CLC 2021 Judgments

2021 C L C 970

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Haji WALAYAT KHAN and 6 others----Petitioners

Versus

SALEEM-UR-REHMAN and 7 others----Respondents

Civil Miscellaneous No.14 of 2020, decided on 19th February, 2020.

Civil Procedure Code (V of 1908)---

----S.114---Review petition---Maintainability---Necessary parties---Scope---Petitioners / defendants sought review of order passed by Chief Court whereby it had directed the plaintiffs to implead the Provincial Government and its departments as defendants under O.I, R.10(2), C.P.C.---Contention of petitioners was that the impugned order was passed in their absence and that no order against the interest of any person could be passed without giving him an opportunity for explaining his position---Validity---Provincial Government and its concerned departments were necessary parties to the suit and without impleading them no effective decree could be passed in the matter---Review petition was not maintainable as its main aim was correction of errors in the judgment and not correction of wrong decisions---Court could not hear the matter as an appeal against its own judgment---Review petition was dismissed.

2003 CLC 1773 ref.

Johar Ali for Petitioners.

Mir Zeeshan Akhlaq for Respondents.

2021 C L C 1774

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

SANA KHAN and others----Petitioners

Versus

ABDULLAH KHAN through his L.Rs. and others----Respondents

Civil Revision No.116 of 2019, decided on 7th October, 2020.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Civil Procedure Code (V of 1908), O.VII, R.(1)(i) & S.115---Suit for declaration and injunction---Valuation of suit---Determination---Facts in written statement---Pecuniary jurisdiction of Lower Appellate Court---Suit filed by respondent-plaintiff was dismissed by Trial Court and appeal was pending before Lower Appellate Court---Petitioners-defendants objected to pecuniary jurisdiction of Lower Appellate Court which objection was dismissed---Plea raised by petitioners-defendants was that they had claimed in their written statement that they had made improvements on suit land by spending huge amount---Validity---Mere claiming of an amount, framing of an issue and proving of which by petitioners/defendants before Trial Court did not bar pecuniary jurisdiction of Lower Appellate Court---Forum of appeal was to be determined in view of valuation clause in plaint and not on the basis of valuation ascertained by Trial Court---Lower Appellate Court had inherent powers to entertain the matter and had rightly exercised jurisdiction vested in it---Chief Court declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed, in circumstances.

1999 MLD 985; 1979 CLC 578; 2003 PLD (Pesh.) 46 and 1999 SCMR 394 ref.

M. Faqir Shakir, Ali Dad and Miss Saima Aziz for Petitioners/Defendants Nos.1, 6, 7, and 8.

Munir Ahmad and Akhtar Ali for Respondents Set No.1 to Set No.3.

2021 C L C 751

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUHAMMAD SIDDIQUE----Petitioner

Versus

DISTRICT JUDGE, JHELUM VALLEY, AZAD KASHMIR and 2 others----Respondent

Writ Petition No.367 of 2020, decided on 19th October, 2020.

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

----S.12(2), O.VIII, R.13 & O.XXII, R.4---Bar to further suit---List of legal representatives of defendant---Procedure in case of death of one of several defendants or of sole defendant---Scope---Petitioner challenged judgment and decree passed by Trial Court by way of filing an application under S.12(2), C.P.C., contending therein that the defendant (his father) had died during pendency of the suit and that it was necessary for the Trial Court to have impleaded the defendant's legal heirs because they were in possession of the suit land---Validity---Defendant was summoned and he had also engaged a counsel on his behalf; it was responsibility of the defendant or any other nominated person of the defendant to intimate the Court about death of the defendant and apply for impleading his legal heirs as party in place of the deceased---When the legal heirs of defendant had failed to file such application, there was no legal bar for the Court to announce the judgment and the decree---Any decree passed in such circumstances, inspite of death of the defendant, shall be deemed to be a valid decree against his legal representatives and it shall be deemed that the deceased was alive at the time of judgment---Plaintiff could not be blamed for the fault of defendant party---No element of fraud or misrepresentation was found in the case---Writ petition was dismissed, in circumstances.

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

----O.XXII, R.4---Procedure in case of death of one of several defendants or of sole defendant---Scope---If a party, plaintiff or defendant, dies during the proceedings and his legal heirs are not impleaded or intimation by the nominated person is not given to the Court, any decree passed against such deceased party shall be treated as the same was passed in the lifetime of the deceased party.

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

----S.12(2) & O.VI, R. 4---Bar to further suit---Particulars to be given where necessary---Scope---Decree can be set aside only when it is found by the Court that the same was a result of any fraud and misrepresentation of the plaintiff or it was passed without jurisdiction---If a party challenges any order or a decree of the Court on the ground of any fraud or misrepresentation then it has to give particulars of the alleged fraud or misrepresentation as the case may be---Mere using the general words of fraud or misrepresentation is not sufficient.

Shahzad Shafi Awan for Petitioner.

2021 C L C 1165

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

Mst. SABA AKHTAR and others----Appellants

Versus

IMRAN ASHRAF and others----Respondents

Family Appeal No.146 and Civil Appeal No.150 of 2019, decided on 24th September, 2020.

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

----S.5, Sched.---Suit for dissolution of marriage---Cruelty---False allegation---Scope---Plaintiff filed suit for dissolution of marriage on the basis of cruelty, physical torture, desertion and that the defendant (husband) levelled allegation against her that she was physically and sexually unfit---Defendant, through his counsel, filed application that the plaintiff be directed to get herself medically examined and if she was declared sexually and physically fit with regard to her reproductive system, the suit filed by her be decreed---Trial Court, after recording the statements of the parties, referred the matter to the Medical Board, who declared the plaintiff as a healthy and fit woman in all respects---Trial Court decreed the suit---Contention of defendant was that he was abroad and was unaware of the proceedings---Validity---Defendant had given authority to his counsel by way of signing the vakalatnama to prosecute the case on his behalf---Act of counsel was always considered as act of the party---Analysis of the evidence proved that the defendant had lambasted and castigated the plaintiff and had made her life miserable and depressed---Allegation itself had caused great torture to the plaintiff---Appeal of defendant to such extent was dismissed.

Mohammad Sabeel Khan and another v. Saima Inshad 2014 SCR 718 and 2015 YLR 170 rel.

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

----S.5, Sched.---Suit for recovery of dower---Snatching of gold ornaments---Burden of proof---Scope---Plaintiff filed suit for recovery of dower amount---Perusal of nikahnama revealed that dower was fixed as Rs.2,70,000/- out of which 70,000/- was prompt dower (given in the shape of gold ornaments)---Plaintiff although claimed that the gold ornaments were snatched during matrimonial life, however, she failed to prove her claim, thus, the Trial Court had rightly decreed the suit to the extent of Rs.2,00,000/---Appeal of the plaintiff to such extent was dismissed.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Financial means of husband---Burden of proof---Scope---Plaintiff filed suit for recovery of maintenance allowance---Trial court fixed the maintenance at the rate of Rs.500/- per month from the date of her desertion till iddat period---Validity---Record showed that the defendant was working abroad and it was not brought on record by the defence side that he was not a man of good financial means---Trial Court while fixing the maintenance allowance had made an error and fixed a very meagre amount of Rs.500/- therefore, the maintenance allowance was liable to be enhanced and Rs.3000/- per month was just, fair and appropriate amount---Appeal of the plaintiff was accepted.

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

----S.5---Procedure of Family Court---Offer to adopt deviated procedure---Scope---If a party opts to adopt a deviated procedure and an order is passed on the basis of such offer, deviated procedure or undertaking, subsequently said party was not allowed to resile form such statement, undertaking, etc.

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

----S.5, Sched.---Suit for recovery of dower---Deferred dower---Scope---Nikahnama is a valid public document and it has got the presumption of correctness---Deferment of the payment of dower to a wife with her consent is not prohibited, but if in the column of deferred dower a stipulated period is not mentioned for the payment of dower, the wife is competent to demand dower from her husband, who is bound to pay dower to the wife, whenever it is demanded or in case of divorce, dower becomes payable instantly.

Dr. Sabira Sultana v. Maqsood Sulehri 2000 CLC 1384 rel.

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

----S.5, Sched.---Suit for recovery of dower---Deferred dower---Scope---Husband is bound to pay dower incorporated in nikahnama as deferred dower even on wife's demand if no specific time is fixed.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Financial status of defendant---Scope---Family Court may grant appropriate maintenance allowance according to the needs of the claimant and demands of justice in each case and there is no limit or fixed amount of maintenance---Financial position of the defendant is also to be considered.

Sardar Azhar Arif for Saba Sarwar for Appellant/Respondent.

2021 C L C 31

[Islamabad]

Before Mohsin Akhtar Kayani and Miangul Hassan Aurangzeb, JJ

Messrs EXCEED PRIVATE LIMITED----Petitioner

Versus

JAMIL AHMED KHAN and others----Respondents

R.F.A. No.92 of 2019, decided on 7th August, 2019.

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

----S.34---Specific Relief Act (I of 1877), Ss. 42 & 54--Civil Procedure Code (V of 1908), O.VII, R.11---Contract containing arbitration clause---Stay of proceedings while referring matter to the arbitrator---Notice for termination of agreement---Suit for declaration and permanent injunction---Plaint, rejection of---Scope---Defendant moved application for referring matter to the arbitrator which was accepted and arbitrator was appointed for adjudicating dispute between the parties---Defendant thereafter issued notice for termination of agreement against which plaintiff filed a suit for declaration and permanent injunction but Trial Court rejected the plaint---Validity---Arbitrator had been appointed after stay of proceedings in the earlier suit and he was adjudicating the disputes between the parties---If a person who was a party to an arbitration agreement brought a suit ignoring that agreement then defendant's remedy if he did rely on that agreement was to proceed under S.34 of Arbitration Act, 1940 and to ask for stay of the suit---Court, in such circumstances, had powers to decide the dispute or to refuse to do so in case of existence of an arbitration agreement-If in a contract there was a provision of resolution of a dispute between the parties by way of arbitration and parties had agreed to such a forum then such forum should be resorted to and given preference before filing a suit---Defendant, in the present case, had filed application under S.34 of Arbitration Act, 1940 and was ready and willing to have the disputes adjudicated by the arbitrator---Court upon an application under S.34 of Arbitration Act, 1940, could only stay the proceedings in the suit but could not dismiss the suit or reject the plaint---Proceedings in the plaintiff's suit were stayed and he would be at liberty to resolve the disputes in accordance with the dispute resolution mechanism provided in the arbitration agreement---Appeal was allowed, in circumstances.

Messrs Exceed Private Limited v. Pakistan Housing Authority Foundation 2019 YLR 427; S.H. Hashim Hussain v. Pakistan Defence Officers' Housing Authority 2005 SCMR 1782 and Nasir Khan v. Province of Punjab through Secretary, Irrigation, Punjab Lahore 2006 YLR 87 rel.

(b) Appeal (Civil)---

----Appeal was a continuation of the original suit and Appellate Court had ample power to scrutinize the documents on the record---Appellate Court while hearing an appeal against an order or judgment or a decree of a Trial Court did exercise the same jurisdiction which vested in the Trial Court--- Appellate Court in an appeal could do all that the original Court could do.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Inayat v. Darbara Singh AIR 1920 Lahore 47; North-West Frontier Province Government, Peshawar v. Abdul Ghafar Khan PLD 1993 SC 418; Province of Punjab through Collector Bahawalpur v. Col. Abdul Majeed 1997 SCMR 1692 and CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528 rel.

Ali Nawaz Kharal and Muhammad Bilal Wiance for Appellants.

Imran Ali Kayani for Respondent/P.H.A.F.

2021 C L C 159

[Islamabad]

Before Lubna Saleem Pervez, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED----Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Information and others----Respondents

W.P. No.1580 of 2014, decided on 14th September, 2020.

(a) Pakistan Electronic Media Regulatory Authority Regulations, 2011---

----Regln, 20---Constitution of Pakistan, Art. 199--- Constitutional petition---Show-cause notice, assailing of---Physical inspection of premises of licensee---Jurisdiction---Petitioner was a licensee and assailed show-cause notice issued by Regional General Manager of Pakistan Electronic Media Regulatory Authority for violating law and terms and conditions of license---Validity---Regional General Manager of Pakistan Electronic Media Regulatory Authority could not show any general or special order in writing, whereby he was authorized to proceed under Regln. 20 of Pakistan Electronic Media Regulatory Authority Regulations, 2011--- Such official could not assume jurisdiction to initiate penal proceedings against petitioner through show-cause notice in question nor could impose penalty under Regln. 20(2) of Pakistan Electronic Media Regulatory Authority Regulations, 2011---Jurisdiction of High Court under Art.199 of the Constitution could be invoked where action was without lawful authority and jurisdiction---High Court set aside show-cause notice as the same was without lawful jurisdiction and coram non judice---Constitutional petition was dismissed in circumstances.

Mughal-E-Azam Banquet Complex v. Federation of Pakistan 2011 PTD 2260 rel.

(b) Interpretation of statutes---

----Rules and regulations are subservient to parent law and in case of any inconsistency, the parent statue prevails.

Messrs Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806 rel.

Barrister Zainab Janjua for Petitioners.

Sherdil Khan and Raheel Zafa, Manager (Legal), PTCL.

Syed Hasnain Ibrahim Kazmi for Respondents.

2021 C L C 262

[Islamabad]

Before Athar Minallah, C.J.

ISLAMABAD WILDLIFE MANAGEMENT BOARD through Chairman---Petitioner

Versus

METROPOLITAN CORPORATION ISLAMABAD through Mayor and 4 others---Respondents

C.M. No.1630 of 2020 in Writ Petition No. 1155 of 2019, decided on 18th July, 2020.

(a) Prevention of Cruelty to Animals Act (XI of 1890)---

----S. 3---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979) S.4---Constitution of Pakistan, Arts. 9 & 199---Cruelty to animals---Animals in captivity---Right to life---Compliance of directions---Authorities submitted their report with regard to earlier orders passed by High Court---Validity--- Pursuant to the duty of care humans owe to protect nature, there could be compelling reasons necessitating keeping a wild animal in captivity e.g. for the purpose of conservation of endangered species or to protect abandoned animals from being harmed---Wild animals were to be treated as an end in themselves and not a means for mere entertainment of humans---High Court directed the Wildlife Management Board to submit weekly report to High Court regarding completion of formalities for the journey of 'Kaaval' to his new home and relocation of all other animals and authorities were directed to give serious consideration to the observations of renowned operatic tenor, Robert Breault, "the only creature on earth whose natural habitat is a zoo is the zookeeper"---Petition was disposed of accordingly.

(b) Prevention of Cruelty to Animals Act (XI of 1890)---

----S. 3---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979) S.4---Constitution of Pakistan, Art. 9---Right to life---Cruelty to animals---Animals in captivity---Rights---Test to justify captivity is the principle of proportionality in the context of maintaining nature's balance---Subjecting a sentient living being an animal to unnecessary pain and suffering is not only an offence under the law but a breach of constitutionally guaranteed right to life of humans under Art. 9 of the Constitution---In the present digital era, there are other more effective alternatives to meaningfully educate children and adults regarding wild animals and how they behave in nature, instead of keeping them in captivity under distressfully inhumane conditions---Replacing steel bars and cemented cages with moats or ditches are of no help to avoid causing unimaginable stress and pain of 'zoochosis' to inmates of a zoo---Best of the circumstances in the most well managed and resourced zoo cannot be a substitute or a natural habitat, nor can the behavioral, social and physiological needs of any species of animal be met

Raja Abid Hassan, Owais Awan for Petitioners.

M. Saif Ullah Gondal, Assistant Attorney General and Malik Abdur Rehman for MCI.

Nobahar Ali for CDA.

Joudat Ayaz, Additional Secretary, M/o Climate Change. Dr. Rizwan Asghar, Section Officer, M/o Climate Change

2021 C L C 290

[Islamabad]

Before Mohsin Akhtar Kayani, J

Sardar MUHAMMAD ASHRAF D. BALOCH (PVT.) LTD., KARACHI---Petitioner

Versus

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

Writ Petition No. 4293 of 2017 along with C.M.As. Nos.233 of 2018, 2685 and 3471 of 2020, decided on 12th November, 2020.

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

----S. 34---Constitutional petition---Power to stay legal proceedings where there is an arbitration agreement---Scope---Petitioner sought direction to the Authority to release the payment vouchers due to the petitioner under payment certificate---Authority filed an application under S. 34, Arbitration Act, 1940 and contended that any dispute arising out of agreement would in the first place be referred to the Engineer---Validity---Petitioner was entitled for the amount in respect of value of permanent work, which was verified by the Authority's Engineer---Record revealed that neither any party had issued any notice to initiate the process of arbitration nor raised any dispute in terms of the contract, such aspect demonstrated that both the parties had no dispute to be resolved through arbitration mechanism---Constitutional petition was allowed and the application under S.34 of Arbitration Act, 1940 was dismissed.

Muhammad Aslam v. Azad Government of the State of Jammu and Kashmir 2005 CLC 1979 ref.

Shaman Mal v. Executive Engineer Irrigation 2011 MLD 1644 rel.

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

----S. 34---Power to stay legal proceedings where there is an arbitration agreement---Scope---Dispute has to be referred in terms of S. 34, Arbitration Act, 1940, by the party, who claims to raise a dispute in a pending matter.

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

----S. 34---Power to stay legal proceedings where there is an arbitration agreement---Scope---Dispute does not mean a simple refusal to pay money for which a person is liable.

Shin Satellite Public Company Limited v. Messrs Kasb Technology Services Limited 2016 YLR 2322 ref.

BOC Pakistan Limited v. Natural Gases (Pvt.) Ltd. 2013 CLC 767 rel.

Babbar Ali Khan for Petitioner.

Rizwan Faiz Muhammad for Respondents.

2021 C L C 337

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUSAWAR KAMAL---Petitioner

Versus

SECRETARY, MINISTRY OF PETROLEUM AND NATURAL RESOURCES, GOVERNMENT OF PAKISTAN and 5 others----Respondents

Writ Petition No.3212 of 2019, decided on 19th October, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Public procurement---Factual controversy ---Determination of facts as to fraud, fabrication, etc.----Petitioner impugned order of Ministry of Petroleum whereby it was blacklisted from procurement process and its bid security for tender for a public procurement by said Ministry was forfeited---Contention of petitioner, inter alia, was that it was blacklisted on account of fraud and fabrication of documents by an agent of petitioner and not the petitioner itself---Validity---Question as to whether fabrication was done by an agent and whether petitioner had no knowledge of such fraud was a controversial question of fact, which could not be resolved without recording of evidence, and such exercise could not be undertaken by High Court in its Constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Anwar Ali v. Chief Executive, HESCO (WAPDA) 2009 SCMR 1492 and Kaloo Khan v. O.G.D.C.L. 2019 PLC (C.S.) 519 rel.

(b) Public Procurement Rules, 2004---

----R.19----Public Procurement Regulatory Authority Ordinance (XXII of 2002) S.26---Constitution of Pakistan, Arts. 18 & 199---Public procurement---Blacklisting of suppliers and contractors----Due notice and adequate opportunity of hearing---Natural justice---Scope----Order for blacklisting involved civil consequences and such an order could only be passed after due notice and an adequate opportunity of hearing to person against whom such order was proposed to be passed and requirement of issuance of show-cause notice had to be complied with.

Messrs Kulja Industries Limited v. Chief General Manager, W.T. Project, BSNL 2014 SCMR 1748; New Jubilee Insurance Company Ltd. v. National Bank of Pakistan PLD 1999 SC 1126; M.A. Aleem Khan v. Province of Punjab PLD 2006 Lah. 84; Nizami Construction Company v. Chief Executive Officer, Gujranwala Electric Supply Company 2005 CLC 366; Rehim Khan v. Divisional Superintendent, Pakistan Railways, Rawalpindi 2003 YLR 63; Erusian Equipment and Chemicals Ltd. v. State of West Bengal AIR 1975 SC 266; Zulfiqar Ali v. Divisional Superintendent (Workshops), Pakistan Railways, Moghalpura, Lahore PLD 2001 Lah. 13 and Dawood Corporation (Private) Limited v. The Director General, Department of Supplies, Government of Pakistan, Ministry of Industries 1988 CLC 788 rel.

Ch. Abdur Rehman Nasir for Petitioner.

Sultan Mazhar Sher and Muhammad Nadeem Khakwani, Assistant Attorney-General for Respondents.

2021 C L C 400

[Islamabad]

Before Lubna Saleem Pervez, J

AHMED MURTAZA----Appellant

Versus

NASEERA FATIMA SUGHRA and 2 others----Respondents

F.A.O. No.03 of 2020, decided on 30th December, 2020.

Civil Procedure Code (V of 1908) ---

----Ss.12(2) & 47---Executing Court, powers of---Scope---Plea of fraud and misrepresentation raised during execution proceedings---Propriety---Role of Executing Court was to execute the judgment and decree issued by the Trial Court, as such and in execution proceedings only those questions were considered which pertained to execution of decree---Section 47, C.P.C. provided the scope of jurisdiction of the Executing Court to the extent of determining the questions relating to execution, discharge or satisfaction of the decree between the parties to the suit---Executing Court was not legally permitted to go beyond the judgment and decree, passed by the Trial Court as the conclusion in judgment and decree was the outcome of long drawn process of recording evidence on facts---Executing Court thus, was not authorized to entertain any new question out of the same set of facts and record which was not raised during the course of trial as it would violate the mandate and scope of S.47, C.P.C. --- Allegations of fraud and misrepresentation, therefore, were not the questions to be determined by the Executing Court under S.47, C.P.C., at the time of execution proceedings---Questions of fraud and misrepresentation were to be raised and determined through institution of proceedings under S.12(2) of C.P.C., which provision had been specifically provided to challenge the validity and legality of judgment and decree obtained through fraud, misrepresentation or want of jurisdiction.

Allied Bank Limited v. M/s Fazal Vegetable ghee Mills and others 2019 CLD 441 and Muhammad Irfan through Special Attorney v. Naseer Ahmad and others 2019 YLR 1756 ref.

Saqib Jillani for Appellant.

Syed Riaz Hussain and Intizar Hussain Panjutha for Respondents.

2021 C L C 423

[Islamabad]

Before Miangul Hassan Aurangzeb, J

TALLAHASEE RESOURCES INCORPORATED through Mrs. Maleeha Waheed Malik----Appellant

Versus

DIRECTOR GENERAL PETROLEUM CONCESSIONS, MINISTRY OF ENERGY (PETROLEUM DIVISION) and another---Respondents

F.A.O. No.124 of 2020, decided on 14th January, 2021.

Arbitration Act (X of 1940)----

----S.34---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), S.4---Civil Procedure Code (V of 1908), S.151---Stay of proceedings in a suit in presence of an arbitration agreement between parties---Adjudication of an application under S.34 of the Arbitration Act, 1940---Exercise of discretion by the court---Arbitration agreements for international arbitration as per ICSID or ICC Rules---Inherent powers of civil court---Scope---Discretion under S.34 of Arbitration Act, 1940 must be exercised judicially and court must take into consideration entire facts and circumstances of a case as well as conduct of the parties up to date of hearing of such application for stay of proceedings---Contradictory positions taken by a party could disentitle such party from such discretionary relief under S.34 of Arbitration Act, 1940 ---Arbitration agreement, if same provided for disputes to be referred for international arbitration, did not prevent a party from seeking stay of legal proceedings and mere fact that a civil court stayed proceedings under S.34 of Arbitration Act, 1940; did not imply that arbitration proceedings between parties should only be in accordance with provisions of Arbitration Act, 1940 and not per ICISD or ICC Rules---Court, in such a case, also had ample jurisdiction to treat an application for stay under S.34 of Arbitration Act, 1934, as having been made under S.4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 under which section, power to stay proceedings was not discretionary---Where it was not certain that ensuing arbitration proceedings under an arbitration agreement would be foreign or domestic arbitration, and legal proceedings had been brought by a party to such an agreement, then court could treat an application for seeking stay of such proceedings as an application under S.151, C.P.C.

Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196; Infospan (Private) Limited v. Messrs Telecom Foundation 2017 CLC 131 and Muhammad Ilyas Khokhar v. Ihsanllahi Mughal 2000 CLC 206 ref.

Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494; Mst. Baigan v. Abdul Hakeem 1982 SCMR 673; Rauf B. Kadri v. State Bank of Pakistan PLD 2002 SC 1111; P.Q. Chemicals v. A.W. Brothers 2005 CLC 169; Muhammad Saleem Butt v. Trading Corporation of Pakistan 1986 CLC 254; Walia Steel Industries PLC v. SAGA Shipping and Trading Corporation Ltd. PLD 2019 Sindh 22; Nargis Naureen v. Judge Family Court, Multan PLD 2018 Lah. 735 and Osman Khan v. Aisha Naz 2010 CLC 475 rel.

Mirza Mehmood Ahmad, Saad Ullah Tahir and Aziz-ur-Rehman Farooqi for Appellant.

Hafiz Naeem for Respondent No.1.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General, Ms. Mehrunisa Jehangir, L.A., D.G.P.C. for Respondents.

2021 C L C 488

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAKISTAN REAL ESTATE INVESTMENT AND MANAGEMENT COMPANY (PVT.) LIMITED----Petitioner

Versus

Messrs SKY BLUE BUILDERS and another----Respondents

Civil Revision No.225 of 2019, decided on 10th December, 2020.

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

----Ss.126 & 128---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2 ---- Commercial contracts --- Contract of performance guarantee, in the form of a Bank guarantee ---- Grant of injunction / restraining order under O.XXXIX, Rr.1 & 2, C.P.C., against encashment of an unconditional Bank guarantee----Independence and autonomy of the contract of guarantee---Scope---Petitioner impugned order of Trial Court whereby respondent's application under O.XXXIX, Rr.1 & 2, C.P.C., seeking to restrain petitioner from encashing Bank guarantee was allowed, until such time Arbitration Tribunal determined whether or not respondent committed default of contract----Contention of petitioner, inter alia, was that such guarantee was made in a commercial contract, and was to be encashed as soon as petitioner made declaration that respondent committed default of contract---Validity---For purposes of making a demand for encashment of guarantee, it was explicitly provided that petitioner shall be "sole and final judge" for deciding whether the respondent had fully performed obligations under the contract or defaulted on same---- Court could not rewrite contract of guarantee by making encashment of same contingent upon finding of Arbitration Tribunal and none of the terms of contract of guarantee were absurd, inconsistent or vague --- Trial Court therefore made an error by issuing temporary injunction against encashment of guarantee --- Impugned order was set aside --- Revision was allowed, accordingly.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Braganza v. BP Shipping Limited 2015 SCMR 742; System Company v. MTU Middle East FZE PLD 2019 Sindh 382; Green Group of Hotels v. Municipal Corporation, Peshawar 2017 MLD 257; Pakistan Industrial Credit and Investment Corporation Ltd. v. Khairpur Sugar Mills Ltd. 2012 CLD 1192; Montage Design Build v. The Republic of Tajikistan PLD 2015 Isl. 13; Standard Construction Company (Pvt.) Limited v. Pakistan through Secretary Ministry of Communications 2010 SCMR 524; Husein Industries Ltd. v. Sui Southern Gas Company Ltd. PLD 2020 Sindh 551; Atlas Cable (Pvt.) Limited v. Islamabad Electric Supply Company Limited 2016 CLC 1677; Global Energy and Commodity Exchange Group Italy SPA (GECX GROUP) v. Trading Corporation of Pakistan 2013 CLD 681; Mahatma Gandhi Sahakara Sakkare Karkhane v. National Heavy Engg. Coop. Ltd. AIR 2007 SC 2176; Hindustan Steelworks Construction Ltd. v. Tarapore & Co. AIR 1996 SC 2268 and Hindustan Steel Workers Construction Ltd. v. G.S. Atwal & Co. (Engineers) (Pvt.) Ltd. AIR 1996 SC 131 rel.

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

----Ss.56(f), 21 & 53---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2----Preventive injunctions---Temporary and preputial injunctions, grant of---Contracts not specifically enforceable---Injunction could not be granted to prevent the breach of a contract the performance of which would not be specifically enforced---Scope---Contract which could not be enforced by a decree for specific performance, could not be negatively enforced by issuance of a temporary injunction.

Lahore Stock Exchange Ltd. v. Hassan Associates 2010 MLD 800; District Council, Gujrat v. Iftikhar Ahmad 1998 MLD 1461; Qasimabad Enterprises v. Province of Sindh 1998 CLC 441; Universal Trading Corporation (Pvt.) Ltd. v. Beechem Group PLC 1994 CLC 726 and PIA Corporation v. Hazir (Pvt.) Ltd. PLD 1993 Kar. 190 rel.

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

----O.XXXIX Rr.1 & 2----Temporary injunction / interim relief, grant of---Essential ingredients --- Adjudication of applications for temporary injunction under O.XXXIX Rr.1 & 2, C.P.C.----"Irreparable loss" meaning and scope of---Monetary loss could not be termed to be "irreparable loss".

Dewan Petroleum (Pvt.) Ltd. v. Oil and Gas Investment Limited 2019 CLC 1486 rel.

Barrister Ummar Zaiuddin for Petitioner.

Barrister Bilal Akbar Tarar for Respondent No.1.

Sadaqat Ali Jehangir for Respondent No.2.

2021 C L C 616

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ALI AKBAR----Petitioner

Versus

DAUD AKHTAR and others----Respondents

Civil Revision No.217 of 2013, decided on 19th April, 2019.

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

----Ss.42 & 54---Suit for declaration and permanent injunction---Cancellation of mutation---Admission of execution of mutation---Burden of proof---Scope---Plaintiff filed suit for declaration and perpetual injunction contending therein that the impugned mutations were incorporated as a sale transaction whereas the suit property was intended to be mortgaged by him---Trial Court decreed the suit whereas Appellate Court dismissed the same---Validity---Beneficiaries of the mutations were the defendants, since title in the suit land was transferred in their favour but as the execution of mutations was not denied by the plaintiff thus burden of proving the sale transaction incorporated in the mutations did not shift on the defendants---Plaintiff was a well educated person and was capable of understanding the contents of the mutations and it did not appeal to reason that the plaintiff, who had fixed his thumb impressions on the mutations, was unaware as to their contents---Plaintiff had not even pleaded as to the type of mortgage that had been executed---Plaintiff had also parted with the possession of the suit land---Judgment and decree passed by Appellate Court was upheld---Revision petition was dismissed, in circumstances.

Rehmatullah v. Saleh Khan 2007 SCMR 729 distinguished.

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

----O.VI, R.4---Particulars to be given where necessary---Scope---Where fraud, undue influence or coercion is put at the forefront, the complainant party was to set out the facts in full and give essential particulars instead of making general allegations.

Faizum alias Toor v. Nander Khan 2006 SCMR 1931; Mst. Sahib Noor v. Haji Ahmed 1988 SCMR 1703 and Pakistan Banking Council v. Ali Maohtaram Naqvi 1985 SCMR 714 ref.

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

----O.VI, R.4---Particulars to be given where necessary---Scope---Where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and the details in that context are to be unfolded in the pleadings and bald or vague statements to that effect are of no legal consequence.

Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi 2013 CLD 1581 rel.

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

----S.52---Presumption in favour of entries in record of rights and periodical records---Scope---Mutation although is not a document of title but it is a factor in proof of the transaction which had been reduced or incorporated in the mutation.

Ghulam Zainab v. Said Rasool 2004 CLC 323 ref.

Ch. Manzoor Ahmad Kamboh and Hafiz Liaqat Manzoor Kamboh for Petitioner.

Zulfiqar Ali Abbasi and Shahid Munir for Respondents.

2021 C L C 662

[Islamabad]

Before Aamer Farooq, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman----Appellant

Versus

SAJJAD GHANI and 23 others----Respondents

F.A.O. No.104 of 2019, decided on 21st December, 2020.

Civil Procedure Code (V of 1908)---

----S.47---Capital Development Authority Ordinance (XXIII of 1960), S.32---Suit for specific performance of agreement to sell--- Objections to decree--- Executing Court, jurisdiction of--- During execution proceedings, Capital Development Authority raised an objection that decree was not executable as land in question had already been acquired--- Executing Court dismissed objection of Capital Development Authority on the ground that Executing Court could not go behind the decree--- Validity--- Executing Court could not go behind the decree was not an absolute principle / rule and was subject to exceptions--- All matters, arising out of judgment and decree between parties to suit and relating to execution, discharge or satisfaction of decree were to be determined by the Court executing the decree under S.47 C.P.C.--- Land was acquired under S.32 of Capital Development Authority Ordinance, 1960 and vested with Capital Development Authority--- Defendants / respondents had no title in suit land so they could not have entered into any agreement with plaintiff / respondent nor could have made any statement regarding acceptance of suit--- High Court set aside order passed by Executing Court as judgment and decree passed in favour of plaintiff / respondent was not executable--- Appeal was allowed, in circumstances.

Muhammad Latif Khan v. Mst. Nayab Begum PLD 1968 Kar. 758; Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others PLD 2001 SC 131; Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCMR 322 and Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 rel.

Rizwan Shabbir Kayani for Appellant.

Rashid Mahmood Sindhu for Respondents.

Gul Hussain Jadoon for Respondents Nos.2 and 13 to 24 ex parte.

2021 C L C 718

[Islamabad]

Before Lubna Saleem Pervez, J

MUHAMMAD ANWAR----Petitioner

Versus

The CHANCELLOR FEDERAL URDU UNIVERSITY OF ARTS AND SCIENCE TECHNOLOGY PRESIDENT SECRETARIAT, PRESIDENT HOUSE, ISLAMABAD and 4 others----Respondents

Writ Petition No.2736 of 2020, heard on 11th November, 2020.

(a) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Writ of quo warranto---Exercise of jurisdiction---Pre-conditions--- High Court has been vested with jurisdiction to issue writ of quo warranto, against holder of public office, if the Court is satisfied that post is held by person who is incompetent and does not possess required qualification for post and is appointed in violation of procedure prescribed in statutes.

Capt. (R) Naseem Hijazi v. Province of Punjab 2000 SCMR 1720; Munawar Ali Pathan v. Province of Sindh 2011 PLC (C.S.) 785 and Muhammad Iqbal Khattak v. Federation of Pakistan 2011 PLC (C.S.) 65 rel.

(b) Constitution of Pakistan---

----Arts. 199 (1)(a)(ii) & (b)(ii)---Writ of "certiorari" and "quo warranto"---"Aggrieved person" is the significant distinctive fact, as writ of "quo warranto" can be moved by any person from public at large inclusive of aggrieved person but only an "aggrieved person" is competent to seek declaration in "certiorari".

Muhammad Farooq v. Full Bench NIRC, Islamabad 2020 PLC 175; Tredata Ireland Ltd. v. Federation of Pakistan 2020 PTD 1316; Haji Muhammad Naeem v. Siraj ud Din and others PLD 2017 Quetta 65; Black's Law Dictionary; M/s. Hotel Summer Retreat, Nathiagali v. Government of N.W.F.P. through Secretary, C& W Department Peshawar 1999 MLD 2418; M. Ghulam Nabi Awan, Advocate v. Government of Pakistan 2003 MLD 90 and English Biscuits Manufacturers (Pvt.) Ltd v. Monopoly Control Authority 2005 CLD 264 rel.

(c) Constitution of Pakistan---

----Art.199 (1)(b)(ii)---Writ of quo warranto---Pre-conditions---Essential element which gives rise to invoke jurisdiction of High Court for seeking writ of quo warranto is 'holing of public office' by a person who either is not competent for the office or occupying the office unlawfully and without authority.

Sajid Hussain v. Shah Abdul Latif University, Khairpur PLD 2012 Sindh 232 rel.

(d) Federal Urdu University of Arts, Science and Technology Ordinance (CXIX of 2002)---

----S.12---Constitution of Pakistan, Arts.199(1)(a)(ii) & (b)(ii)---Constitutional petition---Writ of quo-warranto---Maintainability---Petitioner assailed appointment of Vice Chancellor of Federal Urdu University of Arts, Science and Technology---Validity---Respondent was holding post of Vice Chancellor on acting charge basis i.e. as a temporary and stopgap arrangement on the post for performing necessary administrative and management affairs and was not holding public office, which fact was necessary for invoking jurisdiction of High Court seeking writ of quo-warranto under Art.199 (1)(b)(ii) of the Constitution--- Such petition could not be considered as writ of certiorari under Art.199(1)(a)(ii) of the Constitution---- Notifications / office memorandums issued to manage and regulate internal affairs of the University by competent authority in exercising powers provided by law was not amenable to jurisdiction of High Court for issuance of writ of certiorari; it was necessary for person seeking writ of certiorari to be an aggrieved person who was adversely affected by an act done or proceedings taken by public functionary which was without lawful authority and of no legal effect--- Petitioner was not aggrieved and had no locus standi to challenge notification in question issued by the University--- Meeting of Senate was lawfully convened under Chairmanship of President of Pakistan / Chancellor who was vested with power under S.12(7) of Federal Urdu University of Arts, Science and Technology Ordinance, 2002, to make such necessary arrangement for performance of duties of Vice Chancellor in his absence or in case the office of Vice Chancellor was vacant or he was unable to perform functions due to illness or some other cause--- Petition was dismissed, in circumstances.

Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 ref.

Sohail Akbar Ch. and M. Sohail Khursheed for Petitioner.

Attaullah Hakim Kundi, Wasiullah Surrani, Tallat Abbas, Khurram Ibrahim Baig, Tariq Mehmood Khokhar, Additional Attorney General, Farrukh Shyahzad Dall, Additional Attorney General and Syed Nazar Hussain Shah, Assistant Attorney General for Respondents.

2021 C L C 809

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

MUHAMMAD SHAKIR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD-WEST and 5 others---Respondents

Writ Petition No.867 of 2020, decided on 20th November, 2020.

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

----S.5 & Sched.---Suit for maintenance of minors---Financial status of father, determination of---Scope---Petitioner assailed findings of courts below to the extent of maintenance allowance fixed at the rate of Rs.10,000/- per month each for three minors---Validity---Statement of respondent/wife transpired that it was a love marriage; that the petitioner was studying at that time, while after the marriage, they had lived in the parental house of respondent, which was an official accommodation; that the respondent was serving in BPS-11 as a government servant; that the petitioner had been contributing in terms of maintenance and payment of school fee of the children at par with his financial capability and that the respondent in her statement had not given the details or even remote hint whereby the financial status of the petitioner could be ascertained while on the other hand a suggestion was also put to her that the petitioner was jobless---When the legitimate source of income of the petitioner was shrouded in mystery and it was established that the respondent was a working lady and had been contributing towards maintenance parallel to the petitioner, the awarded maintenance appeared to be excessive---Impugned judgments and decrees were set aside and the case was remanded for decision afresh, in circumstances.

Muhammad Asim v. Mst.Samro Begum PLD 2018 SC 819; Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557; Khadija Bibi and another v. Abdul Rahim and another 2012 SCMR 671; Nazia Bibi and others v. Additional District Judge Ferozewala and others PLD 2018 Lah. 916 and Khalid Mahmood v. Naseem Akhtar 2019 MLD 820 rel.

2004 MD 1325 and 2009 CLC 1819 ref.

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

----S.17-A---Suit for maintenance of minors---Financial status of father, determination of---Scope---Family Court, before determination of the quantum of maintenance, is under obligation to determine the financial capability of the father vis-à-vis the amount claimed in that respect---Test provided for the purpose is that there should be some tangible, concrete and confidence inspiring material preferably in the shape of documents and thereafter proper maintenance is to be fixed.

Muhammad Asim v. Mst.Samro Begum PLD 2018 SC 819; Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557; Khadija Bibi and another v. Abdul Rahim and another 2012 SCMR 671; Nazia Bibi and others v. Additional District Judge Ferozewala and others PLD 2018 Lah. 916 and Khalid Mahmood v. Naseem Akhtar 2019 MLD 820 rel.

2004 MD 1325 and 2009 CLC 1819 ref.

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

----S.17-A---Suit for maintenance of minors---Financial status of father, determination of---Scope---Court is to determine the income of the father for which recourse in terms of subsection (4) of S.17-A of Family Courts Act, 1964 can be adopted which is meant to facilitate the court to determine the financial position of the father.

Muhammad Asim v. Mst.Samro Begum PLD 2018 SC 819; Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557; Khadija Bibi and another v. Abdul Rahim and another 2012 SCMR 671; Nazia Bibi and others v. Additional District Judge Ferozewala and others PLD 2018 Lah. 916 and Khalid Mahmood v. Naseem Akhtar 2019 MLD 820 rel.

2004 MD 1325 and 2009 CLC 1819 ref.

Ch. Muhammad Javed Gujjar for Petitioner.

Malik Muhammad Haseeb for Respondents Nos.3 to 6.

2021 C L C 851

[Islamabad]

Before Tariq Mehmood Jehangiri, J

SAHIBZADA NISAR AHMAD JAN----Petitioner

Versus

SUI NORTHERN GAS PIPELINE LTD. through General Manager----Respondent

Writ Petition No.1262 of 2015, decided on 20th January, 2021.

Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Refined Oil Products] Regulations, 2003---

----Reglns.3 & 9---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court ---Efficacious alternate remedy, availability of---Scope---Petitioner sought direction to Sui Northern Gas Lines Limited ("SNGPL") to provide gas connection at premises of petitioner---Validity---Efficacious remedy was available to petitioner under Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Refined Oil Products] Regulations, 2003 and petitioner's dispute could be resolved under the same---Under said Regulations, remedy of appeal was also available to petitioner if he was not satisfied with the decision under said complaint resolution mechanism---Adequate remedy was thus available to petitioner and there was no basis to invoke Constitutional jurisdiction of High Court---Constitutional petition, being not maintainable, was dismissed, in circumstances.

Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 rel.

Ch. Muhammad Zafar Iqbal for Petitioner.

Ch. Hafeezullah Yaqub for Respondent.

Ali Raza, Senior Law Officer, SNGPL

Syed Safeer Hussain, Executive Officer, SNGPL.

2021 C L C 867

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

MUHAMMAD SARFRAZ SIYAL----Appellant

Versus

FAZAL HUSSAIN KHAN---Respondent

Regular First Appeal No.132 of 2018, decided on 20th January, 2021.

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

----S.96 & O.VII, R.10---Limitation Act ( IX of 1908), Ss.5, 12 & 14---Appeal, filing of, delay in---Condonation of---Scope---Exclusion of time spent in obtaining certified copies---Consumption of time at the wrong forum---"Sufficient cause"---Scope---Held, that the Appellant (applicant under S.5 of the Limitation Act, 1908) had consumed almost seven (07) months in the Appellate Court which was a wrong forum---Appeal was returned to him but he applied for the issuance of certified copies after more than two (02) months and fifteen (15) days---No cogent reasons had been given for the delay of filing application for obtaining the certified copies, which was in addition to delay of almost seven (07) months consumed before a wrong forum---After the prescribed period of limitation having elapsed, the door of justice was closed and no plea of injustice, hardship or ignorance could be of any avail unless the delay was properly explained and accounted for---Appeal, in the present case, was filed beyond the prescribed period of limitation and no cogent reasons had been given for condonation of delay under section 5 of the Limitation Act, 1908---High Court dismissed the application for the condonation of delay filed by the appellant---Appeal was dismissed, in circumstances.

Water and Power Development Authority 1988 SCMR 1354 ref.

(b) Limitation---

----Wrong advice of the counsel---Scope---Act of approaching a wrong forum must be accounted for: it should be established that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum---Mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributed to him and/or overlooking of the record by the counsel could not constitute sufficient cause ipso facto, but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated---Mere wrong advice of counsel was not an adequate ground per se to constitute sufficient cause because if the rule that "ignorance of law was no excuse" would stand violated---Besides, the said factors, which caused ambiguity and misled the appellant (or his counsel as the case might be), had to be stated with clarity and precision in the application for condonation of delay and proved on the record.

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

----Preamble---Interpretation of the Act---Salient features.

Following are the salient-features of law of limitation:

i. The law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly;

ii. The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court. Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties;

iii. It is salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the case comes strictly within the ambit of the provision;

iv. There is absolutely no room for the exercise of any imagined judicial discretion vis-à-vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The court cannot claim any special inherent equity jurisdiction;

v. A statute of limitation instead of being viewed in an unfavorable light, as an unjust and discreditable defence, should have received such support from courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law. It is indeed often a righteous defence. The court has to only see if the defence is good in law and not if it is moral or conscientious.

vi. The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right.

vii. The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suit or;

viii. Construing the Preamble and Section 5 of the Act it will be seen that the fundamental principle is to induce the claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced".

Khushi Muhammad and others v. Mst. Fazal Bibi and others" PLD 2016 SC 872 ref.

Faisal Iqbal Khan for Appellant.

2021 C L C 934

[Islamabad]

Before Lubna Saleem Pervez, J

SOBIA JABEEN and others----Petitioners

Versus

JUDGE GUARDIAN COURT (EAST), ISLAMABAD----Respondent

Writ Petition No.4015 of 2020, decided on 28th January, 2021.

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

----Ss.7, 16 & 25---Guardian Court, jurisdiction of---Application by the guardian seeking permission to sell the share/property of the minor---Property was not situated within the jurisdiction of the Court from where applicant had been declared guardian---Application of the petitioner/mother was dismissed on the ground that the properties of the deceased, in which the minor had share, were situated beyond the territorial jurisdiction of the Court---Held, that section 16 of Guardians and Wards Act, 1890, stipulated that the Court, within whose jurisdiction the property was situated, was competent to accept the applicant as duly appointed/declared guardian of the minor on production of certified copies of the order appointing him/her the guardian of the minor---Petitioner could file application seeking permission to sell the share/property in the name of the ward in the Court within whose jurisdiction the property-in-question was situated, by producing the certified copy of order of her appointment/declaration as guardian of minor---Said Court would accept the petitioner as duly appointed/declared guardian and would give effect to such order---Due to the word "shall" used in S.16 of the Guardians and Wards Act, 1890, it was mandatory upon the Court (within whose jurisdiction the property was situated) to accept the person as a duly appointed guardian and to give effect to the order of appointment of the applicant as Guardian by allowing the requisite permission---Guardian Court, in the present case, had rightly dismissed the application of the petitioner for want of jurisdiction---No illegality or infirmity was found in the impugned order passed by the Guardian Judge ---Constitutional petition was dismissed in circumstances.

2021 C L C 959

[Islamabad]

Before Shaukat Aziz Siddiqui, J

NISHAT CHUNIAN POWER LIMITED through Managing Director and others----Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Water and Power Islamabad and 2 others----Respondents

Writ Petitions Nos.2226, 2227, 2229 of 2013, decided on 14th April, 2016.\

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

----Ss.3 & 5---National Electric and Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R. 16---Establishment of the National Electric and Power Regulatory Authority (Authority)---Meetings of the Authority---Scope---Petitioners invoked constitutional jurisdiction of High Court under Art.199 of the Constitution whereby they challenged the orders of the Authority---Main grievance of the petitioners was that the impugned order was rendered by three members of the National Electric and Power Regulatory Authority in violation of R.16(6) of National Electric and Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998---Validity---Section 5 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, (the Act) provided that meeting of the Authority shall be presided over by the Chairman or, in absence, the Vice Chairman---Section 5(2) of the Act provided in clear terms that three members shall constitute a quorum for meetings of the Authority requiring decisions by the Authority---In order to dispel any doubt as to the effect and or merit of any act and or proceedings by the Authority, legislature had taken due care of eventuality in case where there happened to be any vacancy in, or defect in, the constitution of the Authority---Subsection (6) of S.3 of the Act provided legal cover and any such act or proceedings could not be invalidated on such count---Object of subsection (6) of S.3 of the Act was to keep the Authority functional in all respects in performance of all its functions irrespective of any vacancy but subject to maintaining minimum strength of quorum as three---Impugned orders of the Authority were in accordance with the applicable rules, non-discriminatory and no fundamental legal/constitutional right of the petitioners was infringed---Constitutional petitions were dismissed.

Hamid Meer v. FOP and others PLD 2013 SC 244; PLD 2013 SC 279; Al-Jehad Trust v. FOP PLD 2011 SC 811 and Bank of Punjab and another v. Haris Steel and others PLD 2010 SC 1109 ref.

NEPRA v. FESCO Civil Appeal No.1149 of 2015 foll.

Waleed Khalid for Petitioner.

Barrister Asghar Khan for NEPRA.

Wasim Mehmood Malik for Respondent No.3.

2021 C L C 1014

[Islamabad]

Before Tariq Mehmood Jahangiri, J

GHULAM AHMAD QURESHI through Special Power of Attorney----Petitioner

Versus

COMMISSIONER CDA, ISLAMABAD and another---Respondents

Writ Petition No.4158 of 2016, decided on 29th March, 2021.

(a) Islamabad Residential Sectors Zoning Building Regulations, 2005---

----Regln. 2.17---Ban on non-conforming uses---Scope---Petitioner being owner of the house rented the same to another for residential purposes---Capital Development Authority (CDA) officials reported that the tenant had established an office in the said premises subsequent to which an ejectment petition was filed by the petitioner which was accepted---Deputy Commissioner CDA imposed a fine on the petitioner under Clause 2.17.3 of Islamabad Residential Sectors Zoning Building Regulations, 2005---Appeal against such order, filed before the Commissioner CDA, was dismissed---Validity---Petitioner, before issuance of notice by CDA, had not taken any action against his tenant for putting residential house to non-conforming use which reflected that the said violation was carried out with his consent---Words "owner and the occupant" were used in clause 2.17.3 of Islamabad Residential Sectors Zoning Building Regulations, 2005, so both were responsible, but if the tenant/occupant had vacated the premises then only the owner was liable for the penalties---Owner of the house/premises could not be absolved from the penal action by CDA, in case of any building violation---Owner could, however, initiate legal proceedings against his tenant for recovery of fine imposed by CDA and could also claim damages, etc. for loss/inconvenience caused to him due to violation committed by the tenant---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Certiorari, writ of---Scope---Writ of certiorari is available only to quash a decision for an error of law---Said writ will be issued for correcting errors of jurisdiction when an inferior Court or tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principles of natural justice---High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction and will not review the findings of facts reached by the inferior court or a tribunal.

Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041; Amjad Khan v. Muhammad Irshad (Deceased) through LRs 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Jurist Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others PLD 2020 SC 1; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 and Shajar Islam . Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

Malik Muhammad Zulfiqar for Petitioner.

Rehan Seerat for Respondents.

2021 C L C 1089

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

Mst. ISBAH RASHID----Petitioner

Versus

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

Writ Petition No.84 of 2021, decided on 13th January, 2021.

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

----S.5, Sched, Sr. 5---Suit for recovery of maintenance allowance---Visitation schedule, fixation of---Scope---Petitioner (mother of minor) assailed order passed by Judge Family Court whereby respondent (father of minor) was allowed to meet the minor once in a month for half an hour---Contention of petitioner was that Judge Family Court had no jurisdiction to fix meeting schedule as the lis pending was with regard to recovery of maintenance allowance and not a guardian petition; that the respondent had already filed a guardian petition where he could ask for similar relief and that the respondent was chronic patient of skin disease---Validity---Judge Family Court had jurisdiction to adjudicate upon the matters contained in Part I of the Schedule attached to the Family Courts Act, 1964, which included "custody of children" against serial No. 5 with addition of "visitation rights of parents to meet them"---Respondent could not be restrained to have meeting with his daughter---Father, like mother, had equal right to see his children and the right so bestowed could not be taken away---Constitutional petition was dismissed in limine.

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

----S.14---Constitution of Pakistan, Art.199---Constitutional petition---Visitation schedule, affixation of---Maintainability---Interim order---Scope---Family Courts Act, 1964, being special law, explicitly bars remedy of appeal or revision against interim order, therefore, where a statute specifically excludes a remedy, petition in terms of Art.199 of the Constitution cannot be held to be maintainable against the said order as it would amount to circumventing the intent of legislature and frustrating the express provision of law.

Dr. Samina Anayat v. Additional District Judge and others 2018 MLD 448 rel.

2021 C L C 1132

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mian MUHAMMAD AKBAR DHAREEJA----Appellant

Versus

MUHAMMAD RAMZAN KHOKHAR and others----Respondents

R.S.A. No.02 of 2018, decided on 26th February, 2021.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art.17---Suit for specific performance---Competence and number of witnesses---Oral agreement---Burden of proof---Scope---Plaintiff filed suit for specific performance of agreement to sell claiming therein that the defendant purchased a stamp paper for the purpose of executing an agreement to sell; that the agreement to sell was drafted but was not signed by the defendant; that part payment was made; that a receipt in that regard was issued by the defendant on the reverse of the stamp paper and that the terms and conditions of the agreement were verbally settled---Contention of defendant was that his signatures appeared on the reverse of the stamp paper because he had purchased the same and that neither part payment was received nor had he issued the receipt---Trial Court dismissed the suit whereas Appellate Court decreed the suit while holding that the defendant was not able to discharge the burden of proving that forgery was committed by the plaintiff---Validity---Defendant having denied that a verbal agreement was arrived at with the plaintiff, it was latter's obligation to prove such verbal agreement by producing witnesses---Plaintiff other than his own self had not produced any witness to prove that an oral agreement to sell was executed---So far as issuance of receipt was concerned it was obligatory on the plaintiff to prove that such a receipt was issued by producing witnesses moreso where the defendant had denied the issuance of such receipt---Appellate Court had erred in decreeing the suit, in circumstances---Appeal was allowed and the judgment and decree passed by civil court was restored.

Muhammad Nawaz v. Muhammad Baran Khan 2013 SCMR 1300 ref.

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

----Art.17---Competence and number of witnesses---Scope---Article 17(2) of the Qanun-e-Shahadat, 1984, provides that unless otherwise provided in any law relating to the enforcement of Hudood or any other special law in matters pertaining to financial or future obligations, if reduced into writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of certiorari---Scope---When the findings of two courts below are at variance, the High Court can appreciate the evidence to determine which of the two decisions is in accordance with the evidence.

Karim Bakhsh v. Jindwadda Shah 2005 SCMR 1518 ref.

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

----S.2(h)---Oral agreement---Scope---Oral agreement is as enforceable as a written agreement, provided the same fulfills the requirement of a valid contract.

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

----S.2(h)---Oral agreement---Scope---Person entering into an oral agreement has to prove the oral agreement according to the definition of "agreement" in S.2(h) of Contract Act, 1872.

Maqsood Ahmad v. Salman Ali PLD 2003 SC 31 ref.

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

----S.2(h)---Oral agreement---Scope---Oral agreement is required to be proved by the beneficiary through cogent evidence of the bargain, especially after its denial by the other party.

Allah Ditta v. Liaqat Ali 2005 YLR 245 ref.

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

----S.2(h)---Oral agreement---Scope---Oral agreement, for its proof, requires the clearest and most satisfactory evidence.

Qazi Muhammad Saqib Khan v. Ghulam Abbas 2003 MLD 131; Muhammad Farooq & Company (Pvt.) Ltd. v. Messrs Pakistan Tobacco Company Limited 1997 CLC 520; Government of Pakistan v. Kamruddin Valika 1996 CLC 1086 and Khayaban-e-Iqbal (Pvt.) Ltd. v. Mustafa Haji Muhammad 1996 CLC 1758 ref.

Habib Ahmed Bhatti and Akhlaq Ahmed Bhatti for Appellant.

Malik Tanveer-ul-Hassan for Respondent No.1.

2021 C L C 1160

[Islamabad]

Before Ghulam Azam Qambrani, J

Messrs FAST TRACKS through Sole Proprietor----Petitioner

Versus

FEDERAL INVESTIGATION AGENCY through Director General, and 3 others----Respondents

Writ Petition No.2166 of 2020, decided on 27th October, 2020.

(a) Procurement Rules, 2004---

----R.48---Redressal of grievances by the procuring agency---Opportunity of hearing---Natural justice, principles of---Applicability---Scope---Petitioner assailed validity of a letter whereby purchase order/tender was cancelled after obtaining delivery of the articles by the authorities---Validity---Impugned letter was issued without providing an opportunity of hearing to the petitioner, as such the same was against the principles of natural justice---Rule 48 of Procurement Rules, 2004, although did not expressly provide for any opportunity of a personal hearing to the petitioner, but under the principles of natural justice an aggrieved party may be provided such an opportunity and in all proceedings, by whomsoever held, whether judicial or administrative, the principles of natural justice had to be observed, if the proceedings resulted in consequences affecting the person or property or other rights of the parties concerned---Issuance of impugned letter showed mala fide, arbitrary exercise of discretionary power, lack of transparency and unfairness; therefore, the same was set aside and the authorities were directed to make payment against the supply order to the petitioner---Constitutional petition was allowed.

(b) Administration of justice---

----Audi alteram partem---Scope---Requirement of the principle audi alteram partem is not confined to proceedings before Courts but it extends to all proceedings, by whomsoever held, which may affect a person or property or other rights of the parties in dispute---Principles of natural justice must be read each and every statute unless and until prohibited by the statute---Even if there is no provision as to issuance of notice of personal hearing to the affected party in a statute, it cannot override the principle of natural justice and an opportunity of a hearing has to be provided to the affected party.

Pakistan v. Public at Large PLD 1987 SC 304 and Abdul Majeed Zafar v. Governor of Punjab 2007 SCMR 330 ref.

Rana Abid Nazir for Petitioner.

Ch. Fayyaz Hussain Dhariwal, Assistant Attorney General, along with Arbab Arshad Saeed, A.D. (Legal) F.I.A. for Respondent.

2021 C L C 1255

[Islamabad]

Before Miangul Hassan Aurangzeb, J

TRANS WORLD ASSOCIATES (PVT.) LIMITED through VP Finance and Company Secretary----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Information Technology and Telecommunication and 6 others----Respondents

Writ Petition No.315 of 2019, decided on 25th June, 2020.

(a) Jurisdiction---

----Objection---Principle---Where an objection to jurisdiction of a Court or a Tribunal is raised, it is necessary that such an objection is decided first before a decision on merits of the case.

Zahid Zaman Khan v. Khan Afsar PLD 2016 SC 409; Izhar Alam Farooqi v. Abdul Sattar Lasi 2008 SCMR 240; Muhammad Siddique Anwar v. Faisalabad Development Authority 2007 SCMR 1126; Mansab Ali v. Amir PLD 1971 SC 124; Dr. Asadullah Khan Tareen v. Government of Balochistan Health Department 2016 PLC (C.S.) 195; Registrar High Court of Balochistan, Quetta v. Mazar Khan 2014 PLC (C.S.) 1275 and Ishrat Malik v. Jameel Ahmad Manj 2017 YLR 1788 rel.

(b) Jurisdiction---

----Determination---Procedure---Where a party is of a view that a forum before which a matter is pending does not have jurisdiction to entertain the matter, it is always open to the party to appear before the forum in response to a notice and make a preliminary objection regarding jurisdiction.

(c) Constitution of Pakistan---

----Art. 199(1)(a)(ii)---Constitutional petition---Writ of certiorari---High Court, powers of---Scope---While considering prayer for certiorari, High Court is not entirely powerless to look into the question as to whether the concerned authority at all has jurisdiction to entertain the matter and decide question relating to initial lack of jurisdiction.

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

----Ss.4, 5 & 22 (2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Show-cause notice---Consultation process---Petitioner company assailed issuance of show cause notice without approaching the authorities---Plea raised by petitioner was that Pakistan Telecommunication Authority (P.T.A.) had no authority to initiate consultation process---Validity---Only notices for a consultative process had been issued to petitioner--- No effective hearing took place before Pakistan Telecommunication Authority---No occasion had arisen for the Authority to have proceeded further, as petitioner rushed to High Court and obtained interim relief against continuation of proceedings before P.T.A.---If Pakistan Telecommunication Authority (P.T.A.) had an occasion to hear petitioner on its objection to P.T.A.'s jurisdiction, it could be possible that P.T.A. would have accepted the same---If objection regarding jurisdiction was accepted by P.T.A., the matter might have ended there---If P.T.A. found that it had the jurisdiction to proceed with the matter only then it could proceed further with the consultation process---No opportunity was provided to P.T.A. to effectively exercise jurisdiction vested in it for a decision on its own jurisdiction---High Court declined to entertain the petition at such premature stage, leaving it open to petitioner to approach P.T.A. and take such objections before it---High Court directed P.T.A. to consider and decide the same as a preliminary issue in accordance with law before proceeding with the matter on merits of the case---Petition was disposed of accordingly.

National Silk and Rayon Mills v. Federation of Pakistan 2015 MLD 995 and Sunbiz Private Limited v. Federation of Pakistan 2018 YLR 1785 ref.

Munawar-us-Salam and Waleem Khalid for Petitioners.

Rashid Hanif, Sardar Ejaz Ishaq Khan and MNA Rehan for Respondents.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

2021 C L C 1300

[Islamabad]

Before Ghulam Azam Qambarani, J

KHURRAM SHAHZAD----Petitioner

Versus

NASEEM AKHTAR and 2 others----Respondents

Writ Petition No.3821 of 2020, decided on 29th March, 2021.

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

----Ss.17-A & 17-B---Interim maintenance allowance---Non-payment---Penal consequences---Decreeing the suit forthwith---Discretion of the Court---Scope---If defendant defaulted, in making payment of interim maintenance, despite orders by the Family Court, penal action in terms of S.17-A of the Family Courts Act, 1964 ('the Act 1964') provided two separate penal consequences; first striking off the right of defence and second to decree the suit---Sections 17-A & 17-B of the Act 1964, provided that by having used the word " may " the Legislature did not intend to make passing of decree mandatory, rather it had been left upon the discretion of the Trial Court to consider the facts and circumstances of each case---Section 17-B of the Family Courts Act, 1964 further explained the circumference as well as the mode of exercising the authority in shape of making reasonable inquiry of the matter-in-question before decreeing the suit due to default i.e. the Court may issue a Commission to examine any person; make a local investigation; and inspect any property or document.

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

----S.5, Sched. & S. 17-A ---Civil Procedure Code ( V of 1908), O.VI, R.17---Interim maintenance allowance for wife and minors---Quantum and entitlement---Scope---Plaintiff-lady filed suit for maintenance allowance for minors and herself---Defendant moved application for amendment in the pleadings contending that the fact that he had divorced the mother of the minors could not be mentioned in the written-statement submitted on his behalf by his special attorney in connivance with plaintiff---Family Court fixed amount of interim monthly maintenance allowance of both the minors @ Rs.15,000/- each and Rs. 20,000/- for the mother of the minors---Family Court after failure of the defendant to deposit the interim maintenance allowance on three dates of hearing, struck off his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Appellate Court maintained the order of the Family Court---Both the father and mother invoked constitutional jurisdiction of the High Court to assail quantum/entitlement of the maintenance allowance---Held, that record verified the fact that there had been a default on the part of the defendant in payment of interim maintenance---Although it could not be said that the Family Court wrongly invoked the provisions of S.17-A of the Act, however, material fact regarding divorce should not have been ignored---Copy of the Divorce Deed was not only on the record but the same was also acknowledged from the fact that the plaintiff had filed a suit challenging the validity of the said Divorce Deed---Since the fate of the claim of the plaintiff for recovery of her maintenance allowance hinged upon the factum of her being in Nikah of the defendant or not, therefore, the application for amendment in the statement ought to have been decided before passing a decree---In consequence of peculiar circumstances of the present case as well as the amount of maintenance allowance demanded by the minors/ their mother, it was incumbent upon the Trial Court to have sought evidence of the parties in proof of justification concerning the quantum of maintenance---High Court set aside the decrees and judgments passed by both the Courts below and remanded the matter to the Family Court to decide the quantum of maintenance after taking evidence of the petitioner/defendant vis-a-vis his financial status---High Court directed that the Family Court shall also decide the application moved by the defendant for seeking amendment in his written-statement before passing any order regarding maintenance for the mother of the minors owing to the plea of divorce raised by the defendant ; that the Family Court shall also fix interim maintenance allowance after hearing both the parties and considering financial competency of the father who shall regularly pay the same---Constitutional petition of the mother of the minors was disposed of---Constitutional petition of the father was allowed, in circumstances.

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

----S.5 ,Sched. & S.17-A ---Suit for maintenance allowance for minors and wife---Interim maintenance allowance fixed by the Court---Non-payment of---Suit was decreed as penal consequence---'Decree'---Scope---Family Court ordered the defendant to deposit interim maintenance allowance of minors as well as that of wife/plaintiff fixed by the Court and after his failure to deposit the same on three dates of hearing struck of his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Held, Penal consequence to decree the suit provided under S.17-A of the Family Courts Act, 1964 embraced the expression of "decree" which though had not been defined in the Act, yet the decree invariably referred to judicial determination of a matter in controversy and such determination could not be done without application of mind in accordance with evidence and law on the subject---Impugned judgment , therefore, mechanically and technically upholding prayer of a suit could not be termed a decree---High Court set aside the impugned decrees and judgments passed by both the Courts below and remanded the matter to be decided afresh---Constitutional petition of the father was allowed, in circumstances.

Hyderabad Development Authority through M.D v. Abdul Maieed and others PLD 2002 SC 841 and Messrs UBL v. Messrs Silver Oil Mills Ltd. 2003 SCMR 1161 ref.

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

----S.5, Sched. & Ss.17-A & 12-A---Maintenance allowance, grant of---Interim maintenance allowance, fixation of ---Family Court, powers of---Family Court, for grant of maintenance allowance, was to see that maintenance allowance, was indispensible right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings---Although S.17-A of the Family Courts Act, 1964 empowered the Family Court to pass order for grant of interim maintenance at any stage of the proceedings, in the normality of circumstances, the same must be passed after hearing both the parties, unless the attitude and conduct of the defendant/father was evasive---Order for grant of interim maintenance was to be made on the basis of tentative assessment of material available on file and keeping in view the social status of the parties---Both material available and social status was to be mentioned in the order for grant of interim maintenance---Quantum of interim maintenance was to be "bare minimum" to meet the day to day needs of the recipients in the narrow context---Although the Family Laws had been enacted to promote , protect and advance the rights of woman and children yet at the interim stage the version of the defendant be given a sympathetic or some-what preferable consideration because non-payment of interim maintenance allowance would cut throat of his valuable rights i.e. right to defence and inconsequential effects, children/women would be the loosers and deprived parties---High Court observed that if the case was not decided within the statutory period as given in S.12-A of the Act either party might apply to the High Court for appropriate direction, however, order for grant of interim maintenance shall hold the field unless reviewed by the High Court under S.12-A of the Act or Family Court itself reviewed the same at any stage.

Ali Adnan Dar v. Judge Family Judge and others PLD 2016 Lah. 73 ref.

Shahid Mehmood Langrial for Petitioner.

Jameel Hussain Qureshi for Respondents.

2021 C L C 1348

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

ALI ASGHAR----Applicant

Versus

RAJA M. SIDDIQUE and others----Respondents

Writ Petition No.4392 of 2019, decided on 30th September, 2020.

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

----O.I, R.10---Necessary party---Scope---Petitioner assailed the dismissal of his application under O.I, R.10, C.P.C., by the District Judge while exercising revisional jurisdiction---Contention of petitioner was that he was the subsequent purchaser of the suit property, therefore, for all intents and purposes he was a necessary party---Contention of respondent was that transfer of the suit property took place during pendency of litigation---Validity---Petitioner and other transferees were in possession of the suit property pursuant to the transfer, as such, they would be effected by the decree of the Court, thus, fairness demanded that they were a "necessary party"---Constitutional petition was allowed, order passed by District Judge was set aside and that of trial court was restored with the modification that all transferees be impleaded as defendants in the suit.

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

----O.I, R.10---Necessary party---Scope---Any person can be impleaded as party, whose presence is considered to be essential for "just decision" of the case and in whose absence no effective adjudication can be carried on.

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

----O.I, R.10---Court may strike out or add parties---Scope---Plaintiff though is dominus litis and cannot be compelled to implead a person against whom he is not interested to litigate or seek relief, however, the rule is subject to O.I, R.10, C.P.C..

2013 SCMR 602 ref.

Muhammad Abdul Wase for Applicant.

2021 C L C 1414

[Islamabad]

Before Miangul Hassan Aurangzeb, J

JS GLOBAL CAPITAL LIMITED----Petitioner

Versus

MRS. RAHEELA YAHYA----Respondent

Civil Revision No.73 of 2014, decided on 26th April, 2021.

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

----Ss. 20 & 37(4)---General Regulations of Karachi Stock Exchange (Guarantee) Limited, Rgln.31---Arbitration---Limitation--- Determination---Trial Court, jurisdiction of---Petitioner sought referring the matter to arbitrator but Trial Court and Lower Appellate Court concurrently declined to refer the matter on the ground that petitioner had failed to initiate arbitration within period prescribed in agreement between the parties---Validity---Trial Court was to decide whether an application under S.20 of Arbitration Act, 1940, was filed within limitation period provided by law---Arbitrator and not the Court was to deal with question whether claim of a party to arbitration agreement was barred by law of limitation---Provision of S.37(4) of Arbitration Act, 1940, did not apply to the time within which an application under S.20 of Arbitration Act, 1940, could be moved---Trial Court could not refuse to refer matters to arbitration on the ground that because of a clause in arbitration agreement, placing a time limit within which party to such an agreement could raise claim against the other was time barred---Arbitrator was to decide such questions---Both the Courts below erred by not appreciating that it was for the arbitrator and not the Court to decide whether claim of petitioner against respondent was barred by a provision of arbitration agreement imposing time limits within which claims could be made in arbitration---High Court set aside concurrent orders passed by two Courts below and application under S.20 of Arbitration Act, 1940, filed by petitioner was allowed---High Court referred the matter to Karachi Stock Exchange for arbitration---Revision was allowed, in circumstances.

J.C. Budhraja v. Chairman, Orissa Mining Corporation Ltd. AIR 2008 SC 1363; Jiwnani Engineering Works v. Union of India AIR 1978 Calcutta 228; Province of Punjab v. Muhammad Tufail & Co. PLD 2017 SC 53; National Highway Authority v. Put Sarajevo General Engineering Company 2012 CLD 464; Major General (Retd) Fazle Ghafoor v. Total Parco Pakistan Ltd. 2009 MLD 1397; Special Communication Organization v. Ibell (Pvt.) Ltd. 2007 CLC 248 and Ravi Glass Mills Limited v. I.C.I. Pakistan Powergen Limited 2004 YLR 2503 ref.

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

----S.34---Reference to arbitrator--- Pre-conditions---Before a reference is made to arbitrator, the Court has to determine whether petitioner has entered into an arbitration agreement with some other person; the agreement has been entered into before institution of any suit with respect of subject-matter of agreement or any part of it; difference has arisen between parties to which agreement applies; and Court to which application is made has jurisdiction in the matter to which agreement relates.

Project Director Balochistan Minor Irrigation and Agricultural Development Project Quetta, Cantt. v. Murad Ali and Company 1999 SCMR 121; Catalyst Communication (Pvt.) Ltd. v. National Telecommunication Corporation 2017 CLC 466; Rakshani Builders (Pvt.) Ltd. v. Capital Development Authority 2015 YLR 2116; Strong Built Enterprises (Pvt.) Limited, Lahore v. Fauji Fertilizer Company Limited 1998 MLD 1628 and Manzoor Construction Company Limited v. University of Engineering and Technology 1984 CLC 3347 rel.

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

----Ss.20 & 34---Civil Procedure Code (V of 1908), S.20---Arbitration---Reference to arbitrator---Territorial jurisdiction--- Respondent resided at place "I", account opening form was signed and executed at place "I"---Demand for payment was made by petitioner from his office at place "I" and it was also received by respondent at place "I"---Effect---Civil Court at place "I" was competent to decide application under S.20 of Arbitration Act, 1940, filed by petitioner.

Lilley International (Pvt.) Ltd. v. National Highway Authority PLD 2012 Sindh 301 rel.

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

----S.20---Limitation Act (IX of 1908), Art. 181--- Reference to arbitrator---Limitation---Period of limitation for filing application under section 20 of Arbitration Act, 1940, is three years under residuary Art.181 of First Schedule to Limitation Act, 1908---Period of limitation has to be computed from the date when dispute arises between parties to an arbitration agreement.

M. Imam-ud-Din Janjua v. The Thai Development Authority through the Chairman, T.D.A., Jauharabad PLD 1972 SC 123; Muhammad Nazir v. The Secretary, Cooperative Department 1989 MLD 1156; Messrs Progressive Engineering Associates v. Pakistan Steel Mills Corporation Ltd. 1997 CLC 236; Azad Jammu and Kashmir Government v. Shaheen Timber Trading Corporation PLD 1965 (Azad J&K) 9 and Muhammad Abdul Latif Faruqi v. Nisar Ahmad PLD 1959 Kar. 465 rel.

Mehr Muhammad Iqbal for Petitioner.

Barrister Ahsan Jamal Pirzada for Respondent.

2021 C L C 1465

[Islamabad]

Before Miangul Hassan Aurangzeb, J

OIL AND GAS DEVELOPMENT COMPANY LIMITED----Appellant

Versus

ADMORE GAS (PVT.) LIMITED----Respondent

F.A.O. No.48 of 2019, decided on 25th June, 2021.

Arbitration Act (X of 1940)---

----Ss.7,16,14,17,39---Application to make arbitration award rule of court---Appointment of arbitrator(s)---Substitution of member of arbitration tribunal---Setting aside of arbitration award---Objections regarding appointment of members of arbitration tribunal---Estoppel---Scope---Appellant impugned order of Civil Court whereby appellant's application for arbitration award to be made rule of court was dismissed and award was set aside, inter alia, on ground that one of the members of the arbitration tribunal was substituted with another member without any order to such effect being passed by the Civil Court---Validity---Contention of respondent that new member of the arbitration tribunal was not appointed by Civil Court suffered from manifest absurdity as there existed order for appointment of said member on application of the respondent itself and nothing on record showed that respondent had taken an objection to said member's presence on the arbitration tribunal---Respondent would be deemed to have acquiesced to said member's presence on the tribunal since it had participated in arbitration proceedings without any demur or reservation and in such circumstances, was estopped from objecting to said member's inclusion and presence on the tribunal---Impugned order was passed by Civil Court erroneously solely on ground that said member had not been appointed as an arbitrator; and it had not identified any other invalidity in the same---Impugned order was set aside and matter was remanded to Civil Court for decision afresh on application of appellant to make arbitration award rule of court---Appeal was allowed, accordingly.

Karachi Dock Labour Board v. Quality Builders Ltd. PLD 2016 SC 121; Saifullah Khan v. Karachi Customs Agents Association 2011 YLR 202; Saleem Ali v. Akthar Ali PLD 2004 Lah. 424; Development Construction Corporation Limited v. West Pakistan Pak PWD PLD 1971 Kar. 292; Muhammad Sagheer Bhatti and Sons v. Federation of Pakistan PLD 1958 SC 221; National Highway Authority v. Lilley International (Private) Limited 2016 CLC 1757; Hussain (Pvt.) Ltd. v. Karachi Fish Harbour Authority 2011 CLC 108; Reliance Construction Co. v. Agha Khan Medical College Foundation 1994 MLD 248; Chief Engineer, Building Department, Provincial PWD, Government of Sindh v. Pak National Construction Company PLD 1981 Kar. 553; S. Zahir Hussain v. Province of Sindh 1981 CLC 379 and Habib and Sons v. Virah & Co. PLD 1957 Kar. 245 rel.

Saad M. Hashmi for Appellant.

Sheikh Naveed Anwaar and Rai Azhar Iqbal Kharral for Respondents.

2021 C L C 1689

[Islamabad]

Before Miangul Hassan Aurangzeb, J

OVERSEAS PAKISTANIS FOUNDATION----Petitioner

Versus

Messrs JOINT MANAGEMENT (PVT.) LIMITED----Respondent

E.F.A. No.09 of 2019, decided on 15th June, 2021.

Civil Procedure Code (V of 1908)---

----S.47---Execution of decree---Local commission, appointment of---Determination of rate of gold---Executing Court appointed Local Commission to determine value of gold on the day when money decree was passed, so that recovery could be made according to the value of gold on that day---Validity---Decretal amount was not denominated in gold or in foreign currency but Trial Court passed judgment and decree in terms of arbitration award which provided a mechanism for calculation of compensation for delay of more than two decades in payment of decretal amount to respondent-decree holder---Sooner the appellant-judgment debtor had paid in accordance with arbitration award, the lesser it would have had to pay---Instead of accepting award with grace, appellant-judgment debtor decided to raise objections which did not find favour with Trial Court and High Court dismissed time barred revision petition filed by appellant-judgment debtor against judgment and decree of Trial Court whereby objections to award were spurned and it was made Rule of Court---Period during which appellant-judgment debtor embroiled respondent-decree holder in litigation in an endeavor to set aside the award, value of gold steadily increased---Executing Court rightly held that payment of decretal amount already paid by appellant-judgment debtor to respondent-decree holder did not satisfy the decree--- Appellant-judgment debtor would only have itself to blame for unsavory consequences in which it found itself---High Court maintained order passed by Executing Court as there was no infirmity in appointing Local Commission---Appeal was dismissed, in circumstances.

2019 CLC 497; Muhammad Lal v. Abdul Quddus PLD 1975 Quetta 29; Azad Government of the State of Jammu and Kashmir v. Muhammad Aslam Khan 1990 MLD 2333; Mirza Khan v. Ajaib Sultan 2014 MLD 1547; Topanmal Chhotamal v. Messrs Kundomal Gangaram AIR 1960 SC 388; Terni S.P.A. v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238; Hwana and Regala Warehouses Ltd. [1960] 2 All ER 332 and Miliangos v. George Frank (Textiles) Ltd. [1975] 3 All ER 801 ref.

Ch. Haseeb Muhammad, Aftab Alam Yasir and Ijaz Mehmood Ch. for Appellants.

Khurram M. Hashmi for Respondent.

2021 C L C 1761

[Islamabad]

Before Lubna Saleem Pervez, J

Mst. SHAGZANA WALAYAT---Appellant

Versus

Mst. SHABANAM TABASSUM and others---Respondents

R.F.A. No.395 of 2020, decided on 3rd May, 2021.

Divorce Act (IV of 1869)---

----Ss.10 & 18---Christian Marriage Act (XV of 1872), S.4---Divorce, proof of---Jirga decision---Scope---Respondent-plaintiff claimed pensionary benefits of her deceased husband and alleged that appellant-defendant was not legally wedded wife of deceased---Validity---To support validity of her marriage with deceased, appellant-defendant relied on hand written note of Jirga according to which deceased and respondent-plaintiff amicably agreed to declare divorce between themselves in presence of witnesses in Jirga---Law of divorce relating to Christian marriages did not grant or authorized any individual or any Jirga to pronounce divorce between husband and wife and grant permission for second marriage without following mandates of Christian Marriage Act, 1872---Divorce deed relied upon by appellant-defendant issued by Jirga was illegal and unlawful document having no legal sanctity---Second marriage preformed between deceased and appellant-defendant during subsistence of first marriage was rightly declared null and void by Trial Court---Christian religion strictly prohibits second marriage while the first marriage is intact--- High Court maintained judgment and decree passed by Trial Court---Appeal was dismissed, in circumstances.

Mst. Parveen Amanual v. Additional District Judge-III, Rahim Yar Khan and others PLD 2009 Lah. 213 rel.

Abid Maroof Mughal for Appellant.

Rasheed ul Musawar for Respondents

2021 C L C 1821

[Islamabad]

Before Aamer Farooq, J

HASSAN AZIZ and 2 others----Appellants

Versus

MERAJ-UD-DIN and 14 others----Respondents

R.F.A. No.281 of 2020, decided on 19th February, 2021.

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

----S.4---"Children", connotation of---Word 'children', in general connotation, was direct children---Word in S.4 was "children" only and not grandchildren or great grandchildren.

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

----S.4---Inheritance---Share of grandchildren---Word 'per stripes'---Scope---Distant kindred were not entitled to succeed so long as there was any heir belonging to the class of sharers or residuaries, except where sharer was wife or husband of deceased---No concept of grandchildren inheriting from grandfather was found under the Islamic Law of Inheritance and S.4 was an exception to the said principle---Only the sons and daughters (children of predeceased sons and daughters) shall inherit from grandfather / grandmother as per stripes i.e. the share which their father or mother was entitled to inherit---Word 'per stripes' literally means by the branch---Concept of 'per stripes' was laid down only to clarify that each grandchild shall not inherit the share as individual but the grandchildren shall inherit as group of what their father/mother was to inherit.

Mst. Zainab v. Kamal Khan alias Kamla PLD 1990 SC 1051 ref.

(c) Islamic law---

----Person entitled to inheritance becomes a vested holder of due rights the moment succession opens.

Dost Muhammad v. Ghulam Nabi 1990 MLD 164 ref.

Babar Mumtaz for Appellant.

Malik Naseem Abbas Nasir for Respondents Nos.1 to 12.

Syed Zulfiqar Abbas Naqvi and Mudassir Hussain Malik for Respondent No.13.

Muhammad Nazir Jawad for CDA/Respondent No.14.

2021 C L C 1880

[Islamabad]

Before Babar Sattar, J

KHALID IQBAL and others----Petitioners

Versus

SHAHID IQBAL and others----Respondents

Civil Revision No.260 of 2014, decided on 16th April, 2021.

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

----Arts. 55, 56, 92, & 119---Limitation Act (IX of 1908), S. 3---Suit for inheritance---Relevancy of judgment of other courts---Respondents/Plaintiffs challenged two mutations of year 1908 to be consequence of fraud committed by the processor-in-interest of the petitioners/defendants against the predecessor-in-interest of the respondents---Trial Court dismissed the suit---Appellate Court allowed appeal---Validity---Held, that no reasons had been recorded by the appellate court to explain as to why entries in the record made back in 1904-05 were to be altered---Trial Court seemed to have been swayed by order of other Court for alteration of entries in mutation record of another village also sanctioned in 1908 involving the predecessors-in-interest of the same parties---To conflict with revenue record would bear the onus to rebut the presumption of correctness attached thereto through convincing evidence---Standard of proof required to establish fraud would not become less stringent merely because the alleged fraud transpired a long time back and onus could not be discharged due to non-availability of evidence and efflux of time---No evidence existed to uphold the declaration of rights---Revision petition was allowed and suit was declared as time-barred.

Nawab Khan v. Said Karim Khan 1997 SMCR 1840 ref.

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

----Arts. 55 & 56---Judgment/findings of another Court---Relevancy---Trial court could not use the judgment/findings of another court that did not fall within the scope of S.55 of the Qanun-e-Shahadat, 1984 as a substitute for its own findings of fact backed by the evidence adduced before it---Court acting under the influence of a judgment rendered by another court in relation to a claim of the respondents' property in another village was a breach of S.56 of Qanun-e-Shahadat, 1984.

Mistri Muhammad Din v. Rawalpindi Improvement Trust, Rawalpindi 1976 SCMR 283 and Muhammad Sohail v. Government of N.W.F.-P. 1996 SCMR 218 rel.

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

----S.3---Suit for inheritance---Fraud, allegation of---Limitation period---Applicability---No principle of general application was laid out in the jurisprudence pursuant to which the period of limitation prescribed under the Limitation Act, 1908 could be held to be not applicable to a claim asserted on the basis of right to inheritance or on the basis of fraud---Party must clearly declare the date when it acquired knowledge of the false entry in mutation record or fabrication/forgery of record, the limitation period would run from such date if the party could discharge the onus to prove the emergence of cause of action on such date through evidence.

Fatah Uddin v. Zarshad and another 1973 SCMR 248; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657; Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Mst. Garana v. Sahib Kamala Bibi and others PLD 2014 SC 167 ref.

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

----S.24A---Reasoned order---Aid to appellate/supervisory Court---Scope---One of the purposes for creating an obligation for a court to give reasons was that a superior court exercising appellate or supervisory jurisdiction would be able to appreciate the arguments backed by evidence that prevailed with the court.

Attique ur Rehman Kiani and Imran Haider for Petitioners.

Tahir Afzal Abbasi and Shahzad Kiyani for Respondents.

2021 C L C 1914

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SAMBU CONSTRUCTION CO. LTD.----Appellant

Versus

LARAIB ENERGY LIMITED and others----Respondents

F.A.O. No.38 of 2021, decided on 26th July, 2021.

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

----S.126---Civil Procedure Code (V of 1908), O.XXXIX, R.2---Bank guarantee---Irrevocable and unconditional nature---Interim injunction---Scope---Interim injunction could not be granted to interfere with the Bank's obligation to make payment to a beneficiary who made a demand for the encashment of an irrevocable and unconditional Bank guarantee.

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

----S.126---Civil Procedure Code (V of 1908), O.XXXIX, R.2---Bank guarantee---Irrevocable and unconditional nature of------Injunction, grant of---Exceptions to general rule of grant of injunction---Fraud and irretrievable injustice---Scope---Only two exceptions were available to the Court where it may consider granting an injunction to restrain the encashment of a Bank guarantee: (i) where fraud by the beneficiary is proved to the satisfaction of the Court and (ii) where a case of irretrievable injustice is made out by the party which furnished the Bank guarantee---Irretrievable injustice meant a situation where, after the Bank guarantee was allowed to be encashed, it would be impossible for the principal debtor to recover from the beneficiary the amount under the guarantee if it was finally held that the beneficiary was not entitled to the amount---Court could restrain the encashment of irrevocable/unconditional Bank guarantee in cases where fraud of an egregious nature had been played on the principal debtor of which the guarantor Bank had prior notice---Fraud was required to be pleaded and established when it was put forth as a ground for seeking a restraint order against the encashment of a Bank guarantee.

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

----S.126---Contract of guarantee/surety---Unconditional nature---Bank guarantees which provided that they were payable by the guarantor on demand were considered to be unconditional---In such cases, dispute between the beneficiary and the party at whose instance the guarantee was given was immaterial and of no consequence---If a Bank furnished an irrevocable and unconditional Bank guarantee, it was not open to the Bank to raise objections to pay the amount under the guarantee---Irrevocable/unconditional Bank guarantee was independent autonomous contract between the bank and the beneficiary and such autonomy was ordinarily not affected by the underlying contract between the creditor and the principal debtor or the disputes that might arise between them---Mere fact that the Bank guarantee referred to the underlying contract between the parties to contract without making the obligation of one party to make payment on proof of default in its terms by the other party, would not make the guarantee into a conditional one.

Montage Design Build v. The Republic of Tajikistan 2015 CLD 8 ref.

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

---O.VI, R. 4---Pleadings, rules of---Allegation of fraud---Principle---Isolated or stray allegation of fraud without material particulars was not enough for the Courts to restrain the performance of obligations under documentary credits such as an unconditional Bank guarantee or letter of credit.

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

----S.126---Civil Procedure Code (V of 1908), O.XXXIX, R. 2---Irrevocable/unconditional Bank guarantee---Injunction, grant of---Scope---Existence of contractual disputes between the parties was not a ground for issuing an order of injunction to restrain the enforcement of an irrevocable and unconditional Bank guarantee.

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

----S.126---Unconditional Bank guarantee---Default in contractual obligations---Provision of contract was that the contract would be governed and construed in accordance with the law of England---Scope---English law was that an unconditional Bank guarantee must be honoured in accordance with its terms as the guarantor Bank was not concerned with the question whether any of the parties to the underlying contract had failed in their contractual obligations or not; and that the Bank must pay according to the tenor of its guarantee, on demand, and without proof or condition.

Solo Industries UK Ltd. v. Canara Bank [2001] 1 W.L.R. 1800; Bolivinter Oil SA v. Chase Manhattan Bank [1984] 1 All E.R. 351 and 6 other cases ref.

Barrister Ehsan Ali Qazi for Appellant.

Syed Shahab Qutab, Maria Farooq, Usama Jamshaid and Mustafa Khan for Respondent No.1.

Muhammad Javaid Iqbal Malik for Respondent No.2.

2021 C L C 1947

[Islamabad]

Before Babar Sattar, J

MUHAMMAD AKRAM NADEEM----Petitioner

Versus

CHAIRMAN, ARBITRATION COUNCIL/ADLG, ISLAMABAD and 2 others----Respondents

Writ Petition No.21 of 2021, heard on 24th February, 2021.

(a) Muslim Family Laws Ordinance (VIIIof 1961)---

----Ss.2(b)& 7(3)---Muslim Family Laws Rules, 1962---Rr. 3, 6(1) & 6(2)---Officer authorized by Government to discharge the functions of chairman---Scope---Spouses got married in Pakistan but later on became dual nationals/expatriate Pakistanis---Divorce certificate was issued by Union Council in Pakistan---Whether Chairman of Union Council in Pakistan had jurisdiction to issue certificate under provisions of Muslim Family Laws Ordinance, 1961 read with the S.R.O. No.1086(K)/61 dated 09-11-1961 purportedly vesting power in the Ministry of External Affairs to appoint Chairmen across the world in Pakistan's Foreign Missions---Held, that Muslim Family Laws Ordinance, 1961 could not assume a parallel process of dissolution of marriage to be established under the said S.R.O.---Such parallel process would defeat the underlying purpose of the Ordinance, 1961 to make marriage information available publicly for access/verification---Mere appointment of Consular Officers in Pakistan's Foreign Missions to act as Chairman for purposes of S.2(b) of the Ordinance, would not oust the jurisdiction of the Chairman of the relevant Union Council by implication---High Court declared that such was ultra vires to S.2(b) of the Ordinance, 1961; there was no Arbitration Council in Pakistan's High Commission in UK that was able to conduct reconciliation proceedings for purposes of S.7 of the Ordinance and issue a Divorce Certificate; that no illegality found in issuance of the Divorce Certificate issued pursuant to proceedings undertaken by the Arbitration Council (in Pakistan)---Constitutional petition was dismissed accordingly.

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

----S.7---No-fault divorce---Conduct of husband, relevancy of---Principle---Applicability---Principle of no-fault divorce had been established in Pakistan (since Khurshid Bibi case, PLD 1967 SC 97)---Question whether or not the conduct of husband was unconscionable and had caused the wife to seek divorce, was only relevant for purposes of her entitlement to dower---Principle of 'no-fault marriage' would apply in all the following situations: Firstly, husband was pronouncing divorce following the procedure under S.7 of the Muslim Family Laws Ordinance, 1961; secondly, wife was dissolving her marriage under S.8 of the Ordinance, 1961, in exercise of power to divorce delegated to her in the Nikah Nama; or thirdly, wife was seeking dissolution of marriage under Family Courts Act, 1964.

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

----S.7---Procedural requirements, non-obedience of---Divorce, validity of---Dissolution of marriage was not contingent upon compliance with procedural requirements of S.7---Section 7(1) was mandatory in a sense that not abiding thereby would invite penal consequences prescribed under S.7(2)---Fate of a marriage would not hang on following the prescribed procedure---such non-obedience would not affect the validity of divorce that automatically went into effect after expiry of the 90-days period from the date of proclamation of divorce.

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

----Preamble---Legislative intent behind promulgating the Muslim Family Laws Ordinance, 1961 included: firstly, that details of all marriages to be recorded in a register that would be available for public scrutiny; secondly, that in case of a subsequent marriage(s), the marriage would be a subject to prior permission granted pursuant to provisions of the said Ordinance; thirdly, issuance of talaq effective certificate was preceded by an effort on part of Chairman aided by representatives of spouses to attempt a reconciliation within a period of 90 days from the pronouncement of divorce.

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

----S.2(b)---Delegated authority---S.R.O. issuance of---'Delegates non potest delegare'---Principle---Power to appoint an officer as Chairman had been vested in the Federal Government, without any authority vested in the Federal Government to sub-delegate the power further---Principle of "delegates non potest delegare" alone, S.R.O. No.1086(K)/61 dated 09-11-1961 was ultra vires to S.2(b) of the Muslim Family Laws Ordinance, 1961.

(f) Interpretation of statutes---

----Construction, cannon of---Redundancy---Principle---Each and every word used in a statute was to be given meaning and redundancy was not to be attributed to words used by the legislature.

Rana Shahid Hussain Khan for Petitioner.

Syed Asad Ali Saeed for Respondent No.3.

Abid Hussain Chaudhry for Respondent No.1.

Syed Faraz Raza, Assistant Legal Advisor, Ministry of Foreign Affairs.

2021 C L C 1979

[Islamabad]

Before Tariq Mehmood Jahangiri, J

SAEED UR REHMAN----Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF RELIGIOUS AFFAIRS AND INTERFAITH HARMONY, ISLAMABAD

and 3 others----Respondents

Writ Petition No.3086 of 2015, decided on 24th March, 2021.

(a) Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977---

----R.3(i)(e)---Constitution of Pakistan, Art.199---Constitutional petition---Violation of relevant laws and rules---Due process by proper forum---Validity---Petitioner admittedly violated Rule 3(i)(e) of Scheme for the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 (the Rules) by changing of status of the property from residential to the commercial without permission of the concerned authorities---Eviction notice was issued strictly in accordance with law after due process before Assistant Administrator and Zonal Administrator of Evacuee Trust Property Department and Senior Joint Secretary to the Government of Pakistan, Ministry of Religious Affairs---Present Constitutional petition had been filed by misrepresentation and by concealment of unsuccessful proceeding before Civil Court/District Court---Constitutional petition was dismissed being meritless.

(b) Constitution of Pakistan---

----Art.199---Certiorari, writ of---Supervisory jurisdiction---Scope---Writ of Certiorari was only available to quash a decision for an error of law; it would also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acted without jurisdiction or in excess of its jurisdiction, or failed to exercise its jurisdiction or where the Court or a tribunal acted illegally in exercise of its undoubted jurisdiction and it decided a matter in violation of the principle of natural justice---High Court issuing writ of certiorari would act in exercise of supervisory and not appellate jurisdiction---High Court in exercise of its Constitutional jurisdiction would not review the findings of fact reached by the inferior Court or a tribunal.

Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041; Amjad Khan v. Muhammad Irshad (Deceased) through LRs 2020 SCMR 2155 and 7 other cases rel.

(c) Constitution of Pakistan----

----Art.199---Constitutional petition---Certiorari, writ of and appeal---Distinction---Scope---Common practice by the counsel to argue the petitions seeking issuance of writ of certiorari as if he was arguing appeal, must be stopped as the same was not in consonance with the well settled principles for hearing and deciding petitions seeking the issuance of writ of certiorari.

Barrister Talha Ilyas Sheikh for Petitioner and petitioner in person.

Mudassar Ikran Ch. and Muhammad Abid, Inspector on behalf of Respondents Nos.3 and 4.

2021 C L C 1992

[Islamabad]

Before Miangul Hassan Aurangzeb, J

BUKHARI GAS AND OIL (PVT.) LTD.----Petitioner

Versus

GOVERNMENT HOLDING (PVT.) LTD. and another----Respondents

Writ Petition No.1947 of 2021, decided on 6th July, 2021.

(a) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S. 34---Constitutional petition---Enforcement of contractual obligation---Arbitration clause---Scope---Petitioner sought declaration to the effect that non-provision of leftover Liquefied Petroleum Gas (LPG) from the share of respondent was unlawful and that the petitioner had preferential right for the provision of the leftover LPG---Validity---Dispute between the petitioner and respondent had arisen from and was related to an agreement---LPG purchase agreement provided that the contractual dispute between the petitioner and respondent was to be settled amicably failing which the dispute shall be settled through arbitration---Primary dispute agitated by the petitioner in the writ petition was to be resolved in accordance with the agreement between the parties---True, the agreement required the producers of LPG base-stock to sell LPG to licensed LPG marketing companies but that placed no obligation on the respondent to sell LPG to the petitioner to the exclusion of any other licensed LPG marketing company without a tender bidding process---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Enforcement of contractual obligation---Scope---Ordinarily, the High Court, in exercise of its jurisdiction under Article 199 of the Constitution, does not entertain a petition seeking the enforcement of rights under a contract executed with an instrumentality of the State.

(c) Constitution of Pakistan---

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

(d) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S. 34---Constitutional jurisdiction---Power to stay legal proceedings where there is an arbitration agreement---Scope---Where there exists an arbitration agreement, the parties are required to get their disputes arising out of the contract adjudicated by the domestic forum created by them.

(e) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S. 34---Constitutional petition---Power to stay legal proceedings where there is an arbitration agreement---Scope---Where there is an arbitration clause in the contract between the parties, a writ petition cannot be instituted to question the termination of the contract and/or seek specific performance of the contract.

Mumtaz Ahmad v. Zila Council, Sahiwal 1999 SCMR 117 rel.

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

Sheikh Muhammad Ali, Muhammad Sarfraz and Mesum Mehdi for Petitioner.

2021 C L C 2005

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

Dr. ANWAR HUSSAIN SIDDIQUI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD-WEST and others----Respondent

Writ Petition No.456 of 2020, decided on 18th December, 2020.

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

----S.151 & O.XI, R.13---Setting aside ex-parte decree---Petitioner filed petition under S.12(2) Civil Procedure Code, 1908 contending that the respondents fraudulently obtained ex-parte decree by mentioning incorrect address in the plaint, and that procedure for proceeding ex-parte was not followed---Nothing was available on record demonstrating that any summons/notice was served upon the petitioner and thereafter, he willfully abstained himself from participating in the said proceedings---High Court observed that petition rather amounted to an application under O.IX, R.13 of C.P.C.---Nothing would bar the Court to treat an application under O.IX, R.13 instead of S.12(2) of C.P.C. when grounds agitated were mixed either of fraud and non-service of summons as per law---Petitioner had successfully proved that he had been non-suited having no fault on his part---Constitutional petition was allowed and impugned ex-parte judgment and decree was set aside.

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

----Art.132---Cross-examination---Unrebutted statements of witnesses---Evidentiary value of---Both the witnesses were consistent on the point that the petitioner had no knowledge about the pendency of the suit---None of the petitioners was cross-examined in such respect---Such fact went un-rebutted, and the same could not be brushed aside.

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

----O.V, R.17---Process Server did not make any endeavor to trace the petitioner/defendant, he did not conduct exercise to trace whereabouts thereof and locate him, any effort, pain, diligence as required by the R.17 of the O.V, C.P.C., were non-existent, statement of Process Server was not recorded on oath and court passed the order in a mechanical manner by merely relying upon the statement of Process Server---Merely on the hyper-technical reasons to non-suit the petitioner was against the dictates of justice---Inclination of the Court was to decide the matter after hearing the parties instead of passing the orders ex-parte and without hearing them, particularly when the record is silent that petitioner intentionally avoided the proceedings.

Syed Mazhar Ali Shah v. Shah Muhammad 1990 MLD Kar. 1070 and Muhammad Ibrahim v. Mst. Mehmooda 1987 CLC Kar. 1994 rel.

Syed Shahzad Mashhadi for Petitioner.

Muhammad Siddiq Awan for Respondents Nos.3 to 5.

Nemo. for Respondent No.6.

2021 C L C 2031

[Islamabad]

Before Babar Sattar, J

NAEEM AKHTAR KHOKHAR and 7 others----Appellants

Versus

MOHAMMED RAUF and 12 others----Respondents

R.F.A. No.01 of 2021, decided on 12th February, 2021.

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

----O.VII, R. 11---Limitation Act (IX of 1908), S.3, Schdl. I, Art.113---Suit for specific performance---Suit barred by time---Duty of Court---Scope---Section 3 of the Limitation Act, 1908 was a mandatory provision and it made obligatory for the court to look into the question of limitation even when no objection was being raised by a party to the suit---Trial court erred by placing onus to establish that the suit was not maintainable on the ground of limitation, on the defendants---Secondly, court erred in assuming that the question of limitation in the suit fell within the second part of Art.113 of the First Schedule to the Limitation Act, 1908 and limitation would begin to run from when the performance of the agreement was refused as opposed to the date for performance fixed by the Agreement---Appeal was dismissed with costs.

Noor Muhammad v. Additional District judge Gojra 2004 MLD 1321 and Nawab Din v. Muhammad Hussain 2004 CLC 269 rel.

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

----O.VII, R. 11---Limitation Act (IX of 1908), Shed. I, Art. 113---Qanun-e-Shahadat (10 of 1984), Arts. 118 & 119---Suit for specific performance, rejection of---Question of limitation, nature of---Duty of court---Scope---Court was under obligation to determine the question of maintainability at the outset even without any objection raised by a party---Rules to be followed by Courts to determine the question of maintainability on the ground of limitation enumerated.

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

----Art.17 & 79---Agreement to sell---Proof---Compulsory attestation---Under Art. 17 of the Qanun-e-Shahadat, 1984, an agreement pertaining to financial or future obligations, if reduced to writing, must be attested by two men and under S.79 of the Qanun-e-Shahadat, 1984 such agreement could not be used as evidence until two attesting witnesses had been called for the purpose of proving its execution---Proviso to Art. 79 was not relevant to an agreement not being a registered document.

Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241; Farzand Ali and another v. KhudaBakhsh and others PLD 2015 SC 187 and Muhammad Iqbal Khan v. Ms. Farhat Nisa PLD 2017 Lah. 727 ref.

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

----Ss. 3 & 5---Condonation of delay---"Disposal on merit"---Principle---Interest of disposing matters on merit was an insufficient consideration in itself for condoning delay for purposes of limitation.

Dilmir v. Ghulam Muhammad PLD 2002 SC 403 rel.

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

----S.3, Sched. I, Art. 113---Performance of contract---Period prescribed---Legal determination---Recording of evidence---Question of limitation did not hinge on any factual controversy and consequently did not require recording of any evidence for its just determination.

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

----Sched. I, Art. 113---Performance of contract---Limitation, computation of---No specific date---"Date fixed" connotation of---Refusal to perform---Onus to prove---Principle---When the month was mentioned for purposes of contract and not a specific date, it would be deemed as "date fixed" and the limitation was to run from the end of the month mentioned---When an agreement was to be performed by the end of certain time period, the end of such time period was to be deemed as "date fixed" for purposes of Art.113 of the Limitation Act---If no specific date was mentioned in an agreement, the clock would start ticking from the refusal of performance of obligations of the agreement---In such cases plaintiff could not approach the court after an inordinate delay as a reasonable person would notice that the performance was refused and the onus then was on the plaintiff to furnish a satisfactory explanation as to why he did not notice the defendant's refusal to perform.

Muhammad Ramzan v. Muhammad Qasim 2011 SCMR 249 and Zain Khan and others v. Taj Roshan and others 2018 CLC Note 116 rel.

Raja Nisar ul Haq Abbasi for Appellants.

Fida ur Rehman for Respondents Nos.1 to 7.

Rana Ali Ammar and Adnan Ahmed Khan for Respondent No.11 and 12.

Muhammad Farhan Ali Khokhar for Respondent No.13.

Respondent No.8 proceeded ex parte.

2021 C L C 2072

[Islamabad]

Before Miangul Hassan Aurangzeb, J

INAM-UL-HAQ----Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and another----Respondents

F.A.O. No.59 of 2016, decided on 13th September, 2017.\

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

----S.2 (j)---Public Procurement Rules, 2004, R. 4---Constitution of Pakistan, Art. 18---Capital Development Authority (C.D.A.), Powers of---Scope---Lease converted to license---Competitive tender bidding process---Reasonable restrictions on business, test of---Public interest---Suit for declaration and permanent injunction---Registered lease deed executed in 1972 between the Capital Development Authority (C.D.A.) and the appellant for a term of 20 years (extendable for a further term of 20 years or less at the C.D.A.'s option)---Capital Development Authority (C.D.A.) vide letter dated 24-02-2010, extended the lease for a period of 30 years---Vide letter dated 14-05-2011, said extension was withdrawn/cancelled---Capital Development Authority (C.D.A.) reverted the suit (lease) land to licenses---No dispute as to the payment of amount which appellant was required to pay in terms of the said letter---Civil Court had dismissed the application of the appellant for interim injunction---Held, that the C.D.A. might have the power to dispose of land by granting licenses or leases but the power to unilaterally convert a lease into a license had not been specifically conferred---Leasehold rights for a period of 30 years could not be granted by the C.D.A. without resorting to a competitive tender bidding process, however, grant of such rights without such a competitive process would not prevent the C.D.A. from recalling the said letter---Such grant would not satisfy the test of reasonableness and public interest---Procuring agencies (i.e. C.D.A.), while engaging in procurements, should ensure that the procurements were conducted in fair/transparent manner, for bringing value for money to the agency, and the procurement process was efficient and economical---Appellant should have no reservation in participating in the tender bidding process for the grant of licenses proposed to be conducted by the C.D.A---Appeal was dismissed accordingly.

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

----S.2(j)---"Procuring agency", definition of---Scope---Capital Development Authority (C.D.A.) fell under the meaning of "procuring agency".

Abur Rasheed Awan for Appellant.

Muhammad Nazir Jawad for Respondents.

2021 C L C 2114

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAKISTAN OILFIELDS LIMITED----Petitioner

Versus

GOVERNMENT HOLDING (PVT.) LIMITED and others----Respondents

Writ Petition No.1929 of 2021, decided on 5th July, 2021.

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

----S.34---Constitution of Pakistan, Art.199---Constitutional petition---Enforcement of contractual obligation---Arbitration clause---Scope---Petitioner assailed letter issued by respondent whereby it had declared that its contractual relationship with the petitioner for supply of Liquified Petroleum Gas (LPG) had come to an end---Validity---High Court, in exercise of its constitutional jurisdiction, could not direct respondent to continue its contractual relationship with the petitioner despite the fact that the period for which the contract was executed had lapsed---If petitioner was of the view that the decision of respondent not to further extend the term of contract was in violation of the provisions of contract, at best, the petitioner's remedy laid in damages and not be seeking a writ of mandamus directing respondent to continue its contractual relationship with the petitioner---Such dispute could be resolved in accordance with the arbitration clause of the contract---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Enforcement of contractual obligation---Scope---Ordinarily, the High Court, in exercise of its jurisdiction under Art.199 of the Constitution, does not entertain a petition seeking the enforcement of rights under a contract executed with an instrumentality of the State.

(c) Constitution of Pakistan---

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

(d) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S.34---Constitutional jurisdiction---Power to stay legal proceedings where there is an arbitration agreement---Scope---Where there exists an arbitration agreement, the parties are required to get their disputes arising out of the contract adjudicated by the domestic forum created by them.

(e) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S. 34---Constitutional petition---Power to stay legal proceedings where there is an arbitration agreement---Scope---Where there is an arbitration clause in the contract between the parties, a writ petition cannot be instituted to question the termination of the contract and/or seek specific performance of the contract.

Mumtaz Ahmad v. Zila Council, Sahiwal 1999 SCMR 117 rel.

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

Khuram M. Hashmi and Noman A. Farooqi for Petitioner.

2021 C L C 2132

[Islamabad]

Before Athar Minallah, CJ

Syed KHURSHEED AHMED SHAH----Petitioner

Versus

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

Writ Petition No.2247 of 2021, decided on 24th June, 2021.

(a) Rules of Procedure and Conduct of Business in the National Assembly, 2007--

----R.108---Constitution of Pakistan, Arts.69 & 199---Constitutional jurisdiction---Courts not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Production of member in custody for a sitting of the Assembly or meeting of Committee---Scope---Petitioner being a member of the National Assembly of Pakistan and having been incarcerated as an under trial prisoner sought direction to Speaker of the National Assembly of Pakistan to issue his production orders in exercise of powers conferred under R.108 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007---Validity---Rule 108 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 and powers conferred in it fell within the expression 'proceedings' of the Majlis-e-Shoora (Parliament) and, therefore, the bar under Art.69 of the Constitution was attracted---Jurisdiction of High Court was thus ousted and any direction given by the Court would amount to transgression of the permissible constitutional limits---High Court was a creation of the Constitution and, therefore, its jurisdiction was subject to the limitations which were expressly prescribed therein---High Court's jurisdiction was barred under Art.69 of the Constitution to give a direction to the Speaker of National Assembly---Constitutional petition was disposed of accordingly.

Riaz Hanif Rahi v. Federation of Pakistan through Secretary, Ministry of Law and Justice and 14 others PLD 2019 Isl. 230 fol.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of mandamus---Speaker of National Assembly---Scope---Issuing a direction to the Speaker of National Assembly undermines the sanctity and supremacy of the Majlis-e-Shoora (Parliament).

2021 C L C 19

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MUHAMMAD YAMEEN QURESHI----Appellant

Versus

The JUDGE ANTI-ENCROACHMENT TRIBUNAL and 8 others---Respondents

Miscellaneous Appeal No.31 of 2019, decided on 8th November, 2019.

Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010)---

----Ss.14 & 3---Removal of encroachment and structures---Procedure and powers of the Anti-Encroachment Tribunal (Tribunal)---Scope---Appellant assailed judgment and decree passed by Anti-Encroachment Tribunal whereby it had directed the official respondents to remove illegal encroachment from the subject plot---Validity---Allegation against the appellant was of conversion of amenity plot to personal use and encroachment thereon---Record reflected that Mukhtiarkar had submitted a report before the Tribunal with regard to the status of property as Madrasa which was encroached upon and was a public property---Conversion of amenity plot was illegal---Encroachment of amenity plot could not be allowed to sustain under the law---Relief being sought by appellant was in all senses amounted to permitting what was prohibited---Appeal being incompetent was disposed of accordingly.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Suo Motu Case No.14 of 2009 and 2014 SCMR 1611 rel.

Riazuddin Qureshi for Appellant.

Shahzaib Abbasi for Respondent No.9.

2021 C L C 54

[Sindh]

Before Adnan Iqbal Chaudhry, J

WAKEEL AKHTAR----Plaintiff

Versus

SHAHZAD ALAM----Defendant

Suit No.362 of 2015, decided on 29th November, 2019.

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

----Arts. 84, 17 & 79---Comparison of signature, writing or seal with others admitted or proved---Competence and number of witness---Proof of execution of document required by law to be attested---Scope---Plaintiff through an application, sought a direction to the defendant under sub-Article (2) of Art. 84 of the Qanun-e-Shahadat, 1984, to write certain words in Urdu so as to compare his handwriting with the one that he allegedly made on the iqrarnama---Validity---Iqrarnama was a document relating to a financial obligation, it was required by Art. 17(2)(a) of the Qanun-e-Shahadat, 1984, to be attested by two witnesses---Provisions of Art. 79 of the Qanun-e-Shahadat, 1984, were applicable to the iqrarnama which mandated that it could not be used as evidence until two attesting witnesses at least had been called for the purpose of proving its execution---Plaintiff had not called and examined the attesting witnesses to the iqrarnama---Mode of proof by way of Art. 84 of Qanun-e-Shahadat, 1984, was not the most desirable mode in that the signature and handwriting of a person could vary with time and age or a person called upon under sub-Article (2) of Art. 84 to give specimen of his signature or handwriting could feign the same to defeat the comparison---Application was dismissed.

Syed Ansar Hussain and Farukh Abrar Khan for Plaintiff.

Abbad-ul-Hassnain for Defendant.

2021 C L C 73

[Sindh]

Before Salahuddin Panhwar, J

Mst. ANEELA ZEHRA----Appellant

Versus

KALEEM HAIDER and 10 others----Respondents

IInd Appeal No.103 and C.M.A. No.3760 of 2019, decided on 7th November, 2019.

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

----S.12---Exclusion of time in legal proceedings---Time requisite for obtaining a copy, exclusion of---Scope---Appellant assailed the dismissal of his appeal by Appellate Court on the sole ground of limitation---Validity---Copy was applied on 13-03-2018 but the cost was estimated on 26-03-2018, i.e. after about 13 days---Cost was estimated after 13 days of applying then it could not be logically presumed that during such period the Copying Branch was ever in a position to intimate the date of delivery---Such period was required to be excluded within the meaning of S.12(5) of Limitation Act, 1908---Trial Court had passed the judgment on 08-03-2018 and the appeal was filed on 17-04-2018 hence, prima facie, the excess period was 09 days and if the interval period of 13 days (when cost was assessed) was excluded, the date of presenting appeal was well within the period of limitation---Impugned order was set aside and the case was remanded to the Appellate Court for decision on merits.

2019 CLC 321 and 2011 CLC 418 distinguished.

Jamila Khatoon and another v. Mst. Tajunnisa and another PLD 1984 SC 208 rel.

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

----S.12---Exclusion of time in legal proceedings---Time requisite for obtaining a copy, exclusion of---Scope---Time consumed in obtaining the copy needs to be excluded unless circumstances prove, prima facie, negligence on the part of the litigant and such litigant attempts to substitute his own negligence under the shade of said provision.

Jamila Khatoon and another v. Mst. Tajunnisa and another PLD 1984 SC 208 rel.

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

----S.12---Exclusion of time in legal proceedings---Time requisite for obtaining a copy, exclusion of---Delay in receiving copy---Effect---Time requisite would mean 'the interval between date of application for supply of copy and date when copy is ready for delivery'; said term shall have no nexus with the act of litigant in collecting/receiving the same.

Jamila Khatoon and another v. Mst. Tajunnisa and another PLD 1984 SC 208 rel.

Farhan Zia Abrar and Muhammad Rehan Qureshy for Appellant.

2021 C L C 98

[Sindh]

Before Muhammad Shafi Siddiqui, J

NAFEESA BEGUM----Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 2 others----Respondents

C.P. S-1111 of 2018, decided on 17th February, 2020.

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

----S.12---Repairs of rented premises---Duty of landlord---Scope---Tenant filed application under S.12 of Sindh Rented Premises Ordinance, 1979, for carrying out internal repair of rented premises---Rent Controller found that since the rent was liable to be increased as an automatic process of law and the tenant had defaulted, as such he was not entitled for a favourable order on the application---Appellate Court while disposing of the appeal maintained the same view---Validity---Repair as required in terms of S.12 of Sindh Rented Premises Ordinance, 1979, was never subject to any increase in rent, be it fair rent or any automatic enhancement---Evidence showed that there was no agreement in writing as to sharing the responsibility of repair and in the absence of such agreement as to who would perform such repair, the law would have taken its effect and the landlord was under an obligation to carry out the repairs---Landlord had not denied the damage being caused to the roof of bathroom and other internal structure of the premises---Impugned judgment was set aside and the case was remanded to the Rent Controller for inquiry, both technical and financial, to be conducted directing the landlord and/or tenant to carry out such repair---Petition was disposed of accordingly.

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

----S.12---Repairs of rented premises---Duty of landlord---Scope---Rent Controller under the law is vested with the powers to direct the landlord to carry out repair or white-washing of the premises and/or in the alternate to direct the tenant to carry out such exercise subject to adjustment of cost, which is liable to be deducted from the future rents, payable to the landlord till it is fully adjusted---Such powers can be exercised by the Rent Controller in the absence of an agreement, which may demonstrate a responsibility on either party, whereas in the absence, it becomes the responsibility and obligation of landlord to keep the premises fit for human dwelling.

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

----S.12---Repairs of rented premises---Scope---Section 12 of Sindh Rented Premises Ordinance, 1979, provides that order under S.12 would be followed by an inquiry as the Rent Controller deems fit to make, direct that such repair or white-washing may be made.

Muhammad Siddiq Mirza for Petitioner.

Manzar Bashir for Respondent No.1.

2021 C L C 120

[Sindh (Hyderabad Bench)]

Before Mrs. Rashida Asad, J

Mst. ZAHIDA HAROON----Petitioner

Versus

MUHAMMAD ASHIQUE and another----Respondents

C.P. No.S-546 of 2010, decided on 5th October, 2020.

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

----S.15---Eviction petition---Relationship of landlord and tenant---Scope---Petitioner (landlady) assailed orders passed by courts below whereby it was held that the relationship of tenancy did not exist between the parties---Contention of tenant was that he was the tenant of petitioner's husband's elder brother who had earlier filed an ejectment petition, which was dismissed and that he was occupying the shop other than the one mentioned in the petition---Validity---Tenant appeared to approbate and re-reprobate as he had in a way conceded to the case of petitioner who had deposed that previously her late husband was managing the affairs of the demised premises and thereafter it was being managed by her in-laws---Tenant had to prove that previous owner was still claiming right and interest in the property and as such, he could not accept the change of title being tenant of the subsequent landlord---No such evidence was available that the previous landlord had ever disputed to the change of landlord---If tenant was not admitting the petitioner as his landlord, he was required to file inter pleader proceedings to avoid default in payment of monthly rent---Judgments of courts below were set aside and the eviction application was allowed, in circumstances.

PLD 2004 Sindh 502 and PLD 2007 K-50 ref.

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

----S.15---Eviction petition---Personal bona fide need of landlord---Scope---Mere statement of the landlord on oath is sufficient to prove personal bona fide need.

Altaf Sachal Awan for Petitioner.

Noor Ahmed Memon for Respondent No.1.

2021 C L C 145

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

ANWAR ALI----Petitioner

Versus

TARIQ MEHMOOD KHOSO and 2 others----Respondents

Constitutional Petition D-73 of 2019, decided on 21st November, 2019.

(a) Foreign Exchange Regulation Act (VII of 1947)---

----S.23-C (3) proviso --- Limitation Act (IX of 1908), S. 5---Appeal to Appellate Board--- Limitation--- Proceedings for contravention of Foreign Exchange Regulation Act, 1947 were initiated against petitioner---Trial Court passed judgment against petitioner and appeal was dismissed by Appellate Board as the same was barred by 106 days---Validity---Condonation of delay in filing of appeal was permitted under Foreign Exchange Regulations Act, 1947, upon satisfaction that appellant was prevented by sufficient cause from filing appeal in time---Such power, subject to proviso to S.23-C(3) of Foreign Exchange Regulations Act, 1947, could be exercised not later than 60 days from the date of order under appeal--- Appeal was delayed by 106 days and as such period of delay in itself had disentitled petitioner to grant of condonation of delay--- High Court declined to interfere in the order passed by Appellate Board---Constitutional Petition was dismissed, in circumstances.

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

----Preamble---Prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation redundant.

Mehmood Khan Mahar v. Qamar Hussain Puri and others 2019 MLD 249 rel.

Kamran Iqbal Bhutta for Petitioner.

Ishrat Zahid Alavi, Assistant Attorney General for Respondents.

Manzoorul Haq, Law Officer, State Bank of Pakistan.

2021 C L C 168

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

ASIF HUSSAIN and 10 others----Petitioners

Versus

ABDUL WALI through L.Rs. and 11 others----Respondents

Revision Application No.03 of 2017, decided on 24th January, 2020.

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

----S.12(2)---Petitioners assailed the dismissal of their application under S.12(2), C.P.C.---Case of petitioners was that they had purchased part of suit property from the legal heirs of decree-holders and record of right was mutated in their favour but decree-holders and judgment-debtors despite knowledge did not join them as party to the suit---Application under S.12(2), C.P.C., was filed for recalling order passed on a joint statement by the parties whereby civil appeals were allowed and the matter was remanded to the executing court for decision afresh---Valuable rights of the parties were at stake in the said appeals and they were best judges to protect their rights---Petitioners themselves should have moved an application to become a party and if they were able to show that they were necessary or proper party, they should have been made a party---Petitioners should have been vigilant to protect their rights---Petitioners could not prove any one of the three ingredients required for invoking jurisdiction under S.12(2), C.P.C.---Revision petition was dismissed.

Dadabhoy Cement Industries Limited v. N.D.F.C. 2002 CLC 166 rel.

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

----S.12(2)---Any person, whether a party to the suit/proceedings or a stranger, can file an application under S.12(2), C.P.C., if he can establish that his rights have been jeopardized by the decree obtained by the decree-holder fraudulently or by misrepresentation.

Khawaja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516 ref.

Ghulam Muhammad v. M. Ahmed Khan and others 1993 SCMR 662 rel.

Parkash Lal for Applicants.

Hakim Ali Siddiqui for Respondents Nos.1(i) and 1(ii).

Ahmed Ali Shaikh for Respondents Nos.2(i) and 3(i).

Qamar Mehmood Baig for Respondent No.11(ii).

None present for other Respondents.

2021 C L C 196

[Sindh]

Before Muhammad Saleem Jessar, J

ASSOCIATED AGENCIES LIMITED and another----Petitioners

Versus

The DISTRICT JUDGE KARACHI (SOUTH) and another----Respondents

C.Ps. Nos.414 and 415 of 2016, decided on 30th October, 2019.

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

----S.8---Fair rent---Date of fixation of fair rent---Scope---Landlord filed petitions for fixation of fair rent by the Rent Controller on the ground that tenants had been in possession of the premises in question for last more than 50 years and no increase had ever been made in the monthly rent since the inception of tenancy---Rent Controller dismissed the applications whereas Appellate Court allowed the applications vide impugned judgments---Contention of tenants was that fair rent was to be fixed not from the date of filing rent application but from the date on which the order was made---Validity---Landlord had stated on oath that the property tax was increased by the Excise and Taxation Department and that due to influx in value of rupee and increase in the cost of construction and repair, the existing rate of rent was insufficient to meet the necessary expenses of the building---Tenants could not produce any tangible evidence, oral or documentary, in rebuttal to the evidence of the landlord---Fair rent was to be enforced from the date of filing application---Constitutional petitions were dismissed.

2007 MLD 131; PLD 2005 Kar. 521; PLD 2007 Kar. 485; 2008 CLC 517; Single Bench of this Court in C.P. No. S-1118/2017; 2015 MLD 674; 2013 MLD 339; 2014 SCMR 630; 2010 SCMR 954 and 2015 YLR 947 ref.

State Life Insurance Corporation of Pakistan and another v. Messrs British Head and Footwear Stores and others 2018 SCMR 581 rel.

2010 SCMR 745 foll.

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

----S.8---Fair rent---Scope---Landlord while making a request for fixing the fair rent is not bound to satisfy all the four factors mentioned in S.8 of Sindh Rented Premises Ordinance, 1979 and the Rent Controller is authorized to fix the fair rent of the property even upon fulfillment of only one condition.

Habib Bank Limited v. Rais Ahmed Khan PLD 2017 Kar. 542 ref.

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

----S.8---Fair rent---Date of fixation of fair rent---Scope---Fair rent is required to be enforced from the date of the application, however, if the Rent Controller fixes the other date he can take the date but for that he must assign reasons to do so.

2010 SCMR 745 rel.

Ghulam Abbas Pishori for Petitioner.

Mohammad Noman Jamali for Respondent No.2.

2021 C L C 297

[Sindh]

Before Zafar Ahmed Rajput, J

ABDUL AHAD ANSARI---Petitioner

Versus

Mst. LUBNA QAISER---Respondent

Insolvency Petition No.3 of 2018, decided on 29th October, 2020.

(a) Words and phrases---

----"Debt"---Meaning and concept---Word "debt" was derived from Latin word "debere" meaning to owe, and word "debitum", meaning something owed, and was a common law word of technical meaning but had no fixed legal meaning---Word "debt" was used in different statutes in senses varying from very restricted to general ones, and implied existence of a debtor, legality of an obligation, existence of consideration and execution of performance by a creditor---"Debt" as a legal term was an obligation arisen out of contract, express or implied, which entitled creditor unconditionally to receive from debtor a sum of money, which debtor was under legal, equitable and moral duty to pay without regard to any future contingency.

Corpus Juris secundum, volume twenty-six, pages 1 to 3 and England, (12) Volume 3 (3RD Edition) page 162 rel.

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

----S.5, Sched. --- "Maintenance" --- Meaning and context ---"Maintenance" was sustenance, support, assistance and aid, and was furnishing by one person to another, for his or her support, of the means of living or food, clothing , shelter etc, particularly where the legal relation of parties was such that one was bound to support other, as between father and child, or husband and wife.

Black's Law Dictionary, Sixth Edition, at page 953 rel.

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

----Ss. 13, 17A & 5---Insolvency (Karachi Division) Act (III of 1909), Ss. 15, 10 & 13---Insolvency---Proceedings on debtor's petition---Adjudication as "insolvent"---Scope of jurisdiction under Insolvency (Karachi Division) Act, 1909---Obligation to pay maintenance to wife and children enforced by decree of Family Court, not to be regarded as "debt" owed---Scope---Petitioner, against whom decree of Family Court for maintenance payable to wife was being executed, sought to invoke provisions of the Insolvency (Karachi Division) Act, 1909 to adjudicate himself as "insolvent", on ground that petitioner had no means to discharge his liabilities---Validity---When Family Court awarded maintenance to wife, it did not enforce payment of any debt, as such maintenance did not arise from any contract (express or implied) but from relationship of marriage, and said maintenance was not in payment of debt but performance of duty of husband to support his wife measured by decree of Family Court---Such husband or father could not obtain discharge of his liability under a decree of maintenance by resort to insolvency---Object of insolvency law could not be to deprive wife / children of support and maintenance due from husband/father---High Court observed that Court could not presume that intention of Legislature was to make law of insolvency as means of avoiding enforcement of moral and legal obligation devolved upon husband / father for maintenance of his wife and children---Something which was not a "debt" did not become a "debt" when such obligation was enforced by decree or order of Court and decree for maintenance was therefore not a "debt" within meaning of Insolvency (Karachi Division) Act, 1909 and could not form basis of adjudication of the petitioner as "insolvent"---Petition, being not maintainable, was dismissed, in circumstances.

Nemo for Petitioner.

Nemo for Respondent.

Ch. Wasim Iqbal Official Assignee.

2021 C L C 323

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

Messrs SHAHEEN FREIGHT SERVICES through Partner and 14 others----Petitioners

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of Petroleum and Natural

Resources and 3 others----Respondents

C.P. No.D-1020 of 2019, decided on 5th December, 2019.

(a) Constitution of Pakistan---

----Arts.25 & 199---Constitutional petition---Discrimination---Reasonable classification---Preferential status---Petitioners were engaged in business of transporting petroleum products throughout Pakistan---Grievance of petitioners was that Pakistan State Oil, a State owned company was giving preferential treatment to National Logistics Cell, which was also engaged in transporting petroleum products in market and was being run under the control of State authorities---Validity---No special preferential status was conferred by law upon National Logistics Cell in the realm of commercial undertakings, as it was rendering logistical services for profit, in the same manner as any other eligible logistical concern---Maintaining a dedicated queue solely for the benefit of National Logistics Cell could not qualify under the precepts of reasonable classification---Such queue was not in public interest and / or survived the test of arbitrariness, illegality, irrationality and / or impropriety set forth by Supreme Court---High Court declined to approve such conduct of respondents---High Court refrained Pakistan State Oil from according preferential treatment to any entity, including National Logistics Cell and directed to treat all eligible person equally, equitably and without any discrimination in the conduct of its commercial operations---Petition was allowed accordingly.

Owaisco v. Federation of Pakistan and others PLD 1992 Kar. 472; M. Akram and others v. Government of Pakistan and others 1999 CLC 745; M. Arif Idrees and others v. Sohail Aamir and others 2017 SCMR 1379; All Pakistan Oil Tanker Owners Association v. PSO and others (C.P. D-958 of 2018) dated 05.06.2018; 2015 PLC 45; 2015 CLD 1257; PLD 2011 SC 44; PLD 2007 SC 642; Mutual Fund Association of Pakistan v. Federation of Pakistan and another 2010 PLC 306; Re: Suo Motu Case 13 of 2009 PLD 2011 SC 619; Otsuka Pakistan Limited v. Province of Sindh and others 2020 MLD 185; Asif Fasihuddin Vardag v. Government of Pakistan and others 2014 SCMR 676; Shaukat Ali v. Secretary Industries Government of Punjab and others 1995 MLD 123; Government of NWFP and others v. Mejee Flour and General Mills (Private) Limited and others 1997 SCMR 1804; Arshad Mehmood and others v. Government of Punjab and others PLD 2005 SC 193; Raza Enterprises v. The Assistant Commissioner and others 2001 CLC 1808; Commanding Officer National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 766 and National Commission on Status of Women and others v. Federation of Pakistan and others PLD 2019 SC 218. rel.

(b) Constitution of Pakistan---

----Arts.16 & 17---Freedom of assembly and freedom of association---Right to protest---Principle---Right to protest is not unfettered and it remains subject to all just restrictions, especially that such action must be devoid of any resort to violence and / or any infraction of law---Any attempt or perpetration of violence and / or precipitation of law and order situation is disapproved by law and strict sanctions are envisaged for perpetrators.

Suo Motu Case 07 of 2017 PLD 2019 SC 318. ref.

Khalid Jawed Khan for Petitioners.

Ishrat Zahid Alvi, Assistant Attorney General for Respondent No.1.

Farmanullah Khan for Respondent No.2.

Taha Alizai and Zeeshan Khan for Respondent No.3.

Kumail Ahmed Shirazee for Respondent No.4.

2021 C L C 377

[Sindh]

Before Muhammad Junaid Ghaffar, J

VERTIV PAKISTAN (PVT.) LTD. AND VERTIV (SINGAPORE)----Plaintiff

Versus

NTG PAKISTAN (PVT.) LTD.----Respondent

Suit No.347 of 2018, decided on 31st May, 2018.\

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

----Ss.20 & 34---Civil Procedure Code (V of 1908 ), O.VII, R.2---Specific Relief Act (I of 1877 ), Ss.12, 42 & 54---Suit for recovery of money, declaration, injunction, damages---Arbitration clause in agreement---Scope---Stay of proceedings sought without approaching the Court for appointment of arbitrator---Defendants/applicants had sought stay of proceedings pursuant to an arbitration clause in the agreement between the parties---Agreed (arbitration) clause though provided that if any difference or dispute would arise between the parties touching the true intent of construction or the incident or consequence of the agreement or of the applicable statutes or relating to any breach of the agreement, such difference or dispute, if the parties would agree, be resolved by them amicably and in the absence of an amicable resolution thereof, same would be referred to arbitration as a condition precedent to any action of law---Defendants/applicants sought protection under said arbitration clause for stay of the proceedings, however, if defendants/applicants thought that there was any dispute between the parties in relation to the agreement in question then they ought to have approached the Court under S.20 of the Arbitration Act, 1940, for appointment of arbitrator and decision thereof, which was not done in the present case--- defendants/applicants had attempted to delay suit proceedings for the reason that it was merely a case of recovery against them and nothing else, which did not appear to be any dispute as to or in relation to the agreement itself---If there was any alleged defective supply then defendants/applicants ought to have approached the Court first to show their bona fide as to the defective supply, which had not been done---Record revealed that various goods and services were supplied and for such purposes on each occasion, purchase orders were placed for such goods and services by the defendants/applicants were accordingly supplied and rendered by the plaintiff---When invoices were raised the defendants/applicants failed to settle them, whereas it also appeared to be a matter of fact that the defendants/applicants had made partial/little payment against the total outstanding amount, which could safely be concluded that there was no dispute between the parties except the outstanding amount---Matter appeared purely to be of simple recovery and defendants/applicants had not come up before the Court seeking enforcement of arbitration agreement and for referral of their dispute to the arbitrator---High Court declined to stay proceedings---Application was dismissed, in circumstances.

Messrs Shell Pakistan Ltd. v. Messrs Bhoja Air (Pvt.) Ltd. 2007 MLD 1424; Mst. Suriya Waseem Usmani and 9 others v. L&M International (Pvt.) Ltd. and another 2002 CLD 624 and Shin Satellite Public Company Limited through Attorney v. Messrs KASB Technology Services Limited 2016 YLR 2322 ref.

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

----Ss.20 & 34---Parties while seeking various relief(s) under the Arbitration Act, 1940 including application under Ss.20 & 34 of the Arbitration Act, 1940 could not be allowed to take refuge under procedural advantages to avoid a trial within the ambit of general law.

Salman Hamid for Plaintiff.

Zubair Ahmed for Defendant No.1.

Date of hearing: 9th May, 2018.

OREDR

MUHAMMAD JUNAID GHAFFAR, J.----This is an Application under Section 34 of the Arbitration Act, 1940 filed on behalf of Defendants Nos.1 and 2, whereby, it has been prayed to stay instant proceedings and refer the matter to Arbitration. Learned Counsel for the said Defendants has contended that Plaintiff No.1 and Defendant No.1 had a relationship of Partnership pursuant to an Agreement dated 01.10.2014, wherein, Clause-26 provided that if any difference or dispute arises between the parties hereto, the matter shall be referred to Arbitration, and therefore, the issue raised on behalf of the Plaintiff in this matter is covered by the Arbitration Clause, hence listed application be allowed. He submits that Defendants have not participated in the proceedings as well and they are willing to proceed with the matter before the Arbitrator in terms of Agreement, therefore, listed application merits consideration. In support he has relied upon PLD 1981 SC 553 (Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners), PLD 1961 Karachi 700 (Messrs Gill & Co. (Karachi) Ltd. v. Messrs Samad Aziz & Co.) and 1990 CLC 47 (Hyderabad Municipal Corporation v. Messrs Columbia Enterprises).

1. On the other hand, learned Counsel for the Plaintiffs has referred to para-3 of the application as well as his counter affidavit and has contended that the Defendants Nos.1 and 2 have surrendered to the jurisdiction of this Court when they state in the application that "without prejudice to its right to submit a detailed defence and a proper written statement" which means that they have entered into the proceedings and wish to defend themselves through a written statement. According to the learned Counsel, in such situation when intention is shown to participate in the proceedings before the Court, the prayer of staying Suit cannot be granted. He has further contended that other Defendants have already filed their reply and therefore this is also one of the grounds not to grant this application. On merits he has contended that mere invoking the Arbitration clause through an application under Section 34 of the Act ibid, does not suffice; as first of all the dispute has to be pointed out and according to him there is no dispute between the parties, which could be referred to Arbitration, whereas, this is only a Suit for recovery of money as the Defendants after being supplied various products have defaulted in payment. Per learned Counsel refusal to pay is not a dispute and he has relied upon 2016 YLR 2322 (Shin Satellite Public Company Limited through Attorney v. Messrs KASB Technology Services Limited).

2. I have heard both the learned Counsel and perused the record. This is a Suit for Declaration, Injunction, Recovery, Compensation and Damages, whereas, through prayer clause the Plaintiff seeks the Declaration that they are entitled for recovery of an amount of Rs.30,282,896/- (US$: 270,383/- @ Rs.112/$) plus Rs.2,708,702/- being the principal amount due from the Defendant No.1 with an additional prayer of injunction, mark-up and compensation. Through listed application the Defendant has sought stay of the proceedings pursuant to Clause-26 of the Agreement between the parties. The relevant portion of the said clause reads as under:-

"if any difference or dispute arises between the parties hereto, touching the true intent of construction or the incident or consequence of this Agreement or of the applicable statutes or anything then or thereafter done, executed, omitted or suffered in pursuance of the Agreement, or any of the applicable statutes, or relating to any breach or alleged breach of any statute, adversely affecting either party hereto, such difference or dispute, may, if the parties hereto agree, be resolved by them amicably and in the absence of an amicable resolution thereof, shall be referred to Arbitration as a condition precedent to any action at law.

The Arbitration proceedings shall be conducted in accordance with the Arbitration Act, 1940, or any amendment or re-enactment thereof and the rules made thereunder by two (02) arbitrators, one (01) to be appointed by each party hereto and the arbitrators so appointed shall, before entering upon the reference, appoint an umpire. The arbitrators and the umpire shall be retired judges of the Supreme Court of Pakistan, or falling the availability of such persons as arbitrators and umpire, retired judges of High Court. The decision of the arbitrators or umpire, as the case may be, shall be final and binding. The venue of Arbitration shall be Karachi. The language of the Arbitration shall be English. Each party hereto shall bear its own costs for any Arbitration proceedings, unless specified otherwise in the arbitral award. The parties hereto may seek execution of the arbitral award through a Court of law having competent jurisdiction."

1. Though the above clause as agreed provides that if any difference or dispute arises between the parties hereto, touching the true intent of construction or the incident or consequence of this Agreement or of the applicable statutes or relating to any breach of this Agreement, such difference or dispute may, if the parties agree be resolved by them amicably and in the absence of an amicable resolution thereof, shall be referred to Arbitration as a condition precedent to any action at law. The Defendants Nos.1 and 2 seek protection under this clause for stay of the proceedings. However, firstly I would like to observe, that if the Defendants Nos.1 and 2 were of the opinion that there was any dispute between the parties in relation to the Agreement in question; then perhaps they ought to have approached this Court under Section 20 of the Arbitration Act, 1940, for appointment of an Arbitrator and decision thereof. Whereas, this is vice versa in this matter as the Plaintiff has come before this Court seeking recovery of the amount due as alleged and in such Suit listed application has been filed. This appears to be an attempt by the Defendants Nos.1 and 2 to delay instant proceedings for the reason that it is merely a case of recovery against them and nothing else. This does not appear to be any dispute as to or in relation to the agreement itself. If there was any defective supply (which may be a case of Defendants Nos.1 and 2), then as stated, they ought to have approached the Court first to show their bona fide as to the defective supply. This has not been done admittedly. In the case reported as Messrs Shell Pakistan Ltd. v. Messrs Bhoja Air (Pvt.) Ltd. (2007 MLD 1424) a learned Single Judge of this Court has been pleased to observe as under:-

"Even otherwise, for deciding an application wider section 34 of the Arbitration Act one of the important consideration that weighs with the Court is the conduct of the defendant as well. It is incumbent on the defendant to press into service the application under section 34 ibid to show that the defendant before filing of the suit was and is ready and willing to arbitrate."

1. It also appears to be a matter of record that various goods and services were supplied and for such purposes on each occasion, purchase orders were placed for such goods and services by the Defendants No.1 and 2 and were accordingly supplied and rendered by the Plaintiff. However, when Invoices were raised, the Defendants Nos.1 and 2 failed to settle them, whereas, it also appears to be a matter of fact that against the total outstanding a sum of US $ 50,000/- was paid by Defendants Nos.1 and 2, hence it can be safely concluded that there is no dispute between the parties except the outstanding amount as above. It is settled law that the parties while seeking various relief(s) under Arbitration Act including an application under Sections 20 and 34 of the Act (ibid) must not be allowed to take refuge under procedural advantages to avoid a trial as contemplated within ambit of general law. Though in this matter, the Suit is not entirely based on a Promissory Note, however, there is a series of Judgments of this Court, wherein, it has been held that when the Suit is for recovery of an amount on the basis of a Promissory Note, then no dispute between the parties could be referred to Arbitration in terms of the Agreement. In this matter it purely appears to be a case of simple recovery and as stated the Defendants Nos.1 and 2 have not come up before the Court seeking enforcement of the Arbitration Agreement and for referral of their dispute to the Arbitrator. Reliance may be placed on the case reported as (Mst. Suriya Waseem Usmani and 9 others v. L&M International (Pvt.) Ltd. and another) (2002 CLD 624). Finally reliance may also be placed on the case cited by the learned Counsel for the Plaintiff (Shin Satellite Public Company Limited-Supra), wherein, Para Nos.50 and 51 it has been observed as under:-

2021 C L C 389

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

ZAFAR ALI KAYANI and others----Appellants

Versus

AHMED SALEEM KHAN and others----Respondents

High Court Appeal No.422 of 2018, decided on 9th October, 2020.

Civil Procedure Code (V of 1908)---

----S.12(2) & O.I, R.10---Challenge to a decree / order / judgment on ground of fraud or misrepresentation---Adjudication of an application under S.12(2), C.P.C.---Addition / deletion of parties under O.I, R.10, C.P.C.---Scope---In a proceeding under S.12(2), C.P.C., an application for addition or deletion of a person under O.I, R.10(2), C.P.C. could be filed and adjudicated upon on its own merits.

Raja Muhammad Arshad v. Raja Rabnawaz 2015 SCMR 615 rel.

Zayyad Khan Abbasi for Appellant.

Nemo. for Respondents Nos.1 and 2.

Khawaja Shams-ul-Islam for Respondents Nos.3 to 5.

2021 C L C 472

[Sindh]

Before Zulfiqar Ahmad Khan, J

Messrs TAJ MEDICOS through Proprietor----Plaintiff

Versus

PUBLIC PROCUREMENT REGULATORY AUTHORITY through Chairman/Managing Director and 5 others---Defendants

Suit No.555 and C.M.As. Nos.4338, 4393, 5494, 4595 of 2020, decided on 4th June, 2020.

(a) Public Procurement Rules, 2004---

----Rr.19, 5 & 40---United Nations Commission on International Law (UNCITRAL) Model Law on Procurement of Goods, Construction and Services, Arts. 19 & 35---Blacklisting of suppliers and contractors---International and inter-governmental commitments of the Federal Government---Limitation on negotiations---Prohibition on negotiations with suppliers or contractors---Scope---Plaintiff/supplier having passed pre-qualification criteria participated in tenders floated by the procuring agency and notwithstanding that its rates were the best, was disqualified on the ground that it had concealed blacklisting from another procuring agency---Procuring agency thereafter entered into negotiations with second and third best bidders and prompted them to match their offers to that of the plaintiff and thereafter awarded 50-50 supply contract to both of them---Validity---Condition with regards blacklisting as made part of the pre-qualification was only that the pharmacists/bidders must not have been blacklisted by Pharmacy Council or Drug Regulatory Authority of Pakistan---Procuring agency could not borrow blacklisting from any other agency and enforce it through its own procurement---Rule 40 of the Public Procurement Rules, 2004, limited the negotiations and stated that save as otherwise provided there would be no negotiations with the bidder having submitted the lowest evaluated bids or with any other bidder---Blacklisting of the plaintiff was set aside and so also the negotiated awarding of the contract to second/third bidders---Application was allowed.

Pakistan Gas Port Ltd. v. Messrs Sui Southern Gas Co. Ltd. and 2 others PLD 2016 Sindh 207 and Petrosin Corporation (Pvt.) Ltd. Singapore and 2 others v. Oil and Gas Development Company Ltd. 2010 SCMR 306 distinguished.

(b) Public Procurement Rules, 2004---

----R.5---International and inter-governmental commitments of the Federal Government---Scope---Adherence to international commitments in public procurements is so critical that Public Procurement Rules, 2004, itself at its forefront through R. 5 in probably most unique legislative way superimposes international and inter-governmental commitments over domestic law.

(c) Public Procurement Rules, 2004---

----R.4---Principles of procurements---Scope---Raison d'etre for the tightly regulated public procurement regime is to (i) ensure balancing of interest of all stakeholders in a transparent manner; (ii) provide level playing field to all competitors; (iii) establish sustainable regulatory arrangements which carry credibility with investors and are perceived as legitimate and fair in the eyes of the public and deliver greater efficiency for the economy as a whole.

(d) Public Procurement Rules, 2004---

----Rr.15, 16, 18 & 19---UNCITRAL Model Law on Procurement of Goods, Construction and Services, Art.19---Pre-qualification of suppliers and contractors---Pre-qualification process---Disqualification of suppliers and contractors---Blacklisting of suppliers and contractors---Scope---Rules 15 & 16 of the Public Procurement Rules, 2004, require that pre-qualification criteria be carved in stone prior to floating of tenders by imposing all just conditions with the objective that pre-qualification be based upon the ability of the interested parties to perform that particular work satisfactorily and if any supplier or contractor is to be disqualified or blacklisted, the mechanism setup in Rr.18 & 19 be followed---Language in R.18 is important as it provides that the procuring agency shall disqualify a supplier or contractor if it finds, at any time, that the information submitted by him concerning his qualification as supplier or contractor was false and materially inaccurate or incomplete---Said rule is couched in strict language, however, disqualification is incumbent upon making any inaccurate or incomplete information in respect of qualification, which as required by R.15 has to be completed prior to floating of tenders.

(e) Public Procurement Rules, 2004---

----Rr.15 & 16---Pre-qualification of suppliers and contractors---Pre-qualification process---Scope---Public Procurement Rules, 2004, do not envisage any possibility of adding a "post-requisite" after opening of tenders as it requires that conditions of bid have to be embodied in the pre-qualification documents.

(f) Public Procurement Rules, 2004---

----R.40---UNCITRAL Model Law on Procurement of Goods, Construction and Services, Art.35---Limitation on negotiations---Prohibition on negotiations with suppliers or contractors---Scope---Procuring agency tried to match price of the best bidder and after attaining the match, gave 50-50 contract to second and third best bidders---Validity---United Nations Commission on International Trade Law (UNCITRAL) strictly prohibited any such price matching initiatives---Article 35 of the UNCITRAL required that no negotiations shall take place between the procuring agency and a supplier or contractor with respect to a tender presented by the supplier or contractor---Rule 40 of the Public Procurement Rules, 2004, itself limited negotiations and stated that save as otherwise provided there would be no negotiations with the bidder having submitted the lowest evaluated bids or with any other bidder.

(g) Public Procurement Rules, 2004---

----Rr.19 & 5---UNCITRAL Model Law on Procurement of Goods, Construction and Services---Blacklisting of suppliers and contractors---International and inter-governmental commitments of the Federal Government---Scope---Rule 19 of the Public Procurement Rules, 2004, provides as to how an agency can blacklist suppliers and contractors---UNCITRAL governing law does not have any concept of "blacklisting" of suppliers and contractors and this word fails to appear anywhere in the Public Procurement Rules, 2004---However, it only discusses reasons for "disqualification"---Rule 19 has no force on the touchstone of R.5---Even if one half-heartedly reads R.19, it becomes evident that the procuring agency can only blacklist those who fail to provide satisfactory performance or found indulging in corrupt or fraudulent practices and that the procuring agency cannot borrow blacklisting from any other agency and enforce it through its own procurements.

Mukesh Kumar G. Karara for Plaintiff.

Abdul Qayoom for Defendants Nos. 2 and 3.

2021 C L C 526

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. NAZIA MUGHAL and another----Petitioners

Versus

GOVERNMENT OF SINDH through Secretary and 11 others----Respondents

Constitution Petition No.S-1524 of 2019, decided on 13th January, 2020.

Constitution of Pakistan---

----Arts.35, 9, 29 & 199---Constitutional petition---Protection of family---Security of person---Principles of Policy---Scope---Petitioners sought direction to the police officials to provide necessary protection in the manner that no one would cause them harassment---Petitioners had contracted marriage by exercising their right of freewill---Validity---Major and sane persons, both male and female, had the right to contract marriage with their own free will guaranteed under Art.35 of the Constitution---Not only Art.35 of the Constitution but the very fundamental right guaranteed under Art.9 of the Constitution was violated where a duly married couple was compelled to separation through coercive measures by police or any other person---Under Art.29 of the Constitution it was not only the various organs of the State but persons performing functions in various organs of the State had also to perform their duties in the manner that promoted the Principles of Policy under Chapter 2, Part II of the Constitution, which included Art.35---Constitutional petition was disposed of with direction to the authorities to conduct themselves strictly in accordance with law and provide necessary legal protection of life, honour and property to the petitioners in the manner that no one would cause them harassment.

Mst. Sajida Bibi and others v. Incharge Chouki No.2 Police Station Saddar, Sahiwal PLD 1997 Lah. 666 ref.

Muhammad Umar Panhwar for Petitioner.

Pervez Ali Mastoi, A.A.G. Sindh.

Sagheer Ahmed Abbasi, A.P.G. Sindh.

Inspector Rab Nawaz Pathan on behalf of SSP Sujawal, SIP Nazar Police Station Bano, ASI Bashir Ahmed Police Station Tando Muhammad Khan, SIP Muhammad Mitha Police Station Bin Qassim.

2021 C L C 544

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Sheikh, J

Haji CHRAGUDDIN----Petitioner

Versus

PROVINCE OF SINDH through Home Secretary and 5 others----Respondents

Constitution Petition No.S-1670 and M.A. No.4664 of 2018, decided on 9th January, 2019.

Sindh Environmental Protection Act (VIII of 2014)---

----Ss.11(1) & 17(1)---Report of Environmental Protection Agency---Petitioner a Flour Mill owner, running in residential area, claimed that respondents (people from the area) were causing harassment by raising objection on the running of his flour mill therefore, they be restrained from raising objection on the flour mill and police may be directed to provide protection to the petitioner and his property---Respondents produced copies of the report of Environmental Protection Agency which revealed that team of said Agency had visited the flour mill and found that flour dust was blowing there and effluents discharged from it were seen in the left side of the flour mill in a vacant plot; it was pointed out that the petitioner after washing wheat, before crushing, disposed effluents there---Team of Environmental Protection Agency visually saw unhygienic condition due to disposal of dust and solid materials; a restaurant serving meals, tea, etc was also seen there---Agency report further revealed that petitioner had not produced 'No Objection Certificate' from any department except food department nor did he produce environmental approval of the flour mill---Petitioner conceded before the court that he had not obtained environmental approval and permission for running the flour mill and that the flour mill was situated in the residential area---Held; petitioner by filing the constitutional petition had attempted to run his unauthorized flour mill and continue his wrongs, which were detrimental to the health and lives of the residents of the area, where the flour mill was located---Petitioner had also suppressed the real and material facts relating to inspection of Environmental Protection Team and Un-hygienic condition resulting from running of the petitioner's flour mill in the vicinity---Petitioner had not averred said facts in the petition which adversely reflected upon him---Constitutional petition, being meritless and not maintainable, was dismissed, in circumstances.

Omparkash along with Petitioner.

Habib-ur-Rehman Jamali, Assistant Advocate General.

Mrs. Razia Ali Zaman Patoli for Private Respondents Nos.5 and 6.

2021 C L C 553

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

MUHAMMAD USMAN SIDDIQUI----Petitioner

Versus

MUKARAM ALAM SIDDIQUI and 2 others----Respondents

High Court Appeal No.121 of 2018, decided on 1st November, 2019.

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

----S.42---Civil Procedure Code (V of 1908), Ss.11 & 47---Suit for declaration---Un-registered gift deed---Res judicata---Applicability---Scope---Questions to be determined by the Court executing decree---Scope---Plaintiff, after failing in a suit for partition, claimed that the disputed property was gifted to him by his late mother---Single Judge of High Court dismissed the suit under O.VII, R.11, C.P.C.---Validity---Donor during her lifetime had not appeared before the authorities for mutation neither had the plaintiff made any effort to get the property mutated in his name---Judgment and decree in the suit for partition was in field, subsequently the suit property was put for auction and reportedly the bids had been received---Another suit regarding the same property between the same parties could not be entertained under the doctrine of res judicata---Whatever the grievance of the plaintiff was regarding the suit property, it could only be addressed by the Executing Court as per the provisions of S.47 of C.P.C.---Appeal was dismissed.

Gopi Mal v. Vidya Wanti AIR (29) 1942 Lah. 260; Suraya Begum v. Alimul Malik 1971 DLC 31; Muhammad Younus Qureshi and others v. Mrs. Feroz Qureshi and others 1982 CLC 976; Custodian of Evacuee Property v. Tarique Mehmood Butt 2001 YLR 3139 and Abdullah Khan v. Mst. Khursheed Begum and another 1987 SCMR 1652 distinguished.

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

----S.11---Res judicata, doctrine of---Scope---Section 11 of C.P.C. provides that once a matter is finally decided by the competent court, no party can be permitted to re-open it in subsequent litigation---To bring an end to litigation and to save the parties from constant troubles, harassment and expenses said rule is made in the Code---To bring the finality of the judgment, such rule is applied, which is a rule of universal application and in almost every civilized legal system, this rule is being followed---Doctrine of res judicata is evolved from the common law system and it rests on the overriding concept of judicial economy, consistency and finality of a civil action---It has roots under the Roman Law also, where a defendant can successfully contest a suit under the plea of 'excaptio res judicata' meaning that 'one suit and one decision is enough for any single dispute'---Doctrine of res judicata is conceived in the general interest of public policy which requires that all litigation must come to an end at a point of time---Principle is also founded on justice, equity and good conscience, which requires that a party who has once succeeded on an issue should not be harassed by the multiplicity of proceedings involving the same issue.

Pir Bux v. Chairman Allotment Committee PLD 1987 SC 145 ref.

(c) Maxim---

----"Excaptio res judicata"---Meaning---One suit and one decision is enough for any single dispute.

(d) Maxim---

----"Res judicata proveritate accipitur"---Meaning---Judicial decision must be accepted as correct.

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

----S.11---Res judicata---Applicability---Requirements, explained.

Following are the requirements for application of doctrine of res judicata:

i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit;

ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;

iii) Such parties must have been litigating under same title in the former suit;

iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised;

v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.

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

----S.11---Re judicata---Constructive res judicata---Scope---Constructive res judicata is an artificial form of res judicata which provides that 'if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding regarding the same subject-matter'---Such a rule, no doubt, is apparently contradictory to the considerations of public policy on which the doctrine of res judicata is based but such a course is purposely adopted by the jurists otherwise the doctrine of finality of judgments would have been materially affected.

(g) Administration of justice---

----Litigant must be vigilant regarding his matters otherwise he will suffer.

Ishrat Ghazali for Appellant.

Syed Fazal-ur-Rehman for Respondent No.1.

Asif Rasheed for Respondent No.2.

Ms. Durdana Tanveer, Assistant Attorney-General.

2021 C L C 566

[Sindh]

Before Nadeem Akhtar, J

Mst. SURRIYA BIBI----Petitioner

Versus

MUHAMMAD ALI QURESHI and 2 others----Respondents

Constitution Petition No.S-142 of 2018, decided on 20th April, 2020.

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

----S.15---Civil Procedure Code (V of 1908), S.12(2)---Eviction petition---Bar to further suit---Scope---Petitioner assailed the concurrent dismissal of her application filed under S.12(2), C.P.C.---Eviction order passed by Rent Controller against the petitioner had attained finality long ago as her appeal was dismissed by the Appellate Court on the ground of limitation, which order was not challenged by her any further---Petitioner had prayed in her application under S.12(2), C.P.C., that the main case against her, wherein the eviction order was passed, as well as the execution application be dismissed---Such prayer was beyond the scope of S.12(2), C.P.C.---Concurrent findings of courts below did not require any interference by the High Court---Constitutional petition was dismissed.

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

----S.12(2)---Bar to further suit---Scope---Section 12(2), C.P.C. is a special provision that can be invoked only in special and peculiar circumstances as enumerated therein---Order, judgment or decree passed by a court can be challenged under said provision only (a) if the same were obtained by means of misrepresentation or fraud, or (b) if the court did not have the jurisdiction to pass the same.

Muhammad Arshad Mughal for Petitioner.

Fida Muhammad Khan Khel for Respondent No.1.

IVth Additional District Judge Karachi West and 1st Senior Civil Judge/Rent Controller, Karachi West for Respondents Nos.2 and 3.

2021 C L C 579

[Sindh]

Before Khadim Hussain M. Shaikh and Arshad Hussain Khan, JJ

NASIR RAHIM and another----Petitioners

Versus

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

Constitutional Petition No.D-7238 of 2017, decided on 21st August, 2020.

(a) Constitution of Pakistan----

----Art.199---Constitutional petition---Lease of government property---Suppression of facts---Effect---Petitioners sought protection of the property as its owners from authorities---Validity---Petitioners, who were out of possession of the subject huge government commercial property, having no right or title over it, by suppressing the real and material facts and documents, relating to the grant of lease of the subject property in relaxation of the conditions of the policy and in existence of ban imposed by the government on the disposal of the state land on lease or otherwise, had filed Constitutional petition and that too without disclosing the name of the alleged lessee in the petition, by falsely claiming themselves to be owners of the subject property---High Court observed that constitutional petition was aimed at to abuse the process of law, besides being not maintainable and also being mala fide, therefore, same was dismissed---Constitutional petition was dismissed, in circumstances.

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

----S.42---Making of that part of periodical records which relate to land owners---Scope---Mutation entry is not a document of title, which by itself does not confer any right, title or interest and the burden of proof lies upon the person in whose favour it was mutated to establish the validity and genuineness of transfer in his favour---Where the foundation is illegal and defective then entire structure built on such foundation, having no value in the eyes of law, would fall on the ground---Constitutional petition was dismissed.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Controversial facts---Expeditious remedy---Scope---Petitioner availing remedy under Art. 199 of the Constitution has to establish that he has legal right over the subject property and that his right is so clear that it leaves no room of doubt or any controversy---Exercise of extraordinary constitutional jurisdiction under Art.199 of the Constitution is intended primarily to provide an expeditious remedy in a case where the illegality of the impugned action of an Executive or other authority is floating on the surface, which can be established without any elaborate inquiry into the questions involved in the matter.

U. Inaam and Javaid Iqbal for Petitioners.

R.B. Qureshi for Respondent No.2.

Hakin Ali Shaikh, Additional Advocate-General, Sindh.

Gahanwer Ali Laghari, Deputy Commissioner, Malir, Karachi Mir Muhammad Pathan, Deputy Secretary Land Utilization Department, Government of Sindh, Karachi.

2021 C L C 605

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

ALI GUL----Applicant

Versus

The STATE and 6 others----Respondents

Criminal Miscellaneous Application No.S-162 and M.A. No.1226 of 2019, decided on 14th September, 2020.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1898), Ss. 302 & 34---Qatl-i-amd, common intention---Inherent powers of High Court---Quashing of order---Scope---Application filed by complainant for transfer of the case to the Anti-Terrorism Court for trial was dismissed---Validity---Accused were charged for committed murder of the brother and maternal-uncle of the complainant by causing hatchet and lathi blows and then forcibly threw them under the rear wheels of troller on the main road, resultantly they were smashed and died there---Complainant in the FIR had not mentioned any word, which might suggest that the private respondents had created any sort of terror and sense of insecurity amongst the general public of the area at the time of incident---Admittedly, there was previous enmity between the parties over the matter of Karap and series of FIRs had been registered against each other---No ingredients of S.6 of the Anti-Terrorism Act, 1997, were attracted in the case---There was nothing on record to suggest that it was pre-planned incident, which might call for its adjudication by the Court constituted under the provisions of Anti-Terrorism Act, 1997---Impugned order did not call for interference, in circumstances---Application was dismissed accordingly.

Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178 rel.

Shamsuddin Rajper for Applicant/Complainant.

Rizwan Ahmed Jagirani for Respondents Nos.2 and 3.

Fayyaz Ahmed A. Soomro for Respondents Nos.4 to 6.

Aftab Ahmed Shar, Additional P.G. for the State.

2021 C L C 666

[Sindh]

Before Agha Faisal, J

AL-HASSAN TECH. ENG. SVC (PVT.) LIMITED----Plaintiff

Versus

FEDERATION OF PAKISTAN and others----Respondents

Suit No.2652 of 2017 (Old No.1505 of 2012), decided on 24th February, 2020.

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

----S.5---Application for condonation of delay---Inaction of counsel---Scope---Plea of electricity load shedding is not a justifiable recurring ground for condoning delay---Inaction of counsel cannot be sustained as ground for waiver of limitation.

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

----Ss.14, 30 & 33---Limitation Act (IX of 1908), S.5--- Sindh Chief Court Rules (O.S.), R. 282 (1)---Objection to award--- Condonation of delay---Scope---Award was filed in Court by arbitrator to be made rule of the Court---Defendants filed their objections and had sought the award to be set aside---Plea raised by plaintiff was that objections to award were barred by time and S.5 of Limitation Act, 1908, had no application to arbitration proceedings--- Validity--- No objection to award could be entertained if the same was not filed within period of limitation--- Application seeking condoning of delay, per S.5 of Limitation Act, 1908, could not be entertained to extend limitation period--- Matter was referred to arbitration with the consent of parties and determinant issues were also framed consensually--- Proceedings were conducted in accordance with law--- Award was well reasoned and predicated upon due consideration of evidence--- Objections to award were barred by limitation--- Defendants were unable to demonstrate any infirmity with respect of award, within the ambit of S.30 of Arbitration Act, 1940--- High Court declined to interfere in the award given by arbitrator--- Award was made rule of the Court in circumstances.

United Bank Limited v. Ghulam Rafiq 2020 CLD 129; Mahmood Khan Mahar v. Qamar Hussain Puri and others 2019 MLD 249; Sh. Bashir Ahmed v. Muddassar Hayat 2005 SCMR 1120; Abdul Hamid v. Abdul Qadir PLD 2001 SC 49; Lt. Col. Nasir Malik v. Additional District Judge Lahore 2016 SCMR 1821; Altaf Hussain and 2 others v. Muhammad Nawaz and 2 others 2001 SCMR 405; Superintending Engineer Communication and Works Highway Circle Kohat v. Mian Faiz Muhammad & Co Akora Khattak PLD 1996 SC 797; Thal Development Authority v. Nisar Ahmed Qureshi PLD 1962 (W.P.) 830; Valika Woolen Mills Limited v. DP (Army) Karachi 1984 CLC 2515; Matracon Pakistan (Private) Limited v. Fauji Fertilizer Bin Qasim Limited 2019 CLC 1732; Lal Hussain and another v. Muhammad Suleman and another 2001 MLD 117; Gen (R) Pervez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585; Chaudhry Qaiser Mahmood v. Province of Punjab and another 2012 SCMR 1606; PLD 2011 SC 506; PLD 2006 SC 169; PLD 2003 SC 301; PLD 1996 SC 108; 1984 SCMR 597; 2014 SCMR 1268; PLD 1987 SC 393 and Gerry's International (Private) Limited v. Aeroflot Russian International Airlines 2018 SCMR 662 rel.

Balal A. Khawaja and Ghulam Hussain for Plaintiff.

Umar Hayat Sandhu for Respondent.

2021 C L C 732

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MUHAMMAD RAMZAN----Petitioner

Versus

NANOO and others----Respondents

Constitutional Petitions Nos.S-453, S-464, S-461, S-462, S-465, S-466, S-454, S-456, S-457, S-468, S-463, S-455, S-458, S-460, S-467 and S-459 of 2012, decided on 3rd February, 2020.

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

----Ss.2(f) & 16(1)--- Constitution of Pakistan, Art.199---Ejectment of tenant---"Landlord", determination of--- Documentary evidence to exclude oral evidence---Petitioner filed applications for eviction of tenants from demised premises---Respondent claimed to be owner of demised premises and contested the proceedings with petitioner--- Rent Controller accepted petitioner as landlord of the premises on the basis of title documents but Lower Appellate Court reversed the findings on the basis of oral assertion made by respondent--- Validity--- Rent Controller did not have jurisdiction to decide question of title of property and could not make any declaration with regard to ownership of a property as the same was domain of Civil Court---Rent Controller could determine issue as to whether there existed relationship of landlord and tenant between parties in the case---High Court in exercise of its extraordinary jurisdiction under Art.199 of the Constitution was not debarred from examining judgment of Courts below to reach a conclusion as to whether the same suffered from any infirmity or illegality and whether there was any misreading or non-reading of evidence provided by parties before Courts below--- Order of Rent Controller was on proper appreciation of evidence while judgment delivered by Lower Appellate Court in appeal preferred by respondent suffered from infirmity and illegality as well as misreading of evidence---Petitioner was competent to challenge judgment passed by Lower Appellate Court before High Court in Constitutional jurisdiction---High Court set aside order passed by Lower Appellate Court and restored that of Rent Controller---Constitutional petition was allowed in circumstances.

2013 MLD 1132; 2018 SCMR 1385; 2011 CLC 622; PLD 1971 Kar. 505; PLD 2016 SC 730; 1992 CLC 15; 2011 SCMR 1434; 2010 SCMR 1925; 2016 CLC Note 51; 2015 CLC 310; 2015 CLC 570; 1987 CLC 1134 and 1983 SCMR 1064. distinguished.

Meher Khan and others v. Mst. Basaee and others PLD 2008 SC 512 ref.

Mian Taj Muhammad Keerio for Petitioner (in all petitions).

Pirbhulal U. Goklani for Respondents (in all petitions).

2021 C L C 761

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

PAKISTAN STATE OIL COMPANY LTD.----Appellant

Versus

PAKISTAN NATIONAL SHIPPING CORPORATION----Respondent

High Court Appeal No.249 of 2018, decided on 18th November, 2020.

Arbitration Act (X of 1940)---

----Ss.15 & 30---Award, modification of---Contractual liability---Force majeure---Appellant was an Oil Company and respondent was a Shipping Company---Dispute was with regard to recovery of demurrages claimed by respondent/shipping company due to delayed discharge of cargo---Appellant/oil company was aggrieved of making award rule of the Court---Validity---Held, there was a requirement to invoke force majeure clause as in view of directives and policy guidelines, subject cargo was declared off-specification by independent Government Surveyor viz HDIP, and cargo could not have been unloaded by appellant/oil company--- Appellant/oil company took mitigating steps by continuously corresponding and coordinating with concerned parties including respondent/shipping company and controlling authorities of government for resolution of dispute--- Cargo was discharged, once request of appellant/oil company to grant one time waiver was approved and communicated by government authorities--- Correspondence from appellant/oil company highlighted the fact that cargo was contaminated and deteriorated during voyage--- Respondent/shipping company experienced somewhat similar situation in respect of other consignments of appellant/oil company, which were subject matter of other proceedings--- Division Bench of High Court set aside award to pay demurrages and monetary claim of respondent/shipping company was rejected--- Intra Court Appeal was allowed, in circumstances.

Shahul Hamid v. Tahir Ali 1980 SCMR 469; Fauji Foundation through General Manager (Engineering) v. Messrs Chanan Din and Sons through Attorney and others PLD 2014 Lah. 424; Sh. Saleem Ali v. Sh. Akhtar Ali and 7 others PLD 2004 Lah. 404; Government of N.-W.F.P. through Secretary Forests, Peshawar and 4 others v. Azizur Rehman 1991 MLD 422; Umar Din through L.Rs. v. Mst. Shakeela Bibi and others 2009 SCMR 29; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; Messrs Trading Corporation of Pakistan Ltd. v. Messrs General Industrial Machines 2016 MLD 897; Union of India v. Badridas Kedia AIR 1981 Calcutta 341; National Highway Authority through General Manager Construction v. Messrs Hakas (Private) Limited through Managing Director PLD 2011 Isl. 43; Messrs Basant Lal Banarsi Lal v. Bansi Lal Dagdulal AIR 1961 SC 823; Messrs Sadat Business Group Ltd. v. Federation of Pakistan through Secretary and another 2013 CLD 1451; Euro Brokers Holdings Limited v. Monecore (London) Limited 2002 WL 499014 High Court of Justice Chancery Division; Atlas Cables (Pvt.) Limited v. Islamabad Electric Supply Company Limited and another 2016 CLD 1833; Muhammad Ismail through his Legal Heirs and others v. Ghulam Haider and 3 others 1991 SCMR 1443; Talaat Inayatullah Khan and another v. Dr. Anis Ahmad Sheikh PLD 2015 Sindh 134; Hashwani Hotels Limited through Senior Manager v. Sindh Insurance Tribunal, Karachi 2016 CLD 1790; Water and Power Development Authority through Chairman and another v. Messrs. Ice Pak International Consulting Engineers of Pakistan through Chairman and another 2003 YLR 2494; Haji Abdul Hameed and Co. v. Insurance Company of North America and others 1999 YLR 1213; Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597; Federation of Pakistan through Secretary, Ministry of Food, Islamabad and others v. Messrs. Joint Venture Kocks K.G./RIST PLD 2011 SC 506; The Upper Ganges Valley Electricity Supply Co. Ltd., v. The U.P. Electricity Board AIR 1973 SC 683; Messrs Gerry's International (Pvt.) Ltd. v. Aero Flot, A Russian International Airlines 2017 CLC 291; The Trustees of Port of Karachi v. Ghulam Abbas 1983 CLC 2006; Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines 2018 SCMR 662; Turner Morrison Garahams Group of Companies, London v. Rice Export Corporation Pakistan Ltd. PLD 1998 Kar. 79; Province of East Pakistan v. Messrs Abdul Halim Nezamuddin PLD 1968 Dacca 937; Messrs A. Z. Company v. Messrs S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505; Indus Valley Construction Company Ltd. v. Cementation Intrafor Ltd. 1982 SCMR 1127; Naqi Hanna Khabbaz and others v. Messrs Dalmia Cement Ltd. PLD 1965 (W.P.) Kar. 224; Messrs Muhammad Steamship Co., Limited v. Messrs Abdul Aziz Ali Mohammed PLD 1959 (W.P.) Kar. 269; House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 and Ultratech Cement Ltd. v. Sunfield Resources (Pvt). Ltd., on 21 December, 2016, 2016 Bombay High Court (Online) 10023 ref.

Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines 2018 SCMR 662 rel.

Taha Alizai and Zeeshan Khan for Appellant.

Dr. Adeel Abid for Respondent.

2021 C L C 796

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD USMAN----Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN CONSTITUTED AND ESTABLISHED and 2 others ----Respondents

Constitution Petition No.S-1096 and C.M.A. No.4805 of 2012, decided on 7th September, 2020.

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

----S.8---Fair rent---Ex-parte order, setting aside of---Scope---Petitioner assailed concurrent findings of courts below whereby he was proceeded against ex-parte and the application for fixation of fair rent was allowed---Validity---Courts below had fixed fair rent without considering the pleadings as narrated in the application for fixation of fair rent as well as affidavit in evidence---Normally no one could be knocked out on technicalities rather administration of justice always insisted decision of the lis on merits---No exception to legal obligation of the parties to present their pleadings well within time could be taken, however, when penal action was subject to the word 'may' then the courts normally were to make effort avoiding penal action unless it appeared that the discretion was being exploited---Penal action by the Rent Controller was a harsh one and such aspect should have considered by the Appellate Court, which it had failed---Case was remanded to the Rent Controller with direction to allow the petitioner to file his objections as well as permit the parties to lead their evidence and thereafter decided the issue in accordance with law---Petition was disposed of accordingly.

(b) Administration of justice---

----No one can be knocked out on technicalities rather administration of justice always insists decision of the lis on merits.

Abdul Qadir Khan for Petitioner.

2021 C L C 824

[Sindh]

Before Muhammad Faisal Kamal Alam, J

E.F.U. GENERAL INSURANCE LTD. and others----Plaintiffs

Versus

EMIRATES AIRLINES/EMIRATES SKY CARGO and others---Defendants

Suit No.1847 of 2016 (along with others connected Suits Nos.), decided on 6th May, 2020.

(a) Geneva Conventions, 1949---

----Arts.2 & 3---"International Armed Conflict" and "Non-International Armed Conflict"---Distinction---International Armed Conflict can be explained when there is a resort to armed force between states---Existence of an International Armed Conflict is assumed when parts of armed forces of two States clash with each other triggering common Art.2 to Geneva Conventions of 1949--- Provision of Art. 2 to Geneva Conventions of 1949, stipulates that wounded and surrendering members of armed forces or civilians of another state should be treated humanely---Non-International Armed Conflict is that if internal disturbances and tensions in a country reach a level of confrontation which requires a government to use military force against insurgents in order to forestall and curb hostilities carried out by such groups which are organized, armed and having command structure---Such situation falls with the purview of Non-International Armed Conflict.

International Committee of the Red Cross (ICRC) Opinion Paper, March 2008; Committee Final Report vis-à-vis The Hague Conference, 2010 on 'Use of Force'; Relevant pages from the Book 'Defining Armed Conflict' by Natasha Balendra and Case law from foreign jurisdiction - Juan Carlos Abella v. Argentina. Before Inter-American Commission on Human Rights rel.

(b) Carriage by Air Act (IV of 2012)---

----S.4, Fourth Schedule Rr.18 (2)(c) & 35---Civil Procedure Code (V of 1908), O.VII, R.11--- Suit for recovery of damages---Rejection of plaint---Damage to cargo---Act of war or armed conflict---Plaintiffs were Insurance Companies and defendants were airlines/carriers---Plaintiffs sought recovery of damages caused to cargo during terrorist attack at Karachi airport which cargo was then in the custody of defendants---Defendants sought rejection of plaint on the plea that it was an act of war/armed conflict and suit was barred by time---Validity---Attack at Karachi airport could only be termed as a terrorist attack but was rather part of a wider armed conflict within the state of Pakistan---Attackers were personnel of a proscribed organized group engaged in series of hostilities ranging from suicide bombings at public places to organized attacks on armed forces of Pakistan, defence installations and even religious places---As per official figures thousands of civilians and service men lost their lives--- Protection given to carriers in R.18(2) of Fourth Schedule to Carriage by Air Act, 2012, was applicable to undisputed facts---Term 'War' and 'Armed Conflict' as included in R.18(2) of Fourth Schedule to Carriage by Air Act, 2012, included Non-International Armed Conflict---Different facilities at Karachi airport including warehouses of defendants were destroyed as a result of intense fighting between terrorists and law enforcement officials, which was a result of Non-International Armed Conflict---Defendants were not liable to pay any amount or compensation as claimed by plaintiffs--- Benefit of R.18(2) of Fourth Schedule to Carriage by Air Act, 2012, relating to exclusion of liability was extendable even in Non-International Armed Conflict---Suit was adversely affected by R.18(2) of Fourth Schedule to Carriage by Air Act, 2012---Plaint was rejected, in circumstances.

Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC-841; Pan American World Airways Inc. v. The Aetna Casualty and Surety Co. and others United States Court of Appeals Oct. 15, 1974; International Committee of the Red Cross (ICRC) Opinion Paper, March 2008; A Report on the applicability of IHL to terrorism and counterterrorism; Chambers 28th Century Dictionary (New Edition 1983); Contracts of Carriage By Air [Second Edition by Malcolm Clarke] Lloyd's List Condon 2010; Black's Law Dictionary (Sixth Edition); Committee Final Report vis-à-vis The Hague Conference, 2010 on 'Use of Force'; Relevant pages from the Book 'Defining Armed Conflict' by Natasha Balendra; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Indian Airlines Ltd. v. Ashok Gupta and another (National Consumer Disputes Redressal); Messrs Kuwait Airways Corporation v. Messrs Union Surgical Company 1986 SCMR 890; New Zealand Insurance Co. Ltd., Chittagong v. M.A. Rouf and others PLD 1962 Dacca 31; Shahanshah Hussain v. Messrs Thai Airways International Limited 2000 MLD page-1454; East and West Steamship Co., George Town, Madras v. S.K. Ramalingam Chettiar AIR 1960 SC 1058; Pakistan International Airlines Corporation, Karachi v. Shaikh Muhammad Younus PLD 1976 Kar. 184; Case law from foreign jurisdiction - Juan Carlos Abella v. Argentina. Before Inter-American Commission on Human Rights; International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, How is the Term 'Armed Conflict' Defined in International Humanitarian Law; International Law (sixth edition) by Malcolm N. Shaw; Commentary on Montreal Convention, By Prof. Dr. Elmar Giemulla; The Hanover Fire Company v. Messrs Muralidhar Banechand PLD 1958 SC 138; Martin Dixon and Robert McCorquodale, Cases and Materials on International Law by Martin (Second Edition) Blackstone Press Limited, Pg. 274-275 ref.

Mazhar Imtiaz Lari for Plaintiffs.

Furkan Ali, Agha Zafar Ahmed, Adeel Abid for Defendants.

Dates of hearing: 23rd April, 15th, 20th, 28th May and 17th December, 2019.

| | | | | --- | --- | --- | | Law under discussion: | (1) | Carriage by Air Act, 2012 [CAR]. | | | (2) | The Anti-Terrorism Act, 1997 [ATA]. | | | (3) | The Code of Civil Procedure, 1908 [C.P.C.]. | | | (4) | Limitation Act, 1908 [Limitation Law]. | | | (5) | Transfer of Property Act, 1882. [Property Law]. |

Other Precedents, Books and Research material

i. Cases and Materials on International Law

by Martin Dixon and Robert Mccorquodale (Second Edition)

ii. The Manual of International Humanitarian Law

by Dieter Fleck.

iii. International Humanitarian Law

2021 C L C 877

[Sindh]

Before Yousuf Ali Sayeed, J

Syed KHALILUDDIN----Plaintiff

Versus

RAFIQ AHMED QANDHARI and 6 others----Defendants

Suit No.346 of 2019 along with Execution No.17 of 2019, decided on 23rd December, 2019.

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

----O.XXIII, R.3, O.VII, R.11 & S.47---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit to challenge compromise decree---Estoppel---Rejection of plaint---Questions to be determined by the Court executing decree was whether compromise decree was executable---Scope---Plaintiff assailed the validity of settlement agreement and compromise decree wherein he had accepted the genuineness and authenticity of the sale agreement and general power of attorney and that the possession of suit property was with the defendant---Defendant, on the other hand, sought execution of the compromise decree---Contention of plaintiff was that settlement agreement and compromise decree had been breached by the defendant---Validity---Plaintiff having accepted the sale agreement and power of attorney to be genuine could not resile from that stance and was estopped from asserting a position contrary to the terms of the compromise decree---Suit was barred by estoppel and the application for rejection of plaint was allowed---Objection raised by Office in respect of execution petition was overruled for the time being as the execution of a compromise decree was not barred per se.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268; Mst. Fareeda and another v. Mst. Khalida and 2 others 2019 CLC 1243 and Tariq Gul v. Zarar-ul-Yamin Khan 2019 CLC 566 distinguished.

Muhammad Sama Mondal v. Muhammad Ahmed Sheikh and others PLD 1963 Dacca 816; Sailendra Narayan v. State of Orissa AIR 1956 SC 346 and South American and Mexican Co. Ex parte Bank of England (1895) 1 Ch 37 rel.

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

----O.XXIII, R. 3---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit to challenge compromise decree---Estoppel---Scope---Compromise decree creates an estoppel by judgment---Judgment by consent is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case.

Sailendra Narayan v. State of Orissa AIR 1956 SC 346 ref.

Ali Tahir and Saleemuddin Patoli for Petitioner.

Mohammad Vawda for Defendant No.1.

2021 C L C 892

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

SUI SOUTHERN GAS COMPANY LIMITED----Appellant

Versus

DATA STEEL PIPE INDUSTRIES (PVT.) LIMITED and others----Respondents

High Court Appeal No.428 of 2018, decided on 30th September, 2020.

Contract Act (IX of 1872)---

----S.62---Novation of contract---Principles---Adjudication to determine whether there was novation of contract----Scope---When parties agreed to substitute a new contract in place of a pervious one, then performance of original contract was dispensed with, and Court had to examine the fact whether original agreement was validly rescinded, whether all rights and liabilities in the old contract were extinguished by such novation, and said questions were questions of fact depending on circumstances of each case.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Habib Ahmad v. Meezan Bank Limited and 5 others 2016 CLD 527; Haji Baz Muhammad Khan and another v. Noor Ali and another 2018 SCMR 1586; Zulqarnain and 2 others v. Surbuland Khan and another 2004 SCMR 1084; Dr. Khalid Kamal Khan v. Dr. Arshad Kamal Khan and another 1992 CLC 1887; Iftekhar Ahmed Lari v. Messrs Federal Chemical and Ceramics Corporation, 15th Floor, PNSC Building, Karachi through Secretary/Chairman and 2 others 1999 YLR 1094; Babib Ahmed v. Meezan Bank Limited and 5 others 2016 CLD 527; Nooruddin and others v. Mst. Amiran Bibi and others 1999 SCMR 2878 rel.

Sindbad Travels (Pvt.) Ltd., Lahore v. P.I.A. Corporation, Lahore 1990 MLD 2049 and Mrs. Tahira Sultana v. Saleem Rajput and another 2010 YLR 1883 distinguished.

Asim Iqbal for Appellant.

Taimur Ahmed Qureshi for Respondent No.1.

Nemo. for Respondent No.2.

2021 C L C 901

[Sindh]

Before Arshad Hussain Khan, J

REHANA AHSON and another----Plaintiffs

Versus

ZULFIQAR MOHAMMAD----Defendant

Suit No.941 of 2013 in C.M.A. No.1744 of 2019, decided on 11th February, 2020.

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

----Art.133---Suit for declaration and injunction---Cross-examination---Scope---Term 'adverse party' in Art.133, Qanun-e-Shahadat, 1984---Scope---One plaintiff sought permission to cross-examine the other plaintiff---Validity---Cross-examination was interrogation by advocate of one party to a witness called by his adversary with the object either to obtain admissions from such witness favourable to his cause or to discredit him---Right of cross-examination belonged to an adverse party, therefore, a party who did not hold that position should not be allowed to take part in the cross-examination---Co-plaintiff did not ask any relief against applicant nor had levelled any allegation against her---Applicant did not fall within the category of 'adverse party' and as such she had no right to cross-examine her co-plaintiff--- If applicant intended to bring on record any fact she could do so through her evidence as being defendant's witness, no matter if her name was not mentioned in the list of witnesses filed by defendant---Application was dismissed accordingly.

Haji Shaukat Hussain and 4 others v. Haji Muhammad Bakhsh and 13 others 2004 SCMR 948; Arbab Tasleem v. The State PLD 2010 SC 642; Muhammad Nazir Khan v. Muhammad Ameer 2012 CLD 649 and Law of Evidence by Sarkar [sixteen edition p.2351] ref.

Danish Nayyar for Plaintiff.

Rasheed Mughal for Plaintiff No.1(b).

Haseeb Jamali for Defendant.

2021 C L C 915

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

EXECUTIVE ENGINEER, HIGHWAYS DIVISION MORO and 4 others----Applicants

Versus

NAZEER AHMED and others----Respondents

Revision Application No.S-06 of 2000, decided on 27th August, 2020.

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

----Ss.97 & 115---Revision petition against preliminary decree---Maintainability---Limitation---"Case decided"---Scope---Petitioners / judgment-debtors did not prefer an appeal against the preliminary decree passed by the Appellate Court but, after five months when final decree was passed, they assailed both the decrees in revisional jurisdiction of the High Court---Contention of respondents/decree-holders was that assailing the preliminary decree in revisional jurisdiction was neither maintainable nor within time ---Held, that S.97 of the Civil Procedure Code, 1908 ,which precluded a party from disputing the correctness of a preliminary decree in an appeal from the final decree when no appeal was preferred from the preliminary decree, did not put the same restriction on a revision application---Revision under S.115 of the Civil Procedure Code, 1908, was against a "case decided", however, that was not to say that a revision application could never be filed against a preliminary decree before the passing of a final decree, inasmuch as the terms of a preliminary decree might be a "case decided" within the meaning of S.115 of the Civil Procedure Code, 1908----Question, in the present case, related the very jurisdiction of the subordinate Court to decide the case , such question remained open in a revision from the final decree even though no revision application had been preferred from the preliminary decree---Revision petition in the present case was, thus, within time period of limitation.

Anjum Chemical Storage (Pvt.) Ltd. v. Chenab Ltd. Nishatabad 2016 SCMR 177; Nestle Milkpak Ltd. v. Classic Needs Pakistan (Pvt.) Ltd. 2006 SCMR 21 and Hafeez Ahmed v. Civil Judge, Lahore PLD 2012 SC 400 ref.

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

----Ss.9, 11, 18 & 52---Land acquired by the Government---Suit for compensation filed before civil court---Jurisdiction of civil court---Scope---Contention of the petitioners (Highways Division) was that plaintiffs/respondents ,instead of filing a claim for compensation before the Land Acquisition Officer, had approached civil court which had no jurisdiction to entertain the claim---Held, that the notice, in the present case, for inviting claims for compensation, pursuant to S.9 of the Land Acquisition Act, 1894, was issued 8 years after the land (including subject-property) was occupied by the Government---Said delayed notice was issued about one year after the institution of suit by the plaintiffs/respondents, however, even after disclosure of pendency of compensation proceedings (under the Land Acquisition Act, 1894) in the written statement filed by the petitioners, the plaintiffs did not file a claim for compensation before the Collector pursuant to S.9 of the Land Acquisition Act, 1894 nor they moved under S.18 of the said Act, 1894 for making a reference against the award to the Court designated for the purpose---Acquisition proceedings remained unchallenged , therefore, the suit of the plaintiffs could not be said to be one envisaged under S.52 of the Land Acquisition Act, 1894, to question anything done in pursuance of the said Act---Decree passed by the Appellate Court was without jurisdiction---High Court set aside the judgment, the preliminary decree and final decree passed by the Appellate Court and restored the judgment and decree passed by the Civil Court dismissing the suit of the plaintiffs---Revision was allowed, in circumstances.

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

----S.18---Civil Procedure Code (V of 1908), S.9---Land acquired by the Government---Suit for compensation filed before the civil court---Plenary jurisdiction of civil court---Scope---Plaintiffs, in the present case, failed to invoke special jurisdiction of the designated Court under S.18 of Land Acquisition Act, 1894---Section 9 of Civil Procedure Code, 1908, contemplated an implied bar as to the general/plenary jurisdiction of the civil court to decide the plaintiffs' suit for compensation---Such implied bar could only be circumvented if the plaintiffs demonstrated that the case attracted one of the established exceptions to the ouster of the plenary jurisdiction of civil court, which was never asserted by the plaintiffs---Revision was allowed, in circumstances.

Ahmed Ali Shahani, Assistant Advocate General for Applicant.

Nemo. for Respondent.

2021 C L C 927

[Sindh]

Before Muhammad Junaid Ghaffar, J

KAINAAT DEVELOPMENT ASSOCIATION----Plaintiff

Versus

PROVINCE OF SINDH and others----Defendants

Suit No.1684 and C.M.A. No.13999 of 2019, decided on 19th December, 2019.

(a) Sindh Public Procurement Rules, 2004---

----R.5---Civil Procedure Code (V 0f 1908), O.XXXIX, Rr. 1& 2---Award of tender---Bidding documents---Minimum qualification---Temporary injunction---Scope---Procuring Agency (Provincial Government) invited (foreign funded) tender in respect of carrying out social mobilization to achieve Open Defecation Free (ODF) villages in bidding district---Plaintiff/petitioner (lowest bidder) sought restraining order contending that the tender was awarded to the respondent (NGO) on favoritism, which was violation of the Sindh Public Procurement Rules, 2004---Provincial Government (procuring agency) contended that guidelines of the World Bank would override terms and conditions of the Sindh Public Procurement Rules, 2004---Held, for the bidder to qualify the award of contract, relevant clause of Invitation of Bids required minimum average of Rs.10 million per annum annual volume of services, experience of having completed at least two nutrition or WASH (water sanitation and hygiene) projects and documented evidence of having undertaken social mobilization in the bidding district in the last five years---Evaluation by the competent authority showed that the petitioner did not qualify technically and had failed to meet the minimum requirements provided in the bidding documents--- Though plaintiff had referred to various documents to rebut/challenge the assertion of procuring agency, however, said documents requiring leading of evidence by the plaintiff, could not be considered at the injunctive stage---Project-in-question had been awarded much before filing of the suit---Plaintiff had failed to make out prima facie case , whereas balance of convenience also did not lie in its favour and no irreparable loss would be caused to it---High Court dismissed the application of the plaintiff seeking a restraining order against the respondent (successful bidder/NGO) qua commencement of any work/action in respect of awarded tender.

(b) Sindh Public Procurement Rules, 2004---

----R.5---Civil Procedure Code (V 0f 1908), O.XXXIX, Rr. 1& 2---Foreign funded project---Exception under R.5 of Sindh Public Procurement Rules, 2004---Scope---Project-in-question was funded by World Bank and there was exception under R.5 of the Sindh Public Procurement Rules, 2004---Said rules and its applicability in strict manner would be against the guidelines of the funding agency and would amount to jeopardizing the benefits of such funding ---Funds would ultimately be availed by the downtrodden and oppressed citizens of the country---Getting involved into the controversy at injunctive stage would be too technical---High Court dismissed the application of the plaintiff seeking restraining order against the respondent (successful bidder/NGO) qua commencement of any work/action in respect of awarded tender.

Basil Nabi Malik for Plaintiff.

Suneel Kumar Talreja, A.A.G., Farooq Ahmed Siddiqui, Projector Director and Ms. Fakia Rasheed, Procurement Specialist Saaf Suthro Sindh Program for Defendants Nos.1 and 2.

Shahid Iqbal Rana for Defendant No.3.

2021 C L C 937

[Sindh]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

Syed AHMED MAAZ and 3 others----Petitioners

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Health, Islamabad and 2 others----Respondents

Constitutional Petition No.D-6021 of 2020, decided on 3rd December, 2020.

Pakistan Medical Commission Act ( XXXIII of 2020 )---

----Ss. 8 &18---Medical and Dental Colleges Admission Test---Pakistan Medical Commission announced decision of conducting two Medical and Dental Colleges Admission Test (MDCAT) on two different dates---Petitioners (candidates/students) contended that the impugned decision (of conducting two subject tests, instead of single test) was discriminatory and ultra vires---Held, that S.18(1) of the Pakistan Medical Commission Act, 2020 empowered the Authority, established under the Act, to conduct a single admission test on annual basis on a date approved by the Council, constituted under the Act, as per the standards approved by the Board---Impugned decision had been announced after fulfilling all conditions precedent for conducting the subject tests, as envisaged under S.18(1) of the Act---Impugned decision announced by the Commission that both the subject tests, though would be conducted on different dates, but with the same structure and standard, ruled out the possibility of any discrimination, as averred by the petitioners---Section 18(1) of the Act, contained the words 'on a date' and ' a single admissions test' which did not mean that the same must be read conjunctively---'A single admission test' denoted a single attempt by every applicant as well as a centralized test across the country---Whereas ' on a date' meant the date approved by the Council---Applicants appearing in the subject tests, on both the given dates, would be allowed only one/single attempt; and both dates had been approved by the Council---Under S.8(2)(f) of the Act, the Council had the power to frame regulations for the conduct of admissions in medical and dental colleges and the examinations to be conducted by Commission---Approval accorded by the Council for conducting the subject tests on two dates could not be deemed to be illegal or ultra vires the Act, especially when every applicant would be allowed only a single attempt---Extraordinary and dangerous situation prevailing due to the Covid-19 pandemic , prima facie, had compelled the Council and Commission to announce separate dates for conducting the subject tests, in order to segregate the applicants into two groups---One group constituted the applicants who were not infected with the Covid-19 virus and the other group constituted the ones who had been tested positive or would have been positive up till the (second) date---Said reason/logic, of conducting separate tests, was not only genuine but was also in the best interest of all the concerned---Impugned decision also prevented the applicants from missing the subject test, which was mandatory for seeking admission, on account of being unwell, and had given them a chance to appear for the NMDCAT, thereby ensuring they were not academically disadvantaged or their studies were not delayed by one whole academic year---Any other reason would have been questionable , however, extra-ordinary measures were permissible in extra-ordinary circumstances, provided that such measures were not contrary to any law---Impugned announcement/decision had not infringed any fundamental right of any of the applicants, including the present petitioners and the same was not contrary to any provision of the Act and/or any other law---High Court directed the authorities to ensure that all the SOPs in relation with Covid-19 pandemic were strictly followed---Constitutional petition was dismissed, in circumstances.

Muhammad Jibran Nasir for Petitioners.

Muhammad Nishat Warsi, D.A.G for Respondents Nos.1 and 2.

Zeeshan Abdullah for Respondent No.3.

2021 C L C 958

[Sindh]

Before Muhammad Ali Mazhar and Amjad Ali Sahito, J

RIDA TAHIR----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Constitutional Petition No.D-1758 of 2021, heard on 1st April, 2021.

Prevention of Cruelty to Animals Act (XI of 1890)---

----S.3---Animal rights---Monkeys in a children's park kept in small cages without, water, food and ventilation facilities---Held, that the concerned official/Director Parks, appeared in court along with his counsel and submitted that the monkeys in question had already been shifted to a mini zoo where they would be looked after properly---High Court observed that the Director Parks had the job description to regularly visit the parks and to watch whether the animals kept in the mini zoo were being maintained properly or not and to take necessary measures---Constitutional petition was disposed of accordingly with the direction to the Director Parks to be vigilant and perform his duties continuously in his territorial jurisdiction.

Ali Tahir for Petitioner.

Ms. Saima Anjum for DMC East, Karachi.

Shehriyar Mehar, A.A.G.

Tauqeer Abbas, Director Parks, DMC (East), Karachi.

2021 C L C 976

[Sindh]

Before Salahuddin Panhwar, J

RIASAT KHAN----Petitioner

Versus

ARSHAD ALI BHUTTO and 2 others----Respondents

Constitutional Petition No.S-497 of 2019, decided on 25th August, 2020.

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

----Ss.13 & 18---Eviction petition---Change in ownership---Scope---Petitioner claimed that he was landlord by virtue of sale deed of demised premises; that there was default on the part of tenant and that the premises was required for personal bona fide need---Courts below declined the ejectment application while holding non-existence of relationship of landlord and tenant---Validity---Reading of S.18 of Sindh Rented Premises Ordinance, 1979, was sufficient to conclude that there was no bar on transfer of ownership of premises even without consent of the tenant which did not relax the legal obligation of the tenant to pay timely rent to the known owner/landlord---Obligation to ensure information of such change of ownership was only to inform the tenant that he had to make payment to new/changed owner---Relationship of landlord and tenant existed between the parties---Findings of courts below were set aside---Case was remanded to the Rent Controller with direction to decide the issue in the matter afresh while accepting the relationship of landlord and tenant---Constitutional petition was disposed of accordingly.

Muhammad Nisar v. Izhar Ahmed Sheikh and others PLD 2014 SC 347; Shezan Ltd. v. Abdul Ghafoor and others 1992 SCMR 2400 and Hameed and 3 others v. Jitendra and 2 others 2010 CLC 561 rel.

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

----S.18---Change in ownership---Scope---Right to make a legal and lawful transfer cannot be an excuse to get a tenant declared defaulter by keeping such transfer of ownership under dark.

Shezan Ltd. v. Abdul Ghafoor and others 1992 SCMR 2400 and Hameed and 3 others v. Jitendra and 2 others 2010 CLC 561 rel.

Javed Ahmed Abbasi for Petitioner.

Altaf Ahmed Shaikh for Respondent No.1.

2021 C L C 996

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

BISMILLAH METAL IMPEX (PVT.) LIMITED through Director----Petitioner

Versus

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

C.P. D-7061 of 2017, decided on 17th February, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Contractual dues, recovery of---Scope---Petitioner sought recovery of its contractual dues from government department through invocation of constitutional jurisdiction of High Court---Contention of petitioner was that he could not be non-suited on the ground of forum non conveniens as technicalities must not come in the way of substantial justice---Validity---Petitioner was unable to proffer any justification as to why the forum of appropriate jurisdiction was not approached for the redressal of its grievance---Alternate remedy was clearly available to the petitioner and in such context resort to Art.199 of the Constitution was misconceived---Disputed question of fact and/or contractual matters were not generally amenable for determination in the exercise of constitutional jurisdiction---Petitioner might have prima facie demonstrated the existence of a commercial claim before the court, however, such a claim did not become actionable before the constitutional jurisdiction of High Court---Constitutional petition, being not maintainable, was dismissed.

2005 MLD 233 and PLD 2001 SC 116 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Questions of fact---Contractual matters---Scope---Disputed question of fact and/or contractual matters are not generally amenable for determination in the exercise of constitutional jurisdiction.

2015 PLC 45; 2015 CLD 1257; PLD 2011 SC 44 and PLD 2007 SC 642 ref.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Contractual controversies---Scope---Contractual controversies are not amenable to resolution before the constitutional jurisdiction of the High Courts.

Province of Sindh v. Abdul Sattar Arbani C.P. 654-K of 2018 ref.

Haseeb Jamali and Muneer Khan for Petitioners.

Kafeel Ahmed Abbasi, Deputy Attorney General and Ghulam Mohiuddin, Assistant Attorney General for Respondents.

Fasih-uz-Zaman for Respondents Nos.2 to 4.

2021 C L C 1021

[Sindh]

Before Muhammad Faisal Kamal Alam, J

PAKISTAN BATTERY MFG CO. (PVT.) LTD.and others----Plaintiffs

Versus

MUHAMMAD FAHAD FAROOQUI and others---Defendants

Suit Nos.1142 of 2003 and 1318 of 2007, decided on 9th March, 2018.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of Memorandum of Understanding---Execution of Memorandum of Understanding---Consideration amount, receiving of---Payment of rent---Plaintiffs sought specific performance of Memorandum of Understanding whereby defendants were to sell suit property to plaintiffs---Validity---Defendants had withdrawn entire sale consideration deposited by plaintiffs vide a consent order---For almost a decade, defendants were enjoying that amount to their advantage--- Plaintiffs had paid rentals to defendants, therefore, plaintiffs were not entitled to pay monthly rent to defendants as tenants--- Defendant entering into Memorandum of Understanding was not nominee of other defendant rather he himself was licensee and was authorized to enter into Memorandum of Understanding which was executable under the law--- Suit was decreed in circumstances.

Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Muhammad Azim v. Pakistan Employees Co-operative Housing Society Ltd. Karachi and others PLD 1985 Kar. 481; Verral v. Great Yarmouth Borough Council [1980] 1 AII ER 839; Bolan Beverages (Pvt.) Limited v. Pepsico. Inc. and others PLD 2004 SC 860; Pakarab Fertilizers Limited v. Dawood Hercules Corporation Limited and others PLD 2015 Sindh 142 and Justice Hasnat Ahmed Khan and others v. Federation of Pakistan/State PLD 2011 SC 680 ref.

Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345 rel.

Zubair Ahmed for Plaintiff.

Munawar Malik for Defendants Nos.1 and 3.

Iqbal Khurram along with S. Ayaz Hussain Farooqui for Defendant No.2.

Dates of hearing: 29th January and 20th February, 2018.

Case-law relied upon by Plaintiff's Counsel

1. PLD 1964 Supreme Court page-106

[Abdullah Bhai and others v. Ahmad Din]

1. PLD 1985 Karachi page-481

[Muhammad Azim v. Pakistan Employees Co-operative Housing Society Ltd. Karachi and others]

1. [1980] 1 AII ER 839

[Verral v. Great Yarmouth Borough Council]

1. 2012 SCMR page-345

[Muhammad Anwar v. Muhammad Aslam and others]

1. PLD 2004 Supreme Court page-860

[Bolan Beverages (Pvt.) Limited v. Pepsico. Inc. and others]

1. PLD 2015 Sindh page-142

[Pakarab Fertilizers Limited v. Dawood Hercules Corporation Limited and others]

1. PLD 2011 Supreme Court page-680

[Justice Hasnat Ahmed Khan and others v. Federation of Pakistan/State]

Case law relied upon by Defendants' counsel

| | | | | --- | --- | --- | | Law under discussion: | 1. | Contract Act, 1872. | | | 2. | Specific Relief Act, 1877 ("SRA") | | | 3. | Qanun-e-Shahadat Order, 1984 (Evidence Law) | | | 4. | Civil Procedure Code, 1908 ("CPC") |

2021 C L C 1047

[Sindh]

Before Yousuf Ali Sayyed, J

Syed FARRUKH MATEEN----Plaintiff

Versus

PROVINCE OF SINDH through Senior Member and others----Defendants

Suuit No.1608 of 2014, heard on 19th November, 2019.

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

----S.10---Government Lands (Cancellation of Allotments, Conversions and Exchange) Ordinance, 2000 (III of 2001), S.4---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Statements of conditions of tenancies---Regularization of allotments, conversions and exchanges---Temporary injunction, grant of---Scope---Plaintiff was allotted the suit land which was then subjected to proceedings under the Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 (the Ordinance) whereby, following payment of an amount assessed by the Government Lands Committee, the allotment of the suit land was regularized---Secretary, Land Utilization, through impugned memorandum cancelled the allotment on the ground that plaintiff had previously failed to deposit the occupancy price, therefore, under S.10 of the Colonization of Government Lands Act, 1912, the allotment had automatically been cancelled---Validity---Non-payment of the occupancy price was known to the Government Lands Committee during the course of proceedings under the Ordinance---Suit land was regularized through determination of malkano at highest market value---Plaintiff had been in longstanding possession of the suit land, the balance of convenience was in favour of continuation of the injunctive relief already extended until final determination of the suit, as irreparable loss would most likely be otherwise caused by the resumption and resultant divestiture of the suit land in the intervening period---Operation of the impugned memorandum was suspended and the parties were directed to maintain status quo in respect of the suit land until final determination of the suit.

Rafiq Ahmed Kalwar for Plaintiff.

Jan Muhammad Khuhro, Assistant Advocate General for Defendant No.1.

G.N. Qureshi for Defendant No.2.

2021 C L C 1075

[Sindh]

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

PAKISTAN REINSURANCE COMPANY LIMITED----Petitioner

Versus

WAFAQI MOHTASIB (OMBUDSMAN) and 4 others----Respondents

Constitutional Petition No.D-1779 of 2020, decided on 16th January, 2021.

Establishment of Office of WafaqiMohtasib (Ombudsman) Order (I of 1983)---

----Arts.11 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Implementation of recommendation by Ombudsman---Petitioner sought implementation of undertaking given by respondents before Wafaqi Mohtasib---Validity---Implementation was only with regard to undertaking on the basis of which case was closed by Ombudsman---Petitioner as per the undertaking could submit compliance report to respondent with the decision of competent authority as per rules---High Court declined to interfere in letters in question---Constitutional petition was dismissed accordingly.

Federation of Pakistan v. Brig. (R) Zulfiqar Ahmad Khan 2007 SCMR 1313 and Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad PLD 2016 SC 940 ref.

Fayyaz Ali Metlo for Petitioner.

Hussain Bohra, Assistant Attorney General.

Respondent No.5 Zahida Parveen present in person.

2021 C L C 1102

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

ALI GOHAR and another----Petitioners

Versus

ABDULLLAH MALLAH and 5 others----Respondents

Constitutional Petition No.D-298 of 2020, decided on 18th August, 2020.

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

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.12, 39, 42 & 54---Suit for specific performance of contract, cancellation, declaration and permanent injunction---Rejection of plaint---Scope---Petitioners assailed the dismissal of their application under O.VII, R.11, C.P.C.---Respondent had filed suit for specific performance of contract, cancellation, declaration and permanent injunction with the assertion that he had obtained loan from one of the petitioners and had transferred ownership of a shop in favour of that petitioner as surety but when he attempted to return the loan amount, the petitioner refused to receive the same compelling him to institute the suit---Contention of petitioners was that the plaint did not disclose any cause of action and that the plaint was liable to be rejected on the ground that averments in the plaint were not sufficient to prove the facts stated therein---Validity---Perusal of plaint revealed that it disclosed a cause of action and none of the conditions required to be fulfilled under O.VII, R.11, C.P.C., having been satisfied, the Trial Court was fully justified in rejecting the application filed by the petitioners---Constitutional petition was dismissed.

Haji Abdul Karim and others v. Messrs Florida Builders (Private) Limited PLD 2012 SC 247 ref.

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

----O.VII, R.11---Rejection of plaint---Scope---Order VII, R.11, C.P.C., is mandatory in nature as the word "shall" has been used; meaning thereby that a court is bound to reject a plaint if it appears from the statement in the plaint to be barred by any law.

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

----O.VII, R.11---Rejection of plaint---Scope---Court must examine the statement in the plaint prior to taking a decision; however the contents of written statement are not to be examined in order to determine whether the averments of the plaint are correct or incorrect---Court is not obliged to decide whether the plaint is right or the written statement is right---Court under O.VII, R.11, C.P.C., has to see whether the plaint appears to be barred by any law or otherwise, therefore, if an averment contained in the plaint is to be rejected, perhaps on the basis of documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, said exercise has to be carried out not on the basis of denials contained in the written statement, which are not relevant.

Haji Abdul Karim and others v. Messrs Florida Builders (Private) Limited PLD 2012 SC 247 ref.

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

----O.VII, R.11---Rejection of plaint---Scope---If the main or primary cause of action is not barred, and it is only a secondary cause of action which is barred, the plaint cannot be rejected in respect of that part which relates to primary cause of action---Plaint cannot be rejected in piecemeal.

Muhammad Arshad S. Pathan for Petitioners.

Allah Bachayo Soomro Additional Advocate Sindh for Respondent.

2021 C L C 1121

[Sindh]

Before Zafar Ahmed Rajput, J

BATUL HUSSAIN DHARAMSEY----Petitioner

Versus

HUSSAIN DHARAMASEY----Respondent

S.M.A. No.398 of 2020, decided on 24th December, 2020.

(a) Power of attorney---

----Meaning and concept---Power of attorney was an instrument in writing whereby one person, as principal, appointed another as his agent and conferred authority for performance of certain specified acts or kinds of act on behalf of such principal ----Power of attorney was therefore a delegation of authority in writing by which one person was empowered to do an act in name of the other and, such person who acted on behalf of another person (the principal), by his authority, was called an agent, and relation between such agent and principal was called "agency".

Black's Law Dictionary, Sixth Edition p. 1171 rel.

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

----Ss.278 & 298---Contract Act (IX of 1872) S.202---Transfer of Property Act, (IV of 1882), Ss.54, 53-A & 5---Letter of Administration in respect of immoveable property, grant or refusal of---Title of immoveable property---Claim of title of immoveable property on basis of General Irrevocable Power of attorney---Scope---Applicant sought letter of administration under S.278 of Succession Act, 1925 in respect of immovable property, on ground that said property was purchased by deceased predecessor of applicant, via irrevocable power of attorney---Validity---Transfer of immoveable property could only be made by a deed of conveyance, duly stamped and registered and in absence thereof, no right, title or interest of immoveable property could be transferred in favour of vendor --- Any contract of sale which was not a registered deed of conveyance, would fall short of requirements of S.54 of Transfer of Property Act, 1882 and would not confer any title nor transfer any interest in an immoveable property---Power of attorney was not an instrument of transfer under any law in regard to right, title or interest in an immoveable property and even an irrevocable general power of attorney coupled with interest did not have affect to transferring title to agent, and thus such document could not be deemed to be a document of ownership; and was merely a document of convenience---Where adjudication was required for determining title of property, Court could exercise discretion under S.298 of Succession Act, 1925 and refuse to grant of letter of administration and relegate applicant to seek remedy under ordinary civil suit---Application was dismissed, in circumstances.

Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555; Muhammad Tahir Nadeem v. Syed Qasim Ali Zaidi Zafar and others 2012 MLD 931; Muhammad Aslam and others v. Absar Fatima and others 2011 CLC 1521 and Nazir Ahmed and others v. Suleman and others 2000 YLR 527 ref.

Nadir Khan Burdi for Petitioner.

2021 C L C 1153

[Sindh]

Before Salahuddin Panhwar, J

ABID IQBAL ANSARI----Appellant

Versus

Mirza NASEERUDDIN----Respondent

F.R.A. No.9 and C.M.A. No.1559 of 2019, decided on 10th September, 2020.

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

----S.17---Eviction of the tenant---Previous decree on the basis of compromise between the tenant and landlord---Effect---Previously, Civil Court passed a compromise decree, inter alia , enforcing the tenant to vacate the rented premises on the date given in the undertaking---Tenant failed to vacate the rented premises on stipulated time as per his undertaking---Appellant /tenant contended that after the promulgation of Cantonment Rent Restriction Act, 1963 ('the Act 1963'), tenant could be evicted on the basis of decree---Held that S.17(1) of the Act, 1963, stipulated that, after the commencement of the Act, 1963, tenant would be evicted from the demised property in execution of a decree; meaning thereby that the tenant's ejecment would not be a result of execution of a decree---Tenant's ejecment could only be effected in accordance with S.17 of the Act, 1963---Ejectment order, in the present case, had been passed by the Additional Controller of Rents, which was not an Executing Court, so contention raised by the appellant had no substance---No illegality or infirmity was found in the impugned judgment passed by the Additional Controller of Rents, ordering eviction of the appellant/tenant---Appeal was dismissed, in circumstances.

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

----Ss. 17 & 27---Eviction of tenant---Default in payment of monthly rent---Rent Controller, jurisdiction of---Enquiry by the Court---Scope---Additional Controller of Rents passed ejectment order without recording evidence---Appellant /tenant contended that leading of evidence was required to ascertain default on his part---Held, that the satisfaction of the Additional Controller of Rents was the only requirement under S.17(2) of the Act, 1963, for passing an order of ejectment against the tenant---Tenant had failed/defaulted in paying of monthly rent---Provision of S.27 of the Act, 1963, though required an 'enquiry' to be held before passing such order, however, the same would be required only where things were disputed ---Procedural requirement could not be insisted when things to be determined through such 'enquiry/procedure' were not disputed---Record revealed that tenant had made only two payments in couple of years---Appeal being continuation of trial all such questions could be agitated and examined by the High/Appellate Court, as evident from S.27(2) of the Act, 1963, that both, the Controller as well as the Appellate Court , were empowered to hold enquiry---Appellant neither denied default nor challenged the authenticity of the proceedings of MRC nor even disputed/denied the compromise between the parties, hence he could not take exception to his liabilities at least towards the payment of the rent in due time---Appellant continued his possession even after about four years of the time to vacate, as per his undertaking under the compromise---Appellant even had option to deposit rent before the Controller---No substance was found in the plea taken by the appellant that for establishing default a trial was required and that the Rent Controller was not justified in satisfying himself with referral to admitted facts alone---No illegality or infirmity was found in the impugned judgment passed by the Additional Controller of Rents ordering eviction of the appellant/tenant---Appeal was dismissed, in circumstances.

Messrs Uzma Construction Co. v. Navid H. Malik 2015 SCMR 642. ref.

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

----S.17---Eviction of tenant---Default in payment of monthly rent---Technicalities in proceedings---Scope---Held, that appellant/tenant had not denied his failure in timely payment of the rent, hence it would not be fair to allow him to continue taking advantage of technicalities including proper service, particularly when he had no prima facie and reasonable explanation for undeniable default in paying rent in time---Requirement of a notice and providing an opportunity of hearing could be dispensed with in certain types of cases where such requirement would cause 'more injustice than justice'---Appellant/tenant could not be allowed to take advantage of his own failure in the name of procedural requirement, when he otherwise had no explanation to make the default---No illegality or infirmity was found in the impugned judgment passed by the Additional Controller of Rents, ordering eviction of the appellant/tenant---Appeal was dismissed, in circumstances.

2015 SCMR 338 ref.

Muhammad Aziz Khan for Appellant.

Qazi Umair Ali for Respondent assisted by Salahuddin Ahmed.

2021 C L C 1174

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

GHAZI HAMMADULLAH----Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, KHAIRPUR and others----Respondents

Constitution Petition No.D-1994 of 2016, decided on 17th November, 2020.

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

----S.54---Accession treaty---State property---Registered sale deed prior to creation of Pakistan---Petitioner claimed that previous ruler of State of Khairpur used his influence to get the house in dispute vacated from predecessor-in-interest of petitioner---Authorities denied such allegation as after accession treaty all properties belonging to the State had become property of Government of Pakistan---Validity---Registered sale deed was there but the same lost its legitimacy under new landscape after creation of Pakistan due to declaration by Government of Pakistan acknowledging property in question as personal property of respondent, particularly when it never materialized through mutation or transfer despite lapse of decades after its alleged registration---In the present case, there were only words of petitioner that his family was dispossessed on specific date---Authorities denied such allegations while previous Ruler of the State also denied such allegations and contended that under some negotiations and assurance, predecessor-in-interest of petitioner vacated house in question but later on he tried to grab more financial benefits instead of earlier agreement between the parties---Such allegations and counter allegations conveyed factual controversy which could not be decided under Constitutional jurisdiction--- Petitioner did not seek restoration of possession or his family--- Constitutional petition was dismissed, in circumstances.

Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manager and another 2007 SCMR 1240 and Muhammad Aslam v. Station House Officer and others 1993 MLD 152 ref.

Tariq G. Hanif Mangi for Petitioner.

Abdul Rehman Farooq Peerzada for Respondent No.4.

Zulfiqar Ali Naich, Asst. Advocate General Sindh.

2021 C L C 1184

[Sindh]

Before Omar Sial, J

ARY COMMUNICATION LTD. through Authorized Officer----Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Information and Broadcasting and 2 others----Respondents

M.A. No.45 of 2020, decided on 11th November, 2020.

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

----Ss.27 & 30A---Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010, R.8---Prohibition of broadcast media or distribution service operation---Show-cause notice, issuance of---Pre-condition---Council of Complaints---Absence of recommendation---Effect---Petitioner company was running a broadcasting television channel and was aggrieved of show cause notice issued by Pakistan Electronic Media Regulatory Authority prohibiting broadcast of television drama namely "Jalan" and directed to off the air the same---Validity---Council of Complaints was empowered to receive and review complaints made by persons or organizations from general public against any aspects of programs broadcast or distributed by a station---Council was to then make its recommendations to Pakistan Electronic Media Regulatory Authority---Legislature was aware that freedom of expression was a fundamental right given by Constitution and all legislation was subordinate to it---Such was the reason that safeguarded against any arbitrary action and the same was built into the legislation---Authority was empowered to take action against a licensee, however a two tier process was prescribed to ensure that an opinion (on complaints) from a diverse range of people was sought before action was taken---If not elimination, such diverse opinion would ensure mitigation of personal bias of an individual in a decision making process--- High Court set aside the notice issued by Pakistan Electronic Media Regulatory Authority as due process of law was not complied with in its issuance---Appeal was allowed, in circumstances.

Labaik (Pvt.) Limited v. PEMRA 2018 YLR 2350 and Labaik (Pvt.) Limited v. PEMRA PLD 2020 Isl. 343 rel.

Abid Shahid Zuberi, Ayan Mustafa, Ms. Shahreen Chughtai, Munir Khan and Muhammad Asif Ansari for Appellants.

Kashif Hanif for Respondents.

2021 C L C 1193

[Sindh]

Before Salahuddin Panhwar, J

Chaudhry MUHAMMAD YOUNUS and another----Petitioners

Versus

MAQSOOD ALAM and another----Respondent

Constitutional Petition No.S-974 and C.M.A. No.4339 of 2019, decided on 12th March, 2020.

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

----S.13---Eviction petition---Scope---Petitioners assailed order passed by courts below whereby they were directed to hand over the possession of the shops to the management of the Mosque---Contention of petitioners was that they had got constructed the shops being part of the management of the Mosque and had later on dis-associated themselves from the management---Validity---Affairs of the Mosque were to run through management, which included right to rent out its shop(s) as well possession thereof---Petitioner had remained a tenant---No ground existed for disturbing findings of lower rent authorities, including that of Appellate Court which was final authority---Petition was dismissed and the petitioners were directed to hand over possession of the shops to the management.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Certiorari, writ of---Scope---Writ of certiorari has limited scope and the High Court has only to examine the judgments of the courts below while keeping in view whether the same are a result of misreading or non-reading of evidence or otherwise---If the answer is, prima facie, yes, only then findings can be disturbed; mere possibility of another conclusion is no ground for disturbing findings of lower courts.

Fayyaz Ahmed for Petitioners.

Khalique Dad Khan, Treasurer, Zeenat-ul-Islam Trust for Respondent.

2021 C L C 1222

[Sindh]

Before Shamsuddin Abbasi and Adnan Iqbal Chaudhry, JJ

MUHAMMAD HASEEB FATANI----Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 2 others----Respondent

Constitutional Petition No.D-6339 of 2018, decided on 24th December, 2020.

Per Shamsuddin Abbasi, J.

(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----Ss.2 &3---Exit from Pakistan (Control) Rules, 2010, R.2 (e)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20---Constitution of Pakistan, Art.199---Constitutional petition---Exit Control List---Wilful defaulter---Absconder from law---Petitioner was willful defaulter of different financial institutions against whom decrees were passed by Banking Courts and he had also been declared as Proclaimed Offender---Petitioner sought removal of his name from Exit Control List---Validity---Held, there was every likelihood that petitioner would leave the country, if his name was ordered to be removed from Exit Control List, just to save his skin from clutches of law---Fugitive from law and Courts loses some of the normal rights granted by procedural as also substantive law---Petitioner neither joined legal proceedings nor made appearance before relevant Courts and proceedings as provided under Ss.87 & 88, Cr.P.C. had already been initiated declaring him as proclaimed offender---Judicial discretion could not be exercised in favour of a person who was fugitive from law---Abscondence of petitioner disentitled him to ask for any relief which was discretionary---Constitutional petition was dismissed, in circumstances.

Slackness in the Progress of Pending Enquiries relating to Fake Bank Accounts and others 2019 SCMR 332; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 SCMR 856; Messrs Zurash Industries (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2011 Kar. 385; Muhammad Sadiq v. Federation of Pakistan and others PLD 2016 Sindh 263; Hassan Raza v. Federation of Pakistan 2012 CLD 92; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mrs.Humaira Khurram Khan v Secretary Ministry of Interior and others 2016 PCr.LJ 1226; S. Akbar Ali Shah v. Federation of Islamic Republic of Pakistan 2011 MLD 1536 and Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 ref.

Per Adnan Iqbal Chaudhry, J [agreeing with Shamsuddin Abbasi, J

(b) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----Ss.2 & 3---Exit from Pakistan (Control) Rules, 2010, R.2(e)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20---Criminal Procedure Code (V of 1898), Ss.87 & 88---Constitution of Pakistan, Art. 199---Constitutional petition---Exit Control List---Wilful defaulter---Absconder from law---Petitioner was willful defaulter of different financial institutions against whom decrees were passed by Banking Courts and he had also been declared as proclaimed offender--- Petitioner sought removal of his names from Exit Control List---Validity---Petitioner did not appear before Banking Courts to face criminal complaints against him under S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001, and was a Proclaimed Offender---High Court declined to come to aid of a person who was a fugitive from law--- High Court directed the petitioner to first surrender before Trial Courts and if those Courts decided to exempt his personal appearance, the petitioner would exhaust remedy of review provided by section 3 of Exit from Pakistan (Control) Ordinance, 1981---Constitutional petition was dismissed, in circumstances.

Chan Shah v. The Crown PLD 1956 FC 43 and Hayat Bakhsh v. The State PLD 1981 SC 265 rel.

Khawaja Shams-ul-Islam and Khawaja Saif-ul-Islam for Petitioners.

Mukesh Kumar Khatri, D.A.G. for Respondents.

Hamid Idrees for Summit Bank Ltd.

Ijaz Hussain Shirazi for Bank Islami Ltd.

Rajendar Kumar for Muslim Commercial Bank Ltd.

2021 C L C 1236

[Sindh]

Before Zafar Ahmed Rajput, J

NARYANA KEVALRAM SHAHANI through L.R.----Plaintiff

Versus

SHYAM PREM SHAHANI and 4 others----Defendants

Suit No.875 of 2005, decided on 19th August, 2020.

(a) Sindh Trusts Act (XXIX of 2020)---

----Ss.91 & 93---Appointment of new trustees on death---Criteria or method for selecting new trustees---Scope---Applicant moved application under O.I, R.10, C.P.C., sought his addition in the suit as co-plaintiff after death of the plaintiff---Suit for declaration and permanent injunction was filed by the applicant's adoptive father claiming to be sole trustee of the Trust created by his grandfather---Perusal of the instrument of Trust which provided the expression "generation to generation" left no doubt in a prudent mind that the author of the Trust intended to provide a scheme of his biological heritable successive Trustees to the administration of his Trust---Applicant was admittedly not the issue from the generation of the author of the Trust, who had conferred Trusteeship on his natural descendants---Such fact was perhaps within the knowledge of the deceased plaintiff who had clearly pleaded that he did not have a son of his own nor intended to introduce one from outside into the private trust established by his grandfather out of properties and assets of his forefather---Applicant was a stranger to the Trust, which was the subject matter of the suit---Application was dismissed.

K. Manathunainatha Desikar v. Sundaralingam and others AIR 1971 Madras (sic) rel.

(b) Hindu law---

----Adopted son---Scope---Adoption has the effect of transferring the adopted son from his biological family into the adoptive family, it confers upon the adopted son the same rights and privileges in the family of the adopter as a legitimate biological son would have had---After the adoption, adopted son lost all the rights of a son in his biological family including right of claiming any share in the estate of his biological father or relations, or any share in the coparcenary property---Only cases in which the adopted son is not entitled to the full rights of a biological son in the adoptive family are; (i) if a son is born to the adoptive father after the adoption; and (ii) if a boy is adopted by a disqualified heir---Further, subject to no son having been born to the adoptive father after the adoption, an adopted son is entitled to inherit in the adoptive family as fully as if he were a biological son, both in the paternal and in the maternal line---Similarly the adoptive father and his relation are entitled to inherit from adopted son, as if he were a son born in the adoptive family, hence, it can be inferred that for all intents and purposes, the adopted son would have status as a biological son in the family into which he is adopted and he would be considered as a descendant of the family.

Mulla's Hindu Law Eighteenth Edition (2001) Chapter XXIII ref.

(c) Words and phrases---

----"Generation"---Defined.

Black's Law Dictionary; Words and Phrases, Volume 18 and Corpus Juris Secundum, Volume 38 rel.

Syed Khalid Shah for Plaintiffs.

Shahid Ali Ansari for Defendants Nos.1 to 3.

Ms. Bina Navani (Neena Bina Shahani) ex parte for Defendant No.4.

Aziz-ur-Rehman Akhund for Applicant.

2021 C L C 1277

[Sindh]

Before Nadeem Akhtar, J

ABDUL MAJEED SOHAIL----Petitioner

Versus

MUHAMMAD MAHBOOB-UZ-ZAMAN KHAN and 2 others----Respondents

Constitutional Petitions Nos.S-2465 and S-2466 of 2017, decided on 5th March, 2019.

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

----S.15---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Ex-parte order, setting aside of---Application under S.12(2), C.P.C.---Maintainability---Petitioner-tenant assailed ex-parte eviction order passed against him due to default in monthly rent and bona fide personal need--- Application under S.12(2), C.P.C. filed by petitioner-tenant for setting aside ex-parte order was dismissed by Rent Controller as well as by Lower Appellate Court---Validity---Mere allegation not supported by any material did not warrant inquiry or investigation in each case---In absence of specific allegations with dates and other relevant particulars, application under S.12(2), C.P.C. was not maintainable---Application filed by petitioner-tenant under S.12(2), C.P.C., was incompetent and was rightly dismissed by Rent Controller as well as by Lower Appellate Court---Constitutional petition was dismissed, in circumstances.

Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation, 2002 CLC 166 and Messrs Dadabhoy Cement Industries Limited and 6 others v. Messrs National Development Finance Corporation, Karachi PLD 2002 SC 500 rel.

Abdul Abid for Petitioner.

Babar Ali Shaikh for Respondent No.1.

IInd Additional District Judge Karachi Central for Respondent No.2.

IInd Senior Civil Judge and Rent Controller Karachi Central for Respondent No.3.

2021 C L C 1296

[Sindh]

Before Nadeem Akhtar, J

ARTISTIC DENIM MILLS LIMITED through Chief Executive----Petitioner

Versus

FATANI IMPEX (PVT.) LIMITED----Respondent

Suit No.1577 of 2010, decided on 2nd August, 2014.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.1---Suit for recovery of amount---Admission of liability on part of defendant---Plaintiff filed suit for recovery of certain amount claiming therein that the defendant purchased fabric worth millions of rupees on credit but had failed to pay for the same---Validity---Defendant in a letter had categorically admitted that it had not been able to pay the outstanding amount to the plaintiff due to decline in its business and had promised to resume the payment of outstanding dues till the full and final satisfaction of its entire liability---Defendant, in another letter addressed to the plaintiff, had disputed the amount claimed by the plaintiff but had promised to pay the outstanding dues---Defendant's counsel in response to the plaintiff's legal notice had stated that the total outstanding amount due against the plaintiff was much less than the amount mentioned in the legal notice---No specific amount was mentioned in the said reply which was outstanding according to the defendant---Such claim amounted to an admission of liability on the part of the defendant---Evidence produced by the plaintiff had remained unchallenged and un-rebutted---Plaintiff had successfully discharged its burden and has succeeded in proving its claim---Suit was decreed as prayed for.

Monawwer Ghani for Plaintiff.

Defendant (Called absent).

2021 C L C 1345

[Sindh]

Before Nadeem Akhtar and Mrs. Kausar Sultana Hussain, JJ

ZAHEEN COOPERATIVE HOUSING SOCIETY LIMITED through Joint Secretary----Appellant

Versus

PROVINCE OF SINDH through Secretary, Cooperative Department and 4 others----Respondents

High Court Appeal No.280 of 2018, decided on 14th November, 2018.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXVI, R. 1---Local Commission, appointment of---Principle---Commission was appointed on application of respondent-defendant, without notice to appellant-plaintiff to ascertain availability / existence of record etc.---Validity---Specific allegations were made by respondent-defendant that original and genuine record of appellant-plaintiff Society was concealed despite repeated directives of statutory authorities and the same was not available in office and record was either removed or tampered with---Such was not simple application for inspection or preparation of inventory---Appellant-plaintiff was to be granted reasonable and fair opportunity to defend such allegations--- Applications for inspection were often allowed without notice to other side but where allegations made in application for inspection were of such nature that they related directly to merits or demerits of case or could affect case of either parties, 'due process' as guaranteed by Art.10-A of the Constitution should be followed by granting fair opportunity to opposite party to defend such allegations--- High Court set aside order regarding appointment of Commission--- Intra Court Appeal was allowed accordingly.

Syed Ali Gohar Shah v. Province of Sindh and others 2004 CLC 1875 rel.

Muhammad Najeeb Jamali for Appellant.

Syed Aal-e-Maqbool Rizvi, AAG Sindh for Respondent No.1.

Munir-ur-Rehman for Respondent No.5.

2021 C L C 1361

[Sindh]

Before Nadeem Akhtar, J

SUZUKI MOTORCYCLES PAKISTAN LIMITED----Plaintiff

Versus

MALIK QAISER ZAMAN and 2 others----Defendants

Suit No.1262 of 2000, decided on 25th February, 2013.\

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.1---Suit for recovery of amount---Dealership agreement---Breach of terms and conditions of agreement---Plaintiff filed suit claiming that it was manufacturer of motorcycles, their parts and accessories, which were sold through the authorized dealers appointed in that behalf by the plaintiff; that the products were supplied by the plaintiff to its authorized dealers on credit, who after selling the same paid the sale proceeds thereof to the plaintiff after deducting their commission at the agreed rate; that the defendants being its authorized dealers; did not pay the sale proceeds of the motorcycles to the plaintiff, as such they were liable to pay the same---Validity---Defendants were the authorized dealers of the plaintiff and were bound by the terms and conditions of the Dealership Agreement---Defendants had committed default in making payments of their outstanding liabilities towards the plaintiff---Motorcycles were delivered by the plaintiff and the defendants had confirmed their delivery in running and perfect condition---Plaintiff had specifically denied the allegations made by the defendants through a letter and had reiterated its claim of the outstanding amount against the defendants---Defendants had not responded to the said letter and in absence of any denial of the contents of the said letter by the defendants, the presumption was that they had admitted the contents thereof---No evidence was produced by the defendants in rebuttal of the evidence produced by the plaintiff---Entire evidence produced by the plaintiff had remained unchallenged and un-rebutted---Suit was decreed as prayed for.

Aimal Kasi for Plaintiff.

Nemo. for Defendants (called absent).

2021 C L C 1385

[Sindh (Hyderabad Bench)]

Before Mrs. Rashida Asad, J

HOT----Applicant

Versus

Malik ALLAHYAR KHAN and 5 others----Respondents

Civil Revision Application No.244 of 2014, decided on 11th November, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Colonization of Government Lands Act (IV of 1912), S.36---Sindh Revenue Jurisdiction Act (X of 1876), S.11---Sindh Land Revenue Act (XVII of 1967), S.172---Rejection of plaint---Suit for declaration and injunction---Bar of jurisdiction--- Respondent-plaintiff filed suit for declaration and injunction which plaint was rejected by Trial Court but Lower Appellate Court set aside the order and remanded the matter to Trial Court for decision on merits--- Plea raised by petitioner-defendant was that the suit was barred under S.36 of Colonization of Government Lands Act, 1912, S.11 of Sindh Revenue Jurisdiction Act, 1876 and S.172 of Sindh Land Revenue Act, 1967---Validity---Neither provisions of S.36 of Colonization of Government Lands Act, 1912, nor S.11 of Sindh Revenue Jurisdiction Act, 1876 or S.172 of Sindh Land Revenue Act, 1967, was applicable to the matter as there was no dispute regarding policy of land nor any act or omission of any revenue officer was challenged nor correction of any entry in record of rights was challenged--- To decide an application under O.VII, R.11, C.P.C., only plaint was to be considered and it was to be presumed that whatever was pleaded therein was true and correct---Plaint disclosed cause of action against petitioner-defendant and was not barred by any law---High Court declined to interfere in the matter as Lower Appellate Court rightly set aside order passed by Trial Court which was perverse---Revision was dismissed, in circumstances.

Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302; Administrator, Thal Development v. Ali Muhammad 2012 SCMR 730 and Raja Khan v. Shah Nawaz and others 2019 CLC 2061 distinguished.

Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrator PLD 1984 Kar. 34 and Mst. Sharifan Begum and others v. Muhammad Shahbaz and others 2000 CLC 63 ref.

Muhammad Idress Khan for Applicant.

Muhammad Hamayoon Khan and Muhammad Moazziz Taha Khan for Respondent No.1.

Wali Muhammad Jamari, Assistant Advocate General Sindh for Respondents Nos.2 to 6.

2021 C L C 1399

[Sindh]

Before Nadeem Akhtar, J

NASIR MIRZA----Plaintiff

Versus

Syed MUZAFFAR EJAZ and 2 others----Defendants

Civil Suit No.1399 of 2017, decided on 30th April, 2021.

Specific Relief Act (I of 1877)---

----Ss.12 & 54---Civil Procedure Code (V of 1908), S.35-A---Suit for specific performance of agreement to sell and injunction---Part of contract, non-performing of---Effect---Pre-conditions for specific performance of an agreement---Special costs, awarding of---Plaintiff entered into agreement with defendant for purchase of suit property and paid 0.5% of total consideration amount as earnest money---Contention of plaintiff was that defendant failed to transfer suit property in his favour--- Validity---In suit for specific performance, it was obligatory upon plaintiff to demonstrate in unequivocal terms in his pleadings as well as by his conduct throughout the proceedings that he had been always and was serious, capable, ready and willing to perform his agreed part of contract--- Such readiness and willingness of plaintiff was essence of and a condition precedent for seeking specific performance of contract---In absence of the same, equitable and discretionary relief of specific performance could not be granted---Seriousness, capability, readiness and willingness to perform its agreed part of contract was the condition precedent for seeking specific performance, and the same could be judged from the conduct of party seeking such relief---Conduct of plaintiff, in the present case, from the very inception of suit did not reflect that he was serious, capable, ready and or willing to perform his agreed part of contract--- Plaintiff filed the suit after paying only 0.5% amount of agreed sale consideration---Conduct of plaintiff and reluctance on his part to deposit balance sale consideration despite Court order reflected his deliberate and intentional unwillingness to perform his agreed part of contract---Plaintiff dragged defendants in uncalled for litigation due to which defendant was unable to enjoy and exercise his valuable proprietary rights in respect of his own property for a long period of four years---High Court declined to interfere in the matter and imposed special cost upon plaintiff---Suit was dismissed, in circumstances.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Hamood Mehmood v. Mst. Shabana Ishaque and others, 2017 SCMR 2022; Allah Ditta v. Bashir Ahmad, 1997 SCMR 181 and Haji Abdul Hameed Khan v Ghulam Rabbani, 2003 SCMR 953 rel.

Aftab Ahmed for Plaintiff.

Ms. Sofia Saeed Shah for Defendant No.1.

Nemo. for Defendant No.2 (called absent).

Nemo. for Defendant No.3 (called absent).

2021 C L C 1437

[Sindh]

Before Muhammad Shafi Siddiqui and Mrs. Kausar Sultana Hussain, JJ

RIZWAN SAEED and 3 others----Petitioner

Versus

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

Constitution Petition No.5890 of 2018, decided on 2nd November, 2020.

Cantonments Act (II of 1924)---

----Ss.108, 179 & 181---Management of cantonment property---Construction of new building---Power of Cantonment Board to sanction or refuse---Scope---Alteration in master plan---Scope---Petitioners, being residents of a colony falling within the jurisdiction of Cantonment Board, assailed the action of the Officer Incharge of Army Housing Directorate and the Administration Officer of the Colony whereby they had undertaken to construct a multi-storyed building, claimed to have been approved by the Cantonment Board---Contention of petitioners was that their master plan was unilaterally altered without lawful authority---Contention of Cantonment Board was that the powers of granting lease or allotment rested with the Military Estate Office; that the colony although fell within Board's limits but neither it was handed over nor any layout plan was approved by the Cantonment Board; that the Cantonment Board was only asked to collect property tax from the colony and that it could not take any action to stop alleged illegal construction over the subject land---Validity---Master plan did not show any space to have been reserved for future planning---Cantonment Board was collecting taxes from the residents of the colony and was maintaining the streets etc., which suggested that for all intents and purposes the colony was surrendered to the jurisdiction of Cantonment Board for all kind of administrative issues---Once the Cantonment Board had active control of the entire colony, the control in terms of S.108 of the Cantonments Act, 1924, vested with it and nothing could be altered without considering/consulting the Board---Framing of a Housing Scheme did not mean simpliciter leveling of land and carving out plots, but it also involved working out approximate requirements of water, electricity, gas, sewerage lines, streets and roads, etc.---If a housing scheme was framed on the assumption that it would have residential units of 1 + 1, but factually the allottees were allowed to raise multi-storeyed building having flats, the public utility services would fall short of the requirements, with the result that everyone living in the scheme would suffer---Authorities had failed to justify their action of amending the Master Plan---Constitutional petition was allowed as prayed for, in circumstances.

Mansoor Sharif v. Shafiq-ur-Rehman 2015 SCMR 1172 ref.

Abdul Razzak's case PLD 1994 SC 512 fol.

Abdul Moiz Jaferi and Asad Anwer Alvi for Petitioners.

Muhammad Zahid Khan, Assistant Attorney General for Respondents Nos.1 and 2.

Ashraf Ali Butt for Respondent No.3.\

Zia-ul-Haq Makhdoom Abdul Nizamani, Muhammad Azhar Mahmood, Hadd Abid and Faisal Aziz for Respondent No.4.

Ms. Rabia Khan for Respondent No.5.

2021 C L C 1474

[Sindh]

Before Nadeem Akhtar, J

Syed GHULAM SARWAR SHAH----Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Work Government of Pakistan Islamabad, Pakistan and 13 others---Respondents

Suit No.Nil (-819) and C.M.As. Nos.5638 and 5639 of 2021, decided on 21st June, 2021.

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

----S.42---Suit for declaration---Limitation---Scope---Plaintiff claimed that suit property was purchased by his late father from the original lessee through a registered sale deed, which was subsequently gifted to him through an oral gift but the private defendants illegally got mutated the suit property in their names on the basis of a registered sale deed---Validity---Fraud was allegedly committed by defendants in the year 1968; the defendants were in possession of the suit property since then; father of plaintiff during his lifetime had never challenged the impugned sale deed and the suit was instituted after more than 52 years of execution of sale deed---Plaintiff although had claimed that he had come to know of the fraud in the year 2019-2020 but had not disclosed the exact or even an approximate date of such knowledge---Plaintiff had failed to establish that the cause of action for filing the suit accrued to him for the first time in the year 2019-2020---Suit, being barred by limitation, was dismissed with costs.

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

----S.3---Dismissal of suits, etc., instituted after period of limitation---Duty of court---Scope---Court must ensure that the case is instituted within time, and if it is found that the case is barred by limitation then it becomes the duty of the court to dismiss the same.

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

----S.42---Civil Procedure Code (V of 1908), O.VI, R.4---Suit for declaration---Particulars to be given where necessary---Scope---Plaintiff claimed that suit property purchased by his late father was illegally got mutated by the defendants in their names on the basis of a registered sale deed---Validity---Plaintiff had rested his entire case solely on the fraud allegedly committed by the defendants but had not disclosed/pleaded in the plaint the essential dates, particulars and facts relating thereto---Suit was barred under O.VI, R.4, C.P.C., the provisions whereof were mandatory in nature because of the word "shall" used therein---Suit was dismissed with costs.

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

----O.VI, R.4---Pleadings---Particulars to be given where necessary---Scope---If fraud is alleged in a suit for declaration, it is the duty of the plaintiff, as mandated by O.VI, R.4, C.P.C., to plead specifically the particulars of fraud and the circumstances in which the fraud was committed---Where charges of fraud were intended to be made, full particulars thereof ought to be given in the pleadings, either as originally framed or as amended for that purpose---General allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice---O.VI, R.4, C.P.C., provide that in all cases in which a party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary, full particulars with dates and items shall be stated in the pleadings---Provisions of O.VI, R.4, C.P.C., are mandatory in nature because of the word "shall" used therein.

Mst. Sahib Noor v. Haji Ahmad, 1988 SCMR 1703 and Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore, PLD 2020 SC 324 ref.

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

----S.42---Civil Procedure Code (V of 1908), O.VII, Rr.14 & 15---Suit for declaration---Production of documents on which plaintiff sues---Statement in case of documents not in his possession or power---Scope---Plaintiff claimed that suit property was purchased by his late father from the original lessee through a registered sale deed, which was subsequently gifted to him through an oral gift but the private defendants illegally got mutated the suit property in their names on the basis of a registered sale deed---Validity---Plaintiff had not filed copy of the registered sale deed allegedly executed in favour of his father by the original lessee---If such vital document and record was not available with him or was not in his possession, he was duty bound to mention the same in the 'list of documents relied upon' and such list was to be annexed to the plaint, as required under O.VII, R.14(2), C.P.C.; and to disclose the particulars of such person(s) or authority(ies) in whose possession or power the said document and record was, as required under O.VII, R.15, C.P.C---Provisions of Rr.14(2) & 15 of O.VII, C.P.C., were mandatory in nature because of the word "shall" used therein---Plaintiff, in the absence of any title document, could not be deemed to have any legal character and/or right in respect of the suit property in terms of S.42 of Specific Relief Act, 1877---Suit being barred under S.42 of Specific Relief Act, 1877, was dismissed with costs.

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

----S.42---Civil Procedure Code (V of 1908), O.I, R.3---Suit for declaration---Gift---Who may be joined as defendants---Scope---Plaintiff claimed that suit property was purchased by his late father from the original lessee through a registered sale deed, which was subsequently gifted to him through an oral gift but the defendants illegally got mutated the suit property in their names on the basis of a registered sale deed---Validity---Plaintiff had not impleaded other surviving legal heirs of his father viz. his children, who were real siblings of the plaintiff on the pretext that they were not necessary parties as now he was the sole and absolute owner of the suit property by virtue of alleged oral gift---Such contention could not be accepted for the reason that the alleged gift was admittedly oral and as such there was nothing available on record, or even with the plaintiff, to substantiate his claim vis-à-vis the gift---Till such time the oral gift was proven by the plaintiff or admitted by other legal heirs, all the other legal heirs of plaintiff's father were necessary parties to the suit---Suit was bad for non-joinder of necessary parties---Suit was dismissed with costs.

Muhammad Ali Shaikh for Plaintiff.

2021 C L C 1498

[Sindh]

Before Aqeel Ahmed Abbasi and Mrs. Ashraf Jehan, JJ

NATIONAL INVESTMENT TRUST LIMITED (NITL) and another--Appellants

Versus

MRS. SADAQAT-E-NISAR and others----Respondents

High Court Appeal No.02 of 2016, decided on 10th July, 2018.\

Succession Act (XXXIX of 1925)---

----Ss.372&384---Succession certificate---Non-compliance---Bank account---Instructions of account holder---Deceased had invested amount in NIT/CIP (National Investment Trust/Cumulative Investment Plan) Units and authorities did not pay complete amount on the plea that the same was not re-invested after death of account holder---Validity---Authorities instead of honouring their commitment as per terms and conditions applicable at the time of purchase of NIT/CIP Units and option availed by deceased regarding Cumulative Investment Plan (CIP), had attempted to create a dispute either with mala fide intention or to wriggle out from a default on their part, whereby they were under legal obligation to reinvest yearly dividend as per Cumulative Investment Plan (CIP) option till its realization---After death of NIT/CIP Unit holder, the terms and conditions applicable to such units could not be charged unilaterally by authorities to the disadvantage of a Unit holder---All assets of deceased automatically stood devolved in favour of his/her legal heirs as per Islamic Law of inheritance in similar terms as the case of deceased was before his/her death--- Authorities unnecessarily dragged the matter and also failed to comply with the orders already passed by Single Judge of High Court by raising misconceived and erroneous plea---Division Bench of High Court declined to interfere in the order passed by the Single Judge of High Court as the same did not suffer from any factual error or legal infirmity---Intra Court Appeal was dismissed in circumstances.

Muhammad Masood Khan and Amna Usmani for Appellants.

Shahanshah Hussain for Respondents.

Munawwar Malik for Respondent No.10.

2021 C L C 1520

[Sindh]

Before Nazar Akbar, J

Mrs. SAKINA SULEMAN, through Attorney----Plaintiff

Versus

MUHAMMAD ARIF JANJUA, through Attorney----Defendant

Suit No.664 of 2008, decided on 24th May, 2021.

Constitution of Pakistan---

----Arts.18, 25, 270AA (3)(b) & 207(3)(b)---Oath of Office (Judges) Order (I of 2000), Art.3---Chief Executive's Order (5 of 2000), Art.4---Retired permanent Judge of (Sindh) High Court receiving pensionary benefits---Right to appear as a counsel before the High Court to plead cases---Scope---High Court after making observations regarding the restriction placed on former Judges of High Court to practice law in terms of Art. 207(3)(b) of the Constitution highlighted fundamental questions of public importance emerging from the present case and adjourned the case to the next date of hearing.

Following fundamental questions of public importance emerged from the present case:

(i) Whether the benefit of Chief Executive Order (5 of 2000) for the Judges in category (a) in the said order can be continued even after 20-4-2010 the date of amendment in Article 270AA and insertion of clause (3)(b) of the Constitution?;

(ii) What is the effect of insertion of Clause 3(b) to Article 270AA of the Constitution on the Judges to whom benefit of "special permission" was extended by Chief Executive Order (5 of 2000) on account of being removed from the office of a Judge of High Court before completion of 5 years period of service to qualify for pensionary benefit as a Judge of High Court? ;

(iii) Whether Clause 3(b) of Article 270AA of the Constitution can be interpreted to create another class of permanent Judges who on attaining the age of superannuation can be entitled for pensionary benefits and shall not be hit by the provisions of Article 207(3)(b) of the Constitution whereas other permanent Judges on attaining the age of superannuation can be restrained to act and plead in the same Court? If yes, what is its effect? ;

(iv) Whether after the 18th Amendment to the Constitution on insertion of Clause (3)(b) of Article 270AA of the Constitution if one permanent Judge on retirement due to attaining the age of superannuation is allowed to act and plead in any Court including the one in which he was a Judge, and any other permanent Judge with five years' service on retirement at superannuation age, if not allowed to act and plead in any Court including the one in which he was a permanent Judge, would it be violative of Article 25 of the Constitution or not? ;

(v) Whether Clause (3) of Article 270 of the Constitution itself is discriminatory and is in conflict with Article 18 of the Constitution and/or otherwise after 18th Amendment it is not applicable to the judges who retire on attaining the age of superannuation after serving as a Judge for five years or more since Article 18 of the Constitution does not impose any restriction to carry on the profession on attaining 62 years (superannuation)? ; and

(vi) Whether sub-clause 3 of Article 207 is in conflict with the fundamental right guaranteed under Article 18 of the Constitution since it curtails freedom of profession of a permanent Judge after retirement from the service as a Judge though no such restriction is imposed on anyone else and there is no age limit for practice in the field of law, and as such entire Clause (3) of the Article 270 of the Constitution is liable to be struck down being subservient to the fundamental rights guaranteed to the citizen including permanent Judge?

PLD 2018 SC 337 ref.

Ikram Ahmed Ansari for Plaintiff.

Rasheed A. Rizvi for Defendant.

2021 C L C 1527

[Sindh]

Before Nazar Akbar, J

Mrs. SAKINA SULEMAN, through Attorney----Plaintiff

Versus

MUHAMMAD ARIF JANJUA, through Attorney ----Defendant

Suit No.664 of 2008, decided on 31st May, 2021.

Constitution of Pakistan---

----Arts. 270AA (3)(b) & 207(3)(b)---Oath of Office (Judges) Order (I of 2000), Art.3---Chief Executive's Order (5 of 2000), Art. 4---Retired permanent Judge of (Sindh) High Court receiving pensionary benefits---Right to appear as a counsel before the High Court to plead cases---Scope---High Court observed that clause (3)(b) of Art. 270AA of the Constitution prima-facie could not be interpreted to have any effect of "suspending" the constitutional provisions contained in Art. 207 of the Constitution; that any interpretation of Art. 270AA(3)(b) of the Constitution whereby a Judge of High Court on receiving pensionary benefits for holding the office of a permanent Judge till the date of superannuation, if allowed to practice within its jurisdiction, would be in violation of Art.207(3(b) of the Constitution; that Art.270AA(3)(b) could not be interpreted to extend two benefits to one person-the benefit of retired Judge of High Court and the benefit of practice of law to the same Judge in the same jurisdiction, and that it would be more advantageous if the issues raised by present case could be heard by a Bench of two or more Judges on constitutional side---High Court directed Office to prepare a separate file from the order sheets of last two hearings and present order and place the said file before Chief Justice of the High Court to constitute a Bench of two or more Judges for the decision on the issues as the Chief Justice deemed fit.

Ikram Ahmed Ansari for Plaintiff.

Basim Raza, Associate of Salahuddin Ahmed for Rasheed A. Rizvi for Defendant.

2021 C L C 1537

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ASGHAR----Appellant

Versus

Mst. TAHIRA PARVEEN and others----Respondents

IInd Appeal No.233 and C.M.A. Nos.6969, 6970 of 2019, decided on 26th January, 2021.

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

----S.100---Second appeal---Concurrent findings of courts below---Scope---Scope of second appeal where there were concurrent findings of courts below, was not at much variance with that of revision under C.P.C., since for succeeding in such second appeal, appellant had to prima facie establish that impugned decision was either contrary to law, or substantial error or defect in procedure was committed while deciding the matter.

Anwar Textile Mills Ltd. v. PTCL and others 2013 SCMR 1570 rel.

(b) Pleadings---

----What was not part of pleadings could not be allowed to be introduced during examination or trial and was to be excluded while evaluating evidence.

Muhammad Iqbal v. Mehoob Alam 2015 SCMR 21 rel.

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

----Arts.78, 79 & 72---Documentary evidence, proof of---Production and admission of documents ---Material witnesses to execution of documents---Scope---No prudent mind could believe that for execution of an important material document, parties would make a passerby a witness, who admits in cross-examination that parties were not known to him prior to execution of such document for which he was called by some unknown counsel / advocate---Such admission by witness to document would result in failure in proving such document.

Shabbir Hussain v. Asghar Hussain Shah 2007 SCMR 1884 rel.

(d) Administration of Justice---

----Absence of a party---Duty of courts did not lighten due to absence of a party, and courts were to ensure proper and legal determination of a controversy without being influenced by any circumstance except that of evidence and material on record, which too must be admitted or established---Absence of a party normally should not be sole reason to decide a disputed question

Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif PLD 2017 SC 265 and Amjad Ikram v. Asiya Kausar 2015 SCMR 1 rel.

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

----Art.79, 81 & 76---Production and admission of documents---Mere production of an admissible document by itself was not sufficient to take the same as proved, rather contents thereof were to be provided in the manner required by law.

Dawa Khan v. Muhammad Tayyab 2013 SCMR 1113 rel.

(f) Evidence---

----Documentary evidence---Forged documents, production of---Duty of courts---Scope---Preparation of a forged document itself was an offence but production thereof in court proceedings with a view to prejudice the right and entitlement of a rightful person, made such act grave and courts must take appropriate actions whenever such an act surfaced, as such actions not only resulted delaying object of timely justice but also encouraged such actions.

Qayyum Nawaz Kundi for Appellant.

Muhammad Rashid for Respondent No.1.

2021 C L C 1555

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD JAMIL BABAR----Plaintiff

Versus

SARA JALIL and 2 others----Defendants

Suit No.17 and C.M.As. Nos.6832, 7798 of 2021, decided on 4th June, 2021.

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

----S.12---Cases in which specific performance enforceable---Scope---Readiness and willingness by a party to a contract to perform its agreed part of the contract is a condition precedent for that party for instituting a suit for specific performance of such contract under the Specific Relief Act, 1877, against the party committing breach of the contract---Such readiness and willingness must be genuine, real and meaningful and not merely a statement without any meaning and intention as there is a vast difference between the capability or ability to perform the agreed part of the contract and the readiness and willingness to do so---Party may be fully capable and able to fulfil its obligations under the contract, yet it may not be serious, ready or willing to do so---Obligatory upon the plaintiff to demonstrate in unequivocal terms in his pleadings, as well as by his conduct throughout the proceedings, that he has always been and is still serious, capable, ready and willing to perform his agreed part of the contract---Such seriousness, readiness and willingness of the plaintiff is the essence of and a condition precedent for seeking specific performance of contract, and in the absence thereof, the equitable and discretionary relief of specific performance cannot be granted---Seriousness, capability, readiness and willingness to perform its agreed part of the contract, being the condition precedent for seeking specific performance, can be judged from the conduct of the party seeking such relief---Main object and essence of this condition precedent in a suit for specific performance is to ensure that specific performance is sought only by such party to the contract who is serious, capable, ready and willing to perform its agreed or remaining, as the case may be, part of the contract despite the fact that the other party has committed breach thereof; and, to discourage such persons who are not serious, capable, ready and or willing to perform their agreed/remaining part of the contract and who are interested only in dragging the other party in unnecessary litigation in order to pressurize them.

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

----S.12---Cases in which specific performance enforceable---Scope---Specific performance cannot be claimed as a matter of right and the grant of such relief is purely discretionary, which depends upon the facts and circumstances of each case.

Salman Hamid for Plaintiff.

Muhammad Nizar Tanoli for Defendant No.1.

Taimur Ali Mirza for Defendant No.3.

2021 C L C 1564

[Sindh]

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

MUHAMMAD SALMAN KHAN BALOCH----Petitioner

Versus

Syed MUSTAFA KAMAL and others----Respondents

C.P. No.D-265 of 2020, decided on 4th June, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Quo warranto, writ of---Scope---Basic spirit of writ of quo warranto is calling upon a person to show under what authority of law he is holding public office--- High Court is not to hold inquiry with regard to any public office held by incumbent in past or after lapse of tenure by efflux of time.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Applicability---Delay defeats equity which aids vigilant and not indolent---Laches in the simplest form means failure of a person to do something which should have been done by him within a reasonable time, if remedy of Constitutional petition is not availed within reasonable time, interference can be refused on the ground of laches---Question of laches in Constitutional petition is always considered in light of conduct of person invoking Constitutional jurisdiction.

Umar Baz Khan v. Syed Jehanzeb and others PLD 2013 SC 268; Farzand Raza Naqvi and others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 SCMR 280 = 2012 PLC (C.S.) 218 and (Asghar Khan and others v. Province of Sindh and others 2014 PLC (C.S.) 1292 rel.

(c) Constitution of Pakistan---

----Arts. 62 & 199---Constitutional petition---Quo warranto, writ of---Laches---Holding of public office in past---Petitioner assailed holding of public office by respondent in past---Validity---Neither at present nor at the time of filing petition, respondent was holding any public office, petition was hit by laches---High Court declined to declare that respondent was not sagacious, righteous, non-profligate, honest and Amin, as there was no declaration to the contrary by Court of law---Public offices of respondent were challenged after lapse or expiry of their tenures---Petitioner attempted to challenge past public offices and filed his petition at belated stage, when respondent was not holding any public office---Disqualification of respondent was sought from date of his filing nomination papers on 24-10-2002 for contesting elections of Provincial Assembly, his nomination papers for contesting elections of local government and in 2005 for City Nazim was not physically possible due to inordinate delay and deep slumber on the part of petitioner---Constitutional petition was dismissed, in circumstances.

Sohail Baig Noori v. High Court of Sindh through Registrar and others 2017 PLC (C.S) 1142; Laws of England, 3rd Edition Vol.II; Dr. B. Singh v. Union of India and others, (2004) 3 SCC 363; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Imran Ahmad Khan Niazi vs. Mian Muhammad Nawaz Sharif PLD 2017 SC 265; Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and others 2000 SCMR 1720; Workers' Party Pakistan v. Federation of Pakistan and others PLD 2013 SC 406 and Allah Dino Khan Bhayo v. Election Commission of Pakistan PLD 2020 SC 591 ref.

Petitioner in person.

Hassaan Sabir for Respondent No.1.

Jawad Dero, Addl. A.G. Sindh.

Hussain Bohra, Assistant Attorney General.

Abdullah Hanjrah, Senior Law Officer and Hamid Hussain, Election Officer, Election Commission of Pakistan.

2021 C L C 1597

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ABDUL HAMEED and others----Applicant

Versus

ABDUL BAQI and others----Respondents

R.A. No.152 and M.A. No.981 of 2016, decided on 5th April, 2021.

(a) Power of Attorney Act (VII of 1882)---

----S.2---"Power of attorney"---Object---Power of attorney enables donee of a power of attorney to execute any instrument in his own name and signature under authority of donor of power of attorney in his name

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

----S.182---"Principle and agent"---Relationship---Scope---Authority of agent is his power to affect his principal's position by doing acts on his behalf--- Actual authority is the legal relationship between principal and agent created by consensual agreement to which they alone are parties.

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

----S.202---"Agency coupled with interest"---Principle---Agency can only be coupled with interest where authority of agent is given for the purpose of effectuating a security or of suffering an interest of agent--- Such can be inferred from documents forming basis of agency or from the course of dealings between parties and from other surrounding circumstances.

PLD 1986 Kar. 234 rel.

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

----S.202---Specific Relief Act (I of 1877), Ss. 8, 39, 42 & 54---Suit for possession, cancellation of document, declaration and injunction---Agency coupled with interest---Death of principal---Power of attorney was granted by deceased father of plaintiffs to one of his sons without any consideration in year 1998---Father of plaintiffs died on 13-3-2000 and thereafter his son acting on the strength of power of attorney first transferred / sold suit property to his wife who later on sold the same to defendant within a span of four months for a valuable consideration---Suit filed by plaintiffs was decreed in their favour but Lower Appellate Court allowed appeal resultantly suit was dismissed---Validity---Transactions made by attorney were fraudulent and were rightly cancelled by Trial Court---High Court set aside judgment and decree passed by Lower Appellate Court as the same was result of gross illegality and irregularity and restored that of Trial Court---Revision was allowed in circumstances.

PLD 2011 SC 296; Bloan Beverages (Pvt.) Limited v. PEPSI Co. and 4 others PLD 2004 SC 860; (1881) 5 Bom. 253 (BD); Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315; Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85; PLD 1989 Lah. 440; 2000 YLR 1938 and PLD 2003 SC 31 ref.

Syed Hassan Jaffery for Applicants.

Suresh Kumar for Respondent No.3.

2021 C L C 1609

[Sindh]

Before Rashida Asad, J

PAKISTAN through Secretary, Ministry of Defence, Islamabad and 2 others----Petitioners

Versus

WADERO LAL BUX ----Respondent

IInd Appeal No.54 of 2011, decided on 3rd December, 2020.

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

----O.XLI R.31---"Judgment"---Pre-conditions---Where Lower Appellate Court ignores evidence available on record, such judgment cannot be a "judgment" in terms of O.XLI, R.31, C.P.C.

1985 CLC 1780; PLD 1989 SC 568; 1992 CLC 1022 and 1996 SCMR 669 rel.

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

----O.XLI, R.24---Appellate Court---Powers---High Court is empowered to decide entire controversy in appeal when entire evidence is available on record and is sufficient to establish a case.

PLD 1965 SC 434; 1993 SCMR 216; 2002 SCMR 767 and 2007 SCMR 307 rel.

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

----Ss.42 & 54---Sindh Land Revenue Act (XVII of 1967), S.42---Cantonment Land Administration Rules, 1925, Rr.3, 4 & 5---Cantonment land---Entries in Revenue record---Effect---Plaintiff-respondent claimed to be owner of suit lands situated in cantonment area, on the basis of entries in favour of his predecessor-in-interest available in revenue record---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiff-respondent---Validity---Provisions of Sindh Land Revenue Act, 1967 were not applicable to cantonment areas---Procedure for lands under cantonment area was prescribed in Cantonment Land Administration Rules, 1925 and Cantonments Act, 1924--- Lands in cantonment area did not fall under the provisions of Sindh Land Revenue Act, 1967---Military Estate Officer of Cantonment was the exclusive authority under Rr.3, 4 & 5 of Cantonment Land Administration Rules, 1925, to prepare and maintain a General Land Register (GLR) of all lands in cantonment area with powers of mutation---Mere entry without title documents in Record-of-Rights was nullity in law---Such entry by virtue of mutation was not basis of title and the person in whose favour such entry was made, could not take advantage of the same to claim a title against any person---On the basis of mutation nobody could become owner nor there was a presumption of title in his favour---Plaintiff was not owner of suit land and it belonged to Government of Pakistan and entries made in revenue record in respect of suit land were not authentic and relevant and invalid---Entries in General Land Register were legal and valid and plaintiff-respondent or his predecessor-in-interest had not become owners of suit land in any manner---High Court in exercise of appellate jurisdiction set aside judgment and decree passed by Lower Appellate Court that of Trial Court was restored---Second appeal was allowed in circumstances.

2008 SCMR 428; 1991 CLC 752; 2004 MLD 923; 2017 CLC 1090; 1990 SCMR 964; 1991 SCMR 1935; 1999 SCMR 951; PLD 1994 Lah. 298; PLD 2005 Kar. 1;) 2009 MLD 1279; PLD 1964 SC 572; PLD 1969 Quetta 13; 1989 SCMR 824; 2007 SCMR 298; PLD 1970 (Pesh.) 141; 2001 SCMR 338; PLD 1947 Privy Council 322; PLD 1959 (W.P.) Lah. 295; 2006 YLR 1090; 2015 YLR 1569; 2017 YLR 1691; 2003 CLC 1521; 2010 SCMR 1630; 2010 YLR 3002; 2016 MLD 1723; PLD 2003 Kar. 162; PLD 2011 Kar. 426; PLD 2015 SC 212; PLD 1964 SC 329; 1991 SCMR 1369; 1990 SCMR 725; 2009 YLR 1516; 1989 SCMR 1563; PLD 1984 Pesh. 278; PLD 1986 SC 35; PLD 1992 SC 822; PLD 1992 Lah. 89 and PLD 1992 Lah.. 427 ref.

PLD 1964 Pesh. 159; PLD 1970 Lah. 614; AIR 1928 Bombay 209; 1985 CLC 2238; PLD 1994 SC 245 and 2005 CLC 1937 rel.

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

----Arts.117, 118 & 122---Specific Relief Act (I of 1877), S.42---Title to property---Fact, proof of---Onus to prove---Principle---Heavy burden is on plaintiff to prove his affirmative case of ownership through cogent and reliable evidence, which is in his special knowledge---Any party approaching Court for grant of relief has to discharge his own burden and stand on his own legs to succeed and cannot avail any weakness in case of opposite party.

2010 SCMR 1630 rel.

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

----Art.114---Estoppel, principle of---Applicability---Every party is estopped to resile from his admissions by taking somersaults.

1989 CLC 1819 and 2017 CLC Note 2195 p. 219 rel.

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

----S.3---Limitation---Scope---Law of limitation is not merely formality or technicality but is required to be observed and taken into consideration being mandatory.

2015 SCMR 380; 2017 YLR 229; 2017 YLR 1691; SBLR 2018 Sindh 396; PLD 2002 SC 403; 2009 YLR 451; PLD 2006 Kar. 593; PLD 2006 Kar. 621; 2007 YLR 2215; PLD 2015 SC 212 and PLD 2016 SC 712 rel.

Muhammad Hamayoon Khan, D.A.G. for Appellants.

Zaheeruddin S. Leghari for Respondent.

2021 C L C 1644

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

FATEH MUHAMMAD and 9 others----Applicants

Versus

PERVAIZ ALI and 15 others----Respondents

Civil Revision Application No.S-97 and C.M.A. Nos.508, 509 of 2020, decided on 9th September, 2020.

Civil Procedure Code (V of 1908)---

----Ss.100 & 115---Second appeal---Maintainability---Conversion of proceedings---Scope---Applicants, through revision application under S.115, C.P.C., assailed concurrent findings of fact whereby suit of respondents for cancellation of registered sale deed was decreed---Remedy of a revision application before the High Court under S.115, C.P.C., was not available where second appeal under S.100, C.P.C., was available---Applicants ought to have filed a second appeal under S.100, C.P.C., instead of a revision application under S.115, C.P.C.---High Court observed that since second appeal was not time-barred when the revision application was filed, since High Court had been given the power to convert one proceeding into another High Court converted revision application into a second appeal and permitted the appellants to file an amended memo of appeal---Subject to compliance of office objections and the filing of amended memo. of appeal, notice was issued to the respondents on the main case.

Abdul Rashid v. Bashiran 1996 SCMR 808; Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700; Mir Daud Khan v. Mahrullah PLD 2001 SC 67; Alamdar Hussain v. Nazir Hussain 2004 SCMR 595 and Bashir Ahmed v. Taja Begum PLD 2010 SC 906 ref.

Municipal Committee Bahawalpur v. Aziz Elahi PLD 1979 SC 506; Sheikh Faqir Muhammad v. Muhammad Din 1993 SCMR 1955 and Muhammad Akram v. DCO Rahim Yar Khan 2017 SCMR 56 rel.

Asif Aman for Applicants.

2021 C L C 1657

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

GHULAM MUSTAFA----Petitioner

Versus

DIVISIONAL FOREST OFFICER, NAWABSHAH and 4 others----Respondents

Revision Application No.S-22 of 2012, decided on 27th October, 2020.

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

----S.172---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Jurisdiction of Civil Court barred---Scope---Plaintiff sought declaration of his title to agricultural land against the Forest Department and an injunction restraining the Forest Department from dispossessing him from such land---Trial Court decreed the suit to the extent of issuance of declaration---Appellate Court allowed the appeal and dismissed the suit on the ground that the jurisdiction of the Civil Court to decide the matter was ousted by S.172 of Sindh Land Revenue Act, 1967---Validity---Case of plaintiff was that he was in possession of agricultural land outside the forest area situated in katcha area, granted to his grandfather by the Government of Sindh on the basis of darya khurdi right---Under the erstwhile scheme for granting katcha State land, an applicant satisfying the Deputy Commissioner of his darya khurdi right could be granted katcha State land in the same Deh for agricultural purposes after the proceedings held in common assembly (jalsa-e-aam)---Plaintiff had not produced in evidence any letter of grant of land to him or his forefathers by the Government against darya khurdi right---Plaintiff's case essentially was that the land in his possession was not encroached upon or fell within the boundaries of the forest---Such matter was covered by subsections 2(i), (xiii) and (xxi) of S.172 of Sindh Land Revenue Act, 1967---Revision application was dismissed, in circumstances.

Muhammad Shoaib v. Jamila Khatoon 2015 YLR 1213 ref.

(b) Words and phrases---

----"Darya khurdi right"---Meaning.

Darya khurdi right means to hold "katcha State land" in lieu of qabooli land that has been eroded or lost in river action.

(c) Words and phrases---

----"Katcha State Land"---Meaning.

Katcha State Land means land located in between the flood protective bunds of River Indus known as riverine katcha area.

Kalander Bakhsh M. Phulpoto for Applicant.

Ahmed Ali Shahani, Assistant Advocate General for Respondents.

2021 C L C 1677

[Sindh]

Before Arshad Hussain Khan, J

Dr. ABID MEHMOOD----Petitioner

Versus

MUBASHIR IQBAL KHAN----Respondent

Suit No.665 of 2005, decided on 21st February, 2020.

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

----S.12---Suit for specific performance of agreement to sell--- Pre-condition---Suit for specific performance of agreement to sell is discretionary relief; it is obligatory upon plaintiff to demonstrate in unequivocal terms in his pleadings, as well as by his conduct throughout the proceedings that he has always been and is still ready and willing to perform his agreed part of contract.

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

----S.12---Suit for specific performance of agreement to sell---Readiness to perform contractual obligation---Damages---Proof---Plaintiff entered into sale agreement with defendant for property in question---Defendant resisted the suit on the plea that plaintiff failed to pay balance consideration amount within due time and defendant faced loss due to such failure therefore plaintiff was not liable to return of earnest money---Validity---Plaintiff failed to bring on record any document and produce any witness which could show that when he did not receive any reply of his first notice from defendant what efforts he had taken to communicate his willingness and readiness to perform his part of obligation under the contract--- Plaintiff before filing of suit was well aware of the fact that defendant had sold out suit property to someone else, however, plaintiff did not show any effort either to know name of the new buyer or to implead him as party in proceedings which fact reflected lack of seriousness of plaintiff for seeking specific performance of contract---Party seeking specific performance of an agreement to sell was essentially required to deposit balance sale consideration amount in Court---By making such deposit plaintiff was to demonstrate its capability, readiness and willingness to perform his part of contract, which was an essential pre-requisite to seek specific performance of a contract---Failure of a party to meet such essential requirement disentitled that party to the relief of specific performance, which was a discretionary relief---Defendant failed to substantiate his stance of loss through evidence, therefore, he was not entitled to forfeit the amount paid by plaintiff under the agreement---Plaintiff was not entitled to relief of specific performance of contract but was entitled to refund of his consideration paid by him to defendant---Suit was decreed accordingly.

Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others 1979 CLC 48 and Kassamali v. Mst. Shakra Begum PLD 1968 Kar. 307 ref.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 and Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 704 rel.

Zubair Qureshi and Rehan Qureshi for Plaintiff.

Pervaiz Iqbal Butt for Defendant.

2021 C L C 1704

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

MUNIR AHMED----Petitioner

Versus

PROVINCE OF SINDH through Secretary Board of Revenue, Karachi and 11 others----Respondents

Constitution Petition No.D-151 of 2021, decided on 12th February, 2021.

(a) Sindh Property (Removal of Encroachment) Act (XVIII of 2010)---

----Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Aggrieved person---Locus standi---Scope---Encroachment upon Government land by private persons---Petitioner was not owner/occupant of the land-in-question but was only resident in the vicinity---Exercise of powers, per Art. 199 of the Constitution, was required to be undertaken upon an application of an aggrieved person ---Petitioner failed to make any case to qualify him within the definition of an aggrieved person---Present petition and the documentations filed therewith were devoid of any cogent substantiation to suggest that there was any encroachment upon state land or that there was any illegal activity taking place thereupon---Constitutional petition, not being maintainable was dismissed, in circumstances.

2019 SCMR 1952 and Raja Muhammad Nadeem v. The State PLD 2020 SC 282 ref.

(b) Sindh Property (Removal of Encroachment) Act (XVIII of 2010)---

----Preamble---Encroachment upon Government land by private persons---State was duly empowered, if its land was being misappropriated, to take remedial measures including by recourse to the Sindh Property (Removal of Encroachment) Act 2010---In the present case, nothing had been placed on record to demonstrate if the State was aggrieved at all---Constitutional petition, not being maintainable was dismissed, in circumstances.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Impleading Government officials as respondents---Encroachment upon Government land by private persons---Held, that primary grievance in the present case, was against private respondents and the petitioner seemed to have impleaded the official respondents to seek adjudication of the grievance before the High Court---Invoking constitutional jurisdiction of the High Court in a private dispute was to be deprecated---High Court after disapproving impleading officials as respondents merely to overcome objections of (High Court) Branch/Office in respect of maintainability, observed that masquerade of pleadings to invoke constitutional jurisdiction of High Court was undesirable---Constitutional petition, not being maintainable was dismissed, in circumstances.

Muhammad Saddiq and another v. Ruqaya Khanum and others PLD 2001 Kar. 60 and AKD Investment Management Limited and others v. JS Investments Limited and others 2020 CLD 596 ref.

Irfan Aziz for Petitioner.

Jawad Dero, Additional Advocate General and Nisar Ahmed for Respondents.

2021 C L C 1712

[Sindh]

Before Nazar Akbar, J

Mst. NADIA SHAKEEL and another----Plaintiffs

Versus

SHAGUFTA BAQAR and another----Defendants

Suit No.789 of 2018, decided on 4th June, 2021.

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

----Ss.278, 376 & 383---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Gift deed---Succession Certificate---Amendment of pleadings---Plaintiffs were daughters of deceased owners of suit properties and their only brother had died earlier---Plaintiffs assailed declaration of gifts of immovable properties made by their parents in favour of their deceased brother in his life time---After death of brother of plaintiffs succession certificate was issued in favour of parents regarding suit properties---Validity---Gift was a registered document which was not challenged by plaintiffs on the ground of any fraud or misrepresentation by beneficiary in acquiring the gift---Nor the donor (father of plaintiffs) at relevant time was otherwise not legally competent to execute gift to his son owning to some legal disability---No amendment of pleadings could be allowed in disposed of matter---In disposed of succession petition only extension of Letter of Administration was permissible under S.376 of Succession Act, 1925, on subsequent discovery of any other estate of deceased which inadvertently or for any reason could not be mentioned in original succession petition---Succession certificate could also be revoked on the grounds provided in S.383 of Succession Act, 1925---No concept of amendment of disposed of memo of petition for Letter of Administration in respect of one identified deceased on subsequent death of another person who was legal heir of the deceased whose petition had been disposed of prior to the death of the other person---Under the law of succession, it was not permissible that a common petition / application was entertained for grant of succession certificate / Letter of Administration pertaining to assets of more than one deceased particularly when legal heir of two deceased were not common, irrespective of the fact that assets were inherited by one of them from the other person---Suit was dismissed, in circumstances.

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

----S.278---Civil Procedure Code (V of 1908), O.VI, R1. & O.VII, R.1---Petition for succession certificate---Nature---Petition under S.278 of Succession Act, 1925, is not a pleadings as defined under O.VI, C.P.C. nor a plaint as explained under O.VII, R.1, C.P.C. [p. 1724] B

Ameenuddin Ansari for Plaintiff No.2.

Rafiq Ahmed Kalwar for Defendant No.1.

Nemo. for Defendant No.2.

2021 C L C 1748

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

SAHOO----Petitioner

Versus

PROVINCE OF SINDH, through Chief Secretary, Government of Sindh, Karachi and 12 others----Respondents

Constitutional Petition No.D-151 of 2017, decided on 16th September, 2020.

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

----S.117---Power of Revenue Officers to define boundaries---Petitioner sought direction under constitutional jurisdiction to the Revenue Officer concerned to demarcate his land---Validity---Petitioner had availed the remedy by filing applications for demarcation but had not exhausted such remedy as he had approached the High Court without waiting for the outcome of his application---Petitioner, in case of refusal for rejection of the application by the Mukhtiarkar on any ground could file appeal, revision or review before the Revenue hierarchy---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Alternate remedy---Scope---Article 199 of the Constitution, inter alia, provides that High Court may exercise its powers thereunder only "if it is satisfied that no other adequate remedy is provided by law"---If there is any other adequate remedy available to the aggrieved person, he must avail and exhaust such remedy before invoking the constitutional jurisdiction of High Court, whether such remedy suits him or not---'Doctrine of exhaustion of remedy' envisaged in Art.199 prevents unnecessary litigation before the High Court.

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

----S.117---Sindh Land Revenue Rules, 1968, R.67-A---Power of Revenue Officers to define boundaries---Demarcation of land---Scope---Complete mechanism of demarcation proceedings is laid down in R.67-A of Sindh Land Revenue Rules, 1968, which provides that if an application under S.117 of the Sindh Land Revenue Act, 1967, is made to the concerned Mukhtiarkar, he must take action on it provided it contains all the relevant particulars; upon satisfaction of the above requirement, the Mukhtiarkar is required to issue notice to all concerned khatedars/owners followed by a speaking order accepting or refusing the same, as the case may be; in case the application is accepted, the procedure laid down in S.117 of the Sindh Land Revenue Act, 1967 and R.67-A of Sindh Land Revenue Rules, 1968, must be followed by the Mukhtiarkar with the assistance of Settlement Surveys and Land Records; and, in case of rejection of the application, the procedure of appeal and revision or review is to be adopted.

Ahsan Gul Dahri for Petitioner.

Hashim Bajeer for Respondent.

Allah Bachayo Soomro, Addl. A.G.

2021 C L C 1771

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Arshad Hussain Khan, JJ

PARDEEP KUMAR and 17 others----Petitioners

Versus

DEN-I, PAKISTAN RAILWAY, SUKKUR and 5 others----Respondents

C.P. No.D-544 and M.A. Nos.2398, 2399, 2400 of 2019, decided on 11th September, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Scope---Auction---Petitioners sought order restraining the authorities from auctioning the shops being occupied by them---Validity---Petitioners were in occupation of the shops of Railway Department without any valid document legalizing their possession over the subject shops---Petitioners had to establish that they had a legal right over the subject property and that such right was so clear that it left no room of doubt or any controversy---Exercise of extraordinary jurisdiction under Art.199 of the Constitution was intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority was floating on the surface, which could be established without any elaborate enquiry into the questions involved in the matter; moreover, the constitutional jurisdiction was undoubtedly discretionary and extraordinary in nature and it being equitable relief was available, even otherwise, to a party who came to court with clean hands---Petitioners who had no legal character or right over the subject shops, by filing the constitutional petition, had attempted to have some favourable order so as to thwart the auction proceedings and to perpetuate their unauthorized possession in the garb of that order by suppressing the real and material facts, which adversely reflected upon them---Constitutional petition, being not maintainable, was dismissed.

Safdar Ali Ghouri for Petitioners.

2021 C L C 1780

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

AQSA JAWED through Attorney----Petitioner

Versus

MUHAMMAD HASSAN and others----Respondents

Constitution Petition No. S-70 of 2018, decided on 18th September, 2020.

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

----S.15---Eviction petition---Denial of relationship of landlord and tenant---Pendency of civil suit---Landlord, an ostensible owner---Scope---Petitioner/landlady assailed the concurrent dismissal of her ejectment petition---Main arguments advanced by the tenant were denial of relationship of landlady and tenant between the parties and pendency of suit for declaration, cancellation, permanent and mandatory injunction against the landlady and others---Validity---Institution of civil suit by the tenant did not per se merit dismissal of eviction petition---Relationship of landlady and tenant was not severed even if the execution of sale deed/agreement to sell was admitted---Tenant was not absolved of his responsibility of payment of arrears and future rent---Courts below had failed to appreciate that the landlady was owner of the subject property and had sent notice to the tenant under S.18 of the Sindh Rented Premises Ordinance, 1979---Landlady as a last resort had rightly instituted the application for eviction of tenant---Proceedings before the Rent Controller could not be stopped to wait for the final outcome of a suit for declaration---Tenant, in such circumstances, had to vacate the subject property and if he succeeded in obtaining a decree in the suit then he could be given easy access to the subject premises---Constitutional petition was allowed, in circumstances, orders passed by courts below were set aside and the tenant was directed to vacate the suit premises.

Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549 ref.

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

----S.15---Eviction petition---Scope---Landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties, however, in normal circumstances, in the absence of any evidence to the contrary, the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by a written instrument in express terms rather may also be oral and implied.

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

---Art.115---Estoppel by tenant in possession---Scope---Tenant of immovable property shall, during continuance of the tenancy, is not permitted to deny that his landlord had a title to such property.

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

----S.2(j)---Tenant---Implied tenancy---Scope---Person who is in possession or occupation of premises owned by someone else, although he may not have undertaken to pay rent to the owner thereof, is normally bound to pay rent to him as consideration for being in possession or occupation of that premises---Such person was to be treated as tenant.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Rent matters---Scope---Constitutional jurisdiction in rent matters is limited and confined only to ascertain whether the subordinate Courts have flouted the statute or have failed to follow the law relating thereto.

Muhammad Arshad S. Pathan for Petitioner.

Sajid Ali Soomro for Respondent No.1.

Allah Bachayoo Soomro, Additional Advocate General, Sindh.

2021 C L C 1801

[Sindh]

Before Aqeel Ahmed Abbasi and Rashida Asad, JJ

Messrs MIRPURKHAS SUGAR MILLS LIMITED and 4 others----Petitioners

Versus

PROVINCE OF SINDH through Secretary Irrigation and 4 others----espondents

Constitutional Petition No.D-5125 of 2013, decided on 24th February, 2021.

(a) Good governance---

----Rule of law---Government dealings--- Discretion, exercise of--- Principle--- For a society which claims to be organized, civilized and law abiding, it is imperative to stand by its commitments, undertakings and to be honest and fair in its dealings---Government has to respect rule of law and not to discriminate between its citizens---Functionaries of government cannot be allowed to exercise discretion at their whims, sweet-will or as they please, rather they are bound to act fairly, evenly and justly.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Contract between State and Person aggrieved---Scope---Contractual liability---Admission of liability---Scope---Petitioner company was aggrieved of water rates being charged by authorities---Validity---Contract entered into between State and person aggrieved was non-statutory and purely contractual---Such rights were governed only by the terms of contract and no writ or order could be issued under Art.199 of the Constitution---Jurisdiction of High Court under Art.199 of the Constitution could not be invoked, even if liability was admitted by both parties--- Constitutional petition was dismissed, in circumstances.

Niazmuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 705 and Project Director, Balochistan Minor Irrigation and Agricultural Development Project Quetta Cantt. v. Messrs Murad Ali and Company 1999 SCMR 121 rel.

Khalid Mehmood Siddiqui for Petitioner.

Saifullah, Assistant Advocate General, Sindh for Respondent No.1.

Malik Waseem Iqbal for Respondents Nos.2 to 5.

2021 C L C 1856

[Sindh]

Before Arshad Hussain Khan, J

Cdr (Retd.) MUHAMMAD SHARIF----Plaintiff

Versus

Lt. Col. (Retd.) GHULAM FARID and another----Defendants

Suit No.733 of 2003, decided on 29th May, 2020.

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

----S.12---Contract Act (IX of 1872), S.10---Specific performance of agreement to sell---Agreement/contract---Scope---Plaintiff filed suit for specific performance of agreement to sell executed between him and the defendant---Defendant had admitted his signatures, thumb impressions on the agreement to sell, however, he had denied that the agreement was entered between him and the plaintiff---Precise stance of the defendant was that since the name and signature of the plaintiff were subsequently inserted without his consent, therefore, the agreement was not enforceable---Validity---Back side of the stamp papers showed that the same were purchased for the agreement of sale in the names of both the plaintiff and defendant---Attesting witnesses had categorically mentioned in their respective affidavits on oath that the agreement was executed before them by the defendant after receiving the advance part payment of sale consideration---All material terms which were pre-requisite or essential in forming a valid contract were available---Preponderance of the evidence led to the conclusion that the subject contract was a valid, conclusive and binding contract in terms of S.10 of the Contract Act, 1872 and was executed between the plaintiff and defendant---Defendant was directed by the court to perform his part of the obligation in terms of the contract of sale---Suit was decreed accordingly.

Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760; Muhammad Yaqub v. Muhammad Nasrullah and others PLD 1986 SC 497; Mst. Mushraf Begum and another v. Abdul Wahab 1997 MLD 1975; Sher Shah v. Muhammad Suleman and 2 others 2013 YLR 1017; Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334; Rashid Ahmed Khokhar and 2 others v. Sana Ullah and another 1997 CLC 1159; Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808; Hafiz Tassaduq v. Muhammad Din through legal heirs and others PLD 2011 SC 241 and Shaukat Ali v. Muhammad Razzaq 2018 CLC 1624 ref.

Reza Iqbal v. Royal Group though Attorney PLD 2011 Kar. 524 rel.

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

----Chap. VI [Arts. 102 to 110]---Exclusion of oral evidence by documentary evidence---Scope---Oral statement/evidence cannot exclude the documentary evidence.

Elahi Bakhsh through Legal Heirs and others v. Muhammad Iqbal and another 2014 SCMR 1217 ref.

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

----S.10---Agreements which are contract---Scope---Essential elements of a valid and binding contract are proper offer and proper acceptance; lawful consideration and competency or capacity to contract.

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

----S.12---Specific performance of agreement to sell---Deposit of balance sale consideration---Scope---Party seeking specific performance of an agreement to sell is essentially required to deposit the balance sale consideration amount in court---By making such deposit the plaintiff demonstrates its capability, readiness and willingness to perform its part of the contract, which is essentially pre-requisite to seek specific performance of contract---Failure of a party to meet the said essential requirement disentitles him to the relief of specific performance, which undoubtedly is a discretionary relief.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 ref.

Muhammad Idrees Sukhera for Plaintiff.

Khalid Javed, Farkhunda Shaheen and Barrister Yousuf Makdra for Defendant No.1.

Nemo. for Defendant No.2.

2021 C L C 1904

[Sindh (Hyderabad Bench)]

Before Arshad Hussian Khan, J

SOHAIL ABBASI----Petitioner

Versus

Mst. KHSHBOO and others----Respondents

C.P. No.S-421 and M.As. Nos.1110, 1111, 1112 of 2020, decided on 15th February, 2021.

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

----Arts. 128 & 2(9)---Family Courts Act (XXXV of 1964), S.5, Sched.---Suit for maintenance allowance of minor---Dissolution of marriage---Legitimacy of the child born after dissolution of marriage---Proof---DNA test of child---Admissibility ---Where dispute arose as to paternity of a child and no direct evidence was available to ascertain paternity, the mode of presumption was to be resorted to in order to fill the void of factual evidence---Difference of opinion existed among the Muslim scholars as to what should be the maximum period of time for extending paternity to a child born after the dissolution of marriage--- Legislature had enacted Art. 128 of the Qanun-e-Shahadat, 1984, in line with Hanafi point of view, according to which, a child, born after six lunar months of marriage and within two years after dissolution of marriage; the mother remaining unmarried , would be considered legitimate and attributed to his/her putative father---Said fact was regarded as a ' conclusive proof' and no evidence could be admitted to refute the same--- Article 2(9) of Qanun-e-Shahadat, 1984, stipulated that 'when one fact was declared by Qanun-e-Shahadat, 1984, to be conclusive proof of another, the Court shall, on proof of one fact, regard the other as proved; and shall not allow evidence to be given for the purpose of disproving the same---Two exceptions to said provisions were, firstly, if the child was disowned by the father and, secondly, if the child was born after six lunar months once the mother declared expiry of her iddat period---In view of the said principles, the legal framework of paternity did not leave much space for the admissibility of DNA evidence---In the present case since legitimacy of child had been established as son of the petitioner/defendant , therefore, it was his duty to maintain his son according to his financial status---Family Court had fixed maintenance allowance of minor keeping in view the financial status of the petitioner/defendant---No illegality or irregularity was found in the concurrent findings passed by both the Courts below--- Constitutional petition was dismissed, in circumstances.

Muhammad Arshad v. Sughran Bibi and 2 others PLD 2008 Lah 302 and Sharafat Ali Ashraf v. Additional District Judge, Bahawalpur and 3 others 2008 SCMR 1707 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---Jurisdiction conferred under Art.199 of the Constitution was discretionary with the object to foster justice in aid of justice and not to perpetuate injustice, however, if it was found that substantial justice had been done between the parties, then said discretion could not be exercised---So far as the exercise of the discretionary powers in upsetting the order passed by the Courts below was concerned, High Court had to comprehend what illegality or irregularity and/or violation of law had been committed by the Courts below which caused miscarriage of justice.

Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 ref.

Ghulam Sarwar Qureshi for Petitioner.

2021 C L C 1931

[Sindh]

Before Mohammad Shafi Siddiqui, J

Messrs JIANGSU DAJIN HEAVY INDUSTRY CO. LTD. through local duly authorized agent----Appellant

Versus

PORT QASIM AUTHORITY (PQA) through Chairman and 2 others----Respondent

Miscellaneous Appeal 03 of 2021, decided on 3rd June, 2021.

Public Procurement Rules, 2004---

----Rr.25, 29, 36 & 48 (5)---Public procurement---Tender conditions---Evaluation criterion, assailing of---Principle of res integra---Applicability---Appellant company participated in bidding process and after it was disqualified assailed evaluation criterion of technical bid---Validity---Procuring Agency was enabled under R.25 of Public Procurement Rules, 2004, to require from bidders to furnish bid security but it did not restrict procuring agency to act under R.29 of Public Procurement Rules, 2004 to formulate an appropriate evaluation criterion listing all information against which a bid was to be evaluated---Such evaluation criteria (within frame of law) formed an integral part of bidding documents---Appellant company was aware of tender conditions participated in tender and could not challenge or dislike prerequisites meant for technical qualification---Appellant company could only expect judicious treatment within the playing rules---Held, it was too late for appellant company when it realized that playing conditions were not palatable to it---Situation faced by appellant company was not res integra---Any term within frame of law was not open for judicial review even under the hierarchy of procurement laws---Procuring agency was enabled under R.25 of Public Procurement Rules, 2004 to require bid security not exceeding five percent of bid price to be furnished by every bidder and procuring agency could save its effectiveness for a period as they required in terms of R.26 of Public Procurement Rules, 2004---High Court declined to interfere in tender process which led to award tender in favour of respondent---Appeal was dismissed, in circumstances.

Central Coalfield Limited v. SLL-SML (Joint Venture consortium) AIR 2016 SC 3814 rel.

Zaheerul Hassan Minhas for Appellant.

Hussain Ali Almani for Respondent No.1.

Nemo. for Respondent No.2.

Asfandyar Jahangir for Respondent No.3.

Zahid Khan, Assistant Attorney General on Court Notice.

2021 C L C 1987

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MUHAMMAD NASEER and others----Applicants

Versus

HYDERABAD MUNICIPAL CORPORATION and others----Respondents

Revision Application No.S-28 of 2008, decided on 9th October, 2020.

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

----S.42---Sindh Katchi Abadis Act (II of 1987), S. 19---Suit for declaration---Declaration of Katchi Abadi---Land belonging to Provincial Government---Scope---Case of plaintiff was that the municipal corporation auctioned the suit property to him, hence a right was created in his favour which could not be extinguished by the official defendants---Contention of official defendants was that if the successful bidder failed to comply with the terms and conditions including full payment in time, the competent authority was empowered to resume the plot and refund the whole amount deposited and that the plaintiff had not complied with the said procedure, therefore, he did not have right over the suit land---Validity---Plaintiff had sought declaration as to the ownership of subject plot without a title document---Such declaration was barred for the simple reason that the subject plot belonged to Provincial Government and fell within the ambit of Sindh Katchi Abadis Act, 1987---Municipal corporation had no title to the auctioned property---Suit of the plaintiff was not maintainable---Revision application was allowed and the impugned orders were set aside, in circumstances.

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

----S.115---Revision---Interference by High Court---Scope---Material illegality---Scope---Where the findings on a question of law arrived at by the courts below are based on conjectures or fallacious appraisal of evidence on record then material irregularity/illegality is committed and High Court can interfere in exercise of its revisional jurisdiction.

Jan Muhammad Khan v. Shah Mir Hussain 1985 SCMR 2029; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Muhammad Sain v. Muhammad Din 1996 SCMR 1918 and Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 ref.

Attorney of Applicant No.1 present in person.

Abdul Rasheed Mughal for Applicants Nos.2 to 5.

Aqeel Ahmed Siddiqui for Respondent No.5.

Imran Qureshi for Hyderabad Municipal Corporation.

Allah Bachayo Soomro, A.A.G Sindh.

2021 C L C 2011

[Sindh]

Before Zafar Ahmed Rajput, J

P.E.C.H., SOCIETY LIMITED through Assistant Administrative Officer----Applicant

Versus

HABIB-UR-RAZZAQ and 2 others----Respondents

Civil Revision No.203 of 2010, decided on 26th August, 2019.

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

----S.115---Revisional jurisdiction of High Court---Principle---Where Trial Court erroneously ponders that it has or has no jurisdiction to adjudicate a matter or to pass a particular order with regard to assumption of jurisdiction there is either an illegal assumption of jurisdiction or a failure to exercise jurisdiction which it has---Where in such a case order of Trial Court as to its own jurisdiction is appealed against and appellate Court either confirms such order or reverses it, such decision of appellate Court is revisable under S.115, C.P.C.

Major Rashid Baig v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443; Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286 and Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 rel.

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

----Ss.54, 70 & 70-A---Business of society--- Bar to jurisdiction of Civil Court---Principle---Statutory notice, non-issuing of---Respondent-plaintiff was member of petitioner-defendant, a cooperative housing society and assailed cancellation of a plot allotted to him--- Suit filed by respondent-plaintiff was concurrently decreed in favour of respondent-plaintiff---Validity---Bar of jurisdiction under S.54 of Co-operative Societies Act, 1925, could effectively invoked in a dispute, which related or had touched business of society, such dispute could be by and between the members, past members or any person claiming through or under such member or by such person against past or present officer of the society or inter se between society and / or its committee---Principle of jurisdiction that where a statute created right and also provided mechanism for enforcement of that right, then resort must be had to procedure prescribed in statute creating the right for its enforcement and jurisdiction of general Civil Courts was barred---No notice under S.70 of Co-operative Societies Act, 1925, was served on Registrar---Trial Court had illegally assumed its jurisdiction to entertain suit of respondent-plaintiff which was barred by law and was not maintainable---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two Courts below and dismissed the suit filed by respondent-plaintiff---Revision was allowed, in circumstances.

Sajjad Ahmed and others v. Muhammad Haneef Siddiqui and others NLR 1989 Civil 541; Muhammad Ali Memorial Co-operative Housing Society Ltd.. Karachi v. Syed Sibtey Hasan Kazmi PLD 1975 Kar. 423; Al-Riaz (Shalimar Town) Ltd. v. Muhammad Hassan Lodho and another 1982 CLC 2167; Darul Aman Co-operative Housing Society Limited v. Secretary Government of Pakistan and others 1995 MLD 1553; Muhammad Haroon Usman v. Rizwan Co-operative Housing Society and 11 others 1991 CLC 1917; Zia-ur-Rehman Alvi v. Messrs Allahabd Co-operative Housing Society Limited and 2 others PLD 1995 Kar. 399; The Life Insurance Corporation of Pakistan v. Messrs Cooperative Insurance Society of Pakistan Limited and I5 others 1992 CLC 1872; Moula Bux @ Nouman and another v. Governor of Sindh/Chancellor University of Sindh Jamshoro and others 2014 PLC (C.S.) 1217; Z.A. Qureshi v. Pakistan Defence Officers Housing Authority 1994 MLD 338; Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410; Falak Khurshid v. Fakhar Khurshid and others 2006 SCMR 595; Rana Nazir Ahmed v. Mst. Azra Uzman and 5 others 2015 CLC 334; Rafaqat Ali and others v. Mst. Jamshed Bibi and others 2007 SCMR 1076; Jetandar Kumar and 2 others v. Mst. Bibi Meena alias Ameerzaid through legal heirs PLD 2000 Kar. 280; Nizar Ali v. Noorabad Cooperative Housing Society Ltd. and others PLD 1987 Kar. 676; The Gujranwala Co-operative Marking and Supply Society Ltd. Gujranwala v. The Rural Supply Co-operative Corporation Ltd. Lahore 1980 CLC 1721; Pakistan Defence Officers Housing Authority Karachi through Secretary v. Syed Naseemuddin Alvi and another 2011 MLD 1969 and Dr. Zahir Ansari and others v. Karachi Development, Authority and others PLD 2000 Kar. 168 ref.

Syed Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi and another PLD 1978 Kar. 612 rel.

Saifuddin for Applicant.

Wafi Khan Yousufzai for Respondent No.1.

Nemo. for Respondent No.2.

Nemo. for Respondent No.3.

2021 C L C 2051

[Sindh]

Before Nazar Akbar, J

MUHAMMAD NAZIR AWAN----Plaintiff

Versus

IMTIAZ FATIMA RIZVI and another----Defendants

Suit No.1279 of 2017, decided on 12th July, 2021.

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

----Art.17 & 117---Constitution of Pakistan, Arts. 24 & 172---Danger of mis-appropriation of suit property---Power/duty of Court to take possession and declare as ownerless---Suit for specific performance---Plaintiff allegedly paid Rs.27,900,000/- to defendants through cheques for purchasing suit property---Balance amount of Rs.31,00,000/- was agreed to be paid at the time of transfer of the property in the name of plaintiff---Plaintiff averred that he cleared the utility bills/charges, and also paid a sum of Rs.11,00,000/- for obtaining completion plan of the suit property to relevant authority on request of defendants; yet the defendants not willing to transfer property despite many requests made by contacting them through different methods---Plaintiff sent legal notice and thereafter filed suit for declaration/specific performance---Notices sent but on non-appearance of defendants no effort was made to serve them through publication---Court ordered for ex parte proceeding---Plaintiff deposited balance sale consideration amount with the Nazir---Ad-interim order earlier granted was confirmed---Held, that irrespective of absence of defendants, the plaintiff had to prove existence of facts to get the judgment---Token money was through undated cheque and name of the drawee bank was not disclosed---None of the two witnesses of receipt had been produced to testify---Other cheque was in the name of none of the defendants---Cheque was not proof of payment of sale consideration nor was there any receipt of even handing over of such cheque to any of the defendants---Such cheque had not been shown to have been encashed by the recipient---Plaintiff also failed to prove execution of sale agreement under Art. 79 of Qanun-e-Shahadat, 1984---None of the witnesses of the sale agreement was produced and a copy of another receipt annexed thereto showing payment of amount was not attested by any one though relating to financial transaction---Cheque number, name of recipient and bank was not mentioned in the agreement/receipt despite the alleged fact that sale agreement was preceded by the payment---Signatures of one of defendant on first ever receipt of token payment were entirely different from his purported signatures on sale agreement and were even distinguishable by naked eye-Photocopy of dubious general power of attorney not bearing specimen signature of attorney, not properly stamped, and not authorizing the said defendant to execute sale agreement; hence further damaged the case of the plaintiff regarding the possession of the suit property---Plaintiff's possession on suit property was also illegal as per even the inadmissible said power of attorney as the plaintiff admitted that he had not paid entire sale consideration to claim possession---Alleged payment for obtaining completion plan also not proved---Copy of alleged legal notice had not been produced---Plaintiff's deliberate failure for 5 years to verify the particulars of seller and his/her title as prudent man before/after payment of token money to defendant leaded that no such transaction had even taken place---Plaintiff was not entitled to discretionary relief of specific performance---High Court directed the Nazir of the Court to visit the suit property within 24 hours, take photographs from inside to preserve the status of property, thereafter takeover possession of the suit property from the plaintiff within 15 days and ensure that all the dues of bills/charges were cleared by the occupant---Area police should also be informed in advance to handle situation in any resistance---Nazir was authorized to remove locks and prepare an inventory of all the items lying therein and place his locks and seal on each door of the suit property---Nazir was further directed to approach NADRA authorities in locating the actual owner through her Overseas Pakistani NIC no. as mentioned in evidence file, and place a board in front of property stating that property was in possession of High Court and whoever knowing whereabouts of the owner should approach the Nazir thereof---After six month the suit property should be deemed to have been escheated to the State in terms of Art.172 of the Constitution---Suit was dismissed accordingly with cost of Rs.100,000.

(b) Constitution of Pakistan---

----Art. 23, 24 & 172---Danger of mis-appropriation of un-attending party---Plaintiff's alleged sale agreement had not been proved who attempted to misuse the process of Court for giving legal cover to his unlawful possession of the suit property---No one had come forward to claim the suit property, which confirmed that the whereabouts of actual female owner of the suit property were not traceable and suit property was in danger of mis-appropriation---As to ensure that unscrupulous person/plaintiff should not be allowed to remain in possession of the suit property taking advantage of either his own knowledge that the defendant/owner had expired or otherwise her whereabouts could not be traced in Pakistan, Court had duty to invoke the provisions of clauses (b) & (d) of sub-Article 24(3) of the Constitution to remove the illegal occupant and handover it to the State to protect the immoveable property.

(c) Constitution of Pakistan---

----Art.172---Succession Act (XXXIX of 1925), Ss.269 & 300---Power/duty of court to declare the suit property as 'ownerless'---If Court was satisfied that none is known to the Court for having any right/entitlement in the suit property and/or that there was 'risk of loss or damage' to the suit property, the Court would first require to find out the actual owner/its legal heirs before holding that the suit property was escheatable and liable to be declared as an ownerless property.

Arshad Iqbal Rana for Plaintiff.

Imtiaz Fatima Rizvi for Defendant No.1.

Syed Muhammad Mehdi Rizvi (Nemo) for Defendant No.2.

2021 C L C 2080

[Sindh]

Before Syed Hasan Azhar Rizvi, J

PAK AIRLIFT AVIATION SERVICES ATTORNEY----Plaintiff

Versus

GULF AIR B.S.C.(C) and another----Defendants

Suit No.1494 and C.M.As. Nos.10021, 1022 an 1074 of 2020, decided on 11th January, 2021.

Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----S.4---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Arbitration proceedings---Plaintiff was aggrieved of termination of its appointment of General Sales Agent for Cargo sales in Pakistan by Defendant company---Validity---No relationship or agreement between plaintiff and defendant company existed after 8-9-2020, whereas plaintiff's claim was that defendant company had extended period of agreement for six months from 9-9-2020 to 8-3-2021---Covid-19 situation all over the world was referred to in repeated exchange of emails between plaintiff and defendant company with reference to agreement---Referring the matter to arbitrator and to stop proceeding of suit would be a futile exercise---Defendant company had already entered into a fresh agreement with another company whereby that agreement would be governed by and construed in accordance with laws of Pakistan---For the extension of agreement from 9-9-2020 to 8-3-2021 the instance of defendant was to refer the matter to arbitrator---Email of defendant company produced on record, contained that any contract exceeding five years was to go through tender process---Plaintiff sought extension only for a period of six months for which no permission of Board in terms of email in question was required---High Court declined to refer the matter to arbitration and interim injunction was passed---Application was allowed accordingly.

PLD 1972 Kar. 119, 1986 CLC 1408; 1999 MLD 2881; PLD 1970 SC 373; PLD 1978 Kar. 273; PLD 1985 Kar. 745; 1996 SCMR 690; PLD 1986 Kar. 01; 1984 CLC 1643 and PLD 1952 Dacca 22 ref.

2013 CLD 291; 2015 CLD 1655; PLD 1965 SC 83; 1998 SCMR 376 and 1997 SCMR 1508 distinguished.

Rasheed A. Rizvi, Tahmas Rasheed Rizvi and Nabeel Ahmed Khan for Plaintiff.

Chaudhary Faisal Nawaz and Amna Salman for Defendant No.1.

Muhammad Imran Aslam, Finance Manager for Defendant No.2.

2021 C L C 1

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

MUHAMMAD MOHSIN RAFIQ and others----Petitioners

Versus

Messrs SIDDIQUI & CO.----Respondent

I.C.A. No.47541 of 2020, decided on 1st October, 2020.

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

----S.2(14) & O.XLIII---"Order"---Connotation---Word 'order' means the formal expression of any final decision--- Any order which is not found on any decision is devoid of attaining status of an order.

(b) Contempt of Court Ordinance (IV of 2003)---

----Ss.3 & 19---Constitution of Pakistan, Art. 204---Contempt of Court---Words 'orders passed in contempt'---Scope---Importer was aggrieved of non-compliance of orders of release of vehicle by Customs Authorities, therefore, he filed contempt application---Single Judge of High Court before invoking contempt proceedings allowed one week time to the authorities for compliance of the order--- Validity--- Only such orders, decisions, judgments which finally terminated contempt proceedings against contemnor were appealable--- Words 'orders passed in contempt' meant the order only awarding punishment and it was that order which could be assailed in Intra Court Appeal--- Interlocutory, interim or procedural orders did not fall within the ambit of order passed in contempt of Court--- Authorities assailed interim procedural order of Single Judge of High Court which they were deliberately avoiding to comply with the direction and lingering on the matter on one pretext or the other--- Intra Court Appeal was dismissed, in circumstances.

West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912; M.H. Khondkar and another v. The State and another and M. Noman v. The Dacca Improvement Trust and 3 others 1971 SCMR 743; Midnapore Peoples Co-op. Bank Ltd. v. Chunilal Nanda AIR 2006 SC 2190; B.N.Taneja (IFS) v. Bhajan Lal 1988 (3) SCC 26; Union of India v. Mario Cabrale Sa AIR 1982 SC 691; State of Maharashtra v. Mahboob S. Allibhoy 1996 (4) SCC 411 and J.S. Parihar v. Ganpat Duggar 1996 (6) SCC 291 ref.

2021 C L C 25

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. TAMEEZAN and others----Petitioners

Versus

MUHAMMAD SHARIF----Respondent

C.R. No.722 of 2017, heard on 29th September, 2020.

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

----O.IX, R.13, O.V, Rr.19 & 20---Constitution of Pakistan, Art.10-A---Ex-parte decree, setting aside of---Merits of original lis to be considered---Failure to examine serving officer---Effect---Petitioners assailed the dismissal of their application for setting aside ex-parte proceedings as well as decree, which was dismissed on the sole ground of li mitation---Validity---High Court observed that nothing was brought on file to adjudge that the defendants were avoiding service and without recording of the statement of process server to that effect, their substituted service through issuance of proclamation was not warranted---Question of limitation in institution of suit and locus standi of plaintiff being legal propositions were required to be considered by the Trial Court but without taking any pains, ex-parte decreed the suit merely being influenced by the fact that there was no rebuttal to the stance of the plaintiff---Even otherwise, while dealing with application for setting aside ex-parte decree, merits of the original lis could be considered---Summary rejection of the application was against the principles of natural justice as well as the concept of fair trial guaranteed by Art. 10-A of the Constitution---Revision petition was allowed, impugned orders were set aside and the Trial Court was directed to re-decide the application for setting aside ex-parte proceedings and decree.

Hassan Din and another v. Jalal Din and 2 others 1992 CLC 33 and Muhammad Idrees v. Muhammad Kashif 2008 MLD 1448 ref.

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

----O.IX, R.13---Ex-parte decree, setting aside of---Merits of original lis to be considered---Scope---Court while dealing with the application for setting aside ex-parte decree can consider merits of the original lis.

Sharjeel Ejaz, M. Shafique Ahmad and Rana M. Ashraf for Petitioners.

Nemo. for Respondent.

2021 C L C 42

[Lahore (Multan Bench)]

Before Asim Hafeez, J

MEHAR ALI----Petitioner

Versus

KARIM BAKHSH (DECEASED) through L.Rs. and others----Respondents

R.S.A. No.27 of 2012, decided on 7th October, 2020.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 78, 81 & 140---Specific performance of agreement to sell---Proof of sale--- Previous statement, failure to confront--- Admission, non-reliance of--- Plaintiff alleged that defendants received earnest money regarding suit land and had denied to conclude the agreement--- Defendants specifically denied receipt of any earnest money as well as execution of any agreement to sell---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court reversed the findings and dismissed the suit---Validity---Defendant was not confronted with alleged previous writing in terms of affidavit, forming part of document produced by plaintiff with alleged signatures of defendant who evasively responded that affidavit was admitted wherein execution of agreement and receipt of consideration were acknowledged as such the same was misconceived---Omission to confront defendant with contents of affidavit and alleged signatures thereupon was fatal in terms of Art.140 of Qanun-e-Shahadat, 1984--- Plaintiff failed to prove execution of agreement to sell in accordance with the mandate of Art.78 of Qanun-e-Shahadat, 1984 and no reliance could be placed on alleged affidavit, without confronting the same to defendant to allege any admission in terms of Art.81 of Qanun-e-Shahadat, 1984---Plaintiff could not bank upon alleged deficiencies regarding testimony of defendants or his failure to prove transaction of exchange when plaintiff failed to prove execution of agreement to sell---High Court in exercise of appellate jurisdiction declined to interfere in judgment and decree passed by Lower Appellate Court---Second appeal was dismissed, in circumstances.

Syed Muhammad Sultan v. Kabir-ud-Din and others 1997 CLC 1580 ref.

(b) Pleadings---

----Evidence---Scope---When contents of plaint and evidence do not support each other the evidence beyond pleadings becomes irrelevant and ineffective.

Rafiq Ahmad Malik for Appellant.

2021 C L C 58

[Lahore]

Before Atir Mahmood, J

AHMED alias AHMED ALI----Petitioner

Versus

FALAK SHER (DECEASED) through LRs and others----Respondents

Civil Revision No.15868 of 2019, heard on 30th September, 2019.

Civil Procedure Code (V of 1908)---

----O.XLI, R.1 & O.XXII, R.4---Suit for specific performance of agreement to sell---Appeal against dead man--- Delay in filing of appeal---Suit was decreed in favour of plaintiff and appeal filed by defendant was dismissed by Lower Appellate Court as barred by time---Validity---Defendant had been appearing before Executing Court to contest execution petition, therefore, he was well within knowledge about death of decree holder---Defendant filed appeal on 16-1-2019 against the deceased who was no more in the mortal world since 10-8-2005---No appeal could be filed against dead person, therefore, time consumed during pendency of appeal against a dead person could not be condoned---Appeal which was though filed after withdrawal of earlier one on 5-3-2019 was considered as the first appeal and was barred by time---Delay in appeal was result of negligence of defendant who was well within the knowledge of factum of death of plaintiff---Lower Appellate Court rightly dismissed the appeal which was barred by time---Revision was dismissed in circumstances.

Ch. Haroon ur Rashed Gujjar for Petitioner.

Arshad Ali Chohan for Respondent.

2021 C L C 76

[Lahore]

Before Ayesha A. Malik, J

Syed ASHFAQ ALI SHAH----Petitioner

Versus

MAQTOOL AKHTAR (DECEASED) through Legal Heirs and others----Respondents

W.P. No.9328 of 2013 and C.M. No.4 of 2020, decided on 6th November, 2020.

Civil Procedure Code (V of 1908)---

----S.12(2)---Bar to further suit---Element of fraud---Scope---Respondent filed suit for declaration with permanent injunction against the petitioner wherein he prayed for an order declaring him owner in possession of the suit property---Suit was decreed ex-parte---Respondent, thereafter, sold the property to purchasers---Petitioner moved application for setting aside the ex-parte decree, which was allowed on the conceding statement of respondent---Suit was heard and the same was withdrawn by respondent---Purchasers after attaining knowledge of the withdrawal of suit filed application under S.12(2), C.P.C.---Trial Court while concluding that the respondent could not have made any conceding statement as he had no proprietary rights in the suit property allowed the application under S.12(2), C.P.C. and the suit was deemed to be pending where the respondent was directed to implead relevant parties for the matter to be decided on its merits---Appellate Court concluded that there was a collusive effort by respondent and the petitioner, hence the application was rightly allowed---Validity---High court observed that both the courts below had duly considered the record and the evidence from which the element of the fraud was evident---No case for interference was made out---Constitutional petition was dismissed.

Rana Zia Abdul Rehman and Nawab-ur-Rehman for Petitioner.

Chaudhry Sadaqat Ali for Respondents Nos.7, 8 and 9.

Barrister Haris Azmat, Barrister Maryam Hayat and Muhammad Faizan Azhar for Respondents Nos.10 of 12.

Sheikh Naveed Shaharyar for Respondent No.11.

2021 C L C 87

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD SALEEM NASEEM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DUNYAPUR, and 12 others----Respondents

Writ Petition No.13500 of 2018, decided on 17th September, 2020.

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

----O.VI, R.17 & O.I, R.10---Pleadings---Amendment in---Court may strike out or add parties---Scope---Petitioner filed suit for specific performance, defendant during pendency of the suit transferred the suit property in favour of others, subsequent purchasers were impleaded as parties in the suit on their application under O.I, R.10, C.P.C. and the petitioner filed application under O.VI, R.17, C.P.C. for amendment to the extent of cancellation of mutations in favour of subsequent purchasers, which was concurrently dismissed---Validity---Sub-rule (4) of O.I, R.10, C.P.C., provided that where a defendant was added, the plaint would, unless the court otherwise directed, be amended in such manner as might be necessary---Once the application of subsequent purchasers was granted and they were allowed to be impleaded as defendants, the petitioner was legally entitled to seek permission for amendment in the plaint to challenge the validity of transactions during the suit---Revision petition was allowed, impugned order was set aside and the application under O.VI, R.17, C.P.C. was accepted.

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

----O.VI, R.17---Pleadings---Amendment in---Scope---Order VI, Rule 17, C.P.C., contemplates that the court may at any stage of the proceedings allow the parties to alter or amend the pleadings in such manner as may be just and all amendments which may be necessary for the purpose of determining the real question in controversy between them---Application under O.VI, R.17, C.P.C., can be entertained and allowed at any stage of the proceedings if the same is necessary for effective decision thereof.

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

----O.VI, R.17---Pleadings---Amendment in---Expiry of limitation period---Scope---Delay in praying for amendment or expiry of period of limitation is not a ground to refuse amendment in the plaint and all such amendments which are necessary for the determination of the real question in controversy can be made.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

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

----O.I, R.10---Court may strike out or add parties---Scope---Order I, Rule 10, C.P.C., provides that the court at any stage of the proceedings either upon an application by either party or of its own can direct impleadment of a person if his presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit.

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

----S.52---Transfer of property pending suit relating thereto---Scope---Where alienation of property is made by a party to the lis during the pendency of the suit, the transferee does not acquire any title free from clog of his unsuccessful transferor in whose shoes he stepped and for all intents and purposes, he shall have to swim and sink with his predecessor-in-interest and that the transferee of the suit even if for value and without notice who in ordinary judicial parlance is known as bona fide purchaser, in view of the rule/doctrine of lis pendens, shall be bound by the result of suit stricto sensu in all respects as the transferor will be bound.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 rel.

Ch. Muhammad Zulfiqar Chheena for Petitioner.

2021 C L C 103

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

DEFENCE SCIENCE AND TECHNOLOGY ORGANIZATION through Director General ----Petitioner

Versus

ARIF ENGINEERING INTERNATIONAL through Sole Proprietor--- Respondent

Civil Revision No.385 of 2019, heard on 17th December, 2019.

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

----O.VII, R.11---Suit for recovery of money---Rejection of plaint---Barred by time---Defendant was aggrieved of dismissal of his application by Trial Court declining to reject the suit being barred by time---Validity---Cause of action was required to be ascertained through recording of evidence---Explicit acknowledgment existed on behalf of plaintiff that many times and finally on 15-9-2015 defendant was directed to make payments which was not done---Date of occurrence of cause of action agitated by plaintiff was 15-9-2015 and suit was filed on 20-7-2018 and was apparently within time as per assertion of plaintiff, which was to be proved through evidence---Question of limitation was mixed question of law---High Court in exercise of revisional jurisdiction declined to interfere in the order passed by Trial Court as the same was well reasoned touching the very roots of plea raised by defendant---Revision was dismissed, in circumstances.

Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Pakistan Refinery Ltd. v. Pakistan Natiional Shipping Corporation and 2 others 1986 CLC 644 and Messrs Imperial Builders through Managing Partner and another v. Lines (Pvt.) Limited through Chief Executive and 3 others PLD 2006 Kar. 593 ref.

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

----S.115---Revision---Non-filing of complete record---Effect---Petitioner is mandatorily to file copies of all documents with revision under S.115 C.P.C., otherwise revision petition is liable to be dismissed.

Usman Jillani for Petitioner.

Barrister Gohar Ali Khan along with Ayub ur Rehman, Superintendent (Legal) for Respondent.

2021 C L C 126

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD YOUNUS----Petitioner

Versus

PAKISTAN POST through Divisional Superintendent, Sialkot----Respondent

Civil Revision No.222579 of 2018, decided on 18th June, 2020.

Civil Procedure Code (V of 1908)---

----S.47 & O. XLI, R. 5---Limitation Act (IX of 1908), Art. 181 & S.15---Suit for possession of immovable property---Appeal---Execution petition---Limitation, commencement of---Plaintiff filed suit for possession of immovable property which was decreed---Execution petition was moved wherein applicant filed objection petition that execution petition was time barred---Executing Court dismissed the objection petition which order was maintained by the Appellate Court---Validity---Time during which execution proceedings remained suspended should be excluded while computing period of limitation---Decree of Trial Court would continue to maintain its identity and would be capable of execution---Mere filing of appeal did not operate as a stay of execution of decree---Appellate Court had powers to issue stay order against execution of a decree---Mere filing of execution petition did not render the appeal infructuous---Decree remained capable of execution till an appeal or revision was filed or such proceedings were pending but no stay order had been passed---No limitation had been provided for execution of a decree of Civil Court which had merged into decree of Appellate Court---Limitation for execution of decree would commence from accrual of right to apply and such right would start when appeal or revision had been finally disposed of by the last higher forum---Limitation period for filing execution petition would be reckoned from the date of appellate decision---Revision was dismissed, in circumstances.

Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5; Muhammad Iqbal v. Additional District Judge, Rahimyar Khan and others PLD 2011 Lah. 497; Kareem Nawaz Khan v. The State through PGP and another 2016 SCMR 291; Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358 and Pervaiz Rasheed and others v. Ex-Officio Justice of Peace and others 2016 YLR 1441 ref.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Muhammad Nazir and another v. Qaiser Ali Khan and 4 others 2003 SCMR 436; Dost Muhammad v. Muhammad Rafiq 2003 YLR 1908; Rasheed Ahmad and 7 others v. Farrukh Ameen and 3 others 2016 YLR Note 87 and Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 PC 165 rel.

Malik Amjad Pervaiz for Petitioner.

Monim Sultan, Assistant Attorney General for Respondents.

2021 C L C 141

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

Malik MUHAMMAD RAMZAN----Petitioner

Versus

ADMINISTRATOR CHAIRMAN MARKET COMMITTEE RAJANPUR and others----Respondents

C.R. No.990 of 2019, decided on 11th October, 2019.

Punjab Agriculture Produce Markets Rules, 1979---

----R.76---Civil Procedure Code (V of 1908), O.VII, R.10--- Suit for declaration--- Return of plaint--- Civil Court, jurisdiction of--- Dispute was with regard to cancellation of licence to use PHATTA (platform), allotted to plaintiff / petitioner by Market Committee--- Trial Court as well as Lower Appellate Court returned the suit to plaintiff / petitioner for want of jurisdiction in the matter--- Validity--- Jurisdiction of Civil Court could not be deemed to be barred--- Civil Court retained jurisdiction to examine acts and orders of Market Committee with a view to satisfy if the same were in conformity with the statute under which it was passed, to see if the authority had acted in accordance with the provisions of statute or beyond its scope--- Provision under R.76 of Punjab Agriculture Market Committee Rules, 1979, providing a remedy of appeal did not apply to the situation or the order as agitated in the suit--- Civil Court was not debarred from taking cognizance and examine the matter as a court of plenary jurisdiction to determine if the orders under challenge were without jurisdiction or in accordance or inconformity with the statute and if the authority had not acted without lawful authority--- High Court remanded the matter to Civil Court as its jurisdiction was not barred and plaint could not have been returned to plaintiff / petitioner--- Revision was allowed, in circumstances.

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC (Pak) 201 ref.

Muhammad Faisal Bashir Chaudhary for Petitioner.

2021 C L C 178

[Lahore]

Before Shahid Karim and Ch. Muhammad Iqbal, JJ

LAHORE RING ROAD AUTHORITY and others----Petitioners

Versus

Mian MUMTAZ AHMAD and others----Respondents

R.F.A. No.306 of 2008, decided on 28th February, 2020.

Land Acquisition Act (I of 1894)---

----Ss.18, 4 & 23---Punjab Land Acquisition Rules, 1983, R.10---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Opinion of land expert---Scope---Referee Judge enhanced compensation amount from Rs.350,000/- per marla to Rs.650,000/- per marla along with 15% compulsory acquisition charges and 8% compound interest of the compensation amount starting from the date of taking over possession of acquired land till its realization---Validity---Landowners were bound to prove their claim through concrete and unimpeachable evidence; they had not produced sale deeds of the land adjacent to the acquired land---Sale deeds produced were with regard to distant land which were not helpful to prove the value of acquired land---No visual site plan was produced to substantiate the stance of landowners they should have produced the shajrah aks parcha or any valid document to prove location of acquired property but no such material evidence was available on record---Variation of a few feet in the location of property did change the value of land---Mere opinion of an expert without support of any documentary evidence could not by itself be considered enough for enhancement of compensation---Landowners were bound to mention the details of their property with supporting documents but same had not been done in the reference---Market value of the property was to be assessed from one existing in the preceding year of the date of issuance of notification under S.4 of Land Acquisition Act, 1894 and not from the date of pronouncement of award---Landowners had failed to prove the exact price as well as location of acquired land through tangible evidence---Party approaching the Court for grant of relief should have discharged the burden of proving his claim and it had to stand on its own legs---Referee Court had enhanced compensation merely on assumption and against the available record which was not in field---Findings recorded by the Trial Court were reversed and enhancement of compensation so determined was declared illegal---Appeal was allowed, in circumstances.

Abdul Sattar v. Land Acquisition Collector Highways Department and others 2010 SCMR 1523; Habibullah Khan and 4 others v. Collector, Quetta PLD 1984 Quetta 11; Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696; Abdul Sattar v. Land Acquisition Collector Highway Department and others 2010 SCMR 1523; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Secretary to Government of N.W.F.P. Peshawar and 15 others v. Haji Fateh Khan and 15 others 2001 SCMR 974; 2010 SCMR 1523; Sultan, Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Chairman, WAPDA and others v. Sarfraz Khan and another 2007 SCMR 1054 and Section Officer, Government of Punjab, Finance Department and others v. Ghulam Shabbir 2010 SCMR 1425 rel.

Ashfaq Qayyum Cheema and Moris Nadeem for Appellants.

Malik Ahmad Ali and Sardar Kalim Ilyas for Respondents.

2021 C L C 204

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

GHULAM MUSTAFA---Petitioner

Versus

JUDGE FAMILY COURT and another---Respondents

Writ Petition No. 18768 of 2019, decided on 26th November, 2020.

(a) Constitution of Pakistan---

----Arts. 9 & 14---Inviolability of dignity of man---Security of Person---Fundamental Right to Privacy---Nature of Constitutional right to privacy and human dignity---Right to privacy not absolute---Definition of "privacy"---Basic states of privacy---Right to privacy as basic human right---Islamic Perspective on Fundamental Right to privacy---Test to determine whether interference in right to privacy was justified where same came into conflict with interest of community---Historical perspective, comparative jurisprudence, and nature of Fundamental Right to privacy, extensively examined.

Robert Merton, Social Theory and Social Structures 429 (Free Press 1968); Thessalonians, 4:11; Samuel D. Warren and Louis D.Brandies, "The Right to Privacy", 4 HARV L REV 193 (1890); Treatise on the Law of Torts (1888); Durga Das Basu, Commentary on the Constitution of India (8th Edition) p.3257; Lawrence Lessing, Code and Other Laws of Cyberspace, p.153-55 (1999), Supreme Court of Pakistan in Justice Qazi Faez Isa v. The President of Pakistan and others (Constitution Petition No.17 of 2019 etc.); UN Human Rights Committee (HRC), ICCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988, available at: https://www.refworld.org/docid/453883f922.html [accessed 16 September 2020]; See www.ohchr.org >Privacy>Pages; James Michael, Privacy and Human Rights, UNESCO 1994 p.1 cited in the report prepared by the Global Internet Privacy Campaign available at gilc.org/privacy/survey/intro.html; Rachel L. Finn, David Wright and Michael Friedewald wrote in their paper "Seven Types of Privacy" (available at: https://www. researchgate.net/profile/ Michael_ Friedewald2/publication/258892458_ Seven_ Types_of_Privacy / links/Oc9605295d271f157000000 / Seven-Types-of-Privacy.pdf? origin= publication_datail]; K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1]; Alan F. Westin, Privacy and Freedom 7 (1967). Also see: Robert Sprague, Orwell was an Optimist: The Evolution of Privacy in the United States and Its De-Evolution for American Employees, 42 J. Marshall L. Rev. 83 (2008). Available at https://repository.jmls.edu/lawreview/vol42/ iss1/4; Privacy and Human Rights, An International Survey of Laws and Practice (available at: gilc.org/privacy/survey/intro.html); Jacobellis v. Ohio 378 US 184 (1964); Palko v. Connecticut, 302 US 319 (325) (1937); Dr. Muhammad Aslam Khakhi and others v. The State and others PLD 2010 FSC 1; Ghulam Hussain v. Additional Sessions Judge PLD 2010 Quetta 21; Translation by Abdullah Yusuf Ali: http://www.alim.org/library/quran/ayah/ compare/24/27-28; Translation by Abdullah Yusuf Ali: http://www.alim.org/library/quran/ ayah/compare/24/61; Translation by Abdullah Yusuf Ali: http://www.alim.org/library/ quran/ayah/compare/49/12; See: Ghulam Hussain v. Additional Sessions Judge PLD 2010 Quetta 21; https://sikku.blogspot.com/2007/09/right-to-privacy-in-islam.html?m=1; Wainwright v. Home Office (2003) UKHL 53; Human Rights Act in Campbell v. Mirror Group Newspapers Ltd. (2004) 2 AC 457; Satakunnan Markkinaporssi Oy and Satamedia Oy v. Finland App No 931/13 (ECHR 21 July 2015); Lady Hale in R (Tigere) v. Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820; Boyd v. United States 116 US 616 (1886); Katz v. United States 389 US 347 (1967); Robert Sprague, Orwell was an Optimist: The Evolution of Privacy in the United States and Its De-Evolution for American Employees, 42 J. Marshall L. Rev. 83 (2008). Available at https://repository.jmls.edu/ lawreview/vol42/iss1/4.; Loving v. Virginia 388 US 1 (1967); Stanley v. Georgia 394 US 557 (1969); Roe v. Wade [410 US 113 (1973); Planned Parenthood v. Casey 505 US 833 (1992); Cruzan v. Missouri Department of Health 497 US 261 (1990); Lawrence v. Texas 539 US 558 (2003); Durga Das Basu, Commentary on the Constitution of India, 8th Edition, p.3257; Paris Adult Theatre I v. Slaton 413 US 49 (1973): Obergefell v. Hodges 576 US 644 (2015); National Aeronautics and Space Administration (NASA) v. Nelson 562 US 134 (2011); Maryland v. King 569 US 435 (2013); M.P. Sharma v. Satish Chandra AIR 1954 SC 300 : 1954 SCR 1077; Boyd v. United States 116 US 616 (1886); Kharak Singh v. State of U.P. AIR 1963 SC 1295; Gobind v. State of M.P. (1975) 2 SCC 148; K.S. Puttaswamy v. Union of India (2017) 10 SCC 1; Navtej Singh v. Union of India 2018 AIR SC 4321; Munn v. Illinois (1877) 94 US 113; Shehla Zia and others v. WAPDA PLD 1994 SC 693; Petition regarding Miserable Condition of the Schools 2014 SCMR 396; Fazal Karim, Judicial Review of Public Actions (Second Edition) p.803; Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; J.S. Mill, On Liberty (1859); Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCMR 577; Mst. Nazneen v. Judicial Magistrate, Larkana and 2 others 1999 MLD 1250; M. Younis Malik v. The State Bank of Pakistan through its Deputy Director, Foreign Exchange, Lahore and 3 others PLD 1981 Lah. 181; Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Arshad Mehmood v. Commissioner/ Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Ameen Masih v. Federation of Pakistan and others PLD 2017 Lah. 610; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Fazal Karim, Judicial Review of Public Actions (Second Edition) p.1090; S v. Makwanyane [1995] ZACC 3; Fred Khumalo v. Bantubonke Harrington Holomisa 2002 (5) SA 401; Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Human Dignity: The Constitutional Value and the Constitutional Right", Cambridge University Press; Barrister Asfandyar Khan and others v. Government of Punjab and others PLD 2018 Lah. 300; Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan PLD 2015 SC 42; Haji Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248; Rohit Shekhar v. Shri Narayan Dutt Tiwari 2011 (4) R.C.R.(Civil) 459; Dieter Grimm, Dignity in a Legal Context: Dignity as an Absolute Right. DOI:10.5871/ bacad/9780197265642.003.0021; Halsbury's Laws of England, Rights and Freedoms, Fifth Edition, Vol. 88A; ZY v. Paul Higgins [2013] NIQB 8; Rashkin v. Russia (Application No.69575/10); Griswold v. Connecticut 381 U.S. 479 (1965); Sharda v. Dharmpal AIR 2003 SC 3450 and Gobind v. State of Madhya Pradesh (1975) 2 SCC 148 at p.157, para 31 rel.

(b) Words and phrases---

----"Liberty"---Meaning and concept---Liberty was quality or state of being free, having power to do as one pleases; freedom from physical restraint; freedom from arbitrary or despotic control; positive enjoyment of various social, political, or economic rights and privileges; and power of choice---Expression "liberty" took within its fold not only freedom from illegal physical restraint but a host of other freedoms, including freedom of association, thought, religion, belief and emotions however power was reserved to the State to check an individual who posed harm to others.

Merriam-Webster Dictionary (Eleventh Edition) and Black's Law Dictionary (Tenth Edition) rel.

(c) Islamic Law---

----Recognition of genders in Islam---Scope---Classic Islamic law recognized four genders among human beings: male, female, Khunsa (translated as 'intersex' or 'hermaphrodite', i.e. a person who has both male and female anatomy), and the Mukhannath (an effeminate male, i.e. a man who resembles women)---Khunsa were of two types: Wadhih (discernible) and Mushkil (problematic/intractable)---Former was a person with both male and female genitals but specific gender could be assigned to him on basis of attributes of dominant sex, for example, if that person urinated from penis, ejaculated semen, or grew facial hair, he could be regarded as male---On other hand, if such person developed breasts and mensuration, she would be regarded as female---In contrast, Khunsa Mushkil was a person who could not be categorized either as male or female and Islamic jurists made the classification of Khunsa on the basis of the knowledge available in their times, however today doctors were capable of determining a Khunsa's sex by investigating his karyotype, gonadal tissue histology and internal reproductive organ and it was not dependent on the appearance of the external genitalia

The Islamic Perspectives of Gender-Related Issues in the Management of Patients With Disorders of Sex Development. Published online 2016 Apr 21. DOI: 10.1007/s10508-016-0754-y rel.

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

----Ss.5, Sched. & 17---Transgender Persons (Protection of Rights) Act (XIII of 2018), Ss. 2(1)(n) & 3---Constitution of Pakistan, Arts. 9 & 14---Fundamental Right to privacy, human dignity, security of person and inviolability of man---Jurisdiction of Family Court---Validity of Nikkah / marriage---Suit for recovery of maintenance and dower---Allegation regarding gender of spouse---Compulsory medical examination for wife for determination of gender characteristics---Guidelines for Family Court to adjudicate in case where husband claims invalidity of nikkah on ground of alleged problematic gender characteristics of wife---Inference to be drawn on refusal of party to undergo medical examination---Scope---Petitioner / husband impugned order of Family Court, whereby his application for medical examination of his wife, in order to determine gender characteristics of his wife was dismissed---Contention of husband, inter alia, was that his wife had no feminine characteristics and their marriage was not valid and therefore, respondent wife was not entitled to any benefits of dower and maintenance---Validity---Respondent wife of petitioner did have Fundamental Right to privacy however such right was not absolute and sufficient material must be before Family Court to justify an order for compulsory medical examination----Family Court was competent to direct a party to undergo medical examination but such power was subject to certain conditions and if concerned person refused to comply with a direction for medical examination, then Family Court could not compel such a person and could only draw an inference from such refusal as may be appropriate on facts and circumstances of a cases---Family Court was also obliged to consider whether there was an explanation for such lack of cooperation---Family Court in such a case should specifically put non-cooperating party on notice regarding consequences of its conduct and warn against any adverse inference that may be drawn by such refusal to undergo medical examination---In Islamic jurisprudence, Khunsa Wadhih (whose gender had been established) could contract a valid marriage with opposite sex but Khunsa Mushkil (where gender was problematic/intractable) was prohibited from marrying any one---In the present case, if medical examination of respondent wife revealed that she lacked feminineness, it would have bearing on marriage between parties and impact rights and obligations arising therefrom, including the claim for recovery of dower and alimony---Petitioner lived with respondent wife for eight months and had not divorced her to-date which gave rise to presumption that marriage between parties was valid---Said presumption was, however, rebuttable by strong and weighty evidence, which could be oral or documentary---Petitioner had raised question of gender of respondent, which allegation was denied by respondent, and as such matter went to the root of the case, and was therefore incumbent upon Family Court to frame an issue in such respect and require petitioner to produce evidence---Petitioner could have moved application for medical examination of respondent only after getting evidence recorded and bringing material which could persuade Family Court that an order for medical examination was absolutely necessary and petitioner's application at present stage was therefore premature---High court set aside impugned order and held that petitioner's application for medical examination should be kept pending for time being and that Family Court should frame an issue regarding respondent's gender and should pass an order for medical examination only after parties recorded evidence and only if same was unavoidable and absolutely necessary---High Court further held that respondent shall not be forced for medical examination and upon her refusal, Family Court could only draw an inference as may be just and proper---Constitutional petition was disposed of, accordingly.

Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891); Archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0t.html; Re Matthew R., 113 Md. App 701, 688 A.2d 955; Lacy v. Harrison (1992) 11 BMLR 75; Anderson v. Spencer (2018) EWCA Civ 100; Peters v. The Netherlands 77 A DR 75 (1994); Gautam Kundu v. State of West Bengal and Another (1993) 3 SCC 418 : AIR 1993 SC 2295; Sharda v. Dharampal AIR 2003 SC 3450; Lillu alias Rajesh & another v. State of Haryana AIR 2013 SC 1784; Salman Akram Raja and another v. Government of Punjab through Chief Secretary, and others 2013 SCMR 203; Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327; Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449; Malik Muhammad Rafique v. Mst. Tanveer Jahan and another PLD 2015 Islamabad 30; Mst. Shamim Akhtar v. Additional District Judge, Gujranwala and another PLD 2015 Lah. 500; Mst. Rubina Kausar v. Additional Sessions Judge and others PLD 2017 Lah. 604; Mst. Safia Bibi and another v. Muhammad Akbar and others PLD 2018 Lah. 758; G.Venkatanarayan v. Kurupati Laxmi Devi AIR 1985 AP 1; Birendra Kumar Biswas v. Hemalata Biswas AIR 1921 Cal. 459; Lord Stowell in Briggs v. Morgan 161 E.R. 1339; A (A minor) (Paternity: Refusal of blood test) (1994) 2 Family Law Reports 463; R v. Inland Revenue Commissioners, ex parte TC Coombs & Co. (1991) 2 AC 283 at page 300 and The Islamic Perspectives of Gender-Related Issues in the Management of Patients With Disorders of Sex Development. Published online 2016 Apr 21. DOI: 10.1007/s10508-016-0754-y rel.

Malik Muhammad Ahsan for Petitioner.

Nasir-ud-Din Mahmood Ghazlani for Respondent No.2.

Muhammad Ali Siddiqui: Amicus curiae.

2021 C L C 270

[Lahore]

Before Shahid Bilal Hassan, J

FOZIA MAZHAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 13063 of 2020, decided on 29th October, 2020.

(a) Jurisdiction---

----Assumption of---Wrong provision of law---Effect---Merely citing or relying on wrong provision of law to assume jurisdiction over a lis is of no consequence, provided the Court otherwise has jurisdiction under the Constitution, statue or any other provision of law to pass order. A

Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; Rauf B Kadir v. State Bank of Pakistan and another PLD 2002 SC 1111 and Olas Khan and others v. Chairman Nab through Chairman and others PLD 2018 SC 40 rel.

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

----Ss. 5 & 17---Civil Procedure Code (V of 1908), S. 12(2)---Judgment and decree, setting aside of---Jurisdiction of Family Court---Wrong provision of law---Parties were husband and wife inter se and suit for dissolution of marriage filed by wife/respondent was dismissed as withdrawn by Family Court---On application under S.12(2), C.P.C. filed by wife/respondent Family Court and Lower Appellate Court set aside the order on the plea of fraud and misrepresentation and marriage was dissolved---Plea raised by husband/petitioner was that Family Court did not have jurisdiction to set aside order under S.12(2), C.P.C.---Validity---If power of Court was there and Court had got jurisdiction to undo a fraudulent order obtained, then all such irrational technicalities and formalities should not deprive a real and genuine litigant---Contents of application and prayer of litigant were to determine fate of a suit, an appeal or a petition---Substantial justice must be done, granted and showered upon genuine litigant, leaving aside all formal and minor technicalities hindering path of justice---No jurisdiction error, legal infirmity and illegality existed in order passed by Courts below, rather vested jurisdiction was judiciously and aptly exercised---High Court declined to interfere in concurrent orders passed by two Courts below---Constitutional petition was dismissed in circumstances.

Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321; Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others PLD SCMR 1840; Iftikhar Khan and another v. Mst. Amina Bibi and 2 others PLD 2012 Pesh. 159 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 ref.

(c) Review---

----Exercise of power---Principle---Power of review does not exist unless it is expressly conferred by law---Such power has two well-established exceptions i.e. (i) a Court has inherent jurisdiction to set aside judgment or order which it delivered without jurisdiction; (ii) a Court or authority has power to review an order or judgment obtained by fraud.

The Chief Settlment Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 rel.

Muhammad Shahzad Shaukat, Barrister Taha Shaukat, Muhammad Uzair and Muhammad Ali Raza for Petitioner.

Najam-us-Saqib, Muslim Abbas, Muhammad Muzaffar Semor and Malik Muhammad Salik Awan for Respondent No.3

2021 C L C 310

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf and Raja Shahid Mehmood Abbasi, JJ

DEFENCE HOUSING AUTHORITY and others----Petitioners

Versus

Rao IMRAN NASIR----Respondent

I.C.A. No.170 of 2020, decided on 30th July, 2020.

(a) Appeal---

----Inherent right---Scope---Right of appeal, review or revision is creation of statute dealing with the matter and it can only be availed of where it is expressly granted by law---No concept of inherent right of appeal existed exercisable by a party pursuant to judgment or decree.

(b) Appeal---

----Connotation---Appeal is assumed as a complaint made to superior Court / forum against decision of a subordinate Court / forum with the object of getting such decision set aside or revised

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

----S.3(3)---Intra Court Appeal --- Maintainability --- Interlocutory order---Scope---Appellant assailed interlocutory order passed by Single Judge of High Court in proceedings on Constitutional petition filed by respondent---Plea raised by appellant was that the order had granted final relief to respondent---Validity---Interlocutory order by its nature was an order made during pendency of the lis and it had no intention or effect to finally determine the matter in issue---Embargo was placed under S.3(3) of Law Reforms Ordinance, 1972, upon assailing interlocutory orders---Order passed by Single Judge of High Court was interlocutory order for all intents and purposes--- Intra Court Appeal was dismissed, in circumstances.

Islamic Republic of Pakistan through Secretor Establishment Islamabad others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279; Oxford English Urdu Dictionary; Black's Law Dictionary (tenth edition); Concise Oxford English Dictionary; Chambers English Dictionary; Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others PLD 1990 SC 709; Messrs and others v. Mashreq Bank PSC and others PLD 1996 Lah. 1; National University of Sciences and Technology (NUST) Islamabad through Registrar and 2 others v. Dayyan Atta Tareen 2011 YLR 1070; Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 and Ghaffar Hussain v. The District Magistrate, Sahiwal and 2 others 1996 SCMR 1209 ref.

2021 C L C 360

[Lahore]

Before Ch. Muhammad Iqbal, J

OMER SHARIF----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Colonies Department and others----Respondents

Writ Petition No.15877 of 2010, heard on 6th October, 2020.

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

----S.10---Allotment of government land---Chief Minister---Jurisdiction---Scope---Chief Minister is only Chief Executive of Province and is only custodian of State assets---Chief Minister is not competent to sell State land through private treaty. [p. 363] A

Applications of Haji Muhammad Saeed H.R.C. Nos.7581 and 9059-P of 2009 ref.

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

----Ss.10 & 30(2)---Rescinding of sale deed----Private treaty, sale through---State land was sold by authorities on the direction of Chief Minister which sale was rescinded by Board of Revenue---Validity---No exception was available to transaction of sale deed obtained through private treaty or misrepresentation or fraudulent means---Board of Revenue was well within jurisdiction to undo all such transactions even if some erroneous order had been passed regarding resumption of such land---Public property could not be doled upon any cherished person through private treaty to extend favouritism, nepotism and for undue enrichment of individuals at the resources of public meant for ultimate welfare and betterment of people at large---High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by Board of Revenue rescinding the sale-deed---Constitutional petition was dismissed, in circumstances.

Applications of Haji Muhammad Saeed H.R.C. Nos.7581 and 9059-P of 2009; Mian Asghar Ali v. Province of Punjab through District Collector and others 2006 SCMR 936; Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118; Muhammad Munir Ahmad v. The State/Member (Judicial)-VII Board of Revenue Punjab Lahore and others (in Civil Petition No.1030-L of 2004); Province of Punjab through Collector, Sheikhupura v. Anjuman Talim-ul-Islam and others PLD 1987 SC 123; Syed Mazhar Hussain Shah through L.Rs v. Member, Board of Revenue, Punjab, Lahore and others 2006 SCMR 959; Muhammad Manzoor v. Province of Punjab and others 2011 CLC 494; Muhammad Manzoor through Legal Heirs and others v. Province of Punjab through District Officer Revenue, Vehari and others 2011 CLC 1235; Muhammad Yaseen and others v. District Co-Ordination Officer, Muzaffargarh and 4 others 2009 YLR 2365; Muhammad Sharif v. Muhammad Sadiq and another 1985 CLC 1645; Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others 2014 SCMR 1611; Hafeez Akhtar Randhawa v. Member (Colonies), Board of Revenue Civil Petition No.2022-L of 2010; Arshad Waheed v. Province of Punjab PLD 2010 Lah. 510; Government of Punjab through Senior MBR and others v. Irfan Hafeez, Civil Appeal No.214-L of 2014 and American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 rel.

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

----S.23---Lawful considerations and objects---Scope---If any order is passed by any authority beyond its jurisdiction and against public policy, such order in its inception is nullity in the eyes of law and never conveys any absolute title in favour of beneficiary.

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 rel.

Muhammad Asad Manzoor Butt and Mian Ghazanfar Ali for Petitioner.

Asif Mehmood Cheema, Additional Advocate General for Respondents.

2021 C L C 392

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

MUHAMMAD YAQOOB----Appellant

Versus

COMMISSIONER LAHORE DIVISION and others----Respondents

I.C.As. Nos.63865 and 67355 of 2019, heard on 16th November, 2020.

Punjab Overseas Pakistanis Commission Act (XX of 2014)---

----S.7---Intra Court appeal---Functions of the Commissioner---Interference in judicial functions---Scope---Question before High Court was whether the Commissioner was justified in constituting a committee to visit the site of the plots, thrash out revenue record, registration record, Record/Plan of Development Authority, Cooperative Department Record, Housing Society's Record, etc., when the matter was already under adjudication before the courts of competent jurisdiction---Said order was issued on a complaint from the overseas Pakistani citizen---Validity---Government Agencies on the behest and directive of the Commissioner could not initiate proceedings against private persons by issuing them summonses/notices in order to resolve a civil dispute---Determination of third party rights was unequivocally a judicial function and could only be carried out by a court of law i.e. the judicature, and not by the Punjab Overseas Pakistanis Commission or the Government Agencies, which formed executive organs of the State---Order passed by Commissioner regarding thrashing record amounted to interference in judicial proceedings pending in the Courts of law, where the parties were already appearing---Commissioner had transgressed his power/jurisdiction---Intra courts appeals were allowed.

Shahid Idrees v. Government of The Punjab and others PLD 2018 Lah. 284 rel.

Tanveer Chishti v. City Police Officer and others PLD 2020 Lah. 453 foll.

Shahid Iqbal for Appellant (in I.C.A. No.63865 of 2019).

Faisal Ghafoor for Appellant (in I.C.A. No.67355 of 2019).

Muhammad Rasheed Chaudhry for Respondent.

Syed Shadab Hussain Jafri, Additional Advocate General.

2021 C L C 413

[Lahore]

Before Jawad Hassan, J

HARIS BIN HASSAN JANG----Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.64211 of 2020, decided on 9th December, 2020.

(a) Punjab Civil Administration Act (III of 2017)---

----S.16---Punjab Infectious Diseases (Prevention and Control) Act (XIII of 2020), S.7---Public processions---Prohibition or restriction of events and gatherings---Writ of prohibition---Locus standi---Policy matter---Scope---Petitioners sought direction to the authorities / State Functionaries to restrain the political parties from arranging public gathering on a certain day---Contention of the petitioners was that their fundamental right to life as guaranteed under the Constitution was infringed---High Court observed that the petitioners were not political workers and they neither intended to attend any political meeting, therefore, there was no possibility of petitioners being infected by the COVID-19---Petitioners had no locus standi to file constitutional petitions---Political parties had already sought the permission as required under S.16 of Punjab Civil Administration Act, 2017 and the matter was pending before Provincial Intelligence Committee, therefore, High Court could not interfere in the policies of the Government---Provincial Intelligence Committee was directed to decide the matter within a period of two days---Constitutional petitions were disposed of accordingly.

Mian Asghar Ali v. Government of the Punjab and others 2020 CLC 157; Muhammad Kamran v. Federation of Pakistan 2014 CLC 1549; Dewan Hamid Masood Chishti and others v. Province of Punjab and others 2020 CLC 1885 and Muneeb Tariq and another v. Punjab Public Service Commission and 2 others 2020 CLC 1591 ref.

Kamran Martin v. Mst. Siera Bibi and 4 others 2017 PLC (C.S.) 597 and PLD 2020 Isl. 175 rel.

(b) Constitution of Pakistan---

----Art.5---Loyalty to State and obedience to Constitution and law---Scope---Word "inviolable" used in Art.5(2) of the Constitution means that it is never to be broken or 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 2009) 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 them under the Doctrine of Sovereignty.

Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836 rel.

Haris Bin Hassan Jang (in person) with Muhammad Ali Binyamin and Waheed Ahmed.

Nadeem Sarwar (in Writ Petition No. 64233 of 2020).

Ms. Sadia Malik, Assistant Attorney General for the Respondent No.1 (on Court's call).

2021 C L C 441

[Lahore]

Before Ch. Muhammad Iqbal, J

Syed INTESAR HUSSAIN----Petitioner

Versus

PROVINCE OF PUNJAB through District Collector/DOR, Pakpattan Sharif

and others---Respondents

Writ Petition No.21968 of 2010, heard on 22nd September, 2020.

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

----Ss.10 & 30(2)---State land---Private treaty, sale through---Prohibited zone---Petitioner was aggrieved of refusal of authorities to sell land in question against private treaty---Validity---Land in question was public property and could not be doled upon any cherished person through private treaty to extend favouritism, nepotism and for undue enrichment of individuals at the resources of public meant for ultimate welfare and betterment of people---Land in question had been situated within prohibitory zone since before year 1960, and was already transferred in favour of a government department for establishing a housing scheme and the same could not be transferred to petitioner through private treaty---High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by authorities---Constitutional Petition was dismissed in circumstances.

Abdul Rahim and others v. Member (Colonies), Board of Revenue and others 1989 MLD 3148; H.R.C. Nos.7581-P and 9059-P of 2009 (Applications of Haji Muhammad Saeed); Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others 2014 SCMR 1611; Hafeez Akhtar Randhawa v. Member (Colonies), Board of Revenue (Civil Petition No.2022-L of 2010); Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510; Government of Punjab through Senior MBR and others v. Irfan Hafeez Civil Appeal No.214-L of 2014 and Province of Punjab Lahore and others v. Shahzada Ashraf Durrani (Civil Appeal No.574 of 2006) rel.

Naveed Sheharyar Shaikh, Yasir Islam Chaudhary and Humerea Bashir Chaudhary for Petitioners.

Waseem Iqbal Butt, Assistant Advocate-General for Respondents.

2021 C L C 462

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

RAHEEL BAHADUR and 4 others----Appellants

Versus

PROVINCE OF PUNJAB through Secretary Environment and 6 others----Respondents

I.C.A No.77 of 2020 in Writ Petition No.2644 of 2020, decided on 11th November, 2020.

Punjab National Calamities (Prevention and Relief) Act (XXXIII of 1958)---

----Ss.4 & 8---Law Reforms Ordinance (XII of 1972), S.3(2) proviso---Intra Court Appeal---Maintainability---Words "proceedings" and "original order"---Connotation---National calamity, prevention and relief---Appellants were engaged in business of running brick kilns operating on old methodology---Appellants were aggrieved of the notification issued by authorities to convert all brick kilns to zigzag methodology so as to counter smog---Validity---Word "proceedings" included every step taken towards further progress by which machinery of law was put to motion and "original order" was the order passed by the lowest officer or authority in the hierarchy---Test was that as to whether original order passed in proceedings was subject to an appeal or a revision under relevant law, irrespective of the fact whether remedy of appeal or revision so provided was availed or not---Right of revision was available under S.8 of Punjab National Calamities (Prevention and Relief) Act, 1958, against order passed by Relief Commissioner---As revision was provided against orders passed by Relief Commissioner, Punjab, therefore, no Intra Court Appeal could be filed under S.3 of Law Reforms Ordinance, 1972---Intra Court Appeal was dismissed in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 fol.

2021 C L C 515

[Lahore]

Before Muhammad Qasim Khan, CJ

Messra SPARCO CONSTRUCTION COMPANY----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petition No.23950 of 2020, decided on 3rd December, 2020.

(a) Punjab Procurement Rules, 2014---

----R.5---Constitution of Pakistan, Art.199---Foreign funded project --- Technical and financial bids---Technical Evaluation Committee declared the bid submitted by the petitioner-company and its joint venture company as non-responsive---Petitioner-company challenged its disqualification from the bid process by filing a constitutional petition before the High Court---Maintainability---Project in question was regulated under a loan agreement entered into between the Government of Pakistan and an international financial institution--- In the bid process the terms of the loan agreement and that of the bid documents were also to be applied according to the satisfaction of the international financial institution itself, therefore, on the face of it there was no applicability of Punjab Procurement Rules 2014 ('the 2014 Rules') in the whole project---As the loan agreement had been executed between the Government of Pakistan and an international financial institution, the present constitutional petition was not maintainable --- High Court dismissed the constitutional petition with the directions that the Provincial Government should form a Committee to minutely probe into the entire process of awarding of the project and bring it to the notice of the international financial institution as well; that the said Committee shall see if there was any misuse of authority in the entire process at any level, whether transparency was properly taken care of, and that proper process was adopted in the project; and, that formation of said Committee shall not mean stay of further process on the project.

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 and Suo Moto Case No.5 of 2010 PLD 2010 SC 731 ref.

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

----O.I, R.9---Constitution of Pakistan, Art. 199 --- Misjoinder or non-joinder of necessary parties --- Foreign funded project --- Technical and financial bids---Technical Evaluation Committee declared the bid submitted by the petitioner-company and its joint venture company as non-responsive---Petitioner-company challenged its disqualification from the bid process by filing a constitutional petition before the High Court---Maintainability---Like the petitioner-company the other company with which the petitioner had a joint venture, was also part of the bid, thus, it must also be adversely affected by the impugned action of procuring authority, as such, instead of citing the joint venture company as a respondent, it must have been arrayed as one of the petitioners in the present constitutional petition, which has not been done, thus the consequential inference would go against the petitioner---Furthermore, the claim of the petitioner had been that it fulfilled the requisite evaluation and qualification criteria set down in the Biding Document, as some projects identical to the present one were completed by certain groups and companies working under it---If that was so, then such groups and companies were necessary and proper party to present proceedings, but none of the said groups or companies was arrayed as a party in the constitutional petition---Inference which could be drawn in such circumstances was that those groups or companies, which the petitioner claimed worked under it, were either not interested/involved in the bid process, or were not supporting the stance of the petitioner in any manner --- Procuring authority appeared to be well within its right to urge that in fact those groups or companies had no liaison with the petitioner's joint venture --- Present constitutional petition was not maintainable due to misjoinder and non-joinder of necessary parties and was consequently dismissed.

Qazi Misbah ul Hassan and Muhammad Zain Qazi for Petitioner.

Malik Abdul Aziz Awan, Additional Advocate-General.

Asad Ali Bajwa, Deputy Attorney General-I.

Mustafa Ramday, Nadia Hafeez and Zoe K. Khan for Respondent No.3.

2021 C L C 529

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

Sheikh TAIMUR ALI MUSTAFA----Petitioner

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others----Respondents

Writ Petition No.71322 of 2019, heard on 17th November, 2020.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Establishment of High Court is not a "person" under Art.199(5) of the Constitution--- No writ or a order can be issued to the High Court or Supreme Court under Art.199 of the Constitution, as it amounts to issuance of writ against the Supreme Court and High Court itself---Administrative or executive orders passed by the Chief Justice of the High Court or the Registrar while acting under the order of Chief Justice also enjoy the protection falling within the ambit of said Article.

Muhammad Imran v. Hon'ble Peshawar High Court, Peshawar through Registrar and 2 others 2011 PLC (C.S.) 1465; Shahab Mazhar Bhalli v. Pakistan Railways through Divisional Superintendent and another 2014 PLC (C.S.) 356; Muhammad Imran v. Hon'ble Peshawar High Court, Peshawar through Registrar and 2 others 2011 PLC (C.S.) 1465 and Miss Gulnaz Baloch v. Registrar, Balochistan High Court, Quetta and others 2015 PLC (C.S.) 393 ref.

Muhammad Naeem Sadiq for Petitioner.

Haris Azmat, Maratab Ali and Kabir Ahmad Chaudhry for Respondents.

2021 C L C 538

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

GUL BAZ KHAN----Petitioner

Versus

MUHAMMAD KAMRAN---Respondent

Civil Revision No.269 of 2020, decided on 6th August, 2020.

(a) Administration of justice---

----Vigilance of litigant---Law favoured the adjudication on merits but at the same time it was a bounden duty of every litigant to remain vigilant in prosecuting his case.

(b) Administration of justice---

----Contemptuous conduct of litigant---Court could not permit a litigant to dictate his terms and to regulate the procedure--- When the conduct of the party was contemptuous and it was evident from the record that he was adamant to abuse the process of law then the law could not come to his rescue.

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

----O.XXXVII, R.4 & O.IX, R.13---Application for setting aside ex-parte proceedings/decree---"Ordinary suit" and "summary suit"---"Special circumstances" and "good cause or sufficient cause"---Distinction---In an ordinary suit if the defendant was proceeded ex parte and finally suit had been decreed as ex parte, the defendant had a right to move to the Court for setting aside ex parte decree under O.IX, R.13 of C.P.C., but in a suit of summary character the defendant had to move in terms of O.XXXVII, R.4, C.P.C.---Requirements for setting aside of ex-parte decree in both provisions were quite different and distinct---In summary trial, a litigant had to show some special circumstances warranting setting aside of the decree---Term "special circumstances" was stricter than the term "good cause or sufficient cause"---Both the provisions were neither synonymous nor interlinked.

Javed Hussain Ansari v. Muhammad Ayaz Khan 2005 SCMR 1655 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court while exercising revisional powers had to keep in mind the mandate of S.115, C.P.C.---Powers of revision were neither unbridled nor unlimited---Before invoking such power it should be seen as to whether order or judgment under scrutiny was illegal, unlawful or suffered with material irregularities contemplated under S.115, C.P.C.---In the present case, petitioner had failed to bring his case within the four corners of pre-conditions stipulated in S.115, C.P.C., so exercise of revisional jurisdiction in absence of any material illegality or irregularity would not be safe for the purpose of administration of justice---Revision was dismissed, in circumstances.

Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.-W.F.P. Peshawar and others 2015 SCMR 799 ref.

2021 C L C 546

[Lahore]

Before Shams Mehmood Mirza, J

MUHAMMAD HAMZA KHAN----Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through Registrar and 2 others----Respondents

Writ Petition No.51934 of 2019, decided on 2nd November, 2020.

Educational Institution---

----Education certificates / degrees, verification of --- Grant / refusal of equivalence certificate---Scope---Petitioner impugned order of Pakistan Medical and Dental Council ("PMDC") and Intermediate Board whereby his application for grant of equivalence certificate for his educational degrees was rejected---Validity---Record revealed that after rejection via impugned orders, petitioner moved fresh application for verification of his educational record, which was underway and such fresh initiation of process had effect of nullifying earlier decision of authorities (PMDC)---Petitioner's prayer for setting aside decision of PMDC requiring petitioner to produce equivalence certificates however, could not be granted as same was statutory requirement---High Court directed PMDC/Intermediate Board to conclude process of determination of petitioner's application for equivalence certificate within a period of one month---Constitutional petition was disposed of, accordingly.

Sheraz Zaka for Petitioner.

Mehboob Azhar Sheikh for Respondent/Board.

Mufti Ihtisham ud Din for Respondent/PMDC.

2021 C L C 569

[Lahore]

Before Atir Mahmood, J

SHAHZAD RAFIQUE----Appellant

Versus

NAJAF IQBAL----Respondent

R.F.A. No.209 of 2010, heard on 5th March, 2020.

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

----S.118---Qanun-e-Shahadat (10 of 1984), Art. 84---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2---Recovery of money---"Negotiable instrument"---Presumption---Signature, comparison of---Plaintiff sought recovery of money on the basis of Bank cheque which was dishonoured on presentation due to insufficient funds but the suit was dismissed by Trial Court---Validity---Material contradictions existed between the stance taken by defendant in his evidence as well as in written statement---Evidence of defendant was so contradictory and sketchy that the same could not be used for declaring stance of defendant as correct---Defendant denied his signatures on the cheque however he did not made effort for its comparison which was necessary in order to ascertain actual position---Defendant was supposed to file application for comparison of signature, if he deemed that such stance was correct---Even Trial Court also did not make any effort in such regard as Trial Court had exclusive jurisdiction to send the matter to Handwriting Expert under Art.84 of Qanun-e-Shahadat, 1984 for comparison of signatures---Initial presumption under S.118 of Negotiable Instruments Act, 1881, was that a negotiable instrument/cheque was made, drawn, accepted or endorsed for consideration---Although such presumption was rebuttable yet onus was on the person denying consideration to allege and prove the same---Where execution of negotiable instrument was admitted, under S.118 of Negotiable Instruments Act, 1881, the burden of proof of non-payment of consideration was upon the executant, and the same was lacking--- High Court set aside judgment and decree passed by Trial Court and decreed the suit filed by plaintiff--- Appeal was allowed, in circumstances.

Muhammad Arshad and another v. Citibank N.A., Lahore 2006 SCMR 1347 and Muhammad Azizur Rehman v. Liaqat Ali 2007 SCMR 1820 rel.

(b) Pleadings---

----Parties cannot go beyond their pleadings---Particulars of evidence need not to be mentioned in plaint and it can be produced during recording of evidence.

Muhammad Siddique v. MBR/CSC, Punjab and others 2017 MLD Kar. 770 and The State v. Anwar Saif Ullah Khan 2016 PLD SC 730 rel.

Imran Muhammad Sarwar and Rao Qasim Ali Khan for Appellants.

Jahangir Akhtar Jojha for Respondent.

2021 C L C 584

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

WALAYAT (deceased) through L.Rs. and others----Petitioners

Versus

SHAHADAT through LRs and others----Respondents

Civil Revision No.220 of 2005, heard on 21st October, 2020.

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

----S.54---Specific Relief Act (I of 1877), S.42--- Suit for declaration---"Sale" how made---Contract of sale---Failure to prove payment of consideration---Scope---Plaintiff approached Civil Court through declaratory suit aiming cancellation of registered sale deed as well as its implementing mutation asserting that the suit area was mortgaged to defendants for a term of five years but they managed registration of sale deed within just ten days of the attestation of mortgage mutation and that he was an illiterate and advanced age seriously ill person---Validity---Illiteracy, advanced age and serious illness of the plaintiff was not disputed---Burden to prove the contents of document, in addition to proof of execution and ingredients of the transaction couched therein, was on the defendants, being beneficiaries---In order to prove that a transaction was sale, the passing of price or its promise had to be contemplated and in absence thereof, mere registration of document to that effect did not operate to pass title to the beneficiary---Marginal witnesses of the sale deed and Deed Writer admitted that the consideration was not paid before them---High Court observed that in the absence of proof that sale consideration was received by the vendor, there was no sale in the eyes of law---Revision petition was dismissed, in circumstances

Shahid Nasim and 2 others v. Syeda Imtiaz Khatoon PLD 1997 Lah. 243 and Hakim Ali v. Sakhi Muhammad and 16 others 1996 SCMR 354 distinguished.

Gopal Das v. Siri Thakir Gee and others AIR 1943 P.C. 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; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 and Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 ref.

Muhammad Sher and 2 others v. Muhammad Azim and another PLD 1977 Lah. 729 rel.

(b) Evidence Act (I of 1872) [since repealed]---

----S.102---Burden of proof---Scope---Ordinarily a document is not proved by itself unless admitted by its executant, otherwise, when there is specific denial, it becomes sine qua non for the beneficiary to prove the document as per S.102 of the Evidence Act, 1872.

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

----S.54---"Sale" defined---Sale how made---Contract of sale---Scope---In absence of proof that sale consideration was received by the vendor, there was no sale in the eyes of law.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 ref.

(d) Limitation---

----Any deal (transaction) based on fraud would be void and notwithstanding the bar of limitation, the matter can be considered on merit so as to discourage fraud besides to be perpetuated.

Irfan Alam for Petitioner.

Khalid Ikram Khatana and Sohail Zafar Sipra for Respondent No.1.

2021 C L C 596

[Lahore]

Before Shakil-ur-Rehman Khan, J

UNIVERSITY OF ENGINEERING AND TECHNOLOGY, LAHORE and anothers----Petitioners

Versus

Messrs UPRIGHT ENGINEERS (PVT.) LTD.----Respondent

Civil Revision No.25008 of 2019, decided on 1st October, 2020.

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

----S.20---Arbitrator, appointment of--- Principle--- Petitioner assailed order passed by Trial Court for appointment of arbitrator--- Validity--- Trial Court after taking into consideration the relevant clause of contract between parties concluded that in order to provide equal justice, an opportunity to redress grievance of both parties, it was necessary that neutral arbitrators were to be appointed from nominations of both parties so that none could be prejudiced to defend its case---Objection raised to nomination of arbitrator was turn down---High Court declined to interfere in the order passed by Trial Court---Revision was dismissed, in circumstances.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; M.A. Ghani Soofi & Sons v. The Federation of Pakistan PLD 1957 (WP) Lahore 363; News Publication (Pvt.) Ltd. and 4 others v. National News Agency and another 1999 PLC 1613 and Rasheeda Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522 ref.

Allied Engineering Consultants (Pvt.) Ltd. v. Messrs Sui Gas Transmission Company Ltd. 1989 CLC 1143 rel.

(b) Administration of justice---

----Where law requires an act to be done in a particular manner, it has to be done in that manner alone---Such dictates of law were not to be allowed to do indirectly what the law barred him from doing directly.

2021 C L C 612

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ASHRAF through LRs----Petitioner

Versus

Mst. NAJMA BEGUM alias NAJMA SULTANA and others----Respondents

Civil Revision No.2191 of 2012, heard on 14th January, 2021.

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

----Ss.9 & 42---Suit for declaration and partition of immoveable property---Preliminary decree, grant of---Defendant impugned grant of preliminary decree in favour of plaintiffs, inter alia, on ground that Trial Court did not consider that suit for partial partition of property was not maintainable and did not take into account amounts invested by defendant in property---Validity---Preliminary decree was only meant for determination of shares of respective parties in common property whereas remaining questions could be agitated and culminated at time of final conclusion of such suit---Trial Court did not commit any error in ignoring stance of defendant regarding costs incurred in renovation of property as suit was still pending and any evidence in such regard could be decided by Trial Court keeping in mind continuous use of such property by defendant alone---Revision was dismissed, in circumstances.

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

----S.115---Revision---Issue / plea, if not claimed or pressed before courts below, where trial and appeal proceeded, then such issue could not be raised at stage of revision under S.115, C.P.C.

Atta Hussain Khan v. Muhammad Siddique Khan and others, 1979 SCMR 630 and Kaura and others v. Allah Ditta and others 2000 CLC 1018 rel.

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

----O.XX, R.18---Punjab Land Revenue Act (XVII of 1967), S.172(2)---Specific Relief Act (I of 1877), Ss.42 & 9---Suit for declaration and partition with respect to agricultural property---Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers---Scope---Property, if same was agricultural in nature, then remedy for partition thereof lay solely with Revenue Hierarchy, and Civil Court lacked jurisdiction in such matter.

Muqadar and others v. Mst. Roshan and others 2008 CLC 43; Qamar Sultan and others v. Mst. Bibi Sufaidan and others 2012 SCMR 695 and Muhammad Ayaz and others v. Malik Zareef Khan and others PLD 2016 Pesh. 8 rel.

Malik Noor Muhammad Awan, Anwaar Hussain Janjua and Moshin Hanif for Petitioners.

Rana Nasrullah Khan and Zubair Ahmad Virak for Respondents Nos.1 to 4.

Ihsan Ahmad Bhindar for Respondent No.6.

2021 C L C 623

[Lahore]

Before Jawad Hassan, J

Mrs. AZRA RIAZ----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondent

Writ Petition No.32552 of 2015, heard on 3rd December, 2020.

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

----S.19---Eviction petition---Scope---Petitioner sought eviction of tenant and sub-tenant on the ground of default in payment of rent---Ejectment petition was contested by sub-tenant by filing an application for leave to contest wherein he asserted that he was occupant of the premises as tenant but not for the petitioner rather of another person (alleged owner)---Trial Court directed the sub-tenant to vacate the demised premises---Appellate Court, on an appeal filed by sub-tenant, remanded the case to Trial Court for decision afresh, after framing additional issues concerning relationship of landlord and tenant---Validity---Petitioner was owner/landlord of the property on the basis of two registered gift deeds in her favour---Alleged owner had not produced the original instrument through which his title to the property was accrued rather he had failed to prosecute his lis and his application under O.I, R.10, C.P.C., which was dismissed by the Trial Court---No valid ground and justification existed for the appellate Court to remand the case to the Trial Court when title of the petitioner qua the property in dispute was clear and unchallenged in all respects---Constitutional petition was allowed, order passed by appellate Court was set aside and that of Trial Court was upheld.

2001 YLR 2915; PLD 2003 Kar. 444; PLD 1961 (W.P) Lah. 601; 2001 SCMR 1434; 1971 SCMR 82; 1984 SCMR 925; 1991 SCMR 1376; PLD 1994 Lah. 274; 1993 CLC 795; PLD 1964 SC 260; PLD 1966 (W.P) Lah. 939; 1992 CLC 2353; 2005 YLR 2547; 2004 YLR 807; 2001 YLR 231; 1997 MLD 903; Moinuddin Paracha and 6 others v. Sirajuddin Paracha and 23 others 1993 CLC 1606; Subeh Sadiq v. Mst. Rajan through Legal heirs PLD 2006 Lah. 585; Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965 and Shafaq Aqeel v. Shafqat Ali Amjad and others 2015 MLD 987 ref.

Mst. Zarina Khan v. Mst. Farzana Shoaib 2017 SCMR 330 rel.

(b) Landlord and tenant---

----Oral tenancy---Scope---Tenancy may not necessarily be created through a written document and the same may be an outcome of oral agreement---In such a situation, the owner of the property shall be presumed and taken as landlord and the occupier of the same, who is not owner of the premises, as tenant---Said general principle can only be rebutted if a contesting claimant comes up with a declaration of competent court of law declaring him to be owner of the property.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Asghar Ali v. Tanvir Ahmad and others 2018 MLD 1231 and Sarfraz v. Mukhtar Ahmed and others 2016 CLC Note 48 rel.

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

----Ss. 5, 6, 7 & 9---Agreement between landlord and tenant---Contents of tenancy agreement---Payment of rent---Effect of non-compliance---Scope---Punjab Rented Premises Act, 2009, does not debar entertainment of ejectment petition in case of oral tenancy---Palpable object of the law is to compel the parties to enter into a tenancy agreement within the purview and scope of the provisions of Ss. 5, 6 and 7 of the Act---Penalty has been provided by law for the breach of the obligations, envisaged thereby, in that, where the tenancy agreement is not so entered and registered and a landlord or the tenant approaches the Tribunal for the enforcement of his right(s) under the Act, he has to pay a fine---Non-registration of rent agreement or oral tenancy is an irregularity that entails penal consequences---Such petition can be entertained subject to payment of fine as enshrined in S.9 of the Act.

Abdul Hamid Jalib v. Addl. District Judge, Lahore PLD 2013 SC 775 ref.

(d) Landlord and tenant---

----Once a tenant is always a tenant---During subsistence of tenancy, tenant has no right to challenge the title of landlord.

(e) Landlord and tenant---

----Landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties---However, in the normal circumstances in absence of any evidence to the contrary, the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 ref.

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

----Art.115---Estoppel of tenant and of licensee of person in possession---Scope---Once relationship of tenancy is proved; at once Art. 115 of Qanun-e-Shahadat, 1984, will come into play.

PLD 2006 SC 549; Ahman Shah Muhammad v. Emperor AIR 1937 Lah. 243; Krupasighu Routra and another v. Purna Chandra Misra and others AIR 1973 Orissa 44; Muhammad Anwer through his legal representatives v. Abdul Shakoor 1982 SCMR 1120; Messrs Muhammad Ismail & Bros. v. Malik Muhammad Tahir and others 1981 SCMR 139 and Ismail Brothers v. Keval Ram PLD 1981 SC 545 ref.

(g) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court is not an alternative to right of appeal or revision provided under the law rather it is a safeguard against the arbitrary decisions, wrong and mistaken conclusion drawn by lower judicial forums or executive agencies against which no alternate remedy is provided by the law, in order to ensure that justice must be administered in the very manner as intended by law---Writ jurisdiction of High Court has always been there and shall continue to come at the rescue of those citizens of the country who have no alternative and efficacious remedy available to them.

(h) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Constitution of Islamic Republic of Pakistan, 1973, has imposed duty upon the High Court being custodian of law for administering justice to rectify and amend a wrong order or a mistaken conclusion of lower appellate court while exercising jurisdiction under Art. 199 of Constitution.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338 rel.

Anwar Kamal, Senior, Advocate Supreme Court and Mrs. Anam Iqbal for Petitioner.

Mian Usman Ali, Advocate Supreme Court and Ghulam Abbas Tarar for Respondent No.3.

Barrister Syed Najaf Hussain Shah, Advocate Supreme Court and Ghulam Ali for Respondent No.4.

Date of hearing: 3rd December, 2020.

"Mandamus and certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain their perfume. God fulfills Himself in many ways and that we (Judges) are the humble instruments of His fulfillment. The writ jurisdiction is the modern manifestation of God's pleasure and that God's pleasure dwells in the High Court".

2021 C L C 644

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD MAJID IQBAL through Special Attorney----Petitioner

Versus

JUDGE FAMILY COURT, DUNYA PUR and 2 others----Respondents

Writ Petition No.2932 of 2020, decided on 24th February, 2020.

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

----S.5 & Sched.---Qanun-e-Shahadat (10 of 1984), Arts. 45 & 114---Suit for recovery of dowry articles---Partial admission of claim---Admission not conclusive proof but may estop---Estoppel---Scope---Petitioner/husband assailed order passed by Family Court whereby it, at the time of recording respondent's evidence, had appointed a bailiff to recover and hand over the dowry articles admitted by petitioner to be in his possession---Validity---Petitioner himself had conceded partial claim of the respondent and of course order/decree could be passed to the extent of admitted claim---Petitioner, once having himself conceded possession over certain dowry articles in view of "Principle of Estoppel", could not be allowed to later on retract from his earlier admission---Impugned order had not caused prejudice to the petitioner or offended any legal provision warranting interference by High Court---Constitutional petition was dismissed.

Sulman Ahmad Khan v. Judge Family Court, Multan and others PLD 2017 Lah. 689 ref.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361 rel.

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

----S.5 & Sched.---Procedure of Family Court---Scope---Family Court has discretion and is always competent to adopt any procedure to decide the case provided such procedure is not expressly barred by the Family Courts Act, 1964 or offends any of its provisions or is violative of any right of parties being against the principles of fair hearing/trial.

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

----S.17---Provisions of Qanun-e-Shahadat, 1984 and Code of Civil Procedure, 1908 not to apply---Scope---Family Court can follow the principles and procedure laid down in CPC if such principles are not contrary to the Family Laws and are matching with the aims and objects of the Family Courts Act, 1964.

Muhammad Tabish Naeem Khan v. Addl. District Judge, Lahore 2014 SCMR 1365; Abdul Rehman v. Mst. Ruqia Begum and others 2018 CLC Note 35; Sulman Ahmad Khan v. Judge Family Court, Multan and others PLD 2017 Lah. 689; Malik Hashim Amir Khan v. Mst. Saadia Tabbassum and another 2015 MLD 89; Ghulam Murtaza v. Additional Distt. Judge (II) D.G. Khan and 2 others 1999 CLC 81 and Nadeem Yousaf v. Sara Nadeem and 3 others 2017 MLD 786 ref.

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

----O.XII, R.6---Judgment on admissions---Scope---Where defendant admits claim of the plaintiff under O.XII, R.6, C.P.C., either in pleadings or otherwise, the court has discretion to decree the suit on the basis of such admission to the extent of admission and proceed with regard to rest of the claim/controversy and said provision of law enables a court to dispose of such part of the suit with regard to which there is no dispute between the parties.

Allah Ditta and 2 others v. Walayat and 17 others 1983 CLC 703 ref.

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

----O.XIV, R.1---Framing of issues---Scope---Civil Court at the stage of framing of issues under O.XIV, R.1(5), C.P.C., is competent to record better statements of the parties and such exercise of discretion has always been approved and appreciated by the High Court so that controversial issues between the parties may, so far as possible, be curtailed and the remaining controversy be adjudicated by recording evidence of the parties---Such course even relieves the parties to produce large number of witnesses and their lengthy cross-examination.

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

----Art.114---Estoppel---Scope---Rule of estoppel prevents a person from saying inconsistent things in successive actions and prevents a party from saying anything which would contradict his own previous act.

2021 C L C 657

[Lahore (Multan Bench)]

Before Asim Hafeez, J

MUHAMMAD LATIF KHAN (DECEASED) through Legal Heirs----Petitioner

Versus

BARKATULLAH (DECEASED) through Legal Heirs and others----Respondent

Civil Revision No.107-D of 2001, decided on 9th October, 2020.

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

----S.32---Specific Relief Act (I of 1877), S.12---Agreement to sell---Enforcements of contract contingent on an event happening---Scope---Plaintiff filed suit on the basis of agreement to sell allegedly executed by defendants---Defendants acknowledged the agreement to sell and denied allegation of breach of promise contending that ownership rights were not bestowed upon them---Contesting defendant claimed exclusive ownership of the property---Trial Court decreed the suit whereas Appellate Court dismissed the suit---Validity---Agreement to sell revealed that the defendants had represented themselves as haqdaranin the agreement but no reference to any document of ownership was made---One of the conditions of the agreement, material for the purposes of adjudication, was that the plaintiff would be entitled to seek enforcement of the agreement by resorting to court upon default on the part of the defendants to execute deed after acquiring ownership rights in the property, which core condition remained unfulfilled throughout---Enforcement of agreement to sell was subject to a contingency till defendants acquired ownership---Right to sue was not available to the plaintiff in the facts of the case---Revision petition, being without merits, was dismissed, in circumstances.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501 distinguished.

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

----S.32---Specific Relief Act (I of 1877), S.12---Agreement to sell---Enforcements of contract contingent on an event happening---Scope---Right to obtain specific performance of a contract was a statutory right, which in essence was a "vested right of action" which enabled a person to approach court for enforcement---Question before High Court was whether any such person could approach a court or exercise such right of action when it was subject to or conditioned with the happening of an event and such contingency/condition remained unachieved/ unfulfilled---Held; no such right could be exercised unless contingency or condition was fulfilled.

Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345 rel.

Ch. Habib Ullah Nahang for Petitioners.

Kanwar Intizar Muhammad Khan for Respondents.

2021 C L C 684

[Lahore]

Before Ch. Muhammad Masood Jehangir, J

Capt. UMER NAVEED PIRZADA----Petitioner

Versus

Rana ABDUR RAHEEM and 3 others----Respondents

Writ Petition No.62948 of 2020, decided on 3rd December, 2020.

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

----S.12(2) & O.IX, R.13---Specific Relief Act (I of 1877), S. 12---Agreement to sell---Defendant gone abroad---Setting aside ex parte decree---Incorrect address of defendant mentioning of---Scope---Plaintiff filed suit for specific performance against defendant and his alleged attorney, who were never served---After publication of notice in the newspaper, an advocate submitted unsigned memo of appearance, marked his presence on behalf of defendant but subsequently disappeared resulting into ex parte proceedings against him and the decree in absentia of defendant qua his property was passed---Defendant on his return to Pakistan tabled application for its setting aside asserting that said person was not his agent; that agency in between them had never been constituted; that his correct/current address was not mentioned in the plaint and that he had not directed any counsel to represent him---Trial Court and Appellate Court allowed the application under S.12(2), C.P.C., read with O.IX, R.13, C.P.C.---Validity---Copy of CNIC and passport of defendant provided enough proof that his address mentioned in the plaint was absolutely diverse and different to that mentioned in the public record issued much prior to filing of the suit---Such an evidence was enough to shift the onus towards the plaintiff, beneficiary of the ex parte decree, to rebut the same---Not a single process was issued on the address of defendant given in said documents which under the law bore presumption of regularity and correctness---Appearance of an advocate on behalf of defendant was concerned, firstly, there was no backing of law that an advocate could represent a litigant by submitting such memo; secondly, it was never signed by defendant, thus, he could not be bound by it; thirdly, said advocate was the best person to be summoned to confirm that defendant being in knowledge of the suit proceedings had directed him to appear on his behalf, which was not done---Revision petition was dismissed with costs, in circumstances.

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

----Art.150---Question by party to his own witness---Scope---Sine qua non for the beneficiary to examine the concerned person to prove construction of the document and the moment he makes an adverse statement, request for declaring him hostile can be made to illustrate/dig out truth through art of cross examination---Requirement of law cannot be excused.

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

----S.22---Rights of advocates to practice---Scope---Memo of appearance is not an authorization under the law to represent a litigant, which at the most can be treated as an intimation that the advocate who has filed it would furnish proper power of attorney on the coming date of hearing.

(d) Administration of justice---

----Courts to dispense with justice while performing within the parameters of the law and law alone.

(e) Decree---

----Decree against dead person is nullity in the eyes of law.

2021 C L C 694

[Lahore (Rawalpindi Bench)]

Before Shahid Jamil Khan, J

CIVIL AVIATION AUTHORITY through Airport Manager----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Community Development Department and 2 others----Respondents

Writ Petition No.247 of 2011, heard on 26th November, 2020.

Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----Ss.2(i) & 2(ii)---Constitution of Pakistan, Fourth Sched, Entry No.22 & Art.199---Subject-matter of Federal and Provincial laws---Federal Legislative List---Aerodrome---Airport---Declaration of roads and streets---Scope---Civil Aviation Authority assailed the Local/Provincial Government's (Government) order whereby its request for not charging commercialization fee was declined---Contention of Civil Aviation Authority (Authority) was that land owned by Civil Aviation Authority was a federal subject, therefore, was not amenable to the powers and jurisdiction of Tehsil Municipal Administration---Validity---Land owned by the Civil Aviation Authority was on the edge of a public road, outside the airport premises and had been used to provide commercial service and supply of Compressed Natural Gas (CNG) to general public---Land outside the airport premises, within territorial limits of Provincial or Local Authority, used for commercial activities for general public did not fall under the Pakistan Civil Aviation Authority Ordinance, 1982 or rules thereunder---Such land was subject to the provincial and local government's administrative and executive authority and laws relating thereto were applicable unless any different intention appeared in the Constitution or was exempted by the relevant provincial or Local Government Laws---Constitutional petition was dismissed.

Sindh Revenue Board through Chairman Government of Sindh and another v. The Civil Aviation Authority of Pakistan through Airport Manager 2017 SCMR 1344 distinguished.

Haseeb Shakoor Paracha for Petitioner.

Syed Wajid Ali Gillani, Additional Advocate General Punjab.

Naeem ul Hasan along with Javed Ahmad, Assistant for Respondent No.2.

2021 C L C 704

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

NOSHEEBA NAZEER----Petitioner

Versus

SAJJAD AHMED and 2 others----Respondents

Writ Petition No.3228 of 2020, decided on 11th January, 2021.

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

----S.25---Constitution of Pakistan, Art. 199 ---- Constitutional jurisdiction of High Court ---Custody of minors---Contest between mother and father --- Presumption as to unconscionable agreements --- Scope---Petitioner sought return of minor son who, per petitioner's allegation, had been unlawfully detained by father --- Contention of father, inter alia, was that petitioner mother had executed an affidavit whereby she agreed that custody was to be given to father --- Validity---While alleged affidavit / agreement was denied by mother, even otherwise such an agreement had no value in eye of law and could not be relied upon as question regarding custody and guardianship of minors could not be settled by private compromise or arbitration --- Where there was an agreement entered into by female, which appeared unconscionable on face of it, then there existed a rebuttable presumption that same was entered into under coercion and undue influence --- No effective rebuttal was forthcoming in the present case to show as to why mother would voluntarily part with minor son ---While Guardian Court was final arbiter in such matters, however, Constitutional jurisdiction of High Court was not precluded from giving consideration to welfare of minors and act where parent holding lawful custody of minor was deprived of same --- High Court directed that custody of minor be handed to mother / petitioner --- Constitutional petition was allowed, accordingly.

Mst. Shehnaz Bibi v. Muhammad Akram and others 1995 PCr.LJ 307; Mst. Riffat Bibi v. Amanat Ali 1997 MLD 1562; Afshan Naureen v. Nadeem Abbas Shah 1997 MLD 197; Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Kar. 619; Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others 2018 SCMR 427 and Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 rel.

(b) Islamic Law ---

----Guardianship --- Custody and guardianship of minors ---- Scope--- In Arabic language, guardianship was termed "wilayat" and custody was termed as "hidhanat" --- Custody meant physical or material possession of children, and its Arabic equivalent "hidhanat", literally meant training or upbringing---Two types of guardianships existed in Islamic Law, in one father prevailed over mother in matters of money and marriage while in the other, mother prevailed over father in matters of nourishment and upbringing of minor children.

Shabbir Ahmed Mirza for Petitioner.

Raja Muhammad Faraz Khan for Respondent No.1.

2021 C L C 743

[Lahore]

Before Mirza Viqas Rauf and Abid Aziz Sheikh, JJ

NEW COLLEGE PUBLICATIONS----Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary Education and 5 others----Respondents

I.C.A. No.1695 of 2021, decided on 14th January, 2021.

Law Reforms Ordinance (XII of 1972)---

----S.3---Civil Procedure Code (V of 1908), O.XXXIX Rr.1 & 2, S.151--Intra-court appeal---Maintainability---Bar to availability of intra-court appeal against interlocutory orders---Concept and nature of "interlocutory order"---Scope---High Court in Constitutional petition restrained respondents under O.XXXIX, Rr. 1 & 2, C.P.C. and thereafter, upon application of respondents, clarified its restraining order---Appellant impugned such order clarifying High Court's restraining order, and contended that such order whereby clarification was issued, was amenable to intra-court appeal as same was not interlocutory but final order ---Validity--- Where an order did not decide matter finally and proceedings remained to be tried and rights of parties were yet to be finally determined, then such order could not be termed as "final order" but would be interlocutory in nature against which appeal under S.3(3) of Law Reforms Ordinance, 1972 would not be competent---Impugned order was one which disposed of an application for clarification of earlier order of High Court and said order itself stated that the matter was yet to be decided, which meant that such order was clearly "interlocutory"---- Intra-court appeal, being not maintainable, was dismissed, in circumstances.

Noor Muhammad Lambardar v. Member (Revenue) and others 2003 SCMR 708; National University of Sciences and others v. Dayyan Atta Tareen 2011 YLR 1070 and Messrs Qadoos Brothers v. Judge Banking Court and others 2018 CLD 88 rel.

Mian Asghar Ali for Appellant.

2021 C L C 757

[Lahore]

Before Ch. Muhammad Masood Jehangir, J

Mst. NABILA TAJ and another----Petitioners

Versus

MURAD and 4 others----Respondents

Civil Revision No.2628 of 2009, heard on 1st December, 2020.

Civil Procedure Code (V of 1908)---

----O.IX, R.13 & S.24-A---High Court (Lahore) Rules and Orders, Vol.I, Chap. XIII, Para. 6---Setting aside ex parte proceedings---Record to be sent immediately to the Court to which case is transferred---Scope---Petitioners/defendants assailed the concurrent dismissal of their application under O.IX, R.13, C.P.C.---Held; it was not only usual but mandatory to issue notice to the parties to impart them information that the case had been transferred from one court to another and in the absence of such notice, the defaulting party could well plead lack of knowledge that in which court he had to appear---Case diary maintained by the Trial Court reflected that the defendants were diligently pursuing the case for nearly two years, who only on one occasion had failed to appear, but the Trial Court in haste proceeded against them ex parte without realizing that the defendants throughout had been assiduously following the suit proceedings, thus might have adjourned the case---In doing so, nothing terrible would have happened because valuable rights of the parties were involved---Law favoured adjudication of case on merits as far as possible---Revision petition was allowed, in circumstances and the application for setting aside ex parte proceedings was accepted.

Nemat Ali and others v. Mst. Bakhtawar and others 1995 MLD 484 rel.

Ch. Muhammad Aslam for Petitioner.

A.D.Bhatti for Respondents Nos.1 and 2.

Anwaar Hussain Janjua for respondent No.4.

Arshad Jahangir Jhoja, Addl. Advocate for Respondents Nos.3 and 5

2021 C L C 782

[Lahore]

Before Atir Mahmood, J

Malik KHALIL AHMAD ----Petitioner

Versus

PCBL and others----Respondents

Co-operatives Petition No.70788 of 2019, decided on 13th March, 2020.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss.7, 11 & 16 ---Powers of a Cooperatives Board ---Application to Cooperatives Judge---Recovery of arrears of land lease / rent---Scope--- Question before High Court was whether Cooperatives Judge, under Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 had jurisdiction to adjudicate upon a suit for recovery of arrears of land lease / rent money---Held, that under S.7(ta) of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, Cooperatives Judge had power to direct eviction of tenant, therefore powers of recovery of arrears of rent being an ancillary matter would also vest in such judicial officer---Under Ss. 7(g) & 7(h) of said Act, Cooperatives Judge also had powers to recall or recover loans, and since suit property was given against lease money, and such amount could be termed as loan, therefore Cooperatives Judge could validly adjudicate upon recovery of such lease money---Per S.16 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 proceedings regarding cooperative matters could only be agitated under said Act, and jurisdiction of other courts, including civil courts was barred---Cooperatives Judge therefore validly exercised jurisdiction in the matter ---Cooperative petition was dismissed, in circumstances.

Black's Law Dictionary (8th edition) rel.

Zia ur Rehman for Petitioner.

Khalid Bashir for Respondent.

2021 C L C 805

[Lahore (Bahwalpur Bench)]

Before Muzamil Akhtar Shabir, J

KHADIM HUSSAIN----Appellant

Versus

MUHAMMAD TARIQ and others---Respondents

E.F.A. No.13 of 2018/BWP, decided on 28th September, 2018.

Civil Procedure Code (V of 1908)---

----S.145---Contract Act (IX of 1872) S.128---Contracts of guarantee/surety---Enforcement of liability of surety---Nature of surety's liability---Adjudication by Executing Court---Scope---Appellant impugned order of Executing Court whereby appellant's property was ordered to be attached on ground that he had stood surety for judgment-debtor---Contention of appellant, inter alia, was that no notice was served upon him by Executing Court and impugned order was therefore defective---Validity---While appellant claimed that no notice was served upon him by Executing Court, however, appellant had filed revision against orders of Executing Court before his property could be auctioned, which matter remained pending for many months and sufficient opportunity was therefore provided to him to produce judgment-debtor for satisfaction of decree, or in case of default, clear outstanding labilities and thus any non-provision of notice by Executing Court was cured by hearings provided by revisional court and High Court in appeal ----Liability of surety was coextensive with that of judgment-debtor unless provided otherwise by contract and thus no illegality existed in impugned order---Appeal was dismissed, in circumstances.

Muhammad Rafiq and others v. Ralley Khan through legal heirs 1989 MLD 3823; Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72; Industrial Development Bank of Pakistan v. Hyderabad Beverage Company Private Limited and others 2016 SCMR 451 and Messrs Platinum Insurance Company Limited, Karachi through Managing Director v. Daewoo Corporation, Shaikhupura through Director, Administration and Finance PLD 1999 SC 01 rel.

2021 C L C 863

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD MANSHA----Petitioner

Versus

MUHAMMAD USMAN and others---Respondents

Civil Revision No.66831 of 2020, decided on18th December, 2020.

Civil Procedure Code (V of 1908)---

----O.VI, R.15 & O. X, R. 2---High Courts ( Lahore ) Rules and Orders, Vol. 1, Chap. 1, Pt. C, Clauses 4 & 9---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Signing and verification of pleadings---Scope---Suit was not instituted by the plaintiff himself , instead by his relative, after obtaining his signatures on the plaint---Maintainability---Oral examination of the party or companion of party---Scope and effect---Held, that person (litigant) himself was to verify the pleadings on oath or on solemn affirmation under R.15, O.VI of the Civil Procedure Code, 1908, as well as under the High Court Rules and Orders---Petitioner/ plaintiff had admitted in his statement recorded under R.2, O.X of C.P.C, while appearing before the Trial Court, that his relative had instituted the suit after obtaining his signatures---Petitioner neither dictated the plaint nor imparted facts of the case to his counsel--- Petitioner's counsel had not obtained his signatures on the plaint as well as under verification statement after reading out contents of the plaint---Alleged verification, if any, made by the petitioner on the plaint, admittedly, was without knowing the contents of the plaint --- Appellate Court had rightly observed that when plaintiff had admitted before the Court of law that his relative got instituted the suit by obtaining his signature and that he had no knowledge about contents of the case then he could not adduce/record his evidence properly as he was not acquainted with the facts of the case ---Verification made by the plaintiff was also not as per requirement of law----Both the Courts below had rightly exercised their vested jurisdiction by holding that the suit of the plaintiff was not maintainable---No illegality or infirmity was found in the impugned judgments and decrees passed by both Courts below---Revision petition was dismissed, in circumstances.

2021 C L C 873

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Qari FAIZ RASOOL----Petitioner

Versus

CHIEF ADMINISTRATOR AUQAF through Secretary and others----Respondents

Writ Petition No.26062 of 2016, heard on 27th January, 2021.

Punjab Waqaf Properties Ordinance (IV of 1979)---

----Ss.7, 10, 21&23---Civil Procedure Code (V of 1908), O.VII, R.11---Bar of jurisdiction---Rejection of plaint---Petitioners/plaintiffs were aggrieved of notification under S.7 of Punjab Waqaf Properties Ordinance, 1979, whereby mosque and shops were taken over by Auqaf Department---Lower Appellate Court rejected the suit under O.VII, R.11, C.P.C.---Validity---Petitioners/plaintiffs lacked cause of action as well as locus standi to maintain their suit before Trial Court, whose jurisdiction was barred to make any indulgence---Suit amounted to pre-empting an action under Punjab Waqaf Properties Ordinance, 1979 and circumventing the law so as to defeat its purpose--- Remedy was provided in Punjab Waqaf Properties Ordinance, 1979 through a petition before District Court--- Legislature by promulgation of Ss. 21 & 23 of Punjab Waqaf Properties Ordinance, 1979, excluded jurisdiction of Civil Court in respect of proceedings and intended action---When law desired a thing to be done in a defined way then it was to be performed in that manner alone---When jurisdiction of Civil Court was ousted then no further inquiry was needed, plaint was rightly rejected at its inception---Revision was dismissed, in circumstances.

Chief Administrator Auqaf and another v. Haji Muhammad Sharif and another 1999 SCMR 2795 rel.

Muzaffar Aziz Khan for Petitioner.

Aurangzaib Ch. for Respondents Nos.1 to 3.

Ihsan Ahmed Bhindar for Respondent No.4.

2021 C L C 884

[Lahore]

Before Atir Mahmood, J

MUHAMMAD ISHAQ and 156 others----Petitioners

Versus

MEMBER (CONSOLIDATION) BOARD OF REVENUE and 12 others----Respondents

Writ Petition No.7034 of 2013, heard on 14th October, 2020.

(a) Words and Phrases---

----"Be that as it may"---Connotation---When someone begins his sentence with this phrase, it does not mean that the person has accepted whatever was said before him as correct, true and authentic---Even if whatever was said was true and correct or although what has been said may be true yet it can neither change the situation nor affect opinion of writer---In case any petition has been dismissed with such phrase, it does mean that "permission" or "allowance" was granted.

Cambridge Dictionary; Collin Dictionary; Merriam-Wesbster Dictionary; Longman Dictionary; Macmillan Dictionary; Free Dictionary and English Dictionary rel.

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

----S.12(2)---Summary disposal of application---Proceedings by predecessor-in-interest---Effect---Petitioners sought setting aside of judgment passed earlier by High Court on the ground that it was result of misrepresentation and fraud--- Validity--- When there were two or more remedies available to a party for redress of its grievance, it was always upto that party to choose recourse for redress of its grievance out of multiple remedies available to it--- After dismissal of petition by High Court, predecessor-in-interest of petitioners chose himself to challenge that order before Supreme Court and not before High Court---Neither predecessor-in-interest of petitioners nor petitioners could be allowed to re-agitate same matter in application under S.12(2), C.P.C. as the same was against doctrine of election--- Ordinarily application under S.12(2), C.P.C. was required to be treated like a suit, issues were to be framed and evidence to be recorded but in cases wherein from the very outset it was established that application filed under S.12(2), C.P.C. was legally not maintainable, the same could be dismissed in a summary manner without framing of issues and recording of evidence---Constitutional petition was dismissed, in circumstances.

Abdul Majid v. Qazi Abbas Hussain Shah 1995 SCMR 429; Fazeelat Agha v. Chief Settlement Commissioner 2019 SCMR 417; Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Muhammad Akram Khan v. Abrar Ahmed and 4 others 2012 CLC 162; Dr. Masuma Hasan v. Muhammad Hafeez and others 2018 CLC 1471 and Nusrat Abbas v. Nighat Parveen and others 2018 CLC 115 rel.

Iqbal Ahmad Khan, Ch. Muhammad Zeeshan and Munawar Khan for Petitioners.

Sardar Muhammad Ramzan for Applicants (in connected C.M. No.1 of 2015 in Writ Petition No.3257 of 2009).

Sh. Naveed Shahryar and Mirza Bashir Ahmad for Respondent No.7.

Rao Rasheed Ahmad Khan for Respondents Nos.8 to 11.

Malik Naveed Akram, Assistant Advocate General for the State.

2021 C L C 898

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

ALTAMUSH SAEED----Petitioner

Versus

GOVERNMENT OF PUNJAB and another----Respondents

I.C.A. No.55556 of 2020, decided on 24th December, 2020.

Punjab Compulsory Teaching of the Holy Quran Act (XVII of 2018)---

----S.3---Compulsory teaching of the Holy Quran---Scope---Appellant filed "appeal in public interest" seeking direction to the Government to take all possible steps to enable the Muslims, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to enforce the Punjab Compulsory Teaching of the Holy Quran Act, 2018---Secretary School Education Department, inter alia, stated that the provisions of Punjab Compulsory Teaching of the Holy Quran Act, 2018, would be enforced in letter and spirit and implemented in all educational institutions from the next academic year---Chairman, Punjab Curriculum and Textbook Board, inter alia, stated that the Board shall take all steps before the commencement of next academic year to ensure that every book that is to be taught in any school did not contain any offensive material about the teaching of Holy Quran and Sunnah, Islamic Ideology and pious personalities of Islam---Parties felt satisfied and jointly submitted that the appeal be disposed of in terms of the recorded statements---Appeal was disposed of accordingly.

Malik Aneeq Ali Khatana for Appellant.

Ahmad Awais, Advocate General Punjab and Ch. Faza Ullah, A.A.G. along with Lt.Gen (Retd) Muhammad Akram Khan, Chairman PCTB, Atta Dastgeer, Director (Manuscripts), Muhammad Aslam Sipra, Deputy Director (Legal), Liaqat Ali Channar, Law Officer, Dr. Sohail Shahzad, Secretary School Education Department and Humayun Akhtar Sahi, Deputy Secretary (Legal), SED.

Rana Ashfaq, PTA Law Officer.

2021 C L C 921

[Lahore]

Before Atir Mahmood, J

T.P. ASSOCIATE 01-TECH TOWN through Sole Proprietor----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Cooperatives and 3 others----Respondents

Writ Petition No.18297 of 2019, heard on 7th December, 2020.

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

----S.54---Constitution of Pakistan, Art.199---Constitutional petition---Concurrent findings of two forums---Registrar Cooperative---Jurisdiction---Concealing of material facts---Petitioner was Cooperative Housing Society and respondent was its member---Dispute between parties was with regard to allotment of plots---Registrar, Cooperative Societies decided the reference by directing petitioner to allot plots in favour of respondent---Appeal filed by petitioner before Provincial Government was dismissed---Validity---Registrar was not bound to necessarily send the matter to civil court and he had jurisdiction to decide the matter himself or through his nominee---Jurisdiction of Registrar was never challenged by petitioner before lower forums, therefore, it was not allowed to do so at such stage when two forums had already decided against petitioner---Petitioner filed suit against respondent before civil court regarding property in dispute which was withdrawn by petitioner after 3 months---Such fact was neither disclosed before High Court nor record of the same was appended---Such material fact concealed by petitioner from Court was with mala fide intention---If a party had not come to Court with clean hands, such party was not entitled to any relief---Concurrent findings of law and fact against petitioner, which were immune from interference by High Court unless there was some gross illegality which could not be pointed out by petitioner---High Court declined to interfere in concurrent orders passed by two forums below---Constitutional Petition was dismissed, in circumstances.

Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan) Lahore and others PLD 1964 SC 829 and Fazal Ellahi and 5 others v. Alam Din PLD 1979 SC (AJ&K) 109 rel.

(b) Co-operative Societies Rules, 1927---

----R.32---Arbitration---Registrar Cooperatives---Jurisdiction---Registrar, on receipt of reference under S.54 of Co-operative Societies Act, 1925, issues notice to concerned parties---If no move is made by parties for decision of matter through arbitration, Registrar can proceed with the matter and decide the dispute himself.

Muhammad Javed Iqbal Qureshi for Petitioner.

Malik Naveed Akram, Assistant Advocate General for Respondent No.2.

Ms. Asma Hamid and Rana Zulfiqar Ali for Respondent No.4.

2021 C L C 952

[Lahore]

Before Rasaal Hasan Syed, J

NAVEED AKHTAR----Petitioner

Versus

SPECIAL JUDGE (RENT), SIALKOT and 2 others----Respondents

Writ Petitions Nos.60976 and 60978 of 2020, decided on 4th February, 2021.

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

----S.13---Tenant, obligations of---Change of status---Procedure---Once a tenant is always a tenant---If tenant intends to question title of landlord, he should vacate premises, restore possession to landlord and thereafter raise question of title.

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

----S.19---Ejectment of tenant--- Co-sharer, non-impleading of---Effect---Eviction application filed by landlord/respondent against tenant/petitioner was allowed by Rent Tribunal---Lower Appellate Court maintained eviction order passed by Rent Tribunal---Tenant/petitioner assailed maintainability of eviction application on the plea that premises fell in the share of other co-owner---Validity---Unlike suit for possession where all co-owners were needed to be associated either as plaintiffs or defendants, it was not necessary to associate other co-sharers in eviction proceedings---One of the co-landlords by co-owners could seek eviction of tenant without impleading other co-owners or associating them in proceedings---Premises was not partitioned either under decree of Court or under any family settlement---Mere pendency of any civil litigation for partition of property could not be a reason to protect tenant from eviction due to default---Oral and documentary evidence on record proved that petitioner was tenant of respondent who executed rent agreement in his favour and admitted payment of rent to him---Landlord/respondent was legally eligible to seek eviction of tenant/petitioner---High Court declined to interfere in eviction orders passed by two Courts below as those did not suffer from any error of law or jurisdiction---Constitutional petition was dismissed, in circumstances.

Kalimullah v. Amin Hazin and others 1976 SCMR 77; Khalique Ahmed v. Abdul Grant and another PLD 1973 SC 214; Muhammad Hanif and another v. M. Jamil Turk and 5 others 2002 SCMR 429 and Saifullah and another v. Ch. Ghulam Ghous 2000 CLC 1841 ref.

Saeed Ahmad Bhalli for Petitioner.

Shah Nawaz Khan for Respondent.

2021 C L C 965

[Lahore]

Before Mirza Viqas Rauf, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Chief Executive/General Manager----Petitioner

Versus

UNION COMMUNICATION (PVT.) LIMITED----Respondent

F.A.O. No.21 of 2008, heard on 8th February, 2016.\

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

----S.34---Civil Procedure Code (V of 1908), S.9---Courts to try all civil suits unless barred---Power to stay legal proceedings where there was an arbitration agreement---Scope---Appellant assailed order passed by civil judge whereby he had rejected its petition under S.34 of Arbitration Act, 1940---Validity---Respondent had claimed multiple reliefs in its suit, however, he had also sought refund of the security deposit as well as rendition of accounts---Agreement between the parties provided that in case of any dispute with regard to the refund of security deposit the arbitration clause will not be applicable---Section 34 of Arbitration Act, 1940, could not be made applicable in piecemeal---Civil Court had plenary jurisdiction in terms of S.9 of Civil Procedure Code, 1908 and the same could be extended to all the claims of civil nature except where the jurisdiction was expressly or impliedly barred---Matter in issue was not fully covered under the agreement executed between the parties rather the issue of refund of security deposit was specifically ousted from the purview of arbitration---In such eventuality, S.34 of Arbitration Act, 1940 could not be stretched into service---Civil Court had not committed any illegality or irregularity while rejecting the petition---Appeal was dismissed, in circumstances.

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

----S.34---Power to stay legal proceedings where there is an arbitration agreement---Scope---Conditions to be fulfilled for obtaining an order staying the proceedings under S.34 of Arbitration Act, 1940, detailed.

Following are the conditions to be fulfilled for obtaining order staying the proceedings under S.34, Arbitration Act, 1940.

i) The proceedings must have commenced by a party to an arbitration agreement against any other party to the agreement.

ii) The legal proceedings, which are sought to be stayed, must be in respect of a matter agreed to be referred.

iii) The applicant for stay must be a party to the legal proceedings and he must have taken no step in the proceedings after appearance. It is also necessary that he should satisfy the Court not only that he is, but also was at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration and

iv) The Court must be satisfied that there is no sufficient reason, why the matter should not be referred to an arbitration in accordance with the agreement.

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

----S.34---Power to stay legal proceedings where there is an arbitration agreement---Scope---Section 34 of Arbitration Act, 1940 cannot be made applicable in piecemeal.

Umar Sharif for Appellant.

Waheed Khalid and Adil Bandial for Respondent.

2021 C L C 973

[Lahore]

Before Shahid Karim, J

MABUSHRA SAM----Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

Writ Petition No.188495 of 2018, heard on 15th January, 2020.

(a) Punjab Luxury House Tax Rules, 2014---

----R.9---Punjab Finance Act (XVII of 2014), S.8---Constitution of Pakistan, Arts.8 & 9---Right of access to justice---Luxury House Tax---Application to grievance committee---Scope---Petitioners assailed the vires of R.9 of Punjab Luxury House Tax Rules, 2014, (the Rules) on the ground that it imposed a condition that at least one installment of tax had to be paid before filing an application to the grievance committee whereas S.8 of the Punjab Finance Act, 2014, had not imposed such condition---Validity---Section 8 of the Punjab Finance Act, 2014, provided a remedy for filing an application to the grievance committee in case of a dispute---Said S.8 had not prescribed any pre-condition which had to be complied with by a person prior to approaching the grievance committee---If the legislature intended for such a condition to be imposed, it could well have mentioned the condition in the statute itself and, therefore, the necessary implication was that the legislature did not delegate any power to the government to impose a condition which was not contemplated in the main enactment---Statutory scheme could not be upended by providing a condition which was not only stringent but had also unlawfully curtailed the right of a person to approach grievance committee---Such fetter imposed through a sub-legislative measure offended the right of access to justice and could not be countenanced---Rule 9 of the Rules was struck down by the High Court to the extent that it imposed condition on the petitioners to provide proof of payment of at least one installment of the tax.

(b) Interpretation of statutes---

----Rules enacted pursuant to a statute cannot travel beyond the mandate of the main statute.

Sameer Khosa, Jawad Khan Lodhi, Hammad Saad, Barrister Muhammad Ahmad Pansota, Mian Tariq Hassan and Muhammad Saad Khan for Petitioner.

Anis Ali Hashmi, A.A.G. for Respondent.

2021 C L C 981

[Lahore (Multan Bench)]

Before Shahid Jamil Khan and Muhammad Sajid Mehmood Sethi, JJ

MOHAMMAD ANWAR RAMAY and 2 others----Appellants

Versus

NATIONAL BANK OF PAKISTAN through President/Chief Executive and another----Respondents

F.A.O. No.100 of 2015, decided on 23rd June, 2016.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Adjudication of application under O.VII, R.11, C.P.C.---Exercise of powers under O.VII, R.11, C.P.C.---Scope---Plaint could not be rejected in piecemeal manner and by means of its rejection, plaintiff could not be left entitled to maintain any relief sought therein and plaint could only be rejected if all reliefs claimed by plaintiff therein were barred under law---Even if one of the prayers was maintainable, then plaint could not be rejected under O.VII, R.11, C.P.C.---Under codal formalities, there existed no concept of piecemeal rejection of plaint and O.VII, R.11, C.P.C. was procedural in nature and such power had to be exercised in exceptional circumstances and only where Court came to conclusion that even if all allegations were proved, plaintiff could not be entitled to any relief---Court had only to see as to whether any cause of action had been disclosed and it was immaterial whether plaintiff could prove the case or not, which could not be done without framing of issues and recording evidence.

Najamuddin Zia and another v. Mst. Asma Qamar and others 2013 CLC 1263; Mst. Nishat Ishaq v. Amjad Khan and 2 others 2014 CLC 71; Shahzad and another v. IVth Additional District Judge, Karachi (East) and 5 others PLD 2016 Sindh 26; Syed Shabi-ul-Hassan Khusro v. Asad Mustafa and 6 others 2016 MLD 266; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1999 SC 1; Muhammad Younis Arvi v. Muhammad Aslam and 16 others 2012 CLC 1445; Izhar Muhammad v. Messrs Memon Housing Services through Partner and another 2009 MLD 1378; Meer Hassan alias Ameer Hassan v. Federation of Pakistan through Secretary Port and Shipping, Islamabad and another 2009 YLR 1827; Sabir Hussain v. Board of Trustees of the Port of Karachi and 5 others 2010 YLR 3313; Syeda Adrish and another v. Syed Anwar-ul-Haq and 2 others PLD 2011 Lah. 569; Amir Karim v. Muhammad Asif and 10 others 2014 MLD 1537 and Muhammad Ali Shaikh v. Sui Southern Gas Company Ltd., through Managing Director and 3 others 2014 YLR 444 rel.

Muhammad Manzoor-ul-Haq for Appellants.

2021 C L C 988

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

NIAZ HUSSAIN SHAH----Petitioner

Versus

PROVINCE OF PUNJAB through Additional District Collector Muzaffargarh and others----Respondents

Civil Revision No.693-D of 2020, decided on 19th November, 2020.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), Arts. 14 & 120---Suit for declaration---Rejection of plaint---Suit to set aside any act or order of an officer of Government in his official capacity---Suit for which no period of limitation is provided---Scope---Plaintiff filed suit for declaration to challenge the orders of revenue officials on the grounds of being illegal, without jurisdiction, result of fraud and conspiracy in consequence of undue and illegal influence by a former higher Revenue Officer and reflected act of favoritism to respondent and, as such, was liable to be cancelled---Trial Court rejected the plaint whereas Appellate Court dismissed the appeal---Validity---Suit was apparently not for setting aside of any order simpliciter; but was for annulment of the order on account of lack of jurisdiction, fraud, conspiracy and other grave allegations which, if proved, would have serious effects; while deciding application under O.VII, R.11, C.P.C., only statements in the plaint were to be taken into consideration---Question as to whether suit should be regulated by Art. 14 or Art. 120 of the Limitation Act, 1908 could not be decided without recording of evidence---Issues having already been framed and the case set up for evidence, trial court having already declined the rejection of plaint and said order having been affirmed in revision, the subsequent order of Trial Court on the application under O.VII, R.11, C.P.C., in the given circumstances, was not tenable---Revision petition was allowed, in circumstances and the Trial Court was directed to decide the suit after recording evidence.

Malhar v. Government of Sindh and others 2005 CLC 285; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Province of East Pakistan v. A.K.M. Razaul Karim and another PLD 1969 Dacca 280 ref.

Abdul Samad Ali for Petitioner.

Ahmed Nadeem Gehla, A.A.G., Punjab and Khalid Masood Ghani for Respondent.

2021 C L C 1008

[Lahore]

Before Atir Mahmood, J

ARIF IRFAN----Petitioner

Versus

SHARIF PEERAN DITTA----Respondent

C.R. No.3228 of 2010, heard on 19th October, 2020.

(a) Malicious prosecution---

----Meaning and concept of "malicious prosecution"---Basic ingredients for "malicious prosecution" to be an actionable tort---Suit for compensation on basis of malicious prosecution---Scope---Malicious prosecution may be defined as institution of criminal or civil proceedings for an improper purpose and without probable cause---Every criminal prosecution / inquiry which ended with clearing of accused, would not per se entitle such person / accused to file suit for compensation----Successful proceedings initiated under law of malicious prosecution required that original proceedings must have been malicious and without cause---Every person had right to set in motion governmental and judicial machinery for protection of rights but such person should not infringe corresponding rights of others by instituting improper legal proceedings in order commit harassment by way of unjustifiable litigation---To be an actionable tort, prosecution must have been malicious and terminated in favour of plaintiff and mere filing of complaint before police authorities on basis of an allegation was not a "legal wrong" for purpose of suit for malicious prosecution---Courts had to determine whether initiation of prosecution was with reasonable and probable cause and circumstances between parties were to be taken into consideration to determine state of mind of prosecutor and defendant---Mere jealousy and grudges would not be reasonable cause and it was an essential ingredient for a suit for compensation based on malicious prosecution that criminal prosecution against plaintiff were initiated with malice.

Muhammad Akram v. Mst. Farman Bibi PLD 1990 SC 28; Black's Law Dictionary and Abdul Rasheed v. State Bank of Pakistan PLD 1970 Kar. 344 rel.

(b) Words and Phrases---

----"Prosecution"---Meaning of---Prosecution was a criminal proceeding in which an accused person was tried and a prosecution existed where criminal charge was made before a judicial officer or tribunal.

Black's Law Dictionary rel.

(c) Words and Phrases ---

----"Malice"---Meaning of---Malice meant wrongful intention.

Black's Law Dictionary and Abdul Rasheed v. State Bank of Pakistan PLD 1970 Kar. 344 rel.

Muhammad Riaz Lone for Petitioner.

Respondent proceeded against ex parte.

2021 C L C 1034

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

DEFENCE HOUSING AUTHORITY through Secretary---Appellant

Versus

LUBNA NIZAMI and another---Respondents

I.C.A. No.142 of 2014 and C.M. No.1 of 2017, decided on 12th October, 2020.

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

----O.XLI, R.19---Re-admission of appeal dismissed for default---Scope---Appellant sought re-admission of appeal dismissed for non-prosecution on the ground that no information/intimation was given to the appellant's counsel regarding fixation of the appeal by any mode whatsoever---Appellant's counsel had failed to append affidavit with the application as it was necessary for him to have filed affidavit to explain his absence but only an official of the appellant had filed an affidavit in routine---Affidavit of the said official was of no avail to the applicant/appellant and he could not depose about the alleged non-receipt of cause list by his counsel---Application for restoration of appeal being devoid of merits was dismissed, in circumstances.

Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Salamat Bibi and others v. Settlement and Rehabilitation Commissioner Multan PLD 1966 SC 467; Municipal Committee Rawalpindi through the Secretary Municipal Committee Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCMR 817; Muslim Commercial Bank Ltd. v. Tariq Saeed and another 2004 CLD 920; Defence Housing Authority through Secretary and another v. Mst. Parveen Akhtar 2017 MLD 899; Shaheen Ahmad Siddiqui v. Muhammad Yaseen Khan and others 2007 YLR 2007; Bahadur v. Jamat Ali and 6 others 1999 MLD 2429; Anwar Khan v. Fazal Manan 2010 SCMR 973; Muhammad Iqbal v. Sardar Khan 2012 MLD 1487; Messrs National And Grindlays Bank Ltd v. Arshad Ali Khalid Qureshi and another PLD 1990 Kar. 436; LT. Col.Mirza Munawar Beg and others v. Mst. Hassan Bibi and others 1981 SCMR 160; Muhammad Rahim through L.Rs and others v. Mst. Sakina Bibi and others 2010 YLR 3025; Syed Zulfiqar Ali Shah v. Habib Bank Limited through attorney and 7 others 2006 CLD 139; Naeem Ullah Khan v. Abdul Muneem Karrak and 3 others 2001 YLR 590; Rex Talkies (Pvt.) Ltd and another v. Samir Oosman and 2 others PLD 2007 Kar. 362 and Iqbal Ahmad Khan v. Muhammad Afzal 2007 CLC 1948 ref.

Syed Junaid Akhtar and others v. Managing Director/Chairman and others PLD 2008 SC 130 and Muhammad Siddique and 2 others v. Khan Amir and another 2010 MLD 674 rel.

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

----O.XLI, R.19---Re-admission of appeal dismissed for default---Scope---Appellant sought re-admission of appeal dismissed for non-prosecution---Contention of applicant/appellant was that proper place of procedure in any system of administration of justice was to help and not thwart the right of the people and that all technicalities had to be avoided as law always favoured adjudication on merits rather than non-suiting the parties on technicalities---Validity---Exercise of discretion in that regard entirely depended upon the facts and circumstances of each case and said proposition could not be applied as rule of thumb---Applicant had to satisfactorily explain about absence on the date of hearing and any negligence would not absolve him from the legal obligation to pursue the appeal vigilantly---Courts, in exercise of discretion, was required to keep rational/balance in their approach by not allowing a litigant to misuse indulgence or concession---Application for restoration of appeal being devoid of merits was dismissed, in circumstances.

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

----O.XLI, R.19---Re-admission of appeal dismissed for default---Scope---Appellant sought re-admission of appeal dismissed for non-prosecution on the ground that no information/intimation was given to the appellant's counsel regarding fixation of the appeal by any mode whatsoever---Validity---Service of providing cause list to the Advocates by the Bar was only complementary and had no legislative backing---Counsel in a case was supposed to check the list of cases fixed for hearing, displayed in the office, outside the Court Room or in the Bar Room---Application for restoration of appeal being devoid of merits was dismissed, in circumstances.

Zahid Afzal v. Mst. Fatima Saeed and 3 others 2005 MLD 1407 ref.

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

----O.XLI, R.19---Re-admission of appeal dismissed for default---Scope---Mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him from all responsibilities---Litigant as well as his counsel are bound to see the appeal properly and diligently pursued and in case of any inaction on their part, opposite party cannot be made to suffer rather valuable right accrues in favour of opposite party.

(e) Administration of justice---

----Law helps those who are vigilant and not those who are indolent.

Barrister Khurram Raza for Applicant/Appellant.

2021 C L C 1056

[Lahore]

Before Muhammad Ameer Bhatti, J

ALLAH RAKHA and another----Petitioners

Versus

SHAHNAZ BIBI----Respondent

Civil Revisions Nos.752 and 753 of 2012, heard on 13th December, 2017.\

Gift---

----Gift deed---Burden of proof---Scope---Petitioners filed a suit for partition of suit property whereas respondent filed a suit for declaration-cum-permanent injunction claiming to be owner of the suit property on the basis of gift deed executed by her late husband---Courts below concurrently decreed the suit filed by respondent---Validity---Respondent had claimed to be owner of the property on the basis of gift deed, contents/narration whereof itself disclosed that the donor had intentionally and with his conscious mind executed the gift deed wherein the offer and admission of handing over the possession of the property was also reflected---Acceptance was also visible from the thumb impression of the respondent embossed by her at footnote of the gift deed, which was sufficient to declare it a valid gift---Possession of the respondent over the suit house was also established from factum of admission of the parties as the respondent was residing in the said house---Gift deed was proved by producing the Stamp Vendor, Scribe of the gift deed and both marginal witnesses whereas the respondent herself had also appeared as a witness---Burden to prove authenticity and validity of gift was always on the beneficiary, which in the present case was duly discharged by the respondent---Revision petitions were dismissed, in circumstances.

Abdul Ghaffar and 6 others PLD 1975 Pesh. 12 ref.

Allah Diwaya v. Ghulam Fatima and others PLD 2008 SC 73 distinguished.

Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342 and Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 rel.

Babar Muneer Chaudhry and Syed Aatir Hussain Rizvi for Petitioners.

Ch. Iftikhar Ahmad Kisana for Respondent.

2021 C L C 1082

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

PROVINCE OF PUNJAB through Secretary, Government of Punjab, Labour and Human Resources Department----Petitioner

Versus

CHAIRMAN, FEDERAL LAND COMMISSION, ISLAMABAD and others----Respondent

Writ Petitions Nos.1655 and 1114 of 1997, decided on 23rd December, 2020.

(a) Land Reforms Regulations, 1972, (MLR 115)---

----Preamble---Object and purpose---In order to improve economic well-being of peasantry and making agriculture a profitable vocation, Government of Pakistan promulgated Land Reforms Regulations, 1972 (MLR 115) on 11-3-1972, whereby maximum ceiling of own land was fixed.

(b) Land Reforms Regulations, 1972, (MLR 115)---

----Rgln.29---Constitution of Pakistan, Art.199---Constitutional petition---Order of Land Commission, assailing of---Limitation---Maxim: Audi alteram partem---Applicability---Order of Land Commission was set aside in a revision application filed after 21 years---Validity---Period of 60 days was provided under Regln. 29 of Land Reforms Regulations, 1972, (MLR 115), which was a special law, for calling in question validity of an order of lower Land Commission fora with the only exception of time consumed in obtaining certified copies of the order---Limitation against such order was not condonable by Chairman Federal Land Commission---After review of mutation, land had mutated in favour of state and without hearing state an effective order could not have been passed---High Court set aside order passed by Chairman Federal Land Commission as the same was nullity in its entirety and was passed in violation of Maxim: audi alteram partem---Constitutional petition was allowed, in circumstances.

Imad Ali v. Federal Land Commission, Rawalpindi and 2 others PLD 1987 Kar. 8 and Muhammad Ramzan v. Federal Land Commission and others 2004 MLD 805 ref.

Muhammad Arif Raja, Additional Advocate General along with Ch. Tariq Javed, Legal Advisor for Punjab Workers Welfare Board for Petitioner.

Khawaja Umaiz for Respondent No.3.

Ms. Najma Parveen for Petitioner (in Writ Petition No.1114 of 1997).

2021 C L C 1098

[Lahore]

Before Muhammad Ameer Bhatti, J

Syed IBN-E-ALI SHAH and 5 others----Petitioners

Versus

SARWAR KHATOON (DECEASED) through LRs and others----Respondents

Civil Revision No.3752 of 2011, heard on 3rd March, 2021.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Fraudulent transaction---Illiterate lady---Burden of proof---Scope---Respondents' predecessor-in-interest filed suit for declaration seeking ownership of the land which was allegedly got transferred by the petitioners by means of fraud and misrepresentation---Trial Court dismissed the suit while Appellate Court decreed the same---Validity---Predecessor-in-interest of respondents was an illiterate lady who had filed declaratory suit alleging therein that she had not appeared before the Revenue Officer rather she had no knowledge of the transaction in question nor had she received any consideration amount in that regard---No evidence was available regarding any independent advice forthcoming from her husband or son at the time when the impugned mutation was sanctioned---Petitioners who were under legal obligation to prove the factum of transaction had failed to bring on record any persuasive evidence of the cogent nature---Petitioners had failed to point out any illegality or infirmity in the impugned judgment---Revision petition was dismissed.

Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCMR 1194; Khan Muhammad v. Muhammad Din through LRs 2010 SCMR 1351; Muhammad Saee v. Mst. Sharaf Elahi and another 2010 SCMR 1358; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Muhammad Afzal v. Muhammad Zaman and others PLD 2012 Lah. 125; Mubashir Hussain through Special Power of Attorney v. Syed Hussain Abbas and 3 others 2019 CLC 1417; Syed Tabassam Hussain Shah v. Sakina Bibi through Special Attorney and 2 others 2020 YLR Note 32; Zahid Islam v. Mst. Rehmat Bibi and others 2020 CLC 54; Osman Yasin v. Defence Housing Authority through Administrator and 7 others 2018 YLR 3; Lashkar v. Fazal 2012-14 GBLR 187; Mst. Surraya Bibi v. Imtiaz Ahmad and 3 others 2018 CLC 1640; Mst. Azmat-e-Bibi v. Noor Muhammad and 3 others 2012 YLR 1765; Karam Bakhsh and another v. Mst. Saira Bibi 2000 MLD 318; Mst. Anwar Kalsoom and 2 others v. Ghulam Raza and another 2018 YLR 1028; Jameel Ahmad Zahid v. Rasheeda Begum and others 2019 MLD 485; Muhammad Din, through Legal representatives v. Mst. Fatima Bibi and another 2008 YLR 881; Mst. Waris Jan and another v. Liaqat Ali and others PLD 2019 Lah. 333; Abdul Qadeer v. Ashiq Ali and 2 others 2006 YLR 2900; Mst. Manna v. Muhammad Akhtar and 3 others 2000 YLR 2417 and Arif Zaman v. Pir Dost Ali Shah through Legal Heirs and others 2005 MLD 98 ref.

Ahmad Yar Chawali for Petitioner.

Iftikhar Ahmad Chohan, Qamar Hayat and Saeed Ullah for Respondents.

2021 C L C 1111

[Lahore]

Before Muhammad Ameer Bhatti, J

ALI MUHAMMAD----Petitioner

Versus

MUHAMMAD HASSAN and others----Respondents

Civil Revision No.2742 of 2010, heard on 19th December, 2017.\

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Oral agreement---Scope---Petitioner assailed orders passed by courts below whereby respondents' suit for specific performance of agreement to sell was concurrently decreed---Validity---To prove the oral agreement, all the particulars must have been incorporated in the plaint, which were found missing---Purported agreement to sell which was subsequently reduced into writing which was silent with regard to the particulars of the oral agreement to sell, therefore, the evidence led by the respondents being beyond the scope of pleadings ought to have been excluded from consideration---Courts below had misread and misconstrued the record of the case---Revision petition was allowed, in circumstances

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. 2013 SCMR 1300; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Mubarak Ali and others v. Khushi Muhammad and others PLD 2011 SC 155 and Combind Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730 ref.

Sh. Naveed Shahryar and Ms. Humera Bashir Ch. for Petitioner.

Syed Ijaz Qutab for Respondents.

2021 C L C 1120

[Lahore (Bahawalpur Bench)]

Before Muzamil Akhtar Shabir, J

TARIQ MEHMOOD and others----Petitioners

Versus

SIRAJ UD DIN and others----Respondents

Diary No.4114 of 2021, decided on 22nd February, 2021.

Civil Procedure Code (V of 1908)---

----Ss.115 & 159---Code of Civil Procedure (Punjab Amendment) Ordinance (VIII of 2020), Ss. 7 & 10 --- Revision--- Amendment in S.115, C.P.C., and insertion of S.159, C.P.C. vide Code of Civil Procedure (Punjab Amendment) Ordinance, 2020; effect of---Petitioner impugned office objection whereby revision was held not maintainable and contended that on basis of amendment in S.115, C.P.C. by Code of Civil Procedure (Punjab Amendment) Ordinance, 2020, he had been told by the District Court to file same before High Court---Validity---Proceedings instituted prior to enactment of Code of Civil Procedure (Punjab Amendment) Ordinance, 2020 were to be proceeded and dealt with in accordance with provisions of the C.P.C. existing prior to said Ordinance, and in present case, revision would therefore lie before relevant District Judge and not High Court; and petitioner could therefore seek appropriate remedy from District Court---Objection was disposed of, accordingly.

2021 C L C 1201

[Lahore]

Before Asim Hafeez, J

SIKANDAR MAHMOOD (DECEASED) through Legal Heirs and others----Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY and others---Respondents

Writ Petition No.187944 of 2018, decided on 20th January, 2021.

Lahore Development Authority Land Use Rules, 2020---

----R.34---Lahore Development Authority Land Use Rules, 2014, R.31---Constitution of Pakistan, Art.199---Constitutional petition---Policy decision---Commercialization fee---Petitioner intended to seek commercialization of properties in question and had assailed amount calculated by authorities to be deposited---Validity---Valuation Table for year 2017-2018 identified value of land and structures raised thereupon separately---High Court was not to proceed to ascertain rationality of the decision to evaluate land and building/structure separately---No illegality existed in the order of authorities and valuation table notified and applicable at the time of computation of commercialization fee, and the same was benchmark for such determination---High Court declined to direct determination of commercial value of properties as per Valuation Table available at the time of filing of petition or during its pendency but according to Valuation Table as applicable when need for determination / assessment of commercial value had arisen---Constitutional petition was dismissed, in circumstances.

Associated Engineering Concern (Pvt.) Ltd. through Chief Executive Officer/Authorized Signatory v. Lahore Development Authority through Director General and others PLD 2019 Lah. 478 rel.

Zain Sikandar for Petitioner.

2021 C L C 1215

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

INAM ELAHI and 2 others----Petitioners

Versus

Mst. SAEEDA BEGUM (DECEASED) through LRs and others----Respondents

C.R. No.2931 of 2000, heard on 11th November, 2020.

(a) Islamic Law---

----Inheritance---Inheritance of immoveable property---Principles---Inheritance mutation was not essential to determine right of succession, rather under law of Shariah, on death of a Muslim, his / her estate automatically devolved upon legal heirs as per their shahrai shares and the law of Shariah / Islamic Law being supreme was not subordinate to any law, policy, rules or judicial pronouncements---Succession of a deceased Muslim was a matter which was concerned about law of Shariah and could not be defeated by any silence on part of party whose interest was involved.

Lal and another v. Muhammad Ibrahim 1993 SCMR 710; Khair Din v. Mst. Salaman and others PLD 2002 SC 677 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 rel.

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

----S.12(2)----Challenge to a decree / order / judgment on ground of fraud or misrepresentation---Mutation in respect of immoveable property based on fraud / misrepresentation, validity of---Subsequent sale / exchange of such property---Scope---No benefit could be derived by person acquiring title of immoveable property by practicing fraud, misrepresentation and concealment---Fraud, if established on record, was sufficient to vitiate most solemn proceedings and a court of law shall in no eventuality endorse or perpetuate same---Subsequent sale deed / exchange deed attained some presumption of correctness but same having been founded on superstructure of a fraudulent mutation whereby legal heirs were deprived of shahrai shares could not be maintained and lost its efficacy when such foundation slipped away ---- Fraudulent transaction had no basis / pedestal to stand and whenever such primary alienation was declared null and void, then whole entity built thereupon was bound to collapse.

Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704 rel.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 and Mst. Sehat Bibi v. Bahar Khan and others 2018 CLC 299 distinguished.

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

----S.42---Nature of mutation in respect of immoveable property---Scope---Mutation conferred no right or title in an immoveable property but at best was an arrangement made on fiscal side for ensuring realization of land revenue and securing correctness of record for such purpose.

(d) Islamic Law---

----Inheritance---Inheritance of immoveable property---Law of limitation, applicability of---Right of Inheritance could not be defeated by law of limitation.

Khair Din v. Mst. Salaman and others PLD 2002 SC 677 and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 rel.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of fact---Nature of jurisdiction conferred by S.115, C.P.C---Scope of interference against concurrent findings by courts below, in revision, was narrow and required court to examine whether lower fora failed to exercise jurisdiction so vested or they acted in excess of same illegally or with material regularity based on misreading of evidence brought on record by parties----Power under S.115, C.P.C. was an exceptional and necessary power intended to secure effective exercise of its superintendence as well as visitorial powers of correction unhindered by technicalities , which could not be invoked against conclusion of law or fact based on correct appraisal of evidence on record.

Ashtar Ausaf Ali for Petitioner.

Hamid Ali Mirza and Anwaar Hussain Janjua for Respondent No.1.

Sh. Naveed Shahryar, Sohail Zafar Sipra, Humera Bashir Chaudhry and Sh. Muhammad Ali Naveed for Respondent No.13(b).

Arshad Janahgir Jhojha, Addl. A.G. for Respondent No.14.

2021 C L C 1244

[Lahore]

Before Mirza Viqas Rauf, J

SUI NORTHERN GAS PIPELINES LIMITED----Petitioners

Versus

SHAPPHIRE ELECTRIC COMPANY LIMITED and others----Respondents

Civil Revisions Nos.3871, 3872 and 3873 of 2016, heard on 24th November, 2016.\

Arbitration Act (X of 1940)---

----Ss.14, 30 & 44---High Court (Lahore) Rules and Orders, Vol.-I, Part-B, Chap. 4-B, R.10---Award, non-filing in Court---Effect---Interim relief---Monetary loss---Scope---Petitioner-company was aggrieved of arbitration award which was not filed before Court to become rule of Court and had sought setting aside of the same---Validity---When award was not before Court for setting aside the same, its binding effect could not be fizzled on the basis of presumptions and suppositions---Petitioner-company, if felt genuine threat to its rights from the award, it could have placed the same before the Court in terms of R.10, chap. 4-B, Part-B, Volume I of High Court (Lahore) Rules and Orders and had claimed interim relief in those proceedings--- Relief of temporary injunction was an equitable relief which was solely based on well settled principles of equity--- Petitioner-company not only concealed certain material facts, while approaching the High Court but its conduct also disentitled petitioner-company to claim discretionary and equitable relief---Deduction made by respondent-company under award was adjustable on final determination and at the most could be termed as monetary loss which was never treated as irreparable loss in the eyes of law for the purposes of relief of injunction---High Court declined to interfere in the matter as petitioner-company failed to point out any illegality or material irregularity in the order--- Revision was dismissed, in circumstances.

Messrs Jame's Construction Company (Pvt.) Ltd. through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others PLD 2002 SC 310 distinguished.

Zaki Rehman for Petitioner.

Salman Aslam Butt and Waleed Khalid for Respondents.

2021 C L C 1269

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. NASIM BEGUM and others----Petitioners

Versus

MUHAMMAD NAWAZ and others----Respondents

Civil Revision No.13 of 2004, heard on 20th October, 2020.

(a) Islamic Law---

----Sect---Presumption---Majority of Muslims in South Asia is Sunni by sect, therefore, primary presumption about a person tilts that he is follower of Sunni faith---Such presumption is rebuttable.

Mulla's Muhammadan Law; Mst. Ghulam Ayesha alias Ilyas Begum and another v. Sardar Sher Khan (deceased) represented by LRs and others PLJ 2006 SC 1476; Muhammad Bashir and others v. Mst. Latifa Bibi through LRs' 2010 SCMR 1915 and Mst. Chanani Begum (deceased) through LRs v. Mst. Qamar Sultan 2020 SCMR 254 rel.

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

----Art.72---Document, proof of---No objection---Effect---Document having been produced and tendered without objection cannot be challenged subsequently, rather its admission in evidence also dispenses with requirement of its formal proof.

Jai Bhagwan v. Gutto and others AIR 1934 Oudh 167; Mst. Anwari Jan v. Baldua and another AIR 1936 Allah. 218; Gopal Das v. Shri Thakurji AIR 1943 PC 83 and Abdullah and others v. Abdul Karim and others PLD 1968 SC 140 rel.

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

-----Ss.30-A(2) & 31-A(1)(a)---Colony land--- Law of succession---Applicability---Sect, proof of---Plaintiffs / petitioners sought tenancy rights of land allotted under Mule Breeding Scheme on the plea that their predecessor-in-interest was from Shia sect---Both the Courts below concurrently declared predecessor-in-interest of plaintiffs / petitioners as Shia but Lower Appellate Court declined tenancy rights---Validity---Documentary evidence was to exclude oral one---Plaintiffs / petitioners brought on record some receipts to substantiate that predecessor-in-interest of plaintiffs / petitioners was Ahl-e-Tasheeh and was in habit of depositing donation to Imam Bargah such was not the conclusive proof---Plaintiffs / petitioners also produced death entries and statements of witnesses examined on behalf of parties whereby it was concluded that funeral prayer of their predecessor-in-interest was also offered as per Shia sect---Such were sufficient proofs that plaintiffs / petitioners successfully rebutted presumption so attached and by not questioning death entries, which were part of public document had attained presumption of correctness, stood admitted by respondents / defendants---Predecessor-in-interest of plaintiffs / petitioners, in her lifetime, also instituted suit claiming that her husband was Shia by faith and to that effect although she did not succeed yet at least to her extent, inference was there that she was follower of Shia sect---High Court in exercise of revisional jurisdiction confirmed concurrent findings of lower fora on issue regarding predecessor-in-interest of plaintiffs / petitioners was disciple of Shia---Nothing was contained in S.30-A(2) of Colonization of Government Lands (Punjab) Act, 1912, to alter law of succession applicable to any female tenant in respect of Personal Rights in land acquired by her---Lower Appellate Court failed to take into notice distinction between Ss.30-A & 31-A(1)(a) of Colonization of Government Lands (Punjab) Act, 1912---High Court set aside such findings of Lower Appellate Court and decreed the suit in favour of plaintiffs/petitioners--- Revision was allowed accordingly.

Abdullah and others v. Abdul Karim and others PLD 1968 SC 140 and Nizam Din and others v. Amir and others 1989 SCMR 1958 rel.

Arshad Malik Awan and Saima Hanif for Petitioners.

Raja Khurram Shehzad, Mian Asif Hayat and Nadia Iffat for Respondents Nos.1 to 5 and (in Civil Revisions No.131 of 2004).

Ihsan Ahmad Bhindar and Akhtar Masood Khan for Respondents Nos.9 to 13.

Malik Shakeel Ahmed Khan for Respondent No.14.

Akhtar Masood Khan and Rai Muhammad Panah Bhatti for Petitioners (in Civil Revisions Nos.1742 and 1743 of 2004).

2021 C L C 1286

[Lahore]

Before Jawad Hassan, J

Syed GHULAM MOIN-UL-HAQ GILLANI----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petition No.4848 of 2019, heard on 20th April, 2021.

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

----S.54---Constitution of Pakistan, Arts.23 & 199(1)(c)---Constitutional petition---Private entity dealing with affairs, of public---Scope---Maintainability---Alternate remedy---Petitioner was member of respondent Society and assailed building byelaws---Plea raised by authorities was that Constitutional petition was not maintainable against private person and alternate remedy was available to him---Validity---High Court was to protect Fundamental Rights provided and guaranteed under the Constitution---High Court was empowered under Art.199 (1)(c) of the Constitution to issue any appropriate direction for enforcement of Fundamental Rights, conferred by the Constitution in its Chapter-1 of Part II, even to a private person---Matter in petition involved right to property which was a Fundamental Right guaranteed under Art.23 of the Constitution, therefore, High Court was well within its powers to issue directions to even a private entity in its Constitutional jurisdiction dealing with the affairs of public---Dispute between Society and petitioner concerned business of Society because notice in question was not issued by the society while conducting its business---Petitioner was to approach Registrar Cooperatives because S.54 of Co-Operative Societies Act, 1925, had provided a mechanism to resolve dispute between a Cooperative Society and any of its members or past members---High Court directed the parties to appear before Registrar Cooperatives who would decide the issue after hearing all parties--- Petition was disposed of accordingly.

The State and others v. Director-General, FIA and others PLD 2010 Lah. 23; Captain Salim Bilal v. Pakistan International Airline Corporation (PIAC) through Managing Director PIACC 2013 PLC (C.S.) 1212; Defence Housing Authority Lahore v. Builders and Developers (Pvt.) Ltd. 2015 SCMR 1799 and Syed Sultan Ali v. Sahibzada Frogh Najam Najmi 2009 CLC 477 ref.

(b) Laches---

----Fundamental rights---Applicability---Principle of Laches is not one of the universal application to be applied in every case without examining dictates of equity, justice, fair-play and fact and circumstances of the case---Laches cannot be treated at par with law of limitation which prescribe period for enforcing a right or liability and requires Courts to dismiss a lis if not filed within such prescribed statutory period---No Court should dismiss a lis on the ground of laches if action assailed before it defeats the ends of justice and perpetuates injustice.

Salman Mansoor, Advocate Supreme Court for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General for Respondent.

Sahibzada Muzaffar Ali Khan, Sr. Legal Advisor for Respondent No.3/LDA

Sikandar Hayat Khan Sial for Respondent No.5/LESCO

Iftikhar Ahmad Mian, Advocate Supreme Court for Respondent No.6/Cooperative Model Town Society.

Javed Iqbal Bhatti, Advocate Supreme Court for Respondent No.7.

2021 C L C 1310

[Lahore]

Before Jawad Hassan, J

Haji MUHAMMAD ASIF SEHAR and another----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Finance Islamabad and 11 others----Respondents

Writ Petition No.29298 of 2021, decided on 5th May, 2021.

Prize Bond Rules, 1999---

----Rr.3 & 4---Constitution of Pakistan, Art.18 & 199---Constitutional jurisdiction of High Court---Prize bonds---Withdrawal of prize bonds from circulation---Cancellation of scheduled draws---Locus standi---Scope---Petitioner impugned notification whereby prize bonds of a certain denomination were withdrawn and scheduled draw was cancelled---Contention of petitioner, inter alia, was that vide impugned notification, petitioner's Fundamental Right to business had been violated and sought direction that the draw be held---Validity---Petitioner had no locus standi and per R.3 of Prize Bond Rules, 1999, no person other than authorized entities, could engage in business of prize bonds---No Fundamental Right had been violated by impugned notification and per R.3 of the Prize Bond Rules, 1999, it was sole prerogative of Federal Government to withdraw, substitute or amend any rule of policy---Petitioner was therefore not an aggrieved person and as such Constitutional petition was not maintainable---Constitutional petition was dismissed, in circumstances.

Mahmood Akram and others v. Government of Pakistan and others 2001 CLC 608; Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Montgomery Flour and General Mills Ltd. Montgomery v. Director, Food Purchases, West Pakistan and others PLD 1957 (W.P) Lahore 914; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 and Judicial Review of Public Actions pp.977 & 980 rel.

Anwar Ali Sangha for Petitioner.

2021 C L C 1319

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

Mst. NASEEM SAJJAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 4 others----Respondents

Writ Petition No.1869 of 2018, decided on 25th February, 2021.

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

----S.11---Res juidicata, principle of---Application---Scope---Policy of law was that there should be an end to litigation when a matter had been conclusively decided---Unless specifically excluded by law, the principle of res judicata was also applicable to proceedings other than suits, such as execution proceedings and miscellaneous applications.

Hukam Chand, Law of Res judicata (1894); Aamir Raza Code of Civil Procedure, Ninth Edition (2005); M. Nagabhushana v. State of Karnataka and others AIR 2011 SC 1113; Shafqat Hussain v. President of the Islamic Republic of Pakistan and 8 others PLD 2016 Isl. 1; Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others PLD 1971 SC 779; Muhammad Tufail v. Atta Shabir and 5 others PLD 1977 SC 220; The Commissioner of Income Tax, Lahore v. Messrs Lucky Stores & Zubair Medical Stores, Lahore Cantt. 1981 SCMR 656; Muhammad Sharif and others v. Settlement Commissioner, Bahawalpur and others 1981 SCMR 1048; Divisional Evacuee Trust Committee v. Muhammad Idris Qureshi and another 1984 SCMR 851; Atiq-ur-Rehman and others v. Muhammad Ibrahim and another 1984 SCMR 1469; Syed Mir Ahmad Shah v. Pakistan and others 1986 SCMR 1200; Mst. Naseeban Bibi v. Muhammad Yahya Khan and another 1986 SCMR 1964; Mazhar Saeed Qureshi v. Government of the Punjab through Secretary, Irrigation and Power Department, Lahore and 49 others 1986 SCMR 12; Ejaz Hussain v. Bashir Ahmad and others 2000 SCMR 1190; Dauran Khan and another v. Mst. Shamim Akhtar 1990 CLC 1208; Sher Jan v. Karim Dad Khan through Legal Heirs 1990 CLC 1845; Faqir Muhammad v. Saifullah and others 1994 MLD 1820; Shaikh Abdul Aziz v. Mirza and 3 others PLD 1989 SC AJK 78; Hanifa Begum and others v. Muhammad Qamaruzzaman through legal heirs 1992 CLC 1699; Messrs New Rahat Engineering Works through proprietor and 4 others v. National Bank of Pakistan and another 2003 CLD 382; Messrs Masoom Industries v. Habib Bank Limited and another 2003 CLD 386 and National Bank of Pakistan through Vice President/General Attorney v. Messrs Murtaza Haseeb Textile Mills Ltd. through Chief Executive and 13 others 2016 CLD 784 rel.

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

----S.52---Civil Procedure Code (V of 1908) S. 11---Transfer / sale of immoveable property while civil litigation in respect thereof was pending --- Scope--- Section 52 of Transfer of Property Act, 1882 was founded on maxim "pendente lite nihil innovetur"; which meant that "pending litigation nothing new should be introduced"---Rule of lis pendens and principle of res judicata had affinity as both aimed at bringing end to litigation and giving finality to court order, once a matter had been conclusively determined.

Beliamy v. Shabine (1857) 1 De. G. & J 566; Gouri Dutt Maharaj v. Sk. Sukur Mohammed AIR 1948 PC 147; Rajendar Singh and others v. Santa Singh and others AIR 1973 SC 2537; 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; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Pervaiz Ahmad and others v. Sultan Tipu Sarwar and others 2020 YLR 461; 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 and Muhammad Younas and another v. Ghazanfar Abbas and 12 others 2017 YLR 2229 rel.

Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171; Muhammad Iqbal and others v. Khair Din through L.Rs. and others 2014 SCMR 33 and Allah Bakhsh v. Allah Yar and 4 others 2017 CLC Note 9 distinguished.

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

----S.12---Suit for specific performance of agreement to sell immoveable property---Execution of decree---Delivery of possession of immoveable property to decree-holder---Scope---Relief of delivery of possession, in a suit for specific performance of contract to sell immoveable property, was incidental to main relief and an Executing Court may grant it even if plaintiff or decree-holder had not prayed for the same in the plaint and if there was no mention of the same in the decree.

Atal Behary Acharya v. Barada Prasad Banerji AIR 1931 Patna 179; Kartik Chandra Pal v. Dibakar Bhattacharjee AIR 1952 Cal. 362; Babu Lal v. M/s Hazari Lal Kishori Lal and others AIR 1982 SC 818; Jahiruddin Ahmed v. Joynal Abedin Khan and others PLD 1963 Dacca 849; Birgis Jahan Bajiga Malik v. Muhammad Hasan and others PLD 1964 Dacca 202; Mumtazul Karim and others v. Abu Hussain and another 1970 SCMR 816; Abdul Hameed v. Messrs Panhwar Construction Co. and others 2001 YLR 1843; Wali Muhammad and others v. Mst. Zaib-un-Nisa 2001 MLD 1705; Khadim Hussain and 2 others v. Waris Ali and another 2005 CLC 1144; Mst. Yasmeen Riaz through Special Attorney v. Riaz Ahmad and 7 others 2016 YLR 321 and Muhammadin v. Muhammad Bachal and another 2017 CLC Note 70 rel.

Khalid Masood Ghani for Petitioner.

Syed Muhammad Najamul Saqib Mumtaz for Respondent No.3.

2021 C L C 1338

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

EJAZ SHAHID----Petitioner

Versus

MUHAMMAD NAWAZ----Respondent

Civil Revision No.310-D of 2015, decided on 19th November, 2020.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 24---Suit for pre-emption---Order to deposit sale price of the property---Non-compliance of---Effect---Petitioner assailed the dismissal of his suit for pre-emption---Validity---Petitioner was directed by Trial Court to deposit the amount of Zar-e-Soim within 30 days, which order was not complied with and due to non-deposit of Zar-e-Soim, the suit was dismissed---Court as per S.24 of the Punjab Pre-emption Act, 1991, was under a mandate to direct deposit of 1/3rd of sale price of the property in cash---Proviso to S.24 contemplated that the period for deposit would not extend beyond 30 days of the filing of the suit---Section 24(2) provided that in case of failure to make a deposit under subsection (1) thereof, within the time fixed by the court, the suit shall be dismissed---Suit was, therefore, rightly dismissed---Revision petition was dismissed.

Hafiz Muhammad Ramzan v. Muhammad Bakhsh PLD 2012 SC 764; Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489; Raja v. Tanveer Riaz and others PLD 2014 SC 466 and Malik Tariq Mahmood and others v. Ghularn Ahmed and others PLD 2017 SC 674 rel.

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

----O.XLI, R.1---Form of appeal---What to accompany memorandum of appeal---Scope---Filing of certified copy of the decree-sheet with the Memo of Appeal in terms of O. XLI, R. 1, C.P.C. is mandatory---Non-compliance of such mandatory provision entail consequences of dismissal of appeal.

Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others 2005 SCMR 931 rel.

2021 C L C 1351

[Lahore]

Before Shahid Bilal Hassan, J

AZHAR ABBAS and others----Petitioners

Versus

Haji TAHIR ABBAS and another----Respondents

Regular Second Appeal No.84 of 2011, decided on 30th November, 2020.

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

----S.12---Suit for specific performance of agreement to sell---Agreement on plain paper---Unregistered document---Scope---Plaintiff instituted a suit for specific performance of agreement to sell regarding suit land, which had been obtained by him on lease from the father of defendants---Trial Court and Appellate Court concurrently decreed the suit---Validity---Suit land was obtained on lease for a period of four and a half years but within a period of three months of said lease the alleged agreement to sell was reached at between the parties---Nothing was available on record to suggest as to when, where and in whose presence the alleged bargain of agreement to sell was struck---Agreement to sell was written down by plaintiff himself on a white paper and it was an unregistered document---Plaintiff, after specific denial of the defendants about execution of the agreement to sell and affixation of thumb impression and making of signatures over it, had not exerted to get the same compared with admitted signatures and thumb impression by moving an application in that regard, which fact went against the plaintiff---Plaintiff could not prove payment of earnest money as well as the remaining amount---Appeal was allowed and the impugned judgments and decrees passed by the courts below were set aside, in circumstances.

Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 ref.

Abdul Majid Mia v. Moulvi Nabiruddin Pramanik and 3 others PLD 1970 SC 465 rel.

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

----O.XIII, R. 4---Endorsements on document admitted in evidence---Scope---Marked documents have no value legal value and sanctity in the eyes of law.

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

----O.XIII, R.4---Endorsements on document admitted in evidence---Scope---When a document is not brought on record through witness(s) and in not duly exhibited, the same cannot be taken into consideration by the court.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 and State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013 rel.

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; 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.

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

----O.XIII, R.4---Endorsements on document admitted in evidence---Scope---Mere marking of a document as an exhibit would not dispense with the requirement of proving the same and the same cannot be accepted unless it is proved.

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

----Art. 76---Cases in which secondary evidence relating to documents may be given---Scope---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; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182 and Abdul Rehman and another v. Zia-Ul-Haque Makhdoom and others 2012 SCMR 954 ref.

Syed Kalim Ahmad Khursheed for Appellants.

2021 C L C 1372

[Lahore]

Before Rasaal Hassan Syed, J

MUHAMMAD NAZIR----Petitioner

Versus

NAARA KHAN and 3 others----Respondents

Writ Petition No.2039 of 2021, decided on 10th March, 2021.

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

----O.XXVI, R.9---Specific Relief Act (I of 1877), S. 52---Suit for permanent injunction---Commission to make local investigations---Delay in filing application---Effect---Petitioner instituted suit for permanent injunction claiming that he was in exclusive possession of suit property being part of shamilat deh and that the respondents had no right to interfere in his possession till partition of shamilat deh---Respondents, at the stage of final arguments, filed application for appointment of local commission for site inspection which was dismissed by the trial court---District Judge allowed the revision petition challenging said order with costs---Validity---Trial Court had mainly dismissed the application on the assumption that it was delayed and, if allowed, would result in further proceedings by inviting objections, concluding evidence and such course would lead to endless litigation---Trial Court in adopting such course had little appreciated that same could not be the sole ground to dismiss the application without considering the other attending factors and that the court was required to consider whether in the specific facts and circumstances of the case and the nature of the dispute, site report would be helpful for proper adjudication of the case and, if so, then of course, the appointment of local commission would be just and fair---Rights and possession of the petitioner qua the property and also the description of the property as well as plan attached was disputed by the respondents---High Court observed that it was essential to resolve the issue for all times to come by taking all possible measures to reach to the truth of the matter---District Judge had rightly allowed the application---Constitutional petition was dismissed.

Rehman Dad and another v. Major Raja Sajwal Khan and others 1976 SCMR 350; Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16; Nasir-ud-Din and others v. Surreya Begum and others 1994 MLD 1937; Zahooruddin v. Haji Hussain through his legal heirs and others PLD 1991 Kar. 205; Iltaf Hussain v. Zafar Iqbal and others 2015 CLC 447; Muhammad Yousaf alias Bala v. Khuda Dad and 11 others 2004 MLD 1107 and Niaz Ahmad v. Fida Muhammad 1987 CLC 659 rel.

Jalal Khan and 10 others v. Khandoo Malik and 24 others 2003 SCMR 1351 distinguished.

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

----O.XXVI, R.9---Commissions to make local investigations---Scope---Appointment of local commission is made only for the purpose of elucidation and rendering assistance to the court in correctly appreciating the controversy by having knowledge of the state of affairs at site---Court, for said reason is empowered under O.XVIII, R.18, C.P.C., to even make site inspection itself, if need be. [

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

----O.XXVI, R.9---Commission to make local investigations---Delay in filing application---Scope---Delay in filing application for appointment of local commission in itself cannot be a sole reason to reject the same.

Malik Talal Hussain for Petitioner.

Rai Muhammad Riaz Bhatti for Respondent.

2021 C L C 1394

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

ANSAR IQBAL and others----Petitioners

Versus

MUHAMMAD AHSAN KHAN and others----Respondents

Civil Revision No.171 of 2013, decided on 12th January, 2021.

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

----S.97 & O.XX, R.18---Suit for possession through partition---Preliminary decree---Scope---Status of vendee---Appeal, right of---Trial Court passed preliminary decree, appointing local commission to suggest mode of partition---Petitioners/vendees had purchased the share of one of the respondents during the pendency of the case and they were impleaded as party by the Appellate Court during hearing of appeal preferred against the preliminary judgment and decree---Petitioners assailed the dismissal of the appeal preferred against the preliminary decree---Held, admittedly, petitioners purchased the share of vendor/respondent during the pendency of suit for possession through partition---Petitioners had stepped into the shoes of the vendor/respondent who himself had not challenged the preliminary judgment and decree before the Appellate Court---Preliminary decree had, thus, attained finality and fell under the past and closed transaction, which could not be re-opened merely on the whims and caprice of the party---No illegality or infirmity was found in the impugned judgment and decree passed by the Appellate Court maintaining the preliminary decree---Revision was dismissed, in circumstances.

Pakistan International Airlines Corporation v. Aziz ur Rehman Chaudhary and another 2016 SCMR 14 ref.

(b) Partition---

----Rights of vendee from co-sharer regarding possession---Scope---Vendee from a co-sharer, who owned an undivided joint Khata, was clothed with the same rights as the vendor had in the property, no more and no less---If the vendor was in exclusive possession of a certain portion of the joint land and transferred its possession to his vendee, so long as there was no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property to the extent of the area purchased by him, provided that the area-in-question did not exceed the share which the transferor owned in the whole property---Alienation of specific portion to the vendee entitled him to retain ostensible possession till such time an actual legal partition, by metes and bounds, would take place between the co-sharers.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Shah Hussain v. Abdul Qayum and others 1984 SCMR 427; Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514; Ch. Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190; Khadim Hussain and another v. Raja Altaf Hussain Khan and 2 others 2008 CLC 357; Abdul Ghaffar v. Waqas Hafeez and others 2010 CLC 285; Iftikhar Ahmad and others v. Muhammad Nasir 2017 CLC Note 103 and Latif Khan v. Altaf Khan and others 9 others 2018 CLC 608 ref.

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

----S.115 --- Revisional jurisdiction of High Court --- Concurrent findings---Scope---Petitioners had failed to point out misreading and non-reading of evidence and had also not identified any jurisdictional defect---Concurrent findings of fact against the petitioners did not call for any interference by the High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction---When no illegality or infirmity was found in the impugned judgment and decree passed by the Appellate Court maintaining the preliminary decree passed by the Trial Courts, revision was liable to be dismissed.

Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Rashid Ahmad v. Said Ahmad 2007 SCMR 926; Asmatullah v. Amanat Ullah through LRs PLD 2008 SC 155 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 ref.

Malik Muhammad Tariq Rajwana for Petitioner.

2021 C L C 1405

[Lahore (Rawalpidi Bench)]

Before Rasaal Hasan Syed, J

MOHAMMAD AKRAM BHATTI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ATTOCK and 3 others----Respondents

Writ Petition No.3176 of 2020, decided on 23rd February, 2021.

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

----S.19---Eviction petition---Co-owner---Scope---Co-owner seeking eviction---Oral tenancy, expiry of---Scope---Petitioner assailed the concurrent dismissal of his ejectment petition---Validity---Special Judge (Rent), after observing that the petitioner was a co-owner had fallen in error in assuming that he could not maintain an eviction application---Every co-owner was entitled to receive rent of the premises as landlord and if one co-owner had not let out the property, but some other co-owner or the person entitled to receive rent had, then by legal fiction every co-owner of the property would be deemed to be landlord and competent to maintain ejectment application on any ground available to him under the law and even without joining other co-owners as applicants, if the ground of ejectment was otherwise available---Tenant could not be permitted to escape eviction simply because one of the co-owners had come to his rescue to save him from default, if other grounds were available---Eviction petition, in the present case, was filed on the ground of default and expiry of tenancy---Tenancy being oral and month to month had expired---Filing of eviction petition was a notice of eviction and, resultantly, the petitioner was entitled to eviction of tenant on the ground of expiry of the tenancy---View taken by Special Judge (Rent) as also by the District Judge being based on incorrect assumption of law was, as such, legally untenable and the findings were inconsequence declared to be without lawful authority---Constitutional petition was allowed and the tenant was directed to vacate the rented premises.

Anwar Khan v. Abdul Manaf 2004 SCMR 126; Syed Asmat Ullah v. Aman Ullah Khan and 2 others 1991 MLD 20; Saifullah and another v. Ch. Ghulam Ghous 2000 CLC 1841; Muhammad Essa Godil through L.Rs. and 3 others v. Mst. Sitara Jamil and 2 others 2014 YLR 1901; Khalique Ahmed v. Abdul Grant and another PLD 1973 SC 214 and Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429 rel.

Aftab Ahmed Saeed v. Faisal Shahzad and others 2005 CLC 1668 fol.

Sh. Zamir Hussain for Petitioner.

Zafar Mehmood Mughal for Respondent.

2021 C L C 1432

[Lahore]

Before Muhammad Shan Gul, J

RIAZ KHALID----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE LAHORE and others----Respondents

Writ Petition No.30825 of 2021, decided on 17th May, 2021.

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

----O.XXVI, R.10---Constitution of Pakistan, Art. 199---Constitutional petition---Efficacious and alternate remedy---Report of Local Commissioner---Objections---Petitioner-plaintiff was aggrieved of report of Local Commissioner with regard to situation of suit property on ground---Validity---Provision of Art.199 of Constitution begins with rider and the condition that resort and recourse to Constitutional jurisdiction can only be made if there is no other adequate remedy is available to petitioner--- Report of Local Commissioner was not binding on Court, parties were free to make Local Commission stand in witness box during trial and if there was anything irregular or illegal about report of Local Commissioner then the same could be easily unearth during the course of cross examination in trial---Adequate alternate remedy was available to petitioner-plaintiff---High Court declined to interfere in the matter as Constitutional jurisdiction was equitable and discretionary in nature and could not be invoked to defeat provisions of validly enacted statutory provision i.e. O.XXVI, R.10, C.P.C.---Constitutional petition was dismissed, in circumstances.

Haji Sharaf Hussain and 5 others v. Haji Tor Gul and 7 others 2011 CLC 543; Abdul Khaliq and 3 others v. Additional District Judge, Minchinabad and 4 others 2011 MLD 1632; Kh. Abdul Rehman (deceased) through Legal Heirs and others v. Muhammad Farooq Mirza and 5 others 2019 CLC 596 and President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Factual controversy---When matter in issue is rooted in factual controversy, for resolution of the same Constitutional jurisdiction is not appropriate remedy.

(c) Constitution of Pakistan---

----Art.199---Judicial review---Grounds---Acknowledged grounds of judicial review are illegality, irrationality, procedural impropriety and proportionality.

Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 rel.

Dr. Adris Ahmad Khan for Petitioner.

2021 C L C 1461

[Lahore (Rawalpindi Bench)]

Before Sultan Tanvir Ahmed, J

MUHAMMAD YOUNAS QURESHI, through Special Power of Attorney---Appellant

Versus

Messrs FEDEX/GERRY'S INTERNATIONAL and another----Respondents

F.A.O. No.18 of 2013, heard on 31st May, 2021.

(a) Punjab Consumer Protection Act (II of 2005)---

----S.30---Procedure of consumer court on receipt of complaint---Scope---Appellant assailed the dismissal of his claim by the Consumer Court---Validity---Once the written statement was filed the Consumer Court had to proceed to settle the dispute on the basis of evidence of the parties---Summary procedure was attracted if allegations were not denied or in case of failure of the defendant to present the case within stipulated time---Disputes raised by the parties were required to be resolved by following the procedure laid down in S.30(2)(b) of the Punjab Consumer Protection Act, 2005---Decision of the Trial Court, without recording evidence, on the contrary stances taken by the parties and application of principle of estoppel was against the law---Appeal was allowed and the case was remanded to the Consumer Court for decision afresh.

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

----Art.114---Estoppel, doctrine of---Scope---Three conditions are required to be established in order to attract the principle of estoppel; (i) a representation by a person to another, (ii) the other should have acted upon that representation, and (iii) such action should have been detrimental to the interests of the person to whom the representation has been made---Even if one of the conditions is not satisfied the doctrine of estoppel cannot be applied.

M. and A. Associates v. Telerad Ltd. AIR 1969 Bombay 323 V 56 C 51 ref.

Moosa Bhunji (through Legal Heirs) v. Hashwani Sales and Services Ltd. and another PLD 1982 Kar. 940 rel.

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

----Art.114---Estoppel---Scope---Evidence of highest order is required to uphold the plea of estoppel or waiver.

Kharati and others v. Muhammad Ibrahim and others 1989 CLC 894 rel.

(d) Waiver, doctrine of---

----Waiver being question of fact has to be decided on proof of such fact by evidence.

Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 ref.

Jam Pari v. Muhammad Abdullah 1992 SCMR 786 rel.

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

----Art.114---Estoppel---Scope---Question of estoppel is a mixed question of law and fact.

Azad Government of the State of Jammu And Kashmir, Muzaffarabad v. Brig. (Retd.) Muhammad Aslam Khan 1990 MLD 2333 ref.

Nadeem Ahmad Shah for Appellant.

Ch. Bilal Raza for Respondent.

2021 C L C 1491

[Lahore]

Before Shahid Bilal Hassan, J

PARVEEN AKHTAR and 2 others----Petitioners

Versus

AKHLAQ AHMED and 2 others----Respondents

Civil Revision No.1843 of 2013, decided on 15th June, 2021.

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

----O.XIV, Rr.1 & 2---Framing of issues---Issues of law and fact---Scope---Duty of the Court to frame issues from material propositions---To frame issues, Court is to find out questions of fact, question of law and mixed questions of fact and law from pleadings of the parties and other materials, which are produced with pleading and parties are to produce their evidence to prove or disprove the framed issues. [p. 1495] A

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

----O.XIV, R.1---Framing of issues---Object---Scope---Issue is a single material point of fact or law in litigation that is affirmed by one side and denied by the other, that subject of the final determination of the proceedings is called 'issue'---Object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ---Judge himself is to frame proper issues---Where parties are not satisfied, it is their duty to get proper issues framed.

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

----O.XIV, R.1---Framing of issues---Scope---Framing of an issue does not mean that a Court is taking a position on the contentions of the parties on a material question of fact or law---Court is merely engraving the contours of the trial so that the progress of the trial is not accosted by slugfest on immaterial issues that have no bearing on the adjudication of the rights and liabilities of the parties.

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

----O.XIV, R. 1---Framing of issues---Scope---Matters to be considered before framing issues, detailed.

Matters to be considered before framing issues are:-

i. The Court shall read the plaint and written statement before framing an issue to see what the parties allege in it.

ii. Order X, Rule 1, CPC permits the Court to examine the parties for the purpose of clarifying the pleadings, and the Court can record admissions and denials of parties in respect of an allegation of fact as are made in the plaint and written statement.

iii. If any party admits any fact or document, then no issues are to be framed with regard to those matters and the Court will pronounce judgment respecting matters which are admitted.

iv. The Court may ascertain, upon what material proposition of law or fact the parties are at variance.

v. The Court may examine the witnesses for the purpose of framing of issues.

vi. The Court may also in the framing of issues take into consideration the evidence led in the suit. Where a material point is not raised in the pleadings, comes to the notice of the Court during course of evidence the Court can frame an issue regarding it and try it.

vii. Under Order XIV, Rule 4, CPC any person may be examined and any document summoned, for purposes of correctly framing issues by Court, no produced before the Court.

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

----O.XIV, R.3---Material from which issues may be framed, enumerated.

The court may frame the issue from all or any of the following materials.

i. Allegations made on oath

Issues can be framed on the allegations made on oath by the parties or by any persons present on their behalf or made by the pleader of such parties.

ii. Allegations made in Pleadings

Issues can be framed on the basis of allegations made in the pleadings.

iii. Allegations made in interrogatories

Where the plaint or written statement does not sufficiently explain the nature of the party's case, interrogatories may be administered to the party, and allegations made in answer to interrogatories, delivered in the suit, may be the basis of framing of issues.

iv. Contents of documents.

The court may frame issue on the contents of documents produce by either party.

v. Oral examination of Parties.

Issues can be framed on the oral examination of the parties.

vi. Oral objections of Parties.

Issues may be framed on the basis of oral objection.

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

----O.XIV, R.5---Amendment of issues---Scope---Court before passing of decree, can amend framed issues on those terms, which it thinks fit, however, such amendment of framed issues is necessary for determination of matters in controversy between the parties.

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

----O.XIV, R.5---Amendment of issues---Discretionary jurisdiction---Scope---Court possesses discretionary power regarding amendment of framed issues---Court can exercise such power when no injustice results from amendment of framed issue on that point, which is not present in pleadings, however, it cannot be exercised when it alters nature of suit, permits making of new case or alters stand of parties through rising of inconsistent pleas.

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

----O.XIV, R.5---Amendment of issues---Mandatory power---Scope---Court has mandatory power regarding amendment of framed issues---In fact, Court is bound to amend framed issues especially when such amendment is necessary for determination of matters in controversy, when framed issues do not bring out point in controversy or when framed issues do not cover entire controversy.

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

----O.XIV, R. 5---Striking out of issues---Scope---Before passing of decree, Court can strike out framed issues especially when it appears to Court that such issues have been wrongly framed or introduced.

Ali Usman for Petitioner.

2021 C L C 1512

[Lahore]

Before Safdar Saleem Shahid, J

RUKHSANA AMBREEN----Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, KHUSHAB and 2 others----Respondents

Writ Petition No.3462 of 2015, decided on 25th May, 2021.

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

----S.5,Sched.---Suit for recovery of amount mentioned in column No.19 of Nikahnama---Column No. 19 of Nikahnama ultra vires the Sharia law---Scope---Wife (petitioner) filed suit for recovery of certain amount of sum mentioned in column No. 19 of the Nikahnama---Husband (respondent) denied the said condition---Validity---High Court observed that such question could be answered by examining the evidence and the proceedings of the Trial Court---Trial Court had observed that as per Sharia and law of the land, the marriage between the parties was always known as a social contract which it could only be enforced with the mutual consent of the parties---Contract of marriage could not be enforced under the influence of such like terms and conditions---Even otherwise, a Muslim husband had always right to divorce his wife---Right of divorce of a Muslim husband was vested by the Almighty Allah and such right of husband could not be restricted on the monetary terms and conditions---Claim of petitioner was absolutely frivolous and against the basic principle of Sharia Law---Tie of marriage between the parties could only be maintained in peace and tranquil atmosphere and the parties were not required to be bound by the stringent condition to remain in marriage bond, hence the petitioner had failed to establish that she is entitled for the recovery of the amount mentioned in column No. 19 on the basis of the nikahnama---Findings of Trial Court did not suffer from any illegality on that point---Constitutional petition was partially allowed.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Past maintenance---Entitlement---Scope---Petitioner filed suit for recovery of maintenance allowance---Contention of Wife (petitioner) was that the Husband (respondent) himself left the house, meant for the spouses to reside, whereas the respondent claimed that he was expelled from the house by the petitioner---Validity---Admission on the part of respondent reflected that he had not been maintaining the petitioner since then---No contact between the parties in any way was brought on record---Respondent had filed the suit for restitution of conjugal rights after a lapse of four years---Petitioner was held entitled to the recovery of past maintenance allowance from the date of desertion till the date of filing of suit for restitution of conjugal rights by the respondent---Constitutional petition was partially allowed.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Refusal of wife to perform matrimonial obligation---Scope---Muslim wife who wilfully refuses to perform the matrimonial obligation towards her husband is not entitled for any kind of maintenance allowance except the maintenance allowance for the period of iddat.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Quantum of maintenance---Scope---No upper or lower limit of maintenance is fixed, rather, the Islam ties the issue with the means of men, i.e. if the person is well off he must maintain his wife according to his standard, at the same time, if the means of the husband are limited he is still not absolved of his responsibility of maintaining his wife.

The Quran further in verse 65:7 rel.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Scope---Husband is legally and morally bound to maintain his wife whatsoever are the circumstances.

Muhammad Sharif v. Additional District Judge and others 2007 SCMR 49 rel.

Raja Faisal Hayat Janjua for Petitioner.

2021 C L C 1533

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti and Atir Mahmood, JJ

WAPDA through Chairman and others----Appellants

Versus

BASHIR HUSSAIN SHAH and others----Respondents

R.F.As. Nos.70 and 71 of 2006, heard on 24th October, 2016.\

Land Acquisition Act (I of 1894)---

----Ss.18 & 23---Reference to Court---Matters to be considered in determining compensation---Compulsory acquisition charges---Acquisition by company for public purpose---Scope---Appellant assailed judgments and decrees passed by Referee Court---Matter was argued by the appellant with two contentions; one of the contentions was with regard to making assessment of enhancement; and the second was with regard to enhancement of compulsory acquisition charges from 15% to 25%---Validity---Appellant could not refer to any piece of evidence which was misread or misconstrued---Purpose for which the land was acquired was the determining factor for ascertaining compulsory acquisition charges---If the purpose was public in nature, then such compulsory acquisition charges would be payable at the rate of 15% even if such acquisition was for a company, however, when the land was acquired simpliciter for a company for its private use only then the compulsory acquisition charges would be payable at the rate of 25%---Appeals being devoid of merit were dismissed with modification in compulsory acquisition charges from 25% to 15%.

Land Acquisition Collector, BOR Punjab v. Syed Haroon Iftikhar and others 2014 SCMR 659 ref.

Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 fol.

Muhammad Sohaib on behalf of Sahibzada Uzair Hashmi for Appellants.

Malik Qamar Afzal and Maqsood Ahmed Malik for Respondents.

2021 C L C 1553

[Lahore]

Before Shahid Karim and Muhammad Shaan Gul, JJ

NATIONAL HIGHWAY AUTHORITY through Member Finance----Petitioner

Versus

NAZIR A.M. JOINT VENTURE and others----Respondents

I.C.A No.40451 of 2020, decided on 25th May, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual obligation---Scope---Appellant challenged the order passed by Single Judge of High Court whereby all the actions for recovery of excess amount paid to respondents were set aside---High Court in its constitutional jurisdiction abstained from interfering in matters entailed resolution of disputed and controversial facts---Challenge before the Single Judge of High Court was regarding two letters both of which simply required the officer of the appellant to recover the amount from the respondents in view of certain observations carried out during the audit proceedings---Decision of Public Accounts Committee was merely confined to directing the initiation of proceedings for recovery and nothing more---Appeal was allowed, in circumstances and the impugned order was set aside

Barrister Haris Azmat and Barrister Maryam Hayat for Appellant.

Mian Muhammad Kashif for Respondent No.1.

2021 C L C 1575

[Lahore]

Before Abid Hussain Chattha, J

MUNIR AHMAD----Petitioner

Versus

HASSAN HUSSAIN through L.Rs. and others----Respondents

Writ Petition No.132489 of 2018, decided on 2nd June, 2021.

Civil Procedure Code (V of 1908)---

----O.VII, R.11--- Limitation Act (IX of 1908), Art.113---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Rejection of plaint---Limitation---Mixed question of law---Recording of evidence---Scope---Petitioner assailed concurrent dismissal of his application under O.VII R.11, C.P.C---Contention of petitioner was that the agreement to sell was executed on 21-12-1998 whereas the suit was instituted on 04-02-2009, hence was barred by time under Article 113 of the Limitation Act, 1908---Validity---Specific issue regarding limitation had already been framed---Much evidence had already been recorded and the trial was at its final stage---Question of limitation, in the present case, was a mixed question of law and facts requiring evidence---Mere fact that the suit was filed with a delay of more than seven years by itself was not sufficient to reject the plaint until and unless material was available on record to suggest the date of refusal---Constitutional Petition was dismissed.

Inayatullah Khan and others v. Shabir Ahmad Khan 2021 SCMR 686; Haji Saindino Khan and another v. Mst. Zaibunnissa through Legal Heirs and another 1991 SCMR 972; Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana (Barrage Mukhtiarkar) and others 2007 CLC 1790; Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302; Hakim Khan v. Aurangzeb and another 1979 SCMR 625; Sardar Muhammad and others v. Muhammad Afzal and others 1985 SCMR 1221; Nadeem Ahmad v. Saif-ur-Rehman and 8 others 2021 MLD 354; Syed Amjad Mahboob v. Raja Mumtaz Hussain Arif and 3 others 2014 MLD 1607; Irshad Ali v. Sajjad Ali and 4 others, PLD 1995 SC 629 and Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493 ref.

Aamer Shahzad Dhody v. Adamjee Insurance Co. and others 2020 CLD 1329; Shahzad Khan Khakwani v. Begum Shamim M.K. Khakwani through Muhammad Younus Durrani and another 2017 YLR 1005 and Al-Meezan Investment Management Company v. Wanda First Skuk Company PLD 2017 SC 01 rel.

Muhammad Mehmood Chaudhry for Petitioner.

Ali Akbar for Respondent No.3.

2021 C L C 1583

[Lahore]

Before Jawad Hassan, J

MISS MAHNUM HUSSAIN and other----Petitioners

Versus

BRITISH COUNCIL PAKISTAN and others----Respondents

Writ Petition No.24535 of 2021, decided on 21st April, 2021.

(a) Constitution of Pakistan---

----Arts. 9 & 25---Security of person---Equality of citizens---Undertaking examination during COVID-19---Scope---Petitioners were aggrieved of the decision of authorities to conduct examinations of "O" Levels and "A" Levels being taken by its respective institutions---Contention of petitioners was that the other countries of the world due to the prevailing epidemic situation had given the facility of school assessed grades to their students but the petitioners were being denied said facility which was in sheer violation of Art.25 of the Constitution---Validity---Petitioners could not point out any discrimination since the authorities were undertaking examination not only in Pakistan but also in other parts of the world as well and therefore the questioned actions of the authorities could not be adjudged on the scale of discrimination and inequitable treatment---Provincial government had also issued the schedule for examination within the province, meaning thereby, no such exemption was given to all other students of the province studying in public or private sector---Fundamental Right of life under Art.9 of the Constitution envisaged that the authorities must chalk out all necessary SOPs for safety of students who were appearing in examination, convey the same to the students, which were binding on them being sovereign command within the meaning of Art. 5(2) of the Constitution and most importantly ensure that the SOPs were being observed by the students and those conducting examinations at the examination centers---Constitutional petition was dismissed

Farrukh Imtiaz Khokhar v. Government of Pakistan through Secretary Ministry of Interior. Islamabad and 2 others 2021 MLD 40; Muhammad Ahmad Pansota and others v. Federation of Pakistan and others PLD 2020 Lah. 229; Mst. Ameer Bano v. S.E. Highways PLD 1996 Lah. 592; Haris Bin Hassan Jang v. Federation of Pakistan and others 2021 CLC 413; Muneeb Tariq and another v. Punjab Public Service Commission and 2 others 2020 CLC 1591 and Dewan Hamid Masood Chishti and others v. Province of Punjab and others 2020 CLC 1885 ref.

Haris Bin Hassan Jang v. Federation of Pakistan and others 2021 CLC 413 rel.

(b) Words and phrases---

----"Jurisdiction"---Meaning---"Jurisdiction" means the authority of a person or an authority or a legal forum to decide a matter in accordance with law.

Black's Law Dictionary 11th Edition by Brayan A. Garner, p.1017 rel.

(c) Jurisdiction---

----Term "jurisdiction" implies to power of a court to hear, determine and adjudicate upon a controversy by exercising its legal as well as judicial authority---Concept of jurisdiction has its genesis in the physical power of a court to issue process to persons within the reach of the court.

Province of Punjab through Secretary to Government of Punjab. Communication and Works Department, Lahore and another v. Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs PLD 2017 SC 53; Bahoo Dying Industries (Private) Limited v. Sui Northern Gas Pipelines Limited and others PLD 2021 Lah. 186 and Muhammad Ahmed Siddiqui and another v. Abdul Abid Advocate and another PLD 2021 Sindh 1 rel.

(d) Jurisdiction---

----Jurisdiction of a legal forum/Court includes its territorial jurisdiction, pecuniary jurisdiction and subject matter jurisdiction---Jurisdiction is always conferred upon the courts by a law and it cannot be decided by the parties inter se---Territorial jurisdiction refers to a court's power over actions and parties within the bounds of a particular territory---If a court does not have territorial jurisdiction over the subject matter within it, then it cannot give a binding decision regarding the rights of the parties.

Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others 2021 SCMR 425 rel.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction--- Jurisdiction of High Court under Art. 199 of the Constitution is equitable and therefore can be exercised only in a valid and lawful manner and not otherwise---Policy decision by Government---Trichotomy of Sovereign Powers---Scope---Court cannot interfere in a matter of policy decisions as it squarely falls within the executive domain of the authorities---Well-structured system of trichotomy of power is provided under the Constitution, which serves dual purpose; at one hand, it defines the scope and functions of each organ of the State that it is empowered and required to perform under the scheme of the Constitution but most importantly it envisages that the powers and functions of the other limb of the trio must not be interfered and encroached upon by any single limb of the State---Theory of separation of power is thus the hallmark of the Constitution and therefore a policy decision chalked out by the Executive limb of the State must not be interfered with by the judicature, unless it is evident that the same is illegal and unconstitutional, mala fide, discriminatory or in violation of fundamental rights as provided and guaranteed under the Constitution.

Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167 and Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 rel.

Pakistan Engineering Council v. Federation of Pakistan and others 2021 MLD 453; Sher Zaman and 4 others v. Government of Balochistan, Secondary Education Department Civil Secretariat, Quetta through Secretary and 2 others 2021 CLC 532; LESCO v. Muhammad Shoaib and others 2020 PLC (C.S.) 654; Asmatullah Janejo v. Federation of Pakistan through Secretary and others 2020 PLC (C.S.) 1196; Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others 2017 PLC (CS.) 1085; Messrs Baloch Distillery and Sugar Mills through Chief Executive v. Secretary Industries and Commerce Department, Government of Sindh and another PLD 2017 Sindh 313; Sharafuddin v. The Executive Engineer and 6 others 2017 CLC Note 227; Muhammad Iqbal v. Government of Punjab through Chief Secretary, Punjab and another 2015 PLC (C.S.) 1503; Messrs Alzair Travel and Tours (Pvt.) Ltd. through Chief Executive and 10 others v. Federation of Pakistan through Ministry of Religious Affairs and 16 others 2014 CLC 1766; Ministry of Inter Provincial Coordination v. Major (R) Ahmad Nadeem Sadal and others 2014 C L C 600; Safdar Jamil and others v. Vice-Chancellor and others 2011 CLC 116; Syed Ali Abbas Gardezi and another v. Government of Pakistan through Secretary Establishment Division, Islamabad and 3 others 2010 PLC (C.S.) 478 and Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others PLD 2006 Lah. 482 ref.

Barrister Hassan Khan Niazi for Petitioners assisted by Atika Hassan Raza, Murad Ali Khan Marwat, Barrister Khadija Siddiqi and Farooq Bashir.

Barrister Umair Khan Niazi, Additional Advocate General, Punjab along with Faza Ullah, AAG.

Ms. Sadia Malik, Assistant Attorney General for Pakistan along with Jawad Akram, Joint Secretary (Policy), Ministry of Federal Education and Professional Training, Islamabad.

Asad Javed, ASC assisted by Sikandar Abbas Jajja and Rai Abid Raza Kharal for Respondents Nos.1 and 2.

Muhammad Shahnawaz Khan for Respondent No.3 assisted by Ch. Sajjad Afzal.

2021 C L C 1606

[Lahore]

Before Ayesha A. Malik, J

MUHAMMAD ASHRAF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.39494 of 2019, decided on 3rd June, 2021.

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

----S.5, Sched.---Recovery of dowry articles, maintenance for wife and minors and child birth expenses---Quantum---Propriety---Husband/petitioner presented no evidence to substantiate his claim that no dowry was given to the wife---Appellate court after perusing the evidence and record rightly enhanced the maintenance for wife from Rs.4,000/- to Rs.6,000/- per month till the expiry of Iddat period; enhanced maintenance allowance for both minors from Rs.4,000/- to Rs.7,000/- per month each with 10% annual increase till their legal entitlement; allowed the wife to recover Rs.10,000/- from the husband as (child) delivery expenditures on the ground that she gave birth to one of the minors through a midwife at home hence some expenditures was definitely borne out at the birth of the baby---Fact that the husband had married three times and had other children shall not deprive the respondent-wife and the minors from their rightful claim---Constitutional petition filed by the petitioner-husband was dismissed.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---Interference in orders/judgments of courts below---In constitutional jurisdiction, the High Court was not sitting as an appellate court and could not reappraise the evidence---Interference in constitutional jurisdiction could only be done where the Courts below had acted illegally or with material irregularity or exercised jurisdiction not vested with them or passed orders which were in excess of their jurisdiction---Even in a case where it was alleged that there was misreading and non-reading of evidence, the same would not mean re­appraisal of the evidence but would have to fall within the purview of being a material irregularity or illegality on the part of the subordinate courts.

Mian Tariq Saeed Salotra for Petitioner.

2021 C L C 1639

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

NOOR AHMAD and 5 others----Appellant

Versus

ANWAAR MOHI-UD-DIN through Legal Heirs and others----Respondents

R.S.A. No.25 of 1991, heard on 26th June, 2019.

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

----O.VI, R.2 & O.VIII, R.2---Maxim: Secundum allegata et probata---Applicability---Any evidence led to prove a fact, which was omitted to be first explained in pleadings is liable to be ignored.

Pakistan v. Abdul Ghani PLD 1964 SC 68; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965 and Haider Ali Bhimji v. VIth Additional District Judge Karachi (South) and another 2012 SCMR 254 rel.

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

----S.42---Punjab LandRevenue Act (XVII of 1967), S.42---Declaration of title---Adverse entries in revenue record---Effect---Mere adverse entries in revenue record do not create or extinguish title of property.

Mian Ghulam Ahmed v. Muhammad Sarwar and others 1968 SCMR 573; Lal and others v. Mian Dad and another 1968 SCMR 842 and Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and others 2001 SCMR 338 rel.

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

----Ss.42 & 54---Suit for declaration and injunction---Judgments at variance---Plaintiffs / respondents claimed to be owners of suit land and assailed mutations in favour of defendant/ appellant--- Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs / respondents---Validity---Ascendant of defendants / respondents had already transferred his title therefore, nothing more was left to be inherited by the latters for its transfer to defendant / appellant---Entire superstructure raised in their favour without any title or legal backing could not be perpetuated and every fresh entry in revenue record based on inheritance mutation or subsequent sale deed accrued fresh cause of action to plaintiffs / respondents to institute suit, which was well within time---Trial Court framed issue pertaining to maintainability of suit but it was not pressed and was answered accordingly---Findings regarding issue of maintainability of suit was not assailed before Lower Appellate Court by means of separate appeal or cross objection, and the same could not be agitated afresh before High Court---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Judgments being were at variance therefore, judgment of Lower Appellate Court was to be given preference over that of Trial Court---Second appeal was dismissed, in circumstances. [p. 1644] C

Khaleel and 2 others v. Karamat Ali through L.Rs and another 2016 CLC 714; Muhammad Moose alias Niaz Ali Moose v. Province of Punjab and others 2017 Law Notes 358; Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489 and Allah Ditta v. Amina Bibi 2011 SCMR 1483 ref.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 rel.

Muhammad Faisal Bashir Chaudhry for Appellants.

Kanwar Muhammad Younas for Respondents.

2021 C L C 1650

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

QADIR BUKHSH----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DERA GHAZI KHAN and 2 others---- Respondent

Writ Petition No.7314 of 2009, heard on 23rd May, 2019.

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

----S.12(2)---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Ex-parte judgment, setting aside of---Agreement to sell---Proof---Failure to produce two marginal witnesses---Respondent / plaintiff filed suit for specific performance of agreement to sell allegedly executed in his favour by petitioner / defendant---Suit was decreed ex-parte on the basis of evidence produced by respondent / plaintiff---Petitioner / defendant sought setting aside of judgment and decree passed against him by filing application under S.12(2), C.P.C. but the application was concurrently dismissed by Trial Court as well as Lower Appellate Court---Validity---Respondent/plaintiff was duty bound under Arts. 17 & 79 of Qanun-e-Shahadat 1984, to prove alleged agreement to sell by producing both marginal witnesses---Respondent / plaintiff produced only one marginal witness while the other marginal witness was not produced in witness box and no reason was furnished for his non-appearance--- Such was a fatal legal flaw which had frustrated entire claim of respondent / plaintiff, who failed to prove agreement to sell as per law--- High Court set aside order as well as judgments and decrees passed by both the Courts below as they had committed misreading and non-reading of record as well as misapplication of law and allowed application under S.12(2), C.P.C. and dismissed suit filed by respondent / plaintiff---Constitutional petition was allowed, in circumstances.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.

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

----S.12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Limitation---Time barred suit---Effect---When suit is beyond prescribed period of limitation under Art.113 of Limitation Act, 1908, in such circumstances there is no need to frame issue of limitation and record any evidence---Such suit is liable to be dismissed on such ground alone.

Muhammad Khan v. Muhammad Amin through LRs and others 2008 SCMR 913; Muhammad Rafique v. Muhammad Iqbal and another 2007 SCMR 863 and M. Hannan and 2 others v. Dr. Anwarul Hassan and another 2002 SCMR 361 ref.

Muhammad Faisal Bashir for Petitioner.

Saif Ullah Khan for Respondent No.3.

2021 C L C 1668

[Lahore]

Before Sultan Tanvir Ahmad, J

PAHAL KHAN (DECEASED) through L.Rs.----Petitioner

Versus

MUHAMMAD IQBAL (DECEASED) through L.Rs.----Respondent

Civil Revision No.2377 of 2011, heard on 27th May, 2021.

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

----Ss.42 & 12---Contract Act (IX of 1872), Ss. 2(d), 25 & 22---Suit for declaration---Specific performance of agreement to sell---Promise for the consideration---Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law---Contract caused by mistake of one party as to matter of fact---Scope---Dispute arose between the defendant and plaintiff due to consolidation proceedings---Dispute resulted into litigation, which remained pending before various forums---Plaintiff alleged that the parties entered into compromise regarding land measuring 20 kanals---Defendant failed to attest mutation in furtherance of compromise despite several requests---Plaintiff in consequence of the said denial filed suit for declaration and specific performance with consequential relief---Contention of defendant was that compromise was not enforceable because no money was paid to the defendant hence no consideration was given to buy the promise of the defendant; that the claim of plaintiff was doubtful and that even without the alleged forbearance the defendant would have successfully obtained his land---Validity---Concept of consideration as envisaged in S.2(d) of the Contract Act, 1872 did not necessarily mean or imply any monetary benefit or anything susceptible to valuation in terms of money---Defendant had admitted litigation with the plaintiff regarding consolidation proceedings and had further admitted that he had promised to give the suit land to the plaintiff---Evidence clearly reflected that at the desire of the defendant and because of abstinence or forbearance on the part of the plaintiff, litigation having spread over decades had ended---Defendant had failed to prove fraud with respect to the agreement and make out a case requiring interference in the findings of two Courts below---Revision petition was dismissed, in circumstances.

Firm Gopal Company Ltd. and others v. Firm Hazarilal Company AIR 1963 MP 37; Babu Tikam Das v. Nawab Abbas Mirza AIR 1934 Oudh 442 (2) and Muhammad Bibi and 2 others v. Abdul Ghani and 2 others PLD 1973 Kar. 444 rel.

Hall v. Fuller 352 S.W.2d 559 (Ky. Ct. App. 1962); Forsythe v. Rexroat 1929, 234 Ky. 173; Horton and Horton [1960] 3 ALL ER 649; Cf Whiteside v. Whiteside 1950 Ch 65; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 and Guangdong Overseas Construction Group Company Ltd. through General-Manager v. Creek Marina Private Limited and 2 others PLD 2011 Kar. 304 ref.

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

----S.2(d)---Consideration for the promise---Scope---Promisor must express a desire that promisee should do something and promisee then does that or promises to do the same---On the wordings of the definition in S.2(d) of the Contract Act, 1872 all that is necessary is that the desire of one party and the act of another must have a nexus with each other i.e. the action of promisee is at the desire of the promisor---Concept of "consideration" as envisaged in S.2(d) of Contract Act, 1872, does not necessarily mean or imply any monitory benefit or anything susceptible to valuation in terms of money, it signifies any abstinence, forbearance detriment, benefit or responsibility by the promisee or any other person at the instance or desire of promisee, which gives rise to corresponding the right and interest.

Lal Bux and another v. Abdul Rasool through legal heirs and another 1994 CLC 138; Hafeez Ullah Khan and 2 others v. Al-Haj Chaudhri Barkat Ali and 2 others PLD 1998 Kar. 274 and K.S Bakshi and Amr v. State and Amr 146 (2008) DLT 125 rel.

Pakistan Steel Mills Corporation (Private) Limited v. Karachi Water and Sewerage Board through Chief Executive and 2 others 2012 CLD 396 and Sri Mahadeo Ji v. Baldeo Parsad, plaintiff and another AIR (30) 1943 Oudh 89 ref.

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

----S.115---Revision petition---Concurrent findings of fact---Scope---Concurrent findings of the courts below can only be interfered when the same results into perpetuating miscarriage of justice or if there is any misapplication of principles relating to appreciation of evidence or when the impugned judgments are against the law.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through LR.s and others 2015 SCMR 1081; Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 164; The Chairman WAPDA and 4 others v. Messrs Sitara Marbles Industry through Managing Director 2016 YLR 205 and Mirza Muhammad Ashraf Baig through Legal Heirs and others v. Saleem Ullah Baig and others 2015 MLD 450 ref.

Chan Bibi for Petitioner.

Ashfaq Ahmad Malik for Respondent.

2021 C L C 1696

[Lahore]

Before Abid Hussain Chattha, J

Haji BASHIR AHMAD CH.----Petitioner

Versus

BASHIR AHMAD (DECEASED) through L.Rs. and others----Respondents

C.R. No.30839 of 2021, decided on 17th May, 2021.

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

----S.115---Limitation Act (IX of 1908), S.5---Civil revision---Limitation---Ground for Medical treatment for condonation of delay---Documentary evidence, non-production of---Scope---Petitioner assailed acceptance of an application under S.12(2), C.P.C. by the Additional District Judge through a revision petition, which was barred by more than 50 days and was accompanied by an application under S.5 of Limitation Act, 1908---Validity---Petitioner had cited medical treatment as sole ground for delay in filing the civil revision and that too without attaching any supporting document to substantiate his claim---Medical ground was not overwhelming ground to condone delay unless each and every day of delay was sufficiently explained to the satisfaction of Court---Petitioner was not prejudiced, in any manner, from the passing of impugned order, since the appeal was deemed pending before the District Court and would be decided on its own merits---Civil revision, being barred by time, was dismissed. [pp. 1701, 1702, 1703] C, D, F & G

Karam Din v. Province of Punjab 2004 SCMR 1358; Sahibzadi Ghazala Ismat Hassan Khan Sabri v. Vice-Chancellor, University of The Punjab 1997 SCMR 2487; Mian Muhammad Amjad Amin v. Rana Bashir Ahmad 2004 SCMR 836; Muhammad Ramzan v. Zulfiqar Ahmad 2003 SCMR 785 and Mian Abdul Rahim Sethi v. Federation of Pakistan 2000 SCMR 1197 rel.

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

----S.115---Civil revision---Scope---Revision under S.115, C.P.C., is a substantive right.

Muhammad Saif Ullah v. Lahore Development Authorities and others, PLD 2021 Lah.168; Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376; Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners, PLD 1981 SC 553 and Mst. Zebunnisa and others v. Sindh Road Transport Corporation and another 1982 CLC 1228 ref.

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

----Preamble---Law of limitation is a rule of procedure, a branch of adjective law---Said law controls and regulates the process of litigation and time lines to prosecute a cause, failing which the matter must be closed---Litigant must take legal recourse with due diligence, as the laws assist those who are vigilant and not those who sleep over their rights---Law cannot be considered a mere formality, rather is required to be dealt with being mandatory in nature with the specific purpose to help the vigilant and not the indolent---If the statute governing the proceedings does not prescribe the period of limitation, the proceedings are governed by Limitation Act, 1908, as a whole but where limitation is prescribed in the statute itself, the benefit of S.5, Limitation Act, 1908, is not available unless it has been made applicable as per S.29(2) of the Limitation Act, 1908---Notwithstanding the same, discretion to condone delay is wide enough in a Court depending upon a variety of factors, particularly, sufficient cause shown by a party to the satisfaction of the Court.

Lahore Development Authority v. Mst Sharifa Bibi and another PLD 2010 SC 705 rel.

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

----S.115---Civil revision---Suo motu jurisdiction---Scope---Suo motu jurisdiction under S.115, C.P.C., can be exercised by High Court or the District Court in a case where a revision petition has been filed after prescribed period of limitation depending on the discretion of the Court because exercise of revisional jurisdiction in any form is discretionary---Suo motu jurisdiction can be exercised, if the conditions for its exercise are satisfied---Revisional jurisdiction is pre-eminently and in essence corrective and supervisory, therefore, there is absolutely no harm if the Court seized of a revision petition exercises its suo motu jurisdiction to correct the errors of jurisdiction committed by a subordinate Court.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 ref.

Appellants in person.

2021 C L C 1726

[Lahore]

Before Muhammad Qasim Khan, CJ

MUHAMMAD SHABBIR HUSSAIN, ADVOCATE----Petitioner

Versus

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

Writ Petitions Nos.25669 26868, 26268 of 2020, decided on 25th June, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Public interest litigation---Shortage of petrol---Future course of action---Recommendations---Petitioner was aggrieved of shortage of petrol in the whole country---Federal Government constituted Commission to make indiscrete probe while taking all stakeholders on board---High Court, in the light of recommendations of the Commission, issued directions to Cabinet Division of Federal Government:

Following are the directions issued by High Court to Cabinet Division of Federal Government:

i. It is made clear that inquiry report of the Commission is just a fact finding report and for further necessary action if any company, institution/party feels necessary to proceed adverse against anyone it must take the view point of all concerned.

ii. The Federal Government is directed to make necessary arrangements for the implementation of the recommendations proposed by the Inquiry Commission reproduced above.

iii. The Federal Government shall form a committee for recovery of unlawful gains from the OMCs. The committee so formed shall take point of view of all concerned and in case it comes to the conclusion that recovery has to be effected from OMCs, it shall design/draft mechanism for its materialization.

iv. The Federal Government shall take steps for the audit of all OMCs and in the light of such audit report if required, a committee or sub-committee shall be constituted to examine the existing rules and regulations, which in the facts and circumstances may propose amendments/recommend new legislation.

v. In case need arises, a committee/sub-committee shall be formed to examine (sic)

vi. The Federal Government must culminate legal action against those who were involved in mal practices of whatsoever nature or found responsible for creating the shortage crisis.

vii. In future Federal Government shall ensure that strategic storage is preserved in all eventualities.

viii. The Federal Government is directed to ensure the release of the report of the Commission regarding the artificial shortage of petroleum products immediately.

ix. The Federal Government is directed to submit compliance report within three months with regard to steps taken by it to the Additional Registrar (Judicial) of this Court.

x. The Chief Secretaries of the respective provincial governments are directed to take effective steps to empower the District Administration for better role to cater with such like situation.

xi. The Government shall examine the report of the Commission qua dissolution of OGRA through a high powered committee, however, if such Committee concludes that OGRA should remain in field then immediately the rules relating thereto must be revisited and fresh rules/regulations be framed and the authority should closely watch the working of OGRA and other autonomous bodies. In case of any lapse, the concerned officers/officials must be taken to task.

Constitutional Petition was disposed of accordingly.

Sardar Farhat Manzoor Khan Chandio, for Petitioner (in Writ Petition No.25669/2020)

Muhammad Azhar Siddique and Mian Ali Asghar for Petitioner (in Writ Petition No.26868/2020).

Malik Asif Ahmed Nissoana, Deputy Attorney General with Abu Bakar Khuda Bakhsh, Additional Director General, FIA.

Asif Afzal Bhatti and Malik Abdul Aziz Awan, Additional Advocates General.

Salman Akram Raja and Tariq Bashir on behalf of Chairman OGRA with Ch. Moazzam Hussain SED and M. Rizwan ul Haq SED.

Ch. Muhammad Hammad for Competition Commission of Pakistan (in Writ Petition No.26268/2020).

Ruman Bilal for SECP (in Writ Petition No.26868/2020).

Barrister Hadroon Duggal for Respondent No.11 (in Writ Petition No.25669/2020 and for Respondent No.18 (in Writ Petition No.26868/2020).

Mansoor Usman Awan, Malik Eisa Usman Ghazi and Asif Mehmood Khan for respondents Nos.14 and 15 (in Writ Petition No.25669/2020).

Ali Sibtain Fazli, Hashim Ahmed Khan and Eisa Jalil Ahmed for Total PARCO Attock.

Babar Sultan for Respondent No.12 (in Writ Petition No.25669/2020).

Sh. Naveed for Respondent No.28 (in Writ Petition No.26868/2020).

2021 C L C 1755

[Lahore]

Before Shams Mehmood Mirza, J

GAM CORP. (PVT.) LTD. Through Admin Executive ----Petitioner

Versus

NATIONAL HIGHWAYS AUTHORITY through Chairman and another----Respondents

Writ Petition No.13794 of 2016, decided on 10th February, 2021.

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

----S.10---National Highways and Strategic Roads Control Rules, 1998, R.12---Fee on advertisement and signboards---Scope---Petitioner called into question the notices issued by Authority requiring him to make payment of the National Highway Authority (NHA) tax for installation of unauthorized advertisement board---Contention of petitioner was that NHA had no authority under the National Highway Authority Act, 1991 (the Act) and the rules framed thereunder to charge such a fee from the petitioner---Contention of NHA was that by virtue of S.10(2)(vi) and (viii) of the National Highway Authority Act, 1991 read with R.12 of the National Highways and Strategic Roads Control Rules, 1998, the petitioner was liable to pay the tax---Validity---Section 10 of National Highway Authority Act, 1991 authorized the Authority to take such measures and exercise such powers as it considered necessary or expedient for carrying out the purposes of the Act---Power to charge fee/rent from utilities and signboards under R. 12 of National Highways and Strategic Roads Control Rules, 1998, was predicated on the safety and convenience of the road user---Read with S. 10(2)(viii) of the Act, it became evident that the signboard must be on the road controlled by NHA for it to charge fee from the person who installed it---Section 10(2)(viii) of the Act, however, only authorized the NHA to license facilities which would include the Petrol/CNG Stations, restaurants/hotels, shops/khokhas, etc---National Highway Authority Act, 1991, by the terms of S.10 did not authorize the NHA to levy and charge fee on the advertisement and signboards---Constitutional petition was allowed and the impugned notices were declared to be without lawful authority and of no legal effect.

Shell Pakistan Limited v. Capital Development Authority PLD 2015 Isl. 36 rel.

(b) Interpretation of statutes---

----Rules and regulations being subordinate legislation cannot go outside the ambit and scope of the parent statute---Mere fact that powers have been conferred on the Authority to make Rules and Regulations does not authorize framing of delegated legislation that is inconsistent or repugnant to the parent Act.

Bakhtawar Bilal for Petitioner.

Aurangzeb Mirza for Respondent No.1.

2021 C L C 1778

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Mst. SUGHRAN BIBI----Petitioner

Versus

GHULAM MUHAMMAD and others----Respondents

Civil Revision No.823 of 2020 in Objection Case 41 of 2020, decided on 24th September, 2020.

Civil Procedure Code (V of 1908) ---

----Ss.12(2) & 115---Revision petition---Failure of court to advert to application for interim relief---Scope---Petitioner assailed interlocutory order passed on an application under S.12(2), C.P.C., whereby notices were issued to respondents---Contention of petitioner was that application for interim relief was filed along with the application under S.12(2), C.P.C., which was not entertained or adverted to by the trial court which amounted to declining the interim relief---Validity---Impugned order did not show that application for interim relief was taken up for hearing before the court which had taken cognizance of the application under S.12(2), C.P.C.---Petitioner was required to show that the application had been taken up for hearing and after applying application of mind the court had either refused the relief or deliberately avoided to pass any order on the same amounting to refusal of interim relief---Revision petition being premature was disposed of with the observation that the petitioner in the first instance may raise the matter of pendency of the application before the trial court.

Abdul Razzaq and others v. Muhammad Ajmal Khan PLD 2018 Lah. 491 ref.

2021 C L C 1798

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD NASRULLAH KHAN----Petitioner

Versus

SHAUKAT ALI and others----Respondents

Civil Revision No.2281 of 2016, decided on 7th March, 2019.

Civil Procedure Code (V of 1908) ---

----S.96(3) ---Punjab Land Revenue Act (XVII of 1967), S.42---Qanun-e-Shahadat (10 of 1984), Arts. 129(e) & 163---Specific Relief Act (I of 1877), S.42---Suit for declaration---Cancellation of mutation---Acceptance or denial of claim on oath---Appeal from consent decree---Scope---Plaintiff assailed the dismissal of his suit for declaration along with consequential relief---Validity---Plaintiff himself had appeared before the Trial Court along with his counsel and had got recorded his statement stating that if real brother of defendant gave Oath on Holy Quran that plaintiff had received consideration and executed mutations in favour of defendant then his suit be dismissed otherwise suit be decreed---Offer was accepted, brother of defendant appeared and swore Oath on Holy Quran that the plaintiff had received total consideration of the suit property before the revenue officials and he himself had got entered and sanctioned the mutations, as such, no fraud was committed by the defendant---Presumption of truth was attached to the judicial record---No appeal under S.96(3), C.P.C., could be filed from a decree passed by the Court with the consent of the parties, as such, the courts below had rightly passed the impugned judgments and decrees---Revision petition was dismissed.

Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 and Waqar Jalal Ansari v. National Bank of Pakistan and another 2008 SCMR 1611 ref.

Ch. Amjad Hussain for Petitioner.

2021 C L C 1841

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD NAWAZISH ALI----Petitioner

Versus

FAMILY JUDGE and others----Respondents

Writ Petition No.6694 of 2021, heard on 25the May, 2021.

(a) Constitution of Pakistan

----Arts.10A & 4---Fundamental Right to fair trial and due process of the law---Nature and scope---Right to fair trial was a bedrock of rule of law and was closely linked with human rights protection, more particularly the rights to life, liberty and property---Right to fair trial was rooted in twin cannons of natural justice, namely, nemo debet esse judex in propria causa (no one should be a judge in his own cause) and audi alterm partem (no one should be condemned unheard)---Article 10A of the Constitution covered both substantive and procedural due process and it could be termed as having been "designed to secure justice as a living reality"---Fair trial and due process in civil lawsuits/proceedings contemplated notice and opportunity to be heard before any judgment was rendered---Where a person was not a party to a suit , and thus did not have opportunity to present his /her case, then a decree could not be executed against such a person, and any Executing Court could not go behind the decree.

Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Nadeem Asghar Nadeem and others v. Province of the Punjab and others 2015 CLC 1509; Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railway and 6 others PLD 2013 Lah. 413; Muhammad Ramzan v. Ali Hamza and others PLD 2016 Lah. 622; Muhammad Yaqoob v. Additional District Judge, Kharian, District Gujrat 2017 YLR Note 360; Sultan Ahmad v. Judge Family Court and 5 others PLD 2012 Lah. 148; Mst. Haleema Bibi and 4 others v. Additional District Judge, Layyah and 2 others 2018 CLC Note 12; Mariano A. Albert v. University Publishing Co. Inc. (1965), G.R. No.L-19118; Sh. Shajar Hussain v. Haji Abdul Majeed and others 2006 SCMR 913; See: Shafqat Ullah and 2 others v. Land Acquisition Collector (D.C.), Haripur and 2 others 2006 CLC 1555 and Province of Punjab through Secretary Industries, Government of the Punjab, Civil Secretariat, Lahore v. Burewala Textile Mills Limited 2001 SCMR 396 rel.

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

----Ss.13(3), 7 & Sched.---Constitution of Pakistan, Arts. 10A, 4 & 199---Suit for recovery of maintenance allowance of wife and minor---Enforcement of decree against father of husband who was also special attorney of defendant---Fundamental Right to fair trial and due process of law---Scope---Petitioner/grandfather impugned orders of Family Court whereby after suit for recovery of maintenance allowance for wife and minor was decreed against his son, Family Court while executing the decree issued warrant of arrest against petitioner and accepted an application for attachment of petitioner's property to satisfy decree against his son---Contention of petitioner, inter alia, was that he was not a party to the suit, and was merely special power of attorney holder on behalf of his son, who was settled abroad; and therefore impugned order were made without lawful authority ---- Validity--- While it had been held in various circumstances that grandfather was obligated to provide maintenance for grandchildren, if he was in easy circumstances and the father was dead or not traceable or residing abroad or was impecunious or infirm and the mother was down-and-out; however, in the present case, petitioner was not party to Family Suit and decree was only passed against the father, and not the petitioner /grandfather---Where a person was not a party to a suit, and thus did not have opportunity to present his/her case, then a decree could not be executed against such a person, and any Executing Court could not go behind the decree and such principles were overlooked by Family Court in the present case---Furthermore, it was not established on record that conditions existed upon which petitioner / grandfather may become liable for maintenance allowance of minor, which was a question of fact to be determined by recording of evidence---Contention that petitioner was liable to pay decretal amount since he was pursuing the case on behalf of husband/father, was not tenable as he was a special attorney and did not assume any liability on behalf of the husband/father and neither had posted surety bond nor had he given any undertaking to the Family Court at any point in time for payment of decretal amount---Impugned order, being violative of Art.10A of the Constitution, were therefore bad in law and set aside, with the observation that setting aside of impugned orders may not preclude minor from asserting her rights, if any, against the grandfather through appropriate proceedings---Constitutional petition was allowed, accordingly.

Trustees of Dartmouth College v. Woodward, 17 US 518 (1819); Iqbal Hussain v. Deputy Commissioner/Collector, Lahore and 3 others PLD 1995 Lah. 381; Abdul Fahim v. Mst. Shahnaz Begum and another 2003 CLC 1450; Mst. Hajiran Bibi v. Abdul Khaliq PLD 1981 Lah. 761; Mukhtarul Hassan Siddiqui v. Judge Family Court, Rawalpindi and 4 others 1994 CLC 1216; Muhammad Asad v. Mst. Humera Naz and others 2000 CLC 1725; Muhammad Najeeb v. Mst. Talat Shahnaz and others 1989 SCMR 119; Mansoor Tariq Khan v. Mst. Nafeesa and 2 others 1999 CLC 305; Mian Arif Mehmood v. Mst. Tanvir Fatima and another PLD 2004 Lah. 316;Humayun Hassan v. Arsalan Humayun and another PLD 2013 SC 557; Mst. Rehmat Bibi v. Muhammad Ali PLD 1971 Lah. 151; Mst. Razia Begum v. Ghulam Rasul 1972 PCr.LJ 1286; Muhammad Yusuf v. Shazia Bibi 1992 MLD 235; Muhammad Asad v. Mst. Humera Naz and others 2000 CLC 1725; Syed Zia ul Hasan Gilani v. Mian Khadim Hussain and 7 others PLD 2001 Lah. 188; Muhammad Ramzan v. Mst. Fazal Nishan 1968 SCMR 1435; Masroor Hussain v. Additional District Judge, Islamabad and 2 others 2011 CLC 851; Mst. Rehmat Bibi v. Muhammad Ali PLD 1971 Lah. 151; Khalid Mahmood v. District Judge, Jhelum and 6 others PLD 1986 Lah. 272; Muhammad Ashraf v. Nasreen Begum through Legal Heirs and 3 others PLD 1989 Lah. 69; Captain S. M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Muhammad Shafi alias Papan v. The State 2011 PCr.LJ 1424; Farid Khan v. Saeeda Bibi and others 2014 MLD 351; Mst. Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin and another 1995 SCMR 1206; Mst. Rasheedan Bibi v. Additional District Judge and 2 others 2012 CLC 784; Haji Nizam Khan v. Additional District Judge, Lyallpur and other PLD 1976 Lah. 930; Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543; Abdullah Jawaria Aslam and 2 others 2004 YLR 616; Muhammad Ramzan v. Ali Hamza and others PLD 2016 Lah. 622 and Ghafoor Ahmed Butt v. Mrs. Iram Butt and 6 others PLD 2011 Lah. 610 rel.

Muhammad Ali and 2 others v. Abdul Sattar and others 2006 YLR 616; Sultan Ahmad v. Judge Family Court and 5 others PLD 2012 Lah. 148 and Mst. Haleema Bibi and 4 others v. Additional District Judge, Layyah and 2 others 2018 CLC Note 12 distinguished.

Rana Bakhtiar Ali for Petitioner.

Irfan Younas Dar for Respondents Nos.2 and 3.

2021 C L C 1898

[Lahore]

Before Sultan Tanvir Ahmad, J

MUHAMMAD ARSHAD and 4 others----Petitioner

Versus

SAFDAR ALI----Respondent

Civil Revision No.2048 of 2013, heard on 16th June, 2021.

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

----S.115---Revision---Suo motu exercise of jurisdiction---Scope---Second proviso of subsection (1) of S.115 of the Code of Civil Procedure, 1908 clearly provides that when an application for the revision is made by the applicant it is necessary to institute the same within 90 days of the decision of the Subordinate Court, however, no such restriction of time period exists in the subsection (1) of S.115 of the Code of Civil Procedure, 1908 and this power can be exercised when the subordinate court has exercised a jurisdiction not vested in it or has failed to exercise the jurisdiction so vested or has acted illegally or with material irregularity---Applicant has no right to cause a delay and then seek the shelter of the power of the Court to exercise a jurisdiction, at its own.

Federal Government of Pakistan and another v. Khurshid Zaman Khan and others 1999 SCMR 1007; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582; Province of Punjab through Collector, Toba Tek Singh and others v. Muhammad Farooq and others 2012 SCMR 1942 and Muhammad Arshad v. Muhammad Nawaz 2017 CLC 1254 ref.

Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358 rel.

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

----S.115---Revision---Copies of documents---Scope---First proviso to subsection (1) of S.115 of the Code of Civil Procedure, 1908, does not require that a certified copy of the pleadings, documents and orders of subordinate court are to be appended, it simply says that the copies of the said documents should be attached.

Muhammad Arshad v. Muhammad Nawaz 2017 CLC 1254 rel.

Muhammad Hanif Niazi for Petitioner.

Ijaz Khalid Khan Niazi for Respondent.

2021 C L C 2022

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD KHALID and others----Petitioners

Versus

MARKET COMMITTEE MUZAFFARGARH and others----Respondents

Writ Petition No.7603 of 2020, heard on 2nd July, 2021.

(a) Taxation---

----No tax, fee, charge, or levy, by whatever name called, could be imposed by the Government or a public body, except under the authority of a law enacted by a competent Legislature.

Government of Khyber Pakhtunkhwa and others v. Khalid Mehmood 2012 SCMR 619; Al-Hamza Ship Breaking Co. and 14 others v. Government of Pakistan through Secretary Revenue Division, Ministry of Finance, Islamabad and others 2015 SCMR 595; Hyderabad Cantonment Board v. Raj Kumar and others 2015 SCMR 1385; Treet Corporation Limited v. Government of Pakistan through its Secretary, Ministry of Industries, Islamabad and 2 others PLD 1992 Kar. 427 and Exide Pakistan Limited v. Cantonment Board Clifton and another 2012 CLC 1124 rel.

(b) Constitution of Pakistan

----Art.199---Constitutional jurisdiction of High Court---Locus standi---Scope---For maintaining a proceeding in Constitutional jurisdiction of High Court, it was not necessary that petitioner should have a right in strict juristic sense and was enough if he disclosed that he had personal interest in performance of a legal duty, which if not performed or performed in a manner not permitted by law, would result in loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 rel.

(c) Constitution of Pakistan

----Art. 199 & 10A---Constitutional jurisdiction of High Court --- Duty of litigant to place all relevant facts before Court---Fundamental Right to fair trial---Scope---When a litigant invoked Constitutional jurisdiction of High Court, it was incumbent upon such litigant to place all relevant facts before the Court and not to hide anything, which duty was corresponding to right to fair trial.

Amar Singh v. Union of India and others (2011) 7 SCC 69 and Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 rel.

(d) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S.19---Punjab Agricultural Marketing Regulatory Authority Act (XXIX of 2018), Ss. 15B & 15C---Constitution of Pakistan, Art.199---Constitutional petition--Levy of fee(s) by Market Committee---Parking Fee for vehicles---Auction of collection rights for such fee---Scope---Petitioners impugned imposition of parking fee and auction of collection rights for such fee, by Market Committee under the Punjab Agricultural Produce Markets Ordinance, 1978, inter alia, on ground that respondent Market Committee was not competent to levy said fee and to auction collection rights for the same ---Validity---Under S.19 of Punjab Agricultural Produce Markets Ordinance, 1978 power to levy fee by Market Committee was limited to agricultural produce and did not authorize Market Committee to impose any fee for use of parking space and therefore collection of such fee was illegal, however after promulgation of Punjab Agricultural Marketing Regulatory Authority Act, 2018 the situation changed---Under Ss.15B & 15C of said Act, Market Committee was expressly empowered to regulate entry of persons and vehicular traffic and to levy and recover fee in respect of the same---Respondent Market Committee was therefore empowered to levy such fee and to auction collection rights for said parking fee---High Court observed that petitioners, in the present case, did not pray for restitution of parking fee imposed and recovered illegally until 2018, which relief could not therefore be granted by High Court in its Constitutional jurisdiction, however, they were at liberty to seek it in appropriate proceedings---Constitutional petition was dismissed, accordingly.

Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; PLD 2014 SC 389; Treet Corporation Limited v. Government of Pakistan through its Secretary, Ministry of Industries, Islamabad and 2 others PLD 1992 Kar. 427; Sui Northern Gas Pipelines v. Deputy Commissioner Inland Revenue and others 2014 PTD 1939; M.U. A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Nestle Pakistan Ltd. and others v. Federal Board of Revenue and others 2017 PTD 686; Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, through Secretary, Establishment Division and others PLD 1990 SC 1013; Kohinoor Chemical Co. Ltd. Karachi and 2 others v. Karachi Muncipal Corporation PLD 1978 Kar. 233 and Abdullah Advertiser through Sole Proprietor and 3 others v. District Coordination Officer, District Khushab and 3 others 2017 CLC Note 140 rel.

Abdul Rashid Sheikh for Petitioners.

Waseem-ud-Din Mumtaz, Assistant Advocate General with Khawaja Qaisar Butt for Respondents.

2021 C L C 2062

[Lahore]

Before Sultan Tanvir Ahmad, J

AHMAD KHAN----Petitioner

Versus

MUHAMMAD AZAM----Respondent

Civil Revision No.123 of 2013, heard on 16th June, 2021.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance---Attestation of mutation---Non-availability of witnesses during attestation of mutation---Scope---Plaintiff filed suit for specific performance claiming therein that the suit property was purchased by him vide oral agreement; that the mutation was entered in the Rapt Roznamcha Waqiati (daily diary) in presence of witnesses and that the defendant had got the mutation cancelled in collusion with the revenue department---Trial Court and Appellate Court concurrently decreed the suit---Validity---Section 42 of Punjab Land Revenue Act, 1967, reflected that unless the mutation was of inheritance or it was followed by a registered deed or it was under an order of the Court, the same was required to be attested in presence of that person whose right was acquired and it was necessary that such person was identified by two responsible persons preferably Lambardar, Member Union Committee, Union Council or Town Committee---Signatures or thumb impressions of the aforesaid two persons should have been obtained by the Revenue Officer---In the absence of fulfillment of such requirement of law, the factum of entry in the record did not carry any presumption of truth---Mere entry in the diary or relevant page of the diary was not a primary evidence---Names of witnesses were not disclosed in the plaint---Plaintiff during his examination-in-chief had not uttered a word regarding the place, time and manner of the oral agreement---Not only the case was attempted to be improved after the plaint, in fact none of the statements of witnesses was in harmony with the others---Oral agreement could not be proved by the plaintiff as per Arts. 17 and 79 of Qanun-e-Shahadat, 1984---Judgments passed by courts below were set aside and the suit was dismissed---Revision petition was allowed, in circumstances.

Karamdad v. Manzoor Ahmad and 2 others 2015 CLC 157; Bashir Ahmad and others v. Abdul Latif and others 2005 YLR 2655; Mst. Nooran Mai and another v. Ahmad Bukhsh and 3 others 2006 YLR 1039; Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372; Tariq Javed and 11 others v. Muhammad Sattar 2011 MLD 832 and Noor Muhammad and others v. Mst. Rabia Bibi and others 2019 MLD 1286 ref.

(b) Punjab Land Revenue Rules, 1967---

----R.34---Qanun-e-Shahadat (10 of 1984), Arts. 49 & 129(e)---Roznamcha Waqiati to be maintained by the Patwari---Relevancy of entry in public record made in performance of duty---Scope---Roznamcha Waqiati is although required to be maintained under the Punjab Land Revenue Rules, 1968 and is maintained during the course of performance of the official duty which is admissible, yet if the report contains statement of private individual, its correctness is required to be proved---When the report is made at the instance of vendor, it becomes doubtful if the same is made in discharge of the said official duty.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582 rel.

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

----S.42---Making of that part of periodical records which relates to land-owners---Scope---Entering a mutation or reporting the fact of acquisition of any right in an estate by the Patwari is a merely ministerial act which does not confer or extinguish a right in any property---Such exercise has to be done by the Revenue Officer in accordance with S.42(7) of the Punjab Land Revenue Act, 1967.

Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911 rel.

Muhammad Amjad Wali v. Kareem Khan 2015 MLD 824; Malik Ghulam Akbar Khan through L.Rs. and others v. Al-Haaj Abdul Raziq Khan and another 2011 CLC 1734; Mst. Umri v. Ghulam Rasool and 2 others 1998 CLC 291 and Karam Shah v. Mst. Ghulam Fatima and 3 others 1988 CLC 1812 ref.

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

----O.VI, R.2---Pleadings---Pleading to state material facts and not evidence---Scope---Mentioning the names of witness in whose presence the oral agreement to sell was arrived, is material.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 rel.

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

----Arts.17 & 79---Competence and number of witnesses---Proof of execution of document required by law to be attested---Scope---Transaction has to be proved in terms of Arts. 17 & 79 of Qanun-e-Shahadat, 1984 which require the document to be proved by producing one man or two women in the manners provided therein.

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

----Art. 117---Burden of proof---Scope---Beneficiary has to prove the transaction.

Amjad Ikram v. Mst. Asia Kousar and 2 others 2015 SCMR 1 rel.

Muhammad Ehsan Gondal for Petitioner.

Ch. Saifullah Warraich for Respondent.

2021 C L C 2109

[Lahore]

Before Muhammad Sajid Mehmood Sethi, JJ

Raja AZHAR HAYAT----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE/GAS UTILITY COURT and others----Respondents

Writ Petition No.19738 of 2021, heard on 4th June, 2021.

Civil Procedure Code (V of 1908)---

----O.V, Rr. 19, 20 & O.IX, R.8---Gas (Theft Control and Recovery) Act (XI of 2016), Preamble---Suit for recovery filed by Gas Company---Ex-parte proceeding---Proper service---Scope---Civil Court, before the promulgation of Gas (Theft Control and Recovery) Act, 2016 ('the Act 2016'), had recorded ex-parte evidence against the defendant/petitioner---Gas Utility Court, after having the case been transferred to it, neither issued any process for appearance of petitioner nor itself recorded evidence, yet passed ex-parte decree against the defendant/petitioner and later dismissed his application to set-aside ex-parte decree---Held, that in absence of issuance of fresh notice/process by the Gas Utility Court, the petitioner was well within his rights to plead lack of knowledge regarding Court in which he had to appear---Ex-parte proceeding, already carried out by the Civil Court against the petitioner, did not deprive him a right to receive notice on transfer of suit---Although the Civil Court noted Process Server's report on the summons to the effect that petitioner shifted place of his abode , but neither it (Court) obtained any affidavit from the respondent/plaintiff that it had no knowledge about any other address of petitioner nor respondent took any constructive step for personal service of the petitioner---Civil Court was also required to examine the Process Server on oath to take further inquiry in the matter and to declare that summons were duly served but the Court straightaway ordered publication in the newspaper---Such was not a proper service in terms of Rr. 19 & 20 of Order V of C.P.C, hence ex-parte proceedings were unsustainable in the eye of law---When the Law desired an act to be done in a particular manner/form, it must be done in that manner alone otherwise the same would be termed as illegal and the proceedings as unsustainable---High Court set-aside impugned ex-parte proceedings as well as ex-parte decree and judgment passed by the Gas Utility Court against the petitioner---Suit would be deemed pending before Gas Utility Court---Constitutional petition was allowed, in circumstances.

Nemat Ali and others v. Mst. Bakhtawar and others 1995 MLD 484; Azhar Hussain Shah v. Messrs Harat Management (Pvt.) Ltd. through Managing Director PLD 2009 Kar. 148; Mst. Nabila Taj and another v. Murad and 4 others 2021 CLC 757; Pritam Bhatti v. Tilak Raj, (P&H) 2002 (1) ICC 481; Ahmed Khan v. Haji Muhammad Qassim and others 2002 SCMR 664; Nouroz Khan v. Haji Qadoor 2005 SCMR 1877; Zulfiqar v. Muhammad Jan 2002 CLC 932; Municipal Committee, Gujrat through Administrator v. Deputy Administrator, Evacuee Trust Property, Gujrat and 3 others 2004 MLD 1170; Muhammad Younas and 4 others v. Additional District Judge, Jhelum and 2 others 2006 MLD 963; Sh. Mukhtar Ahmad and others v. Muhammad Saleem Bhatti and others 2013 MLD 1383; Jadoon Khan v. Abdul Karam and 3 others 2017 YLR 1031; Rasheed Ahmed v. Muhammad Asim and another 2019 CLC Note 68; Mst.Tameezan and others v. Muhammad Sharif 2021 CLC 25; Parasurama Odayar v. Appadurai Chetty and others (Madras) AIR 1970 Mad 271 (FB); Shila Nath Malik and others v. Balbhadra Sutradhar and others AIR 1992 Gauhati 121; Rajesh Kochhar v. Babu Ram (Himachal Pradesh) 1993 (3) LJR 457; Karuppan Chettiar v. Karuppiah (Madras) 1994 (2) CurCC 717; Baburao Soma Bhoi v. Abdul Raheman Abdul Rajjak Khatik, (Bombay) 2000 (1) BCR 306; Baijnath Mishrilal Kachhi v. Harishanker, (Madras) 2002 (1) ICC 639; Santosh Kumar Navman v. Raja Amar Pratap Singh (Allahabad) 2011 (88) ALR 314; Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; Shahdost Dashti v. Federation of Pakistan through Secretary Ministry of Inter-Provincial Coordination Government of Pakistan, through Secretary, Pakistan Secretariat, Islamabad and 5 others 2019 CLC 1750; Muhammad Hanif v. Revisional Authority and others 2020 CLC Note 36; Muhammad Ameer v. The State and another 2020 MLD 876 and Muhammad Sajid v. Judge Family Court and others 2020 CLC 1524 ref.

Ch. Imran Raza Chadhar and Qasim Raza Chadhar for Petitioner.

Umar Sharif (SNGPL) for Respondent.

Barrister Ammer Abbas Ali Khan, A.A.G., on Court's call.

Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC.

2021 C L C 2119

[Lahore]

Before Ahmad Nadeem Arshad, J

ABDUL MAJEED and others----Petitioners

Versus

HUSSAIN BIBI ad others----Respondents

Writ Petition No.70606 of 2019, decided on 2nd July, 2021.

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

----S.27 & O.V----Constitution of Pakistan, Art.10A---Fair trial---Summons---Maxim "audi alteram partem"---Purpose of summoning the defendant was to provide him proper opportunity of hearing and it was based upon the universally acknowledged maxim "audi alteram paredm"---Such right was inalienable right of every party to have a fair/ample opportunity to plead/defend his cause---Before passing any adverse order against a party, his service was necessary---Due service was the fundamental right of a person and in order to ensure due service, there should be substantial compliance with the provisions relating to service of summons---Court must be satisfied that all requirements of law had been strictly complied with.

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

----O.V, Rr.6 & 20, O.IX, R. 6---Respondent/plaintiff filed suit for possession/partition on 31.10.2009 against legal heirs of her deceased father---Petitioners were legal heirs of defendant/real brother of the plaintiff---Ex-parte proceedings were initiated against defendants on 08.07.2010---Local commission suggested sale of suit property as the same was not physically partitionable---Multiple schedules issued by court for auction/internal auction had failed---Auction/sale was confirmed in favour of one of the respondents on 09-12-2016---Petitioners' application under S.12(2) of C.P.C. against preliminary ex-parte decree of 09-05-2012 was dismissed---Petitioners' revision petition was allowed on 06-01-2017---Respondent/auction purchaser's application under 12(2) of C.P.C. against Court's order in revision petition was allowed on 22-03-2018, whereon said revision petition was restored and ultimately dismissed on 06-11-2019---Validity---Defendant/real brother of plaintiff had died on 07-06-2003 long before the institution of suit thus the same was defective in nature---Plaintiff being real sister of her said brother could not be believed to remain unaware of her brother' death for such a long period of 6 years---Suit was deliberately filed against dead person for ulterior motive---Plaintiff filed application for impleading the legal heirs of defendant on 25-02-2010; on the same date plaintiff filed amended plaint; and on the same date at 12:30 p.m. the trial Court ordered the defendants to be summoned through publication in newspaper/summons through TCS for 22-03-2010---Even after impleading legal heirs of defendant / deceased, Trial Court again summoned the same deceased---After five adjournments, Trial Court initiated ex-parte proceedings against the defendants on report of Court official---Addresses of petitioners / defendants were not correctly mentioned in the plaint/ summons / newspaper---Trial Court, without adopting the proper procedure as described in O.V of C.P.C. straightaway ordered the substituted service for publication of citation in newspaper---Order dated 25-02-2010 demonstrated that trial Court had not satisfied itself that defendants had been avoiding the service and jumped to publication in the newspaper---Respondent failed to prove that petitioners were aware of the pendency of the suit---High Court allowed the Constitutional petition; accepted the application under S.12(2) and set aside ex-parte preliminary decree of the trial Court; and directed the trial Court to proceed the suit afresh after summoning all defendants and getting their written statements.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Ghulam Nabi v. Mir Muhammad Ali Rind 2020 YLR 172 ref.

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

---O.IX, R. 6---Ex-parte proceedings, initiation of---Adjourned date of hearing---Applicability---Citation in newspaper required the defendants to appear before the Court on 03-05-2010---After five adjournments, without issuing any fresh notices/summons/publication for 08-07-2010, trial Court proceeded ex-parte on the basis of publication made for the prior date which was grave illegality caused injustice to the petitioners---Order IX, R.6 of C.P.C., authorised the Court to initiate the ex-parte proceedings and such Rule only applied to the date fixed in the summons for hearing of the suit and not to adjourned date of hearing.

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

----O.V, R.20---Substituted service---Substituted service was in the nature of a proceeding of last resort and could not be opted for except when all procedural requirements had been met and the pre-conditions for a substituted service as required by Civil Procedure Code, 1908 might not be strictly made applicable---Unless all efforts to effect service in the ordinary manner were verified to have failed substituted service could not be resorted.

Muzaffar Aziz Khan and Muhammad Ahmad for Petitioners.

Haseeb Ahmad Khan for Respondent No.12.

2021 C L C 2135

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

GOVERNMENT OF THE PUNJAB and others----Appellants

Versus

Messrs MUHAMMAD ASAD & CO.----Respondent

F.A.O. No.2885 of 2020, decided on 8th June, 2021.

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

----S.34---Power to stay legal proceedings where there is an arbitration agreement---Expression 'before taking any other steps in proceedings'---Scope---Appellants assailed the dismissal of their application under S.34 of the Arbitration Act, 1940 for staying the proceedings of the respondent's suit and referring the matter to the arbitrator---Section 34 of the Arbitration Act, 1940 provided that the application for stay of proceedings was to be made before filing a written statement or taking any other step in proceedings---Term 'before taking any steps' meant 'at the earliest', 'at the first opportunity', 'before seeking adjournments for filing of written statement'---Appellants had neither filed the application at the earliest nor at the first opportunity rather had sought time/adjournments to file written statement, therefore, apparently they had lost their right to get the suit stayed---Findings of Trial Court were found to be in conformity with the law---No exception could be taken to the impugned order---Appeal was dismissed.

Messrs Gas Drive CNG Service v. Special Judge (Rent), Lahore and others 2020 CLC 871 ref.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553; Muhammad Farooq v. Nazir Ahmad PLD 2006 SC 196; Muhammad Ilyas Khokhar v. Ihsan Ilahi Mughal 2000 CLC 206; Rana Muhammad Ikram v. Province of Punjab 2005 CLC 206; Government of the N.-W.F.P. and others v. Khalid Khan and others 2006 MLD 1897; Province of Punjab v. Muhammad Asghar 2008 YLR 300; Messrs Sprint Energy (Pvt.) Limited v. Ahsaan Ullah 2013 CLD 885; Hamad Raza v. Sajid Hussain 2014 CLC 1057; Aftab Ahmad Khan v. Wazir Ahmad 2014 CLC 1401; Shin Satellite v. Messrs Kasb Technology Services Limited 2016 YLR 2322 and Infospan (Private) Limited v. Messrs Telecom Foundation 2017 CLC 131 rel.

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

-----S.34---Power to stay legal proceedings where there is an arbitration agreement---Scope---Party seeking the provision of stay under S.34 of Arbitration Act, 1940 must clarify its position at the earliest possible opportunity, so as to leave no manner of doubt that it wishes to have resort to arbitration proceedings---If it hesitates in this regard, or allows the suit to proceed in any manner that conduct would indicate that such party has abdicated its claim to have the dispute decided under the arbitration clause and to have thereby forfeited its right to claim stay of the proceedings in the court---Even if the matter has been adjourned by the court in routine for filing of a written statement, the defendants, if they want to opt for the dispute resolution mechanism contained in the contract, can take corrective steps and inform the court, without any delay, about their intention to seek stay of the suit.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553; Muhammad Farooq v. Nazir Ahmad PLD 2006 SC 196; Muhammad Ilyas Khokhar v. Ihsan Ilahi Mughal 2000 CLC 206; Rana Muhammad Ikram v. Province of Punjab 2005 CLC 206; Government of the N.-W.F.P. and others v. Khalid Khan and others 2006 MLD 1897; Province of Punjab v. Muhammad Asghar 2008 YLR 300; Messrs Sprint Energy (Pvt.) Limited v. Ahsaan Ullah 2013 CLD 885; Hamad Raza v. Sajid Hussain 2014 CLC 1057; Aftab Ahmad Khan v. Wazir Ahmad 2014 CLC 1401; Shin Satellite v. Messrs Kasb Technology Services Limited 2016 YLR 2322 and Messrs Ash Associates v. The Chief Executive Officer 2019 CLC 1303 ref.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 and Infospan (Private) Limited v. Messrs Telecom Foundation 2017 CLC 131 rel.

Barrister Ameer Abbas Ali Khan, A.A.G for Appellant.

Ch. Imran Raza and Qasim Raza Chadhar for Respondent.

Umar Sharif, Advocate/Legal Advisor for SNGPL.

2021 C L C 2152

[Lahore]

Before Ch. Muhammad Masood Jahangir and Safdar Saleem Shahid, JJ

Dr. SARFRAZ DEPUTY DISTRICT OFFICER HEALTH and others----Appellants

Versus

Malik MUHAMMAD JAMIL and others----Respondents

R.F.A. No.33446 of 2019, heard on 20th May, 2021.

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

----S.79---West Pakistan Essential Services (Maintenance) Act, 1958, S.8---Suit for damages---Suit by or against the Government---Bar of legal proceedings---Scope---Appellants assailed judgement and decree passed by trial court whereby the plaintiff's suit for recovery of damages was partially decreed---Facts of the case were that the appellants inspected the premises of a workshop of which the plaintiff was an incharge; that the authorities had found a large potential of 'larva' and on the complaint of the competent authority a criminal case was registered against him as a result of which he lost his job---Main contention of the authorities was that the suit was barred by mandatory provision of S.79 of the Code of Civil Procedure and that under S.8 of the West Pakistan Essential Services (Maintenance) Act, 1958, no suit, prosecution or other legal proceedings could have been filed against any person for anything which he had done in good faith or had intended to do under the Act or rules laid therein---Validity---No suit could have been filed against the Provincial Government (authorities) without impleading the province as a party---Section 8 of the West Pakistan Essential Services (Maintenance) Act, 1958 clearly provided that no suit, prosecution or other legal proceedings could be filed against any person for anything which was done in good faith or intended to be done under the Act---Suit, being not maintainable, was dismissed---Appeal was allowed.

Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner Khuzdar 1999 SCMR 16; Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115; The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Nadeem Raja v. Additional Sessions Judge and others 2016 MLD 1810 and Sardar Aman Khan and 2-others 2010 YLR 2219 rel.

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

----O.XIV, Rr.1 & 2---Framing of issues---Issues of law and fact---Scope---Issues are to be framed on the basis of material in the shape of pleadings presented---Court has to frame proper issues so that the parties may know the controversy, the disputed fact, on which evidence is to be led and to enable an effective judgment to be rendered.

Dr. Anjum Habib Vohra v. Waseem Ahmad Khan PLD 2006 Lah. 255 and Muhammad Nazir and others v. Muhammad Arif and others 2006 MLD 187 ref.

Raza Hussain v. Haji Qaisar Iqbal and 7 others 1996 MLD 55 rel.

(c) Jurisdiction---

----Where jurisdictional point or maintainability of the suit is in question the requirement is to first resolve said legal points so as to avoid further exercise of lengthy trial which certainly would consume the time and energy of the court as well as of litigants.

Ch. Bashir Hussain Khalid for Appellant.

Nemo. for Respondent.

2021 C L C 2169

[Lahore]

Before Sultan Tanvir Ahmad, J

Messrs FUN INFORTAINMENT (PVT.) LIMITED/NEO TV through Executive Director----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and 3 others----Respondents

F.A.O. No.32274 of 2021, heard on 30th June, 2021.

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

----Ss.30-A& 29---Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, Cls. 3 & 4---Dissemination of false information---Admission of guilt---Imposition of fine---Scope---Appellant through an appeal under S. 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, assailed order passed by Pakistan Electronic Media Regulatory Authority (PEMRA) whereby a fine was imposed on the appellant---Validity---Appellant had already recognized its unintentional mistake and had accepted the responsibility of the circumstances---Appellant could not be allowed to re-open the matter and dispute the facts which had already been acknowledged during proceedings before the Authority or Council or Complaints---Fine imposed by the Authority was within parameters and limitation of law---Appeal was dismissed.

Dr. Shahid Masood v. Pakistan Media Regulatory Authority through its Chairman, Islamabad and others (F.A.O. No. 25-2017) ref.

Independent Media Corporation (Pvt.) Ltd. v. Pakistan Electronic Media Regulatory Authority through Chairman PLD 2017 Sindh 209 and M/s. Labbaik (Pvt.) Ltd. v. Pakistan Media Regulatory Authority through its Chairman, Islamabad and others" (F.A.O. No. 37-2017) rel.

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

----Ss.8 & 13---Meetings of the Authority, etc.---Delegation---Scope---Delegation is permissible under S.13 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, which authorizes the Authority to delegate the powers to the persons enlisted in the said section (including the Chairman or Members) to discharge the responsibilities and exercise the powers conferred by the Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 ref.

NEO TV/Messrs Fun Information Network (Pvt.) Ltd. v. PEMRA through Chairman and others PLD 2017 Isl. 48 rel.

(c) Administration of justice---

----Court can take a lenient view regarding person who admits his guilt and tenders apology but in case where the charges or allegations are also contested at the same time, then the delinquent loses sympathetic consideration.

H. Dr. Amjad Iqbal Bhatti v. Federation of Pakistan through Ministry of Health, Islamabad and 3 others PLD 2011 Kar. 268 rel.

Shan Saeed Ghuman for Petitioner.

Barrister Haris Azmat for Respondent.

2021 C L C 9

[Peshawar (Abbottabad Bench)]

Before Ijaz Anwar and Shakeel Ahmed, JJ

Col. (R) MUKHTAR AHMED USMANI----Petitioner

Versus

PROVINCIAL GOVERNMENT OF KHYBER PAKHTUNKHWA and others----Respondents

Writ Petition No.687-A of 2011, decided on 26th September, 2019.

(a) Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----S.12---Constitution of Pakistan, Art. 199---Civil Procedure Code (V of 1908), S.11---Lease agreement, cancellation of---Constitutional petition after dismissal of a suit---Res judicata, principle of---Applicability---Tenant at sufferance---Contention of petitioner was that he was entitled for renewal of lease in his favour---Validity---Petitioner prior to filing of constitutional petition had filed a suit which had been dismissed after full trial---Issues raised in the petition had already been decided in the said suit---Principle of res judicata was applicable to the proceedings of constitutional petition---Present petition was neither competent nor maintainable in circumstances---Petitioner had not mentioned in the contents of petition with regard to earlier suit which had been dismissed on merits---Constitutional jurisdiction of High Court was discretionary in nature---Lease in favour of petitioner had expired and his possession on the premises was without consent of respondents---Rent deposited on behalf of petitioner had been refunded by the respondents---Possession of petitioner was not better than a trespasser and he could be ejected at any time---Petitioner was not entitled to retain possession of suit property and he should deliver vacant possession to the respondents forthwith---Petitioner was a tenant at sufferance and in event of removal he would be entitled for compensation according to lease agreement---Constitutional petition being not maintainable was dismissed, in circumstances.

Hussain Bakhsh's Case PLD 1970 SC 1; Ghulam Rasool and 12 others v. Shana and 12 others 2001 MLD 661; Mirza Muhammad Yaqoob v. Chief Settlement Commission, Lahore and Syed Sadiq Hussain Zaidi PLD 1965 SC 254; Asif Jan Siddique v. Government of Sindh and others PLD 1983 SC 46; Principal King Edward Medical College Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Abdur Rashid v. Pakistan and others 1969 SCMR 141; Ch. Noor Hussain v. Ch. Allah Bakhsh and others, 1984 SCMR 446; Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781; Sheikh Liaqat Ali v. Riaz Ahmed C.P.L.A. No.1322 of 1999, decided on 17.11.1999; Kirpa Ram Brij Lal v. Municipal Committee Amritsar and another AIR 1929 Lah. 547; Harry Kempson Gray and another v. Bhagu Mian and others (1929) 57 Indian Appeals 105 PC; Gurudas Kundu Chowdhury and others v. Hamendra Kumar Roy and others AIR 1929 PC 300; Dawood Hercules Chemicals Limited v. Water and Power Development Authority 1991 CLC Note 269; Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad v. Mst. Ismat Qayyum Malik PLD 1994 Lah. 360; Ganga Dutt Murarka v. Kartik Chandra Das and others AIR 1961 SC 1067; Bhawanji Lakhamshi and others v. Himatlal Jamnadas Dani and others AIR 1972 SC 819; Morrison v. Jacobs (1945) 1 KB 577, Sundar Singh and others v. Ram Saran Das AIR 1933 Lah. 61; Ganga Ram v. Mt. Shib Devi (1898) 33 PR 1898, Pribhu Dial v. Ram Chand (1904) 5 PR 1904; Mian Akbdur Rashid v. Province of Punjab PLD 2003 Lah. 389; Shabnum Ashraf v. Muhammad M. Iqbal 2003 YLR 495 and Rure Khan v. Ghulam Muhammad AIR 1924 Lah. 643 rel.

(b) Words and Phrases---

----'Tenant at sufferance'---Meaning.

A person who enters on land by a lawful title and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from a tenant at will who is in possession with the landlord's consent.

Halsbury's Law of England, Fourth Edition, Reissue, 1994, Vol. 27(1) page 163, Para 176 rel.

Tahir Hussain Lughmani for Petitioner.

Sardar Muhammad Asif, Assistant A.G. for Respondents.

2021 C L C 28

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, J

CHAIRMAN PRIVATE (EDUCATION) NETWORK (PEN) MANSEHRA, through MD Mansehra----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Department and 4 others----Respondents

Writ Petition No.662-A of 2020, decided on 20th May, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Educational institutions---Lock down---Closure of educational institutions due to corona virus lock down---Said institution (petitioner) seeking compensation from the Provincial Government---Scope---Contention of petitioner was that educational institutions were suffering hardship and Provincial Government should compensate the schools---Validity---Private schools alone were not suffering due to the lockdown imposed by the Government---Business sectors of country had affected due to the current outbreak of virus---Government had imposed restrictions for the safety of public-at-large---High Court could not interfere in the policy matters of Government---No mala fide, favouritism and arbitrariness had been pointed out by the petitioner on behalf of Government while passing impugned directions---No right of petitioner had been violated due to impugned orders passed by the authorities---High Court under constitutional jurisdiction could annul an 'order' or a 'policy' framed by the Executive, if same was violative of 'Constitution', 'law' or was 'product of mala fide'---Petitioner had failed to point out infringement of any legal right, violation of the Constitution or mala fide on the part of Government while passing the impugned restrictions---Constitutional petition was dismissed in limine, in circumstances.

Asif Fasihuddin Khan Vardag v. The Government of Pakistan and others 2014 SCMR 676; 2012 SCMR 455; 2014 CLC Lah. 1766; 2014 SCMR 111 ref.

2021 C L C 47

[Peshawar]

Before Muhammad Naeem Anwar, J

FANOOS KHAN and 3 others----Appellants

Versus

ABDUL MUNAF and 2 others----Respondents

R.F.A. No.372-P of 2010, decided on 31st January 2020.

Civil Procedure Code (V of 1908)---

----S.114 & O. XLVII, R. 1---Review of a judgment---Scope---Suit was dismissed against which appeal was filed---Appellate Court dismissed the appeal against which review petition was moved---Contention of petitioners was that impugned judgment was not in accordance with law---Appellate Court accepted the review petition and suit was remanded---Validity---Pleas raised by the petitioners did not fall within the parameters of "review"---Review was permissible only when some mistake or error was apparent on the face of record---Point already raised and considered by the Court could not be re-agitated in review jurisdiction---Point which never remained the controversy could not for the first time be placed before the Court for reviewing the judgment or order---Petitioners were estopped by their own conduct when they had acquiesced by raising the very plea at proper time---One could not make a new case by invoking the review jurisdiction of the Court---Court could not sit as Court of appeal against his own judgment---Court below while hearing the review petition had reappraised the entire record as a Court of appeal and had travelled beyond the scope of "review"---Court below while passing the impugned order had committed illegality---Impugned order passed by the Court below was set aside and judgment and decree of the Trial Court were restored---Appeal was allowed, in circumstances.

Haji Muhammad Botta and others v. Member (Revenue) BOR and others PLD 2010 SC 1049; Mehmood Hussain Lark and others v. Muslim Commercial Bank Limited and others 2010 SCMR 1036; PLD 2004 SC 801; 2007 SCMR 755; PLD 1991 SC 905; 2003 MLD 02 and PLD 2005 Kar. 327 rel.

Abdul Sattar Khan for Appellants.

Muzamil Khan for Respondents.

2021 C L C 68

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD JAN and 22 others----Petitioners

Versus

ROSHAN GUL and 8 others----Respondents

Civil Revision Petition No.71-B of 2020, decided on 25th June, 2020.

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

----S.60---Limitation Act (IX of 1908), Art.158---Suit for redemption---Limitation---Laches, doctrine of---Applicability---Plaintiffs were mortgagors of suit property and they had statutory right of redemption---Possession of mortgagee over the property would remain as mortgagee and would not stand converted into possession as owners thereof---Any clog on redemption of the mortgage would be invalid being violative to law and equity---Once a mortgagee was always a mortgagee---Where disputed transaction was one of the mortgage and not the sale then refusal to get the property redeemed would become recurring wrong on the part of mortgagee for which principle of laches was not attracted---When matter was referable to the law of limitation then question of laches would loose significance---No period of limitation did run against the mortgagors---Mortgaged property could be redeemed by the mortgagor at any stage without mischief of law of limitation barring redemption after the passage of sixty years---Courts below had properly exercised the jurisdiction vested in them---Revision was dismissed in limine, in circumstances.

Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77; Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486 and Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below could not be interfered with unless same were perverse or arbitrary or based on misreading or non-reading of evidence---Findings on question of fact or law recorded by the Court of competent jurisdiction could not be interfered with by the High Court unless such findings suffered from controversial defects, illegality or material irregularity.

2021 C L C 81

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

MUKAMMAL SHAH----Petitioner

Versus

SECRETARY C&W and others----Respondents

C.R. No.316-M of 2018, decided on 17th September, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. (1), (2) & (2-B)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Temporary injunction, grant of---Ingredients---Trial Court accepted application for grant of temporary injunction against which appeal was dismissed---Defendants thereafter moved application for vacation of temporary injunction which was accepted and appeal against the said order was also dismissed---Validity---Plaintiff had admitted in his plaint that a thoroughfare existed on the spot---Said thoroughfare was not having a dead end near the property of plaintiff but had been leading to the area of another village and same was being used by inhabitants of said village---Defendants were using the said thoroughfare for access to their property---High Court observed that Project for construction of road on a thoroughfare was a project of public utility which was beneficial for all including the plaintiff---Substantial progress had been made in construction of the road---Construction work so conducted on the spot was of such a nature which could neither be reversed at this stage nor such an act was in anyone's interest---Balance of convenience was in favour of continuation and completion of project for the benefit of community---Loss apprehended to the plaintiff in the present case had already been caused and in case property was found to be in his ownership then plaintiff might be compensated adequately---Loss in the present case would not be irreparable, in circumstances---Earlier order for grant of temporary injunction might not be regarded as any findings having achieved finality---Civil Court while deciding an application under O.XXXIX, R.2-B of C.P.C. could not be deemed to have been bound by the earlier decision made on an application for temporary injunction---Courts below were justified in taking a different view in the present case---Decision on application for temporary injunction was based on tentative assessment of record and findings recorded therein might not be termed as definite and final of a Court of law---Changes might occurred in the situation and subject matter of a suit---Court of law could not be bound by a first order made on the application for grant of temporary injunction while deciding application under O.XXXIX, R.2-B of C.P.C.---Plaintiff might amend his plaint and claim compensation for the property which he had been claiming to be his ownership---If plaintiff so claimed then Civil Court would not hesitate in granting adequate compensation provided he had proved the area in dispute to be his ownership---Revision was dismissed, accordingly.

XEN PESCO (WAPDA) Manshera through Chairman PESCO v. Gas Masters CNG Filling Station, Manshera through Khalid Latif PLD 2005 Pesh. 132 rel.

Abdul Halim Khan for Petitioner.

Haq Nawaz, Asstt. A.G. and Shams-ul-Hadi for Respondents.

2021 C L C 114

[Peshawar]

Before Muhammad Naeem Anwar, J

Haji BAHADAR KHAN----Petitioner

Versus

HABIB AHMAD and others----Respondents

C.R. No.41-P of 2017, decided on 21st September, 2020.

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

----S.114, O.XLVII, R.1 & O.XXXIII, R.3---Review---Principles---Substituting of view---Scope---Pauper proceedings---Petitioner sought review of judgment and decree on the ground that decree-holder did not affix court fee before Trial Court---Validity---In review, Court was not to sit in appeal over its own order---Re-hearing of matter was impermissible in law---Review constituted an exception to the 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---Petitioner intended to seek presentation of his appeal as pauper and reversal of findings of Trial Court on the ground pertaining to earlier round of litigation, which had been properly discussed, appreciated and decided---Petitioner failed to point out any illegality, material irregularity or jurisdictional defect---Review petition was dismissed in circumstances.

Sajid Mehmood v. Muhammad Shafi 2008 SCMR 554; Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1997 SC 865 and Ali Ahmad v. Muhammad Iqbal 2009 SCMR 394 rel.

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

----O.XXXIII, Rr.3 & 5---Pauper---Determination---Old age and sickness---Scope---Ground of old age and sickness without complying with formalities provide in O.XXXIII, R.3, C.P.C., the plea of / request of treating as pauper cannot be entertained.

Khalid Mehmood's case 1998 SCMR 457 rel.

Abdur Rahim Jadoon for Petitioner.

Muhammad Javed Yousafzai for Respondents.

2021 C L C 255

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

COLLECTOR LAND ACQUISITION, HARIPUR and another---Appellants

Versus

Col. Sardar AHMAD YAR JANG DURRANI and another---Respondents

R.F.A. No. 130-A of 2017 with C.Ms. Nos. 263 and 264-A of 2017, decided on 9th March, 2020.

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

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Local commission, appointment of---Local commission had submitted report that acquired land had high potentiality and was suitable for business of food---Market value of suit property at the time of its acquisition had been determined by the local commission as Rs. 85,000/- per kanal---Average price of adjacent lands had upward trend in the price---Acquired property was a valuable chunk of land---High Court observed that word 'compensation' and not the word 'market value' has been used in the Land Acquisition Act, 1894 for payment of price of land to the affected landowners---Compensation of acquired land should not be less than the market value---Suit property had been acquired against the will of landowner and its compensation should not be less than market value prevailing at the time of acquisition---Compensation should always be that amount on which a seller was ready to sell his land and same should not be much or less than market value---Referee Judge had enhanced compensation as Rs. 20,000/- per kanal in view of one year average price by keeping aside the report of local commission---Trial Court had erred in holding that local commission had assessed the market value of property between Rs. 2 million to Rs. 5.5 million per kanal which was the rate of land twenty five years after acquisition---Referee Judge had failed to comprehend the report of local commission wherein besides present rates of land prevailing at the time of acquisition had also been mentioned---Parties had failed to shatter the opinion of local commission which was according to on-spot position of land in question---Market price of acquired land as Rs. 85,000/- per kanal as suggested by the local commission was justified and without any exception---Claim of landlord for fixing the rate of compensation as Rs. 500,000/- per kanal was without any backing---Compensation of acquired land was enhanced to Rs. 85,000/- per kanal and impugned judgment was modified to that extent---Appeal was disposed of accordingly.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2017 SC 719 rel.

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

----S. 18---Market value of acquired land---Determination---"Compensation" and "market value"---Distinction.

In the Land Acquisition Act, 1894, for the payment of price of land to affected landowners, the word "COMPENSATION" is used and not the word "MARKET VALUE" however, compensation should not be less than the market value. There is much difference between the terms 'compensation' and 'market value'. The market value is a highest price for which a property is exchanged on the date of valuation between a willing buyer and a willing seller in an arm's-length transaction wherein the parties acted knowledgeably, prudently, and without compulsion. Whereas, the term 'compensation' though used in various sections of the Land Acquisition Act, 1894 but has not been defined therein. But, as per dictionary meaning the compensation means "something, typically money, awarded to someone in recognition of loss, suffering, or injury" or "money that is paid to someone in exchange for something that has been lost or damaged or for some problem". As the property was acquired against the will of owner, therefore, in order to eliminate the sense of deprivation and discrimination, the affected landlord is compensated with the amount not less than market value prevailing at the time of acquisition. It would be unjust to the landowner if the amount of compensation is less and similarly it would be unjust to the public interest, if he is awarded more and it is based on the principle 'quid pro quo'.

Therefore, in order to maintain equilibrium between individual interest of an affected landowner and general interest of public at large, the compensation should always be that amount on which a seller can willingly sell his land and that is not much or less than the market value.

Sardar Muhammad Asif, A.A.G. for Appellants.

Muhammad Saleem Awan for Respondent No.1.

2021 C L C 282

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

SHER BAHADAR KHAN---Petitioner

Versus

SHARIF ULLAH and another---Respondents

Civil Revision No. 531 of 2011, decided on 19th December, 2019.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31 & 2(d)---Sale agreement---Suit for possession through pre-emption---Maintainability---Trial Court decreed the suit but Appellate Court dismissed the same on the ground that sale transaction was not complete at the time of filing of suit---Validity---Right of pre-emption was a feeble right which would extinguish the moment a person having such right had not performed Talb-i-Muwathibat in the sitting or meeting in which he had come to know of the sale declaring his intention to exercise right of pre-emption---If pre-emptor had first made inquiry with regard to completion of transaction of sale and thereafter exercised his right of pre-emption then such delay in performance of Talb-i-Muwathibat till completion of such inquiry would defeat his right of pre-emption---Ingredient of sale for the purpose of Khyber Pakhtunkhwa Pre-emption Act, 1987, would be transfer of possession by the vendor in exchange of consideration---Once consideration had been received then sale would be complete for exercising right of pre-emption---Vendee, in the present case, had purchased suit property through an unregistered agreement to sell and vendor had received the consideration amount---Defendant had not raised objection in the written statement that disputed transaction was not a complete sale on the day of execution of sale agreement---Transaction, in the present case, was a complete sale, in circumstances---Once factual plea that sale in question was not a complete sale was not raised in the written statement then defendant could not raise such plea at latter stage---Findings of Appellate Court that transaction between the parties was not a complete sale were not tenable and same were set aside---Judgment and decree passed by Trial Court were restored---Pre-emptor was directed to deposit the remaining amount of sale consideration within thirty days failing which suit would be deemed to have been dismissed---Revision was allowed, accordingly.

Abdul Nasir v. Haji Said Akbar 2010 SCMR 1770 distinguished.

Muhammad Nazeef Khan v. Gulbat Khan and others 2012 SCMR 235 and Muhammad Inayat v. Fateh Muhammad and others PLD 2004 SC 778 rel.

Abdul Halim Khan for Petitioner.

Aziz-ur-Rehman for Respondents.

2021 C L C 303

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

GULZAR MUHAMMAD and others---Petitioners

Versus

SARDAR MUHAMMAD and others---Respondents

Civil Revision No. 37-P of 2009 with C.Ms. Nos. 1498 of 2017 and 381 of 2019, decided on 13th November, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration, permanent injunction and possession---Limitation---Inheritance---Relinquishment deed---Proof of---Contention of plaintiffs was that they were entitled for grant of possession of suit property to the extent of their entitlement whereas defendants contended that plaintiffs had relinquished their share against consideration---Suit was partially decreed by the Trial Court but Appellate Court dismissed the same---Validity---Domestic partition of suit property between the brothers and relinquishment of his share by one the plaintiffs for a consideration had been established through oral as well as documentary evidence---Non-exhibition of relinquishment deed would make no difference in the present case---Payment of consideration had been made to the plaintiff by his brother who had relinquished his share from suit land---Findings of Appellate Court with regard to relinquishment of share in suit property by one of the plaintiffs were based on proper appreciation of evidence---Judgments of Courts below were silent with regard to entitlement of female plaintiffs---Relinquishment on behalf of one of the plaintiffs of his share in the legacy of predecessor did not affect the legal shares of female plaintiffs---Female plaintiffs could not be deprived of their rights in the legacy of their predecessor as they had not relinquished their shares or received consideration---Question of limitation did not come in the way of female plaintiffs as they had been deprived of their shares in the inheritance---Possession of co-owners i.e. brothers should be deemed to be joint possession of the parties---Female plaintiffs had recurring cause of action to challenge wrong entries in the revenue record---Impugned judgments and decrees passed by the Courts below were modified and preliminary decree was passed in favour of female plaintiffs---Revision was disposed of accordingly.

Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others 2007 SCMR 969; Muhammad Hassan Khawaja Khalil-ur-Rehman's case 2007 SCMR 576; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476 rel.

Muhammad Amin Khan for Petitioners.

Farman Ali Khan for Respondents.

2021 C L C 348

[Peshawar]

Before Ahmad Ali, J

AKBAR ALI and another----Petitioners

Versus

KHAIR MOHAMMAD and 37 others----Respondents

Civil Revision No.499 of 2008, decided on 7th October, 2019.

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

----Arts.72, 117 & 120--- Document, contents of--- Proof---Principles---Absence of duress, protest, lack of misunderstanding or want of comprehension in itself is not the real proof of true understanding mind of the executant--- Intent and purpose of law is that evidence should be brought on record to prove that document was read over and explained to the executant and it is incumbent upon beneficiary of transaction to bring on record all available evidence to show that onus of proof placed upon him was fully discharged as required by law.

Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 and Mst. Nishata v. Muslim Khan alias Musali and others NLR 2011 Civil 507 rel.

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

----Arts. 72 & 75---Document, admissibility of---Stage of objection---Even if no objection was raised at the time of exhibition of documentsbut as a law point the same could be raised at any stage of the case.

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

----Ss.17 & 49--- Muslim Family Laws Ordinance (VIII of 1961), S.5--- Transfer of Property Act (IV of 1882), S.54---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction--- Document, non-registration of--- Unregistered Nikah Nama--- Plaintiffs/petitioners claimed to be owners in suit property but the stance was controverted by defendants/respondents on the basis of unregistered documents--- Both the Courts below concurrently dismissed suit and appeal filed by plaintiffs/petitioners--- Validity--- Non-registration invalidated transaction altogether and such document could not be looked at in view of the provisions of S.49 of Registration Act, 1908--- Un-registered agreement did not confer any right under S.54 of Transfer of Property Act, 1882, to property--- Registration of marriage per Nikah Nama fully in line with Muslim Family Laws Ordinance, 1961, was a legal and authentic document and any property transferred through such document did not need any further registration--- Neither there was any Nikah Nama nor the property was mentioned in Nikah Nama--- Even dower deed executed much after marriage was not registered as required by Registration Act, 1908--- Unregistered dower deed did not confer any right to defendant / respondent--- High Court set aside concurrent judgments and decrees passed by two Courts below as both the Courts did not correctly appreciate evidence and regarding sale and dower deeds and decreed the suit in favour of plaintiffs/petitioners--- Revision was allowed, in circumstances.

Ch. Liaqat Ali v. Mirza Abdul Aziz and 3 others 2001 CLC 1502; Abdullah Bhatti and another v. Muhammad Din PLD 1964 SC 106; Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367; Muslim Commercial Bank Ltd. v. Abdul Ghaffar and 2 others 2013 YLR 344; Bakhtiar v. Nasrullah and 12 others, 2015 CLC 385; Manzoor Ahmad v. Haji Hashmat Ali through Legal Heirs 2000 CLC 419; Umar Bakhsh v. Mst. Zamrut Jan and 9 others PLD 1973 Pesh. 63; the case titled Mst. Hussana and others v. Mst. Ghufrania and others 2003 YLR 250 and Wali Muhammad Khan another v. Mst. Amina and others 2018 SCMR 2080 rel.

Muhammad Hayat Khan for Petitioner.

Obaid Akmal and Bilal-ud-Din Khattak for Respondents.

2021 C L C 374

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Ibrahim Khan, JJ

NOOR UL SAHAR and another----Petitioners

Versus

TAHIR NAQASH KHAN KHATTAK and another----Respondents

Review Petition No.247-P and W.P. No.2128-P of 2019, decided on 8th July, 2020.

Family Courts Act (XXXV of 1964)---

----Ss.5, Sched. & 17-A---Suit for recovery of maintenance allowance---Interim maintenance, fixation of---Interim maintenance for minor was fixed whereas maintenance for wife was refused---Validity---Marriage between the spouses did subsist and husband due to family constraints was unable to take his wife and minor to his home---Wife and minor were entitled for interim maintenance under the law till the disposal of main suit---Scope and theme of S.17-A of Family Courts Act, 1964, was to safeguard the welfare of wife and bound down the husband to perform his marital as well as parental obligations---If husband failed to pay interim maintenance then his defence should be struck off---Interim maintenance determined by the Family Court for the minor was insufficient---Wife was still in the wedlock of husband who was bound to maintain her---Husband had not provided any maintenance for his wife and minor---Interim maintenance of minor was enhanced whereas interim maintenance for wife was determined accordingly---Husband was directed to pay interim maintenance till the disposal of main suit---Constitutional petition was allowed, in circumstances.

Waseem-ud-Din for Petitioner No.1 along with Petitioner No.1.

Amanullah for Respondent along with Respondent.

2021 C L C 383

[Peshawar]

Before Muhammad Naeem Anwar, J

FAZAL DAD and another----Petitioners

Versus

ALLAH DAD and 20 others----Respondents

Civil Revision No.394-P of 2012, decided on 9th March, 2020.

Specific Relief Act (I of 1877)---

----S.42---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for declaration---Inheritance---Burden of proof---Mutation---Scope---Contention of plaintiffs was that they were owners of suit property left by their mother and inheritance mutation in favour of defendants was based on fraud---Suit was dismissed concurrently---Validity---Plaintiffs were bound to prove that their mother was alive at the time of death of her predecessor-in-interest---Death Register was not in proper order and there were blank papers which could be filled in as per desire and need of any person at any time---Plaintiffs should have produced concrete, direct and cogent evidence to brush aside longstanding entries in the revenue record---Plaintiffs were required to prove that inheritance mutation was wrong and against fact---Simple narration alleging mutation of inheritance against fact was not sufficient enough to consider it otherwise---Attestation of mutation was meant for fiscal purpose and to keep the record uptodate---Plaintiffs had failed to substantiate their version with regard to specific date of death of their mother---Plaintiffs had been non-suited for insufficient evidence---No illegality, irregularity or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Mian Muhammad Amin and others v. Mst. Khursheed Begum alias Naseem Begum through LRS PLD 2006 Lah. 371; Muhammad Quraish Khan and others v. Roohul Amin 1996 MLD 1156; Muhammad Yaqoob and others v. Muhammad Ibrahim and others 2002 CLC 819 and Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50 rel.

Amjad Zia for Petitioner.

Javed A. Khan for Respondents Nos.4 to 20.

2021 C L C 408

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

Haji MOHAMMAD RIAZ and another----Petitioners

Versus

KHALID MEHMOOD ABBASI and others----Respondents

Civil Revision No.02-A of 2014, decided on 10th September, 2020.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---"Graveyard", private or public---Determining factors---Plaintiffs claimed that land in question was graveyard and revenue entries in the name of defendants were wrong---Validity---Rules to determine as to whether a graveyard was a "public" or a "private" one were (i) even though there was no direct evidence of dedication to public, it could be presumed to be a public graveyard by immemorial user i.e. where the corpses of the members of Muslim community had been buried in a particular graveyard for a large number of years without any objection from the owners. The fact that owner permitted such burials did not make any difference at all; (ii) if graveyard was a "private" or a "family graveyard" then it should contain graves of only the founder, members of his family or his descendents and no others. Once even in a family graveyard members of public were allowed to bury their dead, the private graveyard would shed its character and became public graveyard; (iii) in order to prove that graveyard was public dedication it must be shown by multiplying instances of the character, nature and extent of buries form time to time---In other words there should be evidence to show that a large number of members of Muslim community had buried their corpses from time to time in the graveyard. Once such was found, then Court was to presume that graveyard was a public one; and (iv) where burial ground was mentioned as public graveyard in either a revenue record or historic papers that would be conclusive proof of a public character of a graveyard---Sale or purchase if any made in suit land either through mutation or registered deed was illegal, without lawful authority and without jurisdiction and the same was liable to be cancelled---High Court directed revenue officials to rectify revenue record and concurrent judgments and decrees passed by two Courts below were set aside---Revision was allowed accordingly.

Ulfat Butt v. Muhammad Arif and others 2000 YLR 2753 and Sheo Raj Chamar and another v. Mudeer Khan and others AIR 1934 Allahabad 868 rel.

Muhammad Ayub Awan for Petitioner.

Sajjad Ahmad Abbasi for Respondent.

2021 C L C 456

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

KHALIL ULLAH alias Khalil----Petitioner

Versus

AWAS KHAN and another---Respondents

Civil Revision Petition No.09-B of 2019, decided on 10th October, 2019.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Pre-emption, right of---Talb-e-Mawathibat---Scope and proof ---Departure from pleadings not permissible---Record showed that plaintiff, in his examination-in-chief had stated the date of performance of Talb-e-Mawathibat, which was in negation of his stance in the plaint---Plaintiff also testified that informer gained the knowledge of the disputed sale mutation on the day of its attestation, who appraised him on the same day of the alleged sale transaction---If the evidence was seen in juxtaposition with the plaint, it could be noticed that the sale mutation under pre-emption had been attested 8 days prior to the date mentioned by the plaintiff---Lapse of eight days in performing Talb-e-Mawathibat was fatal to right of pre-emption and the claim of the plaintiff/petitioner also failed on said account---Plaintiff failed to establish his case by producing truthful witnesses and there were strong contradictions between the stance of the plaintiff and his witnesses---High Court observed that, even if it was admitted that the plaintiff performed and proved Talb-e-Ishhad, non-proving of primary Talb i.e. Talb-e-Mawathibat was sufficient to disbelieve the version of the plaintiff as performance and proving of all Talbs were essential in order to succeed in such suit---No illegality or infirmity was found in the judgment and decree passed by both the Courts below---Revision petition was dismissed in limine in circumstances.

Muhammad Anwar v. Safeer Ahmed and 5 others 2017 SCMR 404 ref.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Status of the attorney filing suit on behalf of the plaintiff---Proprieties---Informer, in the present case, had categorically admitted during cross-examination that he had filed the suit on behalf of the plaintiff/petitioner which declared him having no preferential right of pre-emption over suit property---Informer was pursuing the case in the status of attorney for plaintiff, said ground, too, was incurable on the part of plaintiff and badly dented upon his case.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Fulfillment of all the three Talbs---Scope---When the plaintiff had failed to prove performance of Talbs as per requirement of law enunciated under S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, no decree for possession on the basis of pre-emption, even if the pre-emptor enjoyed superior right, could be passed in his favour.

Mst. Sahib Jamala v. Fazal Subhan and 11 others PLD 2005 SC 977 ref.

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

----Art.71---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S.13---Talb-e-Mawathibat, proof of--- Where a fact was required to be proved through oral evidence, such evidence must be direct and of the primary source--- Foundation of such direct evidence in the case about the proof of the fact of Talb-e-Mawathibat was a person who had made the Talb---If the pre-emptor in his examination-in-chief neither stated nor explained about the facts regarding Talb-e-Mawathibat, that are date, month and year then statement of such facts by his witnesses could not be considered trustworthy and acceptable.

Humayan Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others 2007 CLC 819 and Haji Muhammad Usman through his legal heirs v. Muhammad Paryal 1987 CLC 552 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts could not be upset by the High Court in its revisional jurisdiction in a casual manner---Such findings could not be set at naught, unless it was proved that the same were either perverse or erroneous---Finding on question of fact or law though erroneous could be recorded by the Court of competent jurisdiction, and could not be interfered by the High Court in exercise of its revisional jurisdiction under S.115, C.P.C., unless such findings suffered from illegality or material irregularity and caused serious miscarriage of justice.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Muhammad Usman Khan for Petitioner.

Nemo for Respondents.

2021 C L C 468

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

The CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, LAHORE and 2 others----Petitioners

Versus

SALEEM KHAN and 2 others----Respondents

Civil Revision No.647-A of 2009, decided on 5th March, 2020.

Evacuee Trust Properties (Management and Disposal) Act (XII of 1975)---

----S.14---Auction of evacuee property---Auction amount, deposit of---Cancellation of auction---Jurisdiction of Civil Court---Scope---Trust Property Board (Board) made offer for auction of suit property to the plaintiffs who accepted the same and deposited one fourth of auction amount but Board cancelled the auction proceedings---Contention of plaintiffs was that auction could not be cancelled after deposit of auction amount---Suit was dismissed by the Trial Court on ground of bar on jurisdiction of Civil Court but Appellate Court decreed the same---Validity---Plaintiffs had alleged mala fide on the part of the Board for cancelling the auction---No cogent evidence had been produced to establish that cancellation of auction by the Board was tainted with mala fide---Plaintiffs, after accepting offer for auction had become the highest bidders---Mere acceptance of offer and deposit of one fourth of auction amount would not vest any right in favour of plaintiffs unless and until auction had been approved by the Competent Authority---Jurisdiction of Civil Court was barred in the matters wherein Federal Government or any officer appointed under Evacuee Trust Properties (Management and Disposal) Act (XII of 1975) was empowered to determine the same---Findings rendered by the Appellate Court were based on mere presumption which could not sustain in the eyes of law---Trial Court had rightly concluded that Civil Court had no jurisdiction in the matter---Impugned judgment and decree passed by Appellate Court were set aside and that of Trial Court were restored---Revision was allowed, in circumstances.

Noor Muhammad v. Chief Engineer, Works and Services Department, N.-W.F.P. Peshawar and 3 others 2007 SCMR 1572; Afzal Maqsood Butt v. Banking Court No. II Lahore and 8 others PLD 2005 SC 470; Province of Punjab and others v. Munawar Hussain 2013 SCMR 1611; Mumtaz Ahmad Chadhar v. Rana Nasir Ali and 3 others 2005 SCMR 263; Muhammad Hayat v. Director General, Lahore Development Authority and others 2016 MLD Lah. 1287 and Mehmood Medical Store through proprietors v. Services Hospital Lahore through Medical Superintendent and 3 others 2012 YLR 174 rel.

Rana Muhammad Ishaq for Petitioner.

Muhammad Faisal Saeed for Respondent.

2021 C L C 483

[Peshawar]

Before Muhammad Naeem Anwar, J

MUHAMMAD ISHAQ----Petitioner

Versus

SAHIB ZADA and 9 others----Respondents

Civil Revision No.376-P of 2015, decided on 8th May, 2020.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Contradictory statements---Non-production of postman---Failure to annex documents with the revision petition---Scope---Petitioner assailed the concurrent dismissal of his suit for pre-emption---Petitioner's witness had stated that it was winter season when talb-i-muwathibat was made whereas petitioner had deposed that it was summer season---Petitioner's witness had further stated that he had signed only one notice of talb-i-ishhad whereas there were total eight vendees---Findings of the Trial Court revealed that both the petitioner and respondents had got equal rights in the suit property and the said findings were not challenged by either of them---Photocopies of notices were not appended with the petition, which was one of the requirements of first proviso to S.115, C.P.C.---Record was silent about the acknowledgement-due cards as nothing to this effect was said or placed on file---Revision petition was dismissed, in circumstances.

2015 MLD 18; 2015 YLR 26; PLD 2003 Pesh. 179; Allah Bakhas and another v. Falak Sher 2004 SCMR 1580; 2004 YLR 115; 2016 YLR 2047; 2015 SCMR 311; 2005 SCMR 1228; 2016 CLC 1651; 2015 YLR 112; 2017 CLC Note 110; 2014 CLC 744; PLD 2011 Pesh. 116; 2011 SCMR 762; 2005 SCMR 1458; 2005 SCMR 1231; 2017 CLC 923 and 2007 SCMR 1076 ref.

Ghafoor Khan (deceased) through LRs. v. Israr Ahmed 2011 SCMR 1545 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Notice of talb-i-ishhad---Purpose---Mere sending of notice of talb-i-ishhad is not sufficient and the vendees must have been apprised about the intention of pre-emptor.

Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Notice of talb-i-ishhad---Scope---Intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt---To say that mere "sending of notice" is enough, would make the expression "acknowledgement due" redundant---Service of the addressee, as prescribed in law, therefore, is imperative---If the acknowledgement-due card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted.

Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 ref.

Jawad Khan for Petitioners.

Jehanzeb Khalil for Respondents.

2021 C L C 506

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

ABDUR REHMAN and others----Petitioners

Versus

AYUB KHAN and others----Respondents

Civil Revision No.613-P of 2007, decided on 23rd October, 2019.

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

----S.52---Suit for declaration and injunction---Record of rights, entries in--- Presumption--- Plaintiffs/petitioners claimed to be owners of suit property and had relied upon entries in Wajib-ul-Arz (record of rights)---Suit was decreed by Trial Court in favour of plaintiffs/petitioners but Lower Appellate Court reversed the findings of Trial Court and dismissed the suit---Validity---Strong presumption of correctness was attached to entries in Wajib-ul-Arz under S.52 of Khyber Pakhtunkhwa Land Revenue Act, 1967 and the same could be relied upon---Property in dispute was inherited property---Defendants/respondents claimed that it was exclusively owned by their predecessor-in-interest but they could not produce any evidence as to how their predecessor-in-interest became owner of property in dispute---Plaintiffs/petitioners were successful in proving that property in dispute was running jointly and the same had been an inherited property between parties---Entries in Wajib-ul-Arz added vigor in favour of plaintiffs/petitioners and it was sufficient to shift burden to defendants/respondents to prove that it was their predecessor-in-interest who had acquired the property---Nowhere it was asserted that predecessor-in-interest of defendants/respondents had ever purchased suit property from other co-owners or anyone else---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court--- Revision was allowed, in circumstances.

Noor Salam v. Gul Badshah PLD 2002 SC 622; Haji Oudrat Ali v. Government of N.W.F.P. through Secretary Law Department Peshawar 1993 SCMR 381; Allah Wasaya and others v. Atta Muhammad as 2007 SCMR 1850 and Ayyub v. Noor Ahmad 2004 SCMR 791 ref.

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

----O.I, R.10---Non-joinder of parties---Effect---No person can be non-suited merely because of non-joinder---Non-joinder is potentially lethal in those cases where in case of grant of decree a person has been deprived from some rights or is likely to be deprived there from.

Mst. Jannat Bibi v. Saras Khan 2011 SCMR 1460; Chaudhry Muhammad Munir v. Election Tribunal Mandi Bahauddin 2009 SCMR 1368 and Anoud Power Generation Limited v. Federation of Pakistan PLD 2001 SC 340 rel.

Muhammad Amin Khan for Petitioners.

Shamsher Ali Khan for Respondents.

2021 C L C 637

[Peshawar]

Before Muhammad Naeem Anwar, J

JAMSHED----Petitioner

Versus

NOOR HAYAT and 2 others----Respondents

Writ Petition No.6743-P of 2019, decided on 22nd June, 2020.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Superior right of pre-emptor---Scope---Plaintiff claimed superior right of pre-emption being owner of the property contiguous to suit-property---Contention of the petitioner/plaintiff was that he had produced documentary evidence (extract of jamabandi/record-of-rights etc. ) to prove his claim ---Held, that all Khasra numbers mentioned/incorporated in the extract ( of jamabandi produced by the plaintiff) pertained to "Shamilat Akazai" and he had not produced the list of " proprietary body " /" Fihrist-i-Malikan " which could determine the status of petitioner as to whether he was original owner (Asal Malik) or Malik-e-Qabza---Mere placing on record the extract from jamabandi could not ipso facto be a conclusive proof of plaintiff's ownership in the "Shamilat", thus said extracts of jamabandi were not helpful to him ---Even " Aks Shajra kishtwar " produced by the plaintiff was without any proof that in which Khasra he was the owner, so the same had also not contributed any premium to him---Plaintiff had alleged to become owner of property contiguous to the suit-property by virtue of a Iqrarnama but he had not produced marginal witnesses and vendor of the said Iqrarnama ---Record showed petitioner placed his documents on record through his solitary statement which (act) was objected by the defendant so the plaintiff was required, under the circumstances, to establish his case through well-founded and credible evidence---Plaintiff could not prove his preferential right of pre-emption---No illegality or infirmity was found in the impugned decrees and judgments passed by both the Courts below---Revision petition was dismissed in limine, in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Talb-e-Muwathibat---Scope and proof---Contradiction/improvement in the evidence adduced by the witnesses---Held, that both the informer and plaintiff , while adducing their evidence, added that another person was also present at the time of making Talb-e-Muwathibat; and said person/witness also deposed the same in his own statement wheras said fact was neither mentioned in the notice of Talb-e-Ishhad nor in the plaint---Said witnesses had also contradicted with regard to the specific place (whether the veranda or the room of the petitioner's house) where the Talb-e-Muwathibat was allegedly made---Witnesses , in the present case, were not truthful which was the mandate of law, thus no Talb-e-Muwathibat was made by the petitioner---Suit was rightly dismissed.

Qasim Khan v. Gul Nawaz 2014 CLC 1740 ref.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Talb-e-Muwathibat---Scope---Pre-emptor was to prefer his claim of pre-emption the moment he was appraised of the sale being concluded; and this was necessary as any delay could invalidate such right---Right of pre-emption was but a feeble right---High Court observed that the Messenger of Allah (Peace Be Upon Him) had said that the right of Shuf'ah (pre-emption) was established in the person who preferred his claim without delay.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-e-Muwathibat made in presence of single person at a gathering (majlis)---Legality---Talb-e-Muwathibat could validly be made in presence of "single" person ---Neither Islamic Law nor the Legislature had intended that the Talb-e-Muwathibat should have been made in presence of more than one person as the gathering, meeting, majlis or sitting could be of only two persons i.e. the pre-emptor and the informer ---Plaintiff, in the present case, had averred in the plaint that he made Talb-e-Muwathibat in the presence of the informer alone whereas in his statement he introduced yet another person/witness, which was against the pleading, as such the same was not in consonance with law on the said subject---Suit was rightly dismissed.

(e) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Talb-e-Ishhad---Scope and proof---When the defendant had categorically stated that no Talb-e-Ishhad was made, then the plaintiff was legally required to prove that not only the notice ( of Talb-e-Ishhad ) was scribed but the same was served upon the respondent/vendee also---Postman was, admittedly, not produced in the present case and record clerk post office was produced who adduced that neither he booked the registered letter nor delivered the same---Another witness produced by the plaintiff as the record keeper stated in his evidence that he was appointed as peon in the post office who neither received registered letter/notice nor delivered the same---"Acknowledgment Due" card, placed on file, bore a signature on its overleaf, however, the document/sale-deed, by virtue of which the property was purchased by the respondent/vendee, bore his thumb-impression---Special attorney of respondent got the sale-deed exhibited in his evidence but regarding signature and thumb-impression no question was put to him (special attorney)---Suit was rightly dismissed.

Sultan v. Noor Asghar 2020 SCMR 682; Basharat Ali Khan v. Muhammad Akbar 2013 SCMR 307 and Allah Ditta through legal heirs v. Muhammad Anar 2013 SCMR 866 ref.

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

----S.115---Revisional jurisdiction of the High Court---Scope---Concurrent findings of facts could not be set at naught by the High Court while exercising the powers under S.115, Civil Procedure Code, 1908 unless the findings were perverse, against the law or reflected from the jurisdictional error .

Noor Muhammad and others v. Mst Azmat Bibi 2012 SCMR 1373 ref.

Mazullah Khan Barkandi for Petitioner.

2021 C L C 650

[Peshawar]

Before Muhammad Naeem Anwar, J

Mian LATIF SHAH----Petitioner

Versus

MUNIR KHAN and another----Respondents

Civil Revision No.355-P of 2012, decided on 22nd June, 2020.

(a) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----Ss.2(d) & 13---Suit for pre-emption for gift transaction/mutation---Plaintiff/petitioner sought declaration that the mutation-in-question be declared as 'sale' contending that respondents/defendants purchased the suit-property but in order to defeat his right of pre-emption he had shown the mutation-in-question as gift/'Hiba' instead of sale ---Held, that S.2(d) of Khyber Pakhtunkhwa Pre-emption, 1987, stipulated that 'Hiba-bil-iwaz' and 'Hiba-ba-shartul-iwaz' were pre-emptable ---Mutation in question reflected that respondents were to hand over the possession of their property to the donor and in lieu thereof he (donor) was to transfer the right of ownership of his property to them (respondents)---Said transaction was not denied by the respondents rather they had not only given the details of transaction-in-question in their written-statement but also had exhibited "Iqrar nama" in their documentary evidence---By considering transaction-in-question with the pre-requisites/conditions of Hiba-basharat-alawaz, undoubtedly , there was transfer of property, thus, the transaction-in-question was a Hiba-basharat-al-awaz and the same was pre-emptable--- High Court modified the incorrect findings of Appellate Court (that mutation-in-question was not pre-emptable).

(b) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S.13---Suit for pre-emption---Talb-i-Muwathibat---Scope and proof---Contents of the plaint showed that the plaintiff had alleged specific date, time and place ( his house ) when he made Talb-i-Muwathibat in the presence of witnesses on revelation of the informer---Informer adduced in his evidence that he was at his own residence when he came to know about disputed transaction deposing the same time and then he went to house of the petitioner to inform him which meant that at exactly the alleged time the petitioner was not informed and Talb-i-Muwathibat was not performed in the mode and manner as alleged by the petitioner/plaintiff---Slightest delay in making Talb-i-Muwathibat could not be ignored---Petitioner failed to make out his case for interference---Revision was dismissed, in circumstances.

Haji Muhammad Saleem v. Khuda Bakash case PLD 2003 SC 315 and Mian Pir Muhammad and another v. Faqir Muhammad Through legal Heirs PLD 2007 SC 302 ref.

(c) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S.13---Suit for pre-emption---Talb-i-Ishhad---Scope and proof---Postman deposed that notice of Talb-i-Ishhad was not served upon the vendee/respondent ---Contradictions were found in the statements of marginal witnesses of notices as one witness deposed in cross-examination that after scribing of notices, they (witnesses) dispersed whereas other witness stated in cross-examination that after scribing the notices they proceeded to their village in the same vehicle, as such the witnesses were not truthful as required under S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Petitioner failed to make out his case for interference--- Revision was dismissed, in circumstances.

2011 SCMR 1545 ref.

(d) Islamic law---

----Gift---Hiba-ba-shartul-iwaz---Scope---' Hiba ' with a condition for something in return was called Hiba-ba-shartul-iwaz, in which the donee did not pay the consideration voluntary, but it was paid as a condition precedent for the gift---Gift and 'iwaz' went hand in hand and not one before the other---Payment of consideration was a prior condition (shart) for the gift---Subsequent gift by donee to donor, therefore, was the condition precedent for the first gift and the same (subsequent gift) was not consideration of the first gift---In a Hiba-ba-shartul-iwaz , the original gift was a pure gift at its inception and the payment of 'iwaz' was also an independent gift---Hiba-ba-shartul-iwaz was nothing but a set of two independent gifts in which the second gift was a condition precedent for the first.

(e) Islamic law---

----Hiba-ba-shartul-iwaz---Legal incidents of Hiba-ba-shartul-iwaz listed.

i. In Hiba-bill-iwaz, the consideration is paid by donee voluntarily, whereas in Hiba-ba-Shartul-iwaz, its payment is a condition precedent.

ii. In Hiba- bil-iwaz the consideration is at the will of donee but in Hiba-ba-shartul- iwaz the value and kinds of consideration is at the discretion of the donor.

iii. Hibabil-Iwaz is not a Hiba; it is either sale or exchange whereas Hiba-ba-shartul-iwaz is treated as Hiba.

iv. Doctrine of Musha is not applicable to Hiba-billiwaz whereas this doctrine is applicable to Hiba-bashartul-Iwaz.

v. Since Hiba-bil-iwaz is not gift, it is either sale or exchange, therefore it must be in writing and registered, whereas in Hiba-ba-Shartul-iwaz writing and registration is neither necessary nor sufficient.

vi. In Hiba- bil-Iwaz, the delivery of possession is not necessary whereas it is necessary in Hiba-ba-Shartul-iwaz.

vii. The Hiba-bil-Iwaz becomes irrevocable as soon as made, whereas Hiba-ba-Shaatul-iwaz is revocable and becomes irrevocable only after the payment of iwaz by the donee. [p.654] C

Zia-ur-Rehman for Petitioner.

Nemo. for Respondent.

2021 C L C 678

[Peshawar]

Before Muhammad Naeem Anwar, J

MUHAMMAD ALI----Petitioner

Versus

ATLAS KHAN and 2 others ----Respondents

Writ Petition No.3199-P of 2019, decided on 1st October, 2020.

(a) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Eviction of tenant---Default in payment of monthly rent---Non-compliance of order by the tenant to pay tentative monthly rent---Effect---Outstanding rent---Jurisdiction of the Rent Controller---Scope---Petitioner/tenant contended that Rent Controller had no jurisdiction to adjudicate the recovery of outstanding rent against him and the landlord/respondent had to approach the Civil Court---Held, that the Rent Controller had passed the order under S.13(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959, directing the petitioner/tenant to deposit the tentative rent (before the 14th day of each month), in the presence of both the parties and the petitioner/tenant assailed the said order invoking revisional jurisdiction but the same was dismissed---Record revealed that the petitioner/tenant did not comply with the order (to deposit the monthly rent each month during the pendency of the case) and the Rent Controller, after almost one and half year of passing of said order, struck-off the defence of the petitioner/tenant and directed him to vacate the demised property---Petitioner/tenant, in his written-reply, had not only admitted the relationship of the landlord and tenant existed between them, but he had also not denied/disputed non-payment of rent for the last decade or so---Petitioner/tenant was estopped to challenge eviction order against him due to non-compliance of deposit of monthly rent in terms of penal clause of S.13(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959---Jurisdiction of Rent Controller could not be curtailed only to the extent of passing an ejectment order--- Rent Controller was vested with powers not only to determine the relationship of tenancy between the parties, but he had got jurisdiction to order the recovery of outstanding rent against the tenant---No illegality or infirmity was found in the impugned orders and judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Khawaja Muhammad Mughees's case 2001 SCMR 2020 and Muhammad Hanif v. Ch Sami Ullah 2000 MLD 1345 ref.

(b) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Subsequent construction/improvement on the demised property after the creation of the tenancy---Jurisdiction of the Rent Controller---Scope---Petitioner/tenant contended that as he was running a factory at the demised property so the Rent Controller had no jurisdiction to entertain eviction application filed by the landlord/respondent---Held, that the petitioner/tenant admitted in the written reply that he had installed machinery at the plot (rented premises)---When the rented premises were converted or any machinery was installed ( in the shape of factory) on it, the same would fall within the definition of building or rented land and it would not ouster the jurisdiction of the Rent Controller---Constitutional petition was dismissed.

Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218 and Muhammad Sharif v. Saeed Akhtar Hussain and 8 others PLD 1985 Lah. 365 ref.

Muhammad Abid for Petitioner.

Naeem Khan for Respondent.

2021 C L C 689

[Peshawar]

Before Muhammad Naeem Anwar, J

MUHAMMAD BAAZ----Petitioner

Versus

HALQA PUTWARI MUZA MATHRA, PESHAWAR and another----Respondents

Civil Revision Petition No.629-P, 2019, decided on 24th November, 2020.

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

----S.47---Execution of decree---Scope---Incorporation in revenue record---Limitation---Scope---Civil Court passed a consent decree fifty years ago, however, its implementation/execution was not incorporated in the revenue record---Executing Court as well as Appellate Court dismissed the execution petition of the petitioners( successors-in-interest of the decree-holder) declaring the same as time-barred ---Held, that there were three stages of litigation: institution of the litigation, its adjudication by the Court of competent jurisdiction and its implementation---Last stage of litigation was known as execution---Once a decree/judgment was passed by the Court, it was duty of the person against whom the judgment was passed (judgment-debtor) to give effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment---Although, for the execution of a decree a specific mechanism had been provided by the law for which not only an application was required to be filed within time but name of person, against whom an application for execution was filed, was also required to be arrayed under the mode/manner provided in the Civil Procedure Code, 1908---Application for execution was needed when the judgment-debtor was either not ready to act upon the terms and conditions of the decree or avoiding its implementation---In all circumstances, execution of the decree, for all intents and purposes, was sought against the judgment-debtor and none else---Execution petition, in the present case, was neither against the judgment-debtor nor there was a decree against the respondents (Revenue Officers) which was to be executed through an application for execution; it was simplicitor an application for implementation of the decree for incorporation of petitioners' names in the revenue record instead of the vendee/judgment debtor , therefore, such application could neither be dismissed being time-barred nor the Revenue Officers could contest/controvert the same---Officials of revenue hierarchy, in the present case, were duty bound to incorporate the decree passed in the year 1969, especially when the dispute was amicably settled between the parties and consent decree was passed in favour of predecessor-in-interest of petitioners by the then Civil Court---High Court set aside the impugned orders passed by the both the Courts below and directed Revenue Officers to incorporate the decree in the revenue record---Revision petition was allowed, in circumstances.

Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322; Abdul Hameeds' case 2005 SCMR 1617; Allah Ditta v. Ghulam Muhammad and 3 others 2008 SCMR 102; Maulvi Abdul Qayum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Munshi Muhammad and others v. District Officer (Revenue) and 2 others 2015 YLR 2136; Nazir Ahmad and 6 others v. Ghulam Mustafa and 20 others 2010 MLD 89 and Munshi Muhammad through L.Rs. and others v. District Officer (Revenue), Gujranwala and 2 others 2009 CLC 1285 ref.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.5(1)---Pre-emption, right of---Doctrine of substitution---Scope---Decree in a pre-emption suit was based upon the doctrine of substitution which was simply a right of substitution, entitling the pre-emptor, by means of a legal incident to which sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he derived the title; it was, in fact, as if in a sale deed the vendee's name was to be rubbed out and pre-emptor's name was to be inserted in his place.

Mahmood, J. in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775 (FB) ref.

Saif Ullah Khalil for Petitioners.

Muhammad Suhail Khan, A.A.G. for Respondents.

2021 C L C 699

[Peshawar]

Before Ijaz Anwar and Muhammad Naeem Anwar, JJ

SHAMSHER KHAN----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Advocate General, Peshawar and 3 others----Respondents

Writ Petition No.5540-P of 2019, decided on 8th April, 2020.

Khyber Pakhtunkhwa Waqf Properties Ordinance (I of 1979)---

----S.25(2)(c) & Preamble---West Pakistan Waqf Properties (Administration) Rules, 1960, R. 7---Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959), Ss. 3, 4 & Preamble---Constitution of Pakistan, Arts. 4 & 25---Terms and conditions on which waqf property may be leased or let out---Exemption from determination of fair rent---Scope---Petitioner challenged the vires of notification issued by Secretary Auqaf and Religious Affairs wherein it was provided that 40% increase shall be made in respect of old or sitting tenants, after every three years---Contention of petitioner was that proviso to subsection (2) of S.4 of the Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959, (Ordinance) provided that increase in rent shall not be more than 25% of the rent already being paid by the tenant---Validity---"Waqf properties" were exempt from the provisions of the Ordinance, therefore, the ceiling limit of 25% was not applicable to Waqf Properties---Preamble of Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979 provided that it was promulgated for proper management of Waqf properties in the province and the Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959, related to restriction in the increase of rent of certain premises within the limits of urban area and eviction of tenants therefrom in the province, thus, the object, intention of Legislature and limitation of both the statutes was different from each other---Uniform applicability of both could not be based on the touchstone of Arts. 4 & 25 of the Constitution---Constitutional petition was dismissed.

Abid Hussain Sherazi v. Secretary Ministry of Industries and production, Government of Pakistan, Islamabad 2005 SCMR 1742 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 rel.

Taimur Haidar Khan for Petitioner.

Atif Ali Khan, A.A.G. for Respondents.

2021 C L C 746

[Peshawar]

Before Muhammad Naeem Anwar, J

Mst. BIBI ROZA----Petitioner

Versus

WALI-UR-REHMAN and 11 others----Respondents

Writ Petition No.2658-P of 2020, decided on 12th June, 2020.

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

----S.12(2) & O.XXI, Rr.35(2), 99, 100 & 101---Specific Relief Act (I of 1877 ), Ss.42 & 12---Suit for declaration and possession---Fraud or misrepresentation of fact---Scope---Decree for possession from joint property, execution of ---Scope---Petitioner, who was not impleaded in the suit instituted by the respondent/plaintiff, filed application under S.12(2) of Civil Procedure Code, 1908, contending that under the garb of decree , her owned/possessed property was intended to be taken from her---Trial Court dismissed the application under S.12(2), C.P.C, without framing issues and adducing the evidence---Held, that property owned by the petitioner was not the subject matter of the suit filed by the respondent/plaintiff, thus there was no decree against the petitioner's property---Record revealed that in the suit-in-question , no decree for partition was passed on the basis of which the specific portion of the property was to be handed over to the decree-holder ---Decree for declaration, in the present case, was to the extent of shares in the joint property and in terms of O.XXI R.35(2) of Civil Procedure Code, 1908, only symbolic possession would be handed over to the decree-holder--- Contention of the petitioner could not be treated as one under S.12(2), C.P.C, instead she had a remedy under the provisions of O.XXI, Rr.99, 100 & 101 Civil Procedure Code, 1908 under which she, being a bona fide claimant, could approach to the Executing Court by contending that no decree had been passed regarding her property---In case of possession from joint property, the mode of possession would be symbolic (by affixing a copy the warrant in some conspicuous place on the property etc.) under O.XXI, R.35(2), C.P.C---Property of the petitioner was not the subject matter in the suit-in-question, then there was no case of either fraud or misrepresentation of fact---No illegality or infirmity was found in the impugned judgments and orders passed by both the Courts below---Constitutional petition was dismissed in limine.

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

----S.12(2)---Application under S.12(2) C.P.C---Framing of issues---Scope---Though application under S.12(2) of C.P.C was to be treated as suit, however, in every such application, there was no need to frame issues and to record evidence, rather the same depended upon the facts of case.

Mst. Shabana Irfan v. Muhammad Sham Khan and others 2009 SCMR 40 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 ref.

2021 C L C 776

[Peshawar]

Before Syed Arshad Ali, J

GUL MAST KHAN and 5 others----Petitioners

Versus

ISRAR and 15 others----Respondents

Civil Revision No.465-P with C.M. No.582 of 2013, decided on 7th October, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.45---Qanun-e-Shahadat (10 of 1984), Art. 64---Suit for declaration and injunction---Revenue record--- Presumption--- Relationship, evidence of---Plaintiff / respondent assailed mutation of inheritance in a suit filed after 33 years of its attestation, on the plea that defendant / petitioner was not husband of his sister--- Trial Court and Lower Appellate Court concurrently decided the matter in favour of plaintiff/respondent--- Validity--- Entries made in revenue record regarding transfer of property in favour of sister of plaintiff/respondent was presumptive evidence of title--- If any person was to challenge such entries, that person was to produce confidence inspiring evidence to rebut evidence in revenue record--- Both the Courts below illegally ignored statement of defence witness who had stated about relation between sister of plaintiff/respondent and defendant/petitioner as husband and wife--- Testimony of defence witness regarding marriage of the two was relevant fact which supported entry of mutation in question in terms of Art. 64 of Qanun-e-Shahadat, 1984--- Both the Courts below overlooked delay in filing suit on 19-05-2009 against mutation attested on 5-11-1976, which was time barred--- Plaintiff/respondent failed to establish that his sister was not married to respondent/defendant--- High Court in exercise of revisional jurisdiction set aside concurrent findings of facts by two Courts below as judgments and decrees were based on misreading of evidence--- Revision was allowed, in circumstances.

Evacuee Trust Property Board v. Ghulam Rasul Khokhar 1990 SCMR 725; Fida Hussain v. Abdul Aziz PLD 2005 SC 343; Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Mst. Grana through LRs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 rel.

Khan Ghawas Khan for Petitioners.

Miss Neelam A. Khan for Respondents.

2021 C L C 793

[Peshawar]

Before Ikramullah Khan, J

ABDUL QAYUM KHAN and 12 others----Petitioners

Versus

DEPUTY DISTRICT OFFICER JUDICIAL, MARDAN and 7 others----Respondents

Writ Petition No.2032-P of 2019, decided on 14th September, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & S.12(2)---Punjab Tenancy Act ( XVI of 1887), Ss. 43 & 77--- West Pakistan Land Reforms Regulation, 1959---Suit for recovery of the amount of produce along with application for ejectment of tenant---Ownership on the basis of mutation and decree---Effect---Locus standi ---Scope---Defendants (owners-in-possession) filed application for the dismissal of the suit but the relief was not granted by the revenue Courts---Contention of the petitioners (defendants ) was that they were recorded as owners of the suit property in the revenue record---Held, that respondents were not the owners of suit property and said property, vide a mutation in the year 1963, was allotted to the predecessor-in-interest of petitioners ---Shares of the petitioners, regarding suit-property, were adjusted through a court decree in the year 2004---Record revealed that suit-property (along with other property not the subject-matter of present case) was resumed by the Land Commission under West Pakistan Land Reforms Regulation, 1959, and thereafter, was allotted to the predecessor-in-interest of the petitioners and later was transferred to the petitioners---Respondents had challenged the said decree (passed in the year 2004) before the competent court of law and an application under S.12(2) of Civil Procedure Code, 1908, had also been filed and High Court had already passed directions to the Civil Court to decide the cases instituted by the respondents---Record revealed that the said decree as well as mutation were still intact and the petitioners were recorded as co-owner in the record-of-rights in regard to the suit-property---Stranger could not institute suit for produce, unless he had confirmed his title before the Civil Court ---Impugned judgments passed by the Member Board of Revenue and Additional Commissioner ( Revenue) were without jurisdiction and were rendered in violation of the law, in circumstances---High Court set aside the impugned judgments and suit of the respondents stood dismissed---Constitutional petition was allowed, in circumstances.

Muhammad Farooq Afridi for Petitioners.

Muhammad Sami-ur-Rehman for Respondents.

2021 C L C 818

[Peshawar]

Before Muhammad Naeem Anwar, J

PROVINCE OF KHYBER PAKHTUNKHWA through Secretary to Government of Khyber Pakhtunkhwa, Irrigation Department, Peshawar and 2 others----Petitioners

Versus

TECHNICON ENGINEERS AND EPC CONTRACTOR GROUP through authorized agent and 3 others---Respondents

Civil Revision No.1278-P of 2019, decided on 8th October, 2020.

Arbitration Act (X of 1940)---

----Ss.20 & 33---Arbitration agreement---Proceedings---Respondents / plaintiffs filed application for decision of their dispute through arbitration---Trial Court declined to reject proceedings initiated for settlement of dispute through arbitration proceedings--- Validity--- No one was named in arbitration agreement, therefore, respondents/plaintiffs were left with no option but to submit application under S.20 of Arbitration Act, 1940--- Period of contract had already expired and there was a dispute which required resolution and that resolution could be made as per provisions of arbitration agreement, within which respondents/plaintiffs submitted their claim/dispute to Project Manager/Engineer but not fruitful result came out or no decision was made by Project Manager/Engineer---Petitioners / defendants through application under S.33 of Arbitration Act, 1940, intended to decide matter as the same could not be agitated before any forum---Administration of justice required that decision between parties pertaining to dispute should be decided on merits and after proper application of mind, in accordance with law, rather than to be decided on technical grounds---Petitioners/defendants had taken hyper-technical grounds in their application, which application was to be decided along with application under S.20 of Arbitration Act, 1940---Revision was dismissed, in circumstances.

Wilayat Khan, A.A.G for Petitioners.

Muhammad Shahid Paracha for Respondents.

2021 C L C 855

[Peshawar]

Before Muhammad Naeem Anwar, J

Mst. HUSSAN BANO----Petitioner

Versus

Mst. ASIA KHATOON---Respondent

Civil Revision Petition No.418-P of 2017, decided on 21st September, 2020.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art.100---Transfer of Property Act (IV of 1882), S.53-A---Registration Act (XVI of 1908), S.50---Suit for declaration---Presumption as to documents thirty years old---Part-performance---Certain registered documents relating to land to take effect against unregistered documents---Scope---Plaintiff filed suit for declaration claiming ownership in possession of the suit property on the strength of deed executed in the year 1972---Suit was concurrently dismissed---Validity---Plaintiff's attorney had not said a word regarding the possession of plaintiff over the suit property---Document relied upon by plaintiff was deficient to the effect that no description of the properties along with khasra numbers was mentioned therein---Said document was never produced for mutation in the revenue record as such plaintiff could not be given the benefit under Art.100 of the Qanun-e-Shahadat, 1984---Plaintiff was not able to prove her possession of the disputed property for giving effect to the document allegedly executed in her favour within the meaning of S.53-A of Transfer of Property Act, 1877---Plaintiff could not bring on record any convincing or reliable evidence within the four corners of which unregistered document could be given any weight within the exception of S.50 of the Registration Act, 1908---Plaintiff had not impleaded those parties in the revision petition which were arrayed before the trial court as defendants---Revision petition was dismissed.

2012 CLC 411; PLD 1988 Kar. 393; 2007 SCMR 433 and Mst. Zubaida Imran v. Ch. Abdul Sattar and others 1994 SCMR 1134 ref.

Nazir Ahmad's case 2017 SCMR 1734; Fazla v. Mehr Din 1997 SCMR 837 and Muhammad Siddique v. Khuda Bakhsh 2007 YLR 2328 rel.

(b) Pleadings---

----Mere pleadings cannot be made basis of a decree and similarly only evidence cannot be considered for grant of decree vice versa---Pleadings are required to be proved in terms of provisions of Qanun-e-Shahadat, 1984.

Muhammad Nawaz Chandio v. Muhammad Ismail Raho and others 2016 SCMR 875 rel.

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

----Art.100---Presumption as to document thirty years old---Scope---Art.100 of the Qanun-e-Shahadat, 1984 provides that 30 years old document, if produced from the proper custody and was free from any suspicion, Court could presume signature and any part thereof which purported to be in handwriting of the particular person.

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

----O.XIV, R.1---Framing of issues---Scope---Significance of framing or non-framing of issues loses its value after recording of evidence as the parties are aware of their pleadings and they can lead their best evidence before the Court.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 rel.

Akhunzada Asad Iqbal for Petitioner.

Nemo. for Respondent.

2021 C L C 909

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmed, J

DIRECTOR GENERAL (HEADQUARTERS) CIVIL WORKS ORGANIZATION, RAWALPINDI through Authorized Officer----Petitioner

Versus

MUHAMMAD AFSAR and others----Respondents

F.A.O. No.13-A of 2019, decided on 7th October, 2019.

Limitation Act ( IX of 1908)---

----Art.181---Execution of decree---Limitation---Objection petition---Merger, doctrine of---Objection of the appellant/judgment-debtor was that execution petitions filed by respondents/decree-holders were time-barred as the same were filed after five years of passing of decision of present case by the Trial Court---Held, that the present case was finally decided by the High Court on merits (in the year 2014) after providing the parties an opportunity of hearing, whereafter decree-holders filed execution petitions next year---All execution petitions were, admittedly, filed by the decree-holders within three years under Art. 181 of the Limitation Act, 1908 ---Judgment/decree/order, which had been accepted or modified or reversed or affirmed by the higher forum on merits both on points of facts and the law involved therein, attained the status of final decree and the same was to be executed---Doctrine of merger fully applied to the reversal and modification and also to all to those cases in which the judgment of lower forum had been affirmed in appeal or revision by a higher forum---Execution petitions filed by the decree-holders were within time as the same were filed within a period of three years from the date of final judgment passed by the High Court---No illegality or infirmity was found in the orders and judgments passed by the Executing Court dismissing the objection petitions of the appellant/judgment debtor---Execution first appeals were dismissed, in circumstances.

Kinhayammoed and others v. State of Kerala and another 2000 AIR 2887;Commissioner of Income Tax, Bombay v. Messrs Amritlal Bhogilal & Co. AIR 1958 SC 868 and Abdul Qayyum v. Ali Asghar Shah 1992 SCMR 241 ref.

Usman Jillani and Masood Ahmed Khattak for Petitioner.

Muhammad Ayub Awan for Respondents.

2021 C L C 1039

[Peshawar]

Before Rooh ul Amin Khan and Syed Arshad Ali, JJ

WAFA GUL----Petitioner

Versus

SECRETARY HEALTH TO GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and others---Respondents

Writ Petitions Nos.2835-P, 856-A, 2971-P and 5475-P of 2020, decided on 4th February, 2021.

MBBS & BDS (Admission, House Job and Internship) Regulations, 2018---

----Rglns. 16 & 21---Constitution of Pakistan, Arts. 189---House job stipend---Judgment of Supreme Court---Effect--- Petitioners were young doctors doing their house jobs in private sector hospitals--- Plea raised by petitioners was that under Regln. 21 of MBBS and BDS (Admission, House Job and Internship) Regulations, 2018, framed under Pakistan Medical and Dental Council Ordinance, 1964, hospitals were bound to pay stipend amount to them which was to be not less than the highest amount paid in any public sector hospital in the Province of Khyber Pakhtunkhwa--- Validity--- Judgment of Supreme Court on the subject was in field and had binding effect under Art.189 of the Constitution---Petitioners were entitled to stipend equal to the highest amount of stipend paid to House Job Officers of Public Sector hospitals---Constitutional petition was allowed accordingly.

Writ Petitions Nos.2800, 2825, 3837, 3901 and 3905 of 2019 ref.

Human Right Case No.38513 of 2018 (regarding stipend of house Officer graduate of private medical colleges fol.

Muhammad Ijaz Khan Sabi for Petitioner.

Qazi Babar Irshad, DAG, Arshad Ahmed, AAG, Qazi Jawad Ihsanullah and Hamza Wali for Respondents.

2021 C L C 1061

[Peshawar]

Before Waqar Ahmad Seth, CJ and Muhammad Nasir Mahfooz, J

WAPDA through Chairman WAPDA Houseand 4 others----Appellants

Versus

Syed SAJJAD BUKHARI----Respondent

R.F.A. No.371-P of 2014, decided on 17th September, 2020.

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

----Ss.18(4) & 54---Civil Procedure Code (V of 1908), S.94---Appeal---Maintainability---Acquisition of land---Expressions "for or on behalf of whom" and "subject to the provisions of Civil Procedure Code, 1908, applicable to appeals from original decrees"---Scope---Referee Judge allowed reference filed by respondent and Water and Power Development Authority (WAPDA) assailed the judgment and decree---Objection raised by respondent was that appeal filed by WAPDA was not maintainable---Validity---Land was acquired for WAPDA, so it was an aggrieved person in view of the words used in S.18(4) of Land Acquisition Act, 1894, "for or on behalf of whom" for filing objection to the award, so could file appeal as well---Expression "subject to the provision of Civil Procedure Code, 1908, applicable to appeals from original decrees" used in S.54 of Land Acquisition Act, 1894, included WAPDA as an aggrieved person under S.96, C.P.C.---High Court declined to take any exception to maintainability of appeals---Objections were rejected, in circumstances.

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

----Ss.18(4) & 54---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Constitution of Pakistan, Arts.23 & 24---Acquisition of land---Lessee of land---Compensation, entitlement of---Withholding of evidence---Presumption---Pleadings, reliance upon---Principle---Land in question was acquired by authorities and respondents-lessees over the land sought enhancement in compensation on the plea that they had suffered huge loss due to acquisition of land---Referee judge allowed references and enhanced compensation---Validity---Leasehold rights of respondents-lessees could not be similar to the rights of landowners or that the words 'person interested' used in S.18 of Land Acquisition Act, 1894, could not be interpreted to mean "lessee of property"---Only rights of owners were protected under Arts. 23 & 24 of the Constitution--- Respondents-lessees could avail remedy either for return of their bid amounts deposited along with any improvements---Respondents-lessees did not appear in Court as witnesses, presumption was to be drawn against them within the contemplation of Art.129(g) of Qanun-e-Shahadat, 1984 and it had to be accepted that their case was based on no evidence---Pleadings in objection petition and statements of officials could not be considered as evidence, when respondents-lessees opted not to appear as witnesses in support of their objection petitions, to avoid facing cross-examination in Court---Pleadings of parties in any civil litigation were not evidence unless the party appeared in Court in support thereof---High Court set aside judgments and decrees passed by Referee Court---Appeal was allowed accordingly.

Pir Khan through his L.Rs v. MEO and others PLD 1987 SC 485; Iftikhar Hussain Shah and others v. Pakistan and others 1991 SCMR 2193; Land Acquisition Collector Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; LAC and others v. Allah Nawaz and others PLD 2010 SC 745 and Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391 ref.

Fida Gul for Appellant.

Qazi Jawad Ehsan Ullah for Respondent.

2021 C L C 1093

[Peshawar]

Before Syed Muhammad Attique Shah, J

Mian MUHAMMAD FAREED----Petitioner

Versus

KHALID WADOOD----Respondent

C.R. No.471-P of 2019, decided on 1st February, 2021.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13(6) & 17---Civil Procedure Code (V of 1908), S.47---Execution proceedings---Rent due, recovery of---Final rent due, non-determination of---After striking of defence of respondent-tenant, possession of demised premises was handed over to petitioner-landlord but no final determination of "rent due" was made by Rent Controller---Landlord filed execution petition for recovery of tentative rent assessed by Rent Controller during proceedings---Rent Controller as well as Lower Appellate Court declined to execute tentative rent order---Validity---Rent Controller after passing order for eviction of tenant, was to finally determine factum of "rent due" and was to direct for its payment, whereafter the same was recoverable through execution petition filed before Executing Court (Civil Court) and was to be executed as it was a decree passed by it---Landlord could not be allowed to suffer due to illegality committed by Rent Controller by not finally determining factum "of rent, due", after striking of defence of tenant---High Court set aside orders passed by two Courts below and matter was remanded to Rent Controller to pass appropriate order regarding rent due in terms of S.13(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959, whereafter the same would be executed in conformity with provisions of S.17 of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959---Revision was allowed accordingly.

Rabnawaz v. Haji Muhammad Iqbal and 2 others 2003 SCMR 1476 Muhammad Daud v. Mst. Surriya Iqbal and 3 others 2001 CLC 1819 and Irfan Younas v. Akhtar Ali and others 2017 YLR Note 166 rel.

Mian Fazal Wahab for Petitioner.

Sabah-ud-Din Khattak for Respondent.

2021 C L C 1114

[Peshawar]

Before Syed Muhammad Attique Shah and Muhammad Naeem Anwar, JJ

Haji PERVEZ and 6 others----Petitioners

Versus

SECRETARY WORKERS WELFARE BOARD, PESHAWAR and others----Respondents

Writ Petition No.2962-P of 2020, decided on 3rd July, 2020.

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

----Ss.105 & 108---Lease---Determination---Landlord and tenant relationship---Petitioners claimed to be lessee of authorities and assailed notification to vacate shops in their possession---Validity---Question whether an instrument amounted to lease or was only agreement to obtain lease, depended on intention of parties, which was to be gathered from the instrument as a whole, the circumstances in which it was executed and even from the conduct of parties---If shops in questions were allotted to petitioners, then terms and conditions of respective rights and liabilities were to be governed by agreement / allotment order as provided in S.108 of Transfer of Property Act, 1882---In absence of any such agreement / contract or lease deed, a tenant-at-will was not recognized as lessee under Transfer of Property Act, 1882---Such person could not claim any right as lessee for he was not tenant for any certain period---Tenant-at-will was not liable to pay any rent but was liable to pay compensation for such use and occupation---In case of lease, respective right and liabilities were regulated in accordance with provisions of S.108 of Transfer of Property Act, 1882---High Court declined to interfere in notification issued by authorities---Constitutional petition was dismissed, in circumstances.

Muhammad Ayaz v. Ishtiaq 1996 SCMR 19; Inayatullah v. Lyallpur Improvement Trust, Lyallpur 1977 SCMR 488; Fida Hussain v. Mst. Saiqa 2011 SCMR 1990 and Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

Safdar Iqbal Khattak for Petitioners.

2021 C L C 1206

[Peshawar]

Before Muhammad Naeem Anwar, J

SAID-UR-REHMAN----Petitioner

Versus

RAJ MUHAMMAD and another---Respondents

Civil Revision Petition No.516-P of 2017, decided on 16th October, 2020.

(a) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984, Art. 2(4)---Suit for pre-emption---Talb-i-Muwathibat---Scope and proof---Informer (a student) informed the pre-emptor on the way (outside the mosque) and not at his (pre-emptor's) abode---Two pre-emptors filed separate suits for possession through pre-emption, however, the vendee/defendant entered into compromise with one of them---Petitioner (pre-emptor with whom the vendee entered into compromise) contended that the Appellate Court had wrongly discarded his evidence observing the same as beyond imagination that why the informer (a student) informed the pre-emptor on the way (outside the mosque) and why not at home of the pre-emptor---Held, that the presumptions and speculations could be different in different minds, so the same should be avoided for the purpose of determining the factum of Talb-i-Muwathibat; rather the evidence and the manner in which the same was produced should be considered---If the evidence of the informer, pre-emptor and the witnesses of Talb-i-Muwathibat was in line but was discarded on the analogy that it seemed to be a drama that they had formed the Majlis for the pronouncement of Talb-i-Muwathibat and if the evidence was not supporting each other and the suit of the pre-emptor was dismissed on the ground of discrepancies/contradictions, then in such eventualities, the law would stand defeated---If the findings of the Appellate Court (as to why the pre-emptor was not informed at pre-emptor's home) was to be believed as true then it would mean that the information might not be given in the natural course but the informer should have waited and planned that the information would be given at home of pre-emptor---If Talb-i-Muwathibat was allowed to be analyzed on the basis of probabilities and presumptions then the suits would not be decided in accordance with law---Appellate Court also discarded Talb-i-Muwathibat performed by the rival pre-emptor without any proper appraisal of evidence---Witnesses of both the pre-emptors had given their statements in a comprehensive, direct and natural way and though they (witnesses) were cross-examined, not only by the vendee/defendant but also by the respective rival pre-emptor, but none of them had been able to create a dent in their statements---Talb-i-Muwathibat was rightly performed by the pre-emptor---High Court decreed the suit of the petitioner/pre-emptor in whose favour the vendee had entered into a written compromise---Revision petition of the said pre-emptor was allowed and that of the rival pre-emptor was dismissed, in circumstances.

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

----Art.2(4)---Appreciation of evidence---Preponderance of probabilities---Scope---Appreciation of evidence in civil cases was based upon the concept of preponderance of probabilities---In civil proceedings, a fact could be said to have been established if the same was proved by preponderance of probabilities---Under Qanun-e-Shahadat, 1984, a fact was said to be proved when the Court either believed it to exist or considered its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it existed---Evidence could be discarded but in no way on mere presumption that why the statements of the witness corroborated each other or it might be tutored---Court would have to judge what was on record and not in between the lines.

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

----S.89-A & O.XII, R.6---Alternate Dispute Resolution--- Compromise between the parties---Scope and effect---Civil laws dealt with properties (either moveable or immoveable) and rights in which, at each and every stage, parties could enter into a compromise/settlement and Courts had vast powers to decide the lis on the basis of settlement, so arrived between the parties---Only exception to a compromise could be that the same might not be made with ill-will or connivance between the parties, so that a third party should not suffer or his right might not be adversely affected---Compromise was the best solution for removal of differences and it was always appreciated by the Courts of law, for which certain specific provisions were also inserted in the Civil Procedure Code, 1908, such as Alternate Dispute Resolution (ADR), conferencing and reconciliation; and that was the reason the provisions of O.XII, R.6, C.P.C, were made part of the statute.

(d) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----Ss.13 & 20---Civil Procedure Code (V of 1908), O.XLI, R.31---Suit for pre-emption---Pre-emption, right of---Compromise between the parties in a pre-emption suit---Scope---Two pre-emptors filed separate suits for possession through pre-emption, however, the vendee/defendant entered into compromise with one of them---Petitioner (rival pre-emptor with whom the vendee had not entered into compromise) contended that High Court earlier had remanded the matter concurring with his version that compromise between pre-emptor and the vendee could not be effected in suit for pre-emption---Held, that presumption drawn in the impugned order was not correct as earlier High Court remanded the matter but not on the basis that pre-emption suits could not be decided through compromise---High Court had actually remanded the matter to Appellate Court for re-writing of judgment, as the evidence was not properly construed in true perspective/mandate of O.XLI, R.31, C.P.C---Matter was remanded irrespective of the fact of compromise so that the rights of rival pre-emptor might not be adversely affected keeping in view the provisions of S.20 of Khyber Pakhtunkhwa Pre-emption, 1987---Had there not been the suit of rival pre-emptor, there was no hurdle for entertaining compromise for the purpose of amicable settlement and decision of the suit filed by the pre-emptor with whom the vendee had compromised---When the case of rival pre-emptor was not in field, then there was no hurdle for the Court from accepting the compromise and decreeing suit in favour of pre-emptor on the basis of statement made by the vendee who was present in Court and had no objection if the suit was decreed in favour of the other pre-emptor---High Court decreed the suit of the petitioner/pre-emptor in whose favour the vendee had entered into a written compromise---Revision petition of the said pre-emptor was allowed and that of the rival pre-emptor was dismissed, in circumstances.

(e) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S. 13---Suit for pre-emption--- Talb-i-Ishhad ---Scope and proof--- Postman not produced in evidence by the pre-emptor---Effect---Two pre-emptors filed separate suits for possession through pre-emption, however, the vendee entered into compromise with one of them---Contention of the petitioner/rival pre-emptor (with whom the vendee had not entered into compromise) was that the vendee had refused to receive the notice of Talb-i-Ishhad from the postman---Validity---Vendee had categorically denied the refusal or receipt of notice of Talb-i-Ishhad---When it was alleged that vendee had refused to receive the notice of Talb-i-Ishhad from the postman then the pre-emptor was required to prove sending of said notice to the vendee---Even if the vendee had admitted the receipt of notice of Talb-i-Ishhad, the pre-emptor was required to prove sending of the same ---For proving the factum of notice of Talb-i-Ishhad, the production of postman before the Trial Court was inevitable--- Non-production of the postman or his predecessor-in-office by the rival pre-emptor was fatal to his case---Talb-i-Ishhad was not proved, in the present case, as required by the law so the pre-emptor was not entitled for decree and was rightly non-suited by both the Courts below---Concurrent findings to that effect could not be reversed being not perverse, against the law and fact---High Court decreed the suit of the petitioner/pre-emptor in whose favour the vendee had entered into a written compromise---Revision petition of the said pre-emptor was allowed and that of the rival pre-emptor was dismissed, in circumstances.

Sultan v. Noor Asghar 2020 SCMR 682; Allah Ditta's case 2013 SCMR 866; Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233 and 2014 SCMR 1496 ref.

Liaqat Ali v. Safdar Khan 2020 SCMR 863 distinguished.

Muhammad Humayun Khan for Petitioner.

Fayaz Muhammad for Respondent.

Muhammad Shoaib Khan for rival pre-emptor.

2021 C L C 1230

[Peshawar]

Before Syed Muhammad Attique Shah, J

MUHAMMAD RIAZ and others----Petitioners

Versus

HASSAN DAD and others----Respondents

Civil Revision No.372-P of 2014, decided on 22nd February 2021.

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

----Ss.13 & 137---Partition proceedings--- Necessary parties---Column of cultivation / ownership---Principle---Every joint owner, at the time of partition proceedings is a necessary party, irrespective of being placed in the column of ownership or cultivation and his rights are to be protected and safeguarded accordingly.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss.135, 137 & 172---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.9---Suit for declaration---Partition of land---Necessary parties---Civil Court, jurisdiction of---Scope---Petitioners-plaintiffs assailed partition proceedings initiated by revenue authorities on the plea that they were owners of land in question and were not joined in partition proceedings by revenue authorities as their names were not incorporated in column of ownership---Validity---Revenue authorities failed to comply with the provisions of S.137 of Khyber Pakhtunkhwa Land Revenue Act, 1967, which had provided that after receipt of partition application, Revenue Officer had to issue notices to recorded co-sharers, who were not joined in the application---Where allegations of lack of jurisdiction or mala fide were attributed to the authority passing order in question, Civil Courts could examine such matter under the provision of S.9, C.P.C. as a Court of ultimate jurisdiction---High Court set aside judgments and decrees passed by two Courts below and remanded the matter to revenue authorities for fresh partition proceedings---Revision was allowed accordingly.

Muhammad Muzzaffar Khan V. Muhammad Yusuf Khan PLD 1959 SC 9; Mustafa Khan v. Muhammad Khan 1970 PLD SC (AJ&K) 75; Shah Hussain v. Abdul Qayum and others 1984 SCMR 427 and Amir Shah v. Ziarat Gul 1998 SCMR 593 ref.

Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356 rel.

Abdul Sattar Khan for Petitioners.

Tariq Khan for Respondents.

2021 C L C 1249

[Peshawar]

Before Muhammad Naeem Anwar, J

HAZRAT AMIN and 8 others----Petitioners

Versus

Mst. NISHAT BEGUM and another----Respondents

Civil Revision No.684-P of 2009, decided on 8th October, 2020.

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

----Art.100---Thirty years old document---Presumption---Principle---Respondent-plaintiff claimed to be owner of suit house on the basis of Nikahnama which was a thirty years' old document---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of respondent-plaintiff---Validity---Mere age of document was not considered to be gospel truth, when genuineness of the same was disputed---Trial Court was to determine question of its genuineness and correctness because age of document alone was not a proof about correctness of such document---If genuineness of a document was susceptible to suspicion the Court could refuse to raise presumption and could ask for proof of its contents---Neither the document was produced from proper custody nor witnesses appeared before Trial Court especially when respondent-plaintiff's own witness did not depose confidently in her favour---Mere age of document was not sufficient for entitling respondent-plaintiff as owner of property---High Court set aside judgment and decree passed by Lower Appellate Court as respondent-plaintiff failed to prove her case and restored that of Trial Court--- Revision was allowed in circumstances.

2017 SCMR 1476; 2015 SCMR 21; 2014 SCMR 630; 2004 SCMR 1059; 2014 SCMR 1217; 2017 SCMR 1217; PLD 2010 Lah. 119; 2008 CLC 803; 2020 CLC 952; 2004 SCMR 1591; 2015 SCMR 1; 2020 SCMR 202; 2020 SCMR 1391; 2007 SCMR 996; 2000 SCMR 1574; PLD 1996 Pesh. 64 and PLD 1986 Pesh. 1 distinguished.

Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 and Mst. Naseem Fatima's case PLD 2005 SC 455 rel.

Mazullah Barkandi for Petitioners.

Zia-ur-Rehman for Respondents.

2021 C L C 1335

[Peshawar (D.I. Khan)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

MUHAMMAD RAMZAN and 4 others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others----Respondents

Writ Petition No.30-D of 2014, decided on 24th March, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Factual controversy---Determination of responsibility---Petitioner claimed that his sugarcane crop was cut down on the directions of military authorities in connection with an operation against terrorists, with a commitment to pay loss to him--- Plea raised by petitioner was that neither military authorities nor District Management was paying him his loss---Validity---Sugar cane crop of petitioner was chopped down for security issues---On directions of district administration the revenue staff assessed loss caused to petitioner on account of damage to his crops---Both set of authorities were shifting responsibility for payment of assessed compensation to each other---District administration claimed that they asked petitioner for removal of crops on the assurance by military authorities as to payment of compensation, whereas military authorities claimed that they did not promise for payment of any compensation---High Court declined to interfere in the matter as the issue involved factual controversy and High Court could not fix responsibility for payment of compensation on any of the two set of authorities as the matter fell within the domain of Civil Court---Constitutional petition was dismissed accordingly.

Muhammad Yousuf Khan for Petitioner.

Kamran Hayat Miankhel, Addl. A.G. for Respondents Nos.2 and 3.

Qazi Babar Irshad, Addl. Attorney General and Sanaullah Khan, Asstt: Attorney General for Respondents Nos.5 and 6.

2021 C L C 1451

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

Mst. SHAH SULTAN and others----Petitioners

Versus

Syed JAMEEL SHAH----Respondent

Civil Revision No.219-A of 2016, decided on 29th March, 2021.

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

----Ss.12 & 29---Contract Act (IX of 1872), S. 187---Qanun-e-Shahadat (10 of 1984), Arts.102 & 103---Suit for specific performance of agreement to sell---Express and implied authority---Evidence of terms of contracts, grants and other disposition of property reduced to form of document---Exclusion of evidence of oral agreement---Scope---Plaintiff filed suit for specific performance of agreement to sell stating therein that the son/brother of defendants (now deceased) sold his share in suit property as well as that of defendants while acting on their behalf---Trial Court decreed the suit to the extent of executor's property while dismissing the claim to the extent of defendants' property---Appellate Court allowed the appeal of plaintiff and decreed the suit---Validity---Recital of the agreement depicted that it was nowhere stated that the executor was signing the agreement on behalf of other co-owners, who happened to be his mother, sisters and brothers, and executed the agreement by putting his signature over it---Agreement was not executed on behalf of other co-owners---Contract of sale must be definite and precise and if it was uncertain it must be held to be void under S.29 of Specific Relief Act, 1877---Specific performance was an equitable relief and the contract of which specific performance was sought must appear to be correct and precise and no oral evidence was admissible to add to the terms of contents of the agreement---Son/brother had no authority by virtue of his relation alone to contract on behalf of his mother/sisters or brothers without their authority---Revision petition was allowed, judgment and decree of Appellate Court were set aside and that of Trial Court was restored.

Zardad Khan v. Mst. Safia Begum 1998 CLC 2006 ref.

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

----S.187---Express and implied authority---Scope---Implied agency arises from the conduct or situation of parties or by necessity.

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

----S.187---Express and implied authority---Scope---Agency of necessity arises whenever a duty is imposed upon a person to act on behalf of another apart from contract and in circumstances of an agency in order to prevent irreparable injury to the other person's interest to preserve property from destruction.

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

----S.187---Express and implied authority---Scope---Implied authority of agency does not extend to acts which are outside the ordinary course of business and which are neither necessary nor incidental to his authority.

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

----S.187---Express and implied authority---Scope---Where an act done by a son/brother is not done in the ordinary course of business they cannot be bound by such an act.

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

----O.VIII, R.1---Written statement---Scope---Non-filing of written statement or omission to file written statement does not amount to an admission of the facts.

Jatis Chandra v. Kshiroda Kuniar AIR 1943 Cal 319 ref.

Sonabhati Kumari v. Kirtyanand Sing AIR 1935 PAT 306 and Narindur Singh v. CM King AIR 1928 Lah. 769 rel.

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

----S.53-A---Part performance---Scope---Party can take benefit of S.53-A of Transfer of Property Act, 1882, where the contract is in writing, signed by or on behalf of the transferor, where transferee had possession of immovable property covered by the contract, where the transferee had done some act in furtherance of the contract, where the transferee had either performed his part of contract or willing to perform his part of the contract---All the said conditions are sine qua non and had to be satisfied before a party could take advantage of S.53-A of Transfer of Property Act, 1882, otherwise not.

Adil Mir for Petitioner.

Qazi Obaid-ur-Rehman for Respondent.

2021 C L C 1483

[Peshawar]

Before Muhammad Naeem Anwar, J

ZAHOOR ALI SHAH and others----Petitioners

Versus

BOARD OF REVENUE, PESHAWAR and others----Respondents

Civil Revision No.521-P of 2012, decided on 12th October, 2020.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----Ss.4 & 4-A---Specific Relief Act (I of 1877), Ss.9, 42 & 54---Suit for possession, declaration and injunction---Occupancy tenant---Conversion of suit from declaration to recovery of possession---Principle---Petitioners-plaintiffs filed suit on the plea that they were occupancy tenants over suit land---Trial Court as well as Lower Appellate Court dismissed suit and appeal filed by petitioners-plaintiffs---Validity---Petitioners-plaintiffs could claim benefit of Ss.4 & 4-A of Khyber Pakhtunkhwa Tenancy Act, 1950, if any decree from Court of competent jurisdiction was passed in their favour---Certain specific time was provided to occupancy tenants for conversion of their status from occupancy tenants to owners and the same was extended from time to time but it had ended in year, 1992---If an occupancy tenant got himself declared as owner of property, then ultimately his status could be considered as such, otherwise provisions of Ss.4 & 4-A of Khyber Pakhtunkhwa Tenancy Act, 1950 could not help anyone---After ceiling date, no one could claim benefit of Ss.4 & 4-A of Khyber Pakhtunkhwa Tenancy Act, 1950, and could not be declared as owner---Status of occupancy tenant, after ceiling dated was that of tenant at will, subject to the permission and consent of the owner---For conversion of declaration to suit filed under S.9 of Specific Relief Act, 1877, contents of plaint of suit were of worth perusal, wherein not only a specific date for dispossession was to be given but the same also required to be proved---Decision of a suit filed under S.9 of Specific Relief Act, 1877, was not appealable in such circumstances---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed in circumstances.

Muhammad Yousaf v. Hakoomat-e-Pakistan PLD 1991 SC 760; Muhammad Aslam and others v. Muhammad Aslam and others PLD 2004 Pesh. 95; Zaheer Iqbal and 11 others v. Saed Iqbal Khan and 36 others 2006 CLC 184; Noor Muhammad v. Habibulah 1991 MLD 1651; Akram and others v. Zakaria Khan and others PLD 1962 Pesh. 7 and Mst. Zaitoon Begum's case 2014 SCMR 1469 ref.

Muhammad Rustam Khan for Petitioner.

Respondent Placed ex parte.

2021 C L C 1506

[Peshawar]

Before Syed Arshad Ali, J

HAYAT KHAN through Legal Heirs ----Petitioners

Versus

GUL REHMAN and others----Respondents

Civil Revision No.1217-P of 2005, decided on 30th November, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss.42 & 45---Suit for declaration and injunction---Mutation of inheritance---Inheritable rights---Scope---Plaintiffs-petitioners assailed transfer of suit property in favour of respondents-defendants on the plea that the property included shares of their predecessor-in-interests which was not given to them---Suit was decreed by Trial Court but Lower Appellate Court dismissed the same---Validity---When legal heir was deprived of his/her right of inheritance and he/she remained alive for a considerable period and did not challenge his/her deprivation from legacy of predecessor, then at later stage when legacy had changed many hands, further legal heirs had no locus standi to challenge inheritance mutation which remained unchallenged during life time of their predecessor---Predecessor-in-interest of petitioners-plaintiffs were deprived of their legacy in year 1937, therefore, suit filed in year 1993, when entire property had changed so many hands was not within the period of limitation---Revision was dismissed, in circumstances.

Abdul Sattar Khan for Petitioners.

Zia-ur-Rehman, Ismail Khan Khalil, Muhammad Shoaib Khan, Iltaf Ahmad, Saad-ul-Mabood, Jawad Khan, Nasir Ahmad and Adnan Khattak for Respondents.

2021 C L C 1530

[Peshawar]

Before Syed Arshad Ali, J

MIRBAD KHAN (LATE) through Legal Heirs----Petitioners

Versus

MUHAMMAD UMER and others----Respondents

Civil Revision No.625-P of 2018, decided on 22nd February, 2020.

Appeal---

----Mistake of court /counsel---Scope and effect---Dismissal of case on hyper-technical grounds/manner ---Counsel filed appeal before the Appellate Court by mentioning deceased plaintiff as appellant instead of his legal heirs (petitioners)---Appellate Court dismissed the appeal on the ground that the same was preferred/filed by a dead person---Record revealed that after the demise of the plaintiff, his legal heirs were impleaded, however, in decree sheet drawn by the Trial Court, the names of legal heirs of the deceased plaintiff were not mentioned---Wakalat Nama submitted before the Appellate Court showed that the name of deceased plaintiff (predecessor of the petitioners) was once again mentioned as appellant but through attorney and for that reason when the appeal came up for hearing before the Appellate Court, the same was dismissed for the reason that the appellant (deceased plaintiff) had died some five years prior to the institution of appeal---Appellate Court had dismissed the appeal on hyper-technical ground ignoring the fact that said mistake was actually attributable to the Trial Court when, in the decree sheet, deceased plaintiff had not been stated/mentioned being represented through legal heirs; secondly, it was mistake of the counsel representing the petitioners---Poor and illiterate litigant should not suffer due to the mistake of court and the counsel---Mistake of court would prejudice none and the appeal was a continuation of the original proceedings before the higher forum for testing the soundness of the decision of the lower Court---Mentioning of incorrect title in the memo of appeal would not deprive the appellant from their legal right to pursue their remedy before the higher forum when they were vigilant and had filed the appeal within time---Appellate Court had acted in hyper technical ground/manner which was against the principle of administration of justice that any system which by giving effect to the form and not the substance defeated substantive right, was defective to that extent---High Court set aside decree-sheet, being not sustainable and directed that the appeal of the petitioners would remain pending before the Appellate Court for decision of the same on merits ---Revision petition was disposed of accordingly.

Shivrattan G. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669; Muhammad Ashraf v. Dilbar Khan 2011 CLC 304 and Imtiaz Ahmad v. Ghulam Ali PLD 63 SC 382 ref.

Fayaz Khan Chamkani for Petitioners.

Shaukat Ali Khan for Respondents.

2021 C L C 1661

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

MAQBOOL ISLAM MUHAMMAD and 7 others----Petitioners

Versus

ASSISTANT COMMISISNER, BANDA DAUD SHAH, KARAR and 2 others----Respondents

Review Petition No.514-B of 2017 in Writ Petition No.826-B of 2017, decided on 21st April, 2021.

(a) Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----Ss.3 & 12---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.52---Civil Procedure Code (V of 1908), XLVII, R.1---Revenue record---Presumption---Proceedings were initiated against petitioner for encroaching upon Shamlat land (community land) of village---Petitioner sought review of judgment passed by High Court dismissing his Constitutional petition against order passed by authorities--- Plea raised by petitioner was that land in question was private land and could not be termed as thoroughfare---Validity---Presumption of truth was attached to entries of revenue papers in accordance with S.52 of Khyber Pakhtunkhwa Land Revenue Act, 1967, though it was rebuttable---Entries in revenue papers were never challenged before appropriate forum nor were questioned before Tribunal and not even before High Court---High Court declined to interfere in the matter as points raised in Constitutional petition were properly decided in the judgment---Review petition was dismissed, in circumstances.

Mian Hakim Ullah and 2 others v. Additional District Judge/ Tribunal, Nowshera and 4 others 1993 SCMR 907 and Raees Khan and others v. Samra Ali Shah and others 1997 CLC 349 ref.

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

----S.114---Review jurisdiction---Scope---Review is not meant for re-hearing the matter--- Scope of review is always very limited and confined to basic aspect of the case which was considered in judgment but if grounds taken in support of petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re-examination of case on merits under S.114, C.P.C.---If Court has taken a conscious and deliberate decision on a point of law or fact and disposed of the matter pending before it, review of such order cannot be obtained on the grounds that Court took an erroneous view or that another view on reconsideration is possible--- Review cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing but not produced.

Sajid Mehmood v. Muhammad Shafi 2008 SCMR 554 rel.

Khush Amir Khattak for Petitioners.

Shahid Hameed Qureshi, A.A.G. for Respondents.

Muhammad Khan, Legal Advisor and Abdul Waheed TMO, BD Shah.

2021 C L C 1707

[Peshawar]

Before Muhammad Naeem Anwar, J

MUHAMMAD ANWAR----Petitioner

Versus

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

Civil Revision No.299-P of 2015, decided on 10th December, 2020.

Specific relief Act (I of 1877)---

----Ss.8, 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for possession through partition, declaration and permanent injunction---Proof of execution of document required by law to be attested---Plaintiffs sought declaration that alienation of suit-house through alleged registered sale-deeds on the basis of registered power of attorney was wrong---Alleged Attorney (one of the defendants) got alienated suit-property in favour of his mother (another defendant) through registered sale-deeds on petty sale-consideration---Trial Court decreed the suit of the plaintiff/petitioner, however, Appellate Court dismissed his suit while allowing appeal of the defendants/respondents--Held, the respondents had produced as many as eleven witnesses but most of them were relatives inter se, however, one independent witness (marginal witness of all documents) was not produced without any reason given by them---When the petitioner/plaintiff had challenged the power of attorney, the agent (respondent/defendant) was required to prove not only the authenticity of document but also that before transferring the property of principal, he got special permission from the principal, in the circumstances especially when the attorney was transferring the property to his near and dear i.e. his mother (respondent/defendant), while one marginal witness of said deed was his own brother led to the conclusion that all the respondents/defendants collusively, fraudulently and deceitfully managed/prepared the power of attorney and sale-deeds---Property of principal having been transferred against a petty amount(Rs.120,000/- as sale-consideration) for a constructed house, and there was no independent proof that even the said amount was ever transferred to the principal by the attorney, in such eventuality, the transaction would suffer from inherent defect of being contrary to the law and authority of the Attorney---Said deed of Power of Attorney revealed that it was general in nature authorizing the attorney to deal in the property in all manners but before making any transfer the special permission of the principal was pre-condition; secondly that the sale-consideration must have been paid to the principal---Attorney would require prior permission, approval and consent of the principal when he wanted to transfer the property to his close relatives, whereas , in the present case, no evidence was available for such permission ---Payment of sale consideration to the principal through cogent and confidence inspiring evidence was also lacking---Findings of the Appellate Court, dismissing the suit of the petitioner while allowing appeal of the respondent, were not according to the law---Judgment and decree passed by the Appellate Court was set aside and the suit of the petitioner/plaintiff was decreed, in circumstances---Revision petition was allowed, in circumstances.

Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Mst. Shumail Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 516; Sardar Ali v. Wazir Khan 2005 SCMR 1583 and Ghulam Mustafa v. Muhammad Yahya 2013 SCMR 684 ref.

Zia-ur-Rehman Khan for Petitioners.

Inayat-ur-Rehman Khan for Respondent No.1.

Amanullah for Legal Heirs for Respondents Nos.2 and 3.

2021 C L C 1939

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MEDIQUIPS (PVT.) LTD. Through Authorized Representative----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health and 6 others----Respondents

Writ Petition No.708-M of 2020, decided on 29th September, 2020.

Public procurement---

----Judicial review---Principle---Financial bid, opening twice---Scope---Petitioner was awarded contract after his financial bid was accepted---Khyber Pakhtunkhwa Procurement Regulatory Authority without setting aside the contract, directed Procurement Entity to consider financial bid of respondent also---Validity--- Once financial bid was opened and contract was awarded, then order to Procuring Entity to consider financial bid of respondent without setting aside financial bid and award of contract to petitioner was inappropriate and irrational---Decision of Khyber Pakhtunkhwa Procurement Regulatory Authority resulted in absurd consequences and such order was not sustainable---Sanctity could not be attached to contracts which had already been concluded and it would not prevent Constitutional Courts from exercising its jurisdiction, when such contracts were found to have been unlawfully executed---Financial bid could not be allowed to be opened twice unless first opening of such bid was specifically set aside---High Court set aside order passed by Khyber Pakhtunkhwa Procurement Regulatory Authority, as well as steps taken by Procuring Entity in pursuance thereof which were unlawful, null and void---Constitutional petition was allowed, in circumstances.

Pakistan, through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; PLD 1958 SC 104; Messrs Mazari & Co. through Proprietor v. Province of Sindh through Additional Chief Secretary and another 1993 CLC 1768 and Government of the Punjab, Education Department through Secretary and others v. Muhammad Imran and others 2019 SCMR 643 ref.

2003 SCMR 280 and PLD 2004 SC 271 distinguished.

Abdul Rahim Khan Jadoon for Petitioner.

Raza-ud-Din Khan, A.A.G, Abdul Latif Afridi, Amir Javid and Sangeen Khan along with Dr. Muhammad Naeeem Awan, Medical Superintendent in Person for Respondents.

2021 C L C 1968

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

SHAHZADA COLONEL SHARIF-UD-DIN and others----Petitioners

Versus

The SETTLEMENT OFFICER DISTRICT UPPER AND LOWER CHITRAL and others----Respondents

Civil Revision No.344-M of 2021 with C.Ms. Nos.122-M and 1127-M of 2021, decided on 28th June, 2021.

(a) Interpretation of statutes---

----Absurd consequences---Effect---When an interpretation produces absurd consequences then it should not be placed upon provisions of a statute.

"The Interpretation of Statutes" (Tweltfth Edition by P.St. J. Langan) and Khaliq Qureshi and 5 others v. United Bank Limited 2001 SCMR 103 rel.

(b) Interpretation of statutes---

----Redundancy---Scope---Redundancy cannot be attributed to legislature.

Messrs Master Foam (Pvt.) Ltd. and others v. Government of Pakistan through Secretary and others 2005 PTD 1537; Dr. Raja Ameer Zaman v. Omar Avub Khan and others 2015 SCMR 1303 and Pakistan Telecommunication Employees Trust v. Federation of Pakistan and others PLD 2017 SC 718 rel.

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

----Ss.8, 42 & 54---Civil Procedure Code (V of 1908), Ss.96, 106 [as amended by Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act (XLIX of 2020)], 115 & O.XXXIX, Rr.1 & 2---Suit for recovery of possession, declaration and injunction--- Interim injunction, grant of---Construction at own cost---Petitioners/plaintiffs claimed to be owners of suit property on the plea that they were legal heirs of predecessor-in-interest of parties--- Respondents/defendants were in possession of suit property and assailed interim injunction granted by Trial Court--- Lower Appellate Court set aside the order and allowed respondents/defendants to raise construction at their own risk and cost---Validity---Petitioners/plaintiffs were out of possession and their title regarding property in dispute was still to be established in suit---Lower Appellate Court allowed respondents to raise construction at their own risk and cost which had already been started on property in dispute to some extent---Raising of further construction was not likely to cause any inconvenience to petitioners/plaintiffs---Stopping of ongoing construction could cause greater inconvenience to respondents/defendants---High Court declined to interfere in permission given by Lower Appellate Court to respondents/defendants to raise construction on the property in dispute at their own risk and cost---Revision was dismissed, in circumstances.

1980 SCMR 89; 1988 SCMR 1691; 1989 SCMR 130; PLD 1990 SC 792; 2005 SCMR 1388; PLD 2006 SC 328; 2011 SCMR 743; PLD 2016 SC 121; PLD 1980 Lah. 382; PLD 1991 AJK 50; 2009 CLC 92; Understanding Statute by S.M. Zafar; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; Muhammad Asif Khan and others v. Azad Government of the State Jammu and Kashmir through Chief Secretary and others 2014 PLC (C.S) 534 and Rana Aamer Raza v. Doctor Minhaj Ahmad Khan 2012 SCMR 6 ref.

Additional Collector Sales Tax Lahore and another v. Rupafab Limited and others 2001 PTD 2383; Word Call Telecom Ltd. through Chief Executive Officer and others v. Pakistan Telecommunication Authority (PTA) through Chairman and others 2016 SCMR 475; Amir Zada and others v. Mian Zamin Khan" ("RFA No.391-M of 2020"); Malik Manzoor Hussain v. Muhammad Bashir and others 1980 SCMR 366; Fazal Begum and others v. Sh. Ijaz Ahmad and others 1985 SCMR 1928; Wajid alias Khan Sheerin and 5 others v. Muhammad Niaz Khan and others 2011 MLD 1548 and Zahir Shah v. Shahzeb 2015 YLR 1505 rel.

Qazi Jawad Ehsan Ullah (via video link), Barrister Asad Ul Mulk and Mohib Ullah Tarichvi for Petitioners.

Sher Muhammad Khan, Zafar Hayat and Rahim Ullah Chitrali for Respondents.

2021 C L C 2042

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

AMIR ZADA and others----Appellants

Versus

Mian ZAMIN KHAN and others----Respondents

Regular First Appeals Nos.391-M, 392-M, 396-M with C.M. No.1266, Regular First Appeals Nos.412-M, 423-M and 493-M with C.M. 1574 of 2020, decided on 4th December, 2020.

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

----Ss.6 & 96---Civil Courts Ordinance (II of 1962), S.18---Pecuniary jurisdiction---Forum for first appeal disputed---Section 18 of the Civil Courts Ordinance, 1962 was substituted in 2017 and Ss.6 & 96 of Civil Procedure Code, 1908 were substituted in 2020 in Khyber Pakhtunkhwa province---Pecuniary jurisdiction of District judge to hear appeal was enhanced to Rs.10 Million---Under substituted S.6, pecuniary jurisdiction of District court was set as Rs.50 Million or above---Appeal against any final judgment/decree passed by civil Court was to be filed before District judge concerned and therefore jurisdiction of the latter stood enhanced to any amount less than Rs. 50 Million (albeit indirectly)---Held, that pecuniary limit for District Judge as appellate Court i.e. Rs.10 Million as provided by S.18 of the General Clauses Ordinance, 1962, could not prevent a District Court from hearing appeals of an amount of more than Rs.10 Million as provided in by S. 6 read with S.96 of C.P.C., for the reason that a non-obstante clause had been put in place in the substituted S.96 knowingly/intentionally so as to remove any doubts, which might have arisen because of conflict in the General Clauses Ordinance, 1962 and the amended provisions of C.P.C.---Jurisdiction of District Judge to hear appeals impugned judgments/decrees of Civil Judge stood vested despite subsequent amendments---Office (Registrar) was directed by High Court to transmit all the connected appeal separately to respective District Judges for deciding the same by himself or entrust it to any other competent Court for deciding according to law.

Dr. Mobashir Hassan and others Vs. Federation of Pakistan and others PLD 2010 SC 265 and Abid Mehmood v. Government of Pakistan through Secretary Establishment Division, Islamabad and 241 others 1996 PLC (C.S.) 1061 ref.

(b) Interpretation of statutes---

----Non-obstante clause, over-riding factor of---Non-obstante clause was a legislative tool employed to give an over-riding effect to certain provision over contrary provision that may be found in the same enactment or in a different enactment in order to avoid the operation and effect of all contrary provisions---Whenever legislature would use a non-obstante clause, courts had always been taking it as an over-riding factor by giving effect to the laws whose operation was sought to be given precedence over any other provision of law existing to the contrary.

Sardar Ahmed Siyal and others v. National Accountability Bureau through Chairman and 4 others 2004 SCMR 265 ref.

(c) Interpretation of statutes---

----Procedural laws, retrospective effect of---Procedural laws normally have a retrospective effect, unless provided otherwise by express words or necessary intendment.

Maxwell on the Interpretation of Statutes Twelfth Edition by St. J. Langan, Malik Gul Hassan v. Allied Bank of Pakistan 1996 SCMR 237 and Bashir v. Wazir Ali 1987 SCMR 978 ref.

Javeed Akhtar Tajik, Adil Khan Tahirkheli, Naeemuddin, Rahim Khan and Mian Kausar Hussain for Appellant (in all the appeals).

Abdul Halim Khan, amicus curiae.

Haq Nawaz, Assistant Advocate General.

Dates of hearing: 30th November and 4th December, 2020.

CONSOLIDATED JUDGMENT

WIQAR AHMAD, J.---This single judgment is directed to determine a preliminary question regarding forum of appeal, framed vide order dated 20.11.2020 in the instant appeal as well as in R.F.A No. 392-M/2020, R.F.A No.396-M/2020, R.F.A No.412-M/2020 and R.F.A No.423-M / 2020. All these appeals were fixed in limine, whose facts need not be reproduced for the instant determination except value of the suit in which the respective impugned judgments have been passed. Same are explained below;

i. In R.F.A No. 391-M/2020 titled Amir Zada and 2 others v. Mian Zamin Khan, the impugned judgment has been passed by Court of learned Civil Judge-IV Dir Lower at Timergara on 21.07.2020 in a suit having pecuniary value of Rs.12,300,000/-.

ii. In R.F.A No. 392-M/2020 titled Alam Khan and 2 others v. Mian Zamin Khan, the impugned judgment has been passed by Court of learned Civil Judge-IV Dir Lower at Timergara on 21.07.2020 in a suit having pecuniary value of Rs.12,300,000/-.

iii. In R.F.A No. 396-M/2020 titled Zian-ul-Abideen v. Government of Khyber Pakhtunkhwa and 3 others, the impugned judgment has been passed by Court of learned Civil Judge-V, Swat on 29.02.2020 in a suit having pecuniary value of Rs.25,479,880/-

iv. In R.F.A No. 412-M/2020 titled Muhammad Iqbal v. Muhammad Alam and 6 others, the impugned judgment has been passed by Court of learned Civil Judge-VII, Buner on 04.09.2020 in a suit having pecuniary value of Rs.12,000,000/-

v. In R.F.A No. 423-M/2020 titled Farooq v. The Askari Bank Limited and another, the impugned judgment has been passed by Court of learned Civil Judge-III, Swat on 11.09.2020 in a suit having pecuniary value of Rs. 27,000,000/-

vi. In R.F.A No. 493-M/2020 titled Rahmat Khan v. Liaqat Ali and 3 others, the impugned judgment has been passed by Court of learned Civil Judge-II, Buner at Daggar on 24.09.2018 in a suit having pecuniary value of Rs. 11,000,000/-.

1. Pecuniary limits of jurisdiction of District Judge of a District in Khyber Pakhtunkhwa was enhanced to ten million for hearing appeals arising out of judgments of Civil Courts by amendment made in Section 18 of the West Pakistan Civil Courts Ordinance, 1962 vide Section 2 of the Khyber Pakhtunkhwa Civil Courts (Amendment) Act, 2017. Appeals over and above said amount lie before the High Court in this Province. The situation got changed with promulgation of the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Ordinance, 2020 (hereinafter referred to as the 'Amending Ordinance'), wherein Section 96 was substituted as follows;

"96. Appeal from final judgment and decree.---- Save where otherwise expressly provided in the body of this Code and notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the District Court from the final judgment and decree passed by the Civil Court, while an appeal shall lie to the High Court from the final judgment and decree of the District Court while exercising original jurisdiction on any question of law or fact erroneously determined by the original Court and the Appellate Court shall decide the appeal within six months, after completion of service of summons."

1. Section 3 of the Amending Ordinance has also substituted Section 6 of Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') and the newly substituted Section provided that suits having a value of less than rupees fifty million as subject matter, shall be filed in the Court of Civil Judge concerned, while a suit carrying a value of rupees fifty million or above, shall be filed before the Court of District Judge concerned. The newly inserted Section 96 appeared producing an effect that against any final judgment and decree passed by a civil Court, right of filing an appeal has been provided before District Judge concerned and therefore jurisdiction of the latter stood enhanced to any amount less than rupees fifty million (albeit indirectly). The matter requires determination at this stage so as to save time of the parties in the instant appeal and to clarify the situation for filing further appeals. Resultantly, the question for determination was framed vide order dated 20.11.2020 in the instant case (R.F.A No. 391-M/ 2020) and assistance of learned counsel for the appellant, learned Asst: A.G as well as learned amicus curiae namely Mr. Abdul Halim Khan, Advocate of this Court was asked for. Other R.F.As Nos. 392, 396, 412, 423 and 493-M of 2020 were also fixed for determination of the forum of appeal in those cases.

2. I have heard arguments of learned counsel for the appellants in all the connected appeals, learned amicus curiae namely Mr. Abdul Halim Khan, Advocate as well as learned Assistant Advocate General.

3. As explained earlier, Section 96, C.P.C. provided a right of filing an appeal in case of any final judgment and decree passed by Civil Court before District Judge as well as a right of filing an appeal in case of any final judgment or decree passed by the Court of learned District Judge before High Court. Section 6 inserted through the Amending Ordinance provided pecuniary jurisdiction of the original Courts hearing civil suits as follows;

"6. Pecuniary Jurisdiction.--- Save in so far as is other expressly provided, all civil suits shall be filed in the following manner, namely:

a) where the amount or value of the subject matter of the suit is below rupees fifty million, the suit shall be filed in the Court of Civil Judge, as may be prescribed by the High Court; and

b) where the amount or value of the subject matter of the suit is rupees fifty million or above, the suit shall be filed in the Court of District Judge, as may be prescribed by the High Court."

The state of law emerging in respect of forum of appeal as a result of amendment brought in C.P.C. by the Amending Ordinance, may be restated as follows;

a) Suits having amount or value of the subject matter of less than rupees fifty million, may be instituted in the Court of Civil Judge having territorial jurisdiction in the matter. In such cases, appeal has been provided to lie before District Judge concerned as per newly substituted Section 96, C.P.C.

b) Where amount or value of subject matter of a suit is rupees .fifty million or above, suit shall be filed before District Judge having territorial jurisdiction in the matter directly while appeal in such a case would lie before High Court as provided in the newly added Section 96, C.P.C.

The question for determination in all these cases has been;

I. Whether appeal in all these cases having amount or value of subject matter of more than rupees ten million may be heard by District Judge concerned?

1. There has been no ambiguity regarding the state of law existing in respect of pecuniary limits of jurisdiction for filing appeal as explained in sub-paras (a) and (b). The maximum pecuniary limits for District Judge, as an appellate Court in civil cases provided by Section 18 of the West Pakistan Civil Court Ordinance as rupees ten million, may not prevent a District Court from hearing appeals of an amount of more than rupees ten million, as provided in newly added Section 6 read with Section 96 C.P.C., for the reason that a non-obstante clause has been put in place in the newly inserted Section 96, C.P.C. by stating "save where otherwise expressly provided in the body of this Code and notwithstanding anything contained in any other law for the time being in force". This non-obstante clause appears to have been knowingly and intentionally introduced, so as to remove doubt, which might have arisen because of a conflict in West Pakistan Civil Courts Ordinance, 1962 and the newly amended provisions of C.P.C. vis-à-vis the limits of pecuniary jurisdiction of District Judge, for hearing civil appeal. Non-obstante clause is a legislative tool employed to give an over-riding effect to certain provision over contrary provision that may be found in the same enactment or in a different enactment in order to avoid the operation and effect of all contrary provisions. Whenever the legislature uses a non-obstante clause, Courts of law have always been taking it as an over-riding factor by giving effect to the laws whose operation is sought to be given precedence over any other provision of law existing to the contrary. In the case of Sardar Ahmed Siyal and others v. National Accountability Bureau through Chairman and 4 others reported as 2004 SCMR 265, Hon'ble apex Court had explained the effect of occurrence of a non-obstante clause in a statute in the following words;

"We have examined the provisions of clause (a) of section 16-A of the Ordinance' reproduced hereinabove, which clearly tends to show that notwithstanding anything contained in any other law for the time being in force, the Chairman, National Accountability Bureau may apply to any Court of law or Tribunal for transfer of the case involving a scheduled offence pending before such Court or Tribunal and, on receipt of such application, such Court or Tribunal shall transfer the said case to any Court established under the Ordinance. It would appear that the object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse, of power misappropriation of property and matters connected thereto under the Ordinance and to avoid procedural delays and technicalities. The language of the provision unequivocally reflects the intention of the Legislature that the provision is self-contained and self-executory leaving no option for the Court before whom cases involving scheduled offences are pending but to transfer the same. It is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused does not fall amongst the offences included in the Schedule. On no other ground can a. Court turn down a request for, transfer of a pending case to Accountability Court on an application made by the Chairman, National Accountability Bureau under the Ordinance. This being the position in law, and the object of the Legislature, we are not impressed by the submission that the transferor Court in all fairness and reasonableness ought to have given notice of transfer to the petitioners. It may, however, be observed that it is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from the non obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law."

A similar explanation of the effect of a non-obstante clause may also be found in the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and others reported as PLD 2010 Supreme Court 265, as well as the case of Abid Mahmood v. Government of Pakistan through Secretary Establishment Division, Islamabad and 241 others reported as 1996 PLC (C.S.) 1061.

1. Procedural laws normally have a retrospective effect, unless provided otherwise by express words or necessary intendment. "The presumption against retrospective construction" as explained in Maxwell on the Interpretation of Statutes Twelfth Edition by P. St. J. Langan, "has no application to enactments which affect only the procedure and practice of the Courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be."

2. While giving the above reproduced opinion an instance of the case of Boodle v. Davis (1853) has also been quoted in said treatise, wherein the provision of section 128 of the Common Law Procedure Act, 1852, that the plaintiff might issue execution within six years from the recovery of a judgment without revival of the judgment, had been held to apply to a judgment singed more than a year and a day before that act was passed. It was further held in said judgment that same could not be treated under the previous state of the law without revival. Hon'ble Supreme Court of Pakistan in the case of Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan reported as 1996 SCMR 237 after an extensive survey of the existing case law of retrospective operation of procedural statutes, had held;

"7. It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indentment" retrospective operation has been given. (Muhammad Ishaq v. State PLD 1956 SC (Pak.) 256 and State v. Muhammad Jamil, PLD 1965 SC 681). This principle was affirmed in Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362). However statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice to a substantive right. In Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). same principle was re-affirmed and it was observed:-

"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this case process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."

The same view was expressed in Ch. Safdar Ali v. Malik Ikram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Ali (1972 SCMR 173), which was followed in Bashir.v. Wazir Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B. of Pak. (PLD 1988 SC 391) and Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi (1994 SCMR 1007).

From the principle enunciated in these judgments it emerges that statute providing change of forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice."

2021 C L C 2094

[Peshawar]

Before Wiqar Ahmad, J

INAMULLAH and 8 others----Petitioners

Versus

BAKHT ZAMIN KHAN and 6 others----Respondents

Civil Revision No.286-P of 2008, decided on 21st December, 2020.

(a) Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975---

----Paras 3 & 4---Civil Procedure Code (V of 1908), S. 11 & O.II, R.1 & 2---Petitioners being successors-in-interest of deceased (died in 1936) who was brother of predecessor-in-interest of defendants, contended that they had been deprived from their rights in the legacy of said deceased---Suit claiming right of 'inheritance'---Decreed by Trial Court---Reversed by Appellate Court---Earlier suit by petitioners filed under Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (PATA Regulation) which was dismissed on ground of limitation till the last forum of Home Secretary, had been instituted on the basis of a 'will' of 1932---Writ petition withdrawn with permission to have recourse to the civil Court---Fresh suit on different cause of action---Respondents referred to Riwaj Nama Swat---Validity---Pedigree table showed original predecessor of parties who had been survived by two sons: 'A' being predecessor of respondents / defendants, and 'B' being predecessor of petitioners/plaintiff---Said table not showing any issues or widow of 'B'---Said table had been prepared during the course of settlement in 1985/86---Relationship of two daughters and one widow had been admitted---Reason for their omission from pedigree table could not be explained by defendants---Petitioners had been litigating for their rights before forums established under PATA Regulation---No law/rules/regulations/customs and traditions having the sours of law depriving female legal heirs from right of inheritance---Two daughters and a widow of 'B' had been deprived of their right of inheritance--­-Appellate Court allowed appeal on technical objection of bar of constructive res-judicata and limitation---Time period for bringing a suit in respect of a property where the same had been in possession of other was settled as 15 years---Principle of custom had been akin to the phenomena of adverse possession, but it had nowhere been stated that such a principle would also apply to the cases of inheritance---Such principle was not applicable to person exempted who would pay any share in produce or having other charge---Such exempted case had to be settled according to Sharia/Jirga decision---Home Secretary had levied a maintenance allowance of Rs. 400/- per annum on respondents and in favour of petitioners along with arrears---Liability had been fixed due to the petitioners' rights in property which had been in possession of defendants---Principle of bar of limitation in cases of adverse possession contained in Riwaj Nama Swat, would not apply---Predecessor of petitioners had claimed before Assistant Commissioner under PATA Regulation but that had been based on 'will' of 1932 and the same was found to be time barred and had not been referred to Jirga for its factual adjudication---Present suit was on basis of right of inheritance which could not be barred by invoking the principle of res-judicata/constructive res-judicata---PATA Regulations provided that provisions of Evidence Act, 1872 (Qanun-e-Shahadat, 1984) and Civil Procedure Code particularly Order II thereof had not been applicable to suits filed before adjudication forums established under said Regulation---Whatever property had been sold by 'A' deceased or his legal heirs had to be adjusted in their respective shares of inheritance and the vendees thereof should not be disturbed---High Court accepted the Revision petition by setting aside judgment of Appellate Court and further modified judgment/decree of Civil Court. [Modifications Detailed]

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; 2007 SCMR 635, 2008 SCMR 905 and 2015 SCMR 869 rel.

(b) Islamic law---

----Inheritance---Sharia law, superiority of---Applicability---Right of succession/inheritance could not be defeated by principle of Res-judicata, as no law/judgment could override the law of Sharia which was held to be a superior law.

Muhammad Zubair and other v. Muhammad Sharif 2005 SCMR 1217 rel.

(c) Islamic law---

----Inheritance---Plea of adverse possession could not be allowed to be raised against co-sharer, who claimed acquisition of such a status by way of inheritance.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 and Mst. Barikhna v. Faiz Ullah Khan and others 2020 SCMR 1618 rel.

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

----S.3---Inheritance---Limitation---Bar of limitation could not be given an effect so as to deprive party from its right of inheritance.

Khan Muhammad through LRs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476 ref.

Abdul Halim Khan for Petitioners.

Sher Muhammad Khan for Respondents.

2021 C L C 2160

[Peshawar(Mingora Bench)]

Before Wiqar Ahmad, J

Haji FAIZUR RAHMAN----Petitioner

Versus

SULTAN ALI SHAH and others----Respondents

Civil Revision No.1263 of 2010 with C.M. No.276 of 2015, decided on 15th February, 2021.

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

----S.21---Contract not specifically enforceable---Agreement, ambiguous nature of---Specific performance of agreement regarding sawmill and land---Partially decreed by civil Court---Separate appeals from both parties were disposed of by appellate Court with partial modification in judgment of Civil Court---Petitioner mentioned in application that he had paid Rs.2000/- for machinery and Rs.20,500/- for the land---Respondents stated in reply that they just negotiated but not concluded agreement / contract; that sawmill was owned by Nawab of Dir; that receipt of Rs.22,500 was admitted but the same had been kept as guarantee and deal w as contingent upon the permission of said Nawab; that said Nawab transferred sawmill and land to others by way of gift who were not agreed to sell the same---Validity---Petitioner as witness deposed in examination-in-chief that total value of consideration had been agreed as Rs.100,000/---Legal Heirs of the said Nawab had disowned entering into sale transaction, but had admitted the factum of gift in respect of the sawmill---If terms of a contract could not be found with reasonable certainty, such contract could not be ordered to be specifically enforced---Part of transaction admitted by the contesting respondents might not be construed as an enforceable agreement---Petitioner had not mentioned the amount of sale consideration and only in his testimony recorded the total amount---Evidence beyond pleadings, especially in respect of material particulars, could not be accepted---No further relief could be granted than what appellate Court had already ordered, i.e recovery of amount paid by the petitioner with 20% annual interest from the date of receipt of such amount---Revision petition was dismissed accordingly.

Haji Saindino Khan and another v. Mst. Zaibunnissa through legal heirs and another 1991 SCMR 972; Noor Nabuwaat v. Moulvi Muhammad Noor Ali Khan 1999 CLC 1685 and Mst. Mumtaz Majeed and 4 others v. Muhammad Inayat 2016 CLC 780 rel.

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

----Order VI, R.9---Material content, disclosure of in pleadings---No evidence could be lead/looked into in support of a plea which had not been taken in the pleadings.

Government of West Pakistan (Now Punjab) through Collector Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 rel.

Sher Muhammad Khan for Petitioner.

Muhammad Shahid Abbas and Asghar Ali for Respondent No.2.

Abdul Halim Khan for Respondents Nos.15, 16 and 21.

2021 C L C 37

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

KAMALUDDIN and 13 others----Appellants

Versus

ABDULLAH and another----Respondents

Regular First Appeal No.53 of 2011, decided on 9th August, 2019.

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

----Ss.42, 39 & 54---Balochistan Land Revenue Act (XVII of 1967), S.172(2)(xviii)---Suit for declaration, cancellation of mutation, possession and permanent injunction---Jurisdiction of Civil Court---Scope---Contention of plaintiff was that he was owner of suit property which had not been partitioned---Suit was decreed by the Trial Court---Validity---Question of title was involved in the present case and Civil Court was the only forum to resolve the controversy after recording evidence---Civil Court could not exercise jurisdiction over a claim for partition of an estate or holding or any question connected with or arising out of the proceedings of partition, not being a question as to title in any of such property---When question of title was raised in a suit then provisions of S.172(2) (xviii) of Balochistan Land Revenue Act, 1967, would not come in the way of Civil Court to decide the issue---Present suit had been filed for partition on the ground of inheritance---Suit property had been left by the forefathers of the parties---Private partition had created title and interest of plaintiff in the suit property---Suit of plaintiff did fall within the domain of Civil Court, in circumstances---Plaintiff was owner of suit land---Trial Court had rightly passed the impugned judgment and decree in favour of plaintiff---Appeal was dismissed, in circumstances.

(b) Balochistan Land Revenue Act (XVII OF 1967)---

----Ss.42, 39 & 54---'Question of title'---Meaning---"Question of title" of property when and how arises.

Question of title is the claim of a person as to his ownership in some property and it will arise when someone denies his right or interest in his property. It may include when due rights of a person are jeopardized by any mode of partition or order of a Revenue Officer.

Syed Mumtaz Hussain Baqiri for Appellants.

2021 C L C 60

[Balochistan]

Before Jamal Khan Mandokhail, CJ and Nazeer Ahmed Langove, J

CONSTRUCTORS ASSOCIATION OF PAKISTAN, through Authorized Representative and another----Petitioners

Versus

BALOCHISTAN IRRIGATION DEPARTMENT, through Secretary Irrigation Department and 3 others----Respondents

Constitutional Petition No.471 of 2020, decided on 30th June, 2020.

(a) Pakistan Engineering Council Construction and Operation of Engineering Works Byelaws, 1987---

----Cl. 7(3)---Pre-qualification of constructors of a dam---Criteria---Expression "project of similar nature and complexity"---Scope---Irrigation Department limited the constructors' qualification only to the extent of experience in construction of dams completed over ten years---Contention of petitioners was that criteria notified by the Irrigation Department was contrary to the criteria laid down by Pakistan Engineering Council---Validity---Employer might prescribe his own requirement for pre-qualification of constructors or operators to assess the financial soundness, plant and equipment capability and previous experience and specific expertise, which was essential for the execution of the work to eliminate constructors not suitably qualified to perform high value contract and to encourage realistic bids by the bidders---Project of similar nature and complexity did mean the project having resemblance in appearance, basic features, characteristic, qualities and complication similar to the project to be executed but not exactly the same---Eligibility criteria for pre-qualification of constructors should be based upon the guidelines of Pakistan Engineering Council---If a constructor had completed a project with regard to which skill, effort and responsibility were similar and performed under the similar working condition as required for the project to be executed then such experience should be taken into consideration while considering the pre-qualification proceeding provided that the project already completed and the project intended to be executed were of same discipline and falling under same code---Required criteria for the project in question was not only illogical but also against the basic aim and object of pre-qualification---Criteria fixed by the irrigation department would not only deprive constructors from participating in the bid proceedings of current project but it would disqualify those in future who were otherwise legally entitled to perform similar nature of works---If any applicant had failed to fulfil one of the conditions of any category of criteria then he should not be disqualified merely that he did not fulfil the specific component rather the marks fixed for said items should not be assigned to it---Applicant must meet the minimum criteria and should obtain 50% score in each category to qualify for participation in the bid proceedings---If constructor or operator had secured marks fixed for rest of the items then same should be calculated and if it was liable to secure 50% or more marks then same should be considered accordingly---Authority had power to relax required period of experience for execution of project of similar nature to provide an opportunity to the maximum number of qualified constructors and operators---Irrigation Department was directed to follow the guidelines in accordance with Pakistan Engineering Council Bylaws while assessing the qualifications of constructors and operators who had submitted their applications for pre-qualification---Constitutional petition was allowed in circumstances.

(b) Words and phrases---

----'Similar'---Meaning.

Cambridge Dictionary rel.

(c) Words and phrases---

----'Nature'---Meaning.

Cambridge Dictionary rel.

(d) Words and phrases---

----'Complexity'---Meaning.

Cambridge Dictionary rel.

Babar Ali and Aimal Khan Kakar for Petitioners.

Shai Haq Baloch, Additional Advocate General for Respondent.

Iftikhar Amjad, Chief Engineer, Irrigation, Department.

Syed Arshad Shah, Director Judicial, Irrigation Department, Balochistan.

Nasir Majeed, Projector Director.

2021 C L C 92

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

MUHAMMAD ASGHAR and 2 others----Petitioners

Versus

The ISLAMIC REPUBLIC OF PAKISTAN, through Secretary Defence Islamabad and 2 others----Respondents

Civil Revision No.77 of 2016, decided on 27th December, 2019.

Civil Procedure Code (V of 1908)---

----O.XXI, R.32 & Ss.48 & 11---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Res judicata, principle of---Applicability---Decree for injunction---Execution petition---Limitation---Execution petition to enforce decree of injunction was dismissed being time barred under S.48 of C.P.C.---Plaintiffs filed second suit for permanent injunction but same was dismissed on the ground of res judicata---Validity---Period provided under S.48 of C.P.C. did relate to execution of decree other than injunction decree---Decree in the present matter had been passed in a suit for injunction cum declaratory one---Declaratory decree was not executable under O.XXI, R.32 of C.P.C. but injunction decree was executable under the said provision---No limitation did run against the decree of injunction and decree in favour of petitioners could be executed---Plaintiffs were forced to reinitiate the proceedings in the present suit but they had been non-suited on the ground of res judicata---Courts below had neither executed the earlier decree nor decided the present suit on merit---Case was remanded to the Trial Court for decision afresh on merits after framing of issues and recording evidence---Impugned judgments and decrees passed by the Courts below were set aside and parties were directed to maintain status-quo till disposal of suit---Revision was allowed, in circumstances.

Muhammad Usman Yusafzai, Hassan Khan Sherani and Akhlaq Ahmed Shah for Petitioner.

Jehangir Rind for Respondent No.3.

Tahir Iqbal Khattak, Assistant Attorney General for Respondents Nos.1 and 2.

2021 C L C 106

[Balochistan]

Before Nazeer Ahmed Langove, J

Dr. AZIZ UR REHMAN and others----Petitioners

Versus

NOOR BIBI and others----Respondents

Civil Revisions Nos.13, 22 and 56 of 2014, decided on 22nd November, 2019.

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

----S.41---Transfer by ostensible owner---Scope---Inheritance---Gift---Ingredients---Proof---Mutation---Co-sharer---Bona fide purchaser---Contention of plaintiff was that she was owner of suit property and impugned mutations were illegal whereas defendants contended that suit property had been transferred in their favour through gift---Suit was decreed concurrently---Validity---Limitation did not run against a void transaction nor efflux of time could extinguish right of inheritance---Mutation was not a proof of title and beneficiary was bound to prove original transaction---Once it was established that plaintiff was entitled for inheritance then she would become co-sharer in each and every inch of the property of deceased predecessor---Plaintiff was entitled to inherit the left-over of her deceased father as she had become co-sharer in the property on death of her father to the extent of her share---Co-sharers could not alienate the property more than their shares---Each co-sharer would be deemed to be owner in joint property and anyone of them could not act against rights and liabilities of other co-sharers---Donee excluding any heir from inheritance was required to establish the original transaction of gift---Nothing was on record with regard to declaration of gift or its acceptance---Mere transfer of possession to the donee was not sufficient to constitute a valid gift---Gift deed must justify the disinheritance of an heir which in the present case was lacking---Transfer of property should be for consideration and transferee must have acted in good faith taking reasonable care to ascertain that transferor had the power to transfer the property---Subsequent purchaser of suit property had not taken care of important aspect of the matter---Right of transferee should be protected from the share of defendants and not from the share of plaintiff---Principle of bona fide purchaser was based on equity which could not be invoked in such a manner that might cause injustice to the others---Vendees of suit property should claim their right, if any, from their transferors-defendants---Plaintiff being residuary of deceased should inherit from his property under Law of Sharia---Impugned judgments and decrees were based on correct appreciation of record---Revision was dismissed, in circumstances.

Peer Bakhsh and others v. Mst. Khanzadi and others 2016 SCMR 1417; Muhammad Iqbal v. Mukhtar Ahmed 2008 SCMR 855; Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Barkat Ali v. Muhammad Ismail 2002 SCMR 1938; Fareed and others v. Muhammad Tufail 2018 SCMR 139 and Muhammad Shamim v. Mst. Nisar Fatima 2010 SCMR 18 rel.

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

---S. 115---Revisional jurisdiction of High Court---Scope.

Concurrent findings of fact and law arrived at by two courts below can only be disturbed, if Court comes to the conclusion that the same are illegal, unlawful based on misapplication of relevant provisions of law; shocking; perverse; artificial and; fanciful. High Court could not go behind concurrent findings of fact, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication or principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible.

Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha and others 2015 SCMR 1081 rel.

(c) Limitation---

----Limitation did not run against a void transaction.

Rasool Bakhsh Baloch for Petitioners (in Civil Revision No.13 of 2014).

Rasool Bakhsh Baloch for Petitioners (in Civil Revision No.22 of 2014).

Abdul Khair Achakzai for Petitioners (in Civil Revision No.56 of 2014).

Jameel Ahmed Babai for Respondent No.1.

Abdul Zahir Kakar and Gulzar Khan Kakar for Respondent No.2.

Mir Ahmed Ali Baloch, Addl. A.G. for Official Respondent.

2021 C L C 151

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

Mst. KHAIR BIBI and 4 others----Appellants

Versus

GHULAM SARWAR and 17 others----Respondents

Regular First Appeal No.05 of 2017, decided on 28th June, 2019.

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

----Ss.3, 5 & 14 & Art. 120---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Civil Procedure Code (V of 1908), Ss. 96, 114 & 115---Suit for declaration, cancellation of sale deed and permanent injunction---Limitation---Appeal before wrong forum---Condonation of delay---Requirements---Contention of plaintiffs was that mutation and sale deed in favour of defendants were based on fraud and misrepresentation---Suit was dismissed being time barred against which appeal was filed before District Court which was returned for want of pecuniary jurisdiction---Plaintiffs moved review petition against the said order which was dismissed---Plaintiffs filed revision petition before High Court which was converted into appeal---Contention of plaintiffs was that limitation would run from the date of their knowledge---Validity---High Court observed that plaintiffs should have filed an appeal before High Court by availing benefit of S.14 of Limitation Act, 1908, within ninety days or challenged the order of return of memo of appeal passed by the District Court---Where appeal had been filed with delay then appellant must explain the delay of each and every day---No application under Ss. 5 and 14 of Limitation Act, 1908 for justifying the delay had been filed in the present case---Plaintiffs had consumed time in approaching the wrong forum---Plaintiffs had not submitted any explanation for choosing the wrong forum---If litigant had not acted in a bona fide manner or he had acted without due diligence in prosecuting remedies before wrong forum then he could not be benefited under S.14 of Limitation Act, 1908---Plaintiffs had challenged the judgment and decree of Trial Court after a lapse of eleven months---Plaintiffs had filed the suit after lapse of more than forty years---Nothing was on record as to when impugned mutation and sale deed came in the knowledge of plaintiffs---Limitation for declaratory suit was six years and for cancellation of a deed was three years---No explanation had been offered by the plaintiffs to justify the delay in filing of the suit---Predecessor-in-interest of plaintiffs had not filed any suit against the impugned mutation and sale deed in his life time before any forum---Suit property was not mutated in favour of defendants through fraud rather it was with the consent and knowledge of plaintiffs---Appeal was dismissed being time barred, in circumstances.

Muhammad Ishaq v. Province of the Punjab 1998 SCMR 9 and Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 rel.

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

----Art.120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Suit for declaration could be filed within six years.

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

----S.3---Suit instituted after period of limitation---Effect---Institution of suit after the limitation period would be subject to the provisions of Limitation Act, 1908---Court was bound to decide the question of limitation first and only thereafter proceed to decide the matter on merits---Court was to address the question of limitation irrespective of the fact that whether it was agitated or not---Suit barred by time should be dismissed even if nobody had taken the ground of limitation---Plaint was to be rejected forthwith even without issuing notice to the other side if suit was barred by limitation.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 rel.

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

----S.96---Appeal---Limitation---Appeal before High Court could be filed within ninety days.

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

----S.115---Revision---Limitation---Revision could be filed within ninety days.

(f) Limitation---

----Delay of each and every day to be explained.

(g) Administration of justice---

----Law is for vigilant and not for indolent.

(h) Administration of justice---

----One could not be benefited on account of his own mistake.

Muhammad Asif Barrech for Appellant.

Pir Muhammad Mengal for Respondents Nos.1 to 9.

Taj Muhammad Mengal for Respondents Nos.10 to 14.

Noroz Khan Mengal for Respondents Nos.15 to 17.

Shai Haq Baloch, A.A.G. for the State.

2021 C L C 187

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

Syed MUHAMMAD ILYAS----Petitioner

Versus

Syed MUHAMMAD SHAFI and 7 others----Respondents

R.F.A. No.69 of 2013, decided on 13th July, 2020.

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

----O.VII, R.11; O.II, R.2; Ss.11 & 12(1)---Arbitration Act (X of 1940), S. 32---Specific Relief Act (I of 1877), S.42---Suit for declaration and possession though partition---Earlier suit was dismissed---Constructive res judicata, principle of---Applicability---Second suit on same cause of action---Plaint, rejection of---Trial Court dismissed the suit under S.11 and O.II, R.2 of C.P.C.---Validity---Earlier suit for partition filed by the plaintiff against the defendants had been dismissed---Arbitration proceedings initiated for making the award a rule of Court with regard to decision of arbitrator pertaining to the partition of suit property had also been dismissed---Nobody should be vexed twice for the same cause of action and there should be an end of litigation---Plaintiff was precluded to file present suit in circumstances---If plaintiff had not taken a particular ground of defence or attack in the earlier suit then principle of constructive res judicata would be applicable---Plaintiff could not split the cause of action by filing subsequent suit with regard to same subject matter---Order II, R. 2 of C.P.C. barred a plaintiff, who had earlier claimed certain relief, from filing second suit with regard to other relief based on same cause of action---Second suit could be filed on different cause of action---Constructive res judicata was applicable in the case as earlier suit filed by the plaintiff on same cause of action for partition of suit property had been dismissed---Appeal was dismissed, in circumstances.

2000 CLC 1107 and 1989 CLC 1718 ref.

Khushi Muhammad and 2 others v. The Province of the Punjab Through Secretary to Government of the Punjab and 2 others 1999 SCMR 1633; Amanullah Malik v. Mian Ghafoor-ur-Rehman and others 1997 SCMR 1796; PLD 2004 SC 178; PLD 1974 SC 80; 2006 SCMR 1262; PLD 2005 SC 430; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Greenhalgh v. Mallard 1947 (2) All ER 257; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63; Trustees of the Port of Karachi v. Organization of Karachi Port Trust Workers and others 2013 SCMR 238; and Ali Muhammad and another v. Muhammad Bashir and another 2012 SCMR 930 rel.

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

----O.II, R.2---Plea of bar under O.II, R.2(3), C.P.C., when attracted.

To attract the plea of bar under Order II, Rule 2(3), C.P.C., it must be made out.

i. That the second suit was in respect of same cause of action as that on which former suit was based.

ii. That in respect of that cause of action the plaintiff was entitled to more than one relief.

iii. That plaintiff in former suit was entitled to more than one relief in respect of same cause of action, but without leave of the Court omitted to sue for the relief for which the second suit had been filed.

iv. That plaintiff was entitled to such relief at the time of former suit.

v. Suit be between the same parties and should arise out of same cause of action.

Mumtaz Hussain Baqri for Appellant.

Gul Hassan Tareeen for Respondents Nos.1 to 4.

Zahoor Ahmed Baloch, A.A.G. for Official Respondents.

2021 C L C 276

[Balochistan]

Before Jamal Khan Mandokhail, C.J. and Nazeer Ahmed Langove, J

Agha SHAHZAIB DURRANI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 3 others---Respondents

C.P. No. 735 of 2017, decided on 9th June, 2020.

Constitution of Pakistan---

----Arts. 59, 62 & 222---Elections Act (XXXIII of 2017), S. 2(xxxix)---Senate election---Technocrat---Special seats---Object, purpose and scope---Nomination papers of petitioner for Senate elections on the seat of Technocrat were rejected by Returning Officer as well as Election Commission---Validity---Though the Constitution did not provide specific and clear definition of Technocrat but by categorizing members, the intention of Constitution makers was clear to differentiate general seats from special ones---Purpose of categorizing special seats was to elect persons having specialization and expertise in a relevant field---Additional qualification had to be there for special seat as compared to general seats---General qualification was provided under Art. 62 of the Constitution for a member of Parliament but that did not differentiate Technocrat from general member---Parliament while exercising power under Art. 222 of the Constitution enacted Elections Act, 2017, in which terms 'Technocrat' and 'Ulimahs' was defined wherein additional qualification for the members contesting elections for specified seats were determined---Definition of 'Technocrat' mentioned in Elections Act, 2017, was in no way inconsistent with the Constitution, however the same did not apply to by-election for the seat of Technocrat in Senate from Balochistan held in July 2017---High Court set aside the orders passed by Returning Officer and maintained the notification issued by Election Commission declaring petitioner as successful candidate---Constitutional petition was allowed in circumstances.

Shaikh Rafiq Ahmed v. Zia Shahid 1999 SCMR 573 ref.

Qazi Jawad Ehsanullah and Muhammad Waqas for Petitioner.

Syed Iqbal Shah, Deputy Advocate General and Shai Haq, Additional A.G. for Respondents.

Muhammad Haroon Kasi, Law Officer, Election Commission of Pakistan.

2021 C L C 522

[Balochistan]

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

Messrs ABDUL HADI MARBLES MINES through 2nd Partner----Petitioner

Versus

The SECRETARY, MINES AND MINERAL DEPARTMENT, GOVERNMENT OF BAOCHISTAN, CIVIL SECRETARIAT, QUETTA and 3 others----Respondents

Constitution Petition No.1308 of 2018, decided on 17th August, 2020.

Administration of justice---

----Decision of matter by the officer after his transfer---Effect---Petitioner was aggrieved of the order passed by appellate authority remanding the matter to Mines Committee for assigning mining rights to petitioner after deduction of area of respondent from the area of petitioner--- Validity--- Appellate Authority (Officer) after his transfer heard the case and decided the same, whereas he should not have heard it because of his transfer having been ordered 'with immediate effect'--- Order passed by appellate authority was set aside and matter was remanded for decision of appeal afresh--- Constitutional petition was allowed accordingly.

Muhammad Rafiq and others v. Mst. Murad Begum and others PLD 1964 SC 446 and Gee Corporation of Pakistan and another v. Sh. Abdul Haq and another 1990 SCMR 1581 ref.

Hadi Shakeel Ahmed, Ghulam Mustafa Butt and Abdul Razzaq Shar for Petitioner.

Zahoor Ahmed Baloch and Shoaib Anwar Kasi, Assistant Advocates-General for Respondents.

2021 C L C 532

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

SHER ZAMAN and 4 others----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, SECONDARY EDUCATION DEPARTMENT CIVIL SECRETARIAT, QUETTA through Secretary and 2 others----Respondents

Constitution Petition No.360 of 2020, decided on 13th July, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Policy framed by Government---Judicial review---Scope---Petitioners assailed certain clauses of a recruitment policy---Validity---Recruitment policy had not caused any prejudice to the petitioners and the same was not arbitrary rather was based on the settled principles of law---Courts did not interfere or strike down a policy made by Government unless it was proved to be mala fide, arbitrary, made in colourable exercise of authority or abuse of power---Record, in the present case, did not reveal any mala fide, arbitrariness or abuse of power on the part of the Government in respect of the impugned clauses of the recruitment policy---Constitutional petition was dismissed.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Safdar Jamil v. Vice-Chancellor 2011 CLC 116 and Junaid v. Federation of Pakistan 2012 CLC 1962 ref.

Musa Wazir v. N.W.F.P Public Service Commission 1993 SCMR 1124 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Policy decision by Government---Mala fide---Scope---Mala fide, being a question of fact, has to be specific and not vague---Policy framed by the competent authority, in the absence of mala fide, cannot be annulled.

Dossani Travels (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 ref.

Attaullah Langove, Khudai Nazar Notkani and Fatima Nazar for Petitioners.

Arbab Muhammad Tahir Kasi, Advocate General assisted by Zahoor Ahmed Baloch, Additional Advocate General for Respondents Nos.1 and 3.

Naseebullah Tareen for Respondent No.2.

Khalid Ahmed Kubdani, Muhammad Akram Shah and Abdul Qayyum Mengal for Applicants/Interveners.

2021 C L C 548

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

Haji ABDUL HAKEEM and 3 others----Petitioners

Versus

RABIA and others----Respondents

Constitutional Petition No.438 of 2019, decided on 30th July, 2020.

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

----Ss.38 & 47---Court by which decree may be executed---Questions to be determined by the Court executing the decree---Scope---Civil court in a suit for declaration and permanent injunction passed a decree on the basis of compromise effected between the parties whereby each party's share was determined---Petitioners filed execution petition and during its pendency three of the judgment debtors also filed execution petition---Executing Court dismissed the second execution petition being time barred---Appellate Court accepted the appeal and remanded the matter to the Executing Court for satisfaction of the decree---High Court observed that it was the responsibility of the Executing Court to have consolidated both the execution applications and implement its decree---No illegality or irregularity was observed in the order of the Appellate Court---Constitutional petition was dismissed.

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

----S.47---Questions to be determined by the Court executing the decree---Scope---All the questions arising between the parties shall be determined by the Executing Court---Provisions of S.47, C.P.C., makes no distinction between a decree-holder and judgment-debtor---Any of the parties can invoke the jurisdiction of Executing Court---No bar exists on the filing of objection petition or initiating execution proceedings by the judgment-debtor.

Industrial Development Bank of Pakistan v. Messrs Crystal Chemicals Limited PLD 2009 Lah. 176 rel.

Behlol Kasi for Petitioner.

Ajmal Kasi for Respondents Nos.1 to 3.

2021 C L C 561

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

SHAH MAQSOOD----Petitioner

Versus

KHAIR-UN-NISA and 2 others----Respondents

Constitution Petition No.1128 of 2019, decided on 13th July, 2020.

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

----Ss.5, Sched & 17-A---Suit for recovery of maintenance allowance and dowry articles---Non-payment of interim maintenance---Striking off defence---Scope---Defendant failed to pay interim maintenance and his defence was struck off---Suit was decreed concurrently---Validity---Family Court had warned the defendant that in case of failure to pay interim maintenance the suit of plaintiff would be decreed without recording of evidence---Defendant did not pay interim maintenance nor complied with the order of the Family Court---Father was bound to provide maintenance to his minor children---Order of Family Court directing the father to pay maintenance to the minor during pendency of suit was according to law---Conduct of defendant did not entitle him to discretionary relief---Defendant had not challenged the order of Family Court whereby he was ordered to pay interim maintenance---Impugned judgments and decrees passed by the Courts below could not be declared to have been passed without jurisdiction and lawful authority---Family Court had jurisdiction to strike off defence of defendant who had failed to pay interim maintenance and to decree the suit without recording evidence---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Conduct of petitioner to be taken into consideration in allowing or disallowing equitable relief---Principles.

The conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim "he who seeks equity must do equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under Article 199 when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such to disentitle him of such a relief. This jurisdiction of the High Court should not be exercised if it leads ultimately to a patent injustice.

Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Abdul Wahid Khan v. Custodian of Evacuee Property PLD 1966 Quetta 25 and Muhammad Arif v. Uzma Afzal 2011 SCMR 374 rel.

(c) Administration of justice---

----He who seeks equity must do equity.

Abdul Bashit for Petitioner.

2021 C L C 592

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

ATTAULLAH and 9 others----Petitioners

Versus

ZAINULLAH and 20 others----Respondents

Constitutional Petition No.32 of 2020, decided on 16th March, 2020.

Civil Procedure Code (V of 1908)---

----O.XL, R.1---Receiver, appointment of---Scope and requirements---Words "just and convenient"---Connotation---Plaintiffs during pendency of suit filed application for appointment of receiver, which was dismissed---Validity---Court had jurisdiction to appoint receiver of the suit property in order to protect and preserve the same---Such discretion should be exercised judiciously by following the norms of law to protect the right of the citizens---Party seeking relief of appointment of receiver should make out a prima facie case and establish his title to the suit property---Such party should also show that suit property would be wasted and misappropriated if receiver was not appointed---Apprehension of mismanagement or misappropriation alone was not sufficient for appointment of receiver---Appointment of receiver was the harshest remedy provided under Civil Procedure Code, 1908---Power under O.XL, R.1 of C.P.C. should only be exercised when Court had come to the conclusion that it was just and convenient to appoint receiver to preserve and protect the property during pendency of litigation---Words "just and convenient" used in O.XL, R.1 of C.P.C. was to be interpreted depending upon the facts of each case---Said words denote convenience of the party and not that of the Court---Suit property in the present case was in possession of defendants and revenue entries were also in their names---Appointment of receiver in circumstances, was not just and convenient as it would deprive the defendants from usufruct of the properties---Plaintiffs had yet to prove their contention at the trial and they had failed to show any emergency and loss demanding immediate action for appointment of receiver---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed in limine.

Sahibzada Muhammad Naseem for Petitioner.

2021 C L C 708

[Balochistan]

Before Rozi Khan Barrech, J

Syed HABIBULLAH----Appellant

Versus

Syed ABDUL KHABEER----Respondent

F.A.O. No.53 of 2018, decided on 3rd April, 2020.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction petition---Bona fide personal need of landlord---Scope---Tenant challenged order passed by Rent Controller whereby he was directed to hand over vacant possession of the demised premises---Validity---Burden to prove that need of landlord was bona fide rather than mala fide was on the landlord---Landlord had tried to eject 22 tenants simultaneously on the ground of personal bona fide use---Landlord had not obtained permission from Municipal Committee for re-construction or for alteration in the building---Landlord's brothers could not start business in 22 shops which were admittedly separate units---Landlord's brothers were admittedly independent, they had settled their business abroad and rarely visit Pakistan---Names of the brothers, for whom the shops were required, were not mentioned in the eviction application---Property was mutated in the name of landlord's father but he had not filed the eviction application---Appeal was accepted, impugned judgment was set aside and the eviction application was dismissed, in circumstances.

Syed Abdul Rauf v. Abdul Sattar 1997 SCMR 1169 and Mahmood Khan v. Nasima Khatoon 1982 CLC 1807 ref.

Ram Dass v. Ishwar Chander and others AIR 1988 SC 1422 and Siddalingamma and another v. Mamtha Shenoy AIR 2001 SC 2896 rel.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction petition---Bona fide personal need of landlord---Scope---Landlord has a superior right of possession and use of his property as against the tenant, but it has equally been settled that the tenant may not be deprived of his legal business and may not be shunted out from the said premises on mere assertion of the landlord.

(c) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

---S. 13---Eviction petition---Good faith---Scope---Term 'good faith' is prime and essential ingredient of ejectment of the tenant---Mala fide intention of landlord for ejectment on the ground of personal need can only be ascertained if it is proved that landlord in fact is not 'needy' rather is 'greedy' and he only desires to enhance the rent according to his own will and wants to rent it out to another person on much higher rent.

(d) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction petition---Scope---Tenant cannot be evicted on mere wish, convenience, whim and fancy of the landlord.

Abdullah and others v. Yahya Bakhtiar PLD 2001 SC 158 rel.

Adnan Ejaz for Appellant.

Gul Hassan Tareen for Respondent.

2021 C L C 798

[Balochistan]

Before Jamal Khan Mandokhail, CJ and Abdul Hameed Baloch, J

AKHTAR MUHAMMAD and others----Petitioners

Versus

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

Constitution Petitions Nos.615 to 652 of 2020, decided on 31st August, 2020.

Civil Procedure Code (V of 1908)---

----O.XIII, Rr. 1, 2, O. XVI, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 12, 39, 42 & 54--- Additional documents, production of--- Principle--- Concurrent findings of facts by two Courts below--- In suit for specific performance of agreement, cancellation of documents, declaration and injunction, plaintiffs/petitioners sought filing of some additional documents but the application was dismissed concurrently by Trial Court as well as Lower Appellate Court--- Plea raised by plaintiffs/petitioners was that earlier the documents were not in their possession--- Validity--- All documents relied upon, were to be produced under O.XIII, R.1, C.P.C., at the time of first hearing along with plaint--- Object was to prevent possibility of producing suspicious or forged documents by parties at later stage of proceedings--- Parties were required to produce their documents at the earlier stage so that opposite parties should know what documents were being relied upon--- High Court declined to exercise discretion in favour of plaintiffs/petitioners to permit them to produce documents, as their plea regarding possession of documents was not based on sound or cogent reasons--- Plaintiffs/petitioners were to satisfy Courts below to exercise discretion in their favour and did not give reference of the documents in their plaint nor any of the witness and attorney stated anything about the documents--- Courts below concurrently refused to exercise their discretion in favour of plaintiff/petitioners, who failed to point out any illegality or irregularity in orders--- High Court in exercise of extraordinary Constitutional jurisdiction declined to interfere in the orders passed by two Courts below which were well reasoned and according to law--- Constitutional petition was dismissed, in circumstances.

Muhammad Ijaz Ahmed Chaudhary v. Mumtaz Ahmed Tarar 2016 SCMR 1; 2018 CLC 1334 and Sher Baz Khan v. Malkani Sahibzadi Tiwana PLD 2003 SC 849 ref.

Allah Bakhsh v. Fathe Bibi 1994 SCMR 1945 and Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964 rel.

Kamran Murtaza, Tahir Ali Baloch and Noor Jan Buledi for Petitioners.

Jameel Agha for Respondent.

2021 C L C 911

[Balochistan]

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

MUHAMMAD IMAM-UD-DIN----Petitioner

Versus

Mst. SAIRA BANO and 2 others----Respondents

Constitutional Petition No.579 of 2018, decided on 13th August, 2020.

Family Courts Act (XXXV of 1964)---

----Ss.5, Sched. & 17---Qanun-e-Shahadat (10 of 1984), Art. 163---Suit for recovery of dowry articles---Provisions of Qanun-e-Shahadat, 1984 and Code of Civil Procedure, 1908 not to apply---Acceptance or denial of claim on oath---Scope---Plaintiff filed suit for recovery of dowry articles against the defendant---Defendant instead of contesting the suit filed application making an offer of taking special oath with regard to return of articles by him to the plaintiff---Offer of special oath was accepted by the plaintiff and in that respect the statement was recorded by the Trial Court---Suit filed by plaintiff was decreed and appeal filed against the same was also dismissed---Validity---Provisions of Qanun-e-Shahadat, 1984, were not applicable to Family Court's proceedings---Family Court could regulate its own procedure and was not bound by the rigors of Qanun-e-Shahadat, 1984, but Family Court was not barred from settlement of the dispute on special oath---Subsequent objection of the defendant that it was in violation of Art.163 of Qanun-e-Shahadat, 1984, was not tenable---Constitutional petition was dismissed.

1990 MLD 389 and Attiqullah v. Kafayatullah 1981 SCMR 162 ref.

Najibumllah Khan and another v. Fazal Karim and 2 others 1997 SCMR 1085 rel.

Baqir Bakhtiar and Abuzar Haider for Petitioner.

Asmatullah Achakzai for Respondent No.1.

2021 C L C 944

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

GHULAM SAMADANI and 3 others----Petitioners

Versus

AKBAR KHAN and 3 others----Respondents

Civil Revision No.235 of 2014, decided on 30th October, 2019.

Specific Relief Act (I of 1877)---

----Ss.39, 42 & 54---Constitution of Pakistan, Art.172(1)---Suit for cancellation of document, declaration and injunction--- Ownerless property---Plaintiffs/petitioners claimed to be owners in possession of suit property purchased by their predecessor-in-interest before Independence from a hindu owner---Suit was partially decreed in favour of plaintiff/petitioner and appeal was dismissed by Lower Appellate Court---Validity---Whereabouts of hindu owner were not known while neither plaintiff/petitioner nor defendants/respondents were having any entitlement either to retain possession or to seek declaration in any manner---Share of hindu (evacuee) owner was proved to be ownerless thus provision of Art.172 of the Constitution would come into play--- Neither of the parties was having any right or entitlement in disputed property and no one else known to Court was having any right or entitlement therein, except its recorded owner---Property in question stood escheated to the State under Art.172 of the Constitution---High Court directed Deputy Commissioner to initiate proceedings for taking steps for escheatment the hindu's property---Revision was dismissed, in circumstances.

Mujeeb Ahmed Hashmi for Petitioners.

Jahangir Khan Rind for Respondent No.4.

Saifullah Sanjrani, A.A.G. for the State.

2021 C L C 985

[Balochistan]

Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ

TAQVEEM SHAH----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN and 2 others----Respondents

C.P. No.1350 of 2020, decided on 23rd December, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Writ of quo warranto---Maintainability---"Aggrieved person"---Locus standi---Scope---Petitioner assailed appointment of respondent after his retirement on contract basis in an Authority which was a body corporate---Validity---Person could not be said to be an 'aggrieved person' unless he had a right in performance of statutory duty by a person performing functions in respect of any right which he could have in relation to performance of such function---Any person invoking Constitutional jurisdiction of High Court had to establish direct or indirect injury to himself and his substantial interest in subject matter---To satisfy requirement of 'aggrieved person' in public interest litigation under Art.199 of the Constitution, petitioner needed to have disclosed a personal interest in performance of legal duty owed to him which if not preformed would result in loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise---High Court declined to interfere in the matter as petitioner did not fall within the definition of an 'aggrieved person' and he had not locus standi to invoke Constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Ahbah Cooperative Housing Society Ltd. v. Commissioner, Lahore Division PLD 1978 Lah. 273; Jan Muhammad v. Government of N.W.F.P. 1993 CLC 1067; Ardeshir Kowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi 1999 SCMR 2883; Tasbhai Motibhai Desai v. Roshan Kumar AIR 1976 SC 578; Abdul Majeed v. Deputy Commissioner Sialkot 1991 CLC 1995; Abdul Mujeeb Pirzada v. Federation of Pakistan PLD 1990 Kar. 9 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

Inayatullah Kasi and Masood Tareen for Petitioners.

2021 C L C 1001

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD IBRAHIM----Petitioner

Versus

MAHRBAN KHAN and 5 others----Respondents

Civil Revision No.193 of 2019, decided on 4th September, 2020.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1---Withdrawal of suit with permission to file fresh---Principle---Application filed by defendant / petitioner for rejecting the plaint was dismissed by Trial Court---During pendency of appeal against order of Trial Court, plaintiff / respondent sought withdrawal of his suit---Lower Appellate Court allowed application to withdraw the suit with permission to file fresh one---Validity---Court while allowing or disallowing permission was duty bound to advert to reasons propounded by plaintiff / respondent and to pass a speaking order assigning reasons for its conclusion meeting objective requirement of rule of 'satisfaction' as was envisaged in O.XXIII, R.1(2), C.P.C.---When Court allowed the requisite permission, the order in that behalf must spell out the objectivity test of 'satisfaction' so that it could be gauged and judged that request of plaintiff / respondent for withdrawal was not tainted with any oblique and mala fide motive, nor it was meant to cause harm and prejudice to defendant / petitioner to put him in disadvantageous position---Request for withdrawal was not to be motivated to misuse authority of Court and abuse the process of law---Lower Appellate Court did not give any sufficient reasons for accepting application of plaintiff / respondent---Existence of sufficient grounds was condition precedent under O.XXIII, R.2(b), C.P.C. for allowing plaintiff / respondent to institute a fresh suit---Application filed by plaintiff / respondent did not disclose any justification for extending permission to plaintiff / respondent to file a fresh suit on the subject matter---High Court set aside order passed by Lower Appellate Court granting permission to withdraw the suit---High Court remanded the matter to Lower Appellate Court for decision on appeal seeking rejection of plaint--- Revision was allowed accordingly.

Muhammad Yar (deceased) through L.Rs and others v. Muhammad Amin (deceased) through L.Rs and others 2013 SCMR 464; Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue Punjab and others PLD 2003 SC 979 and Salma Khalil and three others v. Rashida Siddique and another 2000 CLC 260 rel.

Muhammad Ibrahim Umar Lehri for Petitioner.

Sardar Ahmed Haleemi for Respondent No.1.

Tariq Asad Muhammad Shahi for Respondents Nos.2 and 3.

Shahid Baloch, Additional Advocate General ("AAG") for Respondent No.4.

2021 C L C 1127

[Balochistan]

Before Rozi Khan Barrech, J

SECRETARY COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF BALOCHISTAN, QUETTA and another----Petitioners

Versus

ABDUL MAJEED and 7 others----Respondents

Civil Revision No.228 of 2017, decided on 16th September, 2020.

Specific Relief Act (I of 1877)---

----Ss.12 & 42---Contract Act (IX of 1872), S. 23---Constitution of Pakistan, Art.25---Civil Procedure Code (V of 1908), S.115---Suit for specific performance of agreement and declaration--- Void agreement---Unlawful consideration---Plaintiff / respondent gave his land to defendant / authorities for construction of rest house on the basis of an agreement to provide job/service of class-iv to a person nominated by him---Suit filed by plaintiff / respondent was dismissed by Trial Court but Lower Appellate Court decreed the same in his favour---Validity---Such agreement was not according to law as no post could be filled on recommendation of private persons---Agreement in question had no legal sanctity, it was illegal and against public policy--- No one had a right to be appointed on recommendations of donor of land as the same was in violation of Art.25 of the Constitution--- Agreement of donated land in consideration of employment tantamount to sale of public office which was illegal under S.23 of Contract Act, 1872---Plaintiff/respondent claimed specific performance of void agreement and Lower Appellate Court did not consider such aspect of the matter while passing judgment---High Court set aside judgment and decree passed by Lower Appellate Court as the same was passed illegally and irregularly whereas restored that of Trial Court---Revision was allowed in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 ref.

Ahmed Ali Baloch, Additional Advocate General ("AAG") for Petitioners.

Basit Shah for Respondents.

2021 C L C 1138

[Balochistan]

Before Abdul Hameed Baloch, J

Mst. NAIK MURGH and others----Petitioners

Versus

SANAULLAH and others----Respondents

Civil Revisions Petitions Nos. 419 to 429 of 2011, decided on 17th August, 2020.

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

----O.XLI, R.24---Remand---Scope---Sufficient evidence---Non-remanding of case---Effect---If Court proceeds with matter and finds it fit, the Court may decide the same on merit without remanding the case to Trial Court---Remanding of case may prolong agony of parties---Purpose of O.XLI, R.24, C.P.C. is to minimize hardships of litigants and unnecessary delay in disposal of cases.

Ashiq Ali v. Mst. Zamir Fatima PLD 2004 SC 10 rel.

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

----O.VI, R.7---Pleadings---Plea not raised---Evidence, leading of---Principle---Party cannot be allowed to lead evidence on plea not raised in pleadings---Evidence produced by parties contrary to pleadings cannot be considered---Civil cases depend upon pleading of parties and they have to be confined within four corners of pleadings---Where no specific plea is taken by either party, evidence with regard to such plea even brought on record cannot be considered.

Abrar Ahmed's case PLD 2014 SC 331; Tahseen Asghar v. Additional District Judge, Burewala, 2018 MLD 617; Combined Investment (Pvt.) v. Wali Bhai PLD 2016 SC 730; Essa Engineering Company (Pvt.) Ltd. v. Pakistan Telecommunication Company Limited 2014 SCMR 922 and Muhammad Nawaz alias Nawaza v. Member Judicial Board of Revenue 2014 SCMR 914 rel.

(c) Balochistan Land Revenue Act (XVII of 1967)---

----S.52---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Plea, proof of---Onus to prove---Entries in record of rights---Presumption---Plaintiff claimed to be owners of suit property and defendants were in unlawful possession--- Plea raised by plaintiffs was that defendants with collaboration of Settlement Authorities mutated disputed land in their names in record of rights as Bazgarin possession---Suit was decreed by Trial Court but Lower Appellate Court reversed the findings and dismissed the suit---Validity---Plaintiff failed to produce any document or oral evidence in regard of collaboration of defendants with revenue authorities---Possession of defendants was admitted by witnesses and attorney of plaintiffs--- Suit land was in possession of defendants in settlement of year 1991-92 and defendants were in possession as Bazgar of the land---Entries of mutation in record of rights carried presumption of truth under S.52 of Balochistan Land Revenue Act, 1967---When a party had alleged a fact must prove it on the strength of his own evidence--- Statements of witnesses of plaintiffs were contradictory with each other---For proving case there had to be consistency in statements of witnesses and plaintiff--- When there was any ambiguity or inconsistency in statement of witnesses and plaintiff, then suit was to fail---Plaintiffs failed to point out any illegality and irregularity in judgments and decrees passed by Lower Appellate Court---High Court declined to exercise revisional jurisdiction as judgments and decrees were not passed in excess of authority or mis-exercise of jurisdiction or material irregularity nor were arbitrary---Revision was dismissed, in circumstances.

Inspector General of Police Balochistan Quetta v. Ghulam Rasool 2012 CLC 1645; Gohram alias Ali Gohar v. Mst. Zar Bano alias Zero through legal heirs 2014 CLC 1126; Bakhtiar v. Nasrullah 2015 CLC 385; Mst. Khalida Bibi v. Muhammad Naeem 2019 CLC 1204 and Badar Zaman v. Sultan 1996 CLC 202 rel.

Asadullah for Petitioner.

Habib-ur-Rehman and Khalil-uz-Zaman, Additional Advocate-General for Official Respondent.

2021 C L C 1181

[Balochistan]

Before Abdul Hameed Baloch, J

GHULAM HUSSAIN----Petitioner

Versus

KHUDA BAKHSH----Respondent

Civil Revision No.(S)41 of 2019, decided on 14th October, 2020.

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

----O.XVII, R.3---Court may proceed notwithstanding either party fails to produce evidence---Scope---Petitioner assailed the dismissal of his suit under O.XVII, R.3, C.P.C.---Validity---Rule 3 of O.XVII, C.P.C. applied to cases where time was granted to the party at his instance to cause attendance of witnesses or duly perform the act which was necessary for progress of the suit---Request for adjournment should have been made by the party for the court to take action under the said provision---Revision petition was accepted and the case was remanded to the trial court with direction to provide one opportunity to the petitioner for submission of list of witnesses.

Mst. Zaitoon Begum v. Muhammad Ilyas PLD 1971 Lah. 143 and Israr Ahmed Afzal v. Haji Muhammad Azram 2016 MLD 1490 rel.

(b) Administration of justice---

----Party cannot be deprived from his right on the basis of technicalities---Law favour decision on merit rather than technicalities.

Hasnain Iqbal Minhas for Petitioner.

2021 C L C 1189

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD NABI----Petitioner

Versus

BIBI MALIKA----Respondent

Civil Revision No.434 of 2019, decided on 17th July, 2020.

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

----O.IX, R.13 & O.V, R.20---Constitution of Pakistan, Art.10-A---Application to set aside ex-party decree, rejection of---Modes of service to the defendant---Scope---Right to fair trial---Scope---Held, that though the notices, in the present case, were issued to the petitioner but the same could not be served upon him and then publication was made in newspaper for his appearance, thereafter ex-parte proceedings were initiated against the petitioner and after recording ex-parte evidence, the suit was decreed in favour of respondent---Trial Court did not ascertain the factual position as to whether the notices had properly been served upon the petitioner and impugned decree and judgment did not justify reasons for the rejection of application under O.IX, R.13, C.P.C.---Article 10-A of the Constitution provided that a person "shall" be entitled for fair trial and due process both in civil and criminal proceedings and the rights of person were protected---Even otherwise, under O.V, R.20, C.P.C, substituted service could only be ordered where the Court was satisfied that there were reasons to believe that the defendant was keeping himself away for the purpose of avoiding service or that for any other reason, the summons could not be served in the ordinary way---Trial Court was supposed to do substantial justice between the parties by restoring the suit in its original position and allowing the parties to prosecute the suit on merits and to lead evidence their pro and contra evidence---Trial Court, in the present case, had failed to effect service of notice upon the petitioner/defendant through process-server or on the pointation of the respondent/plaintiff as the premises of defendant was known to the respondent---Even if the service could not be effected the Trial Court was duty bound to have asked for filing of a fresh address of the defendant , but instead the Trial Court ordered for proclamation in the newspaper---Said procedure was bad in law and the process-server had not reported either the avoidance or refusal of service by the defendant, as such the defendant had not been properly served---Petitioner was non-suited and was condemned unheard, in circumstances---High Court set aside the impugned judgments and decrees passed by both the Courts below---Case was remanded to the Trial Court for decision on merits by providing full and fair opportunity to the parties---Constitutional petition was allowed, in circumstances.

Malik Muhammad Nazir v. Mian Abdul Raheem and another PLD 1968 Lah. 792 ref.

(b) Administration of justice---

-----Cases were to be decided on merit instead of technicalities.

Noor-ur-Din Kakar for Petitioner.

Hamayun Tareen for Respondent.

2021 C L C 1196

[Balochistan]

Before Muhammad Ejaz Swati and Zaheer ud Din Kakar, JJ

MUHAMMAD USMAN and another----Petitioners

Versus

BIBI AMINA and others----Respondents

Constitutional Petition No.675 of 2014, decided on 7th September, 2020.

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

----Ss.42 & 172---Making of that part of periodical records which relates to land owners---Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers---Scope---Petitioners assailed orders passed by Revenue Authorities whereby mutations entered in their favour were cancelled---Validity---Impugned mutations were sanctioned on the basis of unregistered sale deed and power of attorney---Subsection (7) of S.42 of Balochistan Land Revenue Act, 1967, had made exception in case of inheritance, registered deed, order or decree of the court but in all other cases not only the presence of person whose right was being acquired was necessary, his identification by two respectable persons and the inquiry in the common assembly as envisaged under subsection (8) of S.42 of the Balochistan Land Revenue Act, 1967 was also necessary---Attestation of impugned mutations on the basis of unregistered documents was an error of law apparent on the face of record, which was not controversial in nature as per S.172(2)(vi) of Balochistan Land Revenue Act, 1967---Only revenue authorities were entitled to correct such entry in a record-of-right, periodical entry or register of mutation to the exclusion of the Civil Court---Petitioners had no alternative except to seek remedy of title from Civil Court---Constitutional petition was dismissed.

2004 SCMR 604, 612 and 614 ref.

Dildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore and another 2013 SCMR 906 rel.

Muhammad Zahid Muqeem Ansari for Petitioners.

Muhammad Ilyas Mughal for Respondent No.1.

Muhammad Yousaf Khan for Respondents Nos.2 and 3.

Zahoor Ahmed Baloch, Assistant Advocate General for Official Respondents.

2021 C L C 1282

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MOHAMMAD IQBAL----Petitioner

Versus

MOHAMMAD HUSSAIN and 3 others----Respondents

Constitutional Petition No.1313 of 2018, decided on 29th June, 2020.

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

----O.XXIII, R.1(3) & O.VII, R.11---Specific Relief Act (I of 1877), Ss.42, 12 & 54---Suit for declaration, possession and permanent injunction---Institution of second suit when previous suit was withdrawn unconditionally---Rejection of plaint of subsequent suit---Scope---Held, that when there was total withdrawal of the suit then such suit was dismissed as withdrawn and was finally disposed of, bringing an end to the litigation under O.XXIII, R.1(3) of Civil Procedure Code, 1908---No subsequent suit (for declaration, possession and permanent injunction) in respect of same cause of action, between the same parties, could be filed---No illegality or irregularity was found in the impugned order passed by the Appellate Court rejecting the plaint of second suit filed by the plaintiff---Constitutional petition was dismissed, in circumstance.

Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 ref.

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

----S.12(2) & O.XXIII R.1---Withdrawal of previous suit unconditionally through counsel---Scope---Contention of the petitioner/plaintiff was that the previous suit was withdrawn by his counsel without his permission/authority and such withdrawal of the suit by his counsel was based on fraud and result of misrepresentation---Held, that the petitioner/plaintiff was at liberty to file an application under S.12(2), Civil Procedure Code, 1908 before the Civil Court to challenge the withdrawal of the said previous suit---No illegality or irregularity was found in the impugned order passed by the Appellate Court, rejecting the plaint of second suit filed by the plaintiff ---Constitutional petition was dismissed, in circumstances.

Muhammad Hassan Mengal for Petitioner.

Muhammad Ilyas Mughal for Respondent No.1.

Abdul Latif Kakar, A.A.G along with Hidayatullah, Law Officer Health Department Government of Balochistan for the State.

2021 C L C 1315

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL RAUF----Petitioner

Versus

ABBAS and 2 others----Respondents

Civil Revision No.176 of 2020, decided on 29th September, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for the declaration, mandatory and permanent injunction---Temporary---Injunction---Scope---Non-partitioned joint immoveable property---Co-sharers---Scope---Appellate Court passed injunctive order restraining the petitioner (co-sharer) from raising construction on joint land pending suit---Respondent contended that the Petitioner without legal entitlement and character, dumped construction material on joint land---Held, that each co-sharer was owner in every part of the joint property---Any co-sharer could not be permitted to change the character of the land, to the extent of his entitlement---Mutation of the respective Mauza, in the present case, was complete; the share of each share-holder was mutated in their names, however, the same was unpartitioned between the joint owners (co-sharer)---Petitioner had not disputed the ownership of the respondent(plaintiff) to the extent of his share---Alienation of the suit-property, under the circumstances, could change the nature of suit, therefore, any co-sharer could not be allowed to act in a manner which constituted an invasion on the right of other co-sharer---Petitioner failed to point out any illegality or irregularity in the impugned order passed by the Appellate Court and no interference was called for---Revision was dismissed, in circumstances.

Ali Gohar Khan v. Sher Ayaz 1989 SCMR 130 and Khurshid Anwar Jalil v. Muhammad Hafeez Mirza 2003 CLC 1695 ref.

Muhammad Qasim Manodkhail and Abdul Jabbar Musakhail for Petitioner.

Abdul Salam Agha and Azmatullah Achakzai for Respondents.

2021 C L C 1342

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MUHAMMAD ASHRAF MAGSI----Petitioner

Versus

Mst. SHAFIQA AKBAR and another----Respondents

Constitution Petition No.1271 of 2019, decided on 25th August, 2020.

Family Courts Act (XXXV of 1964)---

----Ss.5, Sched. & 10 ---Suit for dissolution of marriage---Pre-trial proceedings---Scope---Petitioner assailed the validity of decree passed by Trial Court for dissolution of marriage on the basis of khula---Trial Court had afforded several opportunities to the defendant to appear for pre-trial reconciliation proceedings to reconcile the controversy but he failed to do so, therefore, the right of the petitioner was struck off---Validity---No specific provision existed in the Family Courts Act, 1964, for striking off the defence of the defendant, however, mentioning of a word "if any" in subsection (2) of S.10 of the Family Courts Act, 1964, clearly showed the intention of legislature that the Family Court was neither helpless nor supposed to act as a silent spectator towards the inaction of the defendant in filing of written statement or not appearing for pre-trial reconciliation and if need arose it could proceed to strike off the defence of the defendant---Trial Court had not committed any illegality or irregularity warranting interference by the High Court in exercise of its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Naseebullah Agha for Petitioner.

2021 C L C 1357

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD RAHIM and another----Petitioners

Versus

ABDUL SAMAD and others----Respondents

Civil Revision No.104 of 2020, decided on 29th September, 2020.

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

----O.VII, R.11---Rejection of plaint---Adjudication of application under O.VII, R.11, C.P.C.---Exercise of powers under O.VII, R.11, C.P.C.---Scope---For determination of whether or not a suit disclosed a cause of action, Court had to confine itself only to averments of plaint and had to presume contents of said plaint as correct---While adjudicating upon an application for rejection of plaint under O.VII, R.11, C.P.C., Court could not go beyond such averments of plaint.

Hamid Ghani v. Muhammad Basit Siddique PLD 2010 Lah. 487 and Sanaullah v. Naik Muhammad 2019 YLR 2699 rel.

Shah Rasool for Petitioner.

Malik Khurram and Mir Ahmed Ali Baloch, A.A.G. for Respondents.

2021 C L C 1379

[Balochistan]

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

SOCIETY FOR COMMUNITY DEVELOPMENT (SCD), through EXECUTIVE DIRECTOR----Appellant

Versus

UNITED NATIONS INTERNATIONAL CHILDREN EMERGENCY FUND, (UNICEF), PAKISTAN through Representative and others----Respondents

R.F.A. No.69 of 2016, decided on 31st August, 2020.

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

----S.9---Specific Relief Act ( I of 1877), S. 42---Suit for declaration and recovery of damages etc.---Agreement contained clause regarding "Resolution of Differences"---Availability of alternate remedy---Civil Court, Jurisdiction of---Scope---Plaintiff/company and defendant / United Nations International Children Emergency Fund (UNICEF) entered into an agreement by introducing as Program Cooperation Agreement (PCA) for a period of one year---Plaintiff, being aggrieved from the Audit Findings of PCA conducted by the defendant, sought declaration that the said audit was biased and contrary to the provisions of PCA---Held, that PCA contained Clause 55 regarding "Resolution of Differences" which stipulated that if there was a dispute, controversy or claim between the parties they would try to reach agreement amicably by direct negotiation and if no agreement could be reached within the period of thirty (30) days, then the dispute or controversy or claim would be decided by the UNICEF Regional Director for the region (that included Pakistan) and the Chief Executive of partner meeting together, in person or otherwise, to consider such matter---In said respect, it was noted that the appellant/plaintiff without availing the alternate remedy as provided under relevant Clause of the PCA, approached the inappropriate forum i.e. Civil Court for redressal of his grievances---Suit before the Civil Court was not competent before exhausting the available remedy under the law---Where a special remedy was provided, the same could not be bypassed and the Civil Courts should not be approached directly without exhausting the proper forum in the hierarchy for the subject purpose---Jurisdiction of Civil Courts was also impliedly barred where an alternate remedy had been provided under the law, provided that the authority was not exercised in excess of the jurisdiction conferred upon the Authority---Appellant/plaintiff had failed to point out any illegality, irregularity or perversity in the impugned ex-parte judgment and decree passed by the Trial Court dismissing his suit---Appeal was dismissed, in circumstances.

Muhammad Jalat Khan v. Faisal Hayat Khan and 4 others 2003 CLC Pesh. 837; Hakam and others v. Tassadaq Hussain Shah PLD 2007 Lah. 261; Zahid Hussain and 10 others v. Shamsuddin and 9 others 2014 CLC Sindh 1334 and Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique & Co. (Regd.) and others 2008 SCMR 1272 ref.

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

----S.9---Specific Relief Act (I of 1877), S.42---Convention on the Privilege and Immunities of the United Nations---Art.II, S.2 & Art.V, S.18(a)---Basic Cooperation Agreement, Art.IX---Suit for declaration and recovery of damages etc.---Diplomatic immunity---Scope---Civil Court, jurisdiction of---Plaintiff/company and defendant/United Nations International Children Emergency Fund (UNICEF) entered into an agreement by introducing as Program Cooperation Agreement (PCA) for a period of one year ---Plaintiff, being aggrieved from the Audit Findings of PCA conducted by the defendant, sought declaration that the said audit was biased and contrary to the provisions of PCA---Held, that UNICEF as a subsidiary organ of the United Nations was entitled to the privileges and immunities provided in the Convention on the Privileges and Immunities of the United Nations ('the General Convention') with which Pakistan had been a party since September 22nd , 1948---Section 2 of Article-II of the General Convention stipulated that the United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every forum of legal process except insofar as in any particular case, it was expressly waived its immunity---Section 18(a) of the Article-V of the General Convention stipulated that the officials of the United Nations shall " be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity---Further, Article-IX of the basic Cooperation Agreement (BCA) between the Federal Government and UNICEF reaffirmed the applicability of the General Convention---Trial Court had rightly held that the respondent/defendant had diplomatic immunity and could not be sued in Civil Courts and the jurisdiction of the Civil Courts were barred to entertain any such suit against them being functionary of UNICEF---Appellant/plaintiff had failed to point out any illegality, irregularity or perversity in the impugned ex-parte judgment and decree passed by the Trial Court dismissing his suit---Appeal was dismissed, in circumstances.

Nusrat Khan Afghani for Appellant.

Nemo. for Respondents.

2021 C L C 1560

[Balochistan]

Before Abdul Hameed Baloch, J

SAHIB ZADA DIN MUHAMMAD----Petitioner

Versus

MUHAMMAD ZAMAN and others----Respondents

Civil Revision No.310 of 2018, decided on 17th December, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1, 2 & 2-B---Civil Laws (Reforms) Act (XIV of 1994), preamble---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration, partition and permanent injunction ---Interim injunction, ceasing to have effect under R.2-B of O.XXXIX, C.P.C---Scope and object---Civil Court passed restraining order directing the parties to maintain status-quo, which order was upheld by Appellate Court in appeal preferred by the petitioner (defendant)---Held, that Civil Laws Reforms Act, 1994, amended O.XXXIX of the Civil Procedure Code, 1908 , by adding R.2-B, whereby temporary injunction ceased to have effect on expiry of six months---Object of R.2-B, O.XXXIX, C.P.C, 1908, was to expedite the disposal of the cases in which temporary injunction was granted---Object of limit of six months was to put embargo on the power of Court granting temporary injunction for indefinite period---Purpose of said amendment was to discourage the misuse of the interim order for protracting the litigation---After the enactment of said Rule 2-B, the Court while extending the interim injunction shall have to record reasons coupled with reporting of the said extension to the High Court---Record revealed that the interim(status-quo) order , in the present case, passed by the Trial Court and upheld by the Appellate Court, was no more in field as the same had spent out its statutory life---Revision petition was disposed of accordingly.

XEN PESCO (WAPDA) v. Gas Masers CNG Filling Station PLD 2005 Pesh. 132 ref.

Rehmatullah Barech for Petitioner.

Habib-ur-Rehman for Respondent No.2.

Najeeb Tareen for Respondent No.8.

Nazeer Ahmed (Attorney) in person for Respondents Nos.5 to 7.

Ahmed Ali Baloch, A.A.G for Respondents.

2021 C L C 1579

[Balochistan]

Before Rozi Khan Barrech, J

WAHID BAKHSH----Appellant

Versus

ACHAR----Respondent

F.A.O. No.85 of 2015, decided on 6th August, 2020.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 15---Qanun-e-Shahadat (10 of 1984), Arts.72 & 78--- Ejectment of tenant--- Landlord and tenant, relationship of---Proof---Documentary evidence---Production and admissibility---Appellant was alleged to be tenant in demise premises against which ejectment order was passed on the basis of documents produced by respondent / landlord, whereas relationship of tenant and landlord was denied by the appellant/tenant---Validity---Producing of documents and proof of documents were two different subjects---Documents could be produced in evidence subject to proof as required under Art.78 of Qanun-e-Shahadat, 1984---Neither the person who signed the documents was examined nor it was proved through any other evidence to suggest that documents were issued by the person mentioned in the document---Documents which were relied upon by Rent Controller were not proved in accordance with law, therefore, the same could not be taken into consideration---High Court set aside the ejectment order which was based on the documents not part and parcel of record and due process of evidence was not adopted, resultantly matter was remanded to Rent Controller for decision afresh---Appeal was allowed accordingly.

Muhammad Yousuf v. S.M. Ayub PLD 1973 SC 160 at page 191 and Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 rel.

Muhammad Afzal for Appellant.

Muhammad Akram Shah for Respondent.

2021 C L C 1635

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

BIBI QURESH----Petitioner

Versus

The GOVERNMENT OF BALOCHISTAN, through Secretary Home and Tribal Affairs Department and 3 others----Respondents

C.P. No.77 of 2018, decided on 17th August, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Pendency of civil litigation---Alternate remedy, availability of---Effect---Petitioner sought order restraining the respondents from dispossessing her from the disputed property---Validity---Petitioner had already filed a suit for declaration and permanent injunction before the civil court and there was hardly any plausible basis or explanation to seek indulgence in the extraordinary jurisdiction of the High Court under Art.199 of the Constitution---Interference in constitutional jurisdiction could not be solicited in the presence of an adequate alternate remedy---Constitutional petition was dismissed.

Farzand Rana Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 and Muslim Commercial Bank Ltd. and others v. Ahmed Ali and another 2007 SCMR 38 ref.

Mian Muhammad Yousaf and another v. Lahore Development Authority through Director General, LDA and 5 others PLD 2001 SC 393 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Pendency of civil litigation---Effect---Where the aggrieved party has already initiated civil litigation, the invocation of constitutional jurisdiction will not be justified.

Mian Muhammad Yousaf and another v. Lahore Development Authority through Director General, LDA and 5 others PLD 2001 SC 393 rel.

Nemo. for Petitioner.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondents.

2021 C L C 1647

[Balochistan]

Before Abdul Hameed Baloch, J

NIAMATULLAH and 2 others----Petitioners

Versus

ESSA KHAN and 9 others----Respondents

Civil Revision No.323 of 2016, decided on 18th November, 2020.

Civil Procedure Code (V of 1908)---

----O.XLI, R.31---Suit for declaration, cancellation of document and permanent injunction---Trial Court dismissed the suit of the plaintiff/petitioner which judgment was upheld by the Appellate Court without stating points of determination---Held, that under O.XLI, R.31 of the Civil Procedure Code, 1908, it was mandatory upon the Appellate Court to state the points for determination; the decision thereon; the reasons for the decision; and where the decree appealed from was reversed or varied, the relief for which the appellant was entitled for---Appellate Court was supposed to state points for determination and should apply its independent judicial mind to the controversy involved between the parties---Phrase "points for determination" stipulated in O.XLI, R.31 C.P.C, referred to all important questions involved in the case---High Court set aside impugned judgment and decree passed by the Appellate Court and remanded the case for a decision afresh in accordance with the provisions of O.XLI, R.31, C.P.C---Revision was allowed, in circumstances.

Gul Muhammad v. Kaimuddin 2012 YLR 2018 ref.

Gul Hassan for Petitioners.

Bangul Marri for Respondent No.1

Kaleemullah Kakar for Respondent No.3.

Bilal Mohsin for Respondent No.6.

Ahmed Yar, Assistant Advocate General for Official Respondents.

2021 C L C 1738

[Balochistan]

Before Abdul Hameed Baloch, J

WING COMMANDER, PAF BASE, SAMUNGLI, QUETTA----Petitioner

Versus

NASEEBULLAH KHAN and others----Respondents

Civil Revision No.373 of 2018, decided on 14th June, 2021.

(a) Works of Defence Act (VII of 1903)---

----Ss.3 & 7---Constitution of Pakistan, Arts. 9, 23 & 24---Land Acquisition Act ( I of 1894), Preamble---SRO No.706(I)/2003 dated 8th July, 2003---Restriction in raising construction in specified area of works of defence (Old Bomb Dump) ---Right of property---Reasonable restrictions---Scope---Plaintiffs sought declaration and permanent injunction that the defendants (authorities at PAF Base) could not forcibly forbid the construction at their property---Civil Court decreed the suit holding that the defendants could not restrict the plaintiffs without adopting procedure under the provisions of Works of Defence Act, 1903---Petitioners/defendants contented that plaintiffs had illegally raised construction near the boundary wall of PAF Base which caused security threat---Held, that neither the petitioners/defendants had disputed the ownership of the respondents/plaintiffs nor they had challenged the recorded mutation entries, in their (respondents') favour before revenue hierarchy --- No person could be deprived from his/their proprietorship without process of law-Right to acquire was subject to some reasonable restriction as contained in the Land Acquisition Act, 1894---Right to hold, own and dispose of property was one of the fundamental rights---No person would be compulsorily deprived of property save in accordance with law---Any act of executive authority depriving a person from his property was contrary to law unless the act was in accordance with law---Authority under the Government could not deprive a person from the ownership of his land through executive action ---Every citizen had a right to utilize his property, earn his/their livelihood---Article 9 of the Constitution guaranteed the life and liberty of a citizen---Record revealed that petitioner/defendant, without adopting legal procedure provided under the law, had forbidden the respondents from utilization of their land ---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, in circumstances.

Zubaida Yaqoob Chaudhary v. Military Estate Officer PLD 2018 Lah. 295 and Ch. Muhammad Ishaque, Advocate v. Cantonment Executive Officer, Chunian, District Kasur PLD 2009 Lah. 240 ref.

(b) Constitution of Pakistan---

----Art.23---"Property"---Word "property" included moveable and immoveable property---Every citizen of the State had a right to own, hold and acquire property which right could not be taken away other than the due process of law.

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

----O.XLI, R.23 & O.XIV, R.5---Remand of case by Appellate Court---Improper framing of issues ---Scope---Petitioner contended that case be remanded as the Trial Court had not framed the issues as per pleadings---Held, that where parties were aware of controversy and had also led evidence then question whether issue was properly framed or improperly framed would become immaterial---Improper framing of issues could not be considered a ground to remand the case unless the same had caused grave injustice to a party---Both the parties, in the present case, had led their evidence as they were aware of the controversy---No allegation was on the record that the Trial Court had not provided opportunity for adducing evidence---Non-framing of issues on particular point was inconsequential---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, in circumstances.

Fazal Muhammad Bhatti v. Saeed Akhtar 1993 SCMR 2018 ref.

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

----S.115(1)(a)(b)(c)---Revision---Jurisdiction of High Court---Scope of revisional jurisdiction of the High Court was limited---Revisional Court had to examine three factors as envisaged under S.115(1)(a)(b)(c), C.P.C.---Revisional Court was not Court of appeal---Where conclusion of law and fact did not ,in any way, affect the jurisdiction of the Court no matter howsoever erroneous the decision might be---Section 115, C.P.C., could not be invoked unless impugned decision involved matter of jurisdiction.

Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469 ref.

Mushtaq Anjum and Yousaf Kakar for Petitioners.

Akram Shah and Mehboob Alam and Ayub Tareen, Additional Advocate General for Respondents Nos.1 to 5.

2021 C L C 1766

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD DAWOOD KHAN----Petitioner

Versus

ABDUL GHANI and 2 others----Respondents

Civil Revision No.177 of 2021, decided on 14th June, 2021.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1(2)---Specific Relief Act (I of 1877), Ss.42 & 39---Suit for declaration, cancellation/revocation of sale-agreement and permanent injunction---Withdrawal of suit with permission of Court--- Formal defect---Other sufficient grounds---Scope---Suit was filed before the expiry of date mentioned in sale-agreement---Civil Court rejected the application of plaintiff/petitioner filed under O.XXIII, R.1(2) of Civil Procedure Code, 1908, for withdrawal of the suit on the ground that the defect was not formal---Held, that in terms of O.XXIII, R.1(2)(b) of Civil Procedure Code, 1908, the Court was empowered to allow the plaintiff to file a fresh suit on other sufficient grounds , meaning thereby the formal defect was not the only pre-condition for permission to file suit afresh---Record revealed that respondents/defendants had already raised objection in their written-statement on maintainability of suit on the ground that prior to completion of date for specific performance the suit of plaintiff was pre-mature---Petitioner had filed application under O.XXIII, R.1(2), C.P.C, taking ground that he filed the suit before expiry of date for specific performance, which meant that he had no cause of action---Sub-rule (b) of R.1(2) of O.XXIII, C.P.C, was not limited to formal defect but the Court could consider the "other sufficient" ground for deciding the application for withdrawal ---Technicalities should not be allowed to defeat the justice---High Court set-aside impugned order passed by Civil Court by which the application of the petitioner/plaintiff under O.XXIII, R.1, C.P.C, for withdrawal was rejected and accepted the said application while allowing him to withdraw his suit to file his suit afresh---Revision petition was allowed, in circumstances.

1989 MLD 3040 ref.

Iqbal Kasi for Petitioner.

2021 C L C 1788

[Balochistan]

Before Rozi Khan Barrech, J

ABID ALI and another----Petitioners

Versus

MUHAMMAD TAHIR and 3 others----Respondents

Civil Revisions Nos.528 and 529 of 2019, decided on 4th September, 2020.

Islamic Law---

----Will---Validity---Scope---Will, in favour of legal heirs---Principle---Plaintiffs claimed to be owners of suit property on the basis of 'Will Deed' executed by their deceased father during his life time---Defendants were also legal heirs of deceased who were denied execution of any such deed---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal filed by plaintiffs---Validity---Legal heirs had not consented rather contested the suit and alleged 'Will Deed' was not according to Islamic Law---When other legal heirs did not assent to bequest to plaintiffs, the property was to be devolved in inheritance by way of inheritance mutation attested in favour of parties to all legal heirs as per law and "Will" could be valid to the extent of 1/3rd of the property---"Will Deed" could only be enforceable as the bequeath of deceased if it was assented to by other legal heirs, who did not assented to the will as such the same was not enforceable---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two Courts below as there was no illegality or misreading or non-reading of evidence could be pointed out---Revision was dismissed, in circumstances.

Muhammadan Law by Aamir Ali Chapt.20 P.589; Mahomed Hussain Haji Ghulam Mahomed Alam v. Alshabai and others AIR 1935 Bombay 84; Muhammad Aslam Rashid and 2 others v. Dr. Muhammad Anwar Saeed and 4 others 1997 CLC 2012; Ihsan Ilahi and others v. Hukam Jan PLD 1967 SC 2000; Abdul Razzaq and eight others. v. Shah Jehan and 5 others 1995 SCMR 1489 and Zakirullah Khan and others v. Faizullah Khan and others 1999 SCMR 971 ref.

Shahid Javed Nagi for Petitioners.

Abdul Sadiq Khilji for Respondents Nos.1 to 3.

Shahid Baloch, Additional Advocate General ("A.A.G.") for Respondent No.4.

2021 C L C 1807

[Balochistan]

Before Rozi Khan Barrech, J

SHABAN KHUDA BAKHSH----Petitioner

Versus

HATIMA AMEER and 2 others----Respondents

Succession Appeal No.03 of 2020, decided on 13th August, 2020.

Succession Act (XXXIX of 1925)---

----Ss.373 & 384---Succession certificate, application for---Title to property---Jurisdiction---Son of deceased sought succession to amount lying in Bank account of his deceased father---Widow claimed full amount lying in the account to the exclusion of other legal heirs on the plea that amount was sale consideration of plots owned by her---Trial Court issued succession certificate to all legal heirs as per their shares---Validity---Petition for grant of succession certificate was filed under S.373 of Succession Act, 1925, and such proceedings before Trial Court were summary in nature---Intricate questions could not be resolved in such proceedings---Questions of title to property was to be left to be decided in suit before Court of plenary jurisdiction---High Court declined to interfere in Certificate issued by Trial Court---Appeal was dismissed, in circumstances.

Mst. Aisha and 2 others v. Mst. Mah Gul and 2 others 2015 CLC 1719; Aziz Ahmed v. Hakimzadi and 7 others 2013 CLC 406; Mst. Samina Sikandar v. Public-at-Large PLD 2011 Lah. 192 and Banarasi Dass v. Tekka Dutta (2005) 4 SCC 4491 ref.

Behlol Khan Kasi for Petitioner.

Ghulam Mohiuddin Sasoli for Respondent No.1.

2021 C L C 1998

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ROOH ULLAH and another----Appellants

Versus

MATIULLAH and another----Respondents

R.F.As. Nos.33 and 39 of 2018, decided on 24th February, 2021.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of amount---Presumptions as to negotiable instrument---Burden of proof---Scope---Defendant assailed judgment and decree passed by trial court whereby plaintiff's suit under O.XXXVII, R.2, C.P.C., for recovery of amount mentioned in the disputed cheques was decreed---Validity---Plaintiff had successfully proved that the cheques were issued by the defendant---Cheques and dishonour slips were produced by the representative of the concerned Bank---Plaintiff had simply claimed that the cheques were issued by defendant which were dishonoured and that he was entitled for recovery of the amount mentioned in the cheques---Presumption was attached to negotiable instrument and the burden was on the defendant to prove the contrary---Defendant had claimed that he had issued the cheques to another person having similar name as that of plaintiff and that said person being relative of the plaintiff had handed over the cheques to the plaintiff---Defendant had not filed an application to the concerned Bank for cancellation of the cheques---Plaintiff had produced the said person who had denied the suggestion of defendant that cheques were issued in his favour---Mere denial of the defendant was not sufficient---Judgment of Trial Court was not open to any exception---Appeal was dismissed.

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

----O.XXXVII, R. 2---Suit for recovery of amount---Qarz-e-hasana---Award of interest/mark up---Scope---Plaintiff filed suit under O.XXXVII, R.2, C.P.C., for recovery of amount mentioned in the disputed cheques---Trial court decreed the suit but did not grant interest at the prevailing bank rates nor did it award costs---Validity---Plaintiff had stated that he had given loan to the defendant as qarz-e-hasana---Plaintiff was not entitled for interest/mark up on the loan given to the defendant---Appeal was dismissed.

Dr. M. Aslam Khaki v. Syed Muhammad Hassan and 2 others PLD 2000 SC 225 and Badshah Jan v. Allah Ditta Sethi and others PLD 2013 Isl. 39 rel.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.6---Suit for recovery of amount---Cheque---Scope---Cheque falls within the definition of negotiable instrument whereupon the plaintiff can file suit under O.XXXVII, R.2 of C.P.C.

Muhammad Akber Shah for Appellant (in R.F.A. No.33 of 2018).

Khushnood Ahmed for Respondent (in R.F.A. No.33 of 2018).

Khushnood Ahmed for Petitioner (in R.F.A. No.39 of 2018).

Muhammad Akber Shah for Respondent (in R.F.A. No.39 of 2018).

2021 C L C 2141

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL RAUF RANA----Petitioner

Versus

UNIVERSITY OF BALOCHISTAN, through Chancellor, Governor House, Quetta and another----Respondents

C.P. No.1481 of 2019, decided on 25th November, 2020.

University of Balochistan Act (III of 1996)---

----Ss. 10 & 11---Constitution of Pakistan, Arts.199 & 10-A---Constitutional petition---Right to fair trial---Cancellation of degree---Scope---Petitioner assailed declaration issued by Deputy Controller of Examination (Certificates) on the order of Chancellor whereby his B.A. Annual Examination result and degree were cancelled---Petitioner's result and degree were earlier declared to be genuine but on an appeal of the petitioner's political opponent under Ss.10 & 11 of the University of Balochistan Act, 1996, the Chancellor had passed the impugned declaration---Validity---Respondents had failed to place on record a single iota of evidence of proceedings carried out by the Chancellor to establish that the petitioner had failed to appear before the appellate authority, which prima facie reflected that whatsoever had been done nothing was carried out in accordance with law---Petitioner was condemned unheard (Audi alteram partem) in sheer violation of Art. 10-A of the Constitution---No opportunity of fair trial was extended to the petitioner and the manner so adopted for decision of appeal was highly objectionable and had rendered the impugned declaration as illegal, void ab initio and without lawful authority---No provision of appeal was provided in Ss.10 & 11 of the University of Balochistan Act, 1996, against the inquiry report in connection with the unfair means of examinations---Constitutional petition was accepted and the impugned declaration was set aside.

Muhammad Amir Rana for Petitioner.

Muhammad Akram Shah, Additional A.G. for Respondent.

2021 C L C 786

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

ABDUL REHMAN and 5 others----Petitioners

Versus

NAZIM and 14 others----Respondents

Civil Appeal No.356 of 2019, decided on 21st August, 2020.

(On appeal from the judgment of the High Court dated 8-3-2019 in Civil Appeal No.40 of 2018).

(a) Islamic Law---

----Inheritance---Custom ---Scope---Right of females to inheritance---Scope---Plaintiff filed suit for declaration to the effect that she was owner in possession of the suit land to the extent of her share falling in her inheritance---Defendants filed cross suit for declaration cum perpetual injunction and cancellation of entries in revenue record claiming therein that the plaintiff had no right of inheritance as her nikah was solemnized in the Dogra regime and that according to custom prevailing at that time, the married females were excluded from the inheritance---High Court decreed the suit of plaintiff and dismissed that of defendant---Validity---No documentary proof was available on record to substantiate that the marriage of the plaintiff had taken place in Dogra regime and that, at that time, it was mandatory that subjects were to be governed by the custom--- The Holy Quran has already determined the share of the females in the inheritance and the Muslims are bound to perform all the acts according to the command ordained by the Holy Quran---High Court as well as District Court had rightly appreciated the relevant law on the subject, interference by Supreme Court was not warranted---Appeal was dismissed.

Akhtar Khan and 9 others v. Sarwar Khan and 12 others 2003 YLR 2812; Muhammad Irshad and 11 others v. Mst. Hanifa Begum and 8 others PLD 2007 SC (AJ&K) 20; Muhammad Rasheed and another v. Muhamm ad Bashir and another 2009 SCR 237; Muhammad Riaz and 14 others v. Kala Khan and 18 others 2014 MLD 1759; Muhammad Qasim v. Muhammad Yousaf and 26 others 2016 SCR 519; Mst. Abdul Bi (deceased) through LH v. Collector Land Acquisition and 3 others 2016 SCR 1338 and Abdul Hameed Khan and another v. Mst. Para Begum and 6 others 2017 SCR 269 ref.

Quranic verses No.7, No.11 and Nos.29 to 33 of Surah Al Nisa rel.

(b) Interpretation of statutes---

---Contradiction in Islamic and codified law---Scope---Whenever there is any contradiction between the Codified law and the Islamic law then the Islamic law shall prevail.

Bilawr Khan v. Amir Sabar Rahman and others PLD 2013 Pesh. 38 rel.

Ch. Amjad Ali for Appellants.

Respondents in person.

2021 C L C 1813

[Supreme Court (Azad J&K)]

Present: Raja Saeed Akram, CJ and Raza Ali Khan, J

TAHIR AYUB----Appellant

Versus

NAEEM AYUB and 10 others----Respondents

Civil Appeal No.249 of 2018, decided on 14th July, 2021.

(On appeal from the judgment of the High Court dated 4-5-2018 in Civil Appeal No.70 of 2013).

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

----S.122---Specific Relief Act (I of 1877), Ss.42 & 12---"Gift"---Counter deeds---Registered document, evidentiary value of---Suit for declaration, specific performance and perpetual injunction---Plaintiff/Appellant challenged the validity of registered gift-deed on ground of unsound mind of donor and element of pressure and coercion of the respondent and claimed his title on basis of unregistered gift-deed---Trial court rejected the plaint for having no cause of action---High Court dismissed the appeal---Maintainability---Document relied upon by the plaintiff/appellant failed to attain the status of a "gift-deed" being an unregistered document---On basis of such document neither a decree of specific performance of contract could be sought nor validity of a registered document could be challenged---Registered document (in favour of respondents) had preference over unregistered document (in favour of appellant), hence the latter document lost its evidentiary value in presence of the earlier---Supreme Court dismissed the appeal accordingly.

(b) Islamic law---

----'Hiba', defined---Essentials of---Delivery of possession, over-riding effect of---Hiba was an unconditional transfer of ownership in any existing property made immediately without any consideration during donor's life time and accepted by/on behalf of the donee---Delivery of possession had an over-riding affect in Islamic Law---Islamic law did not presume transfer of ownership rights from donor to the donee without the actual delivery of possession of the property.

Al-Hedaya & D.F. Mullah on Muhammadan Law ref.

(c) Gift---

----'Gift', essentials of---Declaration, delivery of possession and without consideration---Any deed which involved any sort of consideration in lieu of the transfer, would not fall under the definition of a "gift"---Declaration of a gift must be expressly made in clear words that the donor as conceding his ownership to the property completely---Gift made in ambiguous words was null and void---Without the delivery of actual possession to the donee, the gift was void even if it was made through a registered deed.

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

----O.VII, R.11---If plaint did not disclose cause of action, the same could be rejected.

Ammer Abbas Sial v. Province of Punjab 2020 CLC 792 ref.

Muhammad Yaqoob Khan Mughal, Advocate for Petitioner.

Sardar M.R. Khan and Saqib Javed, Advocate for Respondents.