suffer huge loss if temporary injunction was not granted and furthermore balance of convenience also tilted in plaintiff's favour---High Court allowed application under O.XXXIX, Rr.1 & 2, C.P.C.---Revision was disposed of, accordingly.

Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 and Mst. Fatima Bibi and others v. Mst. Sakina Bibi and others 2002 SCMR 1417 rel.

Ch. Muhammad Jamil for Petitioner.

Ch. Sajid Mehmood Kahloon for Respondent.

2020 C L C 1496

[Lahore]

Before Masud Abid Naqvi, J

ABDUL MAJEED AKHTAR----Appellant

Versus

MUHAMMAD ZEESHAN SHOUKAT----Respondent

R.F.A. No.1190 of 2016, heard on 18th March, 2019.

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

----O.XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), S.118---Suit on negotiable instrument---Presumption as to negotiable instrument---Negotiable instrument drawn without consideration---Burden of proof---Scope---Appellant/defendant assailed order passed by Trial Court whereby respondent's/plaintiff's suit for recovery of amount under O.XXXVII, Rr.1 & 2, C.P.C., was decreed---Validity---Defendant himself had admitted that he had filled and signed the cheque (negotiable instrument in question) but had stated that it was a guarantee cheque---Onus to prove that the cheque was issued as a guarantee was on the defendant, after admission of the execution of cheque, but he failed to prove his version through oral or documentary evidence---Impugned judgment and decree did not suffer from any infirmity, legal or factual, requiring interference, therefore, appeal was dismissed.

Muhammad Azizur Rehman v. Liaqat Ali 2007 SCMR 1820; Muhamad Ali v. Wali Muhammad 2015 CLD 1820; Abdul Karim v. Muhammad Idrees 2014 CLC 1001 and Syed Zawar Hussain v. Syed Riazul Abbas Sherazi 2015 MLD 890 ref.

Muhammad Azizur Rehman v. Liaquat Ali 2007 CLD 1542 rel.

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

----S.118---Presumption as to negotiable instrument---Scope---Initial presumption was that the negotiable instrument was made, drawn, accepted or endorsed for consideration and in a case to the contrary, onus was on the person who was claiming to have executed a guarantee cheque.

Muhammad Azizur Rehman v. Liaquat Ali 2007 CLD 1542 rel.

Ch. Muhammad Ashraf Jalal for Appellant.

Shahid Mahmood Minhas for Respondent.

2020 C L C 1524

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD SAJID----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petition No.14672 of 2019, decided on 1st October, 2019.

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

----S.17-A---Suit for maintenance---Provisions of S.17-A, Family Courts Act, 1964 were mandatory in nature---Non-payment of interim allowance within the time fixed---Consequence---Petitioner called in question order passed by Judge, Family Court whereby he, while striking off the defence of petitioner, decreed the suit for recovery of maintenance allowance in favour of minors---Validity---Petitioner had skipped the payment of interim maintenance allowance whereafter the Trial Court had struck off the defence of the petitioner---Use of word "shall" in S.17-A of Family Courts Act, 1964, had clarified the intention of the legislature that in case of non-compliance of the order for payment of interim maintenance allowance within the time fixed by law, not only the defence was to be struck off but as a consequence thereof, the suit was to be decreed; therefore, the said provision had to be treated as mandatory in nature---Constitutional petition was dismissed.

The Collector of Sales Tax, Gujranwala v. Super Asia Muhammad Din & Sons 2017 SCMR 1427 ref.

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

----S.17-A---Constitution of Pakistan, Art. 199---Fixation of maintenance allowance---Finding of fact---Constitutional petition---Maintainability---Fixation of maintenance allowance is a finding of fact which cannot be substituted in constitutional jurisdiction of High Court unless the same is found to be perverse, based on erroneous exercise of jurisdiction or based on mis-reading or non-reading of evidence available on record.

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

----Ss.17-A & 14(2)---Constitution of Pakistan, Art.199---Suit for maintenance---Fixation of maintenance allowance---Appeal---Scope---Constitutional petition---Maintainability---No appeal lies against the order of fixing maintenance allowance at the rate of Rs. 2500 per month---Constitutional petition can only be entertained in case of any illegality, perversity or erroneous exercise of jurisdiction.

(d) Administration of justice---

----Where the law requires the thing to be done in a particular manner it should be done in that manner alone and such dictate of law cannot be termed as a mere technicality and would be non-compliance of the legislative intent.

Mst. Shahida Bibi and others v. Habib Bank Ltd. and others PLD 2016 SC 995 and Zia ur Rehman v. Syed Ahmad Hassan 2014 SCMR 1015 ref.

2020 C L C 1548

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD YOUSAF----Petitioner

Versus

DEPUTY LAND COMMISSIONER, MULTAN / ADDITIONAL DEPUTY COMMISSIONER (REVENUE), MULTAN and 3 others----Respondent

Writ Petition No.11935 of 2019, decided on 4th February, 2020.

Land Reforms Act (II of 1977)---

----S.27---Land Reforms Regulation, 1972, Para 18(1) & (3)---Void order---Jurisdiction---Scope---Order of Federal Land Commission, non-implemention of---Federal Land Commission allowed application filed under para. 18(1) of Land Reforms Regulations, 1972 by petitioner---Authority i.e. Deputy Land Commissioner declined to implement the order on the plea that the same was passed without jurisdiction---Validity---If anyone was aggrieved of order passed on judicial side after considering statutory provisions and respective rights of parties and the order was sought to be challenged on the ground of jurisdiction, the same could be either by way of challenging judicial order before a superior Court in the hierarchy of jurisdiction or before High Court in its Constitutional jurisdiction--- Authority subordinate to the forum which passed the order could not be allowed in law to comment upon validity of that order by assuming it to be without jurisdiction or violative of some provisions of law---Such Authority travelled beyond the scope of its jurisdiction while acting as appellate forum of its superior authority, i.e. Federal Land Commission---Course adopted by said Authority could not by any reason be countenanced---Subordinate Authority did not even record his reason for treating order of his superior judicial forum as without lawful jurisdiction or how the same was not tangible in law---High Court set aside the order passed by subordinate Authority as the same was patently illegal, without jurisdiction---Constitutional petition was allowed in circumstances.

Suo Motu Case No. 24 of 2010 and Human Right Case No.57701-P of 2010 and others PLD 2011 SC 963 and Shahabzadi Maharunissa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358 ref.

Abdul Rasheed Sheikh for Petitioner.

2020 C L C 1591

[Lahore]

Before Jawad Hassan, J

MUNEEB TARIQ and another----Petitioners

Versus

PUNJAB PUBLIC SERVICE COMMISSION and 2 others----Respondents

Writ Petition No.35254 of 2020, decided on 10th August, 2020.

(a) Constitution of Pakistan---

----Art.5(2)---"Obedience to the Constitution and the law is the inviolable obligation of every citizen …"--- Word 'inviolable' --- Connotation --- Word "inviolable" used in Art.5(2) of the Constitution meant that it was never to be broken and infringed --- Laws were always made not to be violated but to be obeyed --- Respect for law was never maintained by force but by the appreciation of the reasons, appreciating its veracity and through obedience.

President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 and Suo Motu Case No.15 of 2009 PLD 2012 SC 610 ref.

(b) Constitution of Pakistan---

----Art. 5(2)---Sovereignty, doctrine of ---Scope---Obedience to the law---In order to secure fundamental rights, every citizen had to adhere to any Standard Operating Procedures (SOPs) issued from time to time by the Government which were binding on them under the doctrine of sovereignty.

Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836; National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453 and Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066 ref.

(c) Punjab Public Service Commission Ordinance (II of 1978)---

----S.7(a)---Public interest litigation---Punjab Management Services (PMS) competitive examinations --- Date of examinations --- By way of impugned notification issued by the Punjab Public Service Commission (PPSC) date of PMS exams was announced as 22-08-2020 instead of December, 2020, which was the usual month every year for holding such examinations---Pleas of petitioners that due to COVID-19 ('Corona') virus all educational/academic institutions and book depots remained closed, therefore, the petitioners could not prepare themselves for such exams; that Corona virus was still spreading and affecting the lives of people, therefore, by conducting the exams earlier there was danger to the lives of the petitioners, and that the petitioners approached the PPSC to conduct the examinations as per routine in December but examinations were not being postponed, which infringed the fundamental rights of the petitioners guaranteed under the Constitution---Held, that as all the State functionaries, bodies, authorities, Courts and other State departments remained functioning during the situation of COVID-19 and nothing was suspended or halted, therefore, mere holding of examination on 22-08-2020 by the PPSC would not violate the fundamental rights of the petitioners --- Standard Operating Procedures (SOPs) issued by the PPSC for the written examination comprehensively provided precautions to be taken by the candidates and invigilators before and after the examination and during the conduct of examination as well---According to PPSC, examination were being held with all safety measures---Clearly, there were no cogent reasons to postpone the PMS examination as was sought by the petitioners---High Court directed that PPSC was to conduct the examinations as per schedule by strictly following the restrictions mentioned in the SOPs and the candidates shall also be bound to obey said SOPs; that for the protection of lives of the candidates, the PPSC was to ensure strict observance of SOPs laid down by the National Command and Operations Center (NCOC), and the Provincial Government, during the examinations; that all the candidates appearing in examination were also bound to follow the internal SOPs for the written examination in PPSC, and that even if examination were conducted in the month of December, again all the concerned would have to strictly follow the advisories/ guidelines of Government regarding social-distancing and sanitization etc. at the examination centres---Constitutional petition was disposed of.

Mian Asif Mehmood for Petitioner No.1.

Ishtiaq Ahmed Khan, Additional Attorney General for Pakistan.

Ms. Saida Malik, Assistant Attorney General for Pakistan.

Barrister Muhammad Umair Khan Niazi, Additional Advocate-General on Court's call.

2020 C L C 1630

[Lahore]

Before Muhammad Ameer Bhati and Atir Mehmood, JJ

Mst. SARDARAN BIBI and others----Appellants

Versus

TOWN COMMITTEE KHUDDIAN through Tehsil Nazim and another----Respondents

R.F.A. No.560 of 2013, heard on 10th March, 2020.

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

----Ss. 18, 20 & 23---Civil Procedure Code (V of 1908), S.79--- Constitution of Pakistan, Art. 174---Reference to court---Requirements---Enhancement of compensation---Market value---Determination---Procedure---Contention of petitioners was that Referee Court should have considered the price of land prevailing at the time of issuance of award instead of the notification---Plea of authorities was that Provincial Government had not been impleaded in the reference which was liable to be rejected due to non-joinder of necessary party---Validity---Price of acquired land was to be determined while considering various factors including nature, location, sale price of adjoining lands and potentiality upto issuance of notification which would go till announcement of award---Entitlement of landlord to claim the price of land at the time of taking over possession was mandatory consideration---Announcement of award did not affect the price of land---Any period consumed in holding formalities could not be considered as advantage to the landlord for compensation of acquired land---Rights/interest of landlord had been protected under compulsory acquisition charges and compound interest till payment of compensation---Compensation could not be awarded beyond the claim of landlord at the time of issuance of notification---Referee Judge had enhanced compensation according to prevailing price of land at the time of issuance of notification---Issuance of notice in the name of Government or department for whose benefit land had been acquired was mandatory---Referee Court was bound to issue notice to all stakeholders including Government through Collector, acquiring agency and even landlords who had not accepted the price fixed in award irrespective of their non-impleadment---Omission to implead Provincial Government as defendant in the reference was not fatal, in circumstances---Court below had not committed any illegality or irregularity while passing the impugned judgment---Appeal was dismissed, in circumstances.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 and Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115 ref.

Government of N.-W.F.P. and others v. Faiz Muhammad Khan and others PLD 2007 SC 614; Civil Aviation Authority through Project Director and others v. Rab Nawaz and others 2013 SCMR 1124; Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28; Land Acquisition Collector, Abbottabad and others v. Gohar-ur-Rehman Abbasi 2009 SCMR 771; Fazal Haq College through Vice-Chairman v. Said Rasan and others PLD 2003 SC 480; Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870; Water and Sanitation Authority and another v. Niaz Muhammad and 5 others 1994 SCMR 1648; Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others 2016 SCMR 1141; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311; Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others PLD 1991 SC 143 and Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P. Traffic, Lahore and others 1996 SCMR 826 rel.

(b) Interpretation of statutes---

----Special provision would take precedence over the general provision.

Ahmad Waheed Khan for Appellants.

Ghulam Farred Sanotra and Junaid Razzaq, Assistant Advocate General for Respondents.

2020 C L C 1652

[Lahore]

Before Mirza Viqas Rauf, J

EJAZ AHMAD through Attorney----Petitioner

Versus

RAI MUHAMMAD RIAZ (DECEASED) through Legal Heirs and others----Respondents

Civil Revision No.226132 of 2018, heard on 4th June, 2020.

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

----O.IX, Rr.8 & 9---Specific Relief Act (I of 1877), S.12---Suit for specific performance---Suit was dismissed for non-prosecution---Application for restoration of suit---"Sufficient cause"---Scope---Application for restoration of suit dismissed in default was dismissed by the Trial Court but Appellate Court accepted the same---Validity---Earlier suit was dismissed for want of prosecution but same was restored on the basis of conceding statement of defendant subject to payment of costs---Plaintiff had not paid said costs and even no application for extension of time for payment of the same had been moved---Non-deposit of costs would mean that suit was never restored---Application for restoration of suit was lacking any sufficient cause in the present case---Applicant had moved present application on the basis of general and vague assertions wherein no reason for his absence or his counsel had been mentioned---Application was not supported by an affidavit of the counsel---Applicant for seeking indulgence of the Court had to demonstrate "sufficient cause' for his non-appearance---Suit was to be decided on merits instead of knocking out the parties on the basis of technicalities but whenever a suit was dismissed in default then plaintiff should mention a cause for such lapse---Provisions of O.IX, R.9, C.P.C. could not be dispensed with merely on the ground that suit was to be decided on merits---Court had to keep the scale of justice equal and provisions of O. IX, R.9, C.P.C. could not be used for the advantage of one party and disadvantage of the other---Parties should be vigilant while prosecuting their cause---Trial Court had rightly applied the law to the subject and application for restoration of suit was dismissed through a well-reasoned order---Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored---Application for restoration of suit was dismissed, in circumstances---Revision was allowed accordingly.

Muhammad Arshad & CO. through Muhammad Arshad v. Zila Council, Pakpattan Sharif, through District Nazim Pakpattan Sharif and others 2006 SCMR 1450 and Muhammad Tariq Mansoori v. Abdul Ghani Mansoori and 3 others 2013 CLC 1763 rel.

(b) Words and phrases---

----'Sufficient cause'---Meeting.

Black's Law Dictionary 11th Edition; Merriam-Websters's Dictionary of Law 17th Printing Harrisonburg VA August 2014; Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi 5 others PLD 1964 SC 236 and Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 rel.

Imran Muhammad Sarwar for Petitioner.

Malik Anwar-un-Nabi for Respondents Nos.1(i) to 1(iv).

Muhammad Qamar-uz-Zaman for Respondents Nos.2(i) to 3.

Nemo. for Respondents Nos.4(i) to 4(iii).

2020 C L C 1687

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Haji MUHAMMAD AMEER----Petitioner

Versus

SALEEM NAWAZ and 2 others----Respondents

W.P. No.7381 of 2016, heard on 5th June, 2020.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.IX, R.6---Qanun-e-Shahadat (10 of 1984), Arts. 58, 117, 120 & 129 illustration (e)---Presumption of correctness---Extent---Absence of defendant---Proof---Onus to prove---Trial Court, in suit for specific performance of agreement to sell, proceeded ex-parte against defendant for his non-appearance but Lower Appellate Court in exercise of revisional jurisdiction set aside the order--- Validity--- Non-examination of process server who two times tried to effect service upon defendant was a factor to disbelieve service of process upon defendant--- Presumption of correctness was attached to judicial proceedings but whenever those were called in question then it was sine qua non for the beneficiary to prove the same as per mandate of Art.58 of Qanun-e-Shahadat, 1984---To bring case under illustration (e) to Art. 129 of Qanun-e-Shahadat, 1984, solitary statement of plaintiff was insufficient---Counsel who purportedly filed power of attorney as well as written statement on behalf of defendant, could be the best evidence to shatter / belie allegations raised by defendant but the same was withheld without any justification---Opinion of expert was one of the modes of producing evidence and if the report was properly proved, the same could be used as corroborative piece of evidence---By not resorting to such exercise, plaintiff himself incurred a presumption against him---Order passed by Lower Appellate Court caused no prejudice to plaintiff, if he had a genuine case who had been given a fair chance to prove his case on merit---High Court under constitutional jurisdiction declined to interfere in the order passed by Lower Appellate Court, as the same was neither coram non judice nor ultra vires, rather the same was made in exercise of lawful authority on the basis of available evidence---Constitutional petition was dismissed in circumstances.

Muhammad Qayyum and 2 others v. Muhammad Azeem through legal heirs and another PLD 1995 SC 381 rel.

Sh. Naveed Shahryar, Ms. Humaira Bashir Chaudhry and Muhammad Shafiq Ahmad for Appellant.

Malik Muhammad Imran Joyia and Rana Muhammad Ashraf Khan for Respondent No.1.

2020 C L C 1701

[Lahore]

Before Ch. Muhammad Iqbal, J

HASSAN AHMED KHAN KANWAR and others----Petitioners

Versus

ADNAN HASSAN and others----Respondents

Civil Revision No.9472 of 2019, heard on 17th March, 2020.

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

----S.5, Sched---Suit for recovery of maintenance allowance against grand-parent of minor---Execution petition---Objection---Suit was decreed with the observation that minor would be entitled to get the maintenance allowance from the person having administration of property of his deceased father---Contention of petitioners was that grand-father of minor had died and his legal heirs were not bound to pay maintenance allowance to the minor---Objection petition was dismissed concurrently---Validity---Land owned by the deceased father of minor was in the possession of petitioners---Petitioners were bound to pay maintenance allowance to the minor, in circumstances---Executing Court could not go beyond the decree rather to execute the decree in letter and spirit---Minor had right to receive the maintenance as well as fruits of his owned share of land till handing over the said land to minor---Petitioners were bound to pay maintenance allowance till they were enjoying the possession of land owned by the deceased father of minor---Courts below had rightly passed the impugned orders and no illegality had been committed---Revision was dismissed, in circumstance.

Syed Riaz Ahmad Shan and another v. Dayal Singh College Trust Society and another 1972 SCMR 237; Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Allied Bank Limited v. Messrs Fazal Vegetable Ghee Mills and others 2019 CLD 441; Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983; Messrs British Biscuits Company (Pvt.) Limited v. Messrs Atlas Investment Bank Limited 2005 CLD 674; Khurshid Akbar v. Mian Manzur Ahmed and another 1982 SCMR 824; Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5; Muhammad Feroz 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.

(b) Supreme Court Rules, 1980---

----O. XX---Mere filing of a petition to appeal or an appeal before the Supreme Court would not prevent execution of the decree or order appealed against.

Ghulam Farid Sanotra for Petitioner.

Haji Muhammad Yousaf Khokhar for Respondent No.1.

2020 C L C 1733

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD KAMRAN----Petitioner

Versus

ABDUL HAFEEZ BUTT----Respondent

R.F.A. No.158812 of 2018, heard on 6th June, 2018.

(a) Evidence----

----Parties were to produce best available evidence and failure to produce same would give rise to presumption that had such evidence been presented / produced, then the same would have been unfavourable to party withholding such evidence.

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

----Arts. 78 & 72---Document taken in evidence, proof of ---No objection by defendant regarding admissibility and proof of such document---Proof of signature and handwriting of person alleged to have signed or written document produced in evidence --- Scope--- Document's production in evidence and its admission were two different subjects and a document could be produced in evidence which was always subject to admission as required under Art. 78 of Qanun-e-Shahadat, 1984---Courts were vested with authority and jurisdiction to ascertain genuineness and authenticity of any document in order to arrive at a just and fair conclusion on parameters of said Article---When a document had been exhibited in evidence without any objection from opposite party, then same was deemed to be proved in all aspects.

Jamshed Ahmad Khan Dasti v. The State and another (Criminal Appeal No.176 of 2013); Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Ghulam Muhammad v. United States Agency for International Development (US. AID) Mission, Islamabad and another 1986 SCMR 907; Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137; Muhammad Rashid Khan v. Noor Muhammad Khan and 2 others 2002 CLC 749; S.A.K Rehmani v. The State 2005 SCMR 364; Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315; Muhammad Azizur Rehman v. Liaquat Ali 2007 CLD 1605; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Alhaj Diwan Bukhtiar Said Muhammad v. Diwan Maudood Masood 2006 YLR 2517; Muhammad Imran Khan and another v. Ehsanullah and others 2016 MLD 418; Naeem Tufail v. Jubilee Insurance Company Ltd. through Chairman and another 2017 CLD 1122; Muhammad Shafi v. Ashiq Hussain 2017 CLD 1593 and Muhammad Nawaz v. Qazi Muhammad Rashid 2018 CLD 104 ref.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 and Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 rel.

Javaid Anwar Janjua for Appellant.

Maher Abdul Shakoor for Respondent.

2020 C L C 1779

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

REHAN MAHMOOD and others----Petitioners

Versus

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD and others----Respondents

Writ Petition No.28472 of 2020, decided on 30th June, 2020.

Constitution of Pakistan---

----Arts. 189 & 199---Civil Procedure Code (V of 1908), S.11---Constitutional petition---Res-judicata, principle of---Petitioner assailed the matter which had already been finalized up to the Supreme Court---Validity---No scope was available to reopen pandora's box buried for all times by the last Court of the State, whose verdict was not merely culmination of litigation rather in terms of Art. 189 of the Constitution that pronouncement was binding on all Courts of Pakistan--- Doctrine of res-judicata did not merely prevent future judgment from contradicting earlier ones but also prevented litigants from multiplying litigations--- Such type of false / baseless litigation needed to be nipped / buried at its inception, otherwise real controversies among people requiring prompt attention were likely to be prolonged under its heap--- High Court declined to interfere in the matter and imposed cost upon petitioners---Constitutional Petition was dismissed in circumstances.

Khurshid Ahmad and others v. Rana Mumtaz Ahmad and others 2016 SCMR 679; Sh. Muhammad Rafique Goreja and others v. Islamic Republic of Pakistan and others 2006 SCMR 1317; Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat and 4 others PLD 1976 Lah. 396; Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 and Asif Jah Siddiqi v. Government of Sindh and others PLD 1983 SC 46 ref.

Talaat Farooq Sheikh and Muhammad Shafique Ahmad for Petitioners.

Syed Muhammad Aslam Rizvi, Assistant Attorney General for Respondents Nos.1 and 3 to 6 on Court's call.

2020 C L C 1813

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ATIF IQBAL and others----Petitioners

Versus

ZEESHAN ALI and others----Respondents

Writ Petition No.13884 of 2020, decided on 2nd July, 2020.

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

----S. 144---Suit for recovery of possession---Application for restitution---Scope---Petitioners assailed order passed by courts below whereby they were directed to restore the possession of suit property to the respondents---Validity---Petitioners, in satisfaction of ex parte judgment and decree, had taken over possession of the property from respondents but subsequently the said decree was set aside by High Court---Court was bound to perform its statutory duty to cause restitution, as such the concurrent orders of the lower fora putting the parties at the place prior to ex parte decree were perfectly passed---Constitutional petition was dismissed with costs.

S.N. Banerji and another v. Kuchwar Lime and Stone Co., Ltd. (in Liquidation) and another AIR 1941 PC 128 ref.

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

---- S. 144 --- Application for restitution---Actus curiae neminem gravabit---Scope---Doctrine of restitution is based upon cardinal maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man)---Maxim: contemplates a case where property was received through order of the Court, which was later on reversed or varied; in such situation, it becomes wrongful possession hence, imperative upon the beneficiary of said erroneous order/decree to make restitution to the other party what he had lost, otherwise Court is armed with the powers to place the applicant in the position in which he would have been, if the order had not been made, else it would be inequitable and unjust---Concept of restitution is as old as the law itself---Section 144, C.P.C., provides procedure, whereas the power to order restitution is inherent in Court and is sparingly exercised whenever justice demands---Expression 'the act of the Court' does not mean merely the act of primary Court or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court, which entertains jurisdiction over the matter, upto the highest Court which finally disposes of the case---Court reversing the order/ decree need not specifically direct restitution of the property, rather such right arises automatically, which is enforceable before the Trial Court---Even any subsequent event cannot defeat the right of restitution, rather it is to be enforced against the person, who was benefited under such order / decree as well as his transferee or assignee, even if such person was not a party to the proceedings in which such order or decree was reversed.

K. Anantharam Singh and another v. Marwadi Thara Chand and others AIR 1936 Madras 634; S.A Latif v. J.B. Dubash and 5 others PLD 1970 Kar. 220; Zia Ullah v. Muhammad Hussain Afzal and 3 others 2003 CLC 1321 and Parvaiz and 4 others v. Muhammad Ramzan and 5 others 2009 CLC 513 ref.

(c) Maxim---

----Actus curiae neminem gravabit---Scope---Expression 'the act of the Court' does not merely mean the act of primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court, which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case.

K. Anantharam Singh and another v. Marwadi Thara Chand and others AIR 1936 Madras 634; S.A Latif v. J.B. Dubash and 5 others PLD 1970 Kar. 220; Zia Ullah v. Muhammad Hussain Afzal and 3 others 2003 CLC 1321 and Parvaiz and 4 others v. Muhammad Ramzan and 5 others 2009 CLC 513 ref.

Ch. Abdul Majeed, Zahid Majeed and M. Shafique Ahmad for Petitioners.

Muhammad Shahid Tasawar Rao for Respondents.

2020 C L C 1835

[Lahore]

Before Ayesha A. Malik and Asim Hafeez, JJ

Mst. ALAM BIBI through L.Rs.----Petitioner

Versus

KASB BANK through Manager and others----Respondents

E.F.A. No.777 of 2002, heard on 18th February, 2020.

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

----S. 52---Civil Procedure Code (V of 1908), S. 12 (2)---Auction of suit property had been set aside---Subsequent transferee from the auction purchaser---Scope---Lis pendens, principle of---Applicability---Withdrawal of appeal---Effect---Principle of acquiescence---Applicability---Application under S.12(2), C.P.C.---Applicant purchased suit land from the auction purchaser during pendency of appeal---Sale auction of suit property was set aside in appeal---Contention of applicant was that he had not been afforded an opportunity to defend his rights---Validity---Transaction of sale inter se applicant and auction purchaser had been completed during pendency of appeal---Principle of lis pendens was applicable in the matter---No independent right in the suit property could be claimed or conferred on subsequent transferee independent or conclusive from alleged rights of auction purchaser when auction had been set aside---Interest of auction purchaser and subsequent transferee was common, inseparable and applicant was not entitled to raise or maintain an action independent of auction purchaser---Applicant could not seek determination or re-determination of alleged rights in the property through application under S.12(2) of C.P.C. when rights of unsuccessful auction purchaser accruing out of auction sale had been held ineffective and unenforceable---Auction purchaser had withdrawn appeal filed against impugned judgment whereby auction sale had been set aside---Withdrawal of pending appeal did constitute acquiescence, acknowledgment and acceptance of impugned judgment---Finality extended to the impugned order upon withdrawal of appeal could not be disturbed merely upon application of subsequent transferee under S.12(2) of C.P.C.---Application under S.12(2) of C.P.C. was not a substitute for the remedy of appeal---Applicant could not quarantine itself from the effect and legal implications of S.52 of Transfer of Property Act, 1882 and consequences of withdrawal of appeal---Applicant lacked entitlement and locus standi to maintain present application and to contest order of setting aside of auction sale in independent capacity---Application being not maintainable was dismissed, in circumstances.

Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Mir Wali Khan and another v. Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another PLD 2003 SC 500; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Imtiaz Ahmed v. Additional District Judge and 14 others PLD 2012 Lah. 240; United Bank Limited v. Messrs Exim International and 7 others 2012 CLD 471; Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419; National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283; Mst. Marryam Bibi v. Mst. Murad Bibi and 7 others 2018 MLD 984 and The Punjab Cooperatives Board for Liquidation v. Dr. Nazir Saeed and others 2019 MLD 201 distinguished.

Khalid M. Ishaque, Ex-Advocate-General, Lahore v. The Hon'ble Chief Justice and The Judges of the High Court of West Pakistan, Lahore PLD 1966 SC 328; Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45; Muhammad Mubeen v. Messrs Long Life Builders and others PLD 2006 Kar. 278; Muhammad Sharif Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company PLD 2006 SC 226 rel.

Barrister Muhammad Ahmad Pansota and Zafar Iqbal Mangan for Petitioner.

Nadeem Mehmood Mian, Safdar Hussain Tarrar, Rana Intezar and Malik Shahbaz Ahmed for Respondent No.14.

2020 C L C 1853

[Lahore]

Before Rasaal Hasan Syed, J

GHULAM MUSTAFA and another----Petitioners

Versus

AMTUL QADIR and others----Respondents

W.P. No.23692 of 2011, decided on 19th June, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXIX, R.2(3)---Suit for permanent and mandatory injunction---Ad interim injunction, violation of---Petitioner filed a suit wherein Court directed the parties to maintain status quo with regard to suit property---Constitutional petition for contempt proceedings against respondent was moved for violation of order of status quo passed by the Trial Court---Trial Court appointed local commission for spot inspection of suit property who submitted report that construction on the spot had been demolished and new construction had been raised---Respondent submitted objections against the report of local commission which were dismissed and Court ordered for restoration of previous position of site which was at the date of filing of suit---Contention of respondent was that suit had been dismissed having become infructuous and present constitutional petition for contempt proceedings was not maintainable---Validity---Held, litigants should obey and respect the judicial orders religiously and without any reservation---If anyone had objection to the order then same could be raised before the Court for decision instead of becoming a judge of one's own cause---No one could be allowed to defend illegal actions---Once status quo order had been passed the parties were bound to honour the same and refrain from making any demolition or dispossession of the opposite side from site or raise any illegal construction---Respondent instead of defending before the Court opted to demolish the construction and started new construction---Objections raised by the respondent were misconceived---Mere fact that suit was for permanent injunction and in violation of interim injunctive order illegal demolition had taken place would not make the suit infructuous---Court on satisfaction of violation of order could order the restoration of the property to its original condition as it was at the time of filing suit and thereafter try the suit on merits rather than assuming it to be infructuous---Court while dealing with contempt petition was only required to examine as to whether the order of the Court had been violated---Court would be competent not only to punish the contemnor on account of breach of judicial order but also to direct the removal of illegal construction---No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Bakhtawar and others v. Amin and others 1980 SCMR 89 and Chiragh Din and another v. Chairman, Thal Development Authority 1970 SCMR 29 rel.

Rana Muhammad Shafique Ahmed Khan for Petitioner.

Saif-ul-Haq Ziay for Respondent No.1.

2020 C L C 1870

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

AURANGZEB IFTIKHAR and 3 others----Petitioners

Versus

Sheikh MUHAMMAD HANEEF and 11 others----Respondents

Writ Petition No.84464 of 2017, decided on 28th November, 2019.

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

----Art. 85(5)---Production of public document in the evidence---Scope---Defendants moved application for permission to produce deed of attorney in the evidence---Trial Court dismissed the said application but Appellate Court allowed the same---Contention of plaintiffs was that alleged document had neither been mentioned anywhere in the written statement nor any list of reliance of said document had been produced---Validity---Held, Evidence should not be shut out to exclude documents except when same were suspicious, forged or fabricated, so as to prevent fraud---Objections raised by a party could not be taken in order to penalize the other side for not producing document in time rather it should be given an opportunity to produce evidence, which for good cause could not be produced in time---If Court was satisfied that the document was relevant and necessary for just decision of the case then it could be allowed to be produced at any stage of proceedings---Court had rightly allowed the revision petition by observing that document in question might affect the lis either way---Document to be produced in evidence by the defendants was registered one---Plaintiffs had failed to point out any illegality or legal infirmity in the impugned order passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Rab Nawaz v. Muhammad Nawaz and 2 others 1994 CLC 64; Messrs Al Ahram Builders (Pvt.) Limited v. Pakistan Defence Officers Housing Authority 2003 CLD 1497; Messrs Javed Nazir Brothers (Pvt.) Ltd. v. Al-Barak Islamic Bank and others 2008 CLC 722; Shaukat Usman v. United Bank Limited through President and 6 others 2011 CLC 1407; Moazam Majeed Bajwa v. Tariq Munawar and others 2012 MLD 417; Kohinoor Tobacco Company (Pvt.) Ltd. v. S.M. Idrees Allawala 2013 CLC 1789; Haji Abdul Razzak through L.Rs. and others v. Muslim Commercial Bank Ltd. and others 2016 YLR 2197; Khalid Mehmood v. Rana Muhammad Iqbal 2017 CLC Note 180 and Malik Riazullah v. Mst. Dilnasheen and others 2018 CLC 1569 ref.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322; Mst. Roshan Akhtar v. Muhammad Boota and 4 others 2000 SCMR 1845; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Aslam v. Abdul Wahid and 3 others 2001 CLC 155; Mst. Rashida Begum v. Muhammad Ameen and 4 others 2001 MLD 725; Piran Ditta and 12 others v. Mst. Kundan and 10 others 2006 CLC 1763; Rahim-ul-Wahab and 3 others v. Haii Mir Ghalib Khan 2016 YLR 11; Mst. Riffat Sultana and others v. Nadir Hayat and others 2016 YLR 110; Isfiaan Haider v. Muhammad Hussain and 2 others 2017 CLC 352 and Muhammad Yaqub Brohi v. Ministry of Housing and Works through Secretary and 2 others 2017 CLC 369 distinguished.

Mehmood Tahir Chaudhry for Petitioners.

2020 C L C 1885

[Lahore High Court]

Before Jawad Hassan, J

DEWAN HAMID MASOOD CHISHTI and others----Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petitions Nos.36842 and 37179 of 2020, decided on 24th August, 2020.

(a) Constitution of Pakistan---

----Arts. 199 & 20---Constitutional petition---Freedom to profess religion and to manage religious institutions---Scope---Petitioners assailed order issued by Secretary, Home Department, wherein it was mentioned that due to COVID-19, the Urs of Baba Farid-ud-Din Masood Ganj Shakar (R.A.) shall not be held this year---Held, that Sub-Committee and District Administration had already given conditional approval in the manner that the Baheshti Darwaza shall be opened for two days instead of five days, therefore, there was no need to interfere with the same---Argument of petitioners that their fundamental rights to life and religion guaranteed under the Constitution were infringed due to restrictions imposed by the Sub-Committee was not admissible because all the fundamental rights were subject to law---Article 20 of the Constitution depicted that every religious denomination and every sect thereof had the right to establish, maintain and manage its religious institutions but subject to law, public order and morality---Petitions were disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 4 & 5---Right of individuals to be dealt in accordance with law---Loyalty to State and obedience to Constitution and law---Scope---Article 4 of the Constitution has to be read with Art. 5 of the Constitution, which mentions that it is the inviolable obligation of every citizen to obey command of the Constitution, the Law and the Policies made by the Government---Word "inviolable" used in Art. 5(2) of the Constitution means that it is never to be broken and infringed.

President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 and Suo Motu Case No.15 of 2019 PLD 2012 SC 610 rel.

(c) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Every citizen, in order to secure fundamental rights, has to adhere to the Standard Operating Procedures (SOPs) issued from time to time by the Government, which are binding on him under the Doctrine of Sovereignty.

National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453 and Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066 ref.

Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836 rel.

Raja Taswar Iqbal and Ms. Ammara Liaqat Bhatti for Petitioners (in W.P. No.36842 of 2020).

Syed Muhammad Ali Sherazi for Petitioner (in W.P. No.37179 of 2020).

2020 C L C 1900

[Lahore]

Before Rasaal Hasan Syed, J

Mst. NASEEM AKHTAR----Petitioner

Versus

NAZIR HUSSAIN and others----Respondents

W.P. No.124381 of 2017, decided on 10th March, 2020.

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

----S.25---Custody of minor---Welfare of minor---Second marriage by mother---Effect---Marriage of the parties was terminated and respondent-wife contracted second marriage---Petitioner-husband moved application for custody of minor daughter which was dismissed---Petitioner thereafter filed application for custody of minor son which was dismissed by the Guardian Court but Appellate Court accepted the same---Validity---Minor was living with his mother since his birth who was taking care of his health and education---Minor daughter was also living with the mother---Petitioner filed an application for custody of minor daughter but he did not ask for the custody of minor son---Earlier petition for custody of minor daughter was also filed on the plea of second marriage of mother---Minors were getting regular education while living with their mother---Minor son had appeared before the Court and had expressed his desire to continue his custody with the mother---Welfare of minor did lie with his mother instead of father---Mere fact that mother had entered a second wedlock would not give preponderance while considering welfare of the minor---Mother's custody should not be disturbed if she was properly looking after the minor and second husband was also extending same love and affection towards the minor---Guardian Court had taken into consideration all the material facts with regard to welfare of minor---Appellate Court was influenced by the fact that mother had remarried---Petitioner-father did intend to snatch the custody of minor from the mother and keep him in isolation by depriving of company of mother and sister---Father was not interested in the welfare of the minor, in circumstances---Child had to be a part of normal, integrated and unified family---Children did become a roller coaster ride in life or rolling stones stumbling between the whims and caprice of two estranged parents who were unable to survive as husband and wife---Court was not to divide custody of minors, it would violate their right of togetherness---Guardian Court had passed well-reasoned order for the welfare of minor son but Appellate Court had ignored the real factors pertinent to the welfare of minor---Impugned order passed by the Appellate Court was result of mis-reading and non-reading of evidence which was set aside while order of Guardian Judge was restored---Constitutional petition was allowed accordingly.

Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Sardar Hussain v. Mst. Parveen Umer and 6 others 2003 YLR 3054; Mst. Firdous lqbal v. Shifaat Ali and others 2000 SCMR 838; Sugran Bibi v. Munawar Akram and 2 others 2019 MLD 236 and Mst. Ruqayya Yasmin v. Muhammad Riaz and others 1991 MLD 166 rel.

Rao Nisar Ahmad for Petitioner.

2020 C L C 1910

[Lahore]

Before Jawad Hassan, J

Mst. MOTIA MASOOD through Special Attorney----Petitioner

Versus

MUHAMMAD YASIR and another----Respondents

W.P. No.21296 of 2012, decided on 6th April, 2017.

Family Courts Act (XXXV of 1964)---

----S.5, Sched---Suit for recovery of dowry articles---Cross-examination, right of---Scope---Family Court closed right of cross-examination of plaintiff upon the witnesses of defendant---Contention of plaintiff was that sufficient opportunities had not been granted for cross-examination upon the witnesses of defendant---Validity---Family Court had not granted sufficient opportunities to the plaintiff to cross-examine the witnesses of defendant---Sixteen opportunities had been afforded to the defendant to produce his evidence who had produced his evidence only on four dates of hearing---Family Court was not justified in closing the right of cross-examination of plaintiff, in circumstances---Right to cross-examination was a valuable right of the party and it was meant for discovering truth---No one should be deprived from the said right lightly---Opportunity to cross-examine a witness must be real, fair and reasonable---Rules of procedure were meant to advance justice and to preserve right of litigants---High Court granted one opportunity to the plaintiff to cross-examine the defendant and his witnesses subject to payment of costs---Impugned order passed by the Trial Court was set aside and Family Court was directed to provide one opportunity to the plaintiff to cross-examine the defendant and his witnesses---Constitutional petition was allowed, in circumstances.

Messrs Ijaz Nizam v. NIB Bank and others 2017 CLD 361 rel.

Mahmood Tahir Chaudhry for Petitioner.

2020 C L C 1922

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD RAFI ZAFAR----Petitioner

Versus

MUHAMMAD DIN SHAH through L.Rs. and 2 others----Respondents

Civil Revision No.1889 of 2010, heard on 12th March, 2019.

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

----Art.76---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Limitation---Proof of document by leading secondary evidence---Requirements---Suit was dismissed on the grounds that same was time barred and plaintiff had failed to prove agreement to sell---Validity---Plaintiff was bound to pay remaining consideration amount within the time for which Fard was valid---Nothing was on record to establish that plaintiff had requested for execution of sale deed which had been turned down on behalf of defendant---Court was bound to examine the question of limitation even if it had not been raised on behalf of defendant---Present suit was time barred---Plaintiff had produced copy of agreement to sell alleging that original one had been lost even before filing of suit---Party before tendering secondary evidence must prove either loss of document or its possession with the other side---Plaintiff before getting permission from the Court for leading secondary evidence must prove loss of original document---Plaintiff had failed to prove loss of original agreement to sell in the present case---Courts below had not committed any illegality or irregularity while excluding agreement to sell from its consideration---Application for secondary evidence without proof of loss of a document was not maintainable---If any document had been brought on record as secondary evidence then without proof of loss of original copy of said document could not be read in evidence and same had to be excluded from consideration---Courts below in absence of evidence of proof of loss of original document had not committed any illegality or irregularity by excluding secondary evidence from consideration---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237 ref.

Dr. M. Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

Abdul Shakoor Chaudhry for Petitioner.

Mahmood Tahir Chaudhry and Khalid Sheraz for Respondents.

2020 C L C 1950

[Lahore]

Before Shahid Waheed, J

Mst. BALQEES BEGUM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondent

W.P. No.32414 of 2015, decided on 24th September, 2020.

(a) Administration of justice---

----Law and equity did not assist carelessness and therefore law must take its course, and where a party did not appear for a long period of time, same must be proceeded against ex parte.

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

----Art.76(c)---Primary and secondary evidence---Production of documents---Cases in which secondary evidence relating to document may be given---Nature and scope of Art. 76(c) of Qanun-e-Shahadat, 1984---Original document, if it existed and was available, then same being the best evidence, must be produced ---- Such document, if it could not be produced due its loss, then secondary evidence was admissible --- Rationale of such principle was when a person loses the higher proof, then such person may offer the next best proof in his / her power---So long as higher or superior evidence was within possession of a person, or may be reached by such person, then no inferior proof in relation to the same may be given---Article 76(c) of the Qanun-e-Shahadat, 1984 was designed only for protection of person who in spite of his / her best efforts was unable from circumstances beyond his / her control able to place before the court primary evidence as required by law---Article 76(c) of Qanun-e-Shahadat, 1984 was not intended to be used for benefit of person who deliberately or with sinister motives refused to produce document which was in his / her possession, power or control---Party tendering secondary evidence must prove existence and execution of such document directly if possible or presumptively where not and then establish its loss either by admission of the adversary or by proof that it could not be found after diligent search---Sufficiency of search necessary to let in secondary evidence was preliminary question for a court which would vary according to nature of document itself, the custody it was in, and all surrounding circumstances of particular matter before a court---However, it was not necessary for party to show or prove exact mode and time of such loss.

Hira Lal v. Ram Prasad and others AIR (36) 1949 Allah. 677; R V. Haworth (1830 ) 4C & P 254; Hukam Chand v. Shahab Din and others AIR 1924 Lah. 40; Chuha Mal and another v. Haji Rahim Bakhsh AIR 1924 Lah. 303; Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237; Mehmooda Begum and others v. Additional District Judge (Ch. Muhammad Sarwar Sidhu), Sialkot and others 2004 YLR 1113; Safdar Ali v. Naveed Sadiq and others PLD 2006 Lah. 217; Jagmail Singh and others v. Karamjit Singh and others AIR 2020 SC 2319; Gathercole v. Miall 15 M&W 319; Manavikraman v. Nilambur Thacharakavil Manavikraman AIR 1916 Madras 928 (2); Mukhtar Ahmad through Legal Heirs v. Muhammad Yunnus and 4 others 2001 CLC 1796 and Sardar Bakhsh v. Maqsood Bibi and others 2003 SCMR 1194 rel.

Muhammad Yousaf Lurka for Petitioner.

Nemo. for Respondent.

2020 C L C 1972

[Lahore]

Before Muhammad Ameer Bhatti and Atir Mahmood, JJ

Mst. SADIA JAMSHAID----Appellant

Versus

PROVINCE OF PUNJAB and another----Respondents

R.F.A. No.73473 of 2019, heard on 23rd September, 2020.

Civil Procedure Code (V of 1908)---

----O.XVII, Rr.2 & 3---Plaintiff failing to produce evidence despite availing numerous opportunities/adjournments---Closure of plaintiff's right to produce evidence and dismissal of suit without affording plaintiff an opportunity to testify---Legality---Dismissal of suit forthwith under O.XVII, Rr.2 & 3, C.P.C. on the premise that the plaintiff failed to produce evidence was not tenable particularly when the plaintiff herself was in attendance on the date when suit was dismissed and was not called upon to testify---In the present case, it was incumbent upon the Trial Court, despite non-production of witnesses by the plaintiff, to let her come out with her own version in the witness box instead of dismissing the suit forthwith---Recourse to O.XVII, C.P.C. was not warranted---Every party before a court had a right to make a statement to prove the contents of his/her case---Plaintiff in the present case had been denied of her fundamental right---With consent of both parties impugned judgment of Trial Court was set-aside and High Court directed that the suit shall be re-adjudicated by the Trial Court by granting one last opportunity to the plaintiff to produce her complete evidence subject to payment of cost of Rs.20,000/-, and if she failed to produced evidence on the date fixed by Trial Court, her right to produce evidence would be deemed to have been closed---Appeal filed by plaintiff was allowed accordingly.

1993 SCMR 2026 and 2008 SCMR 942 ref.

Ms. Scheherezade Shaharyar for Appellant.

Junaid Razzaq, A.A.G.

Shafqat Mehmod, Senior Law Officer for Respondents Nos.2.

2020 C L C 2001

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MANZOOR HUSSAIN and others----Petitioners

Versus

Mst. FAZLOON BIBI and others----Respondents

C.R. No.636 of 2020, decided on 16th July, 2020.

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

----O.VI, R.17 & O. VIII, Rr. 3, 4 & 5---Suit for declaration---Gift deed---Evasive denial---Effect---Appeal---Petition for amendment of written statement---Suit was decreed against which appeal was filed wherein defendants moved application for amendment of written statement which was dismissed---Validity---Court while deciding application for amendment of pleadings was to keep in view the interest of justice and allow the case to run on correct lines for decision of real controversy---Amendment in the pleadings could be allowed at any stage of proceedings for determining the real question of controversy between the parties---Proposed amendment in the pleadings should not alter the nature of the same---Alleged amendment should not be tainted with dishonest purpose and to build a new case or prejudice the case of adversary---Defendants in their written statement had not controverted the allegations levelled by the plaintiffs with substance rather evasively denied---If any allegation had not been denied specifically then it would be considered to be admitted---Plaintiffs had led affirmative evidence to shift the onus to the beneficiary of impugned gift deed---Defendants had produced only one witness to prove alleged gift deed in their favour---Defendants through proposed amendment intended to reopen the case by leading evidence afresh---Intention of defendants behind proposed amendment was to cover the lacunas left by them during trial, which could not be permitted---Defendants had produced meager, weak and poor evidence and vested right in favour of plaintiff had accrued---Permission to amend written statement would definitely cause prejudice to the plaintiffs, in circumstances---Revision was dismissed in limine.

Munir Ahmad and 7 others v. Additonal District Judge, Kasur PLD 2001 Lah. 149; Ahmed Jamil Ansari v. Messrs Al-Hoqani Securities and Investment Corporation (Pvt.) Limited 2008 CLC 946; Hafiz Muhammad Jaffar v. Muhammad Ameer and 6 others 2011 CLC 1556; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Ahsan Kausar and others v. Ahmad Zaman Khan 1986 SCMR 1799; Pehlwan and others v. Ali Ahmad 2005 SCMR 1044; Muhammad Shafi and others v. Abdul Hameed and others 2008 SCMR 654 and 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 ref.

Daulat Ali through Legal Heris and 2 others v. Ahmad through Legal Heirs and 2 others PLD 2000 SC 792; Bashir Ahmed and 3 others v. Muhammade Aslam and 6 others 2003 SCMR 1864; G.R. Syed v. Muhammad Afzal 2007 SCMR 433; Mir Akbar v. Sher Bahadur and others 2006 SCMR 315; Abaid Ullah Malik v. Additional District Judge, Mianwali PLD 2013 SC 239; Sulaiman v. Tan Hui Ya AIR 1930 Rangoon 140; Ijaz Mahmood and others v. Manzoor Hussain and others 1988 SCMR 34; Mir Akbar v. Sher Bahadur and others 2006 SCMR 315; Abaid Ullah Malik v. Additional District Judge, Mianwali and others PLD 2013 SC 239 and Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 rel.

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

----O.VI, R. 17---Amendment in the pleadings could be allowed at any stage of proceedings.

2020 C L C 2016

[Lahore]

Before Ch. Muhammad Iqbal, J

SHABIR AHMED and 5 others----Petitioners

Versus

IJAZ AHMAD ZEWAR and others----Respondents

Civil Revision No.186632 of 2018, heard on 5th June, 2020.

Punjab Pre-emption Act (IX of 1991) ---

----Ss.6 & 13---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art.227---Suit for possession through pre-emption---Defendants filed a suit for specific performance of agreement to sell and plaintiff-pre-emptor contested the same but it was decreed---Plaintiff thereafter filed a suit for pre-emption---Trial Court rejected the plaint but Appellate Court remanded the matter for decision afresh after recording evidence of the parties---Validity---Plaintiff had made false story with regard to meeting and information of sale of suit property---Pre-emptor' right over suit land had extinguished as he had not disclosed the source of information and registration of sale deed which should have been pleaded in the plaint---Plaintiff had not mentioned the names of witnesses of Talb-i-Muwathibat and Talb-i-Ishhad in the plaint which was mandatory---Pre-emptor was estopped to assert the lack of knowledge with regard to sale deed as decree had been executed against him---Pre-emptor had filed pre-emption suit with false and fabricated stance and he was not a truthful person---Plaintiff had no cause of action and the suit was barred under S.6 of Punjab Pre-emption Act, 1991---Trial Court had rightly rejected the plaint and Appellate Court had not applied its judicious mind---Impugned judgment and decree passed by the Appellate Court were based on mis-reading and non-reading of evidence and were not sustainable in the eyes of law, same were set aside---Revision was allowed, in circumstances.

Hamid Qayyum and 2 others v. Abdul Majeed and 9 others 2000 CLC 1077; Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69; Muhammad Anwar v. Safeer Ahmed and 5 others 2017 SCMR 404; Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233; Riasat Ali and 9 others v. Rahim Bakhsh and others 1992 CLC 2193; Masood Pervez Sajid v. Mst. Nawasih Fatima and 2 others 2005 MLD 579; Muhammad Yaqoob v. Hameeda Begum and 4 others 2005 CLC 870; Mst. Salma Bibi and others v. Muhammad Aslam through L.Rs 2014 YLR 2481 rel.

Holy Prophet Hazrat Muhammad () rel.

and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

Moazzam Habib and Zahir Abbas for Petitioners.

Ch. Nasrullah Nasir Bhangoo for Respondents.

2020 C L C 2034

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan JJ

ALAMDAR ENGINEERING----Appellant

Versus

DONGFONG ELECTRIC CORPORATION and others----Respondents

Regular First Appeal No.665 of 2016, decided on 28th September, 2020.

Civil Procedure Code (V of 1908)---

----O.XXIX, R.1---Suit for recovery of damages and permanent injunction---Subscription and verification of pleadings---Scope---Suit for recovery of damages with permanent injunction filed by appellant was dismissed by Trial Court on the ground that the plaintiff/CEO failed to prove his appointment as a duly authorized person as the plaintiff was a private limited company and the suit was filed in the capacity of CEO which was against the spirit of law---Validity---Suit on behalf of company by a person was not competent unless he was so authorized by a resolution passed by a company's Board of Directors---Impugned judgment was passed in consonance with the spirit of law and did not call for any interference---Appeal was dismissed.

The Central Bank of India, Ltd., Lahore v. Messrs Taj ud Din Abdur Rauf and others 1992 SCMR 846 and Rahat and Company through Syed Naveed Hussain Shah v. Trading Corporation of Pakistan Statutory Corporation, Finance and Trade Centre through Secretary/Chief Executive Officer 2020 CLC 872 rel.

Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 foll.

Malik Ejaz Hussain Gorchha for Appellant.

2020 C L C 2078

[Lahore]

Before Ayesha A. Malik, J

HAFIZ MUHAMMAD AMAN ULLAH----Petitioner

Versus

MUHAMMAD ANEES JAVED----Respondent

Civil Revision No.133552 of 2018, decided on 5th June, 2020.

Specific Relief Act (I of 1877)---

----Ss.42, 8 & 54---Civil Procedure Code (V of 1908), O.XXVI, Rr.10---Commission for local investigations---Procedure---Un-signed report---Scope---Petitioner filed suit for declaration, possession along with consequential relief of permanent injunction---Trial Court dismissed the suit---Appellate Court on an application for additional evidence ordered for the appointment of local Commission with consent of the parties for demarcating the property---Local Commission submitted the report, however, on the objections of respondent the same was set aside and a fresh local Commission was ordered to be appointed---Petitioner filed review application against said order, which was dismissed---Validity---Review application was dismissed on the ground that the report of local Commission was incomplete as there was no report of the revenue authorities supporting the findings of the local Commission nor were there any documents appended with the report on the basis of which local Commission had made his report---Impugned order had been made after consulting the record---Petitioner had admitted before the High Court that the report submitted by local Commission was not a signed document--- Revision petition was dismissed.

Ch. Hafiz ur Rehman Atif for Petitioner.

2020 C L C 2089

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Mujahid Mustaqeem Ahmed, JJ

NATIONAL COMMAND AUTHORITY through D.G.SPD and 2 others----Petitioners

Versus

MISKEEN SHAH and 7 others----Respondents

Regular First Appeal No.153 of 2016, heard on 14th January, 2020.

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

----S.18---Oaths Act (X of 1897), S. 5---Qanun-e-Shahadat (10 of 1984), Art. 133---Reference to Court---Failure to administer oath---Striking down the right of cross-examination on the day of recording examination-in-chief---Effect---Appellant assailed judgment and memo of costs passed by Referee Court in terms of S.18 of the Land Acquisition Act, 1897---Validity---Statement of one of the witnesses was recorded without oath---Referee Court on the very day of recording examination-in-chief of witnesses had struck down the right of cross-examination of the appellants, which could not be approved---Referee Court had not even minutely scanned the documentary evidence---Appeal was allowed in terms that the judgment was set aside and the matter was remanded to the Referee Court for decision afresh.

(b) Oaths Act (X of 1873)---

----S.5---Failure to administer oath---Effect--- High Court observed that it was duty of the Judge to administer oath to witness---If he examined the witness without administering oath that would reflect adversely on the evidence---Best way was to remand such like case to the court concerned for recording evidence of the witnesses where oath was not administered to them because the omission committed by the Judge or court should not prejudice any of the party---Omission to administer oath to a witness will amount to an illegality, which cannot be cured.

Obaidullah Khan v. Umer Hayat Khan and another 2011 YLR 1731 ref.

(c) Oaths Act (X of 1873)---

----S.5---Failure to administer oath---Effect---Statement of witness recorded without oath is inadmissible in evidence.

Sajjad Ahmad and another v. The State 1992 SCMR 408 and Ehsan Ellahi Baig v. Muhammad Pervaiz PLD 2018 Lah. 693 ref.

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

----Art.133---Cross-examination---Scope---Cross-examination is a valuable right of a party to dig out the truth so as to reach a just conclusion by the court---Any deviation from such procedure may result in injustice to a party.

(e) Administration of justice---

---Duty of Court---Scope---Court was to deliver a detailed judgment, which should not only state the findings but also the evidence and how it supported its findings.

Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726 and Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736 ref.

Usman Jillani for Appellants.

Hassan Raza Pasha for Respondents Nos.1 and 2.

2020 C L C 2099

[Lahore]

Before Abid Aziz Sheikh, J

Mst. SHABANA KAUSAR----Petitioner

Versus

DISTRICT JUDGE and others----Respondents

W.P. No.10646 of 2019, decided on 22nd January, 2020.

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

----Ss. 25 & 17---Custody of minor---Matters to be considered by court in appointing guardian---Right of mother to custody of minor daughter---Mother, when disqualified for custody---Marriage of mother with a person not related to the child within the prohibited degree---Scope---Mother of minor assailed order passed by Appellate Court whereby judgment passed by Guardian Judge was set aside and the custody of minor was handed over to the father of minor---Contention of father was that the mother of minor had contracted second marriage and her husband was in the prohibited degree with the minor---Contention of mother was that the father of minor had contracted second marriage; that he had two daughters from said marriage and that she had no other child from her second marriage---Validity---Minor, since birth, had developed bonding with her mother; separating her from real mother and forcing her to live with step-mother (who had her own two daughters) in the house of her father would not only be harsh, unjust and traumatizing for her personality but would also disturb her mentally---Minor wanted to live with her mother and there was no reason not to respect her wish---Father of minor himself had admitted that he had no business or job---Mother of minor had married to a person who did not fall in the prohibited degree to the ward, therefore, High Court held that once the minor attained the age of puberty, her father could approach the court for her custody---Writ petition was allowed, order passed by Appellate Court was set aside, that of Guardian Judge was restored and father was allowed to have frequent meetings with the minor.

Ch. Nazir Ahmad v. Additional District Judge and others 1988 SCMR 1359 ref.

Muhammadan Law by Mulla rel.

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

----S.25---Custody of minor---Right of mother to custody of minor daughter---Mother, when disqualified for custody---Marriage of mother with a person not related to the child within the prohibited degree---Exceptional circumstances---Welfare of minor---Scope---Mother, in circumstances, is entitled for the custody of her female child until she attains the age of puberty---Rule regarding prohibited degree is not an absolute rule and it may be departed from, if there are exceptional circumstances for the welfare of minor---Mere fact of re-marriage of mother does not ipso facto disentitle her from retaining custody of the minor daughter and entitle handing her over to the father, when it is not otherwise, in the welfare of minor.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Shaishta Naz v. Naeem Ahmed 2004 SCMR 990; Mst. Jannatan v. Ch. Abdul Hamid ADSJ and 2 others 1984 CLC 345; Shahbaz Ahmed v. Addl:District Judge and others 2014 YLR 1374; Zainab Bibi v. Muhammad Ashraf and another 2014 CLC 1299; Mst. Zarina Bibi v. Muhammad Ashraf and another PLD 2015 Lah. 253; Mst. Rabiah Bibi v. Abdul Qadir and another 2016 CLC 1460; Mst. Hifsa Naseer v. Additional District Judge, and another PLD 2017 Lah. 153 and Faisal Mushtaq v. Sumatra Safdar and another 2018 MLD 862 ref.

Muhammadan Law by Mulla rel.

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

----S.25---Custody of minor---Interlocutory in nature---Scope---Order relating to custody of child, by its very nature is not final but is interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.

Imtiaz Hussain Khan for Petitioner.

2020 C L C 2108

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

Messrs DIGITAL LINK (PVT.) LTD. through Authorised Officer and others----Appellants

Versus

Messrs HANGZHOU HIKVISION DIGITAL TECHNOLOGY CO. LTD. and others----Respondents

R.F.A. No.258418 of 2018, decided on 29th September, 2020.

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

----S.62---Novation of contract----Principles----To establish novation of contract, it must be established that there existed a previous valid agreement, that there existed an agreement of parties to cancel previous valid agreement, that there existed agreement of parties that second agreement replaced first agreement and finally that the validity of second subsequent agreement must be established.

(b) Contract---

----Contract of correspondence---Place of contract, determination of---Contract of correspondence was deemed to be made at place where letter of acceptance was posted.

The Firm Hira Nand Murti Dhari through Murti Dhar v. The Firm Gurmukh Rai Radhakishen through Radhakishen AIR 1923 Lah. 427; Firm Kanhaiwalal v. Dineshchandra AIR 1959 Madhya Pradesh 234 and Lahore Development Authority v. Sunbeam Corporation (Regd.) PLD 1984 Lah. 430 rel.

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

----O.VII, R.10----Specific Relief Act (I of 1877), Ss.12 & 42 --- Suit for specific performance of (commercial) contract --- Return of plaint on ground of lack of territorial jurisdiction --- Adjudication upon question of territorial jurisdiction----Application of defendant under O.VII, R.10, C.P.C. seeking to return plaint on ground of lack of territorial jurisdiction was allowed by Trial Court---Contention of plaintiffs, inter alia, was that such order was made on basis of Agreement between parties which provided that jurisdiction would lie in a foreign country, however, per defendants, said Agreement was superseded by subsequent Agreement which did not have an exclusionary clause vis-à-vis territorial jurisdiction----Validity----Burden existed upon plaintiffs to prove not only that the alleged second agreement validity existed but also the place where the same was accepted so as to establish territorial jurisdiction of Trial Court through clear satisfactory evidence---Question of territorial jurisdiction, in the present case, was a mixed question of facts and law, which could only be resolved upon appraisal of evidence to be led by parties, which was not done by Trial Court ---- High Court set aside impugned order of Trial Court and remanded matter to Trial Court with direction to decide application under O.VII, R.10, C.P.C. afresh after framing of issues and recording of evidence---Appeal was allowed, accordingly.

Messrs Haji Moosa Haji Omar and others v. The Federation of Pakistan PLD 1956 Kar. 356; Dada Limited v. Pakistan PLD 1959 Kar. 264; Mst. Waris Jan and another v. Liaqat Ali and others PLD 2019 Lah. 333 and M.A. Chowdhury v. Messrs Mitsui O.S.K Lines Ltd and 3 others PLD 1970 SC 373 rel.

Mian Sultan Tanvir Ahmad and Habib Mubashar Ullah for Appellant.

Barrister Aun Ali Raza and Syed Muhammad Kaswar Gardezi for Respondents.

2020 C L C 23

[Peshawar]

Before Syed Arshad Ali, J

ABDUL AZIZ NOORISTANI----Petitioner

Versus

SHAMS-UL-MULK and 15 others----Respondents

Civil Revisions Nos.1635-P and 1671-P of 2010, decided on 30th April, 2018.

Specific Relief Act (I of 1877) ---

----S. 12---Suit for specific performance of contract---Agreement to sell---Proof---Procedure---Sale of suit property during pendency of lis---Bona fide purchaser---Scope---Suit was decreed concurrently---Validity---Plaintiff had established execution of sale agreement through evidence of scribe and one of the marginal witnesses---Money trail had also been proved through confidence inspiring evidence/Bank channel as well---Scribe of the deed was to be considered as witness of alleged transaction in the present case as he knew the seller earlier---Plaintiff had established agreement to sell through two witnesses and had offered a plausible justification for non-production of one of the marginal witnesses being close relative of defendant---Agreement to sell had been established, in circumstances---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below---Person who purchased property which was the subject matter of a lis could not put forward the plea of a bona fide purchaser---Revision was dismissed, in circumstances.

Muhammad Ismail and another v. Bahadur and 2 others 1993 CLC 1637 and Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334 ref.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Babu v. Ghulam Rasool 2003 CLC 984; Mst. Ghulam Jannat by Legal Heirs and another v. Allah Ditta 2003 YLR 981; Danishmand v. Rashid Afzal 1986 MLD 141 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

Amjad Zia for Petitioner.

Fazal-i-Karim Khan Rehmanullah and Nazir Ahmad Awan for Respondents.

2020 C L C 78

[Peshawar]

Before Musarrat Hilali and Wiqar Ahmad, JJ

MUHAMMAD AHMAD KHAN BITTANI----Petitioner

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 3 others----Respondents

Writ Petition No.4813-P of 2019, decided on 5th September, 2019.

Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S.120-A---Elections Act (XXXIII of 2017), S. 219--- Constitution of Pakistan, Arts. 140-A & 199---Constitutional petition--- Local bodies elections, postponement of---Aggrieved person---Scope---Locus standi---Petitioner invoked Constitutional jurisdiction of High Court for delaying local bodies elections---Validity---Constitutional petition could be brought by an aggrieved person seeking issuance of direction by court to an authority of Central Government, Provincial Government or Local Authority for doing that they were required by law to do or to abstain from doing what they were not permitted by law to do---Not only petitioner was not an "aggrieved person" but he was requesting court to issue directions to Election Commission of Pakistan to abstain from doing something which they were required by law to do--- Writ could be issued by court in aid of law but it could not be issued by court for preventing or retarding process of law unless some mala fide or violation of law and constitutional provisions or encroachment of Fundamental Rights was found---Petitioner was aiming at thwarting or delaying legal process of holding local bodies elections by seeking to invoke Constitutional jurisdiction of High Court---Holding of local bodies elections was not only a legal process but essential for carrying forward mandate of Art. 140-A of Constitution---Petitioner could not satisfy as to what his problem was in holding local bodies elections---If extra effort was required it was required from officers of Election Commission of Pakistan or those of Provincial Government which was none of business of the petitioner---Petitioner's concerns and worries about extra efforts, likely to be made by officers of Election Commission of Pakistan and Provincial Government in adhering to timelines provided in relevant laws was not understandable--- High Court declined to exercise Constitutional jurisdiction as petitioner was not found to be aggrieved and had no locus standi to bring petition before High Court and petition was not maintainable---Constitutional petition was dismissed in circumstances.

Raja Rab Nawaz v. Federation of Pakistan through Secretary Defence and others 2013 SCMR 1629; Brig Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 and Government of Pakistan through Secretary Ministry of Interior and Narcotics Control (Interior Division) Board, Islamabad v. Muhammad Yasin, Sub-Inspector No. 525-L and others 1997 PLC (C.S.) 606 ref.

Ali Gohar Durrani for Petitioner.

Shumail Ahmad Butt Advocate General Khyber Pakhtunkhwa for Respondents Nos.1 to 4.

2020 C L C 111

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

SHAH QAIMOOS KHAN and 4 others----Petitioners

Versus

FAIZULLAH KHAN and another----Respondents

Civil Revision Petition No.300-B of 2012, decided on 1st November, 2018.

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

----S.12(2) & O.IX, R.13---Limitation Act (IX of 1908), Art. 181----Suit for declaration---Decree, setting aside of---Fraud and misrepresentation---Limitation---Petition for setting aside of decree was dismissed being time barred---Validity---Decree which was to be set aside was passed on 13-10-1970 when a separate suit was maintainable on the grounds of fraud, collusion and lack of jurisdiction---Generally, all laws would apply prospectively except those affecting procedure---Matters with regard to remedy and jurisdiction were to be considered to be procedural in nature---If retroactive operation of even a procedural statute did cause inconvenience or injustice then Court was not to favour an interpretation giving retrospective effect to the statute---Present revision petition had been filed after forty years from passing of impugned decree, which was time barred---Court had power to set aside its own judgment, decree or final order which was fraudulently or collusively obtained but party asserting fraud and misrepresentation must narrate full particulars of fraud and misrepresentation not only in the petition but must also prove the same through cogent evidence---Mere asserting fraud without proof of the same was not sufficient for setting aside a decree---When suit was filed then petitioners were minor and their father was defendant in the said suit---Father of petitioners did not challenge the impugned decree during his life time---Petitioners had failed to prove fraud through evidence, in circumstance---No mis-reading or non-reading of evidence or any illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Revision petition was dismissed, in circumstances.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 and Abdur Rauf and others v. Abdur Rahim Khan PLD 1982 Pesh. 172 rel.

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

----O.IX, R.13---Limitation Act (IX of 1908), Art. 181---Petition for setting aside of a decree---Limitation---Petition for setting aside of decree could be filed within three years.

(c) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.115---Constitutional / revisional jurisdiction of High Court---Scope.

High Court while sitting in constitutional/revisional jurisdiction is not supposed to interfere in the concurrent judgments of the courts below, unless it is established that the judgments of the two courts below were without jurisdiction or the two courts acted illegally or judgments of the courts below is the result of mis reading or non-reading of the evidence on record resulting into miscarriage of justice.

Syed Umar Ali Shah for Petitioner.

Syed Fakhar-ud-Din Shah and Muhammad Fayyaz for Respondents.

2020 C L C 219

[Peshawar]

Before Qaiser Rashid Khan and Ahmad Ali, JJ

BISHOP HUMPHREY SARFARAZ PETERS, CHAIRMAN BOARD OF GOVERNORS, EDWARDES COLLEGE PESHAWAR----Petitioner

Versus

GOVERNOR OF KHYBER PAKHTUNKHWA/CHANCELLOR OF KHYBER PAKHTUNKHWA UNIVERSITIES through Principal and 4 others----Respondents

W.P. No.2764-P with C.Ms. Nos. 2129, 1376, 1428 of 2019, decided on 1st October, 2019.

(a) Privately Managed School and Colleges (Taking Over) Regulations (118 of 1972)---

---- Para-4 & 5 & Rgln. 12-B--- Constitution of Pakistan, Art. 269---Nationalization of educational institution--- Dispute was with regard to educational institution in question which was originally owned by Christian missionaries but was later on nationalized by government--- Petitioner claimed to be Chairman of new Board of Governors of college in question duly appointed by Christian community--- Provincial Government sought setting aside of judgment passed earlier in Constitutional petition--- Validity--- Institution in question was a nationalized and autonomous institute pursuant to Privately Managed School and Colleges (Taking Over) Regulations, 1972 which was validated as per Art. 269 of the Constitution--- Affairs of institution were properly managed by Board of Governors headed by Governor of the province--- Newly constituted Board of Governors for running affairs of college was without lawful authority and thus nullity in eyes of law--- Any decision taken pursuant thereof would also have no legal or binding effect--- Petition was dismissed in circumstances.

(b) Constitution of Pakistan---

---- Art. 199--- Civil Procedure Code (V of 1908), S. 12(2)--- Limitation Act (IX of 1908), Art. 181--- Constitutional petition--- Setting aside of judgment--- Limitation--- Dispute was with regard to educational institution in question which was originally owned by Christian missionaries but was later on nationalized by government--- Provincial Government assailed judgment dated 22-03-2016 passed by High Court in an earlier petition on the subject--- Plea raised by authorities was that petition was barred by limitation--- Validity--- Application under S.12(2) C.P.C. of Provincial Government was well within time in view of Art.181 of Limitation Act, 1908 which provided three years of period of time for filing such application--- High Court set aside its earlier judgment dated 22-03-2016 and restored that judgment to its original number to be decided afresh on its own merits as subject matter of same was only a contest between two individuals for office of Principal of institution in question--- Other issues including status of institution in question to be a nationalized institution or otherwise were discussed in judgment only because proper and necessary person, i.e., Provincial Government, was not made party to earlier petition and also because entire background and history of college right from its establishment till its nationalization made through a legal and constitutional process were not brought before High Court--- Application was restored in circumstances.

1983 CLC 1590; 2019 SCMR 1; 2015 SCMR 1257; PLD 2010 SC 676; 2003 SCMR 163; PLD 1987 SC 145; 2007 SCMR 834 and PLD 2016 SC 358 ref.

Bashir Ahmed through Legal Representative and others v. Muhammad Hussain and others PLD 2019 SC 504 rel.

Khalid Mehmood for Petitioners.

Shumail Ahmad Butt Advocate General, on behalf of Respondents Nos.1 to 4.

Farman Ullah Khattak for Applicants (in C.M. No.1376-P of 2019).

Ali Gohar Durrani for Applicant (in C.M. No.1428-P of 2019).

2020 C L C 286

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MEHER SHAH BACHA----Appellant

Versus

ANJAM ALI KHAN----Respondents

Regular First Appeal No.34-M of 2018 with C.M. 542-M 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---Petition for leave to appear and defend the suit was dismissed and suit was decreed after recording of evidence---Validity---Defendant had not denied financial relationship with the plaintiff and execution of impugned cheque---Impugned judgment and decree had been passed after perusing of available record---Plaintiff had established execution of partnership agreement, acknowledgment and maintaining of account by the defendant in the Bank---Alleged cheque had been dishonoured due to insufficient amount which was issued against consideration---Trial Court had rightly dismissed the application for leave to appear and defend the suit---Suit had been decreed on proper appreciation of law and evidence on the subject---Appeal was dismissed, in circumstances.

Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976; Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; Kodak v. Alpha Film Corporation (1930) 2 KB 340; Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718 and Rana Mumtaz Ahmed Noon v. Muhammad Javed Khan 1999 SCMR 1845 rel.

Shams-ul-Hadi for Appellant.

Nawaz Ali for Respondent.

2020 C L C 326

[Peshawar]

Before Wiqar Ahmad, J

ALI MURAD and another----Petitioners

Versus

AGA KHAN HEALTH SERVICE PAKISTAN through Chief Executive and 7 others----Respondents

C.R. No.610-P of 2019, decided on 2nd September, 2019.

Civil Procedure Code (V of 1908) ---

----O. VII, R. 11---Suit for mandatory injunction seeking direction to the defendants to keep functional health centre built on gifted property---Plaint, rejection of---Factors to be considered---Defendants moved application for rejection of plaint which was accepted---Validity---Court while deciding application under O. VII, R. 11, C.P.C. might consider facts and documents on record---None of the donors or any of their representatives in interest had ever raised any challenge to the use or re-use of gifted property---Donee could deal with the suit property as full owner without any hindrance, liability or limitation---Donee had stepped into the shoes of the donors on the strength of gift deed and he could not be prevented from use of the property in dispute---Defendants had legal capacity to restructure the health centre existing on the suit land to make it more facilitating and effective---Plaintiffs had no locus standi and legal character or right to impugn the actions of defendants---Plaint had rightly been rejected, in circumstances---If suit was not maintainable then Court should nib the evil in the bud---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Revision was dismissed, in circumstances.

Raja Ali Shah v. Messrs Essem Hotel Limited and others 2007 SCMR 741 ref.

Haji Abdul Karim and others v. Messers Florida Builder (Pvt.) Limited PLD 2012 SC 247; S.M. Shafi Ahmad Zaidi v. Malik Hasan Ali Khan 2002 SCMR 338 and Arif Majeed and others v. Board of Governors Karachi Grammar School 2004 CLC 1029 rel.

Muhibullah Tarichvi for Petitioners.

Afnan Kareem Kundi for Respondents.

2020 C L C 360

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Naeem Anwar, JJ

SAJJAD AHMAD----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 8 others----Respondents

W.P. No.2353-P of 2018 with I.R. and C.M. No.1508 of 2019, decided on 28th August, 2019.

Constitution of Pakistan---

---- Art. 199--- Constitutional petition--- Factual controversy--- Privacy of residence--- Encroachment on public property--- Alternate remedy, availability of--- Petitioner was aggrieved of construction of building by respondents as it disturbed privacy of residence and encroached upon public property--- Validity--- Constitutional petition under Art. 199 of Constitution was for enforcement of clear legal right and not otherwise meant for establishing a right which in fact was free from doubt--- Doubtful/disputed question of fact could not be seen under Constitutional jurisdiction as same was not meant for disputes relating to determination of boundaries of property as such remedy was available under general law--- When an alternate remedy was provided, Constitutional jurisdiction could not be exercised--- High Court declined to exercise Constitutional jurisdiction as petition was not only without any merits but was also misconceived--- Petition was dismissed in circumstances.

Secretary to Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415; Fida Hussain v. Mst. Saiqa 2011 SCMR 1990; Abdul Fatah Bhutto and others v. Election Commission of Pakistan through Secretary and three others 2014 CLC 639; Ghulam Muhammad Ali v. Province of Sindh through Secretary Home Department and 7 others 2016 MLD 65; Pir Ishfaq Ahmad v. Deputy Commissioner/Land Acquisition Collector Charrsada and another 2018 CLC 449 and Abdul Qadir Farooqui v. The Federal Ministry of Finance and others 2018 CLC 758 rel.

Muhammad Rahim Jadoon for Petitioner.

Syed Sikandar Hayat Shah A.A.G. for Respondent.

Shakeel Ahmad for Respondents Nos.3 and 6.

Nemo for Respondent No.4.

Muhammad Isa Khan Khalil for Respondent No.9.

2020 C L C 442

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

PROJECT DIRECTOR NHA and 2 others----Appellants

Versus

NAYYAR ZAMAN and another----Respondents

R.F.A. No.76-D of 2018, decided on 13th June, 2019.

(a) Court Fees Act (VII of 1870)---

----S. 8---Land Acquisition Act (I of 1894), Ss. 18, 21 & 54--- Deficient court fee---Acquiring agency was aggrieved of compensation enhanced in favour of landowners by Referee Court---Plea raised by landowners was that proper court fee was not affixed by acquiring agency for filing of appeal---Validity---Object of Court Fees Act, 1870 was to secure revenues for benefit of State and provisions thereof were not to be used for non-suiting a party on account of some technical/procedural defects or omissions---Matter of court-fee was between State and litigant therefore, rival party could not use it as a tool to non-suit a party on failure to deposit requisite court-fee---Court-fee of only Rs. 500/- was affixed which was not in terms of provisions of S. 8 of Court Fees Act, 1870---No appeal could be dismissed on account of deficiency of court-fee unless an opportunity was provided to acquiring agency to make good said deficiency---High Court directed acquiring agency to make good deficiency of court-fee as required under the law.

Siddique Khan and others v. Abdul Shakur Khan and another PLD 1984 SC 289; Noor Mohammad and others v. Mohammad Ashraf and others 1988 SCMR 1955 and RFA No.18-D/2017 rel.

(b) Court Fees Act (VII of 1870)---

----S.3 & Sched. I--- Levy of court-fee---Ad valorem basis--- Connotation--- Term 'ad valorem' has not been defined by Court Fees Act, 1870 however, as per its dictionary meaning, ad valorem means 'according to valuation'--- Ad valorem duties are always estimated at a certain percentage on valuation of property as opposed to fixed or specific duties.

Karachi Municipal Corporation v. Masters Mohammad Ali Shaikh PLD 1966 Kar. 42 rel.

(c) Court Fees Act (VII of 1870)---

---- S. 8--- Court fee, computation of--- Memorandum of appeal--- Procedure--- Provisions of section 8 of Court Fees Act, 1870 by itself are not a charging section and it only provides mode and manner in which court fee is to be computed--- Amount of fee payable on a memorandum of appeal would be computed according to difference between amount awarded and amount claimed by appellants.

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

---- Ss. 18, 21 & 54--- Compensation--- Determination--- Acquiring agency was aggrieved of compensation enhanced in favour of landowners by Referee Court on basis of report submitted by local commission--- Validity--- Local Commissioner had not conducted commission proceedings in accordance with terms of its appointment--- If local commission failed to conduct proceedings in accordance with terms of its appointment, then court could appoint a fresh local commission in order to reach a proper conclusion--- Commission proceedings in matters of land acquisition were of great significance and played a vital and decisive role in determining true and real market value of acquired land--- Landowners were always deprived of their lands against their will by resorting to compulsory acquisition proceedings under Land Acquisition Act, 1894---Amount of compensation in most of acquisition proceedings was determined on basis of one year average which was not true and real determining factor--- For determination of true and accurate compensation, appointment of local commission was essential--- High Court directed the appointment of a fresh local commission with consent of parties for ascertaining true and accurate market value of acquired land with reference to its location, potentiality, proximity to road, building sites and its future prospects--- Case was remanded accordingly.

The Province of West Pakistan v. Qadir Bux and others PLD 1960 (W.P) Lah. 665; Indore Development Authority v. Tarak Singh and others AIR 1995 SC 1828; Syed Iqbal Shah and others v. National Highway Authority through Chairman and others 2018 CLC Note 117; Sar Anjam Khan v. Chairman National Highway Authority, Islamabad 2016 CLC 216; Rashad Khan v. Karachi Development Authority PLD 1989 Kar. 75 and Land Acquisition Collector v. Mst. Iqbal Begum and others PLD 2010 SC 719 rel.

Amir Muhammad Baloch for Appellant.

Rustam Khan Kundi for Respondent.

2020 C L C 499

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

ENAR KHAN and 2 others----Petitioners

Versus

ZAFAR KHAN and others----Respondents

W.P. No.427 of 2019 with C.M. No.461-D of 2019, decided on 13th November, 2019.

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

----S. 42--- Suit for declaration--- Agreement to sell--- Effect--- Mere agreement to sell could neither create any title nor any right or interest in suit property--- Declaratory suit filed under S. 42 of Specific Relief Act, 1877 is not maintainable under the law on the strength of oral agreement to sell.

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

----Art. 113--- Limitation, commencement of--- Principle--- Period of limitation would start to run from date fixed for performance or when no date is fixed, when plaintiff has notice that performance is refused.

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

----Ss. 12, 42 & 54--- Civil Procedure Code (V of 1908), O.VII, R.11--- Limitation Act (IX of 1908), Art. 113--- Rejection of plaint--- Oral agreement to sell--- Limitation--- Plaintiffs were aggrieved of non-transfer of mutation of suit property in their favour after oral agreement to sell--- Trial Court accepted the suit but Lower Appellate Court rejected the same on grounds of being barred by time--- Validity--- Limitation was a mixed question of law and facts which could be resolved after recording evidence of parties, however, such principle was not absolute and depended upon peculiar nature and circumstances of each case--- Such principle did not attract to case of petitioners as alleged oral agreement to sell was arrived at between parties in year 1998 but suit was filed by them in year 2018 after twenty long years which was clearly barred by time--- High Court declined to interfere in order passed by Lower Appellate Court and observed that courts should put an end to fruitless litigation at very initial stage particularly, where suit on face of it was hopelessly barred by limitation--- Recording of evidence and pendency of proceedings before court would be a futile exercise and wastage of time--- Constitutional petition was dismissed in circumstances.

Muhammad Khan v. Muhammad Amin through LRs and others 2008 SCMR 913 and Abdul Hamid and another v. Dilawar Hussain alias Bhali and others 2007 SCMR 945 rel.

Muhammad Yousaf Khan for Petitioners.

Malik Muhammad Jehangir Awan for Respondent No.1.

Kamran Hayat Miankhel, Addl. A.G. for Respondents Nos.2 to 5.

2020 C L C 618

[Peshawar (Abbottabad Bench)]

Before Ijaz Anwar, J

ZAFAR HIJJAZI, CHIEF EDITOR, DAILY MUHASIB ABBOTTABAD and 4 others----Appellants

Versus

MUHAMMAD AYAZ MUSHWANI----Respondent

R.F.A. No. 109-A of 2010, decided on 2nd December, 2019.

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

----Ss. 4 & 5---Defamation---"Published words"---Burden of proof---Defamatory words published in newspaper are presumed under law to be false and burden is on the plaintiff to prove that defamatory words have been published by defendant, after that defendant is to prove that words so published are true.

(b) Constitution of Pakistan---

----Art. 19---"Freedom of speech"---Necessary ingredients---Wording of Art. 19 of the Constitution does not give unbridled license to press to publish any material which may harm reputation of a person---Freedom of press is subject to such restrictions as could be legitimately imposed under law---On pretext of freedom of expression newspapers cannot be allowed to play havoc with character and dignity of a respectable citizen.

Liberty Papers Ltd. v. Human Rights Commission of Pakistan PLD 2015 SC 42 rel.

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

----Ss. 5, 8 & 15---Constitution of Pakistan, Art. 19---Libelous material, publication of---Burden of proof---"Fair comment"---Scope---Defendants were editors of newspaper that published libelous material against plaintiff who was Principal of a government educational institution---Suit for damages was decreed by Trial Court in favour of plaintiff---Validity---News item published could not be considered as a fair comment about allegations reported--- Newspapers of defendants were originators of news item and by bare reading of heading of newspaper, any right thinking person from society would never subscribe to it---To such effect, responsible officers of college were produced as witnesses of plaintiff who while completely denying allegations also stated that plaintiff was defamed---Trial Court even in absence of any method to determine a fair assessment of damages was still under obligation to decide any money as compensation keeping in view facts and circumstances placed on record by plaintiff---Defense/Privileges taken were not proved on record and Trial court rightly discarded them---Neither any misreading, non-reading of evidence or any misapplication of law was on record---High Court declined to interfere in order as Trial court had given sound reasons and justifications for awarding general damages---Appeal was dismissed in circumstances.

PLD 2005 Kar. 399; PLD 1996 Lah. 410; PLD 2002 SC 514; 2013 MLD 1449; PLD 2010 Lah. 413; Sunan Abi Dawud 4972 and Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary M/o Finance and others 2013 SCMR 507 ref.

[Quran 49:12]; [Quran 24:15]; [Quran 24:16]; Sahih-al-Bukhari 5709; Sahih Muslim 105; Musnad Ahmad 26950; Sunan al-Tirmidhi 1931; Musnad 'Abd Allah ibn al-Mubarak; Allah and His Messenger know best; Sunan Abi Dawud 4876; Al-Mu'jam al-Awsat 7151; Musnad Ahmad 1586; Musnadad-Shamiyyin 1161; Sahih (Al-Albani); Sunan Abi Dawud 4972; al-Maqasidal-Hasanah 1/244; Sifatal-Safwah 2/145; Tanbihal-Ghafilin 1/164; Sahih al-Bukhari 5709, Sahih Muslim 105; Sunan Abi Dawud 3597; Al-Adab al-Mufrad 425; Sunan Abi-Dawud 4878 and [Al-Baghai] rel.

Haji Sabir Hussain Tanoli for Appellants.

Malik Ashfaq Ahmad and Hassan Ali Mashwani for Respondent.

2020 C L C 756

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

SOBA KHAN----Appellant

Versus

GUL SHER and 2 others----Respondents

R.F.A. No.91-D of 2017 with C.M. No.69-D of 2017, decided on 29th May, 2019.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 79---Summary suit on the basis of pronote---Document, proof of---Procedure---Testimony of scribe---Evidentiary value---Expression "shall not be used as evidence"---Plaintiff did not produce marginal witnesses of the promissory note---Trial Court decreed the suit filed by the plaintiff---Validity---Document required to be attested was not to be used as evidence unless two attesting witnesses (at least) had been called for the purpose of proving its execution---Testimony of scribe could not defeat the spirit of Art. 79 of Qanun-e-Shahadat, 1984---Provision of Art. 79 of Qanun-e-Shahadat, 1984 was mandatory in nature---Testimony of scribe could not be equated with an attesting witness however, he could be examined for corroboration of evidence of attesting witnesses---Trial Court had committed illegality while passing the impugned judgment and decree which were set aside and suit was dismissed---Appeal was allowed, accordingly.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs PLD 2011 SC 241 and Muhammad Amin v. Ghulam Muhammad PLD 1993 Lah. 569 rel.

Muhammad Waheed Anjum for Appellant.

Sohail Ahmad Raza for Respondent No.1. and Muhammad Salim Bhatti for Respondent No.2.

2020 C L C 803

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

SAKHAWAT HUSSAIN----Petitioner

Versus

Mst. RUBINA SHAHEEN and 2 others----Respondents

W.P. No.749-D of 2019, decided on 17th October, 2019.

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

----S. 5, Sched.---Suit for recovery of dower---Entries made in nikahnama---Presumption of truth---Scope---Husband contracted second marriage without first wife's consent---Claim of first wife for maintenance, dower and return of dowry articles---Wife produced nikahnama and kabin-nama which showed that the husband, at the time of nikah, had committed and agreed to transfer certain share of the suit house and give gold ornaments to the wife in lieu of dower amount---Plaintiff wife had established her case through examination of marginal witnesses of nikahnama as well as kabin-nama---Held, when the husband gave immovable property as dower and it was incorporated in the nikahnama, such property became property of the wife---Entries incorporated in the nikahnama were equated to a registered deed---Strong presumption of truth was attached to entries made in the nikahnama---Wife was entitled to the award of decree, in circumstances---Constitutional petition filed against the decree passed by the courts below was dismissed.

Mst. Ishrat Bano v. Noor Hussain and 2 others 2010 YLR 2452; Nazish Ishaq and another v. Additional District Judge Liaquatpur and 3 others 2013 YLR 1118; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Mst. Kanizan Begum v. Additional District Judge, Layyah and 2 others 2014 MLD 1479; Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221 and Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 ref.

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

----S.5, Sched.---Suit for recovery of dowry articles---Scope---Husband contracted second marriage without consent of first wife---Wife claimed maintenance, dower and return of dowry articles---Evidence led by wife in order to substantiate her claim of dowry articles was sufficient as she had appeared before the Trial Court and had also produced other witnesses who were subjected to lengthy cross-examination but they had remained consistent on material points---List of dowry articles was attached and duly exhibited in evidence, which consisted of routine articles and under no circumstances could be termed as unreasonable---Wife was held to be entitled to the award of decree---Constitutional petition was dismissed.

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

----S.5, Sched.---Suit for maintenance---Second marriage by husband without consent of first wife---Effect---Plaintiff, being wife, claimed maintenance, dower and return of dowry articles---Validity---Defendant husband, was responsible to provide maintenance to his wife so that she could live a respectable life but he had failed to maintain her---Plaintiff wife was entitled to maintenance allowance, irrespective of the fact as to whether she left the house of her own choice or was compelled to do so; she was held to be entitled to the award of decree---Constitutional petition filed against the decree passed by the courts below was dismissed.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Jurisdictional error---Mis-reading and non-reading of evidence---High Court, while exercising constitutional jurisdiction, does not enter into factual controversies which are already dealt with by a competent court of law, vested with statutory powers, particularly when there is no jurisdictional error or other legal infirmities such as arbitrariness and others---High Court, in exercise of constitutional jurisdiction, is not mandated to substitute its own findings for the findings recorded by the court of appeal, after due appraisal of evidence---Party approaching the High Court under Art.199 of the Constitution has to demonstrate that there is gross mis-reading or non-reading of the evidence or any jurisdictional defect floating on the surface.

Abdul Qayyum Qureshi for Petitioner.

Burhan Latif Khaisori for Respondent.

2020 C L C 813

[Peshawar]

Before Muhammad Naeem Anwar, J

FAZAL-E-RAB and another----Petitioners

Versus

Mst. HAJIRA and others----Respondents

Civil Revision No.52-P of 2017, decided on 4th October, 2019.

(a) Partition Act (IV of 1893)---

----S.4---Suit for possession through partition---Contention of defendant was that plaintiff had not impleaded all the co-sharers of disputed property---Trial Court passed preliminary decree in favour of plaintiff which was upheld by the Appellate Court---Validity---Entitlement of plaintiff would be determined at the time of final decree---Plaintiff was entitled for possession of land owned by him through partition---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed in, circumstances.

1986 CLC 1706; 2004 CLC 668 and 2017 CLC 382 distinguished.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below could not be interfered with by the High Court in exercise of its revisional jurisdiction unless same suffered from jurisdictional defect.

2007 SCMR 870; 2009 SCMR 286 and PLD 2005 SC 418 rel.

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

----S. 52---Lis pendens, principle of---Transfer of property either through inheritance mutation or sale would be subject to principle of lis pendens.

Raza Khan through legal heirs and 3 others v. Member Board of Revenue N.W.F.P., Peshawar and others 1999 SCMR 873 rel.

Qazi Jawad Ehsanullah, for Petitioners.

Asad Jan for Respondents.

2020 C L C 893

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

KHAN BAHADAR and others----Petitioners

Versus

MIR ABDUL QAYYUM and another----Respondents

C.R. No.906-P of 2019, decided on 27th November, 2019.

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

----Ss. 22, 42 & 54---Suit for specific performance of agreement, declaration and injunction--- Compensation in terms of money--- Effect--- Parties entered into contract to construct plaza on land owned by defendants--- Plea raised by plaintiffs was that they were unable to start construction due to extraordinary permissions from authorities--- Trial Court granted injunction in favour of plaintiffs but Lower Appellate Court set aside the same in favour of defendants--- Validity--- Plaintiffs were not able to establish prima facie that they had started construction---Even plaint did not mention that they had started construction immediately after Eid-ul-Azha according to terms of contract--- Lower Appellate Court rightly held that plaintiffs were not having prima facie case--- Plaintiff was not only seeking court to resurrect entire contract in full and to ensure its compliance that could naturally run into years--- Such aspect of case also diminished strength of case of plaintiffs for grant of interim injunction--- If after conclusion of suit, court would come to conclusion that plaintiffs were to be compensated by granting them relief in terms of money in form of damages or compensation, then grant of an injunctive relief in such suit was not appropriate--- High Court declined to interfere in order passed by Lower Appellate Court--- Revision was dismissed in circumstances.

PLD 1978 SC 220; 2006 SCMR 688; 2010 SCMR 973; PLD 2012 (AJ&K) SC 7; 2007 MLD 54; 2007 YLR 2311; 2008 CLC 1462; 2010 MLD 1596; 2018 YLR 2417; PLD 2005 Pesh. 132; 2007 YLR 2190; 2010 CLC 1843; 2012 YLR 1430; 2012 MLD 1323; 2012 YLR 809 (H.C. AJ&K); 2019 CLC 1 and 2019 YLR 1721 ref.

Messrs Pakistan Association Construction Ltd. v. Asif H. Kazi and another 1986 SCMR 820 and Bolan Beverages (Pvt.) Limited v. PEPSICO INC. and 4 others 2004 CLD SC 1530 rel.

(b) Administration of justice---

----Defective form of suit--- Principle--- Right cannot be declined to a person merely on basis of a defective form of suit.

Ihsanullah for Petitioner.

Syed Abdul Haq for Respondents.

2020 C L C 910

[Peshawar]

Before Muhammad Naeem Anwar, J

USMAN KHAN----Petitioner

Versus

Mst. SHEHLA GUL and 2 others----Respondents

W.P. No.1639-P of 2019, decided on 7th October, 2019.

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

----S. 5, Sched---Suit for recovery of dower---Entries in nikahnama alleged to be forged---Scope---Husband had alleged the nikahnama to be forged for the reasons that entries made in columns Nos. 15, 16, 17 & 21 were filled later on and that the alleged nikahnama was registered much earlier than the solemnization of nikah---Validity---Written statement filed by husband did not contain a single word about nikahnama having been forged rather it was admitted, however, its contents were attacked---Evidence showed that nikahnama was registered after solemnization of nikah---Husband himself had admitted nikahnama in his examination-in-chief, so it was required to be taken as a whole and not as per his whims and wishes---Husband could not be allowed to admit a portion of nikahnama as correct and the other as incorrect---Constitutional petition was dismissed.

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

----S. 5, Sched---Suit for recovery of dower---Scope---Husband assailed the findings of courts below whereby wife's claim of 5-1/2 tolas gold as outstanding dower was decreed---Validity---Husband himself had admitted outstanding dower as 5-1/2 tolas against him while cross-examining the Nikah Registrar---Appellate Court had rightly held that the wife was entitled to the outstanding dower of 5-1/2 tolas of gold---Constitutional petition was dismissed.

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

----S. 5, Sched---Suit for recovery of dower---Failure to cross-examine on specific issue---Effect---Husband assailed the findings of courts below whereby wife's claim of four marla plot as dower was decreed---Husband had admitted the nikahnama in his examination-in-chief--- Wife, through her attorney, had categorically stated that it was agreed between the parties that four marla plot would be given to her as dower---Husband, during cross-examination, had not specifically questioned about the plot nor had he put any suggestion to her, as such the unchallenged/uncrossed portion of the statement had to be considered as admission of the husband---Constitutional petition, being devoid of merit, was dismissed.

Javed Khan v. Mst.Fozia Azam PLD 2005 Pesh. 89 rel.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Failure to cross-examine on specific issue---Scope---Husband challenged the decrees passed by courts below whereby wife's claim of maintenance was allowed---Contention of husband was that wife herself had deserted him---Validity---Wife, through her attorney, had stated in explicit terms that she was ousted by the husband and such statement was not cross-examined---Husband had contracted second marriage and when the wife was questioned she had showed her willingness to live with the husband but the husband had straightaway refused to live with her---Husband was legally bound to maintain his wife in order to meet daily needs like food, clothes, medicines, etc, which was his duty to bear from the date when she was ousted till she was in his nikah---Constitutional petition, being without merit, was dismissed.

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

----S.5, Sched.---Suit for recovery of dower---Cross-examination---Double-edged weapon---Scope---Fundamental purpose of cross-examination is to sort out the truth by disclosing or clarifying the matter, for such purpose no mathematical procedure is prescribed and it is not necessary that witness should only reply question according to the whims of counsel who is cross-examining, as it is a double-edged weapon and a witness while replying the question can explain the matter for clarifying the question of dispute.

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

----S.5, Sched.---Qanun-e-Shahadat (10 of 1984), Art.133(2)---Suit for recovery of dower---Cross-examination---Failure to cross-examine on specific issue---Scope---Portion of statement which remains unchallenged in cross-examination is deemed to be admitted.

(g) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Jurisdictional defect---Effect---High Court, in exercise of its extraordinary constitutional jurisdiction can neither substitute findings of the facts recorded by the appellate court nor can give its opinion regarding adequacy and quality of evidence as the assessment and appraisal of the evidence is the function of lower court, which is vested with exclusive jurisdiction in this regard---Petitioner is required to show any illegality or jurisdictional defect committed by the lower courts in order to make his case entertainable by High Court, while exercising constitutional jurisdiction.

Muhammad Arif Khan for Petitioner.

Muslim Khan for Respondent.

2020 C L C 923

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J NISAR KHAN and 7 others----Petitioners

Versus

SWAL FAQIR and another----Respondents

C.R. No.77-M of 2016 and Cross Objection No.1-M of 2016 with C.M. No.267 of 2016, decided on 3rd October, 2019.

Civil Procedure Code (V of 1908) ---

----O. XLI, R. 31 & S. 89-A---Judgment in appeal---Points for determination, non-framing of---Effect---Settlement of dispute through appointment of local commission---Alternate mode of settlement of dispute---Suit was dismissed by the Trial Court against which an appeal was filed---Parties effected settlement before Appellate Court and local commission was appointed---Appeal was disposed of on the report of local commission---Validity---Appellate Court was bound to identify the questions for determination and then to record its findings on the same after proper reasoning---Appellate Court, in the present case, had decided the appeal on basis of report and findings of local commission appointed in pursuant to a settlement entered into between the parties---Parties had not objected to the report of local commission---Parties had resorted to an alternate mode of settlement of the dispute in the case---Appellate Court had rightly passed judgment and decree in the light of settlement and proceedings of commission carried on inpursuance of said settlement---Alternate mode of settlement of dispute was permissible under S. 89-A, C.P.C.---Controversy between the parties had been resolved effectively and no injustice had been caused to any of the party---Revision was dismissed, in circumstances.

Messrs United Awan Construction Company through Proprietor v. Faisal Raza and others 2003 YLR 1025; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Saeed Ullah, Khan v. Muhammad Khalid and 3 others 2018 CLC 648 and Waseem Gul and another v. Shahid Jameel and another 2019 YLR 644 ref.

Zakirullah Khan and others v. Faizullah Khan and others 1999 SCMR 971; Hashim Ali v. Asghar Ali 2014 YLR 2150; Muhammad Rashid Sharif v. Board of Intermediate and Secondary Education, Faisalabad 2011 CLC 1561; PLD 2005 Lah. 742 and PLD 2007 Lah. 581 rel.

Amir Gulab Khan for Petitioner.

Sher Muhammad Khan for Respondents.

2020 C L C 937

[Peshawar]

Before Waqar Ahmed Seth, CJ and Ahmad Ali, J

SAIFULLAH MOHIB KAKAKHEL----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 6 others----Respondents

W.P. No.4802-P of 2017, decided on 13th November, 2019.

(a) Khyber Pakhtunkhwa Healthcare Commission Act (V of 2015)---

---- Preamble--- Healthcare Commission--- Object, purpose and scope--- Aim and object of Khyber Pakhtunkhwa Healthcare Commission Act, 2015 is to ensure quality of health services in public as well as private sector and to improve patient safety and also to provide mechanism to ban quackery in all its forms and manifestations in public and private sectors.

(b) Khyber Pakhtunkhwa Healthcare Commission Act (V of 2015)---

----S.6---Control of private laboratories and medical facilities--- Petitioner was aggrieved of non-performance of mandated duties by respondent authorities with respect to healthcare system and prevention of fake doctors and quackery as well as differing rates of health services---Validity---Held, it was statutory obligation of Healthcare Commission to have a strict check on public and private sector medical clinics, hospitals, blood banks, laboratories and other healthcare establishments to implement minimum standard quality of health services and provision of medical facilities--- Health Department and Healthcare Commission, both were heavily responsible to provide a mechanism to bring uniformity in fee structure and standards of health services in public and private sector healthcare establishment and stop healthcare service providers from charging exaggerated fees from general public--- Agenda of Commission was still in pipeline and as such Commission could not be allowed to take further indefinite time to bring their agenda out of pipeline--- High Court directed respondents to fix rates of different laboratories in consultation with health department---Constitutional petition was allowed, in circumstances.

Petitioner in Person.

Atif Ali Khan, A.A.G. for Respondents Nos.1, 3 to 7.

2020 C L C 1015

[Peshawar]

Before Muhammad Naeem Anwar, J

ANWAR KHAN and 3 others----Petitioners

Versus

RAZA KHAN and another----Respondents

Civil Revision No.732-P of 2016, decided on 4th November, 2019.

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

----Ss.91 & 92 & O. VII, R. 10 & O. II, R. 2---Specific Relief Act (I of 1877), S.54---Blockade of public path---Suit for permanent injunction---Consent of Advocate General---Estoppel, principle of---Applicability---Plaintiffs filed suit against blockade of public path without permission of Advocate General which was dismissed being not maintainable---Appellate Court decided appeal with the observation that plaintiffs could file fresh suit after obtaining permission from Advocate General---One of the plaintiffs who had obtained consent of Advocate General filed subsequent suit but plaint was returned for presentation before proper forum---Validity---Provisions of S. 91, C.P.C. did not debar the institution of suit by anyone or two to whom the permission of Advocate General had been granted---Contents of plaint could not be considered as an estoppel against the plaintiff in filing of suit against the defendant---Plaintiff had mentioned that suit had been instituted after having requisite permission from the concerned quarter---Plaintiff had been given permission for filing of fresh suit subject to the said permission---Principle of estoppel was not applicable in the present case---Impugned orders passed by the Courts below were set aside and Trial Court was directed to decide the suit on merits---Revision was allowed, in circumstances.

1986 SCMR 423 and The Collector of Sale Tax, Gojranwala v. Super Ashia Muhammad Din & Sons 2017 SCMR 1427 rel.

(b) Precedent---

----Judgement refusing leave to appeal to Supreme Court could not be considered as precedent.

Abdullah v. State 2001 MLD 1554 rel.

(c) Words and phrases---

----'Estoppel'---Meaning---"Estoppel" in the doctrine of law which preclude a person from denying the truth of statement formally made by him.

Osborn's Dictionary rel.

Mian Iftikhar Jan for Petitioner.

Shoukat Ali for Respondent.

2020 C L C 1048

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

SABZ ALI KHAN and 7 others----Petitioners

Versus

MST. BIBI NAIK ZADA and another----Respondents

Civil Revision No.119-M of 2017, decided on 6th November, 2019.

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

----Art.100---Suit for declaration and permanent injunction---Gift deed---Proof of---Document more than thirty years old---Presumption of correctness---Scope---Contention of plaintiff was that she was entitled for her share in the inheritance whereas defendants contended that gift deeds of suit property had been executed in their favour---Suit was decreed concurrently---Validity---Witnesses of impugned transaction had expired but no secondary evidence had been produced by the defendants ---Neither gift deeds nor transaction incorporated in the same had been proved by the defendants---Defendants were not in exclusive possession on the suit property---Benefit of Art. 100 of Qanun-e-Shahadat, 1984 could only be claimed when a deed had been admitted or proved in evidence---Courts below had rightly discarded the impugned deed relied upon by the defendants---No exception could be taken to the findings recorded by the Courts below---Revision was dismissed, in circumstances.

Nazir Ahmad deceased through LRs v. Karim Bakhsh (Late) through LRs 2017 SCMR 1934; Noor Muhammad and others v. Mst. Asmat-e-Bibi 2012 SCMR 1373 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

Iftikhar Ahmad (Senior) for Petitioners.

Aghar Ali and Abdul Wahid Khan for Respondents.

2020 C L C 1058

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

Syed FIDA-UR-RAHMAN SHAH and others----Petitioners

Versus

Syed MOTI-UR-RAHMAN SHAH and others----Respondents

C.R. No.100-D of 2015 with C.Ms. Nos.117-D of 2015, 228-D and 229-D of 2017, decided on 17th October, 2019.

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

----Art.100---Relinquishment deed---Fraud---Document---Proof of---Procedure---Principles of estoppel, acquiescence and limitation---Applicability---Contention of plaintiffs was that they were owners of suit property and impugned relinquishment deed was based on fraud---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Defendants were in continuous possession on the suit property---Relinquishment deed was a registered document which had been acted upon and same had attained a status of a public document---Plaintiffs were supposed to prove their stance through confidence inspiring evidence which they had failed to prove---Mere denial of plaintiffs was not sufficient for setting aside of relinquishment deed, in circumstances---Relinquishment deed was thirty years old registered document and presumption of correctness and due execution was attached to the same---Plaintiffs had alleged fraud and they were bound to establish the same through convincing evidence---Evidence of plaintiffs was silent with regard to fraud---Plaintiffs had failed to prove alleged plea of fraud, in circumstances---Predecessor-in-interest of plaintiffs never challenged the validity of relinquishment deed during his life time---Present suit had been filed after thirty years of the registration of relinquishment deed---Principles of acquiescence, estoppel and limitation were applicable in the matter---Beneficiary of a document was to prove its validity if plaintiff had succeeded to discharge the initial burden of proof---Plaintiffs had failed to prove their stance through convincing evidence---Plaintiffs had failed to discharge initial burden of proof in accordance with law---Plaintiffs could not get any benefit from the shortcomings of defendants if any---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, in circumstances.

Amanullah v. Inamullah 2017 MLD 1699; Zardad v. Ali Akbar 1989 CLC 2028; Ghulam Haider v. Elahi Bakhsh 2016 YLR Note 132; Mst. Hameeda Begum and others v. Mst. Irshad Begum 2007 SCMR 996; Farzand Bibi v. Arshad Mehmood alias Arshad 2019 CLC Note 14; Mohabat Khan v. Muhammad Fareed 2016 MLD 1139 and Muhammad Ishfaque v. Ch. Muhammad Nawaz 2008 SCMR 1095 rel.

(b) Pleadings---

---Departure from pleadings was not permissible under law.

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

----S.41---Protection under S.41, Transfer of Property Act, 1882---Requirements.

A person seeking protection of Section 41 Transfer of Property Act, 1882 has to fulfill the following requirements.

(i) The transferor is the ostensible owner;

(ii) He is so by the consent, express or implied, of the real owner;

(iii) The transfer is for consideration;

(iv) The transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Syed Mastan Ali Zaidi for Petitioners.

Zafar Iqbal Awan for Respondents Nos.1 to 9, 11 and 12.

Muhammad Ghazanfar Ali for Respondent No.15.

Syed Aamir Hussain Zaidi for Respondent No.16.

Syed Farhat Abbas Shah Attorney for Respondent No.17.

2020 C L C 1085

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

KARAM SHAH and others----Petitioners

Versus

PROVINCIAL SECRETARY FOREST KHYBER PAKHTUNKHWA and others----Respondents

C.R. No.24-P of 2010, decided on 10th October, 2019.

Limitation Act (IX of 1908)---

----Art.181---Civil Procedure Code (V of 1908), S. 48---Execution petition---Limitation---Expression 'fresh application'---Scope---Execution petition filed by the petitioners was dismissed being time barred---Validity---Where period of limitation for any legal proceeding had been provided in the Limitation Act, 1908 or anywhere else in the statute then recourse might not be made to the provisions of Art. 181 of Limitation Act, 1908---No order for execution of decree was to be passed upon any fresh application presented after expiration of six years from the date of decree sought to be executed---If fresh application had been filed then same would be governed by S. 48, C.P.C.---First execution petition would be governed by Art. 181 of Limitation Act, 1908 which provided a period of three years for filing an application for execution of the decree---Petitioners, in the present case, had not applied for execution of decree before filing of present execution petition, which was barred by 16 months and 10 days---Period of limitation provided under S. 48, C.P.C. was not relevant---Petitioners had failed to point out any illegality or defect in the impugned judgment passed by the Court below---Revision was dismissed, in circumstances.

House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal through LRs 2007 SCMR 1929; Secretary to Government of the then NWFP now KPK Forest Department, Peshawar and another v. Abdur Rehman and others 2000 CLC 1047; Malka and 4 others v. Sultan and another 2008 CLC 197; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; National Bank of Pakistan v. Mian Aziz-ud-Din 1996 SCMR 759 and Bakhtiar Ahmad v. Mst. Shamim Akhtar 2013 SCMR 5 rel.

Qazi Imdadullah for Petitioner.

Haq Nawaz, Asstt: Advocate-General and Shah Salam Khan for Respondents.

2020 C L C 1097

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

INAYATULLAH----Appellant

Versus

MEHBOOB ELAHI----Respondent

R.F.A. No.15-D of 2019 with C.Ms. Nos.17-D and 18-D of 2019, decided on 23rd October, 2019.

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

----O.XLIV, R.1 & O. XXXIII, R. 1---Appeal as pauper---Scope---Suits may be instituted in forma pauperis---Daily wages worker---Scope---Applicant sought exemption from affixation of court-fee on the memorandum of appeal---Applicant had stated in his application that he was a daily wages worker; was the sole bread earner of his family; had no other source of income to affix the requisite court fee and had no property other than his dwelling house---Application was supported by an affidavit and the respondent had not produced anything in rebuttal---Validity---High Court had ample powers to exercise its discretion in appropriate cases and declare a person as "pauper" and allow him to file an appeal in forma pauperis, if he had not enough and sufficient means to affix the requisite court fee--Application was accepted and the applicant was held entitled to file appeal in forma pauperis.

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

----O. XXXIII, R. 1---Suits in forma pauperis---Scope---When a person has not enough and sufficient means to affix the requisite court fee, he can neither be non-suited due to his poverty and insufficiency of resources nor he can be restrained from seeking relief from the court on the basis of the non-payment of court fee, rather the same would be amounting to condemn a person for none of his fault, which is not permissible under any norms of justice.

Muhammad Idrees Khan for Appellant.

2020 C L C 1202

[Peshawar]

Before Ahmad Ali, J

HAZRAT WALI----Appellant

Versus

LAND ACQUISITION COLLECTOR, MARDAN and 5 others----Respondent

R.F.A. No.133-P of 2014, decided on 18th November, 2019.

Land Acquisition Act (I of 1894)---

----Ss.18, 30, 31, 9, 10 & 12---Reference to court---Limitation, commencement of---Payment of compensation---Non-issuance of notice by the Land Acquisition Collector---Effect---Petitioner having not been paid any compensation of acquired land filed reference before the Land Acquisition Collector---Land Acquisition Collector while holding reference as time barred referred the same to the Referee Court---Respondent had returned the compensation so received by him to the extent of land of petitioner, and his name was deleted from the reference---Referee Court rejected the reference on the ground that compensation had been awarded to the petitioner---Validity---Nothing was on record that any notice under S. 12(2) of Land Acquisition Act, 1894 had been issued to the petitioner---Limitation for filing reference would start from the date of knowledge of issuance of award---No specific method for filing reference under Ss. 30 & 31 of Land Acquisition Act, 1894, had been provided---Provisions of Ss. 30 & 31 of Land Acquisition Act, 1894 could not be considered in isolation of S.18 of the Act and vice versa---Section 18 of Land Acquisition Act, 1894, was not limited to the re-determination of compensation amount rather it had provided only a mechanism to file an application to Land Acquisition Collector---Filing of reference itself was sufficient to construe protest within the purview of S.31(2) of Land Acquisition Act, 1894---If reference was barred by the provisions of S.18 of Land Acquisition Act, 1894 then same could not be referred to the Referee Court and Land Acquisition Collector was bound to dismiss the same in its entirety---Once reference was made to Referee Court, it could not deny to entertain the same on the ground of limitation---Impugned order passed by the Court below was set aside and matter was remanded to the Referee Court for decision in accordance with law---Appeal was allowed, in circumstances.

Allahdino v. Faqir Muhammad PLD 1969 SC 582; Muhammad Jan and 4 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 7 others 1996 CLC 1967; Muhammad Meharban and 4 others v. Collector Land Acquisition Mirpur Zone-I and 2 others 2017 YLR 217; Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and another v. Waheed Ahmed Khan and 10 others and 2017 YLR 1895 and Jannat Khan v. Chairman National Highway Authority, Islamabad and 3 others 2013 CLC 1134 rel.

Syed Shamsul Hadi for Appellant.

Sofia Noreen A.A.G. for Respondents.

2020 C L C 1243

[Peshawar]

Before Muhammad Naeem Anwar, J

T.M.A. KOHAT----Petitioner

Versus

IFTIKHAR ALI SHAH----Respondent

Civil Revision No.1101 of 2010, decided on 6th January, 2020.

(a) Contract---

----Octroi contract---Penal clause in agreement---Enforcement---Scope---Default in payment of instalments---Penalty, imposition of--- Estoppel, principle of---Applicability---Interpretation of an instrument---Requirements---Octroi contract was executed between plaintiff-contractor and defendants---Plaintiff agreed to deposit monthly instalments on the last day of each month failing which he was required to be penalized at the rate of 1% per day for late payment---Defendants before imposing penalty were required to serve three day's notice upon the contractor for doing the needful and in case of failure to pay instalment the penalty was to be imposed---Plaintiff committed default in payment of instalments and penalty---Plaintiff filed suit against the said penalty which was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Entire clause of contract for the purpose of imposition of penalty should be read and a part thereof could not be interpreted in isolation from the rest of the contents of said clause---Plaintiff for invoking penal clause should have been served with a notice for payment of instalments within three days when first ever default was committed and contract should have been cancelled for non-payment of instalments---Defendants never opted to invoke the penal clause as per agreed terms but they waited till expiry of contract---Defendants after receiving entire contract amount had started recovery of penalty by pressing into service the penal clause of the contract---Defendants remained quiet in continuous default of contractor for his non-payment of monthly instalments within due time for eight months and had accepted amount being deposited after stipulated period---Principle of acquiescence was applicable in the present case---Defendants could not press into service the penal clause of contract after expiry of contract period---Three day's notice was sine qua non for invoking the penal clause of contract and in absence of said notice no penalty could be imposed---Controversy should have been resolved on the agreed terms and conditions of contract---Defendants had not served any notice to the plaintiff for making payment of instalments within three days from the first ever default---Contractor could not be penalized, in circumstances---Revision was dismissed accordingly.

Liaqat Ali Khan v. Falak Sher PLD 2014 SC 506; Al-Abdullah Construction (Pvt.) Ltd. v. WAPDA 2003 YLR 1535 and PLD 1970 Dacca 490 rel.

(b) Estoppel---

----Meaning illustrated.

A person who stands and keeps silence when he observes another person acting under a misapprehension or mistake, which by speaking he could have prevented by showing the true state of affairs, thus, an owner of goods who voluntarily allows another to treat them as his owner, without protest whereby a third person is induced to buy them bona fide, cannot recover them from that person. Similarly, if a stranger begins to build on land supposing it to be his own, and the real owner observing his mistake abstains from setting him right and leaves him to preserve in his error, equity will not afterwards allow the real owner to assert his title to the land.

Concise Law Dictionary by PG Osborne. quoted.

Haji Muhammad Zahir Shah for Petitioner.

Nemo. for Respondents.

2020 C L C 1279

[Peshawar]

Before Qaiser Rashid Khan and Ahmad Ali, JJ

ABDUL WAJID and 10 others----Petitioners

Versus

TEHSIL MUNICIPAL ADMINISTRATION and others----Respondents

Writ Petition No.2820-P of 2018, decided on 24th October, 2019.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Removal of billboards from the road sides---Contention of petitioners was that they had been paying tax to the Government and their billboards had been removed without giving any show-cause notice to them---Validity---Petitioners had installed billboards without permission from any government Authority---Petitioners were not fair and impartial in their claim---Billboards had been uprooted from the earth and were not destroyed---Any loss if sustained by the petitioners could not be taken into account for the sake of interest of general public---No one could be allowed to take law in his hands---Jurisdiction of High Court under Article 199 of the Constitution was equitable and discretionary---Petitioners had not come to the Court with clean hands---Constitutional petition was dismissed, in circumstances.

(b) Equity---

----He who comes into equity must come with clean hands.

(c) Equity---

----He who seeks equity must do equity.

(d) Maxim---

---"Salus populi est suprema lex" : Public Safety/Welfare is the supreme law---Illustration.

(e) Maxim---

---"Jura publica anteferenda privatis juribus" : Public rights are to be preferred to private rights---Illustration.

(f) Maxim---

---"Injuria non excusat injuriam"---A wrong does not excuse a wrong illustration.

Hafiz Fazal Raheem for Petitioners.

Ijaz Ali Khan for Respondent No.1. along with Shahbaz Khan, Admin. Officer, T.M.A. Razzar, District Swabi.

2020 C L C 1286

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

Haji MUKARRAM KHAN----Petitioner

Versus

Haji BADSHAH KHAN and others----Respondents

Writ Petition No.445-M of 2015, decided on 21st November, 2019.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Civil Procedure Code (V of 1908), O. VII, R. 11 & S. 89-A---Ejectment petition---Tenant filed application for summary rejection of eviction petition on the ground that co-owner had compromised with him---Rent Controller dismissed the said application---Validity---If co-owner of demised premises had filed separate application for enhancement of rent and same had been decided on merit or under S.89-A of C.P.C. then it did not create a bar in the way of seeking ejectment of tenant nor same rendered the ejectment petition not maintainable---Even one of co-sharers could file an application for ejectment of tenant---Interim order of Rent Controller could not be assailed under constitutional jurisdiction of High Court---Constitutional petition was dismissed, in circumstances.

PLD 2000 SC 787 ref.

Altaf Hussain v. Mst. Nuzhat-un-Nisa PLD 2000 SC 67; Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429; PLD 2000 Pesh. 65; Atiq-ur-Rehman v. Naima Tabassum and others 2016 CLC 1905 and Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 ref.

Aurangzeb for Petitioner.

Rashid Ali Khan for Respondent.

2020 C L C 1406

[Peshawar]

Before Muhammad Naeem Anwar, J

FAZAL MEHMOOD and others----Petitioners

Versus

ARSHAD HUSSAIN and others----Respondents

Civil Revision No.201-P of 2014 with C.M. No.1251 of 2018, decided on 6th January. 2020.

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

----S.53-A---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 100---Evidence Act (I of 1872), Ss. 68 & 90 (since repealed)---Sale deed---Burden of proof---Document more than thirty years old---Presumption of truth---Scope---Admission on behalf of one of the defendants---Effect---Contention of plaintiffs was that they had purchased suit property from the defendants through sale deeds whereas defendants had contended that alleged sale deeds were forged and fabricated---Suit was dismissed concurrently---Validity---Alleged sale deeds were scribed on 27-09-1962 having two marginal witnesses---One of the marginal witnesses of sale deeds had expired while other was alive but he was not examined on behalf of plaintiffs---Only one marginal witness was sufficient to prove the execution of alleged sale deeds under S.68 of Evidence Act, 1872---Inference could be drawn that had second witness of sale deeds been produced by the plaintiffs then he would not have deposed in their favour---Defendants had denied not only the execution of sale deeds but also receipt of sale consideration---Burden to prove the payment of sale consideration was on the plaintiffs but they had failed to discharge their onus---Mere producing a single witness under S.68 of Evidence Act, 1872 would not absolve the plaintiffs from proving the execution of deeds---Nothing was on record that when, where and in whose presence the sale consideration was paid to the defendants---Mere exhibition of sale deeds in absence of solid and tangible evidence was not sufficient to prove the contention of plaintiffs---Plaintiffs were bound to prove not only the contents of documents/deeds to be true but in addition to that payment of sale consideration which was lacking in the present case---Plaintiffs had failed to substantiate their claim and they were rightly non-suited---Mere thirty years age of document did not make it un-rebuttable or absolute proof---Such a document according to the facts and circumstances of the case was subject to proof---Nature and contents of alleged deeds in the present case were not sufficient to grant the prayer of the plaintiffs---Cognovit submitted on behalf of one of the defendants was not helpful for the plaintiffs as execution of sale deeds had been denied by the defendants---Even statement of said defendant could be considered as corroborative piece of evidence and not conclusive---Defendant who had admitted the claim of plaintiffs could have alienated his own share in the suit property in favour of plaintiffs---No possession of suit property as per alleged sale deeds had been delivered to the plaintiffs---Plaintiffs were in possession on the suit land being tenant---No mis-reading or non-reading of evidence or illegality or irregularity had been pointed out in the concurrent findings recorded by the Courts below---Revision was dismissed, in circumstances.

2010 CLC 407; 2015 YLR 456; PLD 2006 SC 66; 1997 SCMR 837; 2004 MLD 827; 2003 CLC 78; PLD 2006 SC 318 and 2017 SCMR 98 distinguished.

Abdul Khaliq v. Muhammad Asghar Khan and 2 others 1996 Lah. 367; Jan Bahadar and others v. Toti Khan and another 2007 SCMR 497 and Mst. Zakia Begum v. Mian Abdullah Shah 2014 YLR 1378 rel.

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

----S. 115---Concurrent findings of Courts below---Revisional jurisdiction of High Court---Scope.

Within the meaning of Section 115 of the Civil Procedure Code, 1908, High Court could only interfere with concurrent findings when the case falls within exceptional clauses. Under section 115, C.P.C. jurisdiction of High Court is limited and restricted to the cases where two courts below have misread the evidence or excluded from consideration material piece of evidence having bearing on the facts of the case.

Altaf Hussain v. Abdul Hameed 2000 SCMR 314; Aziz Ullah v. Gul Muhammad Khan 2000 SCMR 1647 and Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50 rel.

Khaista Muhammad for Petitioner.

Zulfiqar Ali for Respondent No.4.

2020 C L C 1453

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

NOOR ALAM KHAN and others----Petitioners

Versus

SENIOR MEMBER BOARD OF REVENUE, KHYBER PAKHTUNKHWA, PESHAWAR and others----Respondents

Writ Petition No.89-D with C.M. Nos.118, 379 and 495-D of 2015, decided on 5th December, 2019.

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

----Ss. 150, 20, 4(23) & 7--- Khyber Pakhtunkhwa Land Revenue Rules, 1968, R. 7---Partition proceedings---Officer who may be empowered to conduct partition proceedings---Powers to make Rules as to procedure---Revenue Officers---Classes of Revenue Officers---Scope---Chapter XI of the Khyber Pakhtunkhwa Land Revenue Act, 1967, (the Act) relates to partition proceedings---Section 150 of the Act determines the Revenue Officer by whom proceedings may be taken, which shall be a Revenue Officer not below an Assistant Collector of the First Grade---Term 'Revenue Officer' has been defined in subsection (23) of S.4 of the Act, which means a Revenue Officer having an authority under the Act to discharge the functions of a Revenue Officer---Section 7 of the Act provides various classes of Revenue Officers---Bare reading of said provisions clearly suggests that the powers to conduct the partition proceedings under Chapt. XI of the Act, have been conferred upon the Revenue Officer and thus, the same can only be exercised by him and not by any other subordinate revenue official of the department---Subsection (3) of S.20 of the Act, provides that the Revenue Officer may refer any case to another Revenue Officer subordinate to him for investigation and report but not to any other subordinate revenue official of the department i.e. Kanungo or Patwari---Rule 7 of Khyber Pakhtunkhwa Land Revenue Rules, 1968, although empowers the Revenue Officer to issue Commission in the proceedings pending before him but when R.7 is read in juxtaposition with the provisions of subsection (3) of S.20 of the Act, it follows that the Revenue Officer is competent and empowered to appoint a local commissioner but the Commissioner must not be below the rank of a "Revenue Officer".

Muhammad Rehman Zaib and 5 others v. Sardar Khan and 6 others 2016 YLR 35 rel.

Mst. Bachu Bibi v. Member Board of Revenue and others (W.P.No.3 78-D of 2012) decided on 21.11.2017. ref.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.121---Demarcation of boundaries and erection of boundary marks---Officer who may be empowered to conduct demarcation proceedings---Scope---Question before High Court was whether, except the Revenue Officer, any other subordinate Revenue Official of the department was competent to conduct demarcation proceedings---Held; entire scheme of the partition revolved around the Revenue Officer and the Khyber Pakhtunkhwa Land Revenue Act, 1967, had nowhere provided that partition proceedings could be conducted by any person other than the Revenue Officer nor it had been provided that the Revenue Officer could delegate his powers to any other person subordinate to him below the rank of Revenue Officer for the conduct of the said proceedings.

(c) Administration of justice---

----When the law requires a thing to be done in a particular manner, then it should be done in that particular manner and not otherwise.

S. Abid Hussain Bukhari on behalf of Muhammad Yousuf Khan for Petitioners.

Adnan Ali, Asstt: A.G. and Salahuddin Khan Gandapur for Respondents.

2020 C L C 1482

[Peshawar]

Before Ahmad Ali, J

NOOR JAN and 18 others----Petitioners

Versus

Mst. BUZARGA and others----Respondents

Civil Revision No.944-P of 2019, decided on 27th September, 2019.

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

----S.42---Suit for declaration---Limitation---Relinquishment agreement---Contention of plaintiffs was that defendant had relinquished her share in the legacy of her father---Suit was dismissed concurrently---Validity---Plaintiffs had filed present suit after seventeen years from the execution of alleged agreement---Plaintiffs were not vigilant in asserting their rights by filing the suit---Nothing was on record that plaintiffs had performed any overt act to keep the relinquishment agreement alive---Alleged agreement had expired and same had no legal binding effect---Although there was no time frame for the compliance of alleged agreement but same was to be done within the reasonable time which otherwise had been provided as three years---Limitation would start from the date of refusal but in absence of any refusal too it would become the duty of beneficiary to make efforts to safeguard his rights---If no such efforts were made then after the lapse of three years, beneficiary of such agreement would be barred by the law of limitation to file suit---No date of refusal in the present case had been mentioned in the plaint to calculate the limitation---Limitation would not start from the refusal as beneficiary of agreement was bound to assert his right in the Court within the scope of limitation even there was no refusal on the part of other party---No illegality, mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed in limine.

Ainuddin and others v. Abdullah and another 2019 SCMR 880 and Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 677 rel.

(b) Administration of justice---

----Law favours the vigilant, not the indolent.

Abu Saeed Bacha and Ms. Nadia Feroz Khan for Petitioners.

2020 C L C 1491

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

KHAN SHAHZADA----Petitioner

Versus

MUHAMMAD ISRAR and others----Respondents

Writ Petition No.49-M of 2017, decided on 26th September, 2019.

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

----S.12(2)---Fraud allegedly committed by attorney of applicant---Scope---Petitioner challenged the concurrent dismissal of his application under S.12(2), C.P.C. which was filed on the ground that his attorney had defrauded him by entering into compromise with the defendants---Validity---Petitioner had disowned the factum of compromise but he had nowhere disowned the appointment of special attorney---Petitioner, on his verbal examination by the Additional District Judge, had stated that the amount received by the attorney was not paid to him according to his share---Authorization to enter into arbitration, settlement or compromise was expressly conferred on the special attorney---No case of fraud or misrepresentation had come out of the record against the defendants in the suit or anyone else---Remedy available to the petitioner was to sue his attorney in damages or for recovery of the specific amount---Defendants could not be dragged into litigation just because attorney had allegedly committed some fraud---Constitutional petition was dismissed, in circumstances.

Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation PLD 1996 SC 213 ref.

Mst. Shabana Irfan v. Muhammad Sham Khan 2009 SCMR 40 rel.

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

-----S.12(2)---Application under S.12(2), C.P.C.---Procedure---Court while dealing with an application under S. 12(2), C.P.C. is not always obliged to carry out the full exercise like a regular civil suit---Legislature has left it to the discretion of the court to decide it on case to case basis, whether a factual inquiry is required in the circumstances of the case or not---If the court comes to the conclusion that the material available on record can safely be utilized for making a just decision on the application under S.12(2), C.P.C., according to law, then recording of evidence may be avoided.

Mst. Shabana Irfan v. Muhammad Sham Khan 2009 SCMR 40 rel.

Ziarat Gul for Petitioner.

Hazrat Rehman for Respondents.

2020 C L C 1578

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

Syed MUJAHID RAZA and another----Petitioners

Versus

MD PEPCO, WAPDA HOUSE, LAHORE and others----Respondents

C.R. No.550-A of 2019, decided on 17th February, 2020.

Civil Procedure Code (V of 1908)---

----S.114---Review---Scope---Petitioner sought review of the judgment but Trial Court dismissed the same---Validity---Reviewing Court was not to sit in appeal over its own order---Rehearing of the matter was impermissible in law; it was an exception to general rule that once a judgment was signed or pronounced, it should not be altered---Power of review could be exercised for correction of a mistake and not to substitute a view---High Court declined to interfere in the judgment passed by the Court below as the petitioner failed to point out any illegality or irregularity in the judgment---Petition was dismissed, in circumstances.

Chief Secretary Government of Khyber Pakhtunkhwa and 5 others 2017 YLR 229; Mst. Parveen Bibi v. Zulqarnain and 2 others 2018 CLC Note 11; Mst. Mukhtar Mai v. Abdul Khaliq and others 2019 SCMR 1302; Syed Rizwan Ahmed and 3 others v. Secretary, Cadd, Islamabad and others 2018 SCMR 997; 2018 PLC (C.S.) 1209; Daewoo Corporation v. Zila Council, Jhang and 2 others 2004 SCMR 1213; Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Mirza Tahir Hussain v. The State and another 2005 SCMR 330 and Majid Mahmood v. Muhammad Shafi 2008 SCMR 554 rel.

Syed Waqas Naqvi for Petitioner.

2020 C L C 1600

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

FAZAL WAHID----Petitioner

Versus

Sayed AHMAD alias Ahmed Sayed ----Respondent

Civil Revision No.656-P of 2011, decided on 21st November, 2019.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Contract Act (IX of 1872), Ss. 2(d), 10 & 124---Transfer of Property Act (IV of 1882), S. 3---Money suit---Guarantee agreement---Proof of---Procedure---Consideration---Attesting witness and scribe---Evidentiary value---Plaintiff filed suit that defendant had undertaken to pay amount of principal debtor---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Defendant had agreed to pay the outstanding liability of debtor who was his son---Plaintiff had established guarantee agreement by producing its scribe and one of the marginal witnesses---Scribe of agreement had stated that he had reduced the same into writing which had been read over to the parties and thereafter parties as well as witnesses had thumb impressed/signed the document---Requirements under Art. 17 & 79 of Qanun-e-Shahadat, 1984 had been complied with---Scribe had qualified to be an attesting witness of the deed---Guarantee agreement was neither a contract of indemnity nor contract of guarantee in a strict sense---If a person had undertaken to pay liability of another person then it was a valid consideration---Agreement in question was enforceable under the law, in circumstances---Findings recorded by the Appellate Court were not based on correct appreciation of law and fact which were not sustainable---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, in circumstances.

Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 rel.

Said Karim Shalman for Petitioner.

Abdul Salam Buneri for Respondent.

2020 C L C 1648

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

NOYESER KHAN JADOON----Petitioner

Versus

KHAN AFSAR JADOON----Respondent

Civil Revision No.82-A of 2018, decided on 24th February, 2020.

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

----O.VII, R. 11 & O. XXIII, R. 1---Suit for declaration---Plaintiff got recorded statement that his grievance had been redressed by the revenue hierarchy and he prayed for withdrawal of suit with permission to file a fresh one---Trial Court dismissed suit as withdrawn---Revenue officer having brought changes in the revenue record---Subsequent suit---Plaint, rejection of---Scope---Defendants moved application for rejection of plaint on the ground that earlier suit had been dismissed as withdrawn unconditionally and fresh suit on same cause of action was not maintainable---Trial Court rejected the plaint but Appellate Court remanded the matter for decision afresh after recording of evidence---Validity---Where suit was withdrawn seeking permission to file a fresh one and Court had simply dismissed the same as withdrawn without adverting to the statement or contents of application and without recording any reason then it should be presumed that permission for filing afresh suit had been granted---Fresh cause of action had been accrued to the plaintiff on reversal of previous position in the revenue record---Second suit was competent, in circumstances---Present suit was maintainable and it was not hit by O.XXIII, R.1 of C.P.C.---Trial Court had rejected the plaint without appreciating the law applicable to the case---Appellate Court had rightly set aside the findings recorded by the Trial Court and remanded the case fordecision on merits---Revision was dismissed, in circumstances.

Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through LRs and others 2013 SCMR 464; S.Nisar Ali v. Feroz Din Rana and another 1969 SCMR 933 and Kiran Gul and another v. Shehzad Gul and another 1970 SCMR 141 rel.

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

----O. VII, R. 11---Plaint, rejection of---Requirements---Only averments made in the plaint and documents appended therewith should be taken into consideration while invoking the provisions of O. VII, R.11 of C.P.C.---Court could not take into consideration the pleas raised by the defendant in the suit in his defence while deciding application for rejection of plaint.

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

----O.VII, R.11---"Cause of action"---Meaning---Term "cause of action" as used in O.VII, R.11, C.P.C. represents all requisite facts which are necessary for the plaintiff to prove before he can succeed in the suit.

Nasrullah Khan for Petitioner.

Junaid Anwar Khan for Respondent.

2020 C L C 1677

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

OBUID ULLAH and another----Petitioners

Versus

ZAHIR SHAH 2 others----Respondents

Civil Revision No.16-M of 2017, decided on 5th December, 2019.

(a) Islamic Law---

----Will---Scope---Will executed in favour of a legal heir could not be given effect without the consent of other legal heirs---When deed of Will had not been proved, then benefit of S.41 of Transfer of Property Act, 1882 could not be extended in favour of defendant---Deed of will would only be operative with regard to suit property to the extent of shari share of defendant.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----S.96 & O. XLI, R. 33---Conflict between judgment of Trial Court and First Appellate Court---Effect---Normally judgment of First Appellate would be given preference over the judgment of Trial Court.

Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary Finance and others 2007 SCMR 969 and 2007 SCMR 576 rel.

Umar Ali Akhunzada for Petitioners.

Iftikhar Ahmad Nasir for Respondent.

2020 C L C 1712

[Peshawar]

Before Waqar Ahmad Seth, CJ and Muhammad Naeem Anwar, J

Malik SARFARAZ KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad and 7 others----Respondents

Writ Petition No.2268-P, 2020, decided on 15th May, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Commitment of Provincial Government to distribute fund to deserving advocates and clerks---Scope---Committee was constituted to sort out the deserving advocates and clerks for the purpose---High Court directed the Provincial Government to transfer the amount to the concerned department as per commitment and distribution of the same within specific period---Clerks of advocates would be given ten percent of the amount as given to the advocates---Constitutional petition was disposed of, accordingly.

Malik Amjad Inyat, Syed Bilal Jan, Adil Khan and Muhammad Asif for Petitioner.

Qazi Baber Irshad, Additional Attorney General and Atif Ali Khan, Addl. A.G. on behalf of Respondents.

2020 C L C 1799

[Peshawar]

Before Waqar Ahmad Seth, CJ and Muhammad Naeem Anwar, J

Messrs LUCKY CEMENT LIMITED through Authorized Representative----Petitioner

Versus

GENERAL MANAGER and 3 others----Respondents

Writ Petition No.2298-P of 2020, decided on 23rd April, 2020.

(a) Words and Phrases---

----"Interlocutory", meaning of---Term "interlocutory" had been derived from Medieval Latin term "interlocutorious" and from the Late Latin term "interloqui"---"Interlocutory" is a legal term which refers to an order, sentence, decree or judgment given in an intermediatory stage between commencement and termination of a cause of action, and is used to provide a temporary or provisional decision on an issue---Interlocutory order was not a final order and was not subject to immediate appeal---Word "Interlocutory" is applied to signify something which was done between commencement and end of a suit and which decided some point or matter, which however was not final decision in the matter at issue---Interlocutory was an order which decided not the cause but settled some intervening matter relating to it.

Medieval Latin interlocutorius, from Late Latin interloqui and Black's Law Dictionary by Henry Campbell Black M.A. Fourth Edition rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Interim order could not be challenged by invoking Constitutional jurisdiction of High Court.

Mst. Seema Begum v. Muhammad Ishaq PLD 2009 SC 45; Muhammad Daud v. Suriya Iqbal PLD 2000 Pesh. 54 and Main Muhammad Zia through General Attorney and 6 others v. Navid Abrar and 3 others PLD 2005 Pesh. 153 rel.

Issac Ali Qazi for Petitioner.

Asad Jan for Respondents.

2020 C L C 1840

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

TAJ ALI KHAN and others----Appellants

Versus

Dr. KHALID MAHMOOD----Respondent

Criminal Appeal No.117-M and Criminal Miscellaneous No.81-M of 2019, decided on 28th February, 2020.

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss.16 & 17(2)---Section 16 of Khyber Pakhtunkhwa Consumers Protection Act, 1997---Nature---Strict liability under S.16 of Khyber Pakhtunkhwa Consumers Protection Act, 1997---Scope---Section 16 of Khyber Pakhtunkhwa Consumers Protection Act, 1997 was both penal and remedial in nature as it prescribed penalties but also provided guarantee for enforcement of protection of rights of consumers and compensation for loss or damage to consumers---Strict liability for breaches was forthcoming under provisions of S.16 of Khyber Pakhtunkhwa Consumers Protection Act, 1997 however for presumption as to mens rea to be rebutted, it was required that strict liability must be essential to give practical effect to legislative intention and also that person charged with breach of statutory duty must have had some opportunity of furthering their observance---Under S.16 of Khyber Pakhtunkhwa Consumers Protection Act, 1997, no one was to be subjected to a burden which in normal course of events could not have been discharged by such person(s).

Understanding Statutes by S.M. Zafar; Maxwell on the Interpretation of Statutes (Twelfth Edition by P.St. J. Langan); Nasir Abbas v. The State and another 2011 SCMR 1966; Syeda Waheeda Shah v. Election Commission of Pakistan 2013 PLD 117 and Vane v. Yiannopoullos (1965 A.C. 486 per Loard Evershed P.500) rel.

Barrister Asad-ur-Rehman for Appellant.

Aurangzeb for Respondent.

2020 C L C 1874

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

Mst. FARHAT IMAM----Petitioner

Versus

SAJID NAZEEF and another----Respondents

Writ Petition No.814-B of 2017, decided on 27th February, 2020.

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

----S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Scope---Petitioner assailed judgment and decree passed by Family Court whereby her marriage was dissolved on the basis of khula instead of cruelty by husband/respondent---Validity---Petitioner had not sought decree for dissolution of marriage on the basis of khula instead she had claimed dissolution on the ground that the respondent had contracted second marriage without seeking her permission, forced her out of his house and thereafter did not provide maintenance---Petitioner had proved that behaviour of respondent remained cruel towards her throughout---Family Court had erred in passing the decree for dissolution of marriage on the basis of khula, in circumstances---Constitutional petition was allowed accordingly.

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

----S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Plea of khula---Scope---Wife would lose her dower only if she seeks dissolution of marriage on the sole ground of khula and not when she urges other grounds in support of her case, unless the other grounds are not proved---Entitlement to receive dower or its retention would remain unaffected and intact, if wife proved other grounds like cruelty of the husband.

Habib-ur-Rehman v. Additional District Judge, Lahore and others 1984 SCMR 1430 rel.

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

----S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Plea of khula---Scope---Woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on anyone or more of the grounds available under the law---Each ground is separate and enough for dissolution---Where marriage is dissolved on other grounds the result would have been the same irrespective of the fact that the plea of khula was raised or not---Legal rights cannot be curtailed by implication.

(d) Administration of justice---

---Legal rights cannot be curtailed by implication.

Arsala Khan for Petitioner.

Farman Ali Khan for Respondent.

2020 C L C 1913

[Peshawar]

Before Lal Jan Khattak and Ahmad Ali, JJ

MISAL KHAN----Petitioner

Versus

DIRECTORATE OF INDUSTRIES and others----Respondents

W.P. No.3574-P of 2018, decided on 12th February, 2020.

Khyber Pakhtunkhwa Mining Concession Rules, 2005---

----R.170---Lease for coal mines excavation, sub-letting of---Cancellation of---Lease for coal mines excavation was cancelled on the ground that same had been sublet in favour of petitioner---Contention of petitioner was that he was not afforded an opportunity of hearing---Validity---No lease holder could sublet the mine for the purpose of extraction of the mineral to any third person---Sub-contracting could be done with the permission of licensing authority and in case of violation licence or lease could be cancelled---Provisions of R.170 of Khyber Pakhtunkhwa Mining Concession Rules, 2005 were mandatory---Opportunity of hearing was the prerogative of lessee/licensee only and such opportunity was not for the sublettee---Lease holder had not joined hands with the present petitioner in filing of constitutional petition to protect his leased area---Constitutional petition was dismissed in circumstances.

Hashim Raza for Petitioner.

Shakirullah Afridi for Respondents.

Moeen-ud-Din Humayun, A.A.G. for Official Respondents.

2020 C L C 1955

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

ALL SWAT SABZI MANDI ASSOCIATION through President----Petitioner

Versus

SECRETARY LOCAL GOVERNMENT KHYBER PAKHTUNKHWA, PESHAWAR and 4 others----Respondents

W.P. No.3718-P of 2019 with Interim Relief (N) decided on 17th December, 2019.

Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss.22(o) & 117---Association of persons---Locus standi---Markets, power to regulate---Petitioner was Association of Fruit and Vegetable Dealers who assailed location selected by authorities for shifting existing Fruit and Vegetable market to that new location---Validity---Association of petitioner was not registered under any law and was lacking legal capacity to file constitutional petition---Association also lacked locus standi to bring an action for redress of grievance of its individual members---Provisions of S.117 of Khyber Pakhtunkhwa Local Government Act, 2013, provided authority to local bodies to regulate public markets which also included its relocation---Provision of para-49 of Standard Operating Procedures notified on 21-12-2015 was of particular significance in such respect---Authorities were not divested of legal capacity to grant or refuse "No Objection Certificate" for new market---High Court declined to interfere in the matter as constitutional petition was filed incompetently and was meritless---Petition was dismissed, in circumstances.

Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629; Muhammad Imran and others v. The Province of Sindh through Chief Secretary and others 2019 SCMR 1753; Mahabir v. Anjuman Wazifatul Muslimin AIR 1935 Allahabad 872; Abbas Khaleeli and others v. Saifuddin Valika and others PLD 1969 Kar. 692; Pakistan Readymade Garments Manufacturers and Exporters Association (`PRGMEA') through Chairman v. Government of Pakistan through Ministry of Finance and another 2013 PTD 1582; Pakistan Steel Re-Rolline Mills Association v. Province of West Pakistan PLD 1964 (W.P.) Lah. 138; E.O.B.I. Officers' Association of Pakistan through President and 2 others v. Messrs Employees' Old Age Benefits Institution (EOBI) through President and 2 others 2011 PLC 336; and Administrator, Market Committee, Kasur and 3 others v. Muhammad Sharif 1994 SCMR 1048 ref.

Hussain Abuzar Pirzada and Shehryar Nawaz Malik for Petitioner.

Haq Nawaz, Asst: A.G. for Respondents Nos.1 and 3 to 5.

Aurangzeb for Respondent No.2/TMA.

2020 C L C 2006

[Peshawar]

Before Muhammad Naeem Anwar, J

MUZAFAR SHAH----Petitioner

Versus

ABDUL AKBAR and others----Respondents

C.Rs. Nos.909-P, 958-P of 2014 and 173-P of 2015, decided on 17th February, 2020.

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

----S.52---Suit for declaration---Inheritance---Share of issueless legal heir---Distribution---Longstanding entries of revenue record---Presumption of truth---Contention of plaintiffs was that they being legal heirs of deceased were entitled to his estate---Suit was partially decreed concurrently---Validity---Longstanding entries in the revenue record had presumption of truth---Nearer in degree did exclude the more remote---Predecessor of defendants being consanguine brother in presence of full brother would not get any share from the property of issueless brother---Share of issueless brother would be distributed among full brothers---Findings of both the Courts below were in accordance with law---Plaintiffs were entitled to the legacy of deceased---Correction of entries in the revenue papers with regard to relationship of plaintiffs with the deceased had already been made---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Mazloom Hussain v. Abid Hussain PLD 2008 SC 571; Hakim Khan v. Aurangzeb and others 1979 SCMR 623 and PLD 2018 Sindh 324 rel.

(b) Islamic Law---

----Inheritance---Agnatic heirs---Classes.

The Agnatic heirs may be classified into (i) Agnatic Descendants, (ii) Agnatic Ascendant and (iii) Agnatic Collaterals (Father's Agnatic descendants). They may be depicted in tabular form, where full brother is at Serial No.5.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below could not be set at naught by the High Court unless there were gross illegality or mis-reading and non-reading of evidence.

Abdul Mateen Khan and others v. Mst. Mustakhia Khan 2006 SCMR 50 rel.

Mustafa Kamal for Petitioner (in C.R. No.909-P of 2014).

Zia-ur-Rehman Khan for Respondents Nos.1 to 5, 55, 57 and 61 (in C.R. No.909-P of 2014).

Muhammad Riaz A.A.G. for Official Respondents (in C.R. No.909-P of 2014).

Javed A. Khan for Rest of Respondents (in C.R. No.909-P of 2014).

Afroz Ahmad for Petitioner (in C.R. No.958-P of 2014).

Muhammad Riaz, A.A.G. for Official Respondents (in C.R. No.958-P of 2014).

Zia-ur-Rehman Khan for Rest of Respondents (in C.R. No.958-P of 2014).

Javed A. Khan for Petitioners (in C.R. No.173-P of 2015).

Muhammad Riaz A.A.G. for Official Respondents (in C.R. No.173-P of 2015).

Zia-ur-Rehman Khan for Rest of Respondents (in C.R.No.173-P of 2015).

2020 C L C 2055

[Peshawar]

Before Muhammad Naeem Anwar, J

ABDUL GHAFOOR and 3 others----Petitioners

Versus

SABIR REHMAN and others----Respondents

W.P. No.5124-P of 2017, decided on 7th February, 2020.

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

----O.VII, R.11---Plaint, rejection of---Suit for declaration---Limitation---Estoppel, principle of---Applicability---Longstanding entries of revenue record---Scope---Defendants moved application for rejection of plaint which was dismissed by the Trial Court but Appellate Court rejected the plaint---Validity---Suit earlier filed on behalf of predecessor-in-interest of plaintiffs had been dismissed upto Supreme Court and partition application was also dismissed---Plaintiffs had not appended copies of judgments passed in the earlier suit with the present case---Plaintiffs had admitted the fact of earlier litigations where their predecessor-in-interest was party---Predecessor-in-interest of plaintiffs was aware of the entries of the revenue record and same had not been assailed in the present suit---Plaintiffs had acquiesced by their conduct by not challenging the entries of revenue record and they were estopped to file the present suit---Longstanding entries of revenue record could not be challenged by the plaintiffs in circumstances---Limitation could not be considered to be a mixed question of law and facts in the present case---Present suit was incompetent and same must be buried from its inception---Fruitless and useless litigation was not to be encouraged---Court while determining the scope of O.VII, R.11 of C.P.C. should consider the contents of plaint but there was no clog from considering the other elements, written statement, documents and decision of earlier litigations---Plaint could be rejected when it did not disclose a cause of action and when from the written statement and plaint the suit appeared to be barred by law---Findings recorded by the Appellate Court were in consonance with law---No illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Muhammad Ramzan v. Fazal Wahid YLR 2003 1050; Bashir Ahmad Khan and others v. Ghulam Sadar-ud-Din Khan and others 2012 CLC 600; Muhammad Mushtaq v. Abida Nasreen 2008 CLC 1507; Begum Syeda Azra Masood v. Begum Noshaba Moin and others 2007 SCMR 914; Barkhordar and others v. Lal and others 1994 SCMR 2539; Syed Iftikhar Hussain Jaffari v. Mrs. Shamshad Begum and 2 others PLD 2011 Kar. 232; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905; Mst. Mumtaz Mai v. Sajjad Hussain and 4 others 2017 CLC Note 61; Khair Muhammad Katin and 5 others v. Liaqat Ali G. Kazi and 9 others 2017 CLC Note 117 and Khan Muhammad through LRs v. Mst. Khatoon Bibi and others 2017 SCMR 1476 distinguished.

Abdul Haq v. Mst. Surraya Begum 2002 SCMR 1330; Muhammad Rustam and another v. Mst. Makan Jan and others 2013 SCMR 299; Mst. Grana through LRs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Ghulam Abbas v. Muhammad Shafi and others 2016 SCMR 1403 rel.

(b) Estoppel, doctrine of---

----Scope.

Estoppel is that which concludes and "shuts a man's mouth from speaking the truth" when a fact has been agreed on or decided in a court of record, neither the parties shall be allowed to call it in question and have it tried over again and any time thereafter, so long as the judgment and a decree stands unreversed." It has also been defined as "a bare or impediment raised by law, which preclude a man from alleging a denying a certain facts or states of facts in consequence of this previous allegation or denial or conduct or admission or in consequence thereof any adjudication in respect of the same subject matter." "the doctrine of law or rule of evidence, which precludes a person from denying the truth of statement formally made by him.

Black's Law Dictionary rel.

Fayyaz Khan Chamkani for Petitioners.

Muhammad Fazil Khan for Respondents Nos.1 to 6.

Respondents Nos.7, 8 to 12, 13 to 16, Ex-parte.

2020 C L C 2094

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

EJAZ AHMED and 13 others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Chief Secretary and 7 others----Respondents

Writ Petition No.475-A of 2019 with C.Ms. Nos.807, 809-A of 2019, decided on 4th March, 2020.

Land Acquisition Act (I of 1894)---

----Ss.4 & 5-A---Publication of preliminary notification---Hearing of objections---Scope---Petitioners assailed notification issued under S.4 of Land Acquisition Act, 1894---Land in question was being acquired for the construction of general bus stand at the request of Tehsil Municipal Officer and the reason advanced for vacating the present place of existing bus stand was the expiry of lease period and the objection raised by the Regional Transport Authority on its poor condition---Validity---Disputed land was acquired at the behest of members of Tehsil Council and no prior survey was conducted by any technical expert---Regional Transport Authority had expressed its displeasure over the poor condition of the general bus stand and had directed the Tehsil Municipal Officer to make necessary arrangements---Lease period of the existing bus stand was for a period of 99 years, which had not expired---Notification under S.4 of Land Acquisition Act, 1894, could not be held to be in the interest of general public rather the same was advantageous to private respondents only, in order to commercialize their barren lands, situated opposite to the disputed land---Writ petition was allowed, official respondents were directed to exclude the property of petitioners from the process of acquisition and select a barren land for acquisition.

Qazi Muhammad Azhar for Petitioners.

S.M. Asif, A.A.G. for Official Respondents.

Sajid ur Rehman for Respondents Nos.7 and 8.

2020 C L C 125

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

SHER ALI KAKAR----Appellant

Versus

STATION HEAD QUARTERS, through Umair Hameed----Respondents

Regular First Appeal No. 52 of 2016, decided on 22nd August, 2019.

Civil Procedure Code (V of 1908)---

----O.VII, Rr. 2 & 11 & O. VIII, R. 10---Money Suit---Defendant had failed to submit written statement---Effect---Defendant moved application for rejection of plaint which was rejected---Trial Court directed the defendant to submit written statement but he failed and the suit was ex-parte decreed---Validity---Trial Court had granted two opportunities to the defendant for submitting written statement in his absence---No ample opportunity was granted to the defendant to file written statement rather Trial Court pronounced the judgment forthwith when defendant was not in attendance---Trial Court was to summon the defendant and thereafter proceeded with the matter in accordance with law---Matter was to be decided on merits rather than on technicalities---Impugned judgment passed by the Trial Court was set aside with the directions to provide fair opportunity to the defendant for filing written statement and then decide the suit on merits---Appeal was allowed, accordingly.

Kailash v. Nanhku and others AIR 2005 SC 2441 rel.

Syed Ayaz Zahoor for Appellant.

Syed Iqbal Shah for Respondent.

2020 C L C 142

[Balochistan]

Before Abdul Hameed Baloch, J

SABZAL KHAN and 9 others----Petitioners

Versus

MUHAMMAD AKBAR and 10 others----Respondents

Civil Revision No.120 of 2016, decided on 27th August, 2019.

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

----S.50---Qanun-e-Shahadat (10 of 1984), Art. 117---Limitation Act (IX of 1908), Art. 120--Unsettled land---Presumption of ownership---Suit for declaration---Limitation---Contention of plaintiffs was that they were owners in possession of suit property---Suit was dismissed concurrently---Validity---Impugned mutation was carried out in presence of plaintiffs and they at that time neither raised any objection nor claimed for unsettled land---Plaintiffs had accepted the impugned mutation without any objection---Present suit had been filed after more than fifty years of entry of mutation---Limitation for filing declaratory suit was six years---Plaintiffs had acknowledged impugned mutation but did not move any revenue forum---Aggrieved party was supposed to pursue his legal remedy with diligence and had to explain delay of each day---Plaintiffs had failed to produce any cogent as well as documentary evidence with regard to such delay---Plaintiffs had failed to prove their ownership with regard to suit land---Plaintiffs should have proved their case on the basis of their own evidence and they could not take benefit of shortcoming of defendants---Plaintiffs were bound to prove their ownership through cogent evidence---Presumption of ownership of forests and waste lands would be in favour of Government---Revision was dismissed, accordingly.

Jamal Ud Din v. Syed Faizullah Shah PLD 2016 Bal. 44; Badar Zaman v. Sultan 1996 CLC 202 and Secretary Board of Revenue v. Qadir Bakhsh 2012 CLC 1165 rel.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Suit for declaration could be filed within six years.

Ghulam Mohyuddin Sasoli for Petitioners.

Habibullah Nasar for Respondents.

Shahid Baloch, Additional Advocate General for the State.

2020 C L C 152

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

PURE MINERAL (PVT.) LIMITED through duly Authorized Attorney--- Petitioner

Versus

PROVINCE OF BALOCHISTAN through Secretary, Mines and Mineral Development Department, Quetta and 2 others----Respondent

C.P. No. 189 of 2018, decided on 29th August, 2019.

Balochistan Mining Concessions (Acquisition) Act (VIII of 1973)---

----Cls. 3 & 9--- Balochistan Mineral Rules, 2002, Rr. 11(1)(b), 27(2) & 91---Exploration license, withdrawal of---Laches---Jurisdiction of government---Vested right---Petitioner was a mining company which was granted exploration license but same was subsequently withdrawn as being inadvertently issued---Validity---Neither any prospecting license was issued over concerned area in favour of petitioner nor possession of said area was handed over to petitioner--- Allotment letter for exploration of minerals was issued to petitioner for a period of three years which period also expired and petitioner neither applied for extension of license nor it was in possession of the area---Government had the prerogative either to extend period of license, refuse its extension or convert the same into lease---Government had already shown its intention not to extend license period in favour of petitioner, therefore, petitioner had no vested right to claim relief as prayed--- Notification of authorities was challenged by petitioner after lapse of more than five years and apparently petition also suffered from laches---No period of limitation had been prescribed for filing of a Constitutional petition under Art.199 of Constitution but it had to be filed within reasonable time--- Reasonable time for filing of appeal/revision before court was normally three months--- High Court declined to exercise Constitutional jurisdiction to interfere in order passed by Government as petitioner had not moved any application for condonation of laches by giving reasons, hence, inordinate and unexplained delay in approaching High Court was not condoned---Constitutional petition was dismissed in circumstances.

Khiali Khan v. Haji Nazir and four others PLD 1997 SC 304 rel.

Saifullah Kakar for Petitioners.

Shai Haq Baloch, A.A.G. for Respondents.

2020 C L C 320

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ABDUL KHALIQ----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-V, QUETTA and another----Respondents

Constitutional Petition No.361 of 2019, decided on 29th October, 2019.

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

----Ss. 5, Sched. & 17 ---Civil Procedure Code (V of 1908), S. 11---Suit for "enhancement" of maintenance allowance---Second suit---Res judicata---Principle of---Applicability---Scope---Respondent filed suit for enhancement of maintenance allowance which was earlier fixed through a decree---Trial Court dismissed the suit whereas appellate court allowed the appeal and remanded the suit for adjudication on merits---Validity---Family Courts Act, 1964 had not barred the filing of a second suit for "enhancement" of maintenance allowance---Second suit was only barred in cases where the matter was directly or substantially in issue in a former suit between the parties---Earlier suit was for recovery of maintenance allowance but issue regarding its "enhancement" was neither raised nor was considered in that suit and thus was not in issue---Section 11, C.P.C. did not bar any subsequent suit, which was filed only for "enhancement" of maintenance allowance---Appellate court had rightly remanded the case to the Trial Court---Constitutional petition was dismissed.

Ejaz Ahmed v. Judge Family Court and others 2005 C L C 1913 ref.

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

----Ss. 17 & 5 Sched.----Civil Procedure Code (V of 1908), S. 11---Suit for "enhancement" of maintenance allowance---Second suit---Res judicata, principle of---Applicability---Scope---Section 11, C.P.C. in relation to the cause of action of suit codifies the doctrine of res-judicata which operates when there is a judgment between the same parties and it prevents a fresh suit between them regarding the same matter---In a suit for enhancement of maintenance, the growth of the children, the cost of living, change in the status of parties, change in the expenditures incurred based on the needs of the children are some of the factors which either bring about a change of the cause of action or may make out even fresh cause of action for the children to demand enhanced maintenance allowance---Fresh proceedings for maintenance allowance are maintainable before the Family Court, in circumstances.

Petitioner in person.

Muhammad Ali Rakhshani for Respondent No.2.

2020 C L C 380

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

AZIZ-UR-REHMAN----Petitioner

Versus

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

C.P. No.39 of 2019, decided on 23rd September, 2019.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Suit for recovery of dowry articles and dower---Family Court decreed the suit and appeal was dismissed by the Appellate Court---Validity---Not possible for wife to keep the record of purchased articles and prepare list of dowry articles and obtain signatures of husband and witnesses---Whosoever alleged existence of a particular fact was to prove the same---Solitary statement of wife was enough to prove dowry articles---When marriage had not been consumated then wife would be entitled to half of the fixed dower only and remaining half should be returned/restored to husband unless he waived such right voluntarily---Impugned judgments and decrees passed by the Courts below to the extent of dowry articles were modified and amount of dowry articles was reduced---Constitutional petition was disposed of accordingly.

Muhammad Habib v. Safia Bibi 2008 SCMR 1584; Shakeela Bibi v. Muhammad Israr 2012 MLD 756 and Muhammad Akbar v. Shazia Bibi PLD 2014 SC 693 rel.

Noor Muhammad Kakar for Petitioner.

Muhammad Usman Yousafzai for Respondent.

2020 C L C 387

[Balochistan]

Before Muhammad Ejaz Swati, J

SHAMS-UD-DIN----Petitioner

Versus

SALAHUDDIN and others----Respondents

Civil Revision No.431 of 2019, decided on 3rd September, 2019.

Arbitration Act (X of 1940)---

----Ss. 14 & 17---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2--- Petition for making award as a rule of Court---Temporary injunction, grant of---Requirements---Temporary injunction could not be granted only on the basis of prima facie case existing in favour of plaintiff but Court had to consider whether balance of convenience or irreparable loss to the party seeking such relief did co-exist or not---Pleadings, documents and supporting evidence was to be examined and assessed tentatively for grant or refusal of temporary injunction---Where complicated question with regard to merits of the case required framing of issue and evidence then temporary injunction should not be granted---Where question of amount or share of amount was involved then it could easily be ascertained, however, if plaintiff succeeded in litigation then irreparable loss measurable in terms of money could not be said to be irreparable loss---If petitioner succeeded in the litigation in the present case then he could be compensated in terms of money and question of balance of convenience and irreparable loss did not co-exist in his favour---Complicated questions with regard to merit of the case were involved in the present case which required framing of issue and evidence---Grant of temporary, injunction was premature, in circumstances---Revision was dismissed accordingly.

Marghub Siddiqi v. Hamid Ahmed khan and 2 others 1974 SCMR 519; PLD 1992 Lah. 86; 1982 CLC 344; 1987 CLC 640 and PLD 1983 Quetta 92 rel.

Sheikh Muhammad Ali for Petitioner.

Mujeeb Ahmed Hashmi for Respondent No.2.

Muhammad Ali for Respondent No.3.

2020 C L C 526

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD NADEEM and others----Appellants

Versus

ANJUMAN-E-NASIR-UL-AZA through General Secretary----Respondent

F.A.O. No. 96 of 2018, decided on 24th September, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---

----Ss. 13 & 14---Constitution of Pakistan, Arts. 23 & 24---Eviction petition on behalf of attorney---Maintainability---Bona fide personal need of landlord Right of Property---Scope---Earlier ejectment petition having been dismissed for non-prosecution---Effect---Payment of Pagri---Effect---Eviction petition filed on behalf of landlord was accepted---Contention of tenant was that earlier eviction petition filed on behalf of landlord had been dismissed---Validity---If earlier eviction petition had been decided on merits then Rent Controller should reject the subsequent ejectment petition summarily, however, if earlier ejectment petition was decided on technical ground or was dismissed for non-prosecution without deciding the matter on merits then there would be no bar to file a fresh application on the same ground---Landlord earlier filed ejectment petition and same was dismissed for non-prosecution---Landlord had bona fide personal need of demised premises---Where statement of landlord on oath was consistent with the averments made in the ejectment application then same was sufficient for acceptance of eviction petition---Payment of any amount on account of pagri did not create tenancy in perpetuity and same could not operate as bar against landlord to seek eviction---Attorney had filed present eviction petition under the authority given by the landlord---Relationship of landlord and tenant existed between the parties---Right of property being a fundamental right had been protected---Right of ownership was superior to the right of tenancy---Tenant was directed to vacate the demised premises within a period of two months subject to payment of monthly rent---Appeal was dismissed, in circumstances.

Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Mursleen v. Ghulam Sarwar and others PLD 1987 Quetta 8; Ghulam Muhammad and another v. Maqsood Hussain and 3 others 1984 SCMR 1142; Juma Sher v. Sabz Ali 1997 SCMR 1062; Muhammad Shoaib Alam and others v Muhammad Iqbal and others 2000 SCMR 903 and Azizur Rehman v. Pervaiz Shah and others 1997 SCMR 1879 rel.

Mian Badar Muneer and Muhammad Usman Yousafzai for Appellants.

Mumtaz Hussain Baqiri for Respondents.

2020 C L C 688

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

RAZIA BIBI----Petitioner

Versus

MUHAMMAD YOUNAS BHATTI and 4 others----Respondents

C.P. No. 1485 of 2018, decided on 27th August, 2019.

Civil Procedure Code (V of 1908) ---

----O.XXVI, R. 1, O.V, R. 3, Ss. 75 & 132---Suit for declaration---Pardanasheen lady---Appointment of local commission to record statement---Defendant moved application for appointment of local commission to record her statement on the ground that she was a Parda observing lady, which was dismissed---Validity---Status and claim of being a Pardanasheen lady by itself was a question of fact which had to be determined on the basis of evidence and material produced on record---Defendant had executed special power of attorney and filed written statement as well as constitutional petition---Nothing was on record that said documents were attested at the residence of defendant which had negated her version---Court had discretion to appoint local commission depending on the facts of each case---Local commission was to be appointed for the examination of a Pardanasheen lady unless her application was not based on mala fide or would not amount to an abuse of the process of the Court or it might not into injustice to any party---Court could not delegate powers to the local commission to decide material issues where the matter should be decided by direct evidence---Power to record such evidence could not be delegated to the local commission---Findings recorded by the Courts below were neither perverse nor suffered from any illegality or irregularity---Constitutional petition was dismissed, in circumstances.

Sumera Abid and Syed Ikhlaq Shah for Petitioner.

Samad Khan Mandokhail and Asmatullah Mandokhail for Respondents.

2020 C L C 717

[Balochistan]

Before Abdul Hameed Baloch, J

JAWAHIR LAL----Appellant

Versus

MUHAMMAD ZAHID----Respondent

F.A.O. No.62 of 2018, decided on 27th August, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Ejectment petition---Personal bona fide need of landlord---Non-appearance of landlord as witness---Effect---Tenant filed appeal against the order of Rent Controller whereby the eviction petition filed by landlord was allowed---Case of landlord was that he wanted the possession of rented premises for extention in his business and alternation in its structure---Validity---Attorney of landlord had recorded his statement that the rented premises was required for enhancement of business---Landlord was entitled to choose or pick any one of his properties for his personal use and suitability of the property could not be determined by the tenant---Contention of tenant that landlord himself had not appeared before the Rent Controller for recording of his statement had no force because the law did not prohibit for appointing any attorney for recording the statement on oath before the court---Mere non-appearance of the landlord had not effected his bona fide claim---Attorney was the son of landlord and his statement was straightforward confidence inspiring and was not shaken during cross-examination---Sole testimony of the landlord was sufficient to prove personal bona fide need---Rent Controller, after proper appraisal of material available on record had came to the right conclusion---Appeal, being devoid of merits, was dismissed.

PLD 1995 Lah. 469 and 2000 CLC 274 ref.

Mehmood Khan v. Muhammad Ibrahim 2011 CLC 1606; Muhammad Ibrahim v. Abdul Salam PLD 2016 Bal. 76 and Bakht Zamin Shah v. Faiz Muhammad Khan 2003 CLC 1121 rel.

Ajmal Khan Kakar for Appellant.

Usman Lasi for Respondent.

2020 C L C 943

[Balochistan]

Before Nazeer Ahmed Langove, J

BIBI KALSOOM ----Petitioner

Versus

The GENERAL PUBLIC and others----Respondents

Civil Revision No.307 of 2018, decided on 12th November, 2018.

Succession Act (XXXIX of 1925)---

----Ss. 373 & 372---Balochistan Civil Services Pension Rules, 1989, R.4---Government of Balochistan Notification No. FD(R-II)VII-2/98/1719-1819 dated 25.07.1998----Family pension---Pension dues of deceased public servant---Succession Certificate---Eligibility of unmarried daughter above the age of twenty-one---Petitioner impugned order of Civil Court whereby claim of entitlment of petitioner to her deceased father's pension was denied, on ground that she being above the age of twenty-one was not entitled to the same---Validity---In view of Government of Balochistan Notification No.FD(R-II)VII-2/98/1719-1819 dated 25.07.1998, irreseptive of age, unmarried female child of deceased was entitled to draw family pension of late father till her marriage---High Court observed that no where in Balochistan Civil Services Pension Rules, 1989 it had been mentioned that after having attained age of twenty-one, unmarried daughter of deceased government servant would be disentitled from family pension---Impugned order was set aside---Revision was allowed, accordingly.

Abdul Zahir Kakar for Petitioner.

2020 C L C 963

[Balochistan (Sibi Bench)]

Before Rozi Khan Barrech, J

ALLAH DINA and 21 others----Petitioners

Versus

IKHTIAR KHAN and another----Respondents

Civil Revision Petition No. (S)35 of 2015, decided on 6th December, 2019.

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

----Ss.135 & 172---Suit for declaration, partition and perpetual injunction---Partition of immovable property---Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers---Scope---Plaintiffs filed suit for declaration, partition and perpetual injunction claiming therein that the suit land was shamilat, however, the defendant had occupied the land in excess of his share---Trial Court returned the plaint with direction to file a petition before Revenue Court---Appeal filed thereagainst was dismissed---Validity---Party interested in partition of his share in immovable property had to make an application for partition to a Revenue Officer under S. 135 of Balochistan Land Revenue Act, 1967---Revenue Officer was fully empowered to effect partition---Matters pertaining to partition of immovable property were exclusively vested in the Revenue Officer---Clause (xviii) of subsection (2) of S.172, Balochistan Land Revenue Act, 1967 excluded the jurisdiction of civil courts from the matter connected with or arising out of proceedings for partition---Parties had already approached the Revenue Officer for partition of property and the matter was pending adjudication before Assistant Commissioner---Civil Court had no jurisdiction to entertain the suit---Revision petition was dismissed.

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

----Ss. 141, 135 & 53---Disposal of questions as to title in the property to be partitioned---Application for partition---Suit for declaratory decree by persons aggrieved by an entry in the record---Scope---Section 141 of Balochistan Land Revenue Act, 1967 provides a complete procedure for determination of title of the parties, applying for partition---Subsection (2) of S.141, Balochistan Land Revenue Act, 1967 empowers the Revenue Officer with a discretion either to get determined the question of title by a civil court or himself proceed with the partition, but he is fully empowered to determine the issue as provided in subsection (5) of S.141, Balochistan Land Revenue Act, 1967---Clause (b) of S.135 of Balochistan Land Revenue Act, 1967 will also not be applicable in the matter because it applies in cases where the parties have already obtained a decree, whereby their shares have been established, and partition is sought on that basis---Ss.135 and 141 of Balochistan Land Revenue Act, 1967 are not to be read in isolation, but they are to be read together---Declaratory suit can be filed for establishment of title under S.53 of Balochistan Land Revenue Act, 1967 but in the presence of specific provision in special law, the general law will not prevail.

Abdul Hadi Tareen for Petitioner.

Anwar-ul-Haq Chaudhry for Respondents.

Shahid Baloch AAG for the State.

2020 C L C 976

[Balochistan]

Before Muhammad Ejaz Swati, J

Syed MUHAMMAD ALI----Petitioner

Versus

Syed FASAHAT HUSSAIN and 5 others----Respondents

Civil Revision No.152 of 2014, decided on 30th September, 2019.

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

----S.12---Limitation Act (IX of 1908), S. 3---Suit for specific performance of agreement to sell---Limitation---Suit was dismissed being time barred---Validity---Plaintiff had not established his claim being in possession of the suit property---Plaintiff had failed to rebut the documentary evidence produced by the defendants---Limitation could not be construed as technical in nature---Court had to dismiss suit which was barred by time even though limitation had not been set out as a defence---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

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

----S.39---Limitation Act (IX of 1908), Art. 91---Suit for cancellation of instrument---Limitation---Suit for cancellation of instrument could be filed within three years.

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

----S. 3---Suit instituted after limitation period---Effect---Limitation was not a mere technical issue---Court had to dismiss suit which was barred by time even though limitation had not been set out as a defence---Law of limitation required that a person must approach the Court and take recourse to legal remedies with due diligence within time provided by the law.

Muhammad Akram Shah for Petitioner.

Abuzar Hiader and Syed Baqir Shah for Respondent No.1.

Ms. Robina Shaheen for Respondent No.5.

Muhammad Saleem Ansari for Respondent No.6.

2020 C L C 1053

[Balochistan]

Before Abdullah Baloch, J

Mst. ANITA ANAM and others----Appellants

Versus

GENERAL PUBLIC and others----Respondents

Succession Appeal No.06 of 2019 and Succession Appeal No.03 of 2018, decided on 2nd December, 2019.

Succession Act (XXXIX of 1925)---

----Ss. 372, 383 & 384---Appeal---Wrong forum---Appeal was filed directly before High Court against orders passed by Trial Court---Validity---Order passed under S. 372 of Succession Act, 1925 by an inferior court, appeal laid before District Judge---When an order was passed under S. 372 of Succession Act, 1925 by a District Judge, appeal laid before High Court--- Appeals were wrongly filed before High Court---Appeal against judgment and order passed by Trial Court under provisions of Succession Act, 1925 lay before District Judge---High Court directed appeals filed by appellant to be returned to appellant to file before the District Judge---Order accordingly.

Umar Farooq Shah v. Mst. Shagufta Nasreen and others 1997 CLC 1846 and Sh. Muhammad Mushtaq and others v. Public-at-Large and others" PLD 1994 Lahore 373 ref.

Ghulam Mohyuddin Sasoli for Appellants (in Succession Appeal No.6 of 2019).

Gul Hassan Tareen for Respondent No.2 (in Succession Appeal No.6 of 2019).

Muhammad Mehmood Sadiq Khokar for Appellants (in Succession Appeal No.03 of 2018).

Ghulam Mohyuddin Sasoli for Respondents (in Succession Appeal No.03 of 2018).

2020 C L C 1090

[Balochistan]

Before Muhammad Ejaz Swati, J

LAL JAN----Petitioner

Versus

KAMALHAN and others----Respondents

Civil Miscellaneous Appeal No.33 of 2017, decided on 10th October, 2019.

(a) Islamic law---

----Pre-emption, right of---Requirements---Suit was dismissed on the ground that plaintiff had failed to prove sale---Validity---Sale either in writing or oral, if proved through direct evidence, was necessary for the purpose of seeking pre-emption right---Right of pre-emption did arise only out of a valid, complete and bona fide sale and it did not arise out of gift, Sadqa, Waqf, inheritance, bequest, lease or mortgaged unless foreclosed---Witnesses produced on behalf of pre-emptor had no direct knowledge with regard to sale of suit property---No transaction between the parties in writing or verbally had been brought on record---Oral evidence produced on behalf of plaintiff with regard to sale of suit property was based on hearsay evidence---Oral evidence must be direct and would be inadmissible if it was from an indirect source---Pre-emptor had failed to produce any direct oral or primary evidence with regard to sale of suit property---Findings recorded by the Trial Court were based on proper appreciation of evidence---Appeal was dismissed, in circumstances.

Section 232 of Principle of Muhammad Law (By D.F. Mulla) ref.

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

----S. 5---'Sale'---Essentials and meaning---"Sale" when complete.

The expression "sale" means transfer of ownership of immoveable property in exchange or for a price paid or promised or part paid or part promised. Completion of sale deed or mutation thereof is essential or incidents of sale, if when completed, sale becomes absolute transfer of right in property sold and no rights are left in transferor. The essential elements of sale are:

(i) The parties;

(ii) The subject matter;

(iii) The transfer or conveyance; and

(iv) The price and consideration paid or promised or part paid or part promised.

2020 C L C 1142

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

KHURSHID ALAM and others----Petitioners

Versus

ANEEL MASIH and 10 others----Respondents

C.P. No.672 of 2019, decided on 21st October, 2019.

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

----S.10---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Defendants prayed for the stay of suit filed by plaintiffs on the ground that they had earlier filed a suit against the plaintiffs for declaration and permanent injunction---Validity---Most of the parties in both the suits were same, however, khasra numbers given by both the parties in their suits were different---Matter in issue in both the suits was not the same---Cause of action and relief claimed in both the suits were different, therefore, the provisions of S. 10, C.P.C. were not applicable---Constitutional petition was dismissed.

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

----S.10---Stay of Suit---Scope---Section 10, C.P.C. provides that the matter should be directly and substantially in issue in both the suits---Subject matter of all the suits should be the same and if the subject matter is different, the provisions of S.10, C.P.C., would not be attracted.

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

----S.10---Stay of suit---Scope---Four conditions must be fulfilled in order to attract S. 10, C.P.C., namely (a) the matter in issue in both the suits must be directly and substantially the same; (b) the previously instituted suit must be pending in a court of competent jurisdiction; (c) the court before which the previous suit is pending must be competent to grant the relief in the subsequent suit and (d) both the suits must be between the same parties or their representatives, and the parties must be litigating in both the suits under the same title.

Muhammad Iqbal Kasi for Petitioners.

Nemo for Respondent.

2020 C L C 1151

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

MAQBOOL AHMED and others----Petitioners

Versus

SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF BALOCHISTAN and others----Respondent

Constitution Petition No.599 of 2014 and Constitution Petition No.(S)149 of 2018, decided on 28th November, 2019.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Term 'aggrieved person'--- Dispensation of justice--- Scope---Dispensation of justice is not alone function of courts but public functionaries are equally responsible to act fairly, justly and in accordance in law being trustees of public power---Where public functionaries have failed to perform their duties or they act illegally or in excess of their jurisdiction relating to public duties, any concerned person can invoke Constitutional jurisdiction of High Court--- Term 'aggrieved person' under Art. 199 of the Constitution is not confined to a person having strict legal right but it may extend to any person having legitimate interest in performance of a public duty.

Messrs Al-Raham Travel and Tours Private Limited and others v. Ministry of Religious Affairs 2011 SCMR 1621; Human Right's case PLD 2010 SC 759 and Javed Ibrahim Paracha v. Federation of Pakistan PLD 2004 SC 482 rel.

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

----S.6---Constitution of Pakistan, Art. 199--- Constitutional petition---Judicial review---Renaming of Tehsil/District---Petitioners were aggrieved of change of name of their Tehsil and District on names of political elite and their family members by government---Validity---Where executive authorities were involved in infringement of law and the Constitution, court in judicial review could unhesitatingly and without slightest qualms of conscious could cast aside technicalities of procedure in dispensing judicial review and entertain petition filed by likeminded public individuals---Individuals who moved court for judicial redressal had to be bona fide as matters concerned public interest and aimed for good of public---Petitioners had locus standi to invoke Constitutional jurisdiction of High Court to seek directions against government restraining them from doing any wrong---No law existed to change name or rename a Tehsil or District--- Government issued the notification in view of S.6 of Balochistan Land Revenue Act, 1967 which contained no provision with regard to change of name of a District or Tehsil--- Only power available for executive to take action was derived from law but there was no such law under which executive could issue notifications in question and Government also did not follow municipal laws and did not call objections from general public through publication---High Court restored names of District/Tehsil in question as notifications passed by government were illegal, without lawful authority and void ab initio---Constitutional petition was allowed in circumstances.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; R v. Hull University Visitor ex parte by Lord Browne Wilkinson, Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948); SS Miranda Limited v. The Chief Commissioner Karachi PLD 1959 SC 134; Judicial Review of Public Actions; Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504; Gaddon Textile Mills v. WAPDA 1997 SCMR 641; Saleem Akhtar J. while referring 1997 SCMR 641; KBC Authority v. Hashwani S&S Limited PLD 1993 SC 210; Chamber of Commerce and Industries Quetta v. Director General Quetta Development Authority and others PLD 2012 Bal. 3 and Khan Muhammad v. Chief Secretary Government of Balochistan and others 2018 SCMR 1411 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Government Policy, interference in---Preconditions---Ordinarily, courts do not interfere in policy matters however, if policy is in conflict with any provision of law or is violative of fundamental rights of citizens same can be called in question in Constitutional jurisdiction of High Court.

Messrs Al-Raham Travel and Tours Private Limited and others v. Ministry of Religious Affairs 2011 SCMR 1621; Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Executive action, scrutiny of---Scope---Executive action was to be such having no possibility of violating fundamental right---Power of executive to take action would have to be derived from law--- Law itself would not be able to confer upon executive any power to deal with a citizen or other persons in contravention of a fundamental right--- Functionaries of State have to function strictly within sphere allotted to them in accordance with law--- No court or authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law---Action of an authority admittedly to be derogatory to law and Constitution is liable to be struck down.

Messrs Al-Raham Travel and Tours Private Limited and others v. Ministry of Religious Affairs 2011 SCMR 1621; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 and Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236 rel.

Asghar Khan Panezai for Petitioner (in Constitution Petition No.599 of 2014).

Abdul Rahim Kakar for Intervener (in Constitution Petition No.599 of 2014).

Abdul Malik Baloch for Petitioner (in Constitution Petition No.149 of 2018).

Shai Haq Baloch, A.A.G. for Respondent (in Constitution Petition No.149 of 2018).

2020 C L C 1300

[Balochistan]

Before Rozi Khan Barrech, J

CANTONMENT BOARD QUETTA through Cantonment Executive Officer----Appellant

Versus

Messrs MUHAMMAD RAHIM KHAN & Co. through Managing Partner----Respondent

Civil Miscellaneous Appeal No.12 of 2015, decided on 27th December, 2019.

Arbitration Act (X of 1940)---

----S.34---Contract containing arbitration clause---Dispute with regard to implementation of contract---Stay of proceedings---Plaintiff filed recovery suit wherein defendant before filing his written statement submitted application for stay of proceedings and referred the matter to the Arbitrator---Trial Court dismissed the application for stay of proceedings---Validity---Parties had entered into the agreement which contained arbitration clause---Dispute between the parties had arisen out of the agreement and same should be referred to the Arbitrator in the manner and mode provided by the arbitration clause---Plaintiff instead of arbitration proceedings had instituted the present suit on the basis of a different stance contrary to the stance of the defendant---Plaintiff should have resorted to the arbitration proceedings to be carried out by the Arbitrator for resolution of controversies---Nothing was on record that agreement containing arbitration clause had been executed under duress, undue influence or on account of any misrepresentation on the part of defendant---Plaintiff could not be allowed to avoid arbitration agreement, in circumstances---Impugned order passed by the Trial Court was set aside---Proceedings before Trial Court were stayed and matter was referred to the Arbitrator for decision---Appeal was allowed, in circumstances.

Sqd. Ldr. (R) Khurram Zaman v. Mrs. Afia Zafar 2008 CLD 662; Muratab Ali v. Liaqat Ali 2004 SCMR 1124 and Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808 rel.

Syed Iqbal Shah, Deputy Attorney-General ("DAG") for Appellant.

Muhammad Akram Shah for Respondent.

2020 C L C 1325

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD KHAN and others----Petitioners

Versus

QALANDAR KHAN and others----Respondents

Civil Revision No.337 of 2015, decided on 6th November, 2019.

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

----O.I, R.8---Representative suit---Requirements---Where numerous persons had same interest in a suit land then one or more such persons with permission of the Court could file a representative suit---Plaintiffs had not sought permission from the Court for filing representative suit and not arrayed all the members of the tribe as party---Names of persons who had interest in the suit were to be mentioned in the list on behalf of plaintiffs---Plaintiffs, in the present suit, had neither mentioned the names of interested persons nor the list of such persons was attached with the plaint---Every person having interest in the suit land must be heard---Plaintiffs had agitated their grievance after more than forty years of settlement---No illegality or irregularity had been pointed out in the dismissal of suit---Revision was dismissed, in circumstances.

Mian Said Hakim v. Abdar Khan, 2017 YLR 107 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was of supervisory nature---High Court, in exercise of revisional jurisdiction, could only interfere when Courts below had failed to exercise their jurisdiction or exceeded their jurisdiction or committed material irregularity or illegality---Revisional jurisdiction could not be exercised even when the findings recorded by the Courts below were erroneous or wrong---High Court, in exercise of revisional jurisdiction, could not disturb concurrent findings recorded by the Courts below, in exercise of jurisdiction vested in the Court upon proper appreciation of evidence on record---Concurrent findings recorded by the Courts below could only be disturbed by the High Court, if it was found to be perverse and fanciful.

Tabassum Bibi v. Abdul Rashid Khan 1999 CLC 1216 rel.

Shahnaz Raza for Petitioner.

Muhammad Saleem Lashari for Respondents Nos.1 to 13 and Sheikh Azam for Respondents Nos.14 to 19.

Saifullah Sanjrani, Assistant Advocate General for official Respondents.

2020 C L C 1334

[Balochistan]

Before Muhammad Ejaz Swati, J

Mst. NUZHAT GULZAR and 10 others----Petitioners

Versus

SHAMIM GUL DURRANI and 2 others----Respondents

Civil Revision No.11 of 2019, decided on 19th December, 2019.

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

----S. 152---Amendment of judgment, decree or order---Scope---Decree-holders of a decree for partition of immovable property filed application under S.152, C.P.C. claiming therein that the area of the disputed house as given in the plaint was less than the actual area---Applicants in order to prove their contention placed reliance on the allotment order issued by the Development Authority and the site plan---Validity---Shares of the parties had already been decided in the suit upto the Supreme Court and the omission on the part of the decree-holders to correctly mention the area was an inadvertent omission---Allotment order and the site plan of the subject house were the foundation of the title---Revision was allowed and the application under S.152, C.P.C. was accepted subject to the extent of verification of the area mentioned in the allotment order.

Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451 rel.

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

----Ss.152 & 153---Amendment of judgment, decree or order---General power to amend---Scope---Non-mentioning of the correct area at the best can be considered as a lapse or omission which is always subject to correction/amendment according to the title deed/allotment order by invoking the provisions of Ss. 152 & 153, C.P.C. as the case may be.

Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451 rel.

Mumtaz Hussain Baqri and Rasool Bakhsh Baloch for Petitioners.

Inamullah Kakar for Private Respondents.

2020 C L C 1340

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

GULZAR KHAN----Petitioner

Versus

Mst. RAHIMA and 3 others----Respondents

Constitution Petition No.(S)137 of 2018, decided on 7th November, 2019.

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

----S.25---Custody of minors---Welfare of minors---Financial status of mother---Scope---Father's petition for custody of two male minors and one female minor was accepted to the extent of male minors while the custody of female minor was entrusted to her mother till puberty---Validity---Petitioner/father was a contractor who remained out of the house most of the time for business purposes---Petitioner had failed to point out the person who would look after the baby girl at his home---Minor was about 4/5 years of age and in such age the attention of mother for capacity and intellectual development of female minor was much required---Association of female children with their mother was more important as compared to the father---Poor financial status of mother did not disentitle her from the custody of the minor---None could take care of minors more than their real mother for being their first institution and depriving minors of the company of their real mother would create deprivation in their lives which could not be restored back---No misreading or non-reading of evidence could be attributed to the judgments of the courts of below---Constitutional petition was dismissed.

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

----S.17---Guardian, appointed of---Matters to be considered by the Court in appointing guardian---Welfare of minor---Scope--- Mother, under Muslim Personal Law, is entitled to the custody of daughter even after she has attained the age of puberty and until she is married, whereas the father can claim custody of his male child after seven years---Welfare of the minors is to be determined while keeping in view their mental, intellectual, moral and spiritual well being---Guardian Court has to look into qualification of parents, the age, gender, religion of minor, the character and capacity of the proposed guardian and his/her nearness of kin to the minor as provided under S.17 of the Guardians and Wards Act, 1890---Welfare of minor prevails as the supreme consideration for deciding the issue of her or his custody.

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

----S.17---Matters to be considered by the Court in appointing guardian---Financial status of mother---Scope---Poor financial status of mother does not disentitle her from the custody of minors.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Misreading of evidence---Non-reading of evidence---Jurisdictional defect---Scope---Appraisal of evidence is the function of courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly, in exercise of constitutional jurisdiction---Party approaching the High Court under Art. 199 of the Constitution has to demonstrate that there is gross misreading or non-reading of the evidence or any jurisdictional defect floating on the surface.

Muhammad Ilyas Mughal for Petitioner.

2020 C L C 1349

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

HAFEEZULLAH KHAN----Petitioner

Versus

PAKISTAN OLYMPIC ASSOCIATION, through General Secretary and others----Respondents

C.P. No.1179 of 2019, decided on 11th November, 2019.

Arbitration Act (X of 1940)---

----S.34---Power to stay legal proceedings where there is an arbitration agreement---Scope---Petitioner General Secretary (elect) of Table Tennis Federation assailed orders of courts below whereby his suit for declaration and injunction was stayed and the matter was referred for arbitration between the parties as per arbitration clause of the Constitution of Pakistan Table Tennis Federation---Validity---Petitioner despite contesting the application under S.34 of Arbitration Act, 1940, had submitted application to the President of Pakistan Table Tennis Federation for appointment of arbitrator under the Constitution of Pakistan Table Tennis Federation---Court had the power to stay legal proceedings while referring the matter to the arbitrator under the arbitration clause---Petitioner had appropriate remedy to approach the arbitration forum---Courts below had not committed any illegality in passing the impugned orders---Constitutional petition was dismissed in limine.

Ghulam Abbas for Petitioner.

2020 C L C 1458

[Balochistan]

Before Abdul Hamid Baloch, J

KHAERI KHAN and 5 others----Petitioners

Versus

MUHAMMAD SIDDIQUE alias SIDDIQO and 8 others----Respondents

Civil Revision Petition No.(S)04 of 2018, decided on 25th November, 2019.

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

----Ss. 42, 8 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration, possession, mesne profits and permanent injunction---Rejection of plaint---Report of local commissioner---Scope---Petitioners assailed order of trial court whereby plaint was rejected under O. VII, R.11, C.P.C.---Validity---Trial Court had to look into the contents of the plaint and examine the same on its face value---Trial Court could have rejected the plaint if it manifested any infirmity as enumerated in O.VII, R.11, C.P.C. to avoid wastage of time and unnecessary harassment of the opposite party---None of the clauses of O.VII, R.11, C.P.C. were attracted in the present case rather the order of the trial court was based on the report of local commissioner---Report by local commissioner could not have been made a basis for decision of the case rather it was the duty of the trial court to examine the local commissioner followed by an opportunity of cross-examination to the parties---Revision petition was accepted and the matter was remanded to the Trial Court for decision on merits.

Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Mst. Siraj Zarnani v. Azher Iqbal 2004 MLD 337 and Mst. Mehran Afzoon v. Mst Khatoon 2013 YLR 2185 ref.

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

----O. VII, R. 11---Rejection of plaint---Requirements---Court has to look into the contents of the plaint and examine the same on its face value---Court shall reject the plaint if it manifests any infirmity as enumerated in O.VII, R.11, C.P.C. to avoid wastage of time and unnecessary harassment of the opposite party.

Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459 and Mst. Siraj Zarnani v. Azher Iqbal 2004 MLD 337 ref.

(c) Administration of justice---

----Matter to be decided on merits and technicalities were not to be hurdle in the way of justice.

Munir Ahmed v. District and Sessions Judge Lasbella at Hub 2015 CLC 1053 ref.

Ali Hassan Bugti for Petitioner.

Ahsan Rafiq Rana for Respondents.

2020 C L C 1498

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

GOVERNMENT OF BALOCHISTAN through Collector Kachhi and another----Petitioner

Versus

HAZAR KHAN and others----Respondents

Civil Revision Petition No.(S)43 of 2015, decided on 18th November, 2019.

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

----S.96---Limitation Act (IX of 1908), S.5---Appeal---Limitation---Condonation of delay---Requirements---Appeal was dismissed being time barred---Validity---Appellants filed appeal with delay of three years and eleven months without any explanation---Defendants though had knowledge that matter was subjudice before the Trial Court---Limitation created a right in favour of the other side if appeal was time barred---Party seeking condonation of delay had to file application and justify the reason of such delay---High Court had discretion to condone delay but such discretion was to be exercised judiciously---Government could not claim to be treated differently than an ordinary litigant in matter of limitation---Appellants had failed to explain the delay in filing of appeal before Appellate Court---Law of limitation had to be strictly construed---Revision was dismissed, in circumstances.

Commissioner Income Tax v. Rais Pir Ahmed Khan 1981 SCMR 37; Rehmat Din v. Mirza Nasir Abbas 2007 SCMR 1560; Collector Land Acquisition Abbotabad v. Fazal-ur-Rehman 2009 SCMR 767; Food Department Gujranwala through its Deputy Director v. Ghulam Fareed Awan 2010 SCMR 1899 and Federation of Pakistan v. Agritech Limited, PLD 2016 SC 676 rel.

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

----S.5---Party seeking condonation of delay was to explain the delay of each day---Limitation Act, 1908 was required to be construed strictly.

Shahid Baloch, Assistant Advocate-General for Petitioner.

Shahban (Attorney of Respondents Nos.1 and 3) and Abdul Zaheer Lehri for Respondents Nos.5 to 8.

2020 C L C 1507

[Balochistan]

Before Abdul Hameed Baloch, J

GHULAM NABI----Petitioner

Versus

SAIFULLAH and others----Respondents

Civil Revision No.285 of 2016, decided on 28th November, 2019.

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

----S.11----Suit for declaration and permanent injunction---Res judicata, principle of---Applicability---Defendants moved application for dismissal of suit under S.11, C.P.C. which was accepted---Validity---Earlier suit with regard to same subject matter had been decided by the competent Court of jurisdiction---Parties in the suit were also same---Parties should not be vexed twice on the matter decided earlier---Where matter had been decided in the earlier suit between the same parties then it could not be allowed to be reopened again---Revision was dismissed, in circumstances.

Muhammad Saleem v. Rasheed Ahmed 2004 SCMR 1144 rel.

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

----Ss.96 & 104 & O.XLIII, R.1---Appeal---Competence---Where order was passed with the direction to draw decree sheet then appeal was competent under S.96, C.P.C. and where decree sheet had not been drawn then appeal would lie under S.104 & O.XLIII, R.1, C.P.C.

Sardar Ahmed Haleem for Petitioner.

Adnan Ejaz and Tahir Ali for Respondents.

Aslam Jamali, Assistant A.G. for Respondents.

2020 C L C 1542

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD AKRAM----Appellant

Versus

MUHAMMAD KHALID----Respondent

F.A.O. No.29 of 2016, decided on 30th December, 2019.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 14---Contract Act (IX of 1872), S.42---Civil Procedure Code (V of 1908), S.2(2)---Constitution of Pakistan, Arts. 23 & 24---Ejectment of tenant---Bona fide personal need of landlord---Earlier eviction petition dismissed as withdrawn---Death of landlord---Effect---Expression 'party' contained in S.2(2) of C.P.C.---Scope---Ejectment petition was accepted by the Rent Controller and tenant was directed to handover vacant possession of demised premises to the landlord---Validity---Ejectment petition would be barred if petition on the same issue had earlier been decided on merits between the parties---Where earlier eviction petition had been dismissed on technical ground or for non-prosecution then there would be no bar to file a fresh petition on the same ground---Demised premises was required by the landlord for his personal bona fide need---Landlord had expired and his legal heirs had been impleaded in the appeal---Expression 'party' would include legal heirs and in case of death of landlord eviction order did not abate---Contract between the parties was enforceable against legal heirs or successor-in-interest of the original party and it did not abate with the death of the parties---Landlord had adduced cogent and worthy of credence evidence to substantiate his version---Where statement of landlord on oath was consistent with his averments made in the eviction petition then same would be sufficient for acceptance of ejectment petition---Right of property being a Fundamental Right had been protected---Right of ownership was superior than the right of tenancy---Findings of Rent Controller were based on correct appreciation of evidence---Tenant was directed to vacate demised premises within two months subject to payment of monthly rent---Appeal was dismissed, in circumstances.

Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Mursleen v. Ghulam Sarwar and others PLD 1987 Quetta 8; Ghulam Muhammad and another v. Maqsood Hussain and 3 others 1984 SCMR 1142; Juma Sher v. Sabz Ali 1997 SCMR 1062 and Muhammad Shoaib Alam and others v. Muhammad Iqbal and others 2000 SCMR 903 rel.

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

----S. 2(2)---'Decree'---Meaning and scope.

The term 'decree' has been defined in section 2(2), C.P.C., which means the formal expression of adjudication, determining the rights of the parties to the suit, etc. The word 'party(s)' shall include his legal representative(s), who represent(s) the estate of deceased and steps in to his/her/their shoes. A decree is a declaration of right of a party, which entitles him to get such right.

Adnan Ejaz Sheikh for Appellant.

Muhammad Ali and Khushnood Ahmed for Respondent.

2020 C L C 1561

[Balochistan]

Before Nazeer Ahmed Langove, J

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, through EDO (Revenue), Kalat and another----Petitioners

Versus

BIBI RUQIA (WIDOW OF LATE SHAHZADA MEHMOOD KHAN) and 5 others----Respondents

Civil Revision No.439 of 2010, decided on 17th September, 2018.

(a) Islamic Law---

----Gift---Ingredients---Dispute as to execution of gift---Non-joinder of necessary party---Effect---Contention of plaintiff was that suit property had been gifted in his favour---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff had not arrayed Secretary Board of Revenue as party in the suit---Suit was not maintainable due to non-joinder of necessary party---Ingredients of gift i.e. offer, acceptance and delivery of possession were not available to the plaintiff---Physical possession of suit property had not been transferred in his favour on the basis of gift---Impugned gift was defective in nature and was not enforceable under the law---If any of the conditions of gift was missing then it could not be termed as valid gift---Donor had expired in the year 1983 whereas gift deed was of 1984---Plaintiff had also not disclosed correct description of suit property, which had been recorded in the name of Provincial Government---Suit had been filed after lapse of thirty five years and was time barred---Party was to pursue his legal remedy with diligence and if suit was beyond limitation then each day delay should have been explained---Impugned judgment passed by the Appellate Court did not contain findings on each and every issue---Trial Court had passed well-reasoned and speaking judgment and decree based on correct appraisal of evidence---Appellate Court had reversed the findings of Trial Court without any valid and convincing grounds---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, accordingly.

Principle of Muhammadan Law by D.F. Mulla para. 138; Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 1384; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jahan and 4 others 2017 CLC 646 and Muhammad Raz Khan v. Government of N.W.F.P and another PLD 1997 SC 397 rel.

(b) Islamic Law---

----Gift---Ingredients---Ingredients of gift were offer, acceptance and delivery of possession.

Mrs. Sabra Islam, Additional Advocate-General for Petitioners.

Syed Shabbir Ahmed Shah, Assistant Attorney General for Respondent No.6.

2020 C L C 1680

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

A.C/SDM SADDAR, QUETTA and others----Appellants

Versus

MEHRULLAH KHAN and others----Respondents

R.F.A. No.82 and C.M.A. No.14 of 2012, decided on 12th December, 2019.

Land Acquisition Act (I of 1894)---

----Ss.18, 23 & 28---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Referee Judge appointed Local Commission who inspected the site and submitted his report---Reference filed by the landowner was accepted by the Referee Judge---Validity---Collector Land Acquisition while fixing the rate of compensation had failed to properly observe the correct market value of the property---Potential value of property was to be considered in addition to the market value of the land at the time of passing the award---Collector Land Acquisition had failed to consider that property was commercial in nature rather he had mostly relied on the revenue record---Average sales of last one year was not conclusive proof for determination of market value of the land, while assessing the market value of land its location and potentiality was also to be considered---Trial Court while passing the impugned judgment had rightly observed that compensation amount was not properly assessed and fixed by the Collector Land Acquisition---Referee Judge had rightly fixed the amount of compensation and awarded 15% compulsory acquisition charges as land had been acquired compulsorily---Landowner had waived his right to the extent of compulsory acquisition charges and he did not claim said amount---Impugned judgment passed by the Court below did not suffer from any illegality or irregularity---Impugned judgment and decree was modified to the extent of compulsory acquisition charges---Appeal was disposed of, accordingly.

Province of Sindh v. Ramzan and others PLD 2004 SC 512; Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870 and Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others 1993 SCMR 1700 rel.

Muhammad Aslam Jamali, Assistant Advocate General for Appellants.

Najeebullah Khan Kakar and Atta Muhammad Tareen for Respondent No.1.

Muhammad Saleem Lashari for Respondent No.2.

2020 C L C 1716

[Balochistan]

Before Nazeer Ahmed Langove, J

Dr. MUHAMMAD JAMAL and another----Petitioners

Versus

SULTAN MUHAMMAD----Respondent

Civil Revision No.219 of 2019, decided on 28th June, 2019.

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

----O. XIII, R. 2 & O. XVI, Rr. 1 & 2---Document, production of---Re-examination of a witness---Requirements---Plaintiff filed an application for production of document which had already been placed on record and to re-examine the witness who produced the same---Trial Court accepted the application and witness was examined who produced document which was already on record---Validity---Once a document had been placed on record of the Court then same could not be placed again to fulfill lacunas left by the witness or surfaced in cross-examination---Court could not be used as tool for fulfillment of lacunas left by the parties---Object of re-examination of a witness was to clear an ambiguity which had arisen upon cross-examination---No one was to be afforded opportunity to improve his case---Trial Court had erred in law to allow same document to be placed on record without any justifiable cause and valid reasons---Court (Judge) must wear all the laws of the country on the sleeves of his rob and apply correct law to justly administer rights and remedies of the citizens---Impugned order passed by the Trial Court was set aside and matter was remanded to the Trial Court for decision in accordance with law---Revision was allowed, in circumstances.

(b) Administration of justice---

----Judge must wear all the laws of the country on the sleeves of his rob.

(c) Administration of justice---

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

Taj Muhammad Mengal for Petitioners.

2020 C L C 1764

[Balochistan]

Before Rozi Khan Barrech, J

ABDUL AZIZ and others----Appellants

Versus

TOWN MUNICIPAL OFFICER HUB through Administrator Civic Centre Hub and others----Respondents

F.A.Os. Nos.7, 8 and 9 of 2019, decided on 30th December, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 17---Eviction petition---Consent order---Execution petition---Objection petition---Provisions of Civil Procedure Code, 1908 applicability of---Appeal was disposed of with the observation that monthly rent should be increased and deposited in the account of landlord and dispute with regard to previous rent should be resolved by the competent Court of law---Execution petition was filed but same was dismissed on the ground that no relationship of landlord and tenant existed at the time of filing of appeal---Validity---Provisions of Civil Procedure Code, 1908 were not applicable to the proceedings in stricto sensu, however, Rent Controller could follow the equitable principles thereof---Decree should be executed in terms and conditions mention in the code---Executing Court had to confine its deliberations within the purview of the decree and not beyond that and to dispose of the objections in the light of terms and conditions of a decree---Rent Controller had no authority to deviate from a real controversy between the parties---Petitioner had filed execution petition with regard to consent order passed by the High Court---Executing Court was bound to resolve the question of amount of arrears of rent in the case---Matter was remanded to the Executing Court by the High Court with the direction to dispose of the execution petition and objection filed by the parties in the light of terms and conditions of order passed by the High Court---Appeal was allowed, in circumstances.

Abdul Jabbar for Appellant (in F.A.O. No.7 of 2019).

Farooq Rashid and Rehmatullah Sadozai for Respondent (in F.A.O. No.7 of 2019).

Manzoor Ahmed Shah for Appellant (in F.A.O. No.8 of 2019).

Farooq Rashid and Rehmatullah Sadozai for Respondent (in F.A.O. No.8 of 2019).

Manzoor Ahmed Shah for Appellant (in F.A.O. No.9 of 2019).

Farooq Rashid and Rehmatullah Sadozai for Respondent (in F.A.O. No.9 of 2019).

2020 C L C 1848

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

HABIB ADM LIMITED through General Manager----Appellant

Versus

EXECUTIVE ENGINEER CANAL IRRIGATION DIVISION HUB and another----Respondents

Regular Second Appeal No.01 of 2014, decided on 22nd November, 2019.

(a) Balochistan Canal and Drainage Ordinance (XX of 1980)----

----Ss. 27 & 30---Canal and Drainage Act (VIII of 1873), S.31---Canal water, enhancement of rate---Contention of plaintiff was that defendants had enhanced water rate without any justification---Suit was dismissed concurrently---Validity---Nothing was on record that enhancement of water rate by the defendants was illegal and without lawful authority---Executive Engineer being a Canal Officer had power of Civil Court under S.27 of Balochistan Canal and Drainage Ordinance, 1980 and S.30 of the said Ordinance reflected that in absence of written contract every water supply was to be deemed to be given at the rate subject to the condition of prescribed rate---Plaintiff had failed to prove that department had assured to charge him at the specified rate---Parties had reached to the agreement through negotiation for supply of canal water and such negotiation should be deemed to be contract between the parties---Water supply to the plaintiff in absence of contract was subject to Rules and payment of charges---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Findings recorded by the Courts below being neither perverse nor arbitrary, second appeal was dismissed, in circumstances.

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

----S.100---Second appeal---Scope---Scope of second appeal was limited---Concurrent findings could not be interfered with in second appeal unless some procedural defect affecting such findings had been pointed out.

Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304. rel.

H. Shakeel Ahmed for Appellant.

Khalil-uz-Zaman Alizai, Additional Advocate General ("AAG"). for Respondents.

2020 C L C 1895

[Balochistan]

Before Nazeer Ahmed Langove, J

Mst. JAMILA KAKAR----Petitioner

versus

Mst. SURRIYA NASREEN and 4 others----Respondents

Civil Revision No.19 of 2019, decided on 13th June, 2019.

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

----S. 372---Civil Procedure Code (V of 1908), O. I, R. 10---Qanun-e-Shahadat (10 of 1984), Arts. 85, 92 & 129---Succession certificate, issuance of---Public document---Presumption of truth---Scope---Succession certificate was issued in favour of legal heirs of deceased, whereafter an application for impleadment of a party was moved with the contention that the minor being an adopted son had no entitlement in the legacy of deceased---Trial Court recalled succession certificate issued in favour of petitioners with the direction to the parties to approach the civil Court for redressal of their grievance---Validity---Deceased had left behind the widow and a minor son as legal heirs---Parentage of minor son was supported by the record of National Database and Registration Authority and passport issued by Ministry of Interior Government---Presumption of truth was attached to the official record unless proved otherwise---Presumption with regard to validity of public documents would carry weight unless it had been rebutted---Courts below had failed to exercise jurisdiction properly and appreciated the facts of the case in accordance with law---Impugned orders passed by the Courts below were set aside and succession certificate was restored---Revision was allowed, in circumstances.

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

----Significance.

Muhammad Mahmood Sadiq Khokhar for Petitioner.

Syed Saleem Akhtar for Respondents Nos.1 to 4.

2020 C L C 1916

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

Dr.M. SALAH-UD-DIN MENGAL and another----Appellants

Versus

GOVERNMENT OF BALOCHISTAN through Board of Revenue and 2 others----Respondents

Civil Miscellaneous Appeal No.15 of 2015, decided on 11th December, 2019.

Land Acquisition Act (I of 1894)---

----S.18---Reference to Court---Limitation---Scope--- Appellant assailed order of court whereby the reference was dismissed being barred by time---Validity---Collector had forwarded the reference to the Court for adjudication without any objection of limitation---Question of limitation had to be determined by the Collector before sending the reference to the Court---Section 18 of the Land Acquisition Act, 1894 provided limitation period for filing the reference before the Collector and not to the Court---When the Collector had made the reference to the court then the question of limitation became redundant and could not be gone into by the referee court---Reference was remanded to the Trial Court with direction to decide the same on merits---Appeal was allowed.

Bashir Ahmed v. The Collector Multan PLD 1962 (W.P) Lah. 292 and S.Attar Singh R.S Sardar Hira Singh v. Secretary of State for India AIR 1940 Pesh. 35 ref.

Fazal Karim v. Azad Government of the Sate of Jammu and Kashmir PLD 1998 SC (AJ&K) 26 rel.

Najam-ud-Din Mengal for Petitioner.

Abdul Latif Kakar, AAG for Respondent.

2020 C L C 1934

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

NIZAM UD DIN----Applicant

Versus

SENIOR VICE-PRESIDENT AND REGIONAL MANAGER OPERATION and another----Respondents

Review Application No.07 of 2016 in C.P. No.416 of 2014, decided on 27th December, 2019.

Civil Procedure Code (V of 1908)---

----S.114 & O. XLVII, R. 1---Review of a judgment---Scope---Review was permissible when conditions contained in O.XLVII of C.P.C. had been fulfilled, not otherwise---Facts alleged by the applicant and documents relied upon were available on record at the time when impugned judgment was passed---Petitioner had failed to point out any apparent error or mistake in the impugned judgment---Purpose of review was to enable the Court for correction of error alone and nothing else---Review could not be equated with an appeal or it could not be made basis for rehearing of the case---Power of the Court to review its judgment or order was discretionary and it could be exercised to prevent injustice from being done---Review did not amount to rehearing the case on merits and case could not be re-opened on pretext of review---Review petition having no merit was dismissed, in circumstances.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 [sic:] 1; Fatima v. Shah Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 [sic] 110 rel.

Azam Jan Zarkoon for Applicant.

Muhammad Riaz Ahmed for Respondents.

2020 C L C 1942

[Balochistan]

Before Rozi Khan Barrech, J

ABDUL QADEER----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Public Health Engineering and 2 others----Respondents

Constitution Petition No.435 of 2020, decided on 9th June, 2020.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---"Aggrieved person"---Personal right---Locus standi---Public procurement---Scope---Petitioner sought cancellation of tender for installation of water-supply on lands allegedly belonging to petitioner and his forefathers---Validity---Petitioner was neither owner of said land nor his name was mentioned in mutation entries and he had no concern with the same; and therefore he did not fall within definition of "aggrieved person" in context of Art.199 of Constitution---Sine qua non for initiation of proceedings under Art. 199 of Constitution was that petitioner should have locus standi---Constitutional petition being not maintainable, was dismissed, in circumstances.

N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

Habib-ur-Rehman for Petitioner.

2020 C L C 2052

[Balochhistan]

Before Rozi Khan Barrech, J

MUHAMMAD ISMAIL----Petitioner

Versus

Haji GHULAM HUSSAIN and others----Respondents

C.P. No.460 of 2020, decided on 12th June, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Factual controversy---Alternate remedy---Contention of petitioner was that respondents were interfering into his possession over the suit property---Validity---Controversial questions were involved in the matter, which could not be resolved while exercising constitutional jurisdiction---Authenticity of documents produced by the petitioner could only be determined and established before Civil Court after opportunity of hearing to both the parties---Petitioner had alternate remedy and constitutional petition was not maintainable---Constitutional jurisdiction of High Court could not be invoked in all matters as a matter of right rather such jurisdiction had certain circumventions---High Court would not indulge in investigation of disputed question of facts, which required evidence---Extraordinary jurisdiction was intended for providing an expeditious remedy in a case where illegality of impugned action could be established without any inquiry into complicated or disputed facts---Party invoking constitutional jurisdiction had to establish clear right which should be beyond any doubt and controversy---Legal right and entitlement of petitioner were controversial and such disputed questions of fact could not be decided in constitutional jurisdiction of High Court---Constitutional petition was dismissed in limine, accordingly.

Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 and Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

Faisal Mengal for Petitioner.

2020 C L C 210

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J and Raja Saeed Akram Khan, J

Raja WASEEM YOUNIS----Appellant

Versus

The CHAIRMAN, AZAD JAMMU AND KASHMIR COUNCIL (PRIME MINISTER OF PAKISTAN) through Secretary and 6 others----Respondents

Civil Appeal No. 327 of 2019, decided on 24th August, 2019.

(On appeal from the judgment of the High Court dated 29-5-2019 in Writ Petition No.1787 of 2018).

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

----S.43(2-A) --- Judge of High Court of Azad Jammu and Kashmir (AJ&K) --- Appointment process ---Legality --- Appellant filed a writ petition before the High Court challenging the appointment of a Judge of High Court (AJ&K) on the basis that such appointment had been issued on the basis of an invalid, illegal and unlawful advice and the same was against the Azad Jammu and Kashmir Interim Constitution Act, 1974 ('the Constitution') --- During the pendency of the writ petition, the appellant, also moved an application for consolidation of his writ petition with the other six writ petitions on the ground that identical points were involved in all the writ petitions --- High Court dismissed the writ petition in limine on the basis that it had been filed with mala fide for benefit of some other persons, and that it was hit by the principle of laches as it was filed after lapse of considerable time of appointment of the Judge in question --- Held, that nothing was available on record to show that from where the High Court (AJ&K) ascertained that the writ petition had been filed with mala fide --- Admittedly the appellant was neither a candidate for his elevation as a High Court Judge when the Judge in question was appointed --- Respondents also failed to point out that for whose benefit the appellant filed the writ petition --- Since nothing was available on record to show mala fide of appellant, therefore, the High Court was not justified in applying the principle of laches --- Impugned judgment/order of High Court was set aside and case was remanded to the High Court with the directions that the same be placed before the Bench seized with the matter of appointments of the Judges of the High Court and that the concerned Bench shall decide the present writ petition within a period of 45 days from the communication of the present judgment --- Appeal was allowed.

Azad Government and 3 others v. Genuine Rights Commission and 7 others 1999 MLD 268 ref.

Ahmed Nawaz Tanoli Advocate v. Chairman Azad Jammu and Kashmir Council and others 2016 SCR 960 distinguished.

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

----S. 44 --- Writ petition, dismissal of --- Mala fides of petitioner --- Proof --- For proving mala fide it had to be specifically alleged and proved by cogent and reasonable evidence.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 ref.

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

----S. 44 --- Writ of quo warranto --- Laches --- Scope --- For purposes of a writ of quo warranto laches was not always a sufficient ground for dismissal of petition rather laches combined with improper conduct would bar relief.

Azad Government and 3 others v. Genuine Rights Commission and 7 others 1999 MLD 268 ref.

Appellant in person.

Abdul Rashid Abbasi and Bashir Ahmed Mughal, Advocates for Respondents.

2020 C L C 373

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia CJ and Ghulam Mustafa Mughal, J

MUHAMMAD ARSHAD KHAN and 15 others----Petitioners

Versus

MEMBER BOARD OF REVENUE, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 16 others----Respondents

Civil PLA No.377 of 2019, decided on 11th October, 2019.

(On appeal from the judgment of the High Court dated 26-3-2019 in Writ Petition No.2334 of 2015).

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

----S. 44---Azad Jammu and Kashmir Board of Revenue Act, 1993, S.6(3)---Writ petition---Maintainability---Allotment of Shamilat Deh land---Necessary party---Board of Revenue having not been impleaded in the writ petition---Effect---High Court dismissed writ petition due to non-joinder of necessary party---Validity---Member, Board of Revenue had been impleaded in the writ petition who had passed the impugned order---Any order made or a decree passed by the Member, Board of Revenue would be deemed to be an order or decree of the Board of Revenue---Petitioners were supposed to have impleaded Board of Revenue as a party in the writ petition instead of Member, Board of Revenue alone---Court while exercising writ jurisdiction or even in an appeal had powers to implead the necessary party for doing complete justice but petitioners were negligent in prosecuting their case and they were not entitled to discretionary relief after a period of four years---Impugned judgment passed by the High Court did not suffer from any legal infirmity---No legal question of law of public importance was involved in the petition ---Petition for leave to appeal was dismissed, in circumstances.

Zahid Mehmood Shah and 24 others v. Azad Government and 14 others 2011 SCR 159 and Khaliq Nawaz and 3 others v. Azad Jammu and Kashmir Government and 2 others 2017 SCR 1504 distinguished.

Raja Ibrar Hussain for Petitioner.

Ch. Shoukat Aziz for Respondents.

2020 C L C 1112

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

AHLIYAN-E-PLATE/GULSHAN PIR ALLA-UD-DIN through Representatives----Appellants

Versus

SENIOR MEMBER BOARD OF REVENUE AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 18 others----Respondents

Civil Appeal No.92 of 2019, decided on 1st November, 2019.

(On appeal from the judgment of the High Court dated 5-12-2018 in Writ Petition No.726 of 2017).

State land---

----Allotment of Crown (State) land on the basis of order passed by the Monitoring Cell of the Supreme Court (AJ&K)---Writ petition before High Court filed against the said allotment was dismissed---Validity---Land in question had been allotted in favour of respondents on the basis of order passed by the Monitoring Cell of Supreme Court---Additional Commissioner had directed the Collector to exclude land reserved for graveyard and road and issue fresh allotment order with regard to land in question---Order passed by the Additional Commissioner had not been challenged by the respondents which had attained finality---Revenue authorities should have got vacated the land reserved for graveyard and public purposes---Establishment of Monitoring Cell in the Supreme Court was unconstitutional---Any order passed by the Monitoring Cell of Supreme Court having no legal backing was nullity in the eye of law---Orders issued on the directive of Monitoring Cell were declared ab-initio void, in circumstances---Revenue authorities had jurisdiction to determine the entitlement of the claimants in accordance with law---Impugned judgment passed by the High Court was set aside---Appeal was allowed, in circumstances.

The President of Azad Jammu and Kashmir v. Mr. Justice Muhammad Riaz Akhtar Chaudhry Chief Justice of Azad Jammu and Kashmir 2017 SCR 759 (SJC) rel.

Tahir Aziz Khan for Appellants.

Ch. Shoukat Azizi for Respondents.

2020 C L C 1318

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

SARDAR TABARIK ALI and another----Appellants

Versus

ADMINISTRATOR MUNICIPAL CORPORATION, MUZAFFARABAD and 6 others----Respondents

Civil Appeal No.165 of 2019, decided on 7th January, 2020.

(On appeal from the judgment of the High Court dated 26-11-2018 in Revision Petition No.34 of 2008).

Civil Procedure Code (V of 1908)---

----O. IX, R. 3---Suit dismissed in default---Application for restoration of suit---Limitation---"Sufficient cause"---Suit was fixed for final arguments but no one appeared on behalf of plaintiffs---Trial Court dismissed the suit for non-prosecution---Plaintiffs moved application for restoration of suit---Trial Court dismissed the application for restoration of suit being time barred but Appellate Court restored the same and High Court set aside the order of Appellate Court---Validity---Suit was fixed for final arguments after recording evidence of the parties---Trial Court should have decided the case on the basis of available material on record---Dismissal of suit in default after closing of evidence was not justified---Application for restoration of suit could be filed within three years, in circumstances---Present application was not time barred---When order of the Court was illegal and had prejudiced the case of a party then it was a "sufficient cause" for restoration of suit dismissed in default---Order passed by the High Court was set aside and that of Appellate Court was restored---Supreme Court observed that restoration of suit would be subject to payment of cost to be paid in trial Court---Appeal was allowed, accordingly..

Mst. Shamshad Begum alias Sharam Khatoon v. District and Sessions Judge, Dadu through Presiding Officer and 4 others 1998 CLC 1128; Messrs Fateh Textile Mills Ltd. v. West Pakistan Industrial Development Corporation PLD 2008 Kar. 103; Wadera Dalel Khan and 7 others v. Province of West Pakistan and 6 others PLD 1970 Quetta 79; Lasbela Industrial Estate Development Authority (LIEDA) v. Messrs Baluchistan Match Ltd. through Chief Executive and others PLD 2005 Quetta 57 and Mrs. Asmat Begum v. Badiuzzaman Khan 2002 CLC 71 rel.

Ch. Shabir Ahmed for Appellants.

Muhammad Sagheer Javed for Respondents Nos.1 to 3.

2020 C L C 1429

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

CHAUDHARY ABDUL LATIF----Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others----Respondents

Civil Appeal No.201 of 2019, decided on 28th January, 2020.

(On appeal from the judgment of the High Court dated 12-9-2018 in Writ Petition No.1691 of 2016).

Establishment of Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act (XIV of 1992)---

----Ss. 32 & 11---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition before High Court---Maintainability---Contract for construction of a project---Claim for loss caused due to change of site plan---Compensation awarded by the Ombudsman---Petitioner-contractor moved an application to the Ombudsman for payment of loss caused to him due to change of site plan on behalf of the department---Ombudsman passed directions for payment of loss to the contractor but same was not paid---Petitioner filed writ petition before the High Court for implementation of order of Ombudsman---Writ petition was dismissed on the grounds that there was no violation of law and factual controversy had been raised which could not be resolved in writ jurisdiction---Validity---Petitioner had suffered loss due to delay in execution of project and change of site plan---Loss caused to the contractor had been assessed in the present matter---Respondents had participated in the inquiry proceedings before Ombudsman---No representation had been filed on behalf of respondents nor any reason for non-compliance of direction of Ombudsman had been assigned---Respondents had admitted the findings of Ombudsman in written statement filed before the High Court which had attained finality---Department was bound to inform the Ombudsman within specified time with regard to action taken on his direction or reasons for not complying with the same---Respondents had neither implemented the recommendations within specified time nor informed the Ombudsman with regard to reasons for not complying with the same---Department had violated the provisions of Ss. 11(2) & 22 of Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992, in circumstances---Compensation awarded by the Ombudsman was recoverable as arrear of land revenue from the public servant, functionary or agency---Writ petition had not been filed for determination of compensation but same was filed for implementation of direction of Ombudsman---High Court in writ jurisdiction could remove the mischief and redress the grievance of aggrieved person---Petitioner had established that respondents had failed to do what was required by the law to be done---Impugned judgment passed by the High Court was set aside and writ petition was allowed---Respondents were directed to implement the recommendations of Ombudsman in letter and spirit---Appeal was allowed in circumstances.

Sardar M.R. Khan, Advocate for Appellant.

Raja Inamullah Khan, Advocate-General for Respondents Nos.1 to 3.