CLC 2022 Judgments

2022 C L C 1454

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

SULEMAN SHAH----Petitioner

Versus

JUDGE FAMILY COURT/ADDITIONAL DISTRICT AND SESSION JUDGE MUZAFFARBAD and 2 others----Respondents

Writ Petition No.10 of 2022, decided on 25th March, 2022.

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

----S.5, Sched.---Interlocutory order---Recovery of dower---Entry in Nikahnama---Petitioner/husband claimed that at the time of his marriage father of respondent/wife presented written Nikahnama mentioning specific land measuring 06 Marlas in place of the already settled dower amount and on petitioner's resistance thereupon her father admitted and showed consent upon the already settled amount of dower as Rs.500,000/- but requested that at that time, it was not possible to execute new Nikahnama, therefore, in good faith the Nikah was duly completed; that land mentioned in Nikah was a crown land which could not be alienated; that respondent/wife left the house of the petitioner on her free will; that she filed a suit for recovery of dower which was contested by the petitioner; that on the date fixed for announcement of judgment, Family Court illegally framed additional issue to ascertain the market value of the land mentioned in Nikahnama instead of announcing the judgment; that Family Court illegally allowed application of respondent for summoning official for assessment of such value---Validity---High Court observed that petitioner had already filed 3 writ petitions: Firstly, seeking amendment in written statement, which was allowed accordingly; secondly, for framing additional issue, which was allowed and the Trial Court was directed to frame additional issue in view of amended written statement; thirdly, challenged certain orders of Family Court which was accepted by High Court providing an opportunity for recording evidence of witness of respondent and providing the same to the petitioner for cross-examination on the above witness---High Court could not invoke its writ jurisdictions in a routine matter, as such jurisdiction could only be invoked in extra-ordinary situation and in exceptional circumstances, and as such no eventuality was found---Constitutional Petition was not maintainable against the impugned interlocutory orders---Trial Court committed no illegality while summoning the official as witness to assess the market value of the land mentioned in Nikahnama because it was the only way for the Trial Court to ascertain the actual market value of that property---Petitioner was neither an aggrieved party within the meaning of Art.44 of the Azad Jammu and Kashmir Interim Constitution, 1974, nor had locus standi to invoke the extra-ordinary jurisdiction of High Court---Petitioner brought the factual controversy through the writ petition, which could not be determined without recording evidence---Constitutional petition was dismissed accordingly.

Muhammad Sabir v. Mst. Azra Bibi and 2 others 2011 CLC 417; Anjum Firdous v. Additional District Judge and others 2007 CLC 1433 and Mst. Razia Begum v. Jang Baz and 3 others 2012 CLC 105 rel.

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

----Preamble & S.5---Object---Azad Jammu and Kashmir Family Courts Act, 1993, is a special law and the basic purpose for the establishment of the Family Courts is to provide speedy and expeditious trial of the family matters and accord justice at the doors steps of the spouses---High Court observed that prevalent practice to bring the interim orders passed by the Family Courts by way of writ petition is not appreciable, which practice should be avoided so that particular purpose for enacting special law will be served.

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

----Art.44---Constitutional jurisdiction---Factual controversy---Scope---Disputed question of facts could not be resolved by High Court exercising its Constitutional jurisdiction rather it was for the Trial Court to determine the same after recording evidence on the factual controversies.

Tahir Aziz Khan for Petitioner.

2022 C L C 1465

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

KASHMIR ORPHAN RELIEF TRUST JARRI KASS MIRPUR through Chairman----Petitioner

Versus

FAMILY JUDGE HAJIRA and 2 others----Respondents

Writ Petition No.1827 of 2020, decided on 21st March, 2022.

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

----Ss.9, 12, 17 & 47---Respondent applied to the Chairman, Orphan Relief Trust, praying for custody of her minor girl aged 2-1/2 years---Petitioner/Trust accepted the application of respondent and she took the custody of the minor girl---Minor was properly being looked after by the petitioner/Trust---Petitioner/Trust applied for guardianship of minor and its application was pending before District Court---Father of the minor applied for custody and his application was passed by Family Judge declaring that he being father of the minor, was entitled to take back the custody of minor from the petitioner (Trust)---High Court directed the petitioner to produce the minor girl before the Court and simultaneously summoned mother and father of the minor---High Court ordered that the minor be put in the arms of her real mother and father but the minor girl on their attempt to take her in arms resisted and she did not show any love/affection towards both of them---High Court observed that the minor girl seemed to be astonishingly attached with the concerned female / employee of the Trust---Minor girl was given into custody of the petitioner/trust by her real mother when the minor was of only 2 months old; and mother stated that she was kidnapped and forced into agreement of "Nikah" and as per her stance the minor daughter was not a legitimate offspring as before entering into second agreement of wedlock she was already in a marital tie with another person---Held, that mother of minor herself stated that she gave birth to an illegitimate child, therefore, legitimacy could not be presumed---Minor's mother had already contracted another marriage---Custody of the minor was already pending adjudication before Judge Family Court, hence, the matter of the final custody was to be decided by the Guardian Judge---High Court observed that Family Court was required to pay deep ponderance while adjudicating the custody of the minor as essence of the custody was welfare of the minor which was also a first/pivotal brick in the foundation of the matter---Writ petition was allowed accordingly.

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

----Art.44---Writ jurisdiction of High Court---Scope---High Court is blessed with powers under Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, to redress the grievance of the petitioner who seeks aid of the court by indicating any violation of the law or enforcement of constitutionally guaranteed fundamental rights---High Court after its satisfaction and in a fit case can exercise powers to embark upon any such order/decision which is contrary to law or passed in colourable exercise of powers or coram non-judice.

Muhammad Ajmal Sultani and Khalid Bashir Mughal for Petitioners.

2022 C L C 1580

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MOHAMMAD AZAM KHAN and 6 others----Appellants

Versus

MOHAMMAD BASHIR KHAN and 9 others----Respondents

Civil Appeal No.106 of 2018, decided on 25th May, 2022.

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

----S.100---Second appeal---Scope---Scope of second appeal is confined only to the grounds stated in S. 100, C.P.C., such right is permissible if impugned decision is contrary to law or the same has been rendered without deciding some material issue of law or there has been any error of procedure provided by law.

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

----S.100---Second appeal---Scope---If second appeal is not based upon grounds mentioned in S.100, C.P.C., the same can be rejected.

2013 YLR 2000 ref.

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

----S.100---Second appeal---Concurrent findings---Scope---High Court while dilating upon the concurrent findings of two courts below cannot disturb findings of fact even if erroneous, however, gross and inexcusable error may be except on strong legal grounds.

(d) Administration of justice---

----Civil matters are decided by the Courts of law on the yardstick of the doctrine of preponderance of evidence as in whose favour the evidence on record is much more tilting and is likely to succeed.

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

----Art.113---"Facts admitted need not be proved"---Scope---Things admitted need not be proved.

Mohammad Suleman v. Razia Bibi 1992 SCR 265; Adalat Khan v. Fazal Hussain 1995 SCR 151 and Fazal Kareem v. Abdul Manaf 1997 MLD 2867 ref.

Ch. Mohammad Riaz for Appellants.

2022 C L C 1836

[High Court (AJ&K)]

Before Mian Arif Hussain, J

MUHAMMAD MAHMOOD and 3 others---- Appellants

Versus

IMTIAZ SHERAZ and 17th others----Respondents

Civil Appeal No.89 of 2012, decided on 15th June, 2022.

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

----O.XIV, Rr. 3 & 5---Improvements claimed on suit land---Cost of expenditure---Framing of issues---Respondent filed suit for declaration/possession and appellant filed suit for declaration---Respondents contended that two plots in issue were owned by them and proforma respondent; that father of the respondents constructed two houses upon said plots; that mother of appellants being an affectee of "Mangla DAM" was allowed to reside temporarily in house on humanitarian ground; that respondents asked the appellants to pay rent per month to which they agreed; that appellants had not been paying rent since 2001; that appellants were asked to pay rent outstanding or to evict the house handing over the possession of plot/house but they declined---Appellants filed suit, in response, claiming that their mother had purchased the area from predecessor of respondents through oral agreement that plaintiffs constructed the house and were residing therein having lawful ownership/possession; and that respondents managed to transfer the ownership of the plot in dispute illegally/fraudulently in their favour---District Court accepted the suit of respondents and dismissed the suit of appellants---Validity---District Judge has opined that disputed house had been built by "mother" of the appellants, whereas, issues were decided against appellants---Respondents had not challenged the findings of the trial judge in respect of construction of the house, meaning thereby, the claim of the appellants to such extent had been accepted---But while determining validity of said improvements the Trial Court had observed that construction over a piece of land without entitlement had no legal sanctity whereas while recording findings on additional issue the trial judge has opined that the cost of improvements had not been claimed---Before recording findings on legal position/sanctity of improvements over the suit land, it was necessary to determine the value of improvements but the said question had not been addressed by the Trial Court---No specific claim in respect of improvements in terms of "cost of expenditure" had been brought on record by the appellants---No issue was framed as to determine the alleged cost of construction over the suit land---Appeal was accepted and case was remanded to the Court with direction to frame issue as to determine the cost of construction and decide the matter afresh after recording the evidence of the parties in respect of said issue.

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

----O.XIV, Rr.3 & 5---Framing of issues---Purpose---Object of framing of issues being that the controversies put by the parties are narrowed to particular points to be settled and determined by the Court---Issues determine nature of onus and right of party to open evidence---Sole purpose is to invite attention of parties to real part needing consideration, so, it is the primary duty of the Court to frame appropriate issue arising from pleadings.

Ch. Muhammad Anwar for Appellants.

2022 C L C 1876

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

IRSHAD BEGUM and others----Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Senior Member Board of Revenue/Secretary Rehabiliation and 5 others----Respondents

Writ Petition Nos.1563 and 1582 of 2019, decided on 26th April, 2022.

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

----Arts. 44, 4(4)(1), 4(4)(14) & 4(4)(19)---Writ petition---Security of person---Protection of property---Right to fair trial---Audi alteram partem---Scope---Where allotment in favour of the petitioners' predecessor was cancelled without any notice, High Court observed that due process of law had not been adopted which was a gross violation of the constitutionally guaranteed Fundamental Right No. 19 i.e. Right to fair trial, Right No. 14 protection of property and Right No. 1 security of person---Impugned order was set aside and the writ petitions were accepted.

(b) Administration of justice---

----Act which is required to be performed in a particular manner can only be performed in the same manner otherwise performance of such like act bears no legal consequences.

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

----Art. 44---Writ petition---Factual controversy---Scope---High Court is not to embark upon disputed question of facts.

Kh. Atta Ullah Chak for Petitioner (in both the Writ Petitions).

2022 C L C 1912

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

INHABITANTS OF VILLAGE LEEPA----Petitioner

Versus

DISTRICT JUDGE JHELUM VALLEY/HATTIAN BALA and 17 others----Respondents

Writ Petition No.838 of 2019, decided on 3rd June, 2022.

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

----S.12(2)---Bar to further suit---Compromise decree---Scope---Petitioner assailed the dismissal of his application under S. 12(2), C.P.C.---Contention of petitioner was that judgment and decree passed in the year 1979 was obtained fraudulently---Validity---Impugned decree was a compromise decree and the parties were well in knowledge about the decree---Petitioner's father after issuance of the decree had remained alive for long time but he had never challenged the same in his life time---However, after 38 years the petitioner had filed the application under S. 12(2), C.P.C., which was hopelessly time barred---Constitutional petition was dismissed.

1989 SCMR 416 rel.

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

----S.91---Public nuisances---Scope---Section 91 of C.P.C. postulates that prior permission of Advocate General is necessary where lis is pertaining to nuisance, but this condition is not barrier in view of S.91(2), C.P.C. and would not limit or otherwise affect any right of suit which might exist independently.

PLD 2016 Sindh 26 ref.

2007 SCMR 1157 rel.

(c) Maxim---

----A verbis legis non est recedendum---Meaning--- From the words of the law there must be no departure.

Kh. Shoukat Hussain Ganani for Petitioner.

2022 C L C 37

[Islamabad]

Before Babar Sattar, J

Messrs PERFORMANCE AUTOMOTIVE PRIVATE LIMITED through Chief Executive Officer and 3 others----Appellant

Versus

MUHAMMAD SAFWAN JAVAID and 6 others----Respondents

F.A.O. 137 of 2020, decided on 4th May, 2021.

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

----Ss.12 & 56(i)---Civil Procedure Code (V of 1908), O.II, R.2, O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement---Interim injunction---Alternate remedy of compensation or damages---Denial of relief---Scope---Consequence of holding that in case of a party seeking compensation or damages as an alternative remedy, it cannot be granted interim injunction (in relation to contracts involving movable property at least) would be to produce multiplicity of proceedings at the best, or worse, frustrate the ability of claimant to seek specific enforcement after trial---If party makes out a prima facie case but is denied interim relief on the basis of it seeking alternative relief of compensation or damages, the lis would not remain preserved and it might become impossible to specifically enforce the contract in question at the time of judgment--- In the event that suit property changes hands, refusal to grant injunction and preserve status of lis would result in multiplicity of proceedings--- Such interpretation of S.56(i) of Specific Relief Act, 1877, would force parties not to claim compensation or damages in alternative to avoid any mischief caused due to existence of S.56 (i) of Specific Relief Act, 1877, and bring a suit for damages subsequently if Court finds that specific performance cannot be granted---As such it can attract bar in O.II, R.2, C.P.C.---In a case of breach of contract, a party can have the right to enforce its performance while also seeking damages for breach of obligations by counter-party that has already taken place---Logical for a party to claim damages as an alternative in case specific performance cannot be ordered in circumstances of the case due to impossibility or any other factor---Action of claimant in seeking an alternate remedy from Court in terms of compensation does not mean that such compensation may make the claimant whole, affect restitution and amount to ascertainment of actual damages caused due to non-performance of contract for purpose of S.12(b) of Specific Relief Act, 1877.

Puri Terminal Limited v. Government of Pakistan 2004 SCMR 1092 and Bolan Beverages (Pvt.) Limited v. Pepsico Inc. and 4 others 2004 CLD 1530 ref.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Sardar Vial v. Hirde Nath (AIR 1925 Lah. 459(2); Abdul Karim v. Muhammad Shafi 1973 SCMR 225; Liaqat Ali Khan v. Falak Sher (PLD 2014 SC 506; Sakina Bai v. Kurnool Muhammad Bashir PLD 1967 Sindh 158; Hakim Ghulam Rasool v. Sh. Imdad Hussain PLD 1968 Lah. 501; Mian Kaman Ilahi v. Digiri Sugar Mills Limited 2014 CLD 1583; Arif Shah v. Abdul Hakim PLD 1986 Kar. 189; Abdul Hakim and 2 others v. Saadullah Khan and 2 others (PLD 1970 SC 63 and M.K Abbasi v. United Bank Ltd. 1983 CLC 482 rel.

(b) Contract---

----Scope---Where contract involves two parties, one party cannot single handedly determine the contract.

Butterworth, 3rd Edition, PP. 728 rel.

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

----Ss.12, 42, 54 & 56(i)---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of agreement, declaration and injunction---Interim injunction, grant of---Alternate remedy---Recovery of damages---Repudiation of contract---Respondent/plaintiff entered into an agreement to purchase customized car from appellant/company who failed to provide the same within due course of time--- Trial Court and allowed interim relief to respondent/plaintiff--- Plea raised by appellant/company was that where compensation and damages were sought in alternative, specific performance could not be ordered---Validity---Party claiming repudiation by counter party could not have its cake and eat it too---Appellant/company prima facie did not rescind the contract, which remained in field and had bound both parties i.e. appellant and respondent---Matter related to customized vehicle ordered by respondent/plaintiff and model of vehicle was not in production any more---No infirmity was noticed in order in question and Trial Court had rightly reasoned that respondent/plaintiff had made a prima facie case as vehicle was specially customized therefore, monetary compensation in lieu of it was not adequate compensation---Appellant/company was holding substantial amount of deposit from one customer, while refusing to refund it or process termination of the order in face of delays in delivery and then selling that vehicle to another customer at a much higher price and accepting his deposit as well, while dispute with first customer had already matured, such was not the kind of behaviour that seemed endearing from the perspective of equity---High Court declined to interfere in the order passed by Trial Court and imposed cost upon appellant/company--- Appeal was dismissed, in circumstances.

Secretary of State v. Mask & Co. AIR 1940 Privy Council 105; Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671; Molasses Export Co. Ltd. v. Consolidated Sugar Mills Ltd. 1990 CLC 609; United Bank Limited, D.I. Khan v. Jinda Bibi and 8 others 1990 CLC 1901; Barkat Ullah v. Wali Muhammad 1994 SCMR 1737; Rehmat Ali v. Additional District Judge, Multan 1999 SCMR 900; Kanwar Qutubuddin Khan v. Karachi Development Authority 2002 CLC 634; Amanat Khan and others v. Noor ur Rehman and others 2006 SCMR 1622; Jubilee General Insurance Company v. Ravi Steel Company, Lahore PLD 2020 SC 324; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Law of Contract (Sweet & Maxell, 9th Edition 757); AIR 1928 Sindh 103; (Al-Qanoon Publisher, 1st Dd.pp 523) and A.C Yusuf & Co. v. K.B.H. M. Habibullah & Co. PLD 1965 Kar. 374 ref.

Zafar Kundi for Appellants.

Ms. Shazia Malik for Respondents.

2022 C L C 73

[Islamabad]

Before Aamer Farooq, J

QAZI SIDDIQUE AKBAR through Legal Heirs----Petitioners

Versus

HASSAN AKHTAR and others----Respondents

Civil Revision Petition No.81 of 2013, decided on 24th August, 2021.

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

----Art.79---Attesting witness---Suit for specific performance---Appellate Court(in second appeal) non-suited the petitioners/plaintiffs as they failed to prove the execution of the agreement and irrevocable power of attorney---Allegedly entire consideration amount was paid to the predecessor (deceased/respondent) of respondents---Petitioners contended that there was no need to adduce evidence of attesting witness as respondents had never specifically denied the execution of agreement and said irrevocable power of attorney---Validity---Petitioner as witness had given no proof of alleged payment of the consideration amount nor stated the details of transaction---Petitioner admitted to have attended the funeral of predecessor of respondents but conceded that he did not make any claim about the transfer of property---Plaint showed that cause of action had recently accrued but in evidence date, time, place and name of person refusing transaction was not given---Petitioners being the beneficiary of agreement and irrevocable power of attorney, were required to prove the said documents even though the execution of the same had not been specifically denied---Petitioners could not rely on the weaknesses of the respondents' case to substantiate their claim---Mere entrance of mutation of inheritance in favour of legal heirs of the respondent did not amount to notice of refusal to transfer the property---Claim was barred by limitation---Revision petition was dismissed accordingly.

Muhammad Iqbal Khan v. Mst. Farhat Nisa PLD 2017 Lah. 727; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 YLR 910; Ghulam Bheek v. Mst. Salamat Bibi and others 2001 CLC 1078 and Salamat Bibi and another v. Mst. Ramzan Bibi and others 2007 YLR 910 ref.

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

----S.3---Limitation---Duty of court---Respondents did not adduce any evidence with respect to claim of petitioners being barred by limitation but under S.3 of Limitation Act, 1908 it was incumbent upon the Court to examine whether the claim was within limitation period.

Khushi Mohammad v. Mst. Fazal Bibi PLD 2016 SC 872 and United Bank Ltd. v. Noor un Nisa 2015 SCMR 380 ref.

Zulfiqar Ali Abbasi and Shahid Munir for Petitioners.

Junaid Iftikhar Mirza for Respondents Nos.1, 4, 5 and 7.

Respondents Nos.2, 3 and 6 ex parte.

Syed Nayab Hassan Gardezi for Applicant (in C.M. No.686 of 2021).

Abdul Wahid Qureshi for Applicant (in C.M. No.747 of 2021).

2022 C L C 146

[Islamabad]

Before Aamer Farooq, J

QAISAR ABBAS and another----Petitioners

Versus

FEDERATION OF PAKISTAN, through Secretary Pakistan Railway, Islamabad

and 11 others----Respondents

Writ Petition No.163 of 2020, decided on 24th June, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Cooperative Society, writ against---Registered Cooperative Society incorporated under relevant law is not a "person" within the meaning of word as provided in Art.199 of the Constitution, inasmuch as it does not carry out affairs of Federation, Provincial Government or Local Authority.

Human Rights Case No.13316-P of 2018 in C.M.A. No.58 of 2020 rel.

(b) Federal Ombudsman Institutional Reforms Act (XIV of 2013)---

----S.12---Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983), Ss.12 & 16---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Order of Wafaqi Mohtasib (Ombudsman)---Compliance---Remedies---Petitioners were members of a cooperative housing society and their grievance was with regard to providing of public railway level crossing---Wafaqi Mohtasib had already passed directions in favour of cooperative society and against Railway authorities---Petitioners sought compliance of order passed by Wafaqi Mohtasib---Validity---Decision of Federal Ombudsman in favour of Society had attained finality---Petitioners were to seek its implementation before Federal Ombudsman, which office had jurisdiction even to initiate contempt proceedings and to punish for contempt as provided in Contempt of Court Ordinance, 2003, under S.12 of Federal Ombudsman Institutional Reforms Act, 2013, as well as under section 16 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983--- Defiance of recommendation under S.12 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, could lead to appropriate action against delinquent public servant of the Agency i.e. Pakistan Railways---Petitioners who were members of the Society in the garb of having fundamental rights did not have locus standi to enforce agreement which had already attained finality---Petitioners could approach their Society for doing the needful in implementation of findings / recommendations of Federal Ombudsman pursuant to its orders, if the same had not been done till then--- Constitutional petition was dismissed accordingly.

Naimatullah Khan Advocate and others v. Federation of Pakistan and others 2020 SCMR 622; Mirza Muhammad Nazakat Baig v. Federation of Pakistan and others 2020 SCMR 631; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Malik Ashiq Hussain v. Secretary, Pakistan Railways and others 2011 YLR 1228; Muhammad Tahir Jamal Advocate v. Government of the Punjab and others PLD 2020 Lah. 407; Messrs Shaheen Cotton Molls Lahore and another v. Federation of Pakistan and others PLD 2011 Lah. 120; Messrs Al Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs and others 2011 SCMR 1621; Maqbool Ahmed and others v. Secretary Revenue Department and others 2020 CLC 1151; Azra Jamali and others v. Federation of Pakistan and others 2017 PLC (C.S.) 533; Muhammad Shoaib Razzaq v. Federation of Pakistan and others PLD 2019 Isl. 339; Government of Sindh and others v. Mst. Najma 2001 SCMR 8; Dr. Shamsher Ali Khan and others v. Government of Khyber Pakhtunkhwa and others 2019 MLD 87; Province of Punjab and others v. Malik Shah Nawaz and others 2012 MLD 1045; Makhdoom Muhammad Mukhtar MPA, Punjab v. Province of Punjab and others PLD 2007 Lah. 61; Abdul Wahid v. The State and another PLD 2007 Lah. 65; Muhammad Nawaz Malik and others v. Government of the Punjab and others PLD 2001 Lah. 160; Ahmed Kamal Nasir v. Cantonment Board Rawalpindi PLD 2011 Lah. 165; National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S) 453; Zahir Hussain Qureshi v. Government of Sindh and others 2019 CLC 1568; Muhammad Ashraf v. United Bank Limited and others 2009 CLC 1250; Messrs Airport Support Services v. The Airport Manager and others 1998 SCMR 2268; Zaver Petroleum Corporation Limited v. Federation Pakistan and others 2018 CLC 1542; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Government of Khyber Pakhtunkhwa and others v. Khalid Mehmood 2012 SCMR 619; Pakistan through Ministry of Finance and others v. Facto Belarus Tractors Limited PLD 2002 SC 208; Messrs M.Y. Electronic and others v. Government of Pakistan and others 1998 SCMR 1404; Federation of Pakistan and others v. Muhammad Tariq Pirzada and others 1999 SCMR 2744; Federation of Pakistan and others v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; Messrs Sharif Khan Brothers v. Chief Controller and others 2001 YLR 2211; Shahid Nabi Malik v. Chief Election Commission PLD 1997 SC 32; Mian Rafi-ud-Din and others v. The Settlement and Rehabilitation Commissioner and others PLD 1997 SC 252; Hashwani Hotels Ltd. v. Federation of Pakistan and others PLD 1997 SC 315; Secretary to Government of Pakistan v. Muhammad Hussain Shah and others 2005 SCMR 675;, Manzoor Ali and others v. UBL through President 2005 SCMR 1785; Imtiaz Ahmed and others v. PPSC and others PLD 2006 SC 472; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa 2015 SCMR 43; Shafqat Hussain v. President of Islamic Republic of Pakistan PLD 2016 Isl. 1; Dewan Suleman Fiber v. Federation of Pakistan and others 2015 PTD 2304; Irfan Khan Banghash v. Government 2015 YLR 719; Muhammad Ali v. LDA and others 2017 YLR 1087 and Muhammad Ibrahim v. Province of Sindh 2017 PLC (C.S.) 7 ref.

Federation of Pakistan and others v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 rel.

Abdul Wahid Qureshi, Iftikhar Ahmad Bashir, Muhammad Asif Chaudhary, Abuzar Salman Khan Niazi, Ms. Meraj Tareen for Petitioners (in their respective petitions).

Raja Khalid Mehmood Khan, Deputy Attorney-General, Malik Awais Haider, State Counsel and Raja Saad Sultan, Assistant Attorney-General, Sajid Hussain, Law Officer and Naseem Ahmed Shah for Respondents.

Sajeel Sheheryar Swati, Malik M. Siddique Awan, Rai Azhar Iqbal Kharral, Ch. Hasan Murtaza Mann, Asad Ullah Khan, Barrister Saad Butter, Tahir Hussain Anchan and Ms. Meraj Tareen for Respondents.

Taimoor Aslam Khan, Riaz H. Rahi, Iftikhar Ahmad Bashir and Muhammad Asif Chaudhary for Applicants (in their respective applications).

Tayyab Riaz Divisional Engineer-I Pakistan Railways.

2022 C L C 269

[Islamabad]

Before Tariq Mehmood Jahangiri, J

TAUSIF AHMAD----Petitioner

Versus

Mst. SHAISTA MALIK and others----Respondents

Writ Petition No.3708 of 2021, decided on 20th October, 2021.

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

----S.26A [as inserted by Code of Civil Procedure (Amendment) Act, 2020] & O.VIII, R.10---Suit for recovery---Defendant challenged the impugned order of Civil Court closing his right to file written statement---Validity---Petitioner/defendant filed wakalatnama on 06/02/2020---After nine adjournments, right to file written statement of the petitioner was closed vide impugned order dated 06/02/2021---Petitioner's counsel cross-examined plaintiff/witness on 19/07/2021---Constitutional petition had been filed with the delay of more than 8 months after passing of the impugned order and after about 3 months of the said cross-examination---Petitioner had failed to point out as to how the impugned/ interim order was the consequence of an error of law or without/in excess of jurisdiction---Constitutional petition was dismissed accordingly.

Riaz ul Haq and others v. Muhammad Asghar and others 2017 SCMR 1841; National Logistic Cell (N.L.C) v. Hazrat Ali and others 2010 SCMR 1970; District Coordination Officer, Sukkur and 8 others v. Khan Muhammad through General Attorney and 3 others 2013 MLD 1369 and Mst. Bibi Sundas and others v. Mst. BibiShahida and others 2020 CLC 1475 rel.

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

----S.26A [as inserted by Code of Civil Procedure (Amendment) Act, 2020] & O.VIII, R.10---Right to written statement---Scope---Trend of granting "Akhri Mouqa" then "Qatai Akhri Mouqa" and then "Qatai Qatai Akhri Mouqa" had made a mockery of the provisions of law and those responsible to interpret and implement same---High Court observed that such practices must be discontinued, forthwith.

Moon Enterpriser CNG Station, Rawalpindi v. Suit Northern Gas Pipelines Limited, through General Manager, Rawalpindi and another 2020 SCMR 300 and Rana Tanveer Khan v. Naseer Ud Din and other 2015 SCMR 1401 rel.

(c) Constitution of Pakistan---

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

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; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28; Syed Saghir Ahmad Naqvi v. Province of Sindh 1996 SCMR 1165 and Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab 1976 SCMR 450 rel.

2022 C L C 340

[Islamabad]

Before Aamer Farooq, J

HAMEED ULLAH----Petitioner

Versus

ALI ARSHAD and another----Respondents

Writ Petition No.1407 of 2020, decided on 25th August, 2021.

(a) Interpretation of statutes---

----General and special law---Principle---Where there is a special provision and general provision for some action to be taken, then the special provision prevails over the general.

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

----O.XXXVII, R.4---Limitation Act (IX of 1908), Arts.164 & 181---Ex parte decree, setting aside of---Limitation---Petitioner/defendant sought setting aside of ex parte judgment and decree passed by Trial Court against him---Trial Court set aside the application for the reason that it was barred by limitation---Validity---Trial Court erroneously applied provision of Art.164 of Limitation Act, 1908, in holding that application filed by petitioner / defendant was barred by limitation--- Application in essence was one under O.XXXVII, R.4, C.P.C. and Trial Court had to see whether special circumstances existed for setting aside ex parte judgment and decree---Limitation period for such application was provided in Art.181 of Sched.-I to Limitation Act, 1908---High Court set aside order passed by Trial Court and remanded the matter for decision afresh---Constitutional petition was allowed accordingly.

Shahnawaz v. Adwise (Pvt.) Limited through Chief Executive 2003 YLR 2724; Naseer Ahmad v. Muhammad Mushtaq 2006 MLD 1936; Tahir A. Khan v. Messrs United Air Travels Ltd. and others 2004 YLR 416; Shahid Pervaiz Alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Habib Bank Limited v. Mussarat Ali Khan PLD 1987 Kar. 86 rel.

Khurram M. Qureshi for Petitioner.

Syed Kazim Raza Naqvi for Respondent.

2022 C L C 454

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Rana TAHIR HASSAN KHAN----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

Writ Petition No.4049 of 2016, decided on 3rd November, 2021.

Capital Development Authority Employees Service Regulations, 1992---

----Regln. 08.06---General Clauses Act (X of 1897), S.24-A---Misconduct---De-novo inquiry---Order without reasons---Effect--- Petitioner was employee of Capital Development Authority who was proceeded departmentally for committing misconduct---Inquiry Committee exonerated petitioner from all charges but competent authority directed to hold de-novo inquiry---Validity---No provision existed in Capital Development Authority Employees Service Regulations, 1992, that could empower authorized officer or authority to order a de-novo inquiry against officers who had already been exonerated--- Even if Regln. 08.09 of Capital Development Authority Employees Service Regulations, 1992, authorized the authority to order de-novo inquiry after the authorized officer had exonerated an officer, such power could not be exercised at mere discretion of the authority in an arbitrary manner or without plausible reasons---Office orders whereby earlier order for exoneration of petitioner was withdrawn and a de-novo inquiry was ordered were devoid of reasons---Such orders were in violation of S.24-A of General Clauses Act, 1984 and could not be sustained---No fresh material was discovered warranting a de-novo inquiry, which was to be on the same charges levelled against him in earlier inquiry, which had culminated in findings that the charges against him were not proved---High Court declared it unfair and iniquitous when charged officer succeeded before Inquiry Committee and Authorized officer exonerated him and such exoneration was approved by the authority, for such officer to be subjected to a de-novo inquiry on the same charges---High Court set aside the order conducting de-novo inquiry against petitioner---Constitutional petition was allowed, in circumstances.

Fayyaz Hussain v. Executive District Officer (Education), City District Government, Rawalpindi 2021 SCMR 1358; Federation of Pakistan v. Shafqat-ur-Rehman 2021 PLC (C.S.) 405; K.R. Deb v. The Collector of Central Excise, Shillong AIR 1971 SC 1447; Administrator/Pakistan Defence Officer Housing Authority v. Ghulam Mustafa Khan 2011 SCMR 480 and The Director General (Field), Agricultural Department, Lahore v. Haji Abdul Rehman 1989 SCMR 1224 rel.

Raja Saif-ur-Rehman for Petitioner.

Husnain Haider Thaheem for Respondent-CDA.

2022 C L C 497

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SALAH UDDIN KHAN----Petitioner

Versus

PUBLIC PROCUREMENT REGULATORY AUTHORITY and others----Respondents

Writ Petition No.3823 of 2020, decided on 7th December, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil rights---Proceedings---Applicability---Petition filed under Art.199 of the Constitution to enforce civil rights is deemed to be civil proceedings and procedure provided in Civil Procedure Code, 1908, is applicable.

Muhammad Yar v. Muhammad Amin 2013 SCMR 464 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Necessary party, non-impleading of---Effect---Petitioner arrayed Public Procurement Regulatory Authority and Ministry of Petroleum as respondents but no relief was sought against them---Instead of impleading Gas Pipelines Company as respondent, only its officials such as General Manager and Managing Director etc. were made respondents---Validity---Respondents against whom no relief was sought, were proforma defendants---Respondents with official designations were not infused with a legal persona and were not capable of being sued--- Such official designations could neither be termed as legal nor natural persons---Writ could be instituted against either legal or a natural person---Petitioner, despite having been given opportunity to amend the petition did not join Gas Pipelines Company in array of respondents---Such petition suffered from a fatal defect in such form and was not maintainable--- Constitutional petition was dismissed, in circumstances.

Secretary B&R, Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625; Nagina Bakery v. Sui Southern Gas Limited 2001 CLC 1559; Muhammad Hayat v. Director General Lahore Development Authority 2016 MLD 1287; Mst. Khadija Karim v. Zia-ur-Rehman Khanzada PLD 1999 Kar. 223; Ghulam Sarwar v. Ghulam Rabbani PLD 1992 Pesh. 130; Bore Muhammad v. Mst. Aziza Begum 2001 CLC 701; Manahem S. Yeshoova v. Union of India AIR 1960 Bombay 196 and P.B. Shah and Co. v. Chief Executive Officer AIR 1962 Calcutta 283 rel.

Muhammad Sadiq Khan for Petitioner.

Ahmed Ejaz Yousaf for Respondents Nos.3 to 5.

2022 C L C 516

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs SIEYUAN-NEIE-NAEEM & COMPANY----Petitioner

Versus

The FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power

and others----Respondents

Writ Petition No.1508 of 2021, decided on 30th November, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual liability---Determination---Principle---Where relationship between petitioner and State or its instrumentality is based on a contract, a direction for payment of money in exercise of Constitutional jurisdiction must be in highly exceptional circumstances and that too when the case does not entail any disputed questions of fact which required recording of evidence and where documents on record show that liability of State or its instrumentality is expressly or impliedly admitted--- Where State or its instrumentality disputes petitioner's claim, parties must be left to resolve their disputes in accordance with dispute resolution mechanism in the contract or through a suit before Court of plenary jurisdiction.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual liability---Recovery of money---Petitioner company completed a contract with respondents and sought recovery of its outstanding dues in foreign currency as well as in Pakistani Rupees---Plea raised by respondents was that amount would be paid on receipt of payment from another government entity---Validity---Another government entity had no privity of contract with petitioner nor petitioner privy to any arrangement between respondents and another government entity---No provision existed in the contract which would make discharge of respondents' obligation to make payment to petitioner contingent on the receipt of payment from another government entity---Unjustified for respondents to make discharge of its admitted contractual liability to petitioner subject to payment of amount due from another government entity---No disputed or controversial question of fact was on record which required recording of evidence---High Court directed respondents to pay the amount due to petitioner as the same had been admitted---Constitutional petition was allowed, in circumstances.

Huffaz Seamless Pipe Industries Limited v. Sui Northern Gas Pipelines Limited 1998 CLC 1890; Ramna Pipe and General Mills (Pvt.) Limited v. Sui Northern Gas Pipe Lines 2004 SCMR 1274; Imran Hussain v. Water and Power Development Authority 2011 PLC (C.S.) 116; Tahir Abbas v. FESCO, Jhang 2011 PLC (C.S.) 354; Kamran Ahmad v. Water and Power Development Authority 2014 PLC (C.S.) 332; United International Associates v. Province of the Punjab 1999 MLD 2745; Saad Muhammad Shaheen Al-Soofi v. Principal and Chairman, Academic Council, Sindh Medical College, Karachi 1982 CLC 805; Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; Azizullah v. Qismat Khan PLD 1996 SC 831; Muhammad Nawaz v. Ghulam Fatima 2001 MLD 382; Lithuanian Airlines v. Bhoja Airlines (Pvt.) Limited 2004 CLC 544; Chandmull Ganeshmull v. Nippon Munkwa Kabushiki Kaisha AIR 1921 Cal. 342 and Usmani Associates v. Pakistan Housing Authority 2005 MLD 233 rel.

Ali Rana, Asad Raza and Zahid Umar for Petitioners.

Sardar Adam Khan for Respondents Nos.2 to 5/IESCO.

Ahmad Nawaz Bhatti and Sagheer Ahmad Bhatti for Respondent No.6.

Arshid Mehmood Kiani, Learned Deputy Attorney-General.

2022 C L C 668

[Islamabad]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jahangir, JJ

JAVED AHMED MIR----Appellant

Versus

MUHAMMAD AFZAL and others----Respondents

R.F.A. No.65 of 2013, decided on 18th January, 2022.

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

----O.XXX, R.10 & O.VII, R.11---Appellant's suit for specific performance and injunctions was rejected by Civil Court under O.VII, R.11, C.P.C., on ground of locus standi---Appellant contended that he was the sole proprietor of the purchaser body, that such body was neither a company incorporate nor a partnership firm, hence, authorization in favour of appellant for institution of suit was not needed; that a sole proprietorship could not file a suit and only sole proprietor could file suit; that appellant had submitted an application for the amendment in the plaint so as to implead seller company as a defendant, which application was left undecided by Civil Court---Respondent filed application under O.VI, R.11 of Civil Procedure Code, 1908, along with the written statement, contending that appellant did not bring on record any authorization by the purchaser body in his favour to institute the suit; that seller company had not been impleaded---Validity---Nothing on the record showed that purchaser body was either a company incorporated under the provisions of the Companies Ordinance, 1984 or a partnership firm registered under the provisions of the Partnership Act, 1932---Purchaser body had not been described in the agreement to sell as a company or a partnership---Appellant asserted that he was sole proprietor of the purchaser body which assertion had not been contested by respondent---Plaint/memo. of parties clearly showed that suit was filed by the sole proprietor (appellant) of the proprietorship concern---Any person carrying on business in the name/style other than his own name could be sued in such name/style as if the same were a firm name---Suit had been correctly filed by the appellant---High Court observed that suit of the appellant was not rejected on ground of non-impleading of necessary party/seller under the agreement, and appellant's application for joinder of such party had not been decided by the Civil Court, therefore it would be inappropriate to express High Courts view on the matter---Appeal was allowed accordingly.

Ahan Saz Contractors v. Pak Chromical Limited 1999 MLD 1781; Habib Bank Limited v. Iqbal I. Chundrigar 1983 CLC 1464; Islamabad Law College v. Higher Education Commission 2017 YLR 1399; P.C. Advertising v. Municipal Corporation of Delhi 1998 [73] DLT 259; Miraj Advertising Corporation v. Vishaka Engineering 2004 [115] DLT 471; Patodia & Co. v. The Bombay Woolen Mills Ltd. 1992 [22] DRJ 611 ref.

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

----O.XXX, R.10---Suit by natural and juristic person---Suit or legal proceedings can be filed by a natural person or a juristic person having legal personality---Proprietary concern is not a juristic person and the same cannot sue in its name---Only sole proprietor can sue on its behalf---Suit in the name of a sole proprietorship concern, which is not a legal entity, is not maintainable.

Ghulam Azam Qambrani and Zohaib Hassan Gondal for Appellant.

Taimoor Aslam Khan for Respondent No.1.

Muhammad Akhtar Awan for Respondent No.4.

ex parte for Respondents Nos.2 and 3.

2022 C L C 845

[Islamabad]

Before Athar Minallah, CJ and Arbab Muhammad Tahir, J

Messrs SAMBA BANK LIMITED----Appellant

Versus

Messrs HOTEL HILL VIEW (PVT.) LIMITED through Chairman----Respondent

R.F.A. No.10 of 2016, decided on 22nd February, 2022.

(a) Maxim---

----Secundum allegata et probata--- Meaning--- Who lodges a fact must prove it.

Khan Muhammad v. Muhammad Din through LRs 2010 SCMR 1351 rel.

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

----O.XIII, R.2---Documents not included in list---Effect---List of reliance of document under O.XIII C.P.C. has to be produced at the first hearing of the suit--- Such is a mandatory principle and in case of non-compliance, no document can be received at subsequent stage unless good cause is shown to the satisfaction of Court under O.XIII, R.2, C.P.C.

Fazal Muhammad v. Chohara 1992 SCMR 2182 rel.

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

----Art.78---Document filed without objection---Effect---When any document is exhibited without there being an objection in respect of it by other side, such document is deemed to be admitted.

Muhammad Farooq v. Abdul Waheed Siddiqui and others 2014 SCMR 630 and S.A.K. Rehmani v. The State 2005 SCMR 364 rel.

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

----O.XXVI, R.10---Local Commission, report of---Scope---Local Commission can only perform limited and narrow functions by way of Terms of Reference framed by Court---Report of Local Commission cannot be termed as findings but the same is to be considered as an inquiry for information and assistance of Court.

Kh. Abdul Rehman (Deceased) v. Muhammad Farooq Mirza 2019 CLC 596 and Islam ud Din and others v. Gul Muhammad and others PLD 2004 SC 633 rel.

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

----S.4---Suit for recovery of outstanding rent---Civil Court---Jurisdiction---Balance probabilities, principle of---Applicability---Appellant / defendant was aggrieved of judgment and decree passed by Trial Court in favour of respondent / plaintiff for recovery of outstanding rent---Validity---If appellant / defendant was in possession of rented premises and was a defaulter in payment of rent to respondent / plaintiff, proper course available to respondent / plaintiff was to invoke jurisdiction of Rent Controller under the provisions of Islamabad Rent Restriction Ordinance, 2001, instead of invoking jurisdiction of Civil Court---High Court set aside judgment and decree passed by Trial Court on the principle of balance of probabilities, as the same suffered from material irregularities and factual infirmities---Appeal was allowed, in circumstances.

Raja Muhammad Aleem Khan Abbasi for Appellant.

Mian Abdul Razzaq for Respondent No.1.

2022 C L C 902

[Islamabad]

Before Athar Minallah, CJ

MUHAMMAD FAISAL VAWDA----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary

and 4 others----Respondents

Writ Petition No.527 of 2022, decided on 16th February, 2022.

Constitution of Pakistan---

----Arts.62(1)(f), 63(1)(c) & 199---Election---Disqualification---Foreign nationality, renunciation of---Initiation of process---False affidavit---Petitioner was disqualified by Election Commission of Pakistan for holding foreign nationality at the time of filing his nomination papers who had filed false affidavit to such effect---Validity---When a citizen of Pakistan had acquired citizenship of a foreign state, such citizen was not qualified to be elected or chosen for Majlis-e-Shoora (Parliament) until and unless such legal status i.e. citizenship of foreign state was obliterated or extinguished---Mere initiation of process of relinquishment was not sufficient because disqualification would remain operative till completion and conclusion of the process---Date on which affidavit was submitted along with nomination papers, the process of renunciation of petitioner's foreign citizenship was not concluded nor completed---High Court declined to interfere in order of disqualification passed by Election Commission of Pakistan, as the same did not suffer from any legal infirmity---Constitutional petition was dismissed, in circumstances.

Speaker, National Assembly of Pakistan, Islamabad and others v. Habib Akram and others PLD 2018 SC 678; Muhammad Salman v. Naveed Anjum and others 2021 SCMR 1675; Muhammad Salman v. Naveed Anjum and others 2022 SCMR 42; Roshan Ali Buriro v. Syed Murad Ali Shah and others 2019 SCMR 1939 and Allah Dino Khan Bhayo v. Election Commission of Pakistan and others PLD 2020 SC 591 distinguished.

Suo Case No.8 of 2018 regarding Dual Nationality of Parliamentarians PLD 2019 SC 201 and Samiullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405 rel.

2022 C L C 941

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

SHELL PAKISTAN LIMITED through Retail Operations Manager and Special Attorney----Petitioner

Versus

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

Writ Petition No.905 of 2021, decided on 21st January, 2022.

Civil Procedure Code (V of 1908)---

----O.VII, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Return of plaint---Territorial jurisdiction of Court---Plaintiff/respondent assailed cancellation of franchise agreement at place "I"---On application filed by petitioner/defendant's plaint was returned under O.VII, R.10, C.P.C., to be filed at place "K"---Order passed by Trial Court was set aside by Lower Appellate Court---Validity---Retailer's right of access to and use of petrol station was in the nature of a contractual license derived under and owing its existence to franchise agreement which did not exist in its own right---Franchise was granted for limited purpose of performance of franchise agreement in order to make lawful access to land on which petrol station was constructed which in absence of such a license would constituted trespass---Relief sought in plaintiff's suit could be entirely obtained through obedience of defendant company having offices in both places "K" and "I"---Even if the subject matter of suit was immovable property, the Courts at both "K" and "I" would have jurisdiction---Open to parties to confer exclusive jurisdiction on either of them which they did and to which they were bound---High Court set aside order passed by Lower Appellate Court and restored that of Trial Court---Constitutional petition was allowed accordingly.

State Life Insurance Corporation of Pakistan v. Rana Mohammed Saleem, 1987 SCMR 393; Standard Insurance Company v. Pak Garments Limited 1998 SCMR 1239; Shahi Syed v. Total Parco Marketing Limited and another 2018 YLR 2039; Abdul Rashid Khan v. President, Services Institute PAF Base, Lahore 1999 MLD 1870; 2018 MLD 802; 2017 YLR 2006 and 2009 CLC 406 ref.

Salim ur Rahman for Petitioner.

2022 C L C 1064

[Islamabad]

Before Babar Sattar, J

EDWIN COE LLP----Appellant

Versus

NASEIM AHMED SARFRAZ----Respondent

E.F.A. No.12 of 2018, decided on 2nd February, 2022.

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

----S.35 [as amended by Costs of Litigation Act (XVII of 2017)]---Cost of litigation---Determining factors---Appellant was aggrieved of awarding cost during execution proceedings---Plea raised by appellant was that Executing Court did not consider factors to award costs---Validity---While granting costs under S.35, C.P.C., Court needed to determine that actual costs of litigation claimed were reasonable and cost award was fair to successful party as well as the losing parting---In determining quantum of cost of litigation award, principle of proportionality had to remain a guiding consideration---Court must consider whether costs incurred were justified in circumstances of the case---Costs claimed and awarded must be fair and reasonable taking into account complexity of matter, time that ought to have been expended by reasonable and conscientious attorney (including human resources of a law firm that were required to be employed in relation to the matter), experience of attorney and reasonable fee that litigant would pay to such attorney without knowing whether or not such fee would be recoverable, given that the outcome in litigation could never be predicted with absolute certainty--- Executing Court did not determine actual costs of litigation incurred by appellant in execution proceedings pending before it---Costs awarded by Executing Court was neither actual cost incurred as claimed by appellant nor was supported by any reasoning as to how such amount was calculated or what part of cost claim was disallowed by the Court and why--- High Court set aside order of Executing Court to the extent of award of costs to appellant and remanded the matter to determine actual costs of litigation incurred by appellant in relation to execution proceedings pending before Executing Court and not costs incurred in relation to proceedings before another Court such as High Court and Supreme Court--- Appeal was allowed accordingly.

Syed Zia Haider Rizvi and others v. Deputy Commissioner of Wealth Tax, Lahore and others 2011 SCMR 420; Province of Punjab v. Javed Iqbal 2021 SCMR 328; Province of Punjab v. Murree Brewery Company Limited 2021 SCMR 305; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.

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

----S.35 [as amended by Costs of Litigation Act (XVII of 2017)]---Cost of litigation---Stage of awarding---Relevant Court before which legal proceedings continue at each of the tiers was to award litigation costs at culmination of such proceedings---Amendments under Cost of Litigation Act, 2017, contemplate each court awarding costs in relation to proceedings before it as opposed to litigation costs being cumulated and awarded by the highest adjudicatory forum--- Costs provided for under S.35, C.P.C. are limited to costs in relation to proceedings before the Court awarding such costs.

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

----S.35 [as amended by Costs of Litigation Act (XVII of 2017)]---Actual cost of litigation---Object, purpose and scope---Award of actual cost of litigation under S.35(1)(ii) of C.P.C. is a mandatory requirement to uphold right of winning party to be indemnified--- Other than creating a statutory right of winning party to recover actual cost of litigation in legal proceedings, object of Cost of Litigation Act, 2017, was to discourage litigation, encourage settlements, prevent abuse of Court process thorough false and vexatious claims, pleas, prayers and arguments and encourage reasonable behaviour on part of parties prior to and during proceedings---To realize such public purpose, Court has to use its power under S.35(1)(ii). C.P.C. and S.35-B, C.P.C. to penalize dishonesty, falisity and vexatious behaviour.

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

----S.35 [as amended by Costs of Litigation Act (XVII of 2017)]--- Cost of litigation--- Statement of expenses--- Cost of litigation statement has to be filed on proposed basis upon commencement of proceedings and supplemented by final statement at culmination of proceedings, reflecting actual cost incurred together with receipts and proof of payment of fee to counsel---Parties are required to file their cost of litigation statements as mandated by S.35(1)(i), C.P.C. but non-filing of such statement cannot be a ground for not awarding cost of litigation as reasonably and objectively determined by Court to be payable to winning party.

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

----S.35 [as amended by Costs of Litigation Act (XVII of 2017)]--- Cost of litigation--- Entitlement--- Right to recover actual cost of litigation in a proceeding before Court belongs to party and not to party's counsel.

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

----S.35 [as amended by Costs of Litigation Act (XVII of 2017)]--- Cost of litigation--- Attorney's fee--- Scope--- Court should not sit in judgment over attorney fee when such fee as paid by a party falls within the zone of reasonability and is in contemplation of litigating parties in view of the nature of litigation--- Court has to allow partial indemnity of attorney's fee if actual fee were (i) found to be unreasonable and disproportionate to the work involved and (ii) result in creating a possible barrier for public-at-large to accessing justice system.

Hamid Nawaz, Munawar Akhtar and Fahad Abid for Appellant.

Raja Muqsit Nawaz Khan, Ajam Naz Malik and Hazrat Younas for Respondent.

2022 C L C 1132

[Islamabad]

Before Tariq Mehmood Jahangiri and Babar Sattar, JJ

ALI SAEED WAHLA----Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others----Respondents

Intra Court Appeal No.67 of 2022, decided on 23rd February, 2022.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches, principle of---Unexplained delay---Cancellation letter was issued on 22-08-2017 and Constitutional petition was filed on 12-01-2022 i.e. after delay of more than four years---Effect---Constitutional petition was barred by time as the same was hit by principle of laches.

Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119 rel.

(b) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.11---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Res judicata, principle of---Applicability---Appellant filed two Constitutional petitions with same prayer---Effect---Appellant did not mention any single justification for filing second petition with same cause of action---Second petition was barred by principle of res judicata---Intra Court Appeal could be filed when judgment of Judge in Chambers of High Court was shown to have been delivered against provisions of law or a result of misreading, non-reading and had caused mis-carriage of justice or mistakes of law which were liable to be corrected by Division Bench of High Court---Intra Court Appeal was dismissed, in circumstances.

Raja Fida-ur-Rehman and 4 others v. Capital Development Authority, Islamabad through Chairman 1996 MLD 1573; Deputy Commissioner / Administrator, District Council Attock and another v. Lawrencepur Woolen Textile Mills Ltd. 1999 SCMR 1357; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

(c) Administration of justice---

----Basic order---Validity---When basic order is without lawful authority then no superstructure can be built thereon and such structure also falls on ground automatically.

Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2011 SCMR 408; Executive District Officer (Edu), Rawalpindi v. Mst. Rizwana Kausar and 4 others 2011 SCMR 1581; Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and The Engineering-In-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

2022 C L C 1206

[Islamabad]

Before Miangul Hassan Aurangzeb, J

RELIANCE IT SOLUTIONS (PRIVATE) LIMITED----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.858 of 2021, decided on 17th January, 2022.

(a) Public Procurement Rules, 2004---

----Rr.12 & 14---Scrapping of bidding process---Effect---When procuring agency decides to cancel advertisement and scraps bidding process initiated through the advertisement, it is obligatory for procuring agency to have initiated fresh bidding process by issuing advertisement inviting bids or expressions of interest from the public.

Habibullah Energy Limited v. WAPDA through Chairman PLD 2014 SC 47 and National Institutional Facilitation Technologies (Pvt.) Limited v. The Federal Board of Revenue PLD 2020 Isl. 378 rel.

(b) Public Procurement Rules, 2004---

----R.42(d)(iii)---Negotiated tendering---Scope---Where circumstances of urgency are attributable to procuring agency, R.42(d)(iii) of Public Procurement Rules, 2004, do not permit negotiated tendering.

(c) Public Procurement Rules, 2004---

----Rr.12 & 14---Public procurement---Nomination basis---Effect---Whenever public procurement is made without calling for tenders and instead on nomination basis, it excludes large number of persons who could have participated and got orders---Public procurement by nomination is exclusionary in nature and kills competition in market often leading to higher expenditure for public procurer.

(d) Public Procurement Rules, 2004---

----R.48---Constitution of Pakistan, Art.199---Constitutional petition---Public procurement---Judicial review---Grievance Redressal Committee---Jurisdiction---Aberrations and procedural improprieties in award of public contracts can be examined by Grievance Redressal Committee constituted by procuring agency or by Court through process of judicial review even after award of contract.

(e) Public Procurement Rules, 2004---

----R.48---Grievance---Meaningful grievance---Pre-condition---Aggrieved bidder cannot be expected to submit meaningful grievance petition without knowing breakdown of marks awarded to it and other bidders for each category of evaluation criteria contained in bidding documents---In absence of detailed breakdown, it is impossible for a bidder to know grounds on which to challenge evaluation report before Grievance Redressal Committee---Withholding of such information causes prejudice to bidder's rights in proceedings before Grievance Redressal Committee---Bid evaluation report merely sets out total marks obtained by each bidder---Absence of detailed breakdown of marks awarded to each bidder for each component of evaluation criteria is not in accord with requirements of fairness and transparency.

(f) Public Procurement Rules, 2004---

----R.48---Grievance complaint---Limitation---Detailed breakdown of marks---Effect---Time within which aggrieved bidder is to file a complaint before Grievance Redressal Committee must perforce commence from date when detailed breakdown of marks is provided to bidder--- Where complaint before Grievance Redressal Committee is not entertained on the ground that it had been filed beyond fifteen-days time limit from issuance of bid evaluation report, in such case where information crucial to bidding or evaluation process is provided beyond said limit, Court of plenary jurisdiction or Court of Constitutional causes has jurisdiction to entertain bidder's complaint in the form of a suit or a petition.

(g) Public Procurement Rules, 2004---

----Rr.12, 14 & 48---Grievance Redressal Committee---Jurisdiction---Petitioner company assailed rejecting of its grievance by Grievance Redressal Committee---Validity---When petitioner company submitted its technical bid, it was not accompanied by the samples / specimens in question---Petitioner company and other two bidders who had also not submitted samples / specimens in question, were extended favour by not rejecting their bids for noncompliance under specific clause of bidding documents and evaluation criteria---Court could annul entire procurement process for being allowed to participate further in the process despite having submitted a non-compliant bid by petitioner company--- If petitioner company was awarded full marks for security and operational features of its product, it would still not have emerged as the most responsive bidder and therefore could not have been awarded the contract---High Court declined to interfere in bidding process---Constitutional petition was dismissed, in circumstances.

MIA Corporation (Pvt.) Limited v. Pakistan PWD (PLD 2017 Isl. 29; Habibullah Energy Limited v. WAPDA through Chairman PLD 2014 SC 47; National Institutional Facilitation Technologies (Pvt.) Limited v. The Federal Board of Revenue PLD 2020 Isl. 378; Sachidanand Panday v. State of West Bengal AIR 1987 SC 1109; Nagar Nigam v. Faheem Meat Exports (P) Ltd. (2006 (13) SCC 382; Global Rescue Foundation v. Union of India https://indiankanoon.org/doc/145563603/ and BNP (Pvt.) Ltd. v. Capital Development Authority PLD 2017 Isl. 81 ref.

Salman Akram Raja, Asad Ladha and Malik Ghulam Sabir for Petitioner (in W.P. No.858/2021).

Imtiaz Rashid Siddiqui, Raza Imtiaz Siddiqui and Syed Hasnain Ibrahim Kazmi for Petitioner (in W.P. No.1003/2021).

Qasim Wadood, Additional Attorney General.

Rana Imran Farooq, Assistant Attorney General.

Syed Ishfaq Hussain Naqvi for F.B.R. assisted by Urooj Zeb Abbasi and Sajjad Ahmed Mughal.

Tariq Hussain Sheikh, Project Director, T&T System.

Khalid Ahmed Khan, Second Secretary Projects, F.B.R.

Shazib Masood and Raja Abdul Qadeer Janjua for AJCL.

Saad M. Hashmi for SICPA.

Barrister Ahsan Jamal Pirzada for Steuermarken Solution.

Muhammad Khurshid, Deputy Director (Legal), P.P.R.A.

2022 C L C 1315

[Islamabad]

Before Athar Minallah, CJ

SHAH MUHAMMAD KHAN----Petitioner

Versus

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

Writ Petition No.458 of 2022, decided on 11th February, 2022.

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

----S.4---Constitution of Pakistan, Art.218---Election Commission, jurisdiction of---Ensuring fair/transparent process of election and to guard against corrupt practices---Grave acts of violation of the election code reported---Summary proceedings---One petitioner was Member of Provincial Cabinet holding the portfolio of Minister of Transport and the other was the son of said Minister and was contesting the (Local Government) elections for the Office of Chairman---Both father and son were reported to be involved in forcibly taking away polling material and abducting the officials---Reports sent to District Returning Officer and District Police Officer---Police described the detestable conduct of the Minister in its report---Election Commission conducted enquiry and postponed the polling and ordered re-polling---Petitioners impugned the said order---Held, that Election Commission had sought reports from relevant officials and heard them during proceedings---Criminal cases were registered---Police recovered some ballot boxes and polling materials which had been forcibly taken from polling stations---Sufficient material was brought on record to establish the unbecoming conduct of a member of the cabinet and his close relatives in order to manipulate/influence the election process through corrupt practices---Election Commission had all the powers to ensure the elections were organized/conducted honestly, fairly, in accordance with law and guard against corrupt practices---Constitutional mandate of the Election Commission was to take all possible measures to fulfil its solemn duty---Except for one paragraph of the impugned order, the Court was satisfied that the Election Commission had not exercised its powers /discretion in an illegal mala fide/unjustified/manifestly arbitrary manner---Despite his shockingly deplorable conduct established during the summary proceedings before the Election Commission, cabinet member could not have been disqualified from holding the public office as member of the Provincial Assembly---Commission was, however, empowered to disqualify his son from contesting the elections---Procedure for disqualification of a member of the Provincial Assembly had been prescribed under Art. 113 read with Art. 63(2) of the Constitution---Notified member might also be disqualified pursuant to the declaration of the competent Court---Order passed by the Commission for disqualification of son was justified and was in conformity with the obligation of the Commission to ensure a fair/transparent process of election and to guard against corrupt practices---Petitioners ought to be held accountable by the political party with which they were affiliated---Constitutional petition was partially allowed accordingly.

Workers Party Pakistan through General Secretary v. Federation of Pakistan PLD 2013 SC 406 and Workers Party Pakistan through Akhtar Hussain Advocate, General Secretary v. Federation of Pakistan PLD 2012 SC 681 rel.

(b) Constitution of Pakistan---

----Art.218---Election Commission---Discretionary powers---Scope---Election Commission was under direct obligation to exercise all powers vested in it in a bona fide manner, meeting the highest standards/norms---All discretionary powers were also to be exercised/tested against such standards---Election Commission was a cornerstone of the parliamentary system of governance and the democratic set up---Unless shown that the jurisdiction/discretion exercised by the Commission was illegal/mala fide/unjustified / manifestly arbitrary, its working /decisions should not be interfered with---Service of the officers/officials of the Commission had to be fully protected so that they would not succumb to administrative/political pressure---Election Commission had jurisdiction to initiate proceedings against a political party which appeared to be complacent in attempt to influence and manipulate the election process through grave acts of corrupt practices---Commission had to ensure that the diligently dutiful officials who had made statements during the summary proceedings were protected from reprisals.

Ejaz Ahmed Sindhu v. Election Commission of Pakistan through Chief Election Commissioner, Islamabad 2018 SCMR 1367 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan 2013 SCMR 1 rel.

(c) Constitution of Pakistan---

----Art.218---Election Commission---Summary proceedings---Balance of probabilities---Principle---Election Commission was required to form an opinion on the touchstone of the test of balance of probabilities, rather than meeting the standards set out for proving guilt in criminal proceedings.

(d) Constitution of Pakistan---

----Arts.199 & 218---Election Commission, order of---Constitutional jurisdiction---Election Commission was a Constitutional body and its findings could not be interfered with unless the same could be demonstrably shown that the jurisdiction/discretion exercised by it was illegal, mala fide, manifestly arbitrary or unjustified.

Muhammad Ahsan Bhoon, Muhammad Ramzan Chaudhry, Chaudhry Muhammad Ashraf Gujjar, Tajammal Hussain Lathi and Barrister Abdullah Babar Awan, for Petitioners.

Saad Hassan Respondent No.2.

Zafar Iqbal, Special Secretary, Election Commission of Pakistan.

M. Arshad, D.G, Law, Election Commission of Pakistan.

Khurram Shahzad, Additional Director General, Election Commission of Pakistan.

Abdul Hafeez, Director (LGE).

Barrister Adil Khalon, Legal Consultant, ECP.

Zaigham Anees, L.O, ECP.

2022 C L C 1337

[Islamabad]

Before Saman Rafat Imtiaz, J

MEHMOOD ALAM SHER----Petitioner

Versus

HEC and others----Respondents

Writ Petition No.2794 of 2020, decided on 22nd April, 2022.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction is extraordinary and discretionary in nature--- Party approaching High Court under Art. 199 of the Constitution has to demonstrate that there is a gross misreading or non-reading of evidence or jurisdictional error or such legal infirmity that has caused miscarriage of justice--- Interference by High Court may be called for if findings are based on misreading or non-reading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and/or arbitrary exercise of powers.

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

----Ss.51 & 52---Electronic Transactions Ordinance (LI of 2002), S.3---Qanun-e-Shahadat (10 of 1984), Art. 73---Reciprocal promise, performance of---Electronic transaction---Email---Proof--- Suit for recovery of money was filed by respondent / Higher Education Commission (Commission) against petitioner / student who went abroad on scholarship but allegedly returned without completing his education as per Deed of Agreement---Suit and appeal were decreed in favour of respondent / Commission by Trial Court and Lower Appellate Court respectively---Petitioner / student alleged that Deed of Agreement was breached by respondent / Commission--- Validity--- Deed of Agreement was comprised of reciprocal promises and it had made performance by respondent / Commission conditional upon due adherence of terms and conditions by petitioner / student--- Respondent / Commission was under obligation to make available scholarship funds to petitioner / student in order for the latter to carry out his legal obligations under the Deed was very much implicit in the contract---Order of performance required by the nature of transaction was for respondent / Commission to make available the requisite funds first---Such was imperative for both the Courts below to first consider whether respondent / Commission was in breach of its obligations or not and in case there was breach on the part of respondent / Commission, then effect thereof in light of Ss. 51 and 52 of Contract Act, 1872---Printout of email was admissible as primary evidence by virtue of Art. 73 of Qanoon-e- Shahadat Order, 1984 subject to the conditions stipulated therein--- Once admitted into evidence, emails were required authentication unless admitted by other side--- Different ways of authentication could be employed depending on facts and circumstances of each case: (i) Admission by otherside; (ii) Tracing IP address of sender; (iii) Reply from other side or conduct that shows receipt or dispatch of disputed email; (iv) A read receipt; or (v) Witnesses who may be other recipients of the disputed email---Printouts of emails produced by parties should have been admitted into evidence and exhibited---Neither of the parties denied dispatch and/or receipt of emails produced by other side in such case reliance upon the same was justified--- High Court set aside judgments and decrees passed by two Courts below and remanded the matter to Trial Court for decision afresh---Constitutional petition was allowed accordingly.

United Bank Ltd v. Shoaib Ahmed and 5 others PLD 2021 Sindh 394; Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868; Haji Fazal Ghani v. Fazle Ahad and 4 others 2021 YLR 1055; Lahore Cantt Coopertive Housing Society Ltd. v. ADJ, Lahore and 3 others 2003 YLR 1224; Amjad Khan v. Muhammad Irshad (deceased) through LRs 2020 SCMR 2155; Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 164; Attiq ur Rehman through real father and another v. Muhammad Amin PLD 2006 SC 309; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Pakistan Sugar Mills Association (PSMA), Islamabad v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad PLD 2021 Isl. 55; Chairman, Wapda, Lahore v. Gulbatkhan 1996 PLC (C.S) 376; Muhammad Darvaish Al-Gilani v. Muhammad Sharif 1997 SCMR 524 and Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362 ref.

(c) Electronic Transactions Ordinance (LI of 2002)---

----S.3--Qanun-e-Shahadat (10 of 1984), Art. 73---Automated information system---Printout of email---Primary evidence---Proof---Printout of an email is output of digital system created for generating, sending, receiving, storing, reproducing, displaying, recording, processing messages without active human intervention, therefore, constitutes primary evidence pursuant to Art. 73 of Qanun-e-Shahadat, 1984, except where automated information system is proved not to have been in working condition at material times.

Taimoor Mirza v. Maliha Hussain, 2020 CLC 1029 and Qurban Ali and another v. The State 2007 PCr.LJ 675 rel.

Riaz Hussain Azam Bopara and Umar Farooq Malana for Petitioner.

Binyamin Abbasi for Respondent.

2022 C L C 1477

[Islamabad]

Before Miangul Hassan Aurangzeb, J

KINZA ANWAR----Petitioner

Versus

OFFICE OF THE OMBUDSMAN FOR PROTECTION AGAINST HARASSMENT OF WOMEN AT THE WORKPLACE through Registrar and others----Respondents

Writ Petitions Nos. 912 and 1083 of 2021, decided on 5th April, 2022.

(a) Constitution of Pakistan---

----Art.199(1)(a)(ii)---Constitutional petition---Writ of certiorari---Alternate remedy, availability of---Principle---Where there was either absence or excess of jurisdiction or order under challenge suffered from patent illegality on the face of record, a writ of certiorari can be granted even though remedy, by way of appeal, was not availed.

Messrs S.A. Haroon and others v. The Collector of Customs, Karachi PLD 1959 SC 177; Pakistan v. Ziauddin PLD 1962 SC 440; Nagina Silk Mill, Layallpur v. The Income-Tax Officer PLD 1963 SC 322; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Ahad Sharif alias Muhammad Ahad v. Javed Tariq 2006 SCMR 1356; Adeel-ur-Rehman v. Federation of Pakistan 2005 PTD 172; Riaz Hussain v. Board of Revenue 1991 SCMR 2307 and Allied Bank of Pakistan Ltd. v. Wafaqi Mohtasib (Ombudsman) PLD 2001 Kar. 203 rel.

(b) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss.3 & 8---Constitution of Pakistan, Art. 199---Constitutional petition---Inquiry committee---Inquiry by Ombudsman---Principle---Petitioner / complainant was aggrieved of order passed by Federal Ombudsman setting aside order passed by authorities on the recommendations of Inquiry Committee, on the ground that members of the Committee were lower in rank to respondent / accused---Validity---Members of Inquiry Committee under S.3(2) of Protection against Harassment of Women at the Workplace Act, 2010, were not required to be senior to the person against whom the Committee was to conduct an inquiry---Ombudsman committed a jurisdictional error and a patent illegality by setting-aside decision of the authorities on the ground that all members of the Committee were not senior to respondent / accused--- Inquiry was to be conducted by the forum before which complainant had opted to prefer a complaint---Ombudsman, under S.8(3) of Protection against Harassment of Women at the Workplace Act, 2010, had jurisdiction to conduct inquiry into the matter and conduct proceedings as he could deem proper but such was only where an employee had opted to file complaint before Ombudsman under S.8(1) of Protection against Harassment of Women at the Workplace Act, 2010---Ombudsman committed a patent error of law and committed a jurisdictional error by setting aside decision of authorities on the sole ground that two of the three members of the Committee that conducted inquiry against respondent/accused were junior to him---High Court set aside order passed by Ombudsman to conduct a fresh inquiry against respondent/accused as the same was without jurisdiction and remanded the matter to Ombudsman for decision afresh---Constitutional petition was allowed accordingly.

Tariq Transport Co., Lahore v. Sargodha-Bhera Bus Service PLD 1958 SC 437 ref.

Rana Abid Nazir Khan for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney General for Respondent No.1.

Ms. Aaliya Zareen Abbasi for Respondent No.2/accused.

Barrister Junaid Zamurrad Khan for Respondent No.3./NEPRA

2022 C L C 1521

[Islamabad]

Before Babar Sattar, J

SHAZA TEHSEEN----Petitioner

Versus

TEHSEEN BUTT and others----Respondents

Writ Petition No.4332 of 2021, decided on 29th April, 2022.

Family Courts Act (XXXV of 1964)---

----Ss.7 & 14(2)---Appeal against dissolution of marriage---Scope---Marriage between parties was dissolved by Family Court on the basis of 'Khula'---Lower Appellate Court in exercise of appellate jurisdiction set aside judgment and decree passed by Family Court on the ground that matter regarding return of quantum of Haq Mehr was still to be determined---Validity---Such was only part of the judgment determining civil liabilities of parties that was appealable and not decree of dissolution of marriage---Marriage dissolved by a decree passed by Family Court could not subsequently be resurrected by Appellate Court on the basis that a dispute continued with regard to their civil liabilities as determined by Family Court in aftermath of dissolution of marriage---Dissolution could not be reopened or a decree to such effect could not be set-aside by Lower Appellate Court---Question of determination of civil liabilities of petitioner / wife i.e. quantum of Haq Mehr payable by petitioner / wife to respondent / husband upon dissolution of marriage on the basis of 'Khula' was a question to be determined by Family Court and to the extent that it was not determined, matter was rightly remanded by Lower Appellate Court to Family Court to frame an issue and allow parties to adduce evidence in relation thereto--- High Court set aside judgment and decree of Lower Appellate Court to the extent of setting aside judgment and decree passed by Family Court for dissolution of marriage--- Constitutional petition was allowed accordingly.

Sadia Arif v. Adnan Shahid and 2 others 2021 YLR 1753; Malik Khawaja Muhammad v. Marduman Babar Kahol 1987 SCMR 1543; Muzaffer Ali v. Mst. Mehrun Nisa 1989 CLC 1805; Naila Azmat v. Judge, Family Court and others 1999 MLD 3090; Ahmed Khan v. Mst. Sarwar Khatoon 2004 MLD 555; Shagufta Bibi v. Judge Family Court, Mailsi 2013 MLD 487; Mst. Shahida v. Sardar Shah 2018 MLD 146; Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh 2006 SCMR 100; Aurangzeb v. Mst. Gulnaz and another PLD 2006 Kar. 563; Khawaja Jameel Ahmed v. Judge Family Court, Multan and another PLJ 2013 Lah. 185; Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana PLD 1983 SC 169 and Muhammad Shaban v. Judge Family Court and others 2003 YLR 2708 ref.

Ms. Jamila J. Aslam for Petitioner.

Abid Hussain Chaudhry for Respondent No.1.

Syed Asad Ali Saeed for Respondent No.3.

2022 C L C 1561

[Islamabad]

Before Saman Rafat Imtiaz, J

Messrs GAZCON CNG through Managing Partner----Applicant

Versus

OIL AND GAS REGULATORY AUTHORITY through Chairman and another----Respondents

OGRA Application No.07 of 2020, decided on 12th April, 2022.

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

----S.12 (2)---Compressed Natural Gas Marketing Rules, 1992, R.11---Review jurisdiction of Oil and Gas Regulatory Authority---Regularization charges---Violation of rules---Remedy---Imposing or not, of 'regularization charges' was within the parameters of Oil and Gas Regulatory Authority, and such determination was within the scope of S.12(2) of Oil and Gas Regulatory Authority Ordinance, 2002, as there was no other remedy provided within such law to cater to the same---Review application was maintainable in circumstances.

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

----Ss.6(3), 12(2) & 41---Compressed Natural Gas Marketing Rules, 1992, R.11---Regularization charges---Absence of Rules---Petitioner converted Compressed Natural Gas Station into petrol pump---Authorities imposed Regularization Charges upon petitioner---Plea raised by petitioner was that in absence of rules framed for such purpose, imposing of Regularization Charges was illegal---Validity---Where rules were not framed, enabling provision that had empowered rule making, could not be used as an excuse, not to exercise authority under another provision unless rule-making was condition precedent to such exercise---Provision that empowered Oil and Gas Regulatory Authority to impose levies contained the condition that such imposition would be in accordance with rules---When law had provided certain mode of doing a thing or for taking an action, it had to be done in that manner alone---Imposition of fees and other charges under S.6(3) of Oil and Gas Regulatory Authority Ordinance, 2002, could only be undertaken by the Authority in accordance with rules---Oil and Gas Regulatory Authority was not empowered to impose or to collect any fees or charges under S.6(3) of Oil and Gas Regulatory Authority Ordinance, 2002, without making rules in accordance with S.41 of Oil and Gas Regulatory Authority Ordinance, 2002---Imposition of 'regularization charges' pursuant to S.6(3) of Oil and Gas Regulatory Authority Ordinance, 2002, for unauthorized alteration of works at CNG station by petitioner in violation of R.11 of Compressed Natural Gas Marketing Rules, 1992, without making rules in accordance with S.41 of Oil and Gas Regulatory Authority Ordinance, 2002, was ultra vires---High Court directed the authority to decide application of petitioner afresh and set aside 'regularization charges' imposed on petitioner---Constitutional petition was allowed accordingly.

Oil and Gas Regulatory Authority through Secretary v. Sui Southern Gas Company Ltd. and others 2018 SCMR 1012; M/s Al-Muiz-1 CNG, Fateh Jang v. Federation of Pakistan and others 2019 CLC 851; Muhammad Azam Khan Niazi v. General Manager, SNGPL, Islamabad, 2019 CLC 1998; SNGPL v. OGRA and others PLD 2013 Lah. 289 and SNGPL v. OGRA and another 2016 CLC 562 distinguished.

Sui Southern Gas Company Ltd (SSGCL) v. OGRA PLD 2017 Sindh 567; All Pakistan ZTBL Workers Union (CBA) and others v. Federation of Pakistan and others 2021 PLC 1; Commissioner of Inland Revenue, Sialkot and others v. M/s Allah Din Steel and Rolling Mills and others 2018 SCMR 1328; Wi-Tribe Pakistan Ltd. v. Federation of Pakistan and another PLD 2009 Islamabad 41; Zia Ghafoor Paracha v. The Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2002 PLC(C.S.) 1571; Kohinoor Chemical Co. Ltd. v. Karachi Municipal Corporation, PLD 1978 Kar. 872; M.U.A. Khan v. Rana M. Sultan and another, PLD 1974 SC 228 and Muhammad Nawaz Khan v. Ghulam Farid and another PLD 1963 SC 623; Mian Irfan Bashir v. The Deputy Commissioner (D.C) Lahore and others PLD 2021 SC 571; Chief Executive Officer, Multan Electric Power Company Ltd. Khanewal Road, Multan v. Muhammad Ilyas and others 2021 SCMR 775; National Engineering Services Pakistan (NESPAK) (Pvt.) Ltd. and others v. Kamil Khan Mumtaz and others 2018 SCMR 211; Dossani Travels (Pvt.) Ltd. and others v. M/s Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and James L. Kisor v. Robert Wildie, Secretary of Veterans Affairs 2019 SCMR 1229 ref.

Barrister Afan Khan for Applicant.

Yasir Aman Khan for Respondent No.1.

Barrister Sohail Nawaz for Respondent No.2.

2022 C L C 1670

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD QASEEM----Petitioner

Versus

Mst. FARIDA KHAN and others----Respondents

Civil Revision No.121 of 2019, decided on 26th July, 2022.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Transfer of Property Act (IV of 1882), Ss. 41 & 52---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell, declaration and injunction---Lis pendens, rule of---Knowledge of litigation---Proof---Petitioner purchased suit plot during pendency of litigation between respondent / plaintiff and previous owner---Both the Courts below concurrently decreed the suit and appeal in favour of respondent / plaintiff---Plea raised by petitioner was that he was bona fide purchaser for valuable consideration without knowledge from attorney of owner--- Validity--- Rule of lis pendens has been codified and embodied in S.52 of the Transfer of Property Act, 1882--- Such rule restrains a party to litigation from transferring or alienating a property which is subject matter of a suit, as such transfer adversely affects rights of opposing party--- Anybody dealing with property with respect to which suit is pending is deemed to have notice of pendency of the suit--- If any transaction takes place with respect to suit property during pendency of suit, then it would be subject to final judgment and decree which may be passed by the Court---Provision of S.41 of Transfer of Property Act, 1882, which protects a bona fide purchaser of a property for value without notice of any prior transaction or dispute with respect to such property cannot override imperative provision of S. 52 of Transfer of Property Act, 1882---Provision of S. 41 of Transfer of Property Act, 1882, has no application where transaction by a person claiming to be bona fide purchaser of property takes place during pendency of suit with respect to such property---Petitioner claimed to have purchased suit plot during pendency of suit for specific performance filed by respondent / plaintiff and such transaction was hit by rule of lis pendens---Lack of knowledge of petitioner as to the pendency of suit was immaterial---No implied authorization exists in a general power of attorney to sell or alienate property of the principal---In order to achieve such object, a general power of attorney was to contain a separate clause dedicated to such an object---If there was any ambiguity in a general power of attorney, principal was to be contacted for obtaining specific instructions---High Court could only exercise revisional jurisdiction if subordinate Court had committed illegality or material irregularity---High Court declined to interfere, as there was no jurisdictional infirmity with concurrent findings of two Courts below---Revision was dismissed accordingly.

Phulmajeeran Begum v. Additional District Judge, Mailsi 2008 YLR 2841; Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905; Farzand Ali v. Khuda Bakhsh PLD 2015 SC 187; Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 and Muhammad Kamal-ud-Din Khan v. Munir Syed 2022 SCMR 806 ref.

Muhammad Akram Gondal and Muhammad Mohsin Bhatti for Petitioner.

Malik Mumtaz Ahmad for Respondent No.1.

Hasnain Haider Thaheem for Respondent No.3/C.D.A.

2022 C L C 1727

[Islamabad]

Before Miangul Hassan Aurangzeb, J

INDEPENDENT MEDIA CORPORATION (PVT.) LIMITED----Petitioner

Versus

SENIOR CIVIL JUDGE (WEST), ISLAMABAD and others----Respondents

Writ Petition No.359 of 2022, decided on 19th April, 2022.

Arbitration Act (X of 1940)---

----Ss. 8, 17 & 20---Award making Rule of Court---Procedure---Petitioner assailed order of Trial Court making Award as Rule of Court---Plea raised by petitioner was that Trial Court did not have jurisdiction in the matter---Validity---Application under S.8 of Arbitration Act, 1940 was filed before Trial Court and the Court not just appointed sole arbitrator but also directed the Arbitrator to decide disputes between parties and adjourned the matter for next date for report of Arbitrator---With appointment of Arbitrator, Trial Court had become functus officio in the matter---Trial Court could not proceed further and make a reference to Arbitrator or fix time for filling of award---Part of order whereby matters in dispute between parties were referred to Arbitration and he was required to submit his report was without lawful authority and of no legal effect---Arbitration proceedings culminating in award and proceedings pursuant to petitioner's objections to the award and application of respondents to make award rule of Court could not be treated as continuation of proceedings pursuant to application under S.8 of Arbitration Act, 1940---Arbitrator could only file award before Court having jurisdiction to decide questions forming subject matter of reference if the same had been subject matter of suit---High Court directed Trial Court to transmit proceedings pending before it to District Judge to adjudicate upon objections filed by petitioner to award and set aside order making award rule of Court---Constitutional petition was allowed, in circumstances.

Union of India v. Om Parkash AIR 1976 SC 1745; Om Parkash v. Union of India AIR 1963 All. 242; Shah Construction Co. Ltd. v. Municipal Corporation of Delhi AIR 1985 Delhi 358; Fertiliser Corporation of India v. Ravi Kumar Ohri AIR 1979 Orissa 39; Union of India v. S.V. Krishna Rao AIR 1970 Madhya Pradesh 49 and Union of India v. Gorakh Mohan Das AIR 1964 All. 477 ref.

Union of India v. M/s. Ajit Mehta and Associates AIR 1990 Bombay 45 ref.

Bahzad Haider for Petitioner.

Barrister Saad Shuaib Wyne and Wasi Ullah Khan Surrani for for Respondents Nos.2 and 3.

2022 C L C 1858

[Islamabad]

Before Arbab Muhammad Tahir, J

Rana MASOOD IQBAL----Appellant

Versus

MUHAMMAD AYUB IQBAL RANA----Respondent

R.F.A. No.70 of 2020, decided on 6th June, 2022.

(a) Maxim---

----"Secundum allegata et probata"--- Connotation--- He who alleges a fact must prove it.

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

----O.XVII, R.3---Suit for recovery of money--- Oral agreement---Striking of defence---Non-mentioning of date, time, place in plaint--- Suit for recovery of money was filed by respondent / plaintiff on the basis of oral agreement---Trial Court struck off right of evidence of appellant / defendant and suit was decreed in faovur of respondent / plaintiff--- Validity---Failure to mention date, time and place of alleged oral agreement in plaint was not just creating further doubt in version of respondent / plaintiff but mentioning date and time in plaint was also necessary to obtain relief on the basis of alleged oral agreement---Trial Court struck off defence of appellant / defendant by invoking provisions of O. XVII, R.3, C.P.C. and decreed the suit in favour of respondent / plaintiff without taking into account written statement filed by appellant / defendant---Trial Court was duty bound to take into consideration all pro and contra evidence and then proceeded to decide matter on its merits rather than on technicalities---Even if right of appellant / defendant to produce evidence stood struck off under O.XVII, R.3 C.P.C., even then Trial Court was under legal obligation to give its findings on each issue separately---High Court set aside judgment and decree passed by Trial Court as the same was based on misinterpretation of law on the subject, result of misreading and non-reading of evidence available on record and suffered from material irregularity and illegality---Appeal was allowed, in circumstances.

Amjad Ikram v. Mst. Asia Kousar and 2 others 2015 SCMR 1; Muhammad Waryam v. Rehmat Ali 2007 MLD 17; Sultan Khan v. Saddar-ud-Din 2018 CLC Note 37; Bashir Ahmad and 21 others v. Shah Muhammad and another 2010 CLC 734; Akhtar Ali v. The University of the Punjab 1979 SCMR 549; Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others 1992 SCMR 2439; Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Tariq Javaid and 11 others v. Muhammad Sattar 2011 MLD 832; Karamdad v. Manzoor Ahmad and 2 others 2015 CLC 157 and Noor Muhammad and others v. Mst. Rabia Bibi and others 2019 MLD 1286 rel.

(c) Interpretation of statutes---

----Word 'shall'---Effect---Where a provision uses word 'shall' and requires an authority to do something in particular manner, it is deemed to be mandatory.

The Collector of Sales Tax Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 rel.

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

----S.33 & O.XX, R.6---Judgment and decree---Scope---Decree should agree with judgment and has to express what is determined in judgment.

Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Zia ur Rehman v. Syed Ahmad Hussain 2014 SCMR 1015; Government of N.W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Rehmat Wazir and others v. Sher Afzal and others 2005 SCMR 668 and Pakistan Industrial Credit and Investment Corporation Ltd. v. Mahboob Industries Ltd. and 10 others PLD 1984 Kar. 82 rel.

(e) Administration of justice---

----Act of Court---Effect---Act of Court should not prejudice any one---Where Court does not comply with mandatory provision of law or omits to pass an order in the manner prescribed by law, then litigant / parties cannot be taxed, much less penalized for act or commission of the Court--- Fault in such cases lie with Court and not with litigants and no litigant should suffer on such account unless he / they contumaciously negligent and deliberately not complied with mandatory provision of law.

Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. 2016 SCMR 834; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Rodger v. The Comptoir d'Escompte de Paris (1871) 3 P.C. 465 and Jai Berham v. Kedar Nath AIR 1922 PC 269 rel.

Asif Irfan and Shahid Munir for Appellant.

Respondent in person.

2022 C L C 1955

[Islamabad]

Before Mohsin Akhtar Kayani, J

MOHSIN ALI KHAN----Petitioner

Versus

FEDERAL OMBUDSMAN SECRETARIAT FOR PROTECTION AGAINST HARASSMENT OF WOMEN AT THE WORKPLACE, ISLAMABAD and another----Respondents

Writ Petition No.4032 of 2021, decided on 20th May, 2022.

(a) Interpretation of statutes---

----Harmonious meaning---Scope---Incorporated law in existence vis-à-vis new law on the subject has to be given harmonious and consistent meaning though primary rule is that statute which is complete in nature is to be construed according to its own terms and not with reference to another statute to whittle down beneficial provision of the former.

Sui Southern Gas Company Ltd. v. Oil and Gas Regulatory Authority PLD 2021 ICT 378 rel.

(b) Interpretation of statutes---

----Non obstante clause---Overriding effect---Scope---Non obstante clause is not to be given overriding effect in a mechanical fashion as underlying object of interpretative project undertaken by court is to discover meaning of words used by Legislature---Non-obstante clause is usually employed to suggest that a provision referred to in such clause has to prevail over other provisions of the statute--- Repugnancy between non-obstante clause and other clause is not to be presumed--- Overriding effect has to be accorded only in case of irreconcilable conflict.

Shifa International Hospital Ltd. v. Mst. Hajira Bibi PLD 2018 ICT 372; Syed Mushahid Shah v. Federal Investment Agency 2017 CLD 1198 and Messer Federal Bank for Cooperatives, Islamabad v. Commissioner of Income Tax, Companies Zone, Islamabad 2021 PTD 1203 rel.

(c) Enforcement of Women's Property Rights Act (XII of 2020)---

----S.4---Family Courts Act (XXXV of 1964), S.5---Dowry articles, recovery of---Complaint before Ombudsperson---Maintainability---Parties were husband and wife which relation ended in divorce---Respondent / wife filed suit for recovery of dowry articles before Family Court at place "P"---Subsequently respondent / wife also filed complaint before Federal Ombudsperson at place "I" for recovery of possession of plot mentioned in Nikahnama---Petitioner / husband assailed proceedings before Ombudsperson---Validity---When any matter specified in Part 1 of the Schedule of Family Court Act, 1964 was pending with competent Family Court among spouses or ex-spouses on a property issue, which was claimed by either party on the basis of terms referred in Nikahnama or otherwise, territorial jurisdiction had to be settled under Family Court Act, 1964---If any complaint was filed by a woman for protection of her rights of ownership and possession of property (moveable or immovable) within Islamabad Capital Territory under Enforcement of Women's Property Rights Act, 2020, she was to demonstrate that she owned or possessed any property within the territorial jurisdiction of Islamabad Capital Territory, otherwise complaint was not entertainable---No complaint was entertainable if parties were married to each other in some other district, living outside territorial jurisdiction of Islamabad Capital Territory and litigation was also pending in other district---Complaint should have been filed within that district only under the provincial laws, if enacted---Only those properties were covered under Enforcement of Women's Property Rights Act, 2020, which were agreed to be given with clear terms within Islamabad Capital Territory--- Mere mentioning of a property within Nikahnama without its clear description in terms of Cl. 16 of Nikahnama could not extend jurisdiction to Federal Ombudsman at Islamabad Capital Territory to exercise its jurisdiction as well as when the subject lis was pending with Court in any other district unless Family Court in that district had granted permission to proceed with the complaint through a speaking order---Federal Ombudsperson at place "I" had no jurisdiction to entertain complaint of respondent / wife regarding property referred in her Nikahnama, which was still to be conferred through judgment of Family Court at place "P"---High Court set aside order passed by Federal Ombudsperson for Protection against Harassment of Women at Workplace as the complaint was not maintainable--- Constitutional petition was allowed accordingly.

Ahmad Din v. Shama Bibi 2003 CLC 1339; Muhammad Din v. Mst. Aliya Bibi PLD 2007 Lah. 425; Surah An-Nisa (Ayat No.35); Mahbub Ahmad v. First Additional District Judge PLD 1976 Kar. 978; Muhammad Iqbal v. Parveen Iqbal PLD 2005 SC 22; Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan PLD 2016 SC 613 and Major Muhammad Khalid Karim v. Mst. Saadia Yaqub PLD 2012 SC 66 ref.

(d) Enforcement of Women's Property Rights Act (XII of 2020)---

----S.4---Complaint---Ombudsperson, jurisdiction of---Pre-conditions---Any woman can file a complaint under Enforcement of Women's Property Rights Act, 2020 who owns any property in Islamabad Capital Territory by way of registered sale deed, mutation, allotment letter, provisional allotment letter or through any other legal instrument, through which a property rights are conveyed to her with specific details and description, which has been taken over by force or by way of fraud or through any other mode and mean against the legal rights of a woman.

Ms. Mehak Ali for Petitioner.

Shehryar Gondal for Respondent No.2.

2022 C L C 1

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousaf Ali Sayyed, J

Syed MUHAMMAD ALI----Petitioner

Versus

Mst. KHURSHEED JEHAN and 9 others----Respondents

Constitution Petition No.D-5807 of 2021, decided on 28th September, 2021.

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

----S.12(2), 24A & O.IX, R. 13---Suit for declaration, cancellation, etc.---Petitioner/defendant filed written statement---Suit decreed ex-parte---Petitioner contended that he could not contest the suit as no notice in terms of S.24A of Civil Procedure Code was received from the Court---Application under S.12(2), C.P.C., and subsequent revision petition were dismissed---Validity---Held, that for getting an ex-parte judgment/decree set-aside on the ground of improper service, the remedy lied under O.IX, R.13 of C.P.C. and not under S.12(2) thereof---Both these provisions of law were to be read independently on account of different limitation period---None of ingredients of S. 12(2), i.e., fraud, misrepresentation and want of jurisdiction were attracted---Petitioner admitted that when the case was transferred from one judge to another, Court motion notice was received by him and he approached the Court and proceeded with the matter---Petitioner preferred to remain indolent and after ex-parte decree filed the application under S.12(2) of C.P.C. challenging the validity of the judgment and decree---Petitioner did not choose to avail the remedy provided under O.IX, R.13 of C.P.C. or S. 96(2) thereof---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.12(2)---Constitutional petition---Jurisdiction---No relief could be granted to the petitioner as the power of the Court under Art. 199 of the Constitution was purely discretionary and meant to foster the cause of justice and fair play.

S.M. Mansoor Akhtar Peerzada for Petitioner.

2022 C L C 16

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

HALEEM ADIL SHEIKH----Petitioner

Versus

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

Constitution Petition No.D-4164 of 2021, decided on 28th September, 2021.

Constitution of Pakistan---

----Arts.62(1)(f), 189 & 199---Constitutional petition---Election---Disqualification---Procedure---Petitioner sought cancellation of notification issued by Election Commission of Pakistan in favour of respondent on the plea that respondent did not fulfill requirements of Art.62(1)(f) of the Constitution---Validity---For declaring a candidate disqualified from being elected or chosen as member of Parliament or Provincial Assembly there was to be a declaration under Art.62 (1)(f) of the Constitution from Court of law---Findings of Supreme Court, in terms of Art.189 of the Constitution carried binding effect---Bar contained in Art. 62 (1)(f) of the Constitution was not attracted---Grant of relief in Constitutional jurisdiction was a matter of discretion where bona fides of petitioner could be tested to see if he had come with clean hands---Constitutional petition was dismissed in circumstances.

Syed Mahmood Akhtar Naqvi v. The Federation of Pakistan PLD 2012 SC 1089 distinguished.

Samiullah Baloch v. Abdul Karim Nausherwani PLD 2018 SC 405 and Syed Mahmood Akhtar Naqvi v. The Federation of Pakistan PLD 2012 SC 1089 rel.

2022 C L C 119

[Sindh]

Before Mohammad Ali Mazhar and Amjad Ali Sahito, JJ

JAM ZEESHAN ALI----Petitioner

Versus

RETURNING OFFICER and others----Respondents

Constitution Petitions Nos.319 and 320 of 2021, decided on 12th February, 2021.

Elections Act (XXXIII of 2017)---

----Ss.62, 63 & 133---Election dispute---Nomination papers, acceptance of---Objection, non-filing of---Bank account for election expenses---Petitioner was candidate for bye-election for a seat of Provincial Assembly---During filing of nomination papers he did not file any objection to the papers of respondent candidate, resultantly the same were accepted by Returning Officer--- Petitioner assailed nomination papers of respondent candidate on the plea that he did not open new Bank Account for bye-elections--- Validity---Respondent candidate mentioned exclusive Bank account for election expenditure in nomination form/paper but due to bona fide mistake mentioned the account opened by him for election expenses in year 2018, under the impression that the same would serve out the purpose as required in S.133 of Elections Act, 2017--- Objection was not filed / raised by petitioner and another contesting candidate before Returning Officer at the time of scrutiny of nomination papers of respondent candidate and did not confront him---When respondent candidate realized the mistake, he opened a fresh exclusive Bank account for election expenses and submitted before Returning Officer, who accepted his nomination papers as it fulfilled entire requirement as provided under Ss. 60, 61 & 62 of Elections Act, 2017---Respondent candidate had made substantial compliance---Proceedings before Returning Officer and Election Tribunal were summary in nature---High Court declined to interfere in election process as election program was announced by Election Commission in which respondent candidate had completed nine stages and there was only one stage of polling day was left---Constitutional petition was dismissed, in circumstances.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Ghulam Mustafa Jatoi v. Additional District and Session Judge 1994 SCMR 1299; Raja Aamer Zaman v. Omar Ayub Khan 2015 SCMR 1303; Pakistan Telecommunication Employees Trust v. Pakistan PLD 2017 SC 718; Collector of Sales Tax v. Mega Tech 2005 SCMR 1166; Market Committee Khudian v. Town Committee Khudain 1992 SCMR 1403; Gas Master CNG Station v. Federation of Pakistan 2019 PTD 25; Telenor Pakistan (Pvt.) Ltd v. Appellate Tribunal Inland Revenue 2017 PTD 1181; Pakland Cement Limited's case 2002 CLD 1392; A.F. Ferguson & Cop. v. District Court Karachi 1992 PLC 117; Fazal Elahi Ejaz v. Government of Punjab PLD 1977 Lah. 549; Rafiuddin v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; J.Z. Enterprises (Pvt.) Limited v. Federation of Pakistan PLD 2020 Isl. 306; The Collector of Sales Tax, Gujranwala and others v. Super Asia Mohammad Din & Sons 2017 SCMR 1427; Habib Bank Limited v. Sabcos (Pvt.) 2006 CLD 244; Niaz Muhammad Khan v. Mian Fazl Raqib PLD 1974 SC 134; Siraj Ahmed v. Election Commission of Pakistan and others C.P No.2315 of 2018; Muhammad Sharjeel v. Returning Officer PS 95 and another C.P No.4898 of 2018 and Syed Mahmood Saeed v. Returning Officer and another C.P No.4950 of 2018; 2008 SBLR 875; 2004 CLC 1060; PLD 2005 SC 52 and 2003 MLD 222 ref.

PLD 1989 SC 396 rel.

Petitioner in person.

Jawad Dero, Additional Advocate General for Respondent No.1.

Abdullah Hanjrah, Senior Law Officer, Election Commission of Pakistan, Representative of ECP for Respondent No.2.

Ziauddin, Hafeez Ziauddin and Samil Malik Khan Siddiqui along with Respondent No.3.

2022 C L C 190

[Sindh]

Before Aqeel Ahmed Abbasi and Mrs. Rashida Asad, JJ

Syed MUHAMMAD TAYYAB----Appellant

Versus

NAEEMUL GHANI----Respondent

High Court Appeal No.337 of 2018, decided on 8th March, 2021.

Specific Relief Act (I of 1877)---

----Ss. 12, 22, 42 & 54---Specific performance of agreement, refusal of---Discretion, exercise of---Principle---Suit for specific performance, declaration and injunction was filed by respondent-plaintiff regarding purchase of suit property---Suit was decreed by Single Judge of High Court in favour of respondent-plaintiff---Validity---Court had discretion to decline specific performance of agreement even in absence of an obvious impediment in such behalf despite the fact that agreement possessed all necessary particulars entailing specific performance of contract---Specific performance was an equitable relief which could lawfully be declined if Court would come to the conclusion that it was unjust and inequitable to do so---For determining where relief of specific performance was to be granted, circumstances under which the contract was executed and the conduct of parties at that time and thereafter was to be taken into consideration---Respondent-plaintiff failed to make out a case for specific performance of contract as he was not entitled for such relief---Division Bench of High Court set aside judgment and decree passed by Single Judge of High Court as the same suffered from material illegalities--- Division Bench of High Court directed Court office to refund the amount deposited by respondent-plaintiff---Intra Court Appeal was allowed, in circumstances.

Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344; Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Liaqat Ali Khan v. Falak Sher PLD 2014 SC 506 rel.

Muhammad Saleem Mangrio for Appellant.

Muhammad Iqbal Choudhry for Respondent.

2022 C L C 209

[Sindh]

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

A. RAZZAQ DAWOOD and others----Petitioners

Versus

Messrs URBAN PROPERTIES BUILDERS and others----Respondents

Constitutional Petitions Nos.D-953, D-6541, D-6927, D-7271, D-7272, D-7329, D-7330, D-7331 of 2015, D-2966, 3127 and 5067 of 2016, decided on 5th July, 2021.

Sindh Building Control Ordinance (V of 1979)---

----S.21---Karachi Building and Town Planning Regulations, 2002---Illegal conversion/amalgamation of residential property into commercial property---Petitioner contended that two plots adjacent to his plot were residential properties which had illegally been declared as commercial properties---Petitioner prayed for declaration of the said plots to be illegal and unlawful; said illegal conversion of the same to be declared as null and void/non-operative; and employees/agents to be restrained from the construction being contrary and violative to the laws/rules of Sindh Building control Authority; Civil Aviation Authority; Pakistan Air Force; Karachi Building and Town Planning Regulations, 2002; Sindh Local Government Ordinance, 2001; and Karachi Metropolitan Resolution, 2012---Relevant clauses of the lease agreement between the City District Government Karachi and the respondents had been violated which stated that the property in question would exclusively be used for residential purposes---Documents furnished by the Karachi Municipal Corporation authorities showed that the properties in question were residential in nature and the said authorities denied the claim of respondents regarding conversion of the same into commercial ones---Perusal of NOC and other documents showed that at no point of time the respondents were allowed to raise any commercial construction on the said initially declared residential properties---Whole road had been declared as commercial without taking the approval from the residents of the other residential properties excluding the properties of the private respondents---Rules/regulations of Karachi Building and Town Planning Regulations, 2002 clearly stipulated that residential property could only be converted into commercial/amalgamated after fulfilling the legal requirements which were lacking in the present matter---Present case was a matter factual controversy rather than legal one that whether any property situated on a main road could be declared as commercial upon fulfilling of certain formalities without looking to the various aspects which were to be undertaken and considered before declaring any residential property/road for commercialisation purpose---Karachi Municipal Corporation, was of the view that the properties in question were still residential properties and the NOC/permission issued by department in their view was a flagrant violation of the various terms of the NOC or the rules/regulations of other relevant departments---Respondent/Government departments had not taken into consideration the legal/factual position of the cases and dicta laid down by the Supreme Court on the subject issue from time to time----Purported permission granted by the then Administrator Karachi Municipal Corporation needed to be looked into afresh after appropriate proceedings---High Court deemed appropriate to refer the matter once again to the concerned authorities with directions to the private respondents to move a fresh application for conversion of the same residential properties into commercial; after receiving said application, the concerned respondents/departments were directed to decide the matter within 3 months from starting from the date of receipt of such application keeping in view/abide by the directions/instructions issued by Supreme Court of Pakistan in respect of commercialisation of the main road/properties situated in residential areas; it was directed that no construction should be carried out on the disputed properties by private respondents in any manner whatsoever---Issues regarding the height etc. no decision was given as the same would come into picture only when the issue of amalgamation/commercialisation would be decided by the competent authorities---Relevant Constitutional petitions were allowed and the others were disposed of as having become infructuous.

Sharjeel Akram Shaikh and Abbad-ul-Hussnain for Petitioners (in C.Ps. Nos.D-953 and 6927 of 2015).

Abdur Rehman for Petitioners (in C.Ps. Nos.D-7271, 7272, 7329, 7330, 7331 of 2015 and 5067 of 2016).

Mansoorul-ul-Arfin along with Abdur Rehman (in C.Ps. Nos.D-2966 of 2016).

Ms. Sadia Khatoon for Petitioner (in C.P. No.D-6541 of 2015).

Muhammad Talib Shah (claimed himself to be President of Petitioner/NGO) in person (in C.P. No.D-3127 of 2016).

Abdur Rehman for Respondents Nos.1 to 9 (in C.P. No.D-953 of 2015).

Dr. Shahnawaz for Civil Aviation Authority along with Zubair Ghazi, Director Airspace and Aerodrome 10 Regulations, Civil Aviation Authority.

Iqbal Khurram for Karachi Municipal Corporation along with Ms. Naheeda Akhtar for Respondents.

Muhammad Nishat Warsi, Deputy Attorney General for Pakistan along with Sqn. Ldr. PAF Moazzam.

Ali Safdar Depart., A.A.G.

Dhani Bukhsh Lashari for Sindh Building Control Authority.

Waleed Rehan Khanzada for Karachi Water and Sewerage Board.

2022 C L C 254

[Sindh]

Before Muhammad Shafi Siddiqui, J

SHOW TIME CABLE AND DATACOM (PVT.) LIMITED through Director----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through

Chairman and another----Respondents

Miscellaneous Appeal No.1 of 2017, decided on 28th April, 2021.

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

----Ss.26(2) & 30-A---Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010, R. 8---Pakistan Electronic Media Regulatory Authority Rules, 2009, Schedule B, Table 1---Licence---Validation---Council of Complaints, jurisdiction of---Settlement of financial claim---Appellant company was engaged in business of cable television operation---Grievance of appellant was that extension/revalidation of its license was made conditional subject to settlement of financial claim---Validity---Role of Council of Complaints under S.26(2) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, was restricted to the contents of programs broadcasted and distributed--- Complaint in such regard could alone be lodged with Pakistan Electronic Media Regulatory Authority which could be marked to Council of Complaints for an opinion and recommendation---Provision of R.8 of Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010, provided room for grievance of complainant to the extent of a program or advertisement---Only on such count summons could be issued and not otherwise---Like other e-channels who were being charged in terms of Table 1, attached to Schedule B of Pakistan Electronic Media Regulatory Authority Rules, 2009, which included licence fee, renewal fee and 5% annual gross advertisement revenue, appellant was also being charged Gross Annual Advertisement Revenue (GAAR) for their in-house channels only---In case of in-house channel relay, not only license fee and renewal fee was payable but advertisement revenue was also collected, like it was collected from other satellite TV channels---High Court declined to interfere in that matter as notice was rightly issued by the Authority and appellant was supposed to deposit its outstanding dues---Appeal was dismissed, in circumstances.

Ms. Sana Akran Minhas for Appellant.

Kashif Hanif and Sarmad Ali for Respondents.

2022 C L C 284

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

ROSHAN ALI LAKHAN and others----Petitioners

Versus

The D.G. PETROLEUM and others----Respondents

C.P. No.D-5841 of 2018 along with C.Ps. Nos.D-5528, D-5529, D-5530, D-5531, D-5532, D-5533, D-5534 and D-6866 of 2019, decided on 19th May, 2021.

Constitution of Pakistan---

----Arts.187(2)---Civil Procedure Code (V of 1908), S.114---Implementing order of Supreme Court---Review of order---Scope---Applicant sought review of certain portions of order passed by High Court while implementing order of Supreme Court---Validity---High Court neither exercised suo motu powers nor passed orders unrelated to the present issue which might amount to judicial over reach---Orders of High Court flowed from obligation to implement Supreme Court order---If applicant was not coming up to the mark in use of funds which Oil and Gas Exploration Companies had provided him in continuation of obligation of High Court to implement Supreme Court order (which would amount to non-implementation of that aspect of Supreme Court order)---Paragraphs under review were wholly justified and did not amount to judicial overreach or exercise of suo motu powers by High Court---Role of High Court was that of implementing Supreme Court order in letter and spirit and in an expeditious manner and to pass orders accordingly---High Court declined to enter into controversies which could slow down / adversely affect implementation of Supreme Court order or adversely affect any right of petitioner under service laws as it was not a matter of ego for High Court but of ensuring implementation of Supreme Court order expeditiously as possible for the benefit of local community---High Court reviewed its order in view of the via media suggested by applicant---Petition was disposed of accordingly.

Mian Irfan Bashir v. DC Lahore in C.P. 466L/2019; CEO Multan Electric Power Company Limited v. Muhammad Ilyas and others dated 22.03.2021 in Crl.P.713/2020 and Roshan Ali Lakhani v. DG Petroleum Concession in Crl.O.P.No.112 of 2015 ref.

Petitioner in person.

Sarmad Hani and Yousuf Moulvi for Applicants (in C.M.As. Nos.11354, 11344 and 11822 of 2021).

Salman Talibuddin, Advocate General Sindh (in C.M.A. No.11822 of 2021).

Khaleeq Ahmed for Mari Petroleum.

Asim Iqbal for SSGCL.

Abid Naseem for OGDCL.

Gul Faraz Khatak, Assistant Attorney General.

Tariq Ali Shah, Secretary, Energy Department, Government of Sindh (Focal Person for Chief Secretary).

Ghulam Ali Brahmani, Additional Secretary (Services).

2022 C L C 319

[Sindh]

Before Zulfiqar Ali Sangi, J

ZIA-UL-HAQUE MUGHERI----Applicant

Versus

MUHAMMAD MURAD and 5 others----Respondents

Civil Revision No.S-136 of 2019, decided on 9th April, 2021.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.18---Civil Procedure Code (V of 1908), O.XV, R.1 & O.XVII, R.3---Suit for specific performance of agreement, declaration and injunction---Evidence, non-production of---Effect---Suit filed by petitioner/plaintiff was dismissed under O.XVII, R.3, C.P.C. by Trial Court and Lower Appellate Court because of failure of petitioner/plaintiff to produce evidence on repeated occasions---Validity---Evidence was required in support of issues as framed and not pleadings---Such were the issues and not pleadings which guide parties in adducing evidence---Stage of adducing evidence would come only when parties were at dispute on question of law or fact which legally was known as issues---When parties were not on dispute/issues then course to be adopted by Courts was provided under O. XV, C.P.C.---Demand to lead evidence must be after notice to parties to what they were to prove and disprove---Marked difference existed between O.XV, C.P.C. and O. XVII, C.P.C.---Lower Appellate Court did not frame points for determination and judgment of Trial Court was not meeting required criterion for proceeding within meaning of O.XVII, R.3, C.P.C.---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two Courts below and matter was remanded to Trial Court for deciding the same in accordance with law---Revision was allowed, in circumstances.

Mst. Nazima Batool alias Nazim Batool v. Sabar Ali Shah 2004 CLC 1175; Nadeem Ahmed v. Altaf Hussain and others 2014 MLD 921; Rana Tanveer Khan v.Naseer-ud-Din and others 2015 SCMR 1401; Moon Enterpriser CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manger, Rawalpindi and another 2020 SCMR 300; Sher Muhammad through legal heirs and 9 others v. Messrs Sui Southern Gas Company Ltd. 2016 YLR 1321 and East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 ref.

Vinod Kumar Jessrani for Applicant.

Atta Hussain Chandio for Respondent No.1.

Munawar Ali Abbasi, Assistant Advocate General for the State.

2022 C L C 344

[Sindh]

Before Aqeel Ahmed Abbasi and Rashida Asad, JJ

ISLAMIC EDUCATION TRUST through General Secretary----Appellant

Versus

PROVINCE OF SINDH through Secretary, Education and Literacy Department----Respondent

High Court Appeal No.35 of 2014, decided on 4th January, 2021.

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

----O.VI, R.17---Amendment of pleadings---Scope---Appeal was directed against the order passed by Single Judge of High Court whereby an application for discarding the amended written statement was dismissed---Validity---Amendment in the plaint was allowed whereby the plaintiff was allowed to file amended plaint---In consequence of the amended plaint, an amended written statement was also filed which according to the plaintiff consisted of inconsistent pleas as compared to the earlier written statement, therefore, the plaintiff moved an application for discarding the written statement---Perusal of the written statement filed by the defendant showed that certain objections were raised, which undoubtedly went beyond the scope of the plaint in as much as the newly added party i.e. Province of Sindh had challenged the relationship of landlord and tenant besides raising other important jurisdictional issues---Issue of relationship had already been decided by the Rent Controller conclusively---Issues raised in the written statement filed by the Province of Sindh were alien to the matter pending before the Court---Proceedings which had already taken place including recording of the evidence of the plaintiff in presence of the then relevant party could not be just brushed aside in view of the newly filed written statement, which, if allowed to replace the earlier filed written statement, would necessitate de novo proceedings which would amount of abuse of process of law and court and thus it could not be allowed---Appeal was allowed and the impugned order was set aside.

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

----O.VI, R. 17---Amendment of pleadings---Scope---Court under O.VI, R.17, C.P.C., is mandated to grant amendment of pleadings at any stage of the proceedings.

Syed Mureed Ali Shah for Appellant.

Saifullah, A.A.G. for Respondent.

2022 C L C 361

[Sindh]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

Syed WAQI HASAN----Petitioner

Versus

OFFICIAL ASSIGNEE AT KARACHI and 3 others----Respondents

Constitutional Petition No.D-4326 and C.M.As. Nos.17851, 17688, 17689 of 2021, decided on 9th July, 2021.

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

----S.5---Tenancy agreement, essentials of---Onus on person to prove he / she was a tenant in a premises, discharge of---Scope---Petitioner, who claimed to be tenant of premises which were ordered to be auctioned during proceedings of Special Court (Offences in Bank), impugned notice of Official Assignee asking him to vacate premises and contended that he being a tenant could not be dispossessed without due course of law---Validity---Rent agreement relied upon by petitioner was required to be attested by Rent Controller or Civil Judge/Magistrate per S.5 of Sindh Rented Premises Ordinance, 1979 which was not done and status of petitioner as tenant could not be established---Alleged rent agreement did not contain names and signatures of any witnesses although columns for the same were available---Present petition was therefore an attempt to frustrate proceedings of auction---Constitutional petition was dismissed, in circumstances.

2022 C L C 386

[Sindh]

Before Nadeem Akhtar, J

Syed WAJID ALI RIZVI----Petitioner

Versus

X-RENT CONTROLLER, KARACHI EAST and 2 others----Respondents

Constitutional Petition No.S-689 of 2020, decided on 26th November, 2021.

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

----Ss.5, 14 & 19---Qanun-e-Shahadat (10 of 1984), Art. 113---Eviction petition---Personal need and default in payment of monthly rent---Petitioner, instead of filing written statement, submitted a letter claiming that demised premises were not owned by respondent; and that respondent's previous (rent) case was dismissed concurrently---Rent Controller proceeded with the case treating the said letter as written statement and allowed the case and directed the petitioner to vacate the demised premises---Appellate Court dismissed petitioner's appeal---Petitioner contended that respondent's previous (rent) case was dismissed, hence the subsequent was not maintainable; that respondent was not the owner of demised premises; that no relationship of landlord/tenant between parties existed; and that petitioner had possession of premises as owner---Held, that respondent did not conceal the fact of previous (rent) case (filed in 2012 and dismissed in 2014) and made reference thereto in subsequent case---Subsequent case was based on new cause of action of default of payment since July 2018---Said fresh cause of action was accrued to him after dismissal of his previous (rent) case, hence, there was no bar as to file the subsequent (rent) case---Petitioner had specifically admitted before two competent forums (in written statement, counter affidavit and affidavit-in-evidence) that he was the tenant of respondent and paying rent to him---Certified copies of the previous case were produced by respondent and contents whereof were admitted by petitioner in his cross-examination---Relationship of landlord and tenant was established when respondent produced copy of sale deed in his favour which was not disputed by petitioner---Petitioner had neither produced any title document nor filed any suit before Civil Court seeking declaration that he was owner of the demised premises---Tenant had no locus standi to question/challenge the title of the owner of the premises of which he was a tenant---Respondent was not cross-examined by petitioner on issue of default---Petitioner could not have shaken the stance of respondent as to personal need---In absence of his written statement, Rent Controller ought to have ignored/discarded petitioner's letter and proceeded against him ex-parte---Constitutional petition was dismissed accordingly.

Qaiser Amin for Petitioner.

None present for Respondent No.3.

Qazi Muhammad Bashir, Assistant A.G. Sindh.

2022 C L C 395

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

FARIDA AZAM ALI----Petitioner

Versus

PROVINCE OF SINDH through Secretary Cooperative Societies Government of Sindh, Karachi and 5 others----Respondent

Constitutional Petition No.D-1317 of 2014, decided on 17th September, 2021.

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

----Ss. 56, 59, 64 & 64A---Cooperative Societies Rules, 1927, R.32---Housing Society---Allotment---Award---Revisional jurisdiction---Plot allotted to petitioner by Housing Society was cancelled on account of non-payment of dues, which was further allotted to subsequent allottee---Subsequent allottee preferred appeal which was decided by Registrar Cooperative Societies (Registrar) directing respondent society to compensate the present petitioner by allotting an alternate plot, which was not implemented---Petitioner filed application for execution certificate during pendency whereof respondent society preferred appeal/revision for suspension of earlier orders, which was decided by Minister for Law and Parliamentary Affairs, Government of Sindh (Government) setting aside order of Registrar and Award of the nominee of the Registrar---Government of Sindh directed the Registrar to appoint other suitable nominee for giving Award---Petitioner impugned said order of Government of Sindh---Held, that appeal was already preferred by subsequent allottee before Registrar, therefore, proceedings filed by respondent society before Government could not be treated as an appeal and revision both for the reasons firstly, that S.64 of Cooperative Societies Act, 1925, did not provide a second appeal from appellate order passed under S.56 of Act, 1925; secondly, that Government while passing impugned order treated the proceeding as revision---Such proceeding was filed and order in appeal was passed after 6 months from passing said appeal---If original order/award passed in Arbitration Proceeding was not challenged by respondent society, the same could not be questioned by filing a revision under S.64A of Act, 1925---Lease could not have been cancelled in arbitration proceeding but the lease was overturned in decision of "Registrar" in appeal by keeping intact the leasehold rights of subsequent allottee and directing respondent society to give alternate plot to the petitioner; finding given in arbitration was maintained which attainted finality hence, could not have been interfered with in the purported revisional jurisdiction exercised by "Government"---Invoking revisional jurisdiction under S.64A was void ab-initio---Impugned order passed by "Government" was coram non judice and nullity in the eyes of law, hence, quashed---Plea of laches had also become meaningless---Constitutional petition was accepted accordingly.

Defence Housing Authority (DHA) Lahore v. Secretary Cooperative Department Government of Punjab and others 2017 SCMR 1131 and Bahadur Khan and others v. Federation of Pakistan 2017 SCMR 2066 rel.

(b) Constitution of Pakistan---

----Art.175---Jurisdiction, conferring of---Consent of parties---Expeditious decision, request for---Scope---Mere requesting for an expeditious decision of a case could not change the settled principle that consent of parties could not confer a jurisdiction upon a Court/functionary/authority, which otherwise was not available under a law.

Rajender Kumar for Petitioner.

Ch. Khalid Rahim Arain for Respondent No.4.

Miran Muhammad Shah, Additional Advocate General Sindh for Respondents Nos.1 to 3.

Nemo. for Respondents Nos.5 and 6.

Date of hearing: 31st August, 2021.

| | | | | --- | --- | --- | | Law under discussion: | (1) | The Constitution of the Islamic Republic of Pakistan, 1973. {the 'Constitution'} | | | (2) | The Cooperative Societies Act, 1925. | | | (3) | The Cooperative Societies Rules, 1927. |

DECISION

MUHAMMAD FAISAL KAMAL ALAM, J.----The Petitioner has called in question the Order dated 17.12.2012 (the 'Impugned Order') passed by Respondent No.2 (Minister, For Law and Parliamentary Affairs, Government of Sindh), whereby the order dated 22.04.2009 passed by Respondent No.3 (the Registrar Cooperative Societies Sindh) as well as Award dated 13.06.2005, passed by the Nominee of the Registrar, were set-aside and the case was remanded to Respondent No.3 (the Registrar Cooperative Societies Sindh), with direction to appoint some other suitable Nominee, who after a de novo trial give an Award.

1. Relevant facts for deciding this Petition are that Petitioner was allotted a Plot No.C-170, admeasuring 400 Square Yards by Respondent No.4 (P&T Cooperative Housing Society Ltd)-'the Society' vide an Allotment Order No.805 dated 22.03.1968, but was subsequently cancelled on account of alleged nonpayment of dues as demanded by said Respondent Society, which was subsequently challenged in the departmental proceeding, as envisaged in the Cooperative Societies Act, 1925 and Rules framed thereunder (the 'Relevant Law' and 'Rules').

2. Mr. Rajender Kumar, learned Advocate for Petitioner has stated that ample opportunity was provided to Respondent Society but it deliberately did not contest the Arbitration Case No.27 of 2005, so also observed in the Award (at page-51 of the file). Further contended that in Appeal preferred by present Respondent No.6 (Ilyas Masih), who is subsequent allottee of the subject Plot, although the said Respondent Society entered appearance by filing Vakalatnama but did not prefer an independent Appeal to question the Award, if at all it was aggrieved of the same. He has referred to Vakalatnama in favour of Lahooti and Quadri Advocates & Legal Consultants, bearing Stamp of Honorary Secretary of Respondent Society (at page-97 of the Court file). After decision in Appeal, whereby Respondents Society was directed to compensate the present Petitioner by allotting an alternate Plot while observing that since lease has been executed in favour of present Respondent No.6, therefore, it would be unjust to dispossess him. It is argued that when this decision was not implemented, present Petitioner filed an Application for issuance of an execution certificate in terms of Section 59 of the above referred Relevant Law. In the intervening period Respondent Society preferred a time barred Appeal / Revision under Sections 64 and 64-A of the Relevant Law before the Respondent No.2, accompanied by an Application under Rule 32 of the Cooperative Societies Rules, 1927 [the relevant Rules], requesting for suspension of the earlier orders. Finally, the said Revision was decided by way of the Impugned Order. Learned counsel has stated that if no appeal was filed by Respondent Society against the main Award, then it cannot directly file a proceeding before the Respondent No.2, which is also barred by Limitation as the decision in Appeal is of 22.04.2009, whereas, the Revision was filed on 17-10-2009, that is, after six months. He has cited following case law to augment his arguments that revisional power under Section 64-A of the above Relevant Law is mainly administrative in nature and cannot be invoked to set-aside a proceeding relating to Arbitration and that of an Appeal, which is to be executed as a decree of a Civil Court.

i. PLD 1966 (W.P.) Karachi 177

[Sheikh Haider v. Registrar, Co-operative Societies, Karachi and others]-Haider case.

ii. 2017 YLR 1816 [Sindh]

[Abdul Haq v. Thakumal and 4 others]-Abdul Haq case.

iii. 2017 SCMR 1131

[Defence Housing Authority (DHA) Lahore v. Secretary Cooperative Department Government of Punjab and others.)-DHA case.

1. Mr. Ch. Khalid Rahim Arain, learned counsel for Respondent No.4 has controverted the arguments of Petitioner's counsel by stating that Respondent Society was never given proper notice in the Arbitration and the Appeal proceedings, hence, Respondent Society could not contest those proceedings, which illegality in fact has been cured by Respondent No.2 through the Impugned Order. Contends that on the contrary, Petitioner despite notice did not contest the proceeding before the Respondent No.2 and the present Petition is hit by laches, which is filed after a delay of fifteen months, as the Impugned Order is of 17.12.2012, whereas, the present Petition was filed on 14-3-2014. Learned Advocate has argued while making a reference to another C.P. No.D-4156 of 2011 preferred by same Petitioner, wherein the latter had requested that the Revision proceeding before Respondent No.2 may be decided expeditiously, hence, the Petitioner cannot take a contrary stance in the present Petition about being unaware of the proceeding [before the Respondent No.2]. It is argued that the Award itself is void ab-initio, because it has given a finding that lease in favour of private Respondent No.6 (Iqbal Masih) be cancelled, which cannot be done in a proceeding of the nature but only through a proper judicial proceeding. He has relied upon the following case law_

i. 1990 CLC 1693 [Peshawar]

[Muhammad Naseem Khan v. Government of N.-W.F.P. through Secretary, Department of Cooperative, Peshawar and 24 others]-Naseem Khan case.

ii. 2017 YLR 1816 [Sindh]

[Abdul Haq v. Thakumal and 4 others]-Abdul Haq case (also relied upon by counsel for the Petitioner).

1. Learned Additional Advocate General Sindh has controverted the contentions of Petitioner's Advocate and supported the impugned order and states that power under Section 64-A has been properly exercised by Respondent No.2 and the said provision (Section 64-A) is not confined only to rectify the administrative acts of Officers but it enables the Respondents Nos.1 and 2 to exercise an overall supervisory jurisdiction for ensuring that affairs of societies and Regulator/Government Officials is properly performed. In support of his arguments, he has cited the reported decision of this Court_

2011 YLR 246 {Karachi}

[Citizen Cooperative Housing Society Ltd., though Chairman vs. Agha Taj Muhammad Academy through present Secretary and 2 others]-Citizen Cooperative Housing Society case.

1. Arguments heard and record perused.

2. Learned counsel for Petitioner and learned AAG have also submitted their respective Written Arguments along with the above case law.

3. It is necessary to clarify that to the facts of present case, the erstwhile statute, viz. the Cooperative Societies Act, 1925, is applicable, where under, an Award was passed by the Registrar's Nominee under Section 54 was challenged in the appeal by Respondent No.6; which was subsequently questioned by the Respondent Society under Section 64 read with Section 64-A of the Relevant Law. Section 64 of the Relevant Law provides an appeal against order, decision or sanction given by the Registrar (Respondent No.3) under Sections 10, 16, 45, 46, 50, 50-A, 54 and subsection (3) of Section 54-A, to the Provincial Government within two months from the date of communication of the order; whereas, Section 64-A is judicially interpreted as a revisional power. Since already an Appeal under Section 56 read with Section 64 was preferred by private Respondent No.6, before the Registrar, therefore, the proceeding filed by Respondent Society before the Respondent No.2, cannot be treated as an Appeal and Revision both, because, firstly, the above Section 64 does not provide a second appeal from the appellate order passed under Section 56; and, secondly, the Respondent No.2 while handing down the Impugned Order itself has treated the proceeding as revision, viz. Revision Application No.SO(T)6(21)/09. Whether Section 64-A is applicable in the present circumstances, is to be decided in this Petition, in view of the relevant case law, cited by learned Advocates for Petitioner and Respondents.

4. In the 'Objections / Parawise Comments' filed on behalf of the Respondent Society, it is mentioned that after the impugned order, another Award was passed in ABN Case No.40 of 2013, which is not challenged. The said Respondent Society has not filed any record of the subsequent arbitration proceeding as stated above; whereas, present record of this Petition does not contain any document or Award (as alleged), nor learned Advocate representing Respondent No.4 [Society], could explain this new aspect satisfactorily, hence, the above contention has no force.

5. The issue of laches though relates to the maintainability of this Petition, but in the present case, it is dependent on the finding on the exercise of power by Respondent No.2, while passing the impugned Order, hence, first it is necessary to determine that whether the proceeding filed before the Respondent No.2, by Respondent Society was coram judice and within the framework of Relevant Law.

6. The Revision was filed by Respondent Society directly under Section 64-A of the Relevant Law before the Respondent No.2 on 17.10.2009 (at page-99 of the Court file), whereas, order in appeal was passed on 22.04.2009, that is, after six months from passing of appeal. Since no decision was given for a considerable period, present Petitioner filed C.P. No.D-4156 of 2011, which was disposed of by consent on 24.08.2012 directing the competent authority to dispose of the appeal, if any, pending against the order dated 22.04.2009 within a period of two months while deciding the maintainability as well. It would be advantageous to reproduce the order passed in the above Constitutional Petition by learned Division Bench of this Court_

"By consent, the Petition is disposed of directing the competent authority to dispose of the Appeal, if any, pending against the order dated 22.04.2009 in this matter, within a period of two months through a speaking order strictly on merits and in accordance with law, keeping in view the objection of the Petitioner that the Appeal itself is not maintainable."

1. Gist of the case law cited by the Petitioner's Advocate in respect of scope of Section 64-A of the Relevant Law is, that the power mentioned therein has a limited range of applicability, primarily to scrutinize the administrative or departmental inquiry of the authorities, who are functioning under the Relevant Law and Rules and the same cannot be applied or invoked for inference in the decisions passed in the arbitration proceeding and appeal. It is held by the Hon'ble Supreme Court in the DHA case (supra) that_

"…Section 64-A of the Act has limited scope. The power under this Section is vested in the Secretary to the Provincial Government and the Registrar to call for and securitize the record of an enquiry or proceeding pending before any Officer subordinate to them. Power under this Section could not be extended to cover the proceeding, which relate to Arbitration and or Award given by the Arbitrators Committee constituted in terms of section 54 of the Act, as the Arbitrators are not subordinate either to Secretary Co-operatives or to the Registrar."

1. Learned Additional Advocate General has relied upon decision of Division Bench of this Court given in Citizen Cooperative Society's case 2011 YLR 246 Karachi, wherein it is held that Section 64-A empowers the Provincial Government to keep a vigil over the acts of Society and official and the phrase "if in any case" mentioned in the above provision, covers all sorts of cases, including the arbitration proceeding.

2. Crux of the case law as relied upon by learned counsel for Respondent Society is, that a lease cannot be cancelled in the arbitration proceeding under Section 54 of the Relevant Law, except by adopting due process, inter alia, through judicial proceeding; the word "proceeding" as mentioned in the above provision [Section 64A] is a comprehensive term to be given wider meaning and therefore, power and authority as mentioned in Section 64-A will also be applicable to the arbitration and appellate proceedings; discretionary relief under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, cannot be extended to present Petitioner, who was negligent in invoking the writ jurisdiction after fifteen months from the date of the Impugned Order and the case is hit by the rule of laches.

3. The stance of Petitioner that Respondent Society though made appearance in the above Appellate Proceeding but did not contest the same, has not been disputed during hearing and in the Objections / Parawise Comments of Respondent No.4-Society. Undisputedly, said Respondent 4 [Society] was impleaded in the Arbitration Proceeding so also the Appellate. Therefore, if the original order / Award passed in the Arbitration Proceeding was not challenged by the Respondent Society, then the same cannot be questioned by filing a Revision under Section 64-A of the Relevant Law. The reported case of Abdul Haq (supra) handed down by the learned Division Bench of this Court, specifically has dealt with this factual and legal aspect of the matter in its paragraphs-37 to 40, by holding, that since respondent No.1 (of the reported case) was a party to the arbitration proceeding and did not prefer an Appeal but has directly filed a revision proceeding under Section 64-A and a favorable order passed in said proceeding, was illegal and coram non judice because the finding mentioned in the award had attained finality. Secondly, the two cited decisions relied upon by learned Advocate for Respondent Society and AAG (as mentioned above), are distinguishable. The first case of Naseem Khan, delivered by learned Peshawar High Court primarily relates to the dispute arising from the election of directors of a Cooperative Society and although the learned Peshawar High Court has mentioned the above Haider case (of this Court) but did not disagree with the same but only distinguished it. Thus, with due deference, the decision of another High Court in these circumstances, is not binding on the learned Division Bench of this Court, under the principle of precedent, so also envisaged in Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973, when on a similar law point a decision of another Division Bench of this Court is still in the field.

The second reported Judgment given in the Citizen Cooperative matter (ibid) by the learned Division Bench of this Court, is distinguishable and with utmost respect not binding on this Bench; for the reasons; firstly, while passing the above said decision, the above reported Judgment of Haider case was not before the learned Bench, that gave judgment in Citizen Co-operative case; secondly, applying the principle of stare decisis, the subsequent decision of Abdul Haq case (ibid) of this Court, facts whereof are somewhat similar to the facts of the present Petition, which followed the rule laid down in Haider case and subsequently by the Hon'ble Supreme Court in DHA case (ibid) with regard to the import and scope of Section 64-A, has a binding force and is to be followed in the present Petition.

1. Adverting to the arguments of counsel of Respondent Society about cancellation of lease; to this extent we endorse the arguments of counsel of Respondent Society, that lease could not have been cancelled in the arbitration proceeding, but that finding has lost its significance and does not lend any support to the case of Respondent Society, because it has been overturned in the decision given in Appeal No.31 of 2005 (as mentioned above), inter alia, by keeping intact the leasehold rights of private Respondent No.6 and directing Respondent Society to give an alternate plot to the Petitioner. However, the finding given in the arbitration proceeding about illegal cancellation of above plot of Petitioner was maintained in the appeal, as observed above and has attained finality, which could not have been interfered with in the above purported revisional jurisdiction exercised by the Respondent No.2.

2022 C L C 409

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

PROVINCE OF SINDH, through Secretary Irrigation and Power Department, Government of Sindh, Karachi and 2 others----Appellants

Versus

LAND ACQUISITION OFFICER/DEPUTY DISTRICT OFFICER (R&R), ROHRI and others----Respondents

1st Civil Appeal No.D-31 of 2003, decided on 14th October, 2021.

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

----S.18---Acquisition of land by the Government---Award passed by Land Acquisition Officer---Appellants preferred reference against the said award---Respondents filed written statement---Application for rejection of plaint was accepted by District Judge on ground of being barred by law---Appeal of appellants was dismissed by High Court---Supreme Court allowed appeal and remanded the matter to High Court for passing speaking order---Held, that matter was sent to the Collector by Provincial Government for its referral to Court and it was not sent directly to the Court in view of S.18(3) of Land Acquisition Act, 1894---Where a law had required doing of something in a particular manner, it had to be dome in the same manner and not otherwise---Appeal was dismissed accordingly.

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Limited PLD 2016 SC 995; Human Rights Cases Nos. 4668 of 2006 and others PLD 2010 SC 759 and Ajmir Shah, Ex-Sepoy v. The Inspector-General, Frontier Corps. Khyber Pakhtunkhwa and another 2021 PLC (C.S.) 420 rel.

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

----S.18---Reference against award---Limited/special jurisdiction of Court---Scope---While entertaining a reference under S.18 of Land Acquisition Act, 1894, District Court would be a Court of limited jurisdiction and was bound to determine whether the matter would come within the limits of its jurisdiction---Court had to see: firstly, that reference under Land Acquisition Act, 1894, was made to it by an authority competent to make a reference (i.e. Provincial Government); and secondly, that such reference was related to a matter which might be referred thereto under the Act.

Abdul Sattar v. Hameed Bibi PLD 1950 Lah. 370 and The Additional Chief Secretary, Local Government, Public Health Engineering and Rural Development Deportment, Government of Sindh, Karachi through Executive Engineer, Public Health Engineering Division, Badin v. Assistant Commissioner, Badin and Land Acquisition Officer, Badin and 5 others 1993 MLD 635 rel.

(c) Interpretation of statutes---

----If words of statute were themselves clear/unambiguous, it was no more necessary to expound those words in their natural/ordinary sense, the words themselves in such a case best declare the intentions of Legislature.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 rel.

Ahmed Ali Shahani, A.A.G. for Appellants.

Sarfraz A. Akhund for Respondents Nos.2 and 3.

2022 C L C 428

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

TARIQ WALI and 86 others----Petitioners

Versus

PROVINCE OF SINDH and 4 others----Respondents

Constitution Petition No.D-4454 of 2019 and C.M.A. No.24080 of 2021, decided on 14th October, 2021.

Sindh Cooperative Societies Act (XXVIII of 2020)---

----S.19---Co-operative Society---Elections---Voters' list---Inclusion of names---Election Officer, powers of---Cooperative society in question filed application alleging that Election Officer included non-members in voters' list---Validity---Duty of Election Officer was to assist Official Assignee in conducting fair and transparent elections, as directed by High Court through its earlier orders---Election Officer transgressed his powers in reviewing his own previous order and giving right to 61 non-eligible persons to cast their vote and for inclusion of their names in final approved list of 505 members---Manner in which Election Officer proceeded in the matter smacked of mala fide and arbitrariness on his part, as he had transgressed his jurisdiction and powers which were not available to him---High Court set aside order in question as the same was not a lawful order and inclusion of names of 61 non-members in final voters' list was set aside---Application was allowed, in circumstances.

Wiqas Ahmed Khan for Petitioner No.1.

Khalil Ahmed Siddiqui and Muhammad Fahim Zia, Petitioner No.4.

Meeran Muhammad Shah, A.A.G.

Chaudhry Wasim Iqbal, Official Assignee.

Mukhtiar Ali Solangi, Assistant Registrar, Cooperative Societies-III, Karachi/Election Officer.

2022 C L C 442

[Sindh]

Before Adnan-ul-Karim Memon and Yousuf Ali Sayeed, JJ

Syed ASGHAR ALI SHAH----Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government Department Government of Sindh at Karachi and 6 others----Respondent

Constitution Petition D-1566 of 2019 and No.D-569 of 2020, decided on 23rd July, 2020.

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

----S.120(3)---Corruption and corrupt practices---Suspension---Petitioner was Chairman Municipal Committee who was suspended from the post on the allegations of misconduct and corruption---Validity---In law suspension was not defined as punishment and did not finally determine the matter---Sole purpose of suspension was that the person against whom severe allegations of misconduct, flagrant abuse of powers and disgraceful conduct was levelled could be restrained from causing further damage to finances of the institution---Suspension order was interim in character and did not attain any finality---Against adverse result of inquiry, if any, petitioner had the remedy of appeal and in presence of such adequate remedy, High Court at such juncture declined to step in to declare the suspension of petitioner illegal and void on the ground that order of suspension was not passed by competent authority---Objection of petitioner on his suspension was technical and procedural---Petitioner was facing allegations of corruption and in such circumstances, High Court refrained to exercise discretion in his favour and thwart the whole process of inquiry against him and set aside his suspension on any of the technical ground---Such would amount to interfering in the right of authority to inquire into allegations against petitioner---Petitioner was not prejudiced by his suspension---Constitutional petition was dismissed, in circumstances.

Bahadur Khan and others v. Federation of Pakistan and others 2014 SCMR 2066 ref.

(b) Interpretation of statute---

----Gazette notification---Scope---Provisions of statute for publication of a notification in official Gazette are generally regarded by Courts as directory and where their strict non-compliance does not provide any consequences.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 rel.

Qurban Ali Malano, Jamshed Ahmed Faiz and Sudham Chan for Petitioner (in C.P. No.D-1566 of 2019 and C.P. No.D-569 of 2020).

Wazir Ahmed Ghoto for Intervener (in C.P. No.D-569 of 2020).

Shafi Muhammad Chandio, Additional Advocate General and Ahmed Ali Shahani, Assistant Advocate General along with Zahid Hussain Kehmtio, Additional Secretary on behalf of Secretary, Local Government, Karachi and Inspector Ayaz Ahmed, Circle Office, ACE, Ghotki.

2022 C L C 489

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Irshad Ali Shah, JJ

MUHAMMAD HASHIM through Legal Heirs----Petitioners

Versus

Haji ABDUL GHAFOOR through Legal Heirs----Respondents

Constitution Petition No.D-145 of 2004, decided on 29th December, 2020.

Civil Procedure Code (V of 1908)---

----S.12(2)---Specific Relief Act (I of 1877), S. 27---Transfer of Property Act (IV of 1882), S. 42---Suit for specific performance was dismissed for non-prosecution and was restored---Compromise decree was passed on application of parties---Petitioner's application for setting aside such compromise decree was dismissed by trial Court---Revision petition was also dismissed by District Court---Validity---Suit dismissed for non-prosecution was restored with implausible delay of about 4 years without accounting for such delay and without providing chance of hearing to defendants which was mandatory under sub-Rule (2) of the R.9 of Civil Procedure Code, 1908---Trial Court had not ascertained the fact as to whether the defendants allegedly consenting for compromise decree were actually having ownership right over the subject land----Execution application was not required but filed obviously to cover-up fraud---Survey numbers were still in name of the petitioner/applicant---Impugned decree was prima facie a collusive decreee obtained by practicing fraud and making representation of facts---Petitioner, however, had to prove before Trial Court his status as bona fide purchaser to escape the clutches of S.27 of Specific Relief Act and S.41 of Transfer of Property Act---Impugned orders/decree were set-aside with direction to the Trial Court to implead the petitioner as party in the suit---Constitutional petition was allowed accordingly.

Saad Fayaz Memon for Petitioners.

Muhammad Sulleman Unar and Asad Ali Jatoi for Respondents No.1 (i, ii, v and vi)

Allah Bachayo Soomro, Additional A.G. for Official Respondents.

2022 C L C 509

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

MUHAMMAD MAQSOOD----Petitioner

Versus

TAUHEED SULTAN through Attorney and 7 others----Respondents

Constitution Petition No.D-3818 of 2021, decided on 21st September, 2021.

Civil Procedure Code (V of 1908)---

----O.XXI, Rr. 66, 68, 89, 90 & S.151---Auction of property under administration of Court---Petitioner filed application on 11/01/2021 expressing offer to purchase property---Public notice was published on 16/01/021 and auction was conducted on 01/02/2021 with an offer received from respondent who duly deposited 1/4th of total sum---No objection from parties---Petitioner (a third party) raised objections that auction had ensued without notice specifically having been issued to petitioner and that publication contained certain defects---Petitioner claimed auction proceedings to be cancelled and auction be conducted afresh---Objections were concurrently dismissed---Petitioner contended that an intimation ought to have been given to him regarding auction proceedings; that timeframe constituted in violation of O.XXI, R.68 of Civil Procedure Code, 1908; that only two persons had participated in the auction (respondent and wife of another respondent); that there was discrepancy regarding deposit of balance sale consideration---Respondent's contention that petitioner being stranger to suit had no vested right/interest in suit property, hence had no locus standi to raise objection---Validity---Held, there was no error/illegality afflicting the impugned orders as no right ever accrued in favour of the petitioner, who accordingly had no locus standi to apply for re-auction---Respondent was evidently a bona fide purchaser and sale in his favour had become sacrosanct and could not be disturbed---Constitutional petition was dismissed accordingly.

Nausheen Tajammul for Petitioner.

Aijaz Shirazi for Respondent No.1.

Asim Iqbal for Respondent No.2.

2022 C L C 529

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

Messrs AIR INDUS (PVT.) LTD.----Plaintiff

Versus

PAKISTAN CIVIL AVIATION AUTHORITY, through Director General, PCAA, Terminal-1, Jinnah International Air Port, Karachi and ----Defendant

Constitutional Petition No.D-1369 of 2021, decided on 2nd September, 2021.

Constitution of Pakistan---

----Art.199---Constitution petition---Factual controversy---Scope---Petitioner sought suspension of operation of final notice issued by Civil Aviation Authority (CAA) whereby it was advised to clear all Non-Aeronautical and Aeronautical dues within fifteen days, failing which CAA would take necessary action including cancellation of all allotments and taking over of all premises at CAA airports---Validity---Final notice, prima facie, revealed that despite finalization of reconciliation process the petitioner had failed to make payment of CAA's outstanding dues---Notice had provided opportunity to visit the office of the CAA in person for clarification and clearance of outstanding dues---Nothing was available on record that pursuant to the notice, petitioner had approached the CAA for clarification, etc.---While exercising powers under Art. 199 of the Constitution High Court could not resolve the subject controversy of reconciliation of accounts---Constitutional petition along with pending applications was dismissed leaving the petitioner at liberty to avail remedy provided under the law.

2022 C L C 543

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

Mian TRUST through Representative/Trustee----Petitioners

Versus

LYARI EXPRESSWAY RESETTLEMENT PROJECT through Project Director and 2 others----Respondents

Constitution Petition No.D-300 of 2015, decided on 18th October, 2021.

(a) Sindh Building Control Ordinance (V of 1979)---

----S.21---Karachi Building and Town Planning Regulations, 2002, Reg. 18-4.1---Amenity plot (park), conversion into residential one---Petitioner being charitable trust imparting education to underprivileged children on amenity plot filed petition against illegal occupation/construction/encroachment of adjacent amenity plot earmarked as park after getting no response from concerned authorities---Two official respondents stated in their comments that the subject plot was an amenity plot which could be used for amenity purposes (i.e. park) and that such plot could not be used for residential/commercial or any other purpose other than amenity---Record (i.e. photographs attached by Nazir through his report) revealed illegal construction by some encroachers on the subject plot despite restraining orders of High Court---Respondent (Lyari Express Settlement Project) admitted that land was an amenity plot but subsequently converted into residential for purposes of certain resettlement project---Held, that under Regln. 18-4.1 of the Karachi Building and Town Planning Regulations, 2002, a land reserved for amenity purpose could not be converted/utilized for any other purposes---Respondent had failed to show any statutory provision in support of conversion of amenity/park into residential utilization---Amenity plot meant exclusively for park could not be converted even if it was presumed that a provisional master/layout plan had been prepared and final master/layout plan was yet to be finalized---High Court directed official respondents to restore the plot to its original position (i.e. park) and furnish report in Court---Constitutional petition was disposed of accordingly.

Mansoor Sharif Hamid v. Shafique Rehman 2015 SCMR 1172 rel.

(b) Sindh Building Control Ordinance (V of 1979)---

----S.21---Karachi Building and Town Planning Regulations, 2002---Amenity plot (park), conversion to residential one---Scope---If government officials want to change the nature of the amenity plot i.e. from park to mosque/Imambargah/hospital, that could only be done after fulfilling the legal/codal formalities provided in such behalf.

Obaid-ur-Rahman Khan for Petitioner.

Nemo. for Respondent No.1.

Ms. Naheed Akhtar for Respondent No.2.

Sartaj Malgani for Respondent No.3.

Miran Muhammad Shah, Additional Advocate General (A.A.G.) for Respondent No.4.

2022 C L C 556

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan and Khadim Hussain Tunio, JJ

Mst. SHAHNAZ ----Petitioner

Versus

IQBAL HUSSAIN and 10 others----Respondents

Constitution Petition No.D-231 of 2021, decided on 8th September, 2021.

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

----Ss.2(0),3, 11, 13 & 14---Public property---Encroachment---Anti-Encroachment Tribunal ordered the occupation of the petitioner to be removed and directed the concerned official to demolish/remove the illegal construction on public property---Petitioner claimed entitlement on account that he was paying rent to the concerned Municipal Committee in the name of Pacca Piri; that he acquired electricity in the year 2000; that impugned order was non-speaking without jurisdiction; that petitioner being a grantee since 1965-66 through their predecessor paying the rent was not liable to be disturbed; that there was no complaint of encroachment by competent authority; that only government servant was empowered under S.3 of Sindh Public Property (Removal of Encroachment) Act, 2010---Question as to jurisdiction available to the tribunal open to be exercised by a private person under the Act, 2010---Validity---Management of the public property was duty of the concerned officials---Petitioner had approached the concerned officials, however, on failure of their action to the satisfaction of the petitioner the tribunal was approached after the approach to High Court by way of constitutional petition---Order passed by High Court did not confer jurisdiction on the tribunal---Tribunal itself was having jurisdiction on account of any failure present on part of the officials of government---Approaching to the tribunal by a private person was nowhere specifically barred/restricted in Sindh Public Property (Removal of Encroachment) Act, 2010---Duty casted upon by the government officials required them to exercise their powers as provided under Ss. 3 and 4 of the Act, 2010 and where such exercise is not indulged into by the officials respondents, the private person was not deprived to approach the subject tribunal under the said Act and it was for the tribunal to decide the dispute---Held, that tribunal under the Act, 2010, was empowered to decide the question of possession, its terms, variation thereof; and the availability of occupation which the government servant was required to manage---Constitutional petition was dismissed accordingly.

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

----Preamble---Scope---Sindh Public Property (Removal of Encroachment) Act, 2010 was created to deal with almost all the normal problems in vogue for the matters concerning encroachments including encroachment relating to land, building and public property.

(c) Words and phrases---

----"Determination"---Word determination meant (i) a final decision by a Court/administrative agency; (ii) the ending/expiration of an estate for interest in the property or of a right, however, or authority.

Prakash Kumar for Petitioner.

Kamaluddin for Respondent No.1.

Allah Bachayo Soomro, Additional Advocate General along with Akhtar Ali, Administrator Municipal Committee Tando Allahyar for Respondents.

2022 C L C 569

[Sindh]

Before Aqeel Ahmed Abbasi and Rasida Asad, JJ

Mrs. SARA JALIL----Appellant

Versus

MUHAMMAD JAMIL BABER and 2 others----Respondents

High Court Appeal No.104 of 2021, decided on 9th November, 2021.

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

----S.42---Suit for specific performance---Balance sale consideration, payment of---Injunctive order---Respondent filed suit for specific performance and permanent injunction against appellant---Appellant claimed ownership of subject house and contended that she rented out said house to son of respondent; that son of respondent defaulted payment of rent; that she came to know about the respondent's suit and stay order---Appellant moved Civil Miscellaneous Application (CMA) seeking dismissal of the suit on ground that the respondent/plaintiff failed to comply with the order passed in the suit---Single Judge of the High Court dismissed the CMA---Validity---Single Judge of High Court directed the appellant that injunctive order was subject to deposit of the balance sale consideration---Appellant was never put to notice that non-compliance of such order would be deemed to be his incapability of performing his part of the contract and it would entail dismissal of the suit---Suit was alive and the order directing deposit of balance sale consideration did not stipulate the consequences for non-deposit---Respondent/plaintiff deposited the sale consideration in Court and as such had shown his willingness/readiness to perform his part of contract---Question as to entitlement for grant of specific performance would be decided after evaluating evidence of parties---Appeal was dismissed accordingly.

Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 rel.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2021 and Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 distinguished.

(b) Constitution of Pakistan---

----Art. 185---Order refusing leave to appeal---Leave refusing order passed by Supreme Court was not law enunciated by Supreme Court and had no binding effect.

Karachi Development Authority through Director General, Civic Centre, Gulshan-e-Iqbal, Karachi v. Mst. Hawa Bai and others 2017 SCMR 1801 rel.

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

----S.42---Specific performance, seeking of---Requirements---Willingness, demonstration of---Scope---Specific performance was a discretionary relief---Courts were not bound to grant such relief mechanically, merely because it was lawful to do so---Discretion to grant such relief was structured on sound/reasonable judicial principles, amenable to judicial review and correction by the Court of appeal---Foremost requirement to seek specific performance, party had to demonstrate his readiness/willingness/capability to perform his agreed part of contract.

Muhammad Haseeb Jamali for Appellant.

Salman Hamid for Respondent No.1.

Station House Officer of Police Station Awami Colony, Korangi, Karachi for Respondent No.2.

Saima Estate Builders ad Developers, Respondent No.3.

2022 C L C 585

[Sindh]

Before Syed Hasan Azhar Rizvi, J

AUM MEDIA PUBLISHER, LLC through Authorized Officer and another----Plaintiffs

Versus

MOHIB MIRZA and 2 others----Defendants

Suit No.1048 and C.M.A. Nos. 7345, 7346 of 2020, decided on 4th June, 2021.

Specific Relief Act (I of 1877)---

----Ss.12, 21, 42, 54 & 56---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement, declaration and injunction---Interim injunction, setting aside of---Money as adequate relief---Moulding of relief---Dispute was with regard to release of a commercial film---Plaintiffs who were investors of the project sought restraining of its exhibition in market due to violations of contractual liabilities by defendants---Validity---Plaintiffs disappeared for nearly almost a lapse of one year---Despite knowledge that team of the project stuck up abroad, plaintiffs failed to show any courtesy to look after them or even sent a twit for their team to return safely---No written notice for breach of contract was ever issued to plaintiffs by defendants---Defendants also failed to place on record any paper / agreement with new investor---Condition for further financing or investment was expressly mentioned in the agreement which provided with mutual consent of parties which was lacking---Neither plaintiffs fulfilled their part of agreement by providing finance timely nor defendants performed their obligations as ordained in the agreement---Relief by way of injunction whether temporary or permanent was in the discretion of Court---Such was clearly mentioned under S. 21 of Specific Relief Act, 1877, that a contract could not be specifically enforced which in its nature was recoverable and or a contract for non-performance of which compensation of money was an adequate relief---Provision of S.56 of Specific Relief Act, 1877, provided that an injunction could not be granted to prevent breach of a contract, the performance of which would not be specifically enforced---Plaintiffs did not have any lawful justification to force defendants for a reluctant relationship---High Court directed the defendants to provide solvent surety equivalent to the amount claimed by plaintiffs with Court and defendants were at liberty to release the film as per their own wishes---Court had ample power to mould relief to the facts and circumstances of the case---Application was dismissed, in circumstances.

PLD 1998 Kar. 277; 1993 CLC 2497; 1980 SCMR 588; PLD 1983 Kar. 387; 1979 CLC 570; 2014 CLD 1583; PLD 1981 Kar. 720; (1996) 1 CALLT 214 HC India; PLD 1973 SC 39; 2012 CLD 1225; PLD 1991 Lah. 174; 1995 SCMR 1431; 2002 CLD 218; PLD 2006 Kar. 523; PLD 1982 Kar. 76; Messrs Pakistan State Oil Company Limited v. Federation of Pakistan 2010 CLC 1843; Zawar Petroleum v. O.G.D.C 2003 YLR 1450; Nadeem Ghani v. UBL 2001 CLC 1904; District Council Gujrat v. Iftikhar Ahmed 1988 MLD 1461; Lahore Stock Exchange Ltd. v. Messrs Hassan Associates 2010 MLD 800; Bank Alfalah Limited v. Neu Multiplex and Entertainment Square Company 2015 YLR 214 and Yusuf Hussain Shirazi v. Lt. Col. Muhammad Aslam Shaikh PLD 1966 (W.) Karachi 472 ref.

Ayan M. Memon for Plaintiffs.

Abdul Sattar Pirzada for Defendants Nos.1 and 2.

Mamoon Chaudhry for Defendant No.3.

2022 C L C 616

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

ABDUL HAKEEM and others----Applicants

Versus

Mst. ALLAH DINI and others----Respondents

Civil Revision No.S-112 of 2005, decided on 17th December, 2021.

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

----Arts. 62 & 63---Relationship, proof of---Inquiry---Pedigree table---Petitioner's suit for declaration and permanent injunction against orders of Revenue Authorities was decreed by the Trial Court---Appeal of respondents was allowed---Petitioner contended that evidence on record proved that petitioner was a legal heir of deceased (being consanguine brother of deceased father of respondents/daughters); that appeals filed by respondents were time barred; that Foti Khata had been recorded in favour of petitioner after thorough inquiry including Jalsa-e-Aam; that the said inquiry was not challenged; that mere non-disclosure of pedigree table in suit by itself was not fatal for suit; that it was never established that respondents belonged to Shia sect---Validity---After death of the deceased, on application of petitioner concerned Assistant Mukhtiarkar had declared the petitioner to be the legal heir of deceased along with respondents/daughters of deceased---Respondents filed suit for declaration and injunction against the petitioner which was unconditionally withdrawn---Respondents filed appeal before District Officer Revenue which was allowed vide order against which petitioner filed appeal which was dismissed by E.D.O. Revenue---Pedigree table by itself was not a proof of relationship which had to be proved independently by affirmative evidence regarding claim of relationship---On spot enquiry made by Mukhtiarkar revealed that petitioner was legal heir of the deceased and that deceased was a follower of Sunni sect and an order for mutation was made and implemented accordingly---Deputy District Officer conducted inquiry on order of District Officer and vide his inquiry report informed him that petitioner was legal heir of deceased---On spot inquiry was made through 3 persons (Nek-Mard) whereas the entire pedigree of the deceased was revealed that petitioner's claim was correct---District Officer Revenue could not disagree with the same inquiry report without any further inquiry and deliberations, but he passed an order contrary to the facts on record in slipshod manner without any reason/rhyme---E.D.O. Revenue failed to dilate upon the issue and had not given his own finding and his order was non-speaking order and without any reasoning---Orders of both officers i.e. D.O. Revenue and E.D.O. Revenue were not proper, against law, and had been passed in cursory manner---Respondents had approached the Revenue Authorities after aborting their civil remedy, hence, burden upon them was on higher pedestal as compared to the one on the petitioner who came to assert some right or breach of his right---Revision petition was allowed accordingly.

Bahir Ahmed v. Muhammad Hussain 2010 SCMR 822; 2009 SCMR 644; PLD 1965 SC 134 and 2013 SCMR 338 rel.

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

----Arts. 62 & 63---Relationship---Affirmative evidence---Scope---Pedigree table by itself could not prove the factum of relationship between the parties in absence of any affirmative evidence regarding claim of such relationship.

Rehman v. Noora 1996 SCMR 3 rel.

(c) Administration of justice---

----Inquiry report---Scope---Once a report was called by any functionary, then either the same had to be accepted, and if not, then the same could only be discarded with sound reasoning and not in a slipshod manner.

Abdul Naeem Gaddi along with Faisal Naeem for Applicants.

Qalandar Bakhsh Phulpoto for Respondents.

Mahboob Ali Wassan, Assistant Advocate General Sindh.

2022 C L C 640

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

Mst. SHAH BANO through Attorney and 18 others ----Petitioners

Versus

The DIRECTOR GENERAL and 11 others----Respondents

Constitutional Petition No.D-5297 of 2021, decided on 6th September, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Factual controversy---Scope---Grievances of the petitioners related to different agreements/instruments executed between them and the builder/developer at the time of booking of plots---So far as violation of the building rules and regulations and reluctance of developers to execute sub-leases in favour of the allottees and charging exorbitantly for gas and electricity provided to the project and non-action on the part of the official respondents was concerned, High Court observed that such aspects related by and large to the enforcement of terms and conditions of the agreements/documents signed between the petitioners and the developer, which also warranted adducing of evidence---In case the petitioners were being charged exorbitantly in respect of sui gas and electricity charges and the builder was minting money, the petitioners could approach relevant forum for redressal of their grievances in accordance with law---As far as the issue of loss being caused to the public exchequer, the petitioners could approach the Anti-Graft Agency with evidence which could examine the material presented before them and do the needful in accordance with law---Such aspects were based on the factual controversy requiring recording of evidence, which exercise could not be undertaken by the High Court under Art.199 of the Constitution---Constitutional petition was dismissed.

2022 C L C 653

[Sindh]

Before Kausar Sultana Hussain, J

TAYABA JAMA MASJID TRUST SAUDABAD, KARACHI----Petitioner

Versus

Mst. AQEELA Begum and 2 others----Respondents

Constitutional Petition No.S-948 of 2014, decided on 22nd December, 2020.

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

----Ss.15 & 16---Eviction petition---Arrears of rent---Defence, striking off---Scope---Petitioner filed ejectment application under S. 15 of the Sindh Rented Premises Ordinance, 1979---Rent Controller struck off defence of the respondent under S. 16(2) and allowed the ejectment application on the ground of non-compliance of order passed by him under S. 16(1) of Sindh Rented Premises Ordinance, 1979---Appellate Court allowed the appeal, directed the Rent Controller to record evidence of both parties and decide the case on merits---Validity---Landlord had not taken ground of committing default by the tenant in payment of monthly rent, but during pendency of the case he had filed an application under S. 16(1) which was allowed---Rent Controller had rightly issued direction to the tenant to withdraw the rent deposited in petition filed by her and deposit monthly future rent in the landlord's case---Order passed by Rent Controller was maintained and that of Appellate Court was set aside.

Muhammad Umer v. H.J Behrana Fire Temple Parse Trust 1995 CLC 1725; 2001 SCMR 290/293, 294; 1988 SCMR 427-431, 1986 SCMR 1714, 1715-A+B; 1994 SCMR 154, 160-A; 1998 SCMR 970; 2001 YLR 3014; 2001 SCMR 1888 and 2000 CLC 1134 ref.

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

----S.16---Arrears of rent---Scope---Sindh Rented Premises Ordinance, 1979, directs the Rent Controller that on receiving the application under S.16(1) of Sindh Rented Premises Ordinance, 1979, he shall make summary inquiry as he deems fit to make, determine the arrears of rent due and order the tenant to deposit the arrears within such period as the Controller may fix in this regard---Rent Controller may also direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.

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

----S.16---Arrears of rent---Scope---Landlord in every case of eviction filed by him/her can make an application in terms of S. 16(1) irrespective of the grounds taken in the case---Likewise there is no legal embargo on passing an order either for depositing arrears of rent or monthly future rent---If there are no arrears due against the tenant when the landlord approached the Rent Controller for eviction of the tenant, the Rent Controller can pass an order for depositing future rent alone.

Syed Zahir Hussain Chishti for Petitioner.

Nadeem Khan for Respondent No.1.

Javed Ahmed Kalwar, A.A.G. Sindh/Respondents Nos.2 and 3.

2022 C L C 682

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

Sheikh IMRAN AHMED----Petitioner

Versus

The DIRECTOR GENERAL K.D.A. and another----Respondents

Constitution Petition No.D-7173 of 2019, decided on 1st October, 2021.

Sindh Public Property (Removal of Encroachment) Act (V of 1975)---

----S.3---Limitation Act (IX of 1908), Art.144---Amenity plot---Petitioner claimed that he purchased the suit plot from respondent/Authority in 1982; that utility services were in his name; that respondent sent notice in 1990 that petitioner was an encroacher and should vacate the said plot, which was replied by the petitioner and civil Court had granted stay on 23/12/1990; respondent offered the petitioner an alternate plot which offer was accepted by the petitioner but the respondent had retracted; and that in 2011, respondent demolished the house/shops upon the said plot and took over the plot---Suit regarding the plot was decreed in favour of petitioner in 1999---Appeal of respondent was allowed---Validity---As per the version of petitioner, he was in occupation of plot since many years, hence due to efflux of time he was entitled for its allotment---Article 144 of Limitation Act, 1908, which dealt with adverse possession already stood omitted by Act II of 1995, thus the petitioner's stance was misconceived---Suit plot was a ST amenity plot and admittedly petitioner was not its owner---Petitioner could never purchase an amenity plot---Encroacher could not claim ownership/possession over any plot---Encroacher could never claim any alternate land/plot nor was entitled for any compensation---Simply on the basis of having utility bills in one's name, ownership rights could neither be claimed nor could be conferred upon a person---Simply the ground that the petitioner was an old occupant of the plot would not entitle him to be granted allotment of the said plot even if he had made some Pakka construction upon it---Petitioner was neither entitled for allotment of plot nor of any alternate plot or compensation, whatsoever---Constitutional petition was dismissed accordingly.

Umar Farooq Khan for Petitioner.

Altaf Ahmed Sahar for Respondent No.1.

Government of Sindh through Secretary, Local Government through Miran Muhammad Shah, Addl. A.G. Sindh for Respondent No.2.

2022 C L C 692

[Sindh]

Before Muhammad Junaid Ghaffar, J

SHAHNAWAZ and others----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

Civil Revision Application No.S-110 of 2010, decided on 16th November, 2021.

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

----O. XLI, R.31---Appeal, points for determination of---Registered sale deed---Forest land---Title of alleged seller---Suit for declaration and permanent injunction was decreed which was set aside by the Appellate Court---Contention of the petitioner was that appellate Court had failed to formulate points for determination; that Trial Court had correctly decreed the suit; that applicants were holding registered sale deed and presumption of correctness/sanctity was attached thereto; that such deed was never challenged since 1955; that roobkari relied upon by appellate Court was a bogus document and was neither obtained / produced officially nor any witness was produced---Validity---Trial Court had framed 8 issues and finally decreed the suit as prayed---Appellate Court formulated two points for determination---Applicants' claim was that 400 acres of un-surveyed land was owned by their predecessors---Entire case of applicants was based on revenue entry which purportedly was recorded on the basis of some sale deed executed by alleged seller---Such was not disclosed as to how such alleged seller became owner of the suit land, i.e. either being government allottee or purchaser from some third party---Witness in cross-examination admitted that suit land was a forest land; that such notification was issued by Government in 1960; that such notification was never challenged before any Court; and that Mukhtiarkar had issued roobkari regarding the documents---Provincial Government claim had always been that it was a forest land which was neither allotted to anybody nor the same could have been so allotted---Alleged sale deed had become doubtful as the executant had failed to disclose his title to the property---Once it had come on record and admitted by applicant that suit land was a forest land, then alleged seller was never authorized to execute any sale deed of the suit land---Appellate Court had given findings with proper reasoning on the entire controversy and even if it had failed to settle the points for determination, the same would not ipso facto render the impugned judgment as being liable to be set aside as the said rule was not absolute in nature---Appellate Court had sufficiently answered the material questions in its judgment and even if no points were framed for determination it would not ipso facto render the judgment illegal/without lawful authority subject to that the point/controversy had been attended to and decided on the basis of evidence available before the Court---Revision petition was dismissed accordingly.

Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868; Hafiz Ali Ahmad v. Muhammad Abad and others PLD 1999 Kar. 354, Ghulam Samdani and others v. Faqir Khan PLD 2007 Pesh. 14, Abdulllah and 11 others v. Muhammad Haroon and 8 others 2010 CLC 14 and Muhammad Azam v. Mst. Khursheed Begum and 9 others 2013 YLR 454 rel.

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

----O.XLI, R. 31---Points for determination---Applicability---Scope---Provision of R.31 of O.XLI, Civil Procedure Code, 1908, was not mandatorily applicable in each case, it would depend on the facts of each case individually and as to how the order had been passed by Appellate Court.

A.A. Faruq Pirzada assisted by Ghulam Hyder Daudpoto for Applicants.

Ali Raza Baloch, Assistant Advocate General Sindh.

2022 C L C 709

[Sindh]

Before Salahuddin Panhwar, J

Mst. SEEMA and others----Petitioners

Versus

WAJID ALI and others----Respondents

Criminal Miscellaneous Application No.319 of 2020, Criminal Revision Application No.135 and Constitution Petition No.S-445 of 2020, decided on 14th January, 2021.

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

----S.5, Sched.---Penal Code (XLV of 1860), S. 494---Suit for dissolution of marriage---Marrying again during lifetime of husband or wife---Bona fide conduct---Effect---Suit for khula filed by petitioner / wife was decreed---Petitioner contracted second marriage after her suit was decreed---Respondent assailed the decree before Appellate Court; case was remanded for pre-trial---In second trial, the suit was dismissed by the Family Court---Respondent filed criminal case against the petitioner and others under S. 494, P.P.C.---Trial Court took cognizance only against the petitioner with regard to second marriage----Said order was assailed before the High Court---Petitioner, impugned the orders of the Appellate Court and Family Court whereby her case was remanded, and the suit was subsequently dismissed---Petitioner also challenged the order passed by Magistrate whereby he had taken cognizance against her---Validity---Respondent had arraigned the petitioner in various litigations, including two criminal cases on charge of zina; alleged illegal visa as well as fraudulent CNIC---Such conduct and pending litigation(s) were, prima facie, sufficient to make it clear that respondent's claim to the effect that petitioner was his legally wedded wife was only being used to keep her in court(s) or get her punished else he would have, first, attempted for restitution of his rights which he, prima facie, never did---Petitioner had contracted second marriage while believing that khula was sufficient to exercise her right to re-marry---Bona fide was attached with her act of second marriage---Remand order as well as dismissal of her suit could not be allowed to undo the re-marriage after khula because re-marriage was nothing but a seal on door of her first marriage and petitioner was happy with the decision of khula---Law favoured rights over procedure---Judgments of Appellate Court and Family Court were set aside and the earlier order passed by Family Court whereby suit was decreed was maintained---Order of Magistrate taking cognizance of second marriage of petitioner was set aside as the same was without declaration of family jurisdiction---Petitions were disposed of accordingly.

2018 SBLR 225; 2014 SCMR 1762; 2014 CLC 60; PLD 2011 Lah. 37; 1992 SCMR 1273; 1986 PCr.LJ 2174; PLD 2010 Kar. 61; PLD 2011 Lah. 534; 2017 CLC 1718; 1997 CLC 142 and 1991 MLD 1419 ref.

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

----S.5, Sched.---Suit for dissolution of marriage---Scope---Marriage is a legal contract through which both parties agree to live a harmonious life by honouring their respective obligations and duties towards each other---Islam, also nowhere forces the spouses to live a life devoid of harmony and happiness rather allows the parties to part, if they can't live together, as they should---Such act is not liked yet is permitted because it is never fair to compel/force two persons to live together as same, surely, would be against guaranteed fundamental rights of such persons---Man (husband) has a unilateral right to give talak but the woman (wife) has also been provided a right to seek separation by way of khula---This, prima facie, is a way out for woman (wife) to come out of such bond of marriage and for such claim, she even is not supposed to give detail(s) for such move but her disliking is sufficient for exercise of such right---In such event, she would only be required to return/restore the benefit(s), if any, she received from husband.

(the Mahr or a part of it) for her Al-Khul' (divorce) (Baqarah 2:229) and Mst. Bilqis Fatima v. Naimul Ikram Qureshi PLD 1959 Lah. 566 rel.

(c) Administration of justice---

----Law favours the rights over procedure.

Syed Nadeem Haider Shah for Petitioner (in C.P. No.S-445 of 2020).

Muhammad Sharif Buriro for Applicant (in Criminal Revision Application No.135 of 2020).

Zahoor Shah, APG.

2022 C L C 735

[Sindh]

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, through Secretary----Petitioner

Versus

Mrs. UZMA MOINUDDIN----Respondent

High Court Appeal No.234 of 2018, decided on 28th September, 2021.

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

----Art.17---Pakistan Defence Officers' Cooperative Housing Society Bye-Laws (1972)---Allotment of plot---Respondent filed suit for declaration, injunction and compensation against appellant/Housing Authority on the grounds that a residential plot was allotted to her father by appellant which was mutated in favour of his legal heirs after his demise; that legal heirs submitted documents for transfer of subject plot but society cancelled the same on the pretext that her father was earlier allotted a residential plot which he had sold and he was not entitled for second residential plot; that society issued show-cause notice which was challenged by respondent before the High Court which had directed the respondent to submit reply to such notice and in case the society would decide to reject the contention of respondent, society was restrained form cancelling the transfer till proper adjudication was done---Trial Court decreed the suit---Appellant contended that father of the respondent was not entitled for second residential plot as per by-laws of the society, which was got allotted by concealing facts and violation of said bye-laws; that respondent had not vested right to independently claim any title in the property being bound to sink or swim with her deceased father; and that member was only entitled for one residential and one commercial plot and any allotment in violation of bye-laws was liable to be cancelled by Managing Committee---Validity---Subject plot was allotted to respondent's deceased father through ballot held on 22/02/1976----All legal heirs of deceased allottee submitted documents for transfer of the said plot, but the said transfer was not done by the society to respondent on the pretext that respondent's deceased father was allotted another residential plot in 1960---Trial Court thoroughly discussed all aspects of case including; non-production of original allotment order of alleged second plot in favour of deceased father by the society during trial; general power of attorney in favour of third person and subsequent sub-lease in name of the same; that payment of transfer charges of such plot were made at commercial rates instead of residential; and factual errors and lack of authenticity on part of society---Trial Court also thrashed out significant difference of signatures of the deceased father on the application form for allotment and the power of attorney and that deceased father did not figure in sub-lease and transfer order---Trial Court held that society failed to discharge the burden to prove that the respondent's late father got the allotment of suit plot without disclosing about existence of second plot in his name---Judgment of Trial Court showed that impugned cancellation letter was issued by the appellant without application of fair and judicious mind and without consideration of basic principles of law---No fair opportunity of hearing was provided to the respondent---Impugned letter was devoid of reasoning and grounds for cancellation of allotment---Society did not bring any substantial defect in appraisal of facts or any question of law having not been considered by the Trial Court---High Court Appeal was dismissed accordingly.

Waseem Iqbal for Appellant.

Muhammad Raghib Baqi for Respondent.

2022 C L C 862

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Capt. TARIQ MEHMOOD MALIK----Plaintiff

Versus

PALPA PILOTS OCCUPATIONAL DISABILITY, FUND TRUST through Secretary----Defendant

Suit No.390 of 2001, decided on 2nd August, 2021.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, injunction and recovery of money---Maintainability---Plaintiff was declared unfit to fly as pilot by medical board---Pakistan International Airline Corporation the employer of plaintiff, International Federation of Airlines Pilots Association and defendant PALPA Pilots Occupational Disability Fund Trust compensated the plaintiff for his disability to fly as pilot---Plaintiff was aggrieved of compensation given to him by defendant Trust---Plea raised by defendant Trust was that suit was not maintainable---Validity---When there was no inherent legal defect in a claim or a lis and if it was not barred by any law or condition mentioned in O.VII, R.11, C.P.C., then maintainability of suit could not be decided by giving an affirmative finding---Maintainability of suit / lis was different from entitlement to relief as claimed in a case---Suit could be held maintainable but after conclusion of evidence, Court might arrive at a conclusion that a party was or was not entitled to any of the reliefs claimed---Suit filed by plaintiff was maintainable---Claim of plaintiff was disproved that he suffered any loss (financial or otherwise) or mental anguish on account of any decision or acts on the part of defendant Trust---Plaintiff was adequately compensated monetarily by his erstwhile employer Corporation, International Association as well as defendant Trust---Plaintiff was re-employed by the Corporation---Not encashing cheque given by defendant Trust did not improve case of plaintiff, who was not entitled to any further amount in view of bye-laws---High Court directed defendant Trust to revalidate cheque issued to plaintiff as the same was not enchased---Suit was dismissed accordingly.

Suo Motu Case No.11 of 2011 In the matter of PLD 2014 SC 389; Muhammad Uneeb Ahmed v. Federation of Pakistan through Secretary, Ministry of Science and Technology, Islamabad and others 2019 MLD 1347; Sujan Mohinder Charitable Trust v. Mohinder Kaur and others Decision by Delhi High Court on 1-2-2019; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161 and American Life Insurance Company (Pakistan) Limited v. Master Agha Jan Ahmed and another 2011 CLD 350 ref.

Muhammad Ali Lakhani and Mujtaba Sohail Raja for Plaintiff.

Ishrat Zahid Alvi for Defendant.

Dates of hearing: 16th October, 15th, 22nd and 23rd December, 2020.

Case law relied upon by Plaintiff's Counsel

1. PLD 2014 Supreme Court page-389, [Suo Motu Case No.11 of 2011: In the matter of];

2. 2019 MLD page-1347, [Muhammad Uneeb Ahmed v. Federation of Pakistan through Secretary, Ministry of Science and Technology, Islamabad and others] - Uneeb Ahmed Case; and

3. Decision by Delhi High Court in

Sujan Mohinder Charitable Trust v. Mohinder Kaur and others, on 1 February, 2019.

Case law relied upon by Counsel for Defendants Nos.4 and 5

1. 2001 SCMR page-1161

[Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others]; and

1. 2011 C L D page-350

[American Life Insurance Company (Pakistan) Limited v. Master Agha Jan Ahmed and another].

| | | | | --- | --- | --- | | Law under discussion | (1) | The Trust Act, 2018. (sic) | | | (2) | The Civil Aviation Rules, 1994 (the "Rules 1994") | | | (3) | Palpa-Pilots Occupational Disability Fund Trust ("PODF Trust Bye-Laws") | | | (4) | The Qanoon-e-Shahadat Order, 1984 [the Evidence Law]. | | | (5) | Civil Procedure Code, 1908 ("C.P.C") |

2022 C L C 880

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

MARIE STOPES SOCIETY----Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary and 4 others----Respondents

C.P. No.D-1817 of 2019, and C.M.As. Nos.8165 of 2019 and 13445, 13446 of 2021, decided on 28th January, 2022.

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

----Art.114---Estoppel---Scope---Held, though acquiescence is a specie of estoppel but there can be no estoppel against law.

PLD 1963 SC 486; PLD 1995 SC 66; PLD 1998 SC 161; PLD 2006 SC 602; 2013 SCMR 642 and PLD 2019 SC 509 rel.

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

----S.24---Policy for Regulation of Organization Receiving Foreign Contributions---Non-speaking order---Memorandum of Understanding (MoU), non-signing of---Petitioner society was aggrieved of non-signing of MoU by Federal Government with petitioner in view of Policy for Regulation of Organization Receiving Foreign Contributions---Validity---Letter / order rejecting petitioner's application for signing MoU was not a speaking order within the meaning of S.24-A of General Clauses Act, 1897---Every decision / order / judgment passed by any forum, department or Court should be passed after application of mind with reasoning---Letter issued by Federal Government merely observed that petitioner's application along with documents was shared with stakeholders in terms of the Policy and same was rejected---High Court deprecated such approach of authorities which was cursory and slipshod---Respondent authority was not vested with such powers nor in law was empowered / competent to regulate or curb petitioner's operations through the Policy, which had no Constitutional strength or legislative mandate or legal sanctity or backing of enabling law and did not carry any weight---Notification / Policy in question which was a stop-gap arrangement and in response of which Federal Government did not take any step to provide a legislative cover was of no legal effect---High Court declared all such action / steps taken against petitioner as without lawful authority and of no legal consequences---Constitutional petition was allowed accordingly.

PLD 1965 Dacca 156; PLD 1967 Dacca 607; PLD 1978 Lah. 1298; PLD 1979 Kar. 300; 1983 SCMR 125; PLD 1993 SC 473; 1995 SCMR 529; 1998 SCMR 2268; PLD 1999 SC 1025; PLD 2007 SC 642; 2007 SCMR 330; 2010 SCMR 511 and 1778; PLD 2010 SC 61; 2011 SCMR 1; 2015 PLC (C.S.) 283; 2016 PLD SC 808; PLD 2019 SC 509; 2021 SCMR 678 and Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 ref.

Salahuddin Ahmed, Muhammad Rizwan and Slaman J. Mirza for Petitioners.

Khaleeq Ahmed, DAG for Respondent No.1.

Atif-ud-Din along with Yasir Arfat, Joint Director for Respondent No.3.

2022 C L C 920

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan and Khadim Hussain Tunio, JJ

MUNAWAR ALI and others----Petitioners

Versus

UMAR DARAZ and others----Respondents

Constitution Petition No.D-984 of 2021, decided on 24th August, 2021.

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

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.12, 19, 39 & 54---Limitation Act (IX of 1908), Art.113---Rejection of plaint---Scope---Suit for specific performance of contract, recovery of damages and mesne profit, cancellation and permanent injunction filed by respondent---Petitioners filed written statement accompanied by an application under O.VII, R.11 of Civil Procedure Code, 1908, which application was concurrently dismissed---Validity---Respondent allegedly purchased two properties from the petitioners on the basis of three sale agreements and paid advance and issued two cheques which were withdrawn by the petitioners and also issued/delivered four cheques to the petitioners---One of the said agreements was substituted with the consent of parties and entire paid amount was adjusted in new agreement---Admittedly even if the objections as raised by petitioners were upheld, the plaint could not be rejected against respondent and suit would proceed against respondent the relevant defendant---Plaint could not be rejected in parts or piecemeal---None of the situations stipulated in any clauses of R.11 of O.VII, C.P.C., were applicable in the matter---Petitioners could not point out any law under which plaint could be held to be barred except Art.113 of the Limitation Act, 1908---Rejection of plaint in meaning of O.VII, R.11 of Civil Procedure Code and dismissal of the suit on ground of its maintainability on the factual pleas were entirely two different things---When factual controversy was involved, the plaint could not be rejected in spite of the fact that the plaintiffs might not succeed in establishing allegations made in the plaint---Question of limitation had to be resolved in the light of evidence adduced---Constitutional petition was dismissed accordingly.

Mahmood Chaudhry Kamboh v. Najam-ud-Din 1999 SCMR 2396 and Nawaz Khan v. Kaleem Khan 2013 YLR 2395 rel.

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

----O.VII, R.11---Rejection of plaint---Jurisdiction, exercise of---Principles---Provisions of O.VII, R.11 of Civil Procedure Code were procedural in nature and had to be exercised only in exceptional circumstances, e.g. in cases where the court came to the conclusion that even if all the allegations were proved the plaintiff would not be entitled to any relief---Court had only to see whether any cause of action had been disclosed and it was immaterial for the court at an early stage of the case to see whether the plaintiff would be able to prove it or not which in any case could not be decided without framing of issues and recording of evidence.

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

----Art.113---Article 113 of Limitation Act, 1908 was not a provision of substantive law determining the right of the plaintiff to file the suit in the face of cause of action---Same was rather an enabling provision of law empowering the court to reject the plaint when it was barred by any substantive law, abridging the rights of the plaintiff to file a suit in a particular station on a given cause of action.

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

---O.I, R.10---No proceedings in court could be ipso facto defeated just because of non-joinder/misjoinder of partiers and the court would always enjoy ample powers to add/delete/transpose parties to suit depending upon the nature of the case---Plaintiffs had to be provided opportunity to correct the technical defect and not to dismiss/reject the plaint on technical ground.

(e) Administration of Justice---

----Formalities/technicalities of law---Nature---Purpose behind legal/codal formalities and procedure was nothing but only to ensure the safe administration of justice and avoid/thwart the chances of injustice/miscarriage of justice.

Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

(f) Constitution of Pakistan---

----Art.199---Constitutional petition---Concurrent findings---Reappraisal of evidence---Jurisdiction---Scope---High Court was not supposed to interfere with findings on controversial question of facts, even if such findings were erroneous---Scope of judicial review of High Court in such cases was limited to the extent of misreading/non-reading of evidence or if the findings were based on evidence which might cause miscarriage of justice---High Court would not disturb the findings of facts through reappraisal of evidence in Constitutional jurisdiction or exercise such jurisdiction as substitute of revision/appeal.

Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 and Shajat Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

Arbab Ali Hakro for Petitioners.

Miss Shakira Niaz Ali Umrani for Respondent No.1.

Allah Bachayo Soomro, Additional Advocate General.

2022 C L C 953

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

GHULAM MUSTAFA KHAN and another----Applicants

Versus

ALI SHER and 6 others----Respondents

Civil Revision No.S-43 of 2015, decided on 26th November, 2021.

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

----O.IX, R.9 & S.151---Suit, restoration of---Suit for declaration, mandatory and permanent injunction was dismissed for non-prosecution at the stage of evidence---Petitioners filed application for restoration of the suit which was concurrently dismissed---Petitioners contended that Courts below did not apply judicious mind while passing impugned judgement/decree and order for dismissing suit for non-prosecution; that valuable rights of petitioners were involved; and that petitioners were ready to pay reasonable cost for restoration of suit---Held, that suit was fixed for evidence of plaintiff on the date when the same was dismissed for non-prosecution----Issues were framed on 08/05/2010 and dismissal order was passed on 19/08/2010---Both parties were absent on the date of such dismissal---Only juniors of counsel for the parties were present---Counsel for petitioners produced certified true copy of case diary dated 19/08/2010 which reflected that the counsel was busy before Additional District Judge where arguments were partly heard---Suit was dismissed for non-prosecution only after three months of framing of issues---No warning was issued to the applicants that in case of non-production of evidence penal action would be taken---Suits could be restored in cases where there was sufficient cause for personal non-appearance of party even though counsel for party was negligent in appearance---Petitioners claimed that their witnesses were present outside the court and were waiting for their counsel---Valuable rights of petitioners were involved in the case---Revision petition was allowed and suit was restored to its original position subject to the costs.

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

----O.IX, R.9---Restoration of suit---Sufficient cause---General policy of law was to adjudicate on merits and dismissal in default should serve as an exception---Litigant must not be denied the justice by Court unless there be insuparable legal hurdles in its way to dispense justice---In matter of restoration, generous consideration should weigh with the court and every possible attempt should be made to allow the parties opportunity of producing evidence and seeking decision on merits.

Muhammad Rehan Khan Durrani for Applicant.

Syed Zafar Ali Shah for Respondents Nos.1 and 2.

Asfand Yar Kharal, A.A.G. for the State.

2022 C L C 970

[Sindh]

Before Nadeem Akhtar, J

MOHSIN GHAYUR HAIDER through attorney----Petitioner

Versus

IIND SENIOR CIVIL JUDGE/RC and 3 others----Respondents

Constitution Petition No.S-1958 and C.M.As. Nos.7979, 7980 of 2018, decided on 19th September, 2018.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional petition---Eviction petition---Execution of orders---Scope---Petitioner assailed order passed by Executing Court whereby judgment debtor was directed to vacate the rented premises---Validity---Petitioner's alleged claim, right or interest in respect of the demised premises, had admittedly not been recognized or accepted by the Supreme Court as his application under S.12(2), C.P.C. was dismissed---On the contrary, Supreme Court had observed that if he claimed ownership rights of the demised premises through some agreement to sell and some litigation was pending in that regard before the court of competent jurisdiction, such cases would be decided on their own merits---Petitioner, being an outsider and alien to the execution proceedings, had no locus standi to file the Constitutional petition---Present petition was nothing but a clear and blatant abuse of process of the court and another mala fide attempt by the petitioner to frustrate the eviction order by further prolonging the execution proceedings---Petition was dismissed with costs.

Muhammad Ali Waris Lari for Petitioner.

Masood Khan Ghory for Respondent No.3 along with Respondent No.3.

2022 C L C 1054

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

MUHAMMAD KHALID ALI KHAN----Petitioner

Versus

COURT OF MINISTER OF COOPERATION, SINDH and others---Respondents

Constitutional Petition No.D-4882 of 2020, decided on 9th December, 2021.

(a) Sindh Cooperative Socities Act (VII of 1925)---

----Ss.54-A, 56 & 64-A---Respondent filed representation before Registrar Cooperative Societies who made an award in her favour---Petitioner filed appeal against the said award which was allowed by Registrar Cooperative Societies---Respondent filed appeal before Minister for Cooperative Department who remanded the matter to the Registrar---Held, that Registrar while allowing the appeal of the petitioner simply observed that since the respondent had failed to appear before him thus there was no cogent reason to proceed with the case and thereafter set aside the award---Minister while remanding the case to Registrar categorically observed that since both the parties possessed documents in their fovour to prove their claim as to ownership, the matter required detailed deliberation on the part of Registrar---Petitioner previously approached the High Court and the Bench directed the Minister to decide his appeal---Documents in possession of both the parties could only be thrashed out by a competent authority after examining the parties, recording evidence and authenticating the documents---Order of the Registrar was not a speaking order and his observation could not be held in accordance with law---Revisional power vested in Minister of the Provincial Government was to correct/rectify the administrative acts of subordinate officials of the Department, hence said proceeding before the Minister was coram non judice---Since the order of the Appellate Authority was also part of the instant proceeding, the same could be examined for passing an appropriate order---Said Appellate Authority had ex parte set aside the award in a slipshod manner and without giving any reason in support of his decision---Record showed that the award was passed after considering the rival pleadings and evidence adduced by both the parties---Constitutional petition was disposed of directing the Registrar to decide the matter in accordance with law after granting opportunity of hearing to both the parties.

Abdul Haq v. Thakumal and 4 others 2017 YLR 1816 (Sindh) and Defence Housing Authority (DHA) Lahore v. Secretary Cooperative Department Government of Punjab and others 2017 SCMR 1131 rel.

(b) Sindh Cooperative Societies Act (VII of 1925)---

----Ss.54-A & 56---Constitution of Pakistan, Art.10A---Registrar Cooperative Societies (Registrar)---Setting aside the award---Order passed in slipshod manner---Scope---Appellate Authority was a court of ultimate facts---Registrar Cooperative while exercising his powers as an Appellate Authority should not have decided the appeal through a single line order by which the award had been set-aside---Such an order, if passed, could not be sustained as the same did not fulfil the requirements of due process of law and fair trial.

Petitioner in person.

Advocate General for Respondents Nos.1, 3, 4, 5 and 8.

Ali Azad Saleem for Respondent No.2.

Nemo for Respondents Nos.6 and 7

2022 C L C 1098

[Sindh]

Before Zulfiqar Ahmad Khan, J

HUSSAIN----Plaintiff

Versus

MOHAMMAD ALI and others----Defendants

Suit No.240 of 1971 and C.M.A. No.16697 of 2017, decided on 13th October, 2021.

Civil Procedure Code (V of 1908)---

----O.XX, R.13---Administration of property---Settlement---Creation of Trust---Predecessor-in-interest of plaintiff were Quaid-e-Azam Muhammad Ali Jinnah, Mohtarma Fatima Jinnah and Mohtarma Shireen Jinnah, who had left property in question---Effect---Proposal that property "Qasr-e-Fatima" was to be used for Medical College and Hospital, was supported by all parties including Government of Sindh---Parties present in Court suggested that property of "Qasr-e-Fatima" was unanimously decided to be used for the purpose it was left by Mohtarma Fatima Jinnah---Independent body was constituted which to include eminent philanthropist of the city---High Court directed Official Assignee to take over possession of the property and to make a list of all inventory present in the building and to take photographs of various parts of the building and submit a report--- High Court directed the office to communicate concerned persons to formulate the Trust--- High Court directed that amount available with office of High Court to be used as seed funds by new Trust for building Girls Medical College / Hospital at the premises in question---Government of Sindh also intended to participate in such a noble initiative and had no objection if the property would be used solely for the purpose of construction of building and operation of Medical College / Hospital exclusively for girls with residential facilities therein with regard to sums deposited by Provincial Government---Trust was formulated accordingly.

Khawaja Shams ul Islam along with Imran Taj for Plaintiffs.

Shahab Sarki for applicants/interveners along with Abid Hussain and Agha Mustafa Durrani.

Yawar Farroqui for defendant No.8 along with Asad Ali and Samil Malik Khan.

Ghulam Akbar Uqaili, AAG.

Kamaruddin Junejo, Nazir, High Court of Sindh.

Zahid Abbas Akhund, Director, Culture, Tourism, Antiquities Archives Department, Government of Sindh.

2022 C L C 1146

[Sindh]

Before Nadeem Akhtar, J

SHAKILA APPA (LATE)----Petitioner

Versus

NADEEM GHANI and others----Respondents

C.P. No.S-184 of 2021, decided on 15th February, 2022.

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

----Ss.10 & 15---Deliberate/willful default in payment of the monthly rent---Eviction application was concurrently allowed---Petitioner/tenant (through her son/legal heir) contended that the eviction application filed by respondent was not maintainable as the demised premises (two flats) were rented out to the petitioner on pagri; both the flats were separate/distinct and one eviction application could not be filed in respect of the both; that respondent/landlord used to receive the accumulated rent for several months in lump sums and had not issued the receipts thereof---Held, that as per record both the flats were collectively treated by the parties---Petitioner used to pay collective rent for both the flats---Petitioner's son/legal heir had filed an application before the Rent Controller seeking permission to deposit the rent in Court, wherein he had shown both the flats jointly as his residence and he had not pleaded in written statement that both the flats were rented out on different occasions/through separate agreements---Period of default alleged by respondent and the cause of action pleaded were the same in respect of both the flats---Petitioner could not produce any payment of rent for the disputed period, either on monthly basis or in lump sum---Application filed by petitioner before Rent Controller for allowing him to submit the lump sum amount of collective rent of 15 years proved an admitted position that the rent for the entire disputed period was not paid to the respondent---Such was a clear / deliberate/wilful default in payment of rent for the disputed period on the part of the petitioner---Constitutional petition was dismissed accordingly.

Syed Waris Ali Tirmiziv. Liaquat Begum 1980 SCMR 601; Messrs Pragma Leather Industries v. Mrs. Sadia Sajjad PLD 1996 SC 724; Mst. Hajiani Aisha and others v. Abdul Waheed PLD 1989 SC 489; Messrs Tar Muhammad Janoov. Tahir Ali, 1981 SCMR 93 and Messrs Abdul Razzaque Abdul Sattar v. Abdul Shakoor and another 1999 SCMR 519 rel.

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

----Ss.10 & 15---Accumulated rent---Ground for eviction---Admission of the payment by landlord---Scope---Acceptance by the landlord that accumulated rent had been paid by the tenant periodically/with intervals would not mean that he did not desire/expect rent to be paid within time by the tenant as required by law or that he had waived his right to claim rent within time---Such practice by the landlord would, in no way, override/negate the express provisions of law, nor could it absolve the tenant from discharging his statutory obligation of paying the rent to the landlord within time under the provisions of relevant laws---Court had no power to superimpose any new procedure/method for payment of rent extraneous to the statute---Tenant had a duty to pay rent to the landlord within time as required by law through any of the modes prescribed by law, and it was not the duty of the landlord to collect rent from the tenant or to remind or chase him for payment of rent---Payment of the accumulated rent even once by a tenant would make him liable to eviction.

Mrs. Alima Ahmad v. Amir Ali PLD 1984 SC 32 rel.

Shah Khan for Petitioner.

Murtaza Hussain for Respondent No.1.

IXth Additional District Judge Karachi South Respondent No.2.

XVth Rent Controller Karachi South Respondent No.3.

2022 C L C 1160

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

MRS. GEETA NARYANA SHAHANI through Legal Heir Raju Bhagwan Butaney----Appellant

Versus

SHYAM PREM SHAHANI and another----Respondents

Miscellaneous Appeal No.07 of 2012, decided on 10th January, 2022.

Succession Act (XXXIX of 1925)---

----S.263---Sindh Civil Court Rules (O.S.), R.342---Letter of probate---Revocation---Letter of probate was issued in favour of mother of appellant who was widow of deceased---Mother of appellant / widow later on filed an application to include certain other properties in letter of probate---On application filed by respondents, Trial Court revoked letter of probate issued in favour of mother of appellant---Validity---Status of appellant to be the sole executor of the Will when his mother did not predecease the testator, the validity of Will and testament and whether it had been executed validly in accordance with law, were prima facie not without cloud---Will itself was called into question by respondents and needed to be determined---Trial Court attended all material facts and circumstances while annulling probate---Findings of earlier order of Trial Court in favour of appellant were bad in terms of explanations (a) to (c) and illustrations (i) and (ii) of S.263 of Succession Act, 1925---High Court declined to interfere in findings of Trial Court---Appeal was dismissed, in circumstances.

AIR 1954 SC 280; 1955 AIR 566 (1955 SCR(2) 270); PLD 1970 Dacca 404; 1993 SCC(2) 507; AIR 1991 Bom 148; 1990(3) BomCR 396; AIR 1954 SC 280; 2021 SCMR 391; AIR 1959 PATNA 570 (V 46 C163); SBLR 2011 Sindh 1413; AIR 1915 Calcutta 738(2); AIR 1959 PATNA 570(a); AIR 1955 SC 566; 1989 MLD Kar. 3555; 1989 MLD Kar. 34; AIR 1969 SC 1147; PLD 1959 Dacca 474(b); PLD 1958 Lah. 33(c); AIR 1926 Bombay 378; 1989 CLC 551; AIR Lahore High Court Page 532; AIR 1985 Patana 151(b) and 1921 23 BOMLR 482 ref.

Ms. Maryam for Appellant.

Jawad Ahmed Qureshi for Respondents.

Naveed Musrat for proposed intervener.

2022 C L C 1181

[Sindh]

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

M. NADEEM A. SHAIKH and another----Petitioners

Versus

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

Constitutional Petition No.D-8713 of 2017, decided on 4th June, 2021.

Boat Rules, 1953---

----Constitution of Pakistan, Art.199---Public safety---Boat rides---Sinking of boat---Death of passengers---Many persons lost their lives due to lack of proper safety measures when a boat sunk which was operated commercially for tourists---Validity---Held, there were two types of permissions/licences one was for fishing boat and the other for tourism---Incident occurred in fishing boat which was not authorized to use that boat for tourism---Local administration was responsible to make out proper standard operating procedure so that fishing boat could not be engaged for tourism--- Directions given by High Court from time to time in order to make necessary provisions and availability of facilities in public interest for safety of tourists at Keenjhar Lake had been seemingly complied with to avoid any future incident or accident---High Court directed district management to ensure strict compliance with regard to all safety measures religiously---Constitutional petition was disposed of accordingly.

M. Nadeem A. Shaikh and Saleem Michel for Petitioners.

Leela Kalpana Devi, Addl. A.G. Sindh.

Makhdoom Gulzar, Manager, Keenjhar Lake Resort.

2022 C L C 1203

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

DANISH AZHAR----Petitioner

Versus

The CONSUMER PROTECTION COURT (SOUTH), KARACHI and others----Respondent

C.P. No.D-2314 and C.M.A. No. 9936 of 2021, decided on 14th February, 2022.

(a) Sindh Consumer Protection Act (XVII of 2015)---

----Recovery of cost and damages---Word "product", definition of---Animal/pet not a product---Respondent claimed that he purchased a dog from petitioner which later on appeared to be of impure/mixed breed of inferior quality---Petitioner filed application which was rejected by the Consumer Court under O.VII, R.11 of the Civil Procedure Code---Petitioner contended that the Consumer Court had no jurisdiction in the matter as the animals were specifically excluded from the definition of word "product" purchased by a customer---Held, that upon conjunctive perusal of the definitions of words "consumer" and "product" for the purposes of present case, it was evident that the respondent did not fall within the definition of consumer as he purchased an animal from the petitioner and animals were excluded from the definition of word "product"---Respondent's claim pending before the Consumer Court was also liable to be discarded on that score as well---Respondent neither in the pending claim nor in the legal notice had claimed that the petitioner was a service provider and liable for faulty/defective service---Constitutional petition was allowed accordingly.

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

----O.VI, R.1---Evidence beyond pleadings---Maxim "secundum allegata et probata"---No evidence beyond the pleadings is permissible and even if it has been led by a party, the Court shall exclude or ignore the same from consideration.

Ms. Faiza Shah for Petitioner.

Zulfqar Ali Qureshi for Respondent No.2.

2022 C L C 1288

[Sindh]

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

HASAN KHURSHID HASHMI---Petitioner

Versus

FEDERATION OF PAKISTAN, FEDERAL MINISTRY OF INTERIOR through Secretary and 9 others---Respondent

Constitution Petition No.D-4864 of 2020, decided on 4th June, 2021.

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

----S.25---Family Courts Act (XXXV of 1964), S.5---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy---Minor son, custody of---Petitioner was father of minor son and there was dispute with respondent / mother of minor regarding his custody, issuance of passport and his removal from Pakistan---Validity---Presence of remedy available under law i.e. Family Courts Act, 1964, and Guardians and Wards Act, 1890, did not mandate High Court to exercise its jurisdiction under Art. 199 of the Constitution---Family Court was fully empowered to issue direction if required to concerned authority for placing name of minor on Exit Control List---Custody of minor was to be regulated by Family Court in pending Guardians and Wards suit---Petitioner could file application to regulate the custody of minor before Family Court---Constitutional petition was disposed of accordingly.

PLD 2007 SC 642 ref.

Abid Shahid Zuberi, Haseeb Jamali, Shahab Sarki and Khurram Nizam, for Petitioner along with the Petitioner

Mrs. Navin Merchant for respondents Nos. 9 and 10.

Ch.Muhammad Farooq and Samina Iqbal for NADRA.

Khalid Zubairi, Assistant Director South/Law Officer, Passport Office, Saddar, Karachi.

Hussain Bohra, Assistant Attorney General

2022 C L C 1322

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD IDREES ABBASI----Plaintiff

Versus

Syed AKBAR KHAN and others----Defendants

Suit No.648, C.M.A. No.4878 of 2020 and C.M.A. No.2499 of 2022, decided on 18th February, 2022.

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

----S.12(2)---Judgment, setting aside of---Proceedings---Nature---Filing of fresh suit---Scope---Proceedings under S.12(2) C.P.C. are in the nature of declaratory suit claiming declaration to the effect that decree passed by Civil Court was result of fraud and misrepresentation---Fresh civil suit is not competent to seek relief on the ground covered by S.12(2)C.P.C. and it has a lawful effect to encroach upon and curtail remedy before Courts of general jurisdiction in relevant field.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.12 (2)---Suit for declaration and injunction---Maintainability---Setting aside of judgment---Plea of fraud and misrepresentation---Doctrine of election of a remedy---Applicability---Plaintiff assailed lease deed executed as result of fraud---Validity---Originally suit was filed challenging judgment and decree obtained by a set of defendants under an earlier suit---Rights of defendants were arising out of judgment and decree which could not be disturbed through a suit, as it amounted to same challenge i.e. judgment and decree of a court which in fact conferred right upon defendants---Such approach of plaintiff was tainted with mala fide, as he filed the suit after exhausting remedy under S.12(2), C.P.C. before the same court---On account of failure in those proceedings under S.12(2), C.P.C., as it was dismissed by the court, plaintiff preferred a revision which too was dismissed---Plaintiff knowingly that defendants acquired rights under a decree which he claimed to be outcome of collusion, fraud and misrepresentation, he had challenged rights of defendants through fresh suit which was not permissible---Plaintiff could not acquire any right against rights determined under a decree and sustained after dismissal of application under S.12(2), C.P.C.--- Plaintiff had already exhausted remedy under S.12(2), C.P.C. in terms of doctrine of election for challenging ex parte and collusive decree which was challenged on the grounds of fraud and misrepresentation---Plaintiff could not obtain a parallel decree in respect of property in question where rights of parties were determined via earlier judgment and decree---Suit was dismissed accordingly.

Pakistan Employees' Cooperative Housing Society v. Messrs Awami Constructions Co. Ltd. and another 2003 CLC 607 ref.

2022 C L C 1333

[Sindh]

Before Muhammad Iqbal Kalhoro and Agha Faisal, JJ

NAFEES AHMED through General Power of Attorney----Petitioner

Versus

TRUSTEE OF THE PORT OF KARACHI through Estate Manager and 2 others----Respondents

Constitutional Petition No.D-4658 of 2020, decided on 6th May, 2022.

Port Authorities Lands and Buildings (Recovery of Possession) Ordinance (IX of 1962)---

----Ss.3 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Execution of out-going lessees and unauthorized occupants from land---Appeal---Scope---Petitioner was allotted a plot by port authority for a period of one year on temporary basis against certain terms and conditions---On expiry of conceived term, petitioner was issued notice under S.3 of Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962, ('the Ordinance') to vacate the plot---Port authority after failing to get possession of the plot filed a complaint under S.3(a) of the Ordinance before the Authorized Officer---Proceedings thereof culminated in a decision directing the petitioner to vacate the plot within 30 days---Petitioner preferred an appeal against the judgment under S.5 of the Ordinance, which was dismissed vide impugned order---Validity---Authorized Officer had afforded a full opportunity of hearing to petitioner---When petitioner challenged the decision before the Appellate Court, he was again, as a matter of law, given an unhindered chance to present his case---Only after that, the Appellate Court, on the basis of scrutiny of material had decided against the petitioner reiterating the same directions to him---Petitioner had already availed the remedies available under the law where he had raised all the points which he had said in tautology before the High Court without adding anything substantial to inspire change of mind---Petition, being incompetent both on merits and in law, was dismissed.

Malik Khushhal Khan for Petitioner.

Ms. Nasima Mangrio for Respondent No.1.

2022 C L C 1361

[Sindh]

Before Aqeel Ahmad Abbasi and Kausar Sultana Hussain, JJ

ZULFIQAR ALI----Appellant

Versus

NISAR AHMAD KHATEEB and 2 others----Respondents

High Court Appeal No.201 of 2020, decided on 21st September, 2021.

Specific Relief Act (I of 1877)---

----Ss.12 & 54---Suit for Specific transfer---Balance sale consideration---Willingness and Capability to perform part of agreement---Covid-19, relevancy of---Suit for specific performance, damages and injunction---Appellant/plaintiff was directed to deposit balance sale consideration with the Nazir of the Court---In view of non-compliance of Court's order and non-appearance of appellant and his counsel suit was dismissed by Single Judge of the High Court---Appellant contended that amount could not be deposited on account of financial crunch during prolonged period of lockdown for Covid-19 pandemic; that appellant was willing/ready to comply with the said order of the Court; that Single Judge had to decide the suit on merits instead of technicalities; and that deposit of amount (balance sale consideration) otherwise was not requirement of law in suit for specific performance---Validity---First date of hearing (on 11/05/2017), ex-parte ad-interim restraining order was passed against respondent which was operating since then---Suit did not proceed further till 05/03/2020 when Court issued direction to appellant to deposit balance sale consideration before proceeding further and that ad-interim restraining order would continue subject to such deposit---Appellant/his counsel had neither appeared on next date of hearing, nor complied with the Court's order---Case was again adjourned by the Court in the interest of justice but on the next date again appellant/his counsel remained absent without any intimation---Court vacated ad-interim order on 10/07/2020 and fixed the case for 22/09/2020---On said date nobody appeared on behalf of appellant nor requested for extension of time for deposit of amount---Court was justified to dismiss the suit---Purchaser, in case of specific performance of sale agreement, had to establish his willingness and capability to perform his part of agreement regarding payment of sale consideration within stipulated period and only then he could claim the discretionary relief of specific performance---Appellant failed to make out a prima facie case through evidence and documents and also failed to comply with Court's order to deposit the balance amount of sale consideration in Court and did not pursue the case after obtaining ad-interim restraining order---Said conduct reflected upon the un-willingness and incapacity of appellant to perform his part of agreement---Appeal was dismissed along with listed applications.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 rel.

Naveed Ali for Appellant.

Umair Bachani for Respondent No.1.

Jawwad Dero, Addl. A.G., Sindh for Respondents Nos.2 and 3.

2022 C L C 1374

[Sindh]

Before Muhammad Junaid Ghaffar, J

GHULAM HYDER MAHAR----Applicant

Versus

ILLAHI BUX MAHAR through Legal Heirs and others----Respondents

Civil Revision No.S-22 of 1999, decided on 29th October, 2021.

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

----Ss.9 & 42---Suit for possession and declaration---Entitlement/ownership of property---Existence of right at the time of filing suit---Petitioner/plaintiff contended that he was in possession of the disputed plot since 19 years; that despite the fact that the disputed plot was owned by the Central Government, nobody appeared to defend the case; that the petitioner was entitled to retain possession till such time the application for grant of land filed by the petitioner be decided otherwise---Trial Court unequivocally found that the property in dispute was Government property and that the evidence of both the parties transpired that the disputed plot had not yet been allotted either to plaintiff or defendant---Despite the said findings against the very claim of the petitioner, all other issues were answered in favour of the petitioner and the suit was decreed as prayed---Validity---Admittedly, the petitioner had only sought a declaration of possession which in absence of a title could not have been granted---Pleadings had transpired that the land was owned by Central Government and Trial Court had also held so---Once record showed that none of the petitioner and the respondent was the owner of the land then taking up other irrelevant issues and the evidence led on the same including the claim regarding possession was not required to be adjudicated upon---Both the petitioner and respondent had never claimed ownership on the basis of any title/instrument---Dispute between the parties was regarding use/encroachment of the land, which none of them owned---At the time of filing of the suit, the petitioner was not holding any title to seek the relief as prayed for---Petitioner had asked for a declaration not of an existing right but of chance/possibility of acquiring a right in the future---No declaration of an abstract right could be granted, howsoever practical it might be to do so---Trial Court ought not to have exercised any discretion in the matter, as it was not a matter of absolute right to obtain a declaratory decree; rather it was a discretionary relief---Revision petition was dismissed accordingly.

Muhammad Aslam v. Mst. Ferozi PLD 2001 SC 213 and Province of Punjab v. Syed Ghazanfar Ali Shah 2017 SCMR 172 rel.

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

----Ss.9 &42---Suit for possession without seeking declaration---Maintainability---If the title of the property was in dispute, the simple suit for permanent injunction/possession, without seeking declaration of title, would not be maintainable.

Sultan Mahmood Shah v. Muhammad Din 2005 SCMR 1872 rel.

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

----S.42---Suit for declaration---Maintainability---Legal character/right, entitlement of---Scope---According to S.42 only that person can maintain a suit for declaration who is entitled to any legal character/right as to any property---Character/right which the plaintiff claims and which is denied/threatened by the other side must exist at the time of the suit and should not be the character/right that is to come into existence at some future time.

Ahmad Yar Khan v. Haji Khan and others AIR 1944 Lah. 110 rel.

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

----S.42---Suit for declaration---Discretionary relief---Grant of---Scope---Power of granting a discretionary relief should be exercised with care/caution/circumspection---Such power ought not to be exercised where the relief claimed would be unlawful---Courts had always been slow/reluctant in granting such reliefs of declaration as to future/reversionary rights.

Abdul Rahman Baloch for Applicant.

Zulfiqar Ali Naich, Assistant Advocate-General Sindh for Official Respondents.

2022 C L C 1386

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

ABDUL WAHID JEHAJO----Applicant

Versus

PUNHOON ----Respondent

Civil Revision Application No.S-56 of 2015, decided on 25th September, 2020.

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

----S.54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for permanent injunction---Rejection of plaint---Scope---Trial Court rejected the plaint---Appellate Court dismissed the appeal---Validity---Plaintiff's father had title documents in his favour with regard to the suit land and there was a prima facie case in his favour---Trial Court ought to have completed the evidence rather than rejecting the plaint capriciously---Respondent had not denied the factum that the plaintiff was one of the legal heirs of the deceased---Respondent had not claimed possession of the subject land---Suit filed by plaintiff was required to have been decided on merits subject to arraying all the legal heirs of deceased as party in the proceedings---Findings recorded by the Courts below rejecting the plaint were held to be erroneous, thus, reversed/set aside---Matter was remanded to the Trial Court for decision on merits.

Asal Janan and others v. Zareef Khan and others 2020 SCMR 668 ref.

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

----O.VII, R. 11---Rejection of plaint---Scope---Court is bound by the use of word "shall" 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)---

----S.9---Courts to try all civil suits unless barred---Scope---Section 9, C.P.C., confers general jurisdiction upon courts to try all suits of a civil nature.

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

----S.9---Courts to try all civil suits unless barred---Scope---Civil Courts are the Courts of ultimate jurisdiction with regard to civil right, duty or obligation, unless the jurisdiction is either expressly or impliedly barred.

(e) Islamic law---

----Inheritance---Scope---All the legal heirs automatically become share-holders in the immovable property left by the propositus, therefore, they become joint owners.

Imdad Ali R. Unar for Applicant.

Allah Bachayo Soomro, Additional Advocate General, Sindh.

2022 C L C 1412

[Sindh]

Before Syed Hasan Azhar Rizvi, J

PAKISTAN PETROLEUM LTD. through authorized attotrney and others----Petitioner

Versus

SPEC ENERGY DMCC and others----Respondents

C.M.As. Nos.5148, 6116, 6224, 6225 in Suit No.321 and 914 of 2020, decided on 15th February, 2021.

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

----S.2(l)---Public Procurement Rules, 2004, R.2(1)(e)---Public procurement---Interpretation of document---Contract for sale of goods and work---Distinction---Contract for sale has to be distinguished from a contract of work---Whether a particular agreement falls within one or the other category depends upon object and intent of parties, as evident by terms of contract, the circumstances in which it was entered into and custom of the trade---Substance of matter and not the form what is of the importance---If contract involves sale of moveable property as moveable property, it constitutes a contract for sale---If contract primarily involves carrying on of work involving labour and service and use of materials is incidental to execution of work, the contract would constitute a contract of work and labour---One of the circumstances which is of relevance is whether the article which has to be delivered has an identifiable existence prior to its delivery to purchaser upon payment of price---If article has an identifiable existence prior to its delivery to purchaser and when title to property vests with purchaser only upon delivery, that is an important indicator to suggest that contract is a contract for sale and not a contract for work.

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

----S.12---Arbitration Act (X of 1940), S.35---Specific performance of agreement---Effect of legal proceedings on arbitration---Remedy to plaintiff---Scope---When legal proceedings on subject matter of reference to arbitration have commenced, all further proceedings in the reference to arbitration are invalid---Even for assuming that all of factual submission of plaintiff were correct, this would still not entitle plaintiff to a specific performance of contract---Remedy to plaintiff remains of damages.

PLD 2019 Sindh 400; 1995 SCMR 1431; 2018 CLC Note 40; 1995 CLC 1877; PLD 1976 Kar. 644; Commissioner Income Tax v. Siemen A.G. PLD 1991 SC 368; M. Hanif and another v. Rivaz Gardens Social Welfare Society 1983 SCMR 598; Jamal Ahmed v. Zakari 1987 MLD 295; H.A. Rahim & Sons v. Province of Sindh and another 2003 CLC 649; Arif Majeed Malik v. Board of Governors of KGS 2004 CLC 1029; Dada Steel Mills v. Metal Export 2009 CLD 1524; M. Majid v. Ministry of Manpower and others PLD 2017 Isl. 19 and KWSB v. KESC and others PLD 2012 Sindh 349 distinguished.

(c) Public Procurement Rules, 2004---

----R.42---Alternative methods of procurement---Principle---Procurement through direct contracting is allowed under R.42 of Public Procurement Rules, 2004, in cases of emergency or through direct negotiated tendering cases of urgency.

(d) Public Procurement Rules, 2004---

----R.42---Sale of Goods Act (II of 1930), S.58---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.12 & 21(a)---Suit for specific performance of agreement---Interim relief, refusal of---Public procurement---Discretion---Alternative methods of procurement---Plaintiff company was awarded contract for natural gas processing facility---Lump sum payments were to be made to plaintiff under the contract against completion of specific milestones and not against any delivery of specific equipment---Defendant authorities terminated the contract for failure of plaintiff company to achieve required milestones in time frame fixed in contract---Validity---Defendant authorities issued purchase orders and contracts entered into because of extreme urgency created by plaintiff's failure to complete project almost three years after completion date---Continued extraction and resulting depletion of gas from same reservoir by other companies from adjacent fields and further delay would result in the purpose of the project defeated as no gas could be left to produce---Even if such purchase orders were issued and contracts were entered in violation of Public Procurement Rules, 2004, that would not entitle plaintiff to specific performance of the contract and at the best it required defendant authorities to issue new tenders for the equipment and remaining work resulting in the contract to remain terminated---Unless plaintiff proved otherwise, Court had to presume that money was adequate compensation for breach of contract---Contract could not be specifically enforced and no injunction could be granted to prevent its breach---Plaintiff failed to establish that money would not adequately compensate it for breach of contract, even if the contract was an agreement for sale of goods, it could not be specifically enforced under S.58 of Sale of Goods Act, 1930---Even if restrictions under Ss.12 & 21 of Specific Relief Act, 1877, could be circumvented and it was not an agreement for specific and ascertained goods---Plaintiff could provide defendant authorities with any Amine or HCDP package---High Court was to decide a private dispute in its civil original jurisdiction under S.9, C.P.C., which jurisdiction was circumscribed by law---High Court could not grant any relief which was specifically barred by a statute---High Court was bound by restrictions prescribed in Specific Relief Act, 1877---Relief of injunction was discretionary and Court was not bound to grant it in every case and it was not to be granted unless Court was satisfied as to its real need---Discretion was to be exercised in accordance with reasons and sound judicial principles---Court while dealing with application for grant of injunction had to look and assess all circumstances obtaining the suit and more so to equitable relief---Discretion vested in Court of law had to be exercised judicially and equitably ensuring all the times that justice was adequately applied and administered---High Court declined to grant interim injunction in favour of plaintiff as it failed to make out a prima facie case in its favour---Application was dismissed, in circumstances.

AIR 1993 SC 1742; 1983 SCMR 559; PLD 1990 SC 45; 2020 SCMR 832; 1997 MLD 2411; 2019 CLD 1338; 2017 CLC 857; 2020 SCMR 513; 2019 PLD Kar. 400; 2014 CLD 1583; 1994 CLC 726; 1993 CLC 2497; Jamia Industries Ltd. v. Pakistan Refinery Ltd. PLD 1976 Kar. 644; Faiz Muhammad v. Farida Riaz 1997 MLD 2413; Gulistan Textile Mills Ltd. and another v. Soneri Bank 2018 CLD 203; Neie-Smadb-Lilley RMS v. Federation of Pakistan 2020 YLR 519; Zawar Petroleum v. OGDC and others 2003 YLR 1450; Reliance Consultancy and Engineering Works v. Civil Aviation Authority and another unreported at Paragraph 19 at Page 17 (SB/SHC); Hasan Qamar Asif v. Central Board of Revenue 2010 YLR 43; Tauseef Corporation Ltd. v. Lahore Development Authority 1999 CLC 26; Pakistan Associated Construction Ltd. v. Asif H. Kazi and another 1986 SCMR 820; Qasimabad Enterprises v. Province of Sindh 1998 CLC 441 and Union Construction Company v. Chief Engineer AIR 1960 All. 72 ref.

Makhdoom Ali Khan, Ali Almani and Nahl Chamdia for Plaintiff (in Suit No.321 of 2020 and for defendants in connected suits).

Khawaja Shamsul Islam, Shahzada Mazhar and Muhammad Jawwad, along with M. Khalid Hayat for Plaintiff (in Suit No.914 of 2020 for Defendant No.1 in Suit No.321 of 2020).

Mohammad Adil Saeed for Defendant No.2 (in Suit No.788 of 2019 and Defendant No.6 in Suit No.1061 of 2019).

Azmat Tufail Defendant (in Suit No.321 of 2020).

Hussain Vohra, Assistant Attorney General (in Suit No.914 of 2020).

2022 C L C 1447

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MUHAMMAD ASLAM----Petitioner

Versus

CIVIL AND FAMILY JUDGE NO.II TANDO ADAM DISTRICT SANGHAR and another----Respondents

Constitutional Petition No.S-309 of 2020, decided on 18th September, 2020.

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

----Ss.5, Sched. & 14---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Appeal---Scope---Petitioner impugned order passed by Family Court whereby the suit filed by respondent for dissolution of marriage by way of khula was decreed---Contention of petitioner was that the Family Court had dissolved his marriage without providing him an opportunity of hearing as on the very date of pre-trial stage/hearing, he could not put his appearance before the Court due to pandemic situation and lockdown restrictions---Validity---Petitioner had deliberately and intentionally failed to appear and defend his case before the Family Court just to prolong the proceedings, however, the case was adjourned at his request and on the very date again he had failed to put his appearance, compelling the Family Court to pass the impugned order---Submissions of petitioner could not be considered on the ground that the matter of dissolution of marriage between the spouses had attained finality and the same could not be reopened under S. 14(2) of the Family Courts Act, 1964, except in the case of dissolution for reasons specified in cl. (a) of the item (viii) of S.2 of the Dissolution of Muslim Marriages Act, 1939 or under Art.199 of the Constitution in the manner as the petitioner had asked---Constitutional petition was dismissed.

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

-----S.5 & Sched.---Jurisdiction of Family Court---Scope---Law requires hearing and adjudication of cases upon merits and parties should be granted reasonable opportunity of hearing and to produce their evidence---However, if the case is adjourned for pre-trial proceedings on several occasions without any sufficient cause, the aims and objects in promulgating the Family Courts Act, 1964, will be rendered futile---Family Court has to regulate its proceedings under the provisions of the Act and in doing so it has to proceed on the premise that every procedure is permissible unless a clear prohibition is found in the law.

Petitioner present in person.

2022 C L C 1552

[Sindh]

Before Kausar Sultana Hussain, J

MUHAMMAD MUSA KHAN----Petitioner

Versus

Mst. ANSA MARIAM RASHEEA ZAMANIA and 2 others----Respondents

Civil Revision Application No.24 of 2010, decided on 23rd November, 2020.

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

----S.42---Suit for declaration---Benami transaction---Scope---Plaintiff filed a suit for declaration, possession and permanent injunction against the defendant (his sister) and sought declaration that he was real owner of the suit property and that the defendant being ostensible owner/benamidar was liable to re-convey the sale deed in his favour---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Plaintiff had disclosed his job description and his initial salary amount in his plaint---Plaintiff had also disclosed in his plaint that before purchasing the house in question he and his family were residing in a rented house, therefore, he purchased the house in question in the name of his mother---Purchasing house in the name of female family members was not unusual---Plaintiff had produced documentary evidence in original, two supportive witnesses and had also led his own evidence before the Trial Court with no cross-examination---Defendant had not appeared before the Court to deny the plaintiff's claim or produce her own relevant documents---Petitioner had proved benami transaction by proving source of consideration, motive for benami transaction, real intention of the parties, possession and production of original title documents---Suit was decreed, in circumstances.

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

----S.115---Civil revision---Scope---Scope of revision petition is very limited---Section 115 of C.P.C. applies only to the cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction.

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

----S.42---Suit for declaration---Scope---Claim of ownership of property by any person requires documentary as well as verbal evidence to be produced before the Court of law, if anyone has done so it cannot be disbelieved until and unless proved contrary or apparently the document seems manipulated, fake and fabricated.

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

----S.42---Suit for declaration---Scope---Section 42 of the Specific Relief Act, 1877, provides remedy to the owner of the property whose ownership was being denied by any person.

Amanul Haque for Applicant.

2022 C L C 1583

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

LIAQAT ALI alias KHABAR and others----Petitioners

Versus

HABIBULLAH and others----Respondents

Civil Revisions Nos.S-65 and S-68 of 2005, decided on 18th November, 2021.

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

----Arts.79 &100---Sindh Land Revenue Act (XVII of 1967), Ss. 42 & 52---Civil Procedure Code (V of 1908), S. 9---Sale deed, genuineness of---Alleged mortgaged deed, proof of---Petitioners filed Suit for declaration, cancellation of mutation entry and injunction, claiming the cause of action as the respondents made an attempt to takeover the possession alleging themselves owners and that some mutation had been recorded in their favour---Respondents after filing written statement in petitioners' suit, filed separate suit for cancellation, possession and mesne profits claiming that the cause of action was firstly accrued when suit land was forcibly occupied by the grand-father of the applicants 10 years back on account of mortgage of the same by the father of the respondents; secondly on refusal to accept payment of the mortgage amount; and finally, when petitioners filed civil suit on basis of allegedly forged sale deed---Both the suits were consolidated by Trial Court at early stage---Respondent's case was concurrently decreed and that of petitioners was concurrently dismissed---Petitioners contended that insofar as the respondents' suit was concerned, issue of limitation ought to have been decided as a specific objection was raised to the effect that the suit was filed after 48 years of execution of the sale deed, which remained unchallenged throughout; that the respondents in order to overcome such objection of limitation had raised a plea that purportedly some mortgage was created in favour of the petitioner, but again no such issue was decided; that the applicants were in possession of a registered sale deed duly executed by the grand-father of the respondents in favour of the grandfather of the Petitioners; that they took advantage of Revenue Authorities' failure to record the sale of the property in question in the revenue records and got foti khata badal in their names; that petitioners had always been in possession; and that respondents filed their suit only after the summons were issued in the petitioner' suit---Respondents contended that the sale deed in question was never produced in original; that no attesting witnesses were examined; that the revenue record/foti khata badal was in favour of the respondents; that admittedly, the property was owned by the grand-father of the respondents and was mortgaged by the father of respondents; that the respondents' suit was within time as it was only for declaration, mesne profits and possession---Both the Courts below were required to first determine the question of mortgage and issue of limitation---Respondents failed to prove existence of any mortgage; rather contradictory evidence was led on their behalf, which created serious doubts as to their contention---Respondents stated in their plaint that there was an oral mortgage agreement of Rs.5,000/- and on that basis the property was given in the possession of the petitioners by the father of the respondents, hence, it was incumbent upon the petitioners to prove such oral claim of mortgage with confidence inspiring evidence---No mortgage agreement was brought on record and therefore, the presumption would be that it was an oral agreement, but then the same was required to be proved through cogent evidence---One of the respondents' witnesses had stated that there was a written agreement of mortgage---Respondents had to establish their claim of petitioners' possession on the basis of some mortgage---Official witness/Sub-Registrar was not summoned as a Court Witness but as a witness of respondents---Sub-Registrar admitted that the sale deed was executed as per his record and that predecessors of both parties appeared and their left thumb impressions were also obtained on the original sale deed---Sub-Registrar brought the original register, wherein the sale deed was registered---Sale deed in favour of petitioners was a registered document and they were in possession of the suit land on the basis thereof, therefore, non-examination of its attesting witnesses was not fatal---Respondents pleaded the said oral mortgage agreement by their father which the father himself had never agitated in his lifetime---Respondents' suit appeared to be hopelessly time barred as to seeking cancellation of the sale deed---Petitioner's/predecessor thereof could not be held at fault as it was the responsibility of the officials to correct entry in their record---Revision petitions were allowed accordingly.

Manzoor Ahmad v. Mehrban 2002 SCMR 1391; Barkhurdar v. Muhammad Zafar Hasan Shah 2006 YLR 1226; Ghulam Ahmed v. Muzafara Begum 2011 YLR 2991; Nazim-Ud-Din v. Sheikh Zia-Ul-Qamar 2016 SCMR 24; Islam-Ud-Din v. Mst. Noor Jahan 2016 SCMR 986; Nabi Baksh v. Fazal Hussain 2008 SCMR 1454; Ghulam Muhammad v. Ghulam Ali 2004 SCMR 1001 and Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 rel.

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

----S.42---Entry in revenue record---Value of---Mere entry in the Revenue record does not always becomes a title document and when the other party is in possession of a registered instrument, then the revenue entry and the mutation loses its value as against the registered instrument---Mere omission of recording of mutation or revenue entry in the record of rights does not ipso facto renders the sale deed liable to be cancelled.

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

----S.42---Mutation entry, value of---Foti khata badal---Scope---Mere existence of a mutation entry in the revenue record does not confer any title to a party, especially when it was based on some foti khata badal and was claimed by the opponent that the property was sold by the deceased much prior in time.

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

----S.42---Mutation entry---Nature and scope of---Mutation entry in revenue record could not create/extinguish title to property as they were only maintained for fiscal purposes.

Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245 and Bahadur Khan v. Qabool Ahmed 2005 CLC 1937 rel.

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

----S.9---Registered instrument, cancellation of---Exclusive jurisdiction of Civil Court---Scope---Registered instrument could only be cancelled by a Civil Court---Where a sale deed was in existence and mutation had not been recorded, the revenue authorities were not competent to give a declaration of ownership---If such practice of entertaining applications and correction in entries was permitted, then it would seriously prejudice the rights so accrued in favour of the parties.

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

----S.52---Registered document---Presumption of correctness---Scope---Where the adverse party claims its ownership on the basis of a registered document, presumption of correctness/genuineness is attached to it.

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

----Art.100---Registered documents more than 30 years old---Non-production of attesting witnesses---Presumption of genuineness---In cases of old registered documents, when considerable time had passed, and the persons executing / attesting were no more alive, Art.100 of the Qanun-e-Shahadat, 1984, provided sanctity/protection, in that the burden then be shifted to the opposing party.

Muhammad Durwaish v. Haji Muhammad Hussain 1999 CLC 106 rel.

Abdul Qadir Shaikh assisted by Abdul Basit Khan and Abdul Aziz Shaikh for Applicant (in both Revisions).

Syed Jaffar Ali Shah for Respondents Nos.1 to 8 (in both Revisions).

Ahmed Ali Shahani, Assistant Advocate General Sindh.

2022 C L C 1634

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

AKRAM ALI and others----Petitioners

Versus

PROVINCE OF SINDH through Secretary Local Government, Sindh Secretariat, Karachi and others----Respondents

Constitution Petitions Nos.D-71 and D-86 of 2021, decided on 8th February, 2022.

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

----Regln. 18---Amenities plot/public park and library---Construction of commercial building---Constitutional petition---Restraining order was sought by the petitioners against construction of commercial shopping centre by relevant Town Committee with collusion of the private respondents---Petitioner contended that park/library was an amenity property reserved for sports/reading activities; that the same was always being used for sports and reading activities; that the beneficiaries of the same could not be deprived of their right under the grab of "public private partnership contract"---Held, that reports were called from District Judge and the Commissioner---In compliance thereof Magistrate through District Judge, Commissioner and Assistant Director Building Control, Authority submitted their respective reports---Counter affidavit to main petition filed by one of the private respondents contained that the property was used for water supply scheme---Another respondent mentioned in "No Hitch Certificate" that the disputed plot/land was situated at Old Water Supply Scheme of the area---It was established that the disputed plot/land was entered in the name of Central Government with remarks referring the use of land as "water supply" and "banjar qadeemi", so also the same was in use of the public as park as per the opinion of the Judicial Magistrate---No evidence was available to the effect that the land belonged to the Town Committee or Provincial Government---Concerned Authorities would not be bound to follow the agreement though executed by the Town Committee in favour of private respondents---High Court directed the Authorities to demolish all the construction made by private respondents within 3 months---Constitutional petition was allowed accordingly.

Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907; Iqbal Hussain v. P.O Sindh through Secretary, Housing and Town Planning, Karachi and others 2008 SCMR 105 and Municipal Committee, Chakwal v. Ch. Fateh Khan and others 2006 SCMR 688 rel.

(b) Constitution of Pakistan---

----Art.4---Administration of justice---Public functionaries could deal with the public property only under a prescribed procedure within the parameters of the law under a duly sanctioned scheme and not at their whims---Compliance of any illegal/arbitrary order was neither binding on the subordinate forums nor valid in the eyes of law.

(c) Constitution of Pakistan---

----Arts. 9 & 26---Amenities/public park and library---Right to life---Scope---Use of amenity/public property by the public for enjoyment or other facilities of life was covered by the word "Life" employed in Art.9 of the Constitution---To enter into and use of the said property without any obstacle was a fundamental right as enshrined in Art. 26 read with Art. 9 of the Constitution.

(d) Constitution of Pakistan---

----Arts. 9 & 26---Public properties/amenities cannot be used for any purpose other than for which it is carved out/ earmarked/reserved---Such a property cannot be leased to any private/third party nor could any type of third party interest be created therein.

(e) Constitution of Pakistan---

----Art.9---Government was to ensure that reasonably safe/good living is provided to the citizens with all amenities which are essential to be provided by the State by building/zoning the cities in appropriate manner with playgrounds, schools, colleges, universities and hospitals easily accessible to the citizens with roads/transport.

Abdul Karim v. Nasir Saleem Baig and others 2020 SCMR 111 rel.

Pervaiz Ali Sial for Petitioner (in Constitution Petition No.D-71 of 2021).

Qurban Ali Malano for Respondent No.9 (in Constitution Petition No.D-71 of 2021).

Muhammad Aqil for Respondents Nos.10 and 11 (in Constitution Petition No.D-71 of 2021).

Zulfiqar Ali Naich, Assistant Advocate General Sindh for Respondent/State (in Constitution Petition No.D-71 of 2021).

Nemo for Petitioner (in Constitution Petition No.D-86 of 2021).

Muhammad Aqil for Respondent No.5 (in Constitution Petition No.D-86 of 2021).

Zulfiqar Ali Naich, Assistant Advocate General Sindh for Respondents/State (in Constitution Petition No.D-86 of 2021).

2022 C L C 1680

[Sindh]

Before Salahuddin Panhwar, J

PROFESSOR NISAR AHMED KHAN----Petitioner

Versus

INSTITUTE OF BUSINESS ADMINISTRATION through Authorised and Special Attorney ----Respondent

IInd Appeal No.21 and C.M.A. No.875 of 2019, decided on 2nd March, 2021.

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

----O.VIII, R.10---Procedure where party fails to present written statement called for by Court---Scope---Where, on failure of the defendant to file written statement, Trial Court had not only struck off his defence but had also decreed the suit against him, the High Court observed that when the R.10 of the O.VIII of C.P.C. itself had allowed only one penal consequence i.e. judgment against him or such order in relation to the suit as court thinks fit then the Trial Court was not legally justified to decree the suit when it first had passed an order of striking off defence---Defendant was not warned in categorical terms that failure in filing written statement on next date would bring the penal consequences, hence in absence thereof the impugned order could not legally sustain---Judgments recorded by both the courts below were declared to be against the law---Case was remanded to the Trial Court with the liberty to the defendant to file written statement within fifteen days.

1981 SCMR 590 ref.

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

----O.VIII, R. 10---Procedure where party fails to present written statement called for by Court---Scope---First part of R.10 of O.VIII of C.P.C. has penal consequences therefore, at all material times, the court must keep in mind that a penal action, normally, should not be taken unless the party against whom action is to be taken is first warned in clear words of penal consequences else the purpose of second coercive action, available to the court, in the shape of "make such order in relation to the suit as it thinks fit" shall stood failed---In absence thereof, a penal action which, too, in shape of a binding decree without burdening the plaintiff to prove his case shall always qualify the term 'harsh'.

Muhammad Anwar Khan v. Riaz Ahmed PLD 2002 SC 491 rel.

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

----O.VIII, R.10---Procedure where party fails to present written statement called for by Court---Scope---Court was always to be cautious while recording judgment against defendant on his failure because the failure in filing written statement alone shall never allow a judgment which, normally, has the binding effect upon all concerned---If the judgment requires determination of disputed questions, having wider effects and consequences, then the court must demand proof before recording such like judgment---Penal consequence allows a judgment only against failing party alone which the court while proceeding must keep in view.

C.N. Ramappa Godwa v. C.C. Chandergowda and others 2013 SCMR 137 rel.

Choudhri Abdur-Resheed for Appellant.

Muhammad Tariq for Respondent.

2022 C L C 1700

[Sindh (Hyderabad)]

Before Zulfiqar Ahmad Khan, J

AKRAM----Petitioner

Versus

VAKEEL MUHAMMAD and others----Respondents

Civil Revision No.133 and C.M.A. No.1299 of 2021, decided on 25th April, 2022.

Islamic Law---

----Will---Suit for cancellation of document, declaration and injunction---Islamic law---Deed of will---Proof---Marz ul Maut---Absence of legal heirs---Respondents / plaintiffs assailed Will Deed allegedly executed by their deceased father in favour of petitioner / defendant---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondents/plaintiffs---Validity---Bequest to an heir was not valid unless other heirs consented to the bequest after death of the testator---Appellant/defendant failed to satisfy legal value of Will Deed as bequest intended to grant additional share in favour of one of the legal heirs besides share of his own as per Sharia---When all male heirs other than beneficiary of Will objected, such Will could not satisfy requirements of Islamic Law---Testator was nearly on death bed who was aged more than 90 years and had died within 40 days of the date of signing of Will---When testator was at last stage of life, special precautions could have been taken, which included making such announcement of the Will in front of other legal heirs or to do any other overt act---One of the marginal witnesses chose not to support contentions of beneficiaries of the Will---Lower Appellate Court's judgment took care of concerns of remaining legal heirs whose rights were seriously prejudiced by Will in question---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed, in circumstances.

2019 MLD 701; 2011 PLD 10 and 2006 CLC 531 rel.

Abdul Rasheed Mughal for Applicant.

Wali Muhammad Jamari, Assistant A.G.

Respondents Nos.1 and 2 present in person.

2022 C L C 1772

[Sindh]

Before Salahuddin Panhwar, J

NIAZ AHMED and another----Appellants

Versus

ZAIN-UL-ABEDIN and 4 others----Respondents

II Appeal No.17 and C.M.A. No.824 of 2017, decided on 29th September, 2020.

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

----S.73---Suit for damages---Breach of contract---Compensation for failure to discharge obligation resembling those created by contract---Mental agony, presumption of---Scope---Claim of the plaintiffs was that the defendants (appellants) had entered into a contract whereby they had assured to get them performed Hajj against the money, so obtained by the defendants but they failed to arrange Hajj visas---Defendants had never denied the claim of the plaintiffs rather had admitted the claim to such extent with further claim to have paid such amount to a company---Nothing was produced on record that such deposit was permissible as per contract between parties or was with consent of plaintiffs---In absence thereof, such plea could not help the defendants in escaping their liabilities to honour the contract as well as compensation for breaching the same within the meaning of Contract Act, 1872---Defendants had only applied for quota which was never granted to them yet they not only took amount from the people, including plaintiffs in name of 'getting such persons performed Hajj'---Performing Hajj is normally the greatest desire of a Muslim who, for his life, prays and gathers money for such purpose, therefore, when a person with complete satisfaction of performing Hajj is denied by the contractor (travel agency), the mental shock and agony is inevitable---Defendants being Directors of the company could not escape their liabilities towards the company---Appeal was dismissed.

1980 SCMR 440; 2009 SCMR 589 and 2004 SCMR 1591 ref.

Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 and West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318 rel.

2013 CLD 1280 and 1982 CLC 2387 distinguished.

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

----S.100---Second appeal---Scope---Scope of the second appeal is narrow and it can be exercised only if findings of fact arrived by Courts below are based upon misreading, non-reading or misinterpretation of the evidence on record.

Akhtar Aziz v. Shabnam Begum 2019 SCMR 524 rel.

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

----O.XLI, R. 31---Contents, date and signature of judgment---Framing of points for determination, non-compliance of---Effect---Framing of points for determination is mandatory in nature, however, the purpose thereof is to have a reasonable and legal response from the Appellate Court with regard to available material for stamping or reversing the judgment of Trial Court---If the Appellate Court, otherwise, appears to have properly examined the available material and have given its own reasoning for stamping or reversing the impugned judgment, it would not be within the spirit of safe administration of justice to remand the matter merely for reason of compliance of a procedural requirement which, otherwise, floats onto surface---In other words, for pressing such point, the asserter would also be required to show, prima facie, failure of the Appellate Court in not examining the available material for its conclusion as well that some prejudice has occasioned because of such departure.

2009 SCMR 589 rel.

Muhammad Khalid for Appellants.

Ali Afsar Jan for Respondents.

2022 C L C 1787

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD YOUNUS and another----Petitioners

Versus

MANSOOR ALI (DECEASED) through LRs and others ----Respondents

C.P. No.S-1962 of 2018, decided on 16th June, 2022.

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

----Ss. 15 & 10---Eviction petition---Default in payment of rent---Scope---Tenants assailed orders passed by courts below whereby they were directed to vacate the demised premises---Validity---Statements of account in respect of the amounts deposited by tenant revealed that except for a few deposits all other deposits were made by her after the tenth day of each calendar month---Because of such delay on her part, it was held by the Rent Controller that she had committed default---High Court declined interference in concurrent finding---Constitutional petition was dismissed, in circumstances.

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

----S.15---Eviction petition---Bona fide personal need---Scope---Tenants assailed orders passed by courts below whereby they were directed to vacate the demised premises---Validity---Landlord had claimed that the demised premises was required for establishment of his son's business, who was dependent on him---Tenants had failed to dislodge the claim of the landlord as in his cross-examination only general and vague questions were put to him that another building was owned by him and he was carrying on business therein---No specific question was put to him with regard to the business he intended to set up in the demised premises for his dependent son---Tenants had failed in discharging the burden to prove that the personal need claimed by landlord was not genuine or bona fide---Constitutional petition was dismissed, in circumstances.

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

----S.15---Eviction petition---Sub-letting---Scope---Tenants assailed orders passed by courts below whereby they were directed to vacate the demised premises---Validity---Landlord had claimed that the tenants had made illegal alterations; they had created a new portion and the said portion was sub-let---After passing of the impugned order by the Trial Court, a sub-tenant had filed an application under S.12(2), C.P.C., in the case for setting aside the order of eviction passed therein---Sub-tenant had claimed that he was inducted in the demised premises against payment of a huge amount as pugree and in support of his version he had produced an agreement as well as several receipts issued in his favour by the tenant---Sub-letting of the demised premises was established on record---High Court declined interference--- Constitutional petition was dismissed.

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

----S.10---Payment of rent---Scope---Subsections (1) and (3) of S.10 prescribe the time and mode, respectively, of payment/tender of the monthly rent by the tenant---Under subsection (3), the tenant would be entitled to tender the monthly rent to the landlord through a postal money order or deposit the same with the Rent Controller only when the landlord had refused or avoided to accept such rent from him---Plain reading of subsection (3) showed that the refusal or avoidance by the landlord in accepting the monthly rent from the tenant is a condition precedent for entitling the tenant or justifying him to tender the monthly rent to the landlord through a postal money order or to deposit the same with the Rent Controller---Tenant shall not be entitled in law to deposit the rent with the Rent Controller without first offering/tendering the same directly to the landlord and only when, upon such offer/tender, the landlord had refused or avoided to accept the rent from him---Burden to prove the tender of rent to the landlord and the refusal or avoidance by the landlord in accepting the rent from him shall lie upon the tenant.

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

----S. 10---Payment of rent---Scope---Where there is no evidence with regard to refusal of the landlord to accept the rent so as to provide authority or justification to the tenant to deposit the rent in Court, and there being no evidence to that effect the tenant could not absolve himself from being a defaulter for the relevant period; and, it is mandatory for the tenant to bring sufficient and reliable evidence on record that the landlord had refused to accept the rent so as to entitle him for deposit of rent in Court.

Muhammad Asif Khan v. Sheikh Israr, 2006 SCMR 1872 and Abdul Malik v. Mrs. Qaiser Jahan 1995 SCMR 204 rel.

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

----S.15---Eviction petition---Bona fide personal need---Scope---If the statement made on oath by the landlord is consistent with the averments made by him in his ejectment application and neither is his statement shaken nor is anything brought in evidence to contradict his statement, it will be sufficient for the grant of his ejectment application; all that the landlord has to show is that he required the demised premises of a particular tenant for his personal use and the choice is his as to the suitability of the demised premises which he required for his personal use, and that his need is reasonable and bona fide; the landlord has the complete option to choose from any one of the several tenements occupied by the tenants in order to avail of the ground of personal need; and, the landlord himself would determine in what way, subject to law, he wants to utilize his premises after eviction of the tenant.

Sheikh M. Mushtaq for Petitioners.

Murtuza Hussain for Respondent No.1.

Nazima Begum, Zinab Parveen, Sarfaraz Hussain, Muzaffar Hussain and Sabra Begum, called absent for Respondents Nos.2 to 6.

2022 C L C 1797

[Sindh]

Before Syed Hasan Azhar Rizvi, J

GAJADHAR ANAND----Petitioner

Versus

MUSLIM COMMERCIAL BANK LIMITED through President and 2 others----Defendants

Suit No.940 and C.M.As. Nos.14736, 15958 and 2586 of 2021, decided on 15th December, 2021.

Specific Relief Act (I of 1877)---

----Ss.21(b), 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for declaration, injunction and damages---Interim injunction, refusal of---Irreparable loss---Master and servant---Contract of private service---Enforcement---Principle---Plaintiff was employee of defendant Bank, who sought his reinstatement in the service and had also sought recovery of damages---Validity---Servant of private bank could not be forced upon his master---Master was always entitled to say that he was prepared to pay damages for breach of contract of service but would not accept services of servant---Contract of personal service could not be enforced under the provisions of S.21(b) of Specific Relief Act, 1877, whereas breach of contract could give rise to only two reliefs, i.e. damages or specific performance---If specific performance was barred under the law, only relief available was damages---When a master in breach of his contract refused to employ servant, only right that survived to employee was right to damages and nothing else---No relief or decree could be passed against unwilling master---Plaintiff had only one remedy i.e. to sue for damages / money---High Court declined to grant interim injunction in favour of plaintiff as no prima facie case was made out by plaintiff and no irreparable loss would be caused to him if injunction application was denied, balance of convenience also did not lie in favor of plaintiff---Application was dismissed, in circumstances.

1995 SCMR 650; 2005 SCMR 25; 1990 SCMR 999; 2001 SCMR 256; 2020 PLC (C.S.) 80; 2002 CLC 857; 2019 PLC (C.S.) 940; 2015 YLR 2141; 2002 CLD 77; 1990 MLD 865; PLD 1998 Kar.1; 1995 MLD 384; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 ref.

2019 PLC (C.S.) 1028; 2019 PLC (C.S.) 999; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and ANB-Amro Bank v. Wasim Dar 2004 PLC 69 rel.

Petitioner present in Person.

Mustafa Ali for Defendants.

2022 C L C 1811

[Sindh]

Before Salahuddin Panhwar, J

Mst. Syeda NAFEESA TAHIR through Constituted Attorney----Applicant

Versus

Mst. MEHMOODA FAROOQUI and another----Respondents

Civil Revision Application No.01 and C.M.As. Nos.3433, 32 of 2019, decided on 4th December, 2019.

Civil Procedure Code (V of 1908)---

----Ss.12(2), 115 & O.IX, R.2---Revision---Technicalities---Administration of justice---Applicant / plaintiff was aggrieved of order passed by Trial Court dismissing suit for failure to file amended title by joining respondent as defendant---Validity---No one should normally be knocked out on technicalities---Rights of parties needed to be adjudicated on merits---Dismissal of suit solely on account of failure in timely filing amended title was always a little harsh---High Court observed that leniency needed to be shown when default was one relating to procedural formality / requirement and not of grave in nature---For such like situation dismissal was left upon discretion of use of word "may"---Penal consequences needed to be avoided at first occasion---Appeal against main order allowing application under S.12(2), C.P.C. was pending and that if was allowed, it would bring compromise degree to life again and would again bring whole proceedings in question as of no substance---Applicant / plaintiff showed his readiness to part with appeal and to have adjudication of all questions on merits---High Court set aside order in question and remanded the matter to Trial Court for decision afresh on merits---Revision was allowed accordingly.

Rehmat Ali v. Fazal Hassain 1990 CLC 761 and Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 rel.

Muhammad Younus for Applicant.

K.A. Wahab for Respondent No.2.

2022 C L C 1829

[Sindh]

Before Zulfiqar Ali Sangi, J

Mst. NAZIA GHUNIO----Petitioner

Versus

NAVEED AHMED SADHAYO and others----Respondents

Constitution Petition No.S-669 of 2019, decided on 26th November, 2020.

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

----S.25---Custody of minor---Welfare of minor---"Lap of mother," defined---Scope---Petitioner (mother) assailed orders passed by courts below whereby custody of minor was handed over to his father (respondent)---Validity---Tilt for granting custody in normal circumstances shall always be in favour of the mother whose disability as well as poverty shall, in normal circumstances, not be of any consequences but all such things become weightless if it is, otherwise, proved that atmosphere which the minor shall enjoy the lap of mother would not be for his betterment---'Lap of mother' shall never be limited to her two hands but shall always include the place (house as well locality thereof) where she shall keep the child to grow (learn)---Growing child always learns from his surrounding as a whole, therefore, the term 'lap' in such like matter shall never be confined to its literal meaning---Petitioner was dependent upon her father and brother; her father, head of family, was not only addicted to charas but was also a convict; her brother was also facing charge of possessing narcotics and the petitioner intended to grow minor in house of her father as well in their company---Petitioner admitted that she allowed the child/minor to remain with her brother and father and even the minor was allowed to go outside of the house with said person(s)---If all said admitted facts were read together, it could safely, be concluded that if the custody was handed over to petitioner, the minor would have to grow in company of his uncle and maternal grandfather and not within lap (literally) of his mother alone---Such company, in no way, would be in the welfare and betterment of the minor---Courts below had rightly held that welfare of the minor lay with his father---Constitutional petition was dismissed.

Mir Bat Khan v. Mst. Sherin Bibi and others 2019 SCMR 520; Mst. Razia Bibi v. Riaz Ahmed and another 2004 SCMR 821; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Hayatullah v. Abdul Rasheed 2000 SCMR 845; Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508 and Muhammad Shafi v. Muniran Bibi and others 1992 CLC 2348 ref.

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

----S.25---Custody of minor---Welfare of minor---Poverty of mother---Scope---Welfare of the minor shall always be the paramount consideration rather a decisive factor, however, the poverty of lady (mother) alone will not be sufficient to hold her disentitled for custody of minor as legally the burden to maintain the child lies on father.

Mst. Razia Bibi v. Riaz Ahmed and another 2004 SCMR 821 ref.

Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508 rel.

Irfan Badar Abbasi for Petitioner.

Danesh Kumar Jai Jai Veshno for Respondent.

Abdul Hamid Bhurgri, Additional Advocate General for the State.

2022 C L C 1848

[Sindh]

Before Muhammad Iqbal Kalhoro; Yousuf Ali Sayeed and Agha Faisal, JJ

PAKISTAN MEDICAL COMMISSION----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

C.P. No.D-949 of 2022, decided on 24th March, 2022.

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

----Ss.4 & 8 (2)(f)---Constitution of Pakistan, Arts. 142 & 143---Admission policy---Occupied field, doctrine of---Applicability---Federal and Provincial legislation---Scope---Petitioner, Pakistan Medical Commission (the Commission), was aggrieved of notifications issued by Provincial Government lowering benchmark for Medical and Dental Colleges Admission Test (MDCAT) from 65%, laid down by the Commission, to 50% for admission in private and public medical colleges and universities in the Province of Sindh---Validity---Main object of Art. 142 of the Constitution was to underline parameters to guide both the Federal and Provincial Legislatures to exercise their respective legislative authority within--- Parliament to have exclusive authority on subjects, topics and activities enumerated in the Federal Legislative List and matters incidental or ancillary thereto--- Whereas, Provincial Legislature to have legislative competency on subjects, topics, and activities not mentioned in Federal Legislative List, in addition to the matters relating to criminal law, criminal procedure and evidence---Where both the Federal and Provincial Legislatures had made a law on the same subject claiming concurrent jurisdiction and there was a conflict between them, then, per Art.143 of the Constitution, to the extent of any repugnancy between the two laws, the Federal law was to prevail---Notifications in question were based Sindh Cabinet's decision and were result of no legal authority or a law in the field, pari materia, etc. promulgated by the Province of Sindh on the subject, post Constitutional 18th Amendment, empowering the Sindh Cabinet to make such decision to even bear scrutiny of applicability of doctrine of occupied field in the matter---High Court quashed all four notifications in question and declared those to be void ab initio having been issued without lawful authority and of no legal effect---Constitutional petition was allowed, in circumstances.

PLD 2018 Sindh 391; PLD 2021 Sindh 256; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan and others PLD 2016 SC 808; Government of Sindh and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Mohtrma Benizir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388 ref.

Zeeshan Abdullah and Adnan Abdullah for Petitioner.

Khalid Jawed Khan, Attorney General of Pakistan.

Salman Talibuddin, Advocate General Sindh.

Khaleeq Ahmed, DAG.

Irfan Ahmed Memon, DAG

Muhammad Anwar Alam, Officer Incharge PMC.

Obaidur Rehman for Respondent.

Haider Waheed for Respondent No.3.

2022 C L C 1901

[Sindh]

Before Ahmad Ali M. Shaikh, CJ and Yousuf Ail Sayeed, J

Messrs HEAL THE WORLD through Chief Executive----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Food Security, Islamabad and 6 others----Respondents

C.P. D-2150 of 2020, decided on 4th March, 2022.

(a) Constitution of Pakistan---

----Art. 199---Judicial review---Powers, exercise of---Principle---In exercise of powers of Judicial review under Art.199 of the Constitution, High Court does not act as an Appellate Authority--- Such jurisdiction is circumscribed and confined to correcting error of law or a procedural error, if any, resulting in a manifest miscarriage of justice or violation of principles of natural justice---Court has to see whether authority has acted within the scope of its powers and that discretion conferred on the authority has been exercised in a reasonable manner, keeping in view the object which the statute seeks to achieve---Scope of judicial review is confined to examining decision making process in order to assess whether the same was flawed in the sense of being illegal, irrational or suffering from some element of procedural impropriety requiring the decision to be set aside---Where finding of a regulatory authority reflects a properly reasoned approach, High Court ought not to re-appreciate the evidence so as to substitute its own finding.

Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 and Jal Mahal Resorts (P) Ltd. v. K. P. Sharma (2014) 8 SCC 804 rel.

(b) Drug Regulatory Authority of Pakistan Act (XXI of 2012)---

----Ss.3 & 7---Alternative Medicines and Health Products (Enlistment) Rules, 2014, Rs. 5, 7, 8, Form 6 & Form 7---Nutraceutical / health supplements---Enlistment---Condemned unheard---Question was with regard to enlistment of products by the name of "Vivioptal", which were OTC / dietary supplements / Multi vitamins---Plea raised by petitioner was that he was condemned unheard by Enlistment Evaluation Committee (EEC)---Validity---Mere fact that Form-7 Enlistment ensued through the order of the Appellate Board, did not preclude EEC from acting so as to take remedial action in an appropriate case, especially when facts underpinning such action emerged subsequent to determination of appellate forum, which action was subsequently upheld by that body---As per decision of EEC petitioner was issued a notice to appear before it, where an opportunity of personal hearing was evidently given to the petitioner---Health and OTC Division also presented a comprehensive report with regard to vires of Enlistments for consideration---High Court declined to interfere in the decision of EEC---Constitutional petition was dismissed, in circumstances.

Mahmood Anwar Balouch and Ali Asadullah Bullo for Petitioner.

Khaleeque Ahmed, D.A.G. for Respondent No.1.

Aijaz Ahmed Khan for Respondent No.5.

2022 C L C 1936

[Sindh]

Before Nadeem Akhtar, J

Haji UMAR----Petitioner

Versus

MUHAMMAD FAROOQ MOTAN and 2 others----Respondents

C.P. No.S-2013 of 2017, decided on 7th December, 2021.

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

----Ss.2(h), 2(g), 10(1) & (3)---Eviction petition---Demised premises---Personal need of landlord---Default in payment of monthly rent----Burden to prove---Rent petition was filed by petitioner against respondent for eviction from a godown---Respondent admitted that he was a tenant of the petitioner, but denied all the averments made by the petitioner---Rent petition was dismissed by Rent Tribunal---Petitioner filed an appeal before Appellate Court---Appellate Court dismissed appeal of the petitioner---Held, that rent receipts for different periods produced by respondent showed that in some of them godown was mentioned while the rest were issued in respect of a shop---In cross-examination ,petitioner had admitted that there was no written rent agreement between the parties and he had not filed or produced any document to establish that the demised premises were let out to respondent for the purpose of a godown---Petitioner had failed to discharge the burden to prove his assertion---If there was any such conversion by respondent, petitioner would have been deemed to have acquiesced in such conversion in view of his long and unexplained silence for twenty four years---Case in hand was not only of mis-reading and non-reading of evidence by both the Courts below ,but also a case wherein findings on the questions of default and personal need had been rendered against the settled law by both the Courts below---Constitutional petition was allowed with cost and rent case filed by the petitioner was allowed on said points.

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

----S.10(3)---Eviction petition---Default in payment of rent----Refusal by landlord to accept rent---Burden to prove on tenant---Correct name of landlord not mentioned on money order---Petitioner (landlord) alleged that the rent for the period from January to December 2016 was deposited in Court by respondent (tenant) without first tendering the same directly to him and or without sending the same to him through a money order---Respondent's contention was that the rent for the relevant period tendered by him in January, 2016 was refused by the petitioner on two occasions---In cross-examination, petitioner had specifically denied that respondent had offered the rent to him in January, 2016 or had sent a money order to him---Burden to prove that petitioner had refused to receive the rent from respondent either directly or through money order shifted upon respondent ---Regarding the first alleged refusal by the petitioner, respondent had claimed in his affidavit-in-evidence/examination-in-chief that respondent along with a "companion" went to the petitioner in January 2016 to pay the rent, but the petitioner refused to accept the same---Said companion was never examined by respondent to prove his contention and there was no explanation by respondent for not examining his own companion who would have been an important witness to prove his claim----Regarding second refusal by the petitioner, refusal to accept respondent's money order, respondent relied upon a letter issued by Assistant Chief Post Master; it was stated that the payee/addressee "U.H.J" had refused to accept the amount of Rs.10,200 sent to him by respondent---Respondent produced only one part of money order (sender's copy)---Respondent did not produce the actual counterpart of the money order, or even its copy with the endorsement of the concerned postman that the petitioner had refused to accept the money order, nor did he examine the concerned postman and or the author of letter, Assistant Chief Post Master, to verify the contents of said document---Due to this, petitioner did not get opportunity to cross-examine the concerned postman and the Assistant Chief Post Master in order to rebut the respondent's claim---Respondent could not be deemed to have discharged the burden, which was squarely upon him to prove the tendering of rent through money order prior to depositing the same in the Court---Admittedly money order allegedly sent by respondent was in favour of "H.U.I"----As the correct name of the petitioner was admittedly not mentioned in the alleged money order, it could not be deemed or held by any stretch of imagination that the money order was meant for or sent to the petitioner, or that the petitioner had refused to accept the same---Respondent had failed in discharging the burden in order to prove the alleged second refusal by the petitioner.

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

----Ss.10(1) & 10(3)---Eviction petition---Payment of the monthly rent----Procedure---Burden to prove---Tenant was not entitled in law to deposit the rent with the Rent Controller without first offering/tendering the same directly to the landlord but only when, upon such offer/tender, the landlord had refused or avoided to accept the rent from tenant---Burden to prove the tender rent to the landlord and the refusal or avoidance by the landlord in accepting the rent from him laid upon the tenant----In the case in hand, respondent (tenant) had clearly failed in discharging the burden not only to prove the alleged first and second refusals (of accepting rent) by the petitioner (landlord), but also the tendering of rent by him to the petitioner through money order prior to depositing the same with the Rent Controller.

Muhammad Asif Khan v. Sheikh Israr 2006 SCMR 1872 and Abdul Malik v. Mrs. Qaiser Jahan 1995 SCMR 204 rel.

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

----Ss.10(1) & 10(3)---Eviction petition---Personal need of landlord---Scope and proof---If the statement made on oath by landlord was consistent with the averments made by him in his eviction application and neither was his statement shaken nor anything was brought in evidence to contradict his statement, it would be sufficient for the grant of his eviction petition----All that the landlord had to show was that he required the demised premises of a particular tenant for his personal use and the choice was his as to suitability of the demised premises which he required for his personal use, and that the need was reasonable and bona fide---Landlord had the complete option to choose from any of the several tenements occupied by the tenants in order to avail the ground of personal need---Landlord himself would determine in what way, subject to law, he wanted to utilize his premises after eviction of the tenant.

M. Ilyas Khan Tanoli for Petitioner.

Nemo. for Respondent No.1 (called absent).

2022 C L C 1945

[Sindh]

Before Nadeem Akhtar, J

Syed NAJAF ALI SHAH through Legal Heirs----Petitioners

Versus

MUHAMMAD IQBAL and 2 others----Respondents

C.P. No.S-558 of 2020, decided on 20th May, 2022.

Sindh Rent Restriction Ordinance (XVII of 1979)---

----S.13---Eviction petition initiated against a dead person---Objection regarding maintainability of such petition---Respondent/landlord filed an eviction application against the deceased/tenant for his eviction from the shop on grounds of personal need and default in payment of rent---Rent Controller accepted the eviction application against the legal heirs of tenant---Appeal filed by petitioners was dismissed by Appellate Court---Validity----Respondent had not disputed that the case was filed by him against a dead person as he had claimed that he was not aware about the death of deceased----Respondent did not claim that the deceased was alive at the timing of filing of the rent case and the assertion about petitioners tenant's death at the relevant time was false---Admittedly the case was filed by respondent against a dead person---Respondent's only defense was that the defect, if any, in the proceedings initiated by him stood cured when the petitioners were substituted as opponents in place of their late father---Contention of respondent could not be accepted as the legal representatives of deceased could be brought on record only if suit had been instituted during deceased person's life time and he died after institution and during pendency of the suit---Suit/proceedings initiated against a dead person, in the present case, was a nullity and such fatal defect could not be cured subsequently by bringing legal representatives of deceased defendant on record----Since a specific objection was raised by petitioners in their written statement regarding the maintainability of the case on the ground that it was filed against a dead person, a point of determination ought to have been framed by the Rent Controller---Record showed that the death certificate of the deceased was produced by petitioners in their evidence before the Rent Controller---No point for determination was farmed in that behalf, no findings had been given in relation thereto by any of the Courts below and the impugned judgments were completely silent with regard to such important and fundamental objection raised by petitioners---Case filed by respondent admittedly against a dead person being void and a nullity in the eyes of law, was liable to be dismissed by the Rent Controller and such fatal defect could not be cured subsequently by impleading petitioners/ legal representatives of the deceased----Constitutional petition was allowed.

Malik Bashir Ahmed Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 rel.

Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others 2013 SCMR 464; Akhtar Hussain v. Widow of Malik Naeem Ullah and 3 others 2017 CLC 382; Malik Bashir Ahmed Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 and Capt. Shahid Saleem Lone and others v. Ata-ur-Rahman and others 1985 CLC 2555 distinguished.

Zia-ul-Haq Makhdoom along with Faisal Aziz and Hira Agha for Petitioners.

Muhammad Zeeshan for Respondent No.1.

2022 C L C 1985

[Sindh]

Before Ahmed Ali M. Shaikh CJ and Yousuf Ali Sayeed, J

Syed ASIF SHAH----Petitioner

Versus

MAZHAR JAVED and others----Respondents

Constitution Petition No.D-3960 of 2021, decided on 20th September, 2021.

Civil Procedure Code (V of 1908)---

----O.XXI, Rr.88 & 89---Auction---Bid---Nature of---Scope---Auctioneer's declaration of highest bidder---Direction for fresh auction before acceptance of highest bid---Petitioner had apparently offered a bid in respect of house which had been put to auction by Civil Court in execution---Petitioner was declared the highest bidder, however auction proceedings were set aside as a consequence of an application by one of the parties to the suit---Nazir was directed to hold a fresh public auction as per law and procedure wherein all legal heirs of deceased as well as petitioner could participate---Revision filed by petitioner was dismissed by Revisional Court and it was held that in absence of confirmation/acceptance of petitioner's bid, he had no locus standi to challenge the order of executing court---Bid made at auction was merely in the nature of an offer which did not of itself give rise to any rights as such offer was always subject to acceptance by Court ad did not mature into a contract till that time---Auctioneer's declaration that a particular bid was the highest merely gave rise to a legitimate exception of its acceptance as against other bidders but did not itself constitute a sale and certainly did not gave rise to a legitimate expectation of its acceptance as against other bidders but did not itself constitute a sale and certainly did not gave rise to any enforceable right---Enforceable right arose only when the bid was accepted and the full purchased money was deposited but that too subject to provisions of O.XXI, Rr.89, 90 & 91 of the C.P.C., with the property only finally coming to vest in the purchase when the sale was confirmed---No right ever accrued in favour of petitioner in the case---Constitutional petition was dismissed, in circumstances.

Muhammad Jawed v. First Women Bank Ltd. and others 2020 SCMR 2134 rel.

Tahir Hussain Qureshi for Petitioner.

Muhammad Khalid for the Respondents Nos.2 to 6.

Nusrat Sultan for Respondent No.7 to 12.

2022 C L C 2002

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

BILQUEES KHALID and another----Petitioners

Versus

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

Constitution Petitions Nos.D-1546 and D-1547 of 2021, decided on 22nd April, 2021.

Cantonments Act (II of 1924)---

----Ss.68 & 84---Revision of assessment list of house tax---Appeals against assessment---Scope---Petitioners assailed notices issued under S. 68 of the Cantonments Act, 1924, whereby assessment of house tax was proposed and demand notices were issued pursuant thereto---Contention of petitioners was that objections to the proposed amendments were preferred as per S. 68 and upon receiving no response applications under S. 71(1)(c) were also filed, but to no avail---Contention of Cantonment Board was that the petitioners ought to have assailed the notices/demands in appeal under S. 84 read with SRO No.1293(I)/2008 dated 22-12-2008---Validity---Section 68 of the Cantonments Act, 1924, envisaged revision of an assessment list, to be initiated inter alia by proposing valuation/assessments by the Board---Persons concerned were required to be given notice and they were eligible to file their objections to the proposed valuation/assessment---Once the objections were disposed of and the revision of the evaluation and assessment had been completed, the assessment list was required to be authenticated by an Assessment Committee---Requirements of S. 68 were not satisfied prior to issuance of demand upon the petitioners---Demand notices were set aside and the petitions were disposed of accordingly.

Nisar Ahmed Siddiqui v. Cantonment Board reported as 2012 MLD 1202; Aminullah Khan v. Executive Officer Cantonment Board Rawalpindi 2002 YLR 1557 and Fecto Sugar Mills Limited v. Secretary Food Punjab 2002 YLR 1559 ("Fecto") ref.

Muhammad Ansar v. Cantonment Board Clifton (C.P. D-105 of 2010) Muhammad Shahnawaz v. Cantonment Board Faisal (C.P. D-3646 of 2011); Syed Ghulam Mustafa Shah v. Cantonment Board Malir (C.P. D-4217 of 2011) and Muhammad Luqman-ul-Haq v. Cantonment Board Clifton (C.P. 646-K of 2013) distinguished.

Khurshid Ahmed Qureshi for Petitioners.

Kafeel Ahmed Abbasi, Deputy Attorney General for Respondents.

Ashraf Ali Butt for Respondent/Cantonment Board.

2022 C L C 2036

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

PEGASUS CONSULTANCY (PRIVATE) LIMITED through Authorized Representative----Petitioner

Versus

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

C.P. No.D-01 of 2020, decided on 10th August, 2022.

Public Procurement Rules, 2004---

----Rr.29 & 32---Constitution of Pakistan, Art.199---Constitutional petition---Public procurement---Eligibility criteria---Scope---Petitioner assailed pre-qualification bid process for procurement of event management services by respondent authorities declaring him disqualified---Validity---Provisions of Public Procurement Rules, 2004 envisaged that while engaging in pre-qualification, a procuring agency could tailor evaluation criteria while taking into consideration relevant experience and past performance; capabilities with respect to personnel, equipment, and plant; financial position; and appropriate managerial capability, along with any other factor that the procuring agency could deem relevant which was not inconsistent with Public Procurement Rules, 2004---No cogent factor has been raised as to conclude, keeping in mind the size and nature of the event, that the requirement as to experience or financial standing ought not to have been incorporated in the manner imposed---Fate of petitioner's challenge turned on a determination of whether its disqualification in light of the criteria could be termed unreasonable, which entailed an assessment of whether or not the same ensued for reasons that could reasonably be regarded as being valid---Letters issued by bank did not qualify as an unequivocal expression of an available credit line in favour of petitioner---Such letters reflected a tentative arrangement contingent on further processes, evaluations and approvals, that too by or at the behest of a third party---Authorities did not act unreasonably in withholding marks from the petitioner on such score---High Court declined to interfere in the matter as no substantial case on merit as to arbitrariness or a contravention of Public Procurement Rules, 2004, could be made out so as to require remedy through judicial review---Constitutional petition was dismissed, in circumstances.

Humera Imran v. Government of Pakistan PLD 2019 Sindh 467; Suo Motu Case 13 of 2009 PLD 2011 (SC) 619; Asif Fasihuddin Vardag v. Government of Pakistan and others 2014 SCMR 676 and Badar Expo Solutions through Managing Director v. Federation of Pakistan through Chief Executive Trade Development Authority and 12 others PLD 2022 Karachi 336 ref.

Maria Ahmed for Petitioner.

Khaleeq Ahmed, D.A.G. for Respondent No.1.

Ch. Sultan Mehmood for Respondent No.2.

Kazi Abdul Hameed Siddiqui for Respondent No.3.

2022 C L C 2063

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

PROVINCE OF SINDH through Secretary and 2 others----Petitioners

Versus

RAHIM BUX and others----Respondents

Civil Revision No.64 of 1992, decided on 14th January, 2022.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 85 & 76---Sindh Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Mutation entry---Making of that part of periodical records which relates to landowners---Cases in which secondary evidence relating to documents may be given---Public documents---Scope---Respondents had claimed ownership of the suit land whereas the claim of government (petitioners) was that the land belonged to Irrigation Department---Trial Court and Appellate Court concurrently decreed the suit---Validity---Original ownership of the person from whom the title was being derived had to be proved and only then the subsequent ownership or for that matter the mutation entries could be looked into---No allotment order or any other document was produced before the Court which could prove the ownership of the predecessor of respondents---Petitioners had placed reliance on a notification which showed that the suit land was State owned---Notification was declared by the Courts below to be inadmissible in evidence being a photocopy---Notification was admittedly a public document within the meaning of Art. 85(1) & (4) of the Qanun-e-Shahadat, 1984 and was admissible in evidence in terms of Art. 76(f) of Qanun-e-Shahadat, 1984---Revision application was allowed and the judgments of courts below were set aside.

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

----S.115---Civil revision---Limitation---Scope---Government departments are not to be treated any different as against a private litigant in the matter of limitation---Ordinarily, in matters wherein, any case is time barred the Courts have always followed a strict view, whereas, delay of each day has to be explained for seeking condonation of delay; but at the same time, when it is a case wherein revisional jurisdiction under S. 115, C.P.C. is being exercised by the High Court, this aspect has to be looked into with a somewhat different view---Such is premised on the fact that the Courts exercising revisional jurisdiction has a vast discretion as compared to any other proceedings coming up before the Court---Consistent view is that the Court is never robbed of its suo motu jurisdiction only for the reason that a revision application requesting invoking of such jurisdiction is filed beyond the period prescribed thereunder---Revisional jurisdiction is corrective and supervisory in nature; hence, no harm would be caused if the Court seized of a revision petition exercises its suo motu jurisdiction to correct the errors of jurisdiction committed by the Courts below---Such fact and the powers of the Courts can be ascertained from the plain language used in S. 115, C.P.C. and the intention of the Legislature, whereas, exercise of this jurisdiction if allowed to go into the spiral of technicalities and restrictions of limitation, the very purpose behind conferring such jurisdiction would be defeated.

Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 and Chief Executive, PESCO Department, Government of Khyber Pakhtunkhwa, Peshawar and others v. Afnan Khan and another Civil Appeal No.443/2021 rel.

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

----S.42---Mutation entry---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.

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

----S.42---Mutation entry---Scope---If 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.

Nasir Rahim v. Province of Sindh 2021 CLC 579 ref.

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

----S.42---Mutation entry---Scope---Mutation confers no title, whereas, once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation in dispute.

Muhammad Akram v Altaf Ahmed PLD 2003 SC 688 and Ahmed v. Nazir Ahmed 2019 CLC 1841 ref.

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

----S.42---Sindh Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Making of that part of periodical records which relates to landowners---Mutation entry---Scope---Mere mutation entries in the record of rights are not title documents to seek a declaration under S.42 of the Specific Relief Act, 1877.

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

----Art.85---Public documents---Scope---Public document cannot be ignored merely because it was not confronted and was not produced in Court; its intrinsic value shall be examined on its contents.

Karachi Metropolitan Corporation v. Raheel Ghayas PLD 2002 SC 446 ref.

Ahmed Ali Shahani, Assistant Advocate General along with Mumaz Ali Gumro, Assistant Executive Engineer, Machnical Sub-Division, Kashmore for Applicants.

Mushtaq Ahmed Shahani for Respondents.

2022 C L C 2083

[Sindh]

Before Zafar Ahmed Rajput and Muhammad Faisal Kamal Alam, JJ

SINDH GAMES ASSOCIATION (REGD.)----Petitioner

Versus

PROVINCE OF SINDH and 3 others----Respondents

C.P. No.D-4923 of 2021, decided on 17th December, 2021.

(a) Societies Registration Act (XXI of 1860)---

----Ss. 1 & 20---Constitution of Pakistan, Art.199---Sindh Sports Board Ordinance (VIII of 1980), Ss. 6 & 11---Societies formed by memorandum of association and registration---Applicability of Societies Act, 1860---Scope---Affiliation of Associations---Scope---Petitioner, an Association registered under Societies Registration Act, 1860, sought issuance of writ of prohibition refraining the Assistant Registrar of Joint Stock Companies (Assistant Registrar) from cancelling its registration on the basis of its non-affiliation with Sindh Sports Board (SSB) under the Sindh Sports Board Ordinance, 1980---Validity---Such was domain and jurisdiction of the Assistant Registrar to examine as to whether or not the aims and objects of the petitioner were in conflict with the object provided by Ss.1 & 20 of the Societies Registration Act, 1860, and to pass appropriate order in that regard---Issuance of writ of prohibition in the matter as prayed for by the petitioner would amount to thwart and stifle the duty of Assistant Registrar---Section 6(v) of the Sindh Sports Board Ordinance, 1980, provided that it was function of the SSB to affiliate associations and under S. 11(1) any seven or more persons could form an association for any particular game or sports by subscribing their names to a memorandum of associations---Under S. 11(3), the Secretary of the SSB issued an affiliation certificate of the association---Since SSB was the regulator and fund provider for the activities relating to sports, games and physical education in the province, it was therefore, mandatory for the sports associations to get affiliation from it---Writ petition was dismissed.

All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others 2012 CLC 714 ref.

Pakistan Industrial and Intellectual Property Rights Association (PIPRA) v. Government of Sindh, through Directorate of Industries (Registration), Karachi and another 1999 CLC 477 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of prohibition---Scope---Writ of prohibition is a judicial writ directing a person performing functions in connection with the affairs of the Federation, or a Province or a local authority to refrain from continuing with a proceedings therein, on the ground that the proceedings are without or are in excess of jurisdiction or contrary to the laws of the land and proceedings may be without jurisdiction if they contravene some enactment or some principles of law.

(c) Constitution of Pakistan---

----Arts. 17 & 4---Freedom of association---Rights of individuals to be dealt in accordance with law---Scope---Right of individuals to enjoy protection of law and to be treated in accordance with law is the inalienable right of every citizen of Pakistan---Article17 of the Constitution ensures the freedom and right to form associations or unions subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality---Right to form an association or a union under Art.17 of the Constitution is neither unbridled nor unregulated and it is permissible to regulate such right by imposing reasonable restrictions, inter alia, in the interest of public order---State has a power to regulate associations and unions through legislation with a view to protect the public order/interest; therefore, they cannot claim special immunity from such regulations.

Ali Tahir and Touqeer Ahmed Seehar for Petitioner.

Miran Muhammad Shah, Addl. A.G., Sindh for Respondents Nos.1 to 4.

Masood Hussain Khan for Intervenor.

2022 C L C 2101

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD AFTAB----Petitioner

Versus

MUHAMMAD ASIF and others----Respondents

Civil Revision Application No.79 and C.M.A. No.4180 of 2019, decided on 31st January, 2020.

(a) Gift---

----Proof----Respondents/plaintiffs being legal heirs sought partition with regard to disputed property and for such purpose filed suit for partition of property---Applicant being son claimed ownership of the same property on the plea that he was the owner by way of oral gift by the deceased mother of parties----Trial Court decreed suit of respondents---Appellate Court dismissed appeal filed by applicant---Held, that applicant claimed gift of two separate properties but produced record of one property only, hence the presumption could be drawn that if there would have been gift of two properties at one time by one and same person, then there was no reason for making document for one property only---Besides, onus probandi was upon the applicant to prove the alleged gift as that was the burden upon applicant being beneficiary---Judgments of courts below were in accordance with law---Civil revision was dismissed.

(b) Administration of justice---

----Civil and Criminal law---Standard of proof----Principles of criminal administration of justice were not similar to that of civil administration of justice because in civil jurisdiction the appreciation was done on preponderance while in criminal jurisdiction the prosecution continues under mandatory obligation to prove the charge beyond reasonable doubt.

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

----S.278---Administrative Suit----Scope--- Scope of administrative suit was for the administration of estate involving declaration of title and status.

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

----S.115---Scope---Revisional jurisdiction of High Court---Scope---Such jurisdiction was quite narrow and normally the concurrent findings of facts could not be disturbed in revisional jurisdiction unless High Court came to the conclusion that findings of Courts below are result of misreading or non-reading of evidence available on record or contrary to the settled law.

1968 SCMR 464 rel.

1968 SCMR 464; PLD 1987 SC 447; PLD 1976 SC 208; PLD 2019 SC 527; PLD 1970 SC 224; 1990 MLD 1702; PLD 1983 Kar. 527; 2001 SCMR 1700; 1995 CLC 1541; PLD 1977 Kar. 933; 2007 SCMR 741; PLD 1993 Kar. 700; 1998 CLC 1883 and 2011 YLR 3089 distinguished.

Raja Shams-uz-Zaman for Applicant.

Qadir Hussain Khan, files vakalatnama on behalf of respondents, as well files copy of Power of Attorney of Ms. Shahida Begum and Ms. Farkhunda Parveen; taken on record.

All respondents are present except respondent No.4 Ms. Shahida Perveen.

2022 C L C 2124

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

FAIQUE ALI JAGIRANI----Petitioner

Versus

The FEDERATION OF PAKISTAN through Parliaments Secretary for Law and Justice, Islamabad and 4 others----Respondents

C.P. No.D-4664 of 2018, decided on 21st September, 2021.

Constitution of Pakistan---

----Arts. 199, 223 & 218---Constitutional petition---Bar against double membership---Scope---Petitioner sought directions to the Chief Elections Commissioner of Pakistan to take appropriate steps in order to restrict all electoral candidates from contesting election on multiple seats---Contention of petitioner was that it constituted violation of Art.218(3) of the Constitution and also placed an unnecessary burden on the national exchequer as the cost of individual contesting on multiple seats resulted in a significant waste of national resources---Validity---Directions sought were contrary to the constitutional mandate in terms of Art.223 of the Constitution as it specifically contemplated multiple candidature, hence it was manifest that from a constitutional standpoint a person was not prevented from being a candidate for two or more seats at the same time---Constitutional petition was dismissed.

Petitioner in person.

Khalieeque Ahmed, DAG for Respondent-Federation.

2022 C L C 2133

[Sindh]

Before Ahmad Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

EXCELLENT SECURITY LIMITED through Director----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Finance, Finance Division, Islamabad and 8 others----Respondents

C.P. No.D-2371 of 2021, decided on 24th December, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Scope---Private entity---Where a Bank, after its privatization, was being run by a private entity having no concern with the affairs of the Federation or a Province, High Court observed that while exercising powers under Art. 199 of the Constitution it could not issue a writ of mandamus. [p. 2136] A

Dr. Raana Khan for Petitioner.

Khalique Ahmed, DAG for Respondent No.1.

Abdul Jalil Zubedi, AAG for Respondents Nos.2 to 6.

Usman Pervaiz Malik for Respondent No.7.

Faisal Mehmood Ghani for Respondents Nos.8 and 9.

2022 C L C 6

[Lahore]

Before Raheel Kamran, J

AMAR JEET SINGH----Petitioner

Versus

SANT SINGH----Respondent

Civil Revision No.22983 of 2021, decided on 29th June, 2021.

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

----O.XXXVII, R. 2 & Appendix B, Form 4---Limitation Act (IX of 1908), Article 159---Constitution of Pakistan, Art. 10A---Suit for recovery---Cheque allegedly issued by the petitioner for the return of loan, was dishonoured---FIR had been launched prior to initiation of suit---Petitioner was arrested---Superintendent jail was directed to produce the petitioner in the Court---On 19.12.2020, attendance of the petitioner was marked and he was informed that he could file his application for leave to defend the suit within ten days---Petitioner's right of filing the application for leave to defend was closed by District Judge---Order-sheet nowhere showed that the petitioner had been served summons in the prescribed Form 4 in Appendix "B", therefore, the mandatory requirement of law had never been complied with---Additional District Judge informed the petitioner that he may file his application for leave to appear and defend the suit, but no warning was given to the petitioner regarding consequences of his default---Such was mandatory to ensure that on the date when the summons was served on the defendant, he should be made fully aware of the plaintiff's claim and nature of suit by serving a copy of the plaint along with annexures---Question of computing limitation under Art. 159 of the Limitation Act, 1908, did not arise---Court's order did not reflect that petitioner was even allowed any opportunity to contact any of his relatives or any lawyer---Principle of equality of arms had been manifestly violated and the impugned order was void---Rivision petition was allowed accordingly.

Mst. Bilqees Fatima v. Abdul Razzaq PLD 1986 Kar.444 ref.

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

----O.XXXVII, R. 2 & Appendix B, Form 4---Constitution of Pakistan, Arts. 10A, 28 & 251---Bilingual summons (in English and Urdu), necessity of---Scope---Purpose of a summon prescribed under O.XXXVII, R.2 of C.P.C. was to convey to a defendant a summary of the claim against him, inform him of his entitlement to apply for leave to appear and defend the suit, warn him of the urgency in moving such an application (i.e. within the limitation period of ten days) and warn him of the consequences of his default---Mandatory requirement of service of summons in prescribed form would only be in consonance with the object, letter and spirit of the said R.2 as also in conformity with Arts.10A, 28 & 251 of the Constitution that the summons under the said rule was prescribed in bilingual form i.e. English and Urdu.

(c) Constitution of Pakistan---

----Art.10A---Right to fair trial---Scope---Right conferred by Art.10A applies to civil, criminal and administrative proceedings and benefit thereof extends to any person involved in the above proceedings in Pakistan and not just citizens---Requirement of fairness imposed under the said Article applies to civil and criminal litigation taken as a whole including access to justice and is not confined to fair trial once litigation is underway.

R(Begum) v. Tower Hamlets London Borough Council (2003) 2 AC 39 (HL) and Golder v. United Kingdom (1975) 1EHHR 524 ref.

(d) Constitution of Pakistan---

----Art.10A---Fairness---Scope---Equality of arms---Principle---Fairness of the procedural safeguards, stricto sensu, the equality of arms is one of the hallmarks of such right---Principle of equality of arms, which is a judicial construction adopted by the European Court of Human Rights, means giving each party a reasonable possibility to present its cause in such conditions as would not put one party in disadvantage to its opponent---Fair balance between the opportunities afforded to the parties involved in litigation is a must.

(e) Constitution of Pakistan---

----Art. 10A---Fair trial---Integral part of every law---Scope---Principles of fair trial, as guaranteed by Article 10A of the Constitution, are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person.

(f) Constitution of Pakistan---

----Art.10A---Fair trial and due process---Right to defend---Scope---Opportunity to defend necessitates that a party should be provided access to counsel and an opportunity to answer the case against him.

Muhammad Nadeem Amin v. Ch. Farasat Ullah PLD 2006 SC 32 and Ghulam Rasool v. Abdullah 1991 SCMR 1964 ref.

Ch. Muhammad Yousaf for Petitioner.

Muhammad Iftikhar Ullah Dhillon for Respondent.

2022 C L C 24

[Lahore]

Before Safdar Saleem Shahid, J

MUJAHID KAMRAN----Petitioner

Versus

Mst. SAIRA AZIZ and 2 others----Respondents

Writ Petition No.32191 of 2021, heard on 30th June, 2021.

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

----Ss.5 & 9---Nikahnama, contents of---Suit for recovery of maintenance/dower amount---Column No. 20 of Nikahnama---Entry of Rs.25,000/- as monthly maintenance allowance---Allegation of cruelty by husband---Petitioner/defendant claimed for restitution of conjugal rights and also filed a suit for cancellation of conditions/entries of Columns Nos. 14, 16, 17, 19 and 20 of Nikahnama on the ground that the same were illegal and incorporated without his consent in deceitful manner---Family Court partially decreed the respondent's suit to the extent of entitlement of the recovery of maintenance at rate of Rs.25,000/- per month with 10% annual increase from date of marriage till the date of judgment---Petitioner's suit was dismissed---Appeals filed by both parties were also dismissed---Validity---Wife could be justified in living separately if the husband treated her with cruelty or did not pay prompt dower---No disagreement or point of cruelty was quoted/proved by respondent other than the demand of dower---No particular point cited/proved by petitioner as to alleged disobedience except the allegation that respondent remained only one day in his house---Petitioner did not prove his version that columns of Nikahnama were afterwards filled in and were the result of forgery---All witnesses of Nikahnama admitted their signatures over the same---Petitioner had not proved that the copy of Nikahnama was not given to him at that time---Petitioner was bound to pay maintenance allowance according to column No.20---Case of respondent was based on column No.20, which could not be dealt with under the conditions of S.17A of the Family Courts Act, 1964---Neither the Court had to see the financial status of husband nor to fix the maintenance on the conditions mentioned in S.17A---Order as to 10% annual increase was not according to the spirit of Column No. 20 of Nikahnama---Date and Majlis of Nikah and signatures on Nikahnama by respective person were admitted---Execution of Nikahnama was proved by the respondent---Nikahkhwan, appearing as witness, had certified that all the columns were filled at that time with consent of parties---Presumption would be that the Nikah Pert (paper) was handed over to the petitioner on that very day which was requirement of law after the registration of the same in Union Council---Petitioner did not prove that the entries in the columns were not in his knowledge---Entries of column No. 19 limiting the absolute right of Talaq of the petitioner were against the spirit of the instructions of Almighty Allah, hence, declared void ab initio and not binding to the parties---High Court declared entries of Column No.19 as null and void---Constitutional petition was partly allowed.

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

----S.5---Nikahnama, contents of---Scope---Nikahnama is a very important document and it's all columns are legally binding on both the parties---Any right given through Nikahnama to woman is her right strictly protected by law---Woman may sue her husband regarding the past maintenance allowance on the basis of agreement in Nikahnama---All she has to do is to prove the execution of document/Nikahnama where such condition has been agreed between the parties.

Mohammedan Law by D.F. Mulla (S. 278) ref.

(c) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961---

----R.8(1)---Nikah---Proof---Witness, requirement of---Wakeel as witness---Apart from the spouses and their wakeel, if any, at least two witnesses are required to certify the proceedings of "Ijab o Qabool" and that should be conducted in one Majlis---Person who has been appointed as wakeel for the bride, cannot be the witness of Nikah---Wakeel has his specific identity as to accept the proposal on behalf of the bride---Nikahkhawan can also be the witness of the Nikah if he has also heard the "Ijab o Qabool" by himself.

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 79---Nikahnama, proof of---Execution of document---Anything which has been brought in writing, if it is witnessed by two persons and signed over the same, under S.79 of Qanun-e-Shahadat, 1984, that document is proved one and in case of denial from that, the person denying the same has to produce the cogent reasons and solid grounds.

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

----S.5---Nikahnama, contents of---Proof---Entries in columns---If Nikahnama was written at the time and it was signed in the same Majlis, then it will be presumed that the same was stated to the lady and the proposal and acceptance were there regarding dower which has been mentioned in the Columns Nos. 13 & 14 of Nikahnama.

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

----S.7---Talaq, absolute right of---Islamic Law---Husband has an absolute right to divorce his wife---No condition is described in Shariah as well as in the codified law.

Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum 2008 SCMR 186 ref.

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

----S.5---Nikahnama, contents of---Injunctions of Islam---Anything contained in Nikahnama which is against the spirit of Islam or the orders of Allah and Prophet (peace be upon him) cannot bind the parties even if has been made with the consent of the parties.

Iftikhar Ahmad Mian for Petitioner.

Ghulam Rasool Sial for Respondent No.1.

2022 C L C 61

[Lahore]

Before Sultan Tanvir Ahmad, J

ZULQERNAIN KHURRAM and another----Petitioners

Versus

PUNJAB HEALTHCARE COMMISSION and 4 others----Respondents

Writ Petition No.49447 of 2021, heard on 31st August, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---New plea---Scope---When a particular plea or objection is not raised before fora below, it is not open for the party to raise the controversy before High Court.

Muslim Commercial Bank Ltd. v. The Punjab Labour Appellate Tribunal, Lahore and others 1989 PLC 209; Daulat Bibi v. Galeen Khan and another 1991 MLD 2335 and Mst. Shaheen Bibi (Nusrat Shaheen) v. Zulfiqar Ali Shah Kazmi and 2 others 1995 CLC 306 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Remedy of review, revision or appeal, non-availing of---Effect---If such remedy provided by statute has not be availed, Constitutional jurisdiction under Art.199 of the Constitution can only be invoked in limited and exceptional circumstances.

Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 rel.

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

----Arts. 117 & 120---Proof of fact---Burden to prove---Scope---One who raises allegation must bring something rational on record showing deviation from due process of law or clearly visible from circumstances as initial burden to construct a cause to further proceed--- For final success, on the plea of mala fide party alleging has heavy burden to be discharged--- Such is not the burden required in criminal cases or 'beyond reasonable doubt' but evidence in such regard has to be at least 'clear and convincing'.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977; Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Khurshid 2021 SCMR 369 and State Bank of Pakistan v. Franklin Credit and Investment Company Ltd., through Attorney 2009 CLD 1542 rel.

(d) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss.2 (xxix), 28, 30 &31--- Anti-Quackery Regulations, 2016, Regln.2 (g)---Constitution of Pakistan, Art. 199---Constitutional petition---Quackery, curbing of---Petitioners were dispensers and were aggrieved of fine imposed upon them by authorities for conducting surgical procedures on patients without any licence to do the same---Validity---Mechanism was provided under Punjab Healthcare Commission Act, 2010 and Regulations whereby the Commission was equipped with specialists of particular field relating to healthcare establishment assisted by technical advisory committee consisting of experts from the concerned---Commission was to fix standard of healthcare services and maintain the same under mandate of Chapter-14 of Punjab Healthcare Commission Act, 2010---Commission and its hearing committee were the best suited to determine as to whether any of the healthcare establishment or service providers were maintaining required or settled standard---High Court declined to interfere in the decision against petitioners as there was no jurisdictional defect, illegality or gross misreading or non-reading of evidence in orders in question---Constitutional petition was dismissed, in circumstances.

Mst. Mobin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214 rel.

Muhammad Azhar Kashif for Petitioner.

Asif Mehmood Cheema, Addl. Advocate General with Imran Rasheed, Deputy Director (Legal) on behalf of Respondents Nos.1, 2 and 3.

2022 C L C 89

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

Dr. MUHAMMAD JAWAD JAN ARIF----Petitioner

Versus

Dr. AYESHA CHAUDHRY and 2 others----Respondents

Writ Petition No.12248 of 2021, decided on 11th August, 2021.

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

----S.17A---Interim maintenance---Autistic minor---Petitioner's 5½ years old daughter was suffering from the Autism Spectrum Disorder---Interim maintenance allowance had been raised from Rs.20,000/- to Rs.50,000/- per month---Petitioner had served at eminent positions as neurosurgeon in Pakistan and abroad---Petitioner admitted that his wife's father was killed and that she had to provide for her mother as well---Held, that reason for excessive interim maintenance was manifestly reflected in the impugned order that the child whose maintenance was in issue was an autistic child whose needs/requirements were indeed over and above and in excess of what were generally associated with typical 5 years old children---In the present days of massive inflation, impugned order, especially in the case of an autistic child, could not be said to be unreasonable or even harsh---Amount fixed had a rational nexus with the requirements/needs of a differently abled child and, therefore, was quite proportionate---Impugned order was passed in the presence of the petitioner, who was heard by Family Judge---Autistic individuals had lifelong needs, more so at the tender age of 5---Facilities that would be luxury to typical kids were basically necessities for an autistic child, for example, swimming, skating, therapy etc. are basic skills to prevent drowning and develop coordination respectively---Specialist coaches were indeed expensive---Constitutional petition was dismissed, in circumstances.

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

----S.17A---Interim maintenance---Power to enhance/decrease amount---Family Court, jurisdiction of---Scope---Purpose behind the powers under provisions of S.17A of the Family Courts Act, 1964, to grant interim maintenance to the concerned parties was to ensure that during pendency of proceedings for grant of maintenance, affected minors were not faced with financial constraints---Family Court did not have un-fettered/un-bridled powers to fix interim maintenance at its discretion---Court may broadly look into the social status of the parties; earning of the defendant; his capacity to pay; requirements of the minor and on this touchstone fix interim maintenance---No right of appeal etc. had been provided against such a determination, because the order was tentative and interim in nature---Court had power to enhance or decrease the quantum of maintenance eventually after appraising/deciphering/examining the evidence produced during trial---Findings qua interim maintenance normally could not be interfered with, if the same were fixed upon the said parameters.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Judicial review---Scope---Judicial review was the means to ensure legitimacy and legality in administrative and legislative action---Such was a process whereby the intent of the parliament as contained in a statute was harnessed, secured and protected.

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

----S. 14---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Family court---No right to appeal---Held, that when the Legislature had specifically prohibited the filing of an appeal against an interim order, constitutional petition, if perpetuated, would tantamount to defeating/diverting the intent of the Legislature---Principle of judicial review could not be used to negate/erase/offend the manifest intent of the law-maker.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165; Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450 and President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 rel.

(e) Medical jurisprudence---

----"Autism", defined---Special needs/problems/expenditures of autistic child elaborated.

Mian Hafeez ur Rehman for Petitioner.

2022 C L C 106

[Lahore]

Before Ch. Muhammad Iqbal, J

WALI REHMAN----Petitioner

Versus

The ADDITIONAL COMMISSIONER (REVENUE) GUJRANWALA DIVISION and 7 others----Respondents

Writ Petition No.10392 of 2014, decided on 1st June, 2021.

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

----S.4---Notification---Object, scope and purpose---Objection of notification is to disclose intention and need of government and also to give notice to public at large that land subject matter of Notification is required for public purpose---Notification under S.4 of Land Acquisition Act, 1894, is merely introductory measure, tentative in nature and furnishes foundation of carrying out subsequent proceedings of acquisition as well as it is amounting to a cautioning pubic that any transaction / alienation made subsequent to issuance of notification would be at risk and cost of respective parties.

Messrs Eden Developers (Pvt.) Limited v. Government of the Punjab and others PLD 2017 Lah. 442 and Sardar Dildar Ahmad Cheema v. Board of Revenue, Punjab through Member (Revenue) and others PLD 2013 Lah. 565 rel.

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

----Ss.6 & 17---Notification---Object, scope and purpose--- Issuance of notification under S.6 of Land Acquisition Act, 1894, is a conclusive declaration that land is needed for public purpose--- Object of S.17 Land Acquisition Act, 1894, is to allow an authority to proceed with matter without waiting completion of other formalities--- Once possession of land is taken under S.17 of Land Acquisition Act, 1894, whereafter title of land for all intents and purposes vests free from all encumbrances in the name of government and ownership of previous proprietor by operation of law stand ceased/extinguished whereafter land owner was stripped off from legal authority / right to make any transaction of acquired land--- Any person who purchases acquired land during or after acquisition proceedings is debarred to challenge acquisition proceedings and if any sale / alienation of land so acquired is executed that would be void and non-existence in the eyes of law.

Shiv Kumar and others v. Union of India (UOI) and others (AIR 2019 SC 5374 rel.

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

----Ss.4, 6 & 17 (4)---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition notification---Subsequent purchaser---Objection to acquisition---Locus standi---Petitioner filed objections to acquisition of land which objections were dismissed---Validity---Petitioner intentionally and deliberately purchased land in question when acquisition proceedings had already been initiated through publication of notification under S.4 of Land Acquisition Act, 1894--- By subsequent notification under Ss. 6 & 17(4) of Land Acquisition Act, 1894, title of land had already stood vested in favour of acquiring department---Acquired land could not be sold out through private treaty---Petitioner failed to point out any perversity, illegality or any jurisdictional defect in order calling for any interference by High Court in its Constitutional jurisdiction---Petitioner was subsequent purchaser of acquired land, therefore, he was debarred to challenge acquisition proceedings---Petitioner during acquisition proceedings illegally encroached upon land in question and he was not entitled to any discretionary or equitable relief under Art.199 of the Constitution---Constitutional petition was dismissed, in circumstances.

Sayyid Ali Imran Rizvi for Petitioner.

Asif Mahmood Cheema, Addl. Advocate General for Respondent.

2022 C L C 134

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

Mst. SAIMA MAI----Petitioner

Versus

DISTRICT POLICE OFFICER, KHANEWAL and 6 others----Respondents

Writ Petition No.11601 of 2021, heard on 29th July, 2021.

(a) Constitution of Pakistan---

----Arts.8, 9 & 35---Marriage with free consent---Sui juris---Harassment by close relatives---Held, that an adult sui juris Muslim girl could marry a person of her choice without the consent of her Wali---Common practice, prevailing in the society that whenever a marriage was contracted without the approval of families, close relatives make every possible effort to break that wedlock, was violative of Arts. 9 & 35 of the Constitution---State had bounden duty to protect the marriage, life and liberty of legally wedded couples---Petitioner/girl and her husband, present before the Court, were legally wedded wife and husband as their Nikahnama had been placed on the record and they owned the same---Court had ensured the identity of petitioner and her voluntariness to file the present petition---Public functionaries were directed to remain within the four corners of law and desist from causing harassment in illegal manner to the petitioner or her spouse---Constitutional petition was disposed of accordingly.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; Riaz Begum Alias Razia's Case 2018 MLD 1714 and Mst. Sajida Bibi's case PLD 1997 Lah. 666 ref.

(b) Constitution of Pakistan---

----Art.9---Right to marriage---Sui juris---Right to life---Scope---Duty of court---Article 9 of the Constitution had strenuously vouched for the protections of right to life of every person and it was the duty of the Constitutional Courts to protect and safeguard all the fundamental rights provided and guaranteed under the Constitution.

Mst. Rukhsana and others v. D.S.P., Circle Sadikabad and others 2002 MLD 1048; Samina v. S.H.O. Police Station, Ghulam Abbad, Faisalabad and 2 others 2005 MLD 430; Mst. Sajida Bibi and another v. Incharge, Chouki No.2, Police Station Saddar, Sahiwal PLD 1997 Lah. 666; Mst. Imrana Nazir v. S.P. Regional Investigation Bureau, Bhawalpur and 6 others 2009 YLR 1766; Naziran Bibi v. S.H.O. and others PLD 1996 Lah. 709; Mst. Saniya Bibi v. S.H.O. Police Station Saddar Rahimyar Khan and 8 others 2005 MLD 1190; Mst. Rafia Bibi v. S.H.O. and others 2005 MLD 1989 and Tahira Bibi v. SHO and others PLD 2020 Lah. 811 ref.

(c) Constitution of Pakistan---

----Arts.35 & 9---Marriage with free consent---Sui juris---Under Islamic law both male and female have the right to contract marriage with their own free will and their matrimonial life is protected under Art.35 of the Constitution.

(d) Constitution of Pakistan---

----Art.199---Marriage with free consent---Sui juris---Harassment---Constitutional petition---Duty of Court---Scope---High Court observed that court should be extra cautious/watchful while issuing directions against harassment, ensuring the presence of wedded couple before the Court, especially the female petitioner in order to rule out that any such petition had been filed for some ulterior motive other than what is prayed for; that a valid marriage existed; and that petition had been filed voluntarily without any pressure or undue influence on the female petitioner.

Ch. Muhammad Manzoor for Petitioner.

Shahryar Ahsan Mehboob, Assistant Advocate General for the State.

Fakhar Bashir, Civil Judge/Research Officer for Research Assistance.

2022 C L C 167

[Lahore (Rawalpindi Bench)]

Before Raheel Kamran, J

Sheikh HAROON-UR-REHMAN---Petitioner

Versus

MUHAMMAD RAFIQUE and others---Respondents

Writ Petition No.3433 of 2021, decided on 3rd November, 2021.

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

----Ss.12(2) & 12(3)---Qanun-e-Shahadat (10 of 1984), Art.114---Respondent's suit for specific performance was decreed---Estopped, principle of---Applicability---Petitioner's application under S. 12(2) of C.P.C. was dismissed concurrently---Contention that Trial Civil was required to frame issues and decide the said application on merits after recording of evidence---Validity---Petitioner's application under S.12(2) of C.P.C, had been decided on the basis of uncontroverted facts that petitioner had contested the execution petition filed by respondents/decree-holders and got his statement recorded showing his compromise with the respondents and his intention to pay decretal amount; and that application was barred by limitation---Trial/Civil Court was well within its authority to apply any procedure which was fair in the circumstances of the case--­-No issue was required to be framed and no evidence was required to be recorded in such case which had been decided on the basis of statement of the petitioner/applicant recorded by the executing court---Petitioner had earlier filed objections qua execution while alleging more or less the grounds taken by him in his application under S.12(2) of C.P.C., which grounds were later on withdrawn while recording his statement---Petitioner's application was hit by the doctrine of estoppel---Constitutional petition was dismissed accordingly.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad PLD 2015 SC 2012; Ejaz Naseem v. Fariha Ahmed 2009 SCMR 848 and Mst. Sharif Bibi v. Syed Muhammad Nawaz Shah 2008 SCMR 1702 rel.

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

----Ss.12(2) & 12(3)---Application challenging judgment and decree obtained by practicing fraud/misrepresentation/collusion---Disposal---Procedure---Framing of issues in every case to examine merits of such application would frustrate the object of S.12(2) of Civil Procedure Code, which was to avoid protracted/time consuming litigation and to save the genuine decree holders from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts.

Ghulam Muhammad v. Ahmed Khan (1993 SCMR 662; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334; Ms. Amina Bibi v. Nasrullah and others 2000 SCMR 296; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 rel.

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

----Ss.12(2), 12(3) & 141---Application under S.12(2), C.P.C., disposal of---Procedure---Prior to insertion of subsection (3) in S.12 of Civil Procedure Code, 1908, through Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018), no procedure was prescribed for the disposal of an application under S.12(2) of the Code---In cases where the determination of allegations of fraud and misrepresentation involved investigation into the question of fact, inquiry was ordinarily held to adjudicate upon the matter by framing an issue and recording evidence while invoking the provision of S.141 of the Code---Perusal of S.12(3) of the Code clearly indicated that: firstly, an application under S.12(2) of the Code had been required by law to be disposed of expeditiously; secondly, for expeditious disposal of such an application, a discretion had been conferred upon the court to adopt such procedure as the circumstance of the case warranted; thirdly, the procedure to be adopted by the court must be fair in the circumstances of the case; fourthly, if proof etc. of any fact was required, it should be proved/disproved by affidavit unless directed otherwise by the court; and fifthly, reasons must be recorded in the order where the court directed any fact to be proved/disproved otherwise than by way of affidavit---Such was manifest that the requirements of a regular trial vis-à-vis framing of issues and recording of evidence had been generally dispensed with by the legislature in adjudication of applications under S.12(2) of the Code and the court has been burdened with the responsibility to record reasons for resorting to such procedure in exceptional cases.

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

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.12(2) of Civil Procedure Code, 1908, could be filed within three years from the date when the right to apply accrued and such date would be the date of passing of the judgment and decree.

Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 rel.

2022 C L C 178

[Lahore]

Before Ch. Muhammad Iqbal, J

KHAN BAHADAR and 6 others----Petitioners

Versus

SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS AND INTERFAITH HARMONY, ISLAMABAD and others----Respondents

Writ Petition No.23505 of 2021, decided on 4th May, 2021.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss.8 & 10---Displaced Persons (Compensation and Rehabilitation) Act, (XXVIII of 1958), S.4---Qanun-e-Shahadat (10 of 1984), Art.100---Declaration of property as evacuee trust property---Validation of certain transfers---Compensation pool---Presumption as to documents thirty years old---Scope---Settlement Department allotted a certain piece of land to the allottee who alienated part of it to four others---Assistant Administrator, Evacuee Trust Property, filed a reference under Ss.8 & 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, for declaring the land in question as trust property as well as sought cancellation of allotment in favour of the allottee---Chairman, Evacuee Trust Property Board, passed impugned order declaring the land in question as trust property and also cancelled the allotment of the allottee as well as subsequent sale transactions---Revision petition under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, was also dismissed---Validity---After partition of subcontinent, majority of Sikh and Hindu communities' people migrated to India and they abandoned their private/personal as well as religious or other private institutional, organizational properties in Pakistan---Said evacuee properties stood vested with the Federal Government---Properties of private evacuee was made part of the compensation pool under S.4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereas the evacuee land attached with religious educational institution was excluded for any allotment under the rehabilitation process---Jamabandi for the year 1945-46, 1966-67 revealed that the ownership of land in question was entered in the name of a religious organization entrusted with obligation of maintaining the Sikh religious institution or places of worship---Such longstanding entries demonstrated that the land in question was a trust property---Official record was more than 30 years old, which wore a presumption of correctness under Art.100 of the Qanun-e-Shahadat Order, 1984, until such presumption was not displaced through any cogent believable and trustworthy record---Chairman had rightly declared the land in question as trust property and cancelled the allotment---Constitutional petition was dismissed, in circumstances.

District Evacuee Trust Committee v. Mashraf Khan and others 1989 SCMR 1636; District Evacuee Trust Committee v. Muhammad Umar and others 1990 SCMR 25 and Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586 ref.

Qazi Akbar Jan and others v. The Chairman District Evacuee Trust Committee, Peshawar and others 1991 SCMR 2206 and Muhammad Usman and others v. Secretary to Government of Pakistan and another PLD 2004 SC 140 rel.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss.8, 10 & 17---Civil Procedure Code (V of 1908), S.9---Declaration of property as evacuee trust property---Validation of certain transfers---Revision---Jurisdiction of Civil Court---Limitation---Condonation of delay---Ill advice of counsel---Scope---Settlement Department allotted a certain piece of land to the allottee who alienated part of it to four others---Assistant Administrator, Evacuee Trust Property, filed a reference under sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, for declaring the land in question as trust property as well as sought cancellation of allotment in favour of the allottee---Chairman, Evacuee Trust Property Board, passed impugned order declaring the land in question as trust property and also cancelled the allotment of the allottee as well as subsequent sale transactions---Revision petition under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 was also dismissed---Petitioners filed a civil suit against the order passed by Chairman, which was dismissed and appeal of the petitioner was also dismissed---After having lost the civil suit up to the appellate court petitioners filed Constitutional petition which was dismissed as withdrawn---Held, petitioners were well aware about the order of the Chairman but they filed revision petition before the Revisional Authority after a lapse of about 35 years, however, the limitation for challenging the order in revision petition was only 15 days but neither any explanation was furnished regarding such inordinate delay nor any application was filed for condonation of delay---Pursuing the matter at wrong forum due to ill advice of counsel could not be considered as a valid ground for condonation of delay---Moreover, Chairman Evacuee Trust Property Board, under S.8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, alone was competent to decide every/any controversy relating to an evacuee property attached to charitable, religious or educational trust/institution or otherwise and any order/proceeding before the Civil Court was coram non judice---Constitutional petition was dismissed, in circumstances.

Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468; Haji Moneer Ahmad v. Islamic Republic of Pakistan through Secretary Ministry of Religious and Minorities, Evacuee Trust Properties Board and Rehabilitation, Government of Pakistan and 3 others 2006 CLC 1263 and Khushi Muhammad through L.Rs. and another v. Mst. Fazal Bibi and others PLD 2016 SC 872 ref.

Ahmad and others v. Rana Mumtaz Ahmad and others 2016 SCMR 679 and Jehanzeb Khan and another v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad and 5 others 1999 MLD 2505 rel.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 10---Transfer of Property Act (IV of 1882), S. 41---Declaration of property as evacuee trust property---Validation of certain transfers---Transfer by ostensible owner---Scope---Settlement Department allotted a certain piece of land to the allottee who alienated part of it to four others---Assistant Administrator, Evacuee Trust Property, filed a reference under Ss. 8 & 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, for declaring the land in question as trust property as well as sought cancellation of allotment in favour of the allottee---Chairman, Evacuee Trust Property Board, passed impugned order declaring the land in question as trust property and also cancelled the allotment of the allottee as well as subsequent sale transactions---Revision petition under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, was also dismissed---Validity---Subsequent purchasers claimed to be bona fide purchasers of the land in question and sought protection of law---Subsequent purchaser admittedly had derived right from the alleged allottee and had stepped into the shoes of their vendor and were debarred to claim any independent better title than that of their vendor rather they had to soar and sink in same vessel with their vendor and any lacuna or flaw in the title of the vendor emerging after the transaction shall always travel with the property and the subsequent vendee had to suffer for non-holding diligent and stringent microscopic probe into the title of the vendor and had no right or claim against the respondent department, rather could trace their legal remedy against their vendors as such they had no protection under S.41 of the Transfer of Property Act, 1882---Constitutional petition was dismissed, in circumstances.

Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489 and Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 ref.

(d) Limitation---

----Tangible right accrues in favour of the adverse/rival party after lapse of the described period of limitation which cannot be mutilated on the shallow assertion of indolent party who, deliberately sleeps in deep slumber over the adverse order.

(e) Limitation---

----Period of limitation provided in special enactment takes preference over the provisions of general law of limitation.

Sikandar Hayat Khan Sial for Petitioners.

2022 C L C 200

[Lahore (Multan Bench)]

Before Muhammad Raza Qureshi and Shahid Jamil Khan, JJ

SHAHID ABBAS KHAN, SENIOR OFFICE ASSISTANT and 5 others----Appellants

Versus

GOVERNMENT OF PAKISTAN, through Ministry of Commerce, Islamabad and 16 others----Respondents

I.C.A. No.204 of 2017 in Writ Petition No.13921 of 2011, decided on 1st June, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Scope--- Factualcontroversy---Scope---Appellants assailed the dismissal of their Constitutional petition---Case of appellants hinged upon some allegations which could only be resolved through evidence after framing of issues---Respondents' side had totally denied the document relied upon by the appellants which could be proved through evidence only by a competent Court or forum---Illegalities as pointed out by the appellants in constitutional petition and the appeal were based on some allegations of facts---Constitutional jurisdiction was not meant to determine the disputed facts or to ascertain facts including interpretation of document when respondents' side was specifically denying the allegations---Even interpretation of the document under such circumstances could only be made by Court of plenary jurisdiction---Intra court appeal was dismissed.

(b) Constitution of Pakistan---

----Art.199---High Court (Lahore) Rules and Orders, Volume V, Chap. 4-J, R.6---Constitutional jurisdiction---Writ petition---Written statement---Counter-affidavit---Scope---Comments filed by respondent are only meant for the Court and not for the petitioner as he has to stand on his own legs to prove his case in the writ petition.

Muhammad Yafis Naveed Hashmi for Appellants.

Malik Muhammad Tariq Rajwana for Respondents Nos.2 to 7.

2022 C L C 233

[Lahore]

Before Raheel Kamran, J

EJAZ AHMAD BUTT----Petitioner

Versus

SAMREENA----Respondent

Writ Petition No.51108 of 2021, decided on 24th August, 2021.

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

----S.14---Appeal---Pecuniary jurisdiction---Scope---No provision in the Family Courts Act, 1964 exists for regulating or restricting jurisdiction of the Family Courts in terms of valuation of the subject matter involved in family suits---Provisions of appeal under S. 14 of the Family Courts Act, 1964, reaffirmed that no classification of jurisdiction on pecuniary basis is intended by the legislature for adjudication of matters relating to family affairs.

(b) Punjab Civil Courts Ordinance (II of 1962)---

----Ss.9 & 18---Pecuniary limits of jurisdiction of Civil Judge---Appeal from Civil Judge---Scope---Punjab Civil Courts Ordinance, 1962, governs the matters relating to civil court in the Province of the Punjab generally---Section 9 of the Ordinance postulates that the jurisdiction to be exercised in original civil suit as regards the value by any person appointed to be a civil judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit---Section 18(1) of the Ordinance provides for the remedy of an appeal before High Court or the District Judge against decree or order passed by Civil Judge on the basis of pecuniary limits specified therein.

(c) Interpretation of statutes---

----General and special law---Scope---Where there is a conflict between special law and general laws the former shall prevail.

Gulistan Textile Mills Limited v. Soneri Bank Limited PLD 2018 SC 322 and Syed Muhammad Shah v. Federal Investigation Agency 2017 SCMR 1218 ref.

(d) Constitution of Pakistan---

----Art.203---High Court to superintend subordinate courts---Scope---Article 203 of the Constitution provides that each High Court shall supervise and control all courts subordinate to it, this mandate not only empowers but also places a responsibility on the shoulders of the High Court to supervise and control all courts subordinate to it---Such control is exclusive in nature, comprehensive in extent and effective in operation.

Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341 and Sharaf Faridi v. Federation of Pakistan 1989 Kar. 404 ref.

2022 C L C 247

[Lahore]

Before Rasaal Hasan Syed, J

PAN ISLAMIC INDUSTRIES (PVT.) LTD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.21017 of 2021, decided on 25th June, 2021.

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

----Ss.15 & 19---Eviction of tenant---Expiry of lease---Ejectment petition filed by Trust/landlord through its Secretary---Company---Petitioner/tenant contended that ejectment petition was not maintainable for not having been filed by the Author of the Trust, Managing Trust or the Trustees---Held, that ejectment petition was filed by a Trust through its secretary; annexing with it, a copy of Deed of Trust as well as copy of the Resolution passed by the Board of Trustees---Said resolution was signed by both the company Author and Managing Trustee---Company Author was also the one who had executed the lease agreement on the behalf of the Trust by which the petitioner was inducted into premises as tenant---No dispute existed about the relationship of landlord and tenant between the parties--- Courts below had rightly observed that objection as to maintainability of ejectment petition on the plea of incompetency was untenable and was devoid of any substance and that the ejectment petition could be allowed on the ground of expiry of lease ---No illegality or infirmity was found in the impugned orders and judgments passed by both the Courts below ,allowing the ejectment petition filed by the respondent/landlord---Constitutional petition was dismissed, in circumstances.

Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472 and Messrs A.M. Industrial Corporation Limited v. Aijaz Mehmood and others 2006 SCMR 437 distinguished.

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

----S.19---Ejectment petition---Maintainability---Matter of indoor management---Scope---Ejectment petition filed by Trust/Landlord (landlords) through its Secretary---Tenant/company objected that the copy of the Resolution submitted by the respondent/Trust, entitling eviction petitioner to plead eviction, did not bear the date of issuance of the said document---Ejectment petition was concurrently allowed---Held, that if the objection of petitioner/tenant was deemed to be of any significance, then possibly the constitutional petition filed by the petitioner could be dismissed for the same reason as resolution passed in favour of the petitioner, annexed with constitutional petition, also did not bear date of its issuance---Matter of indoor management (of company) could not be raised by the third party---No illegality or infirmity was found in the impugned orders and judgments passed by both the Courts below ,allowing the ejectment petition filed by the respondent/landlord---Constitutional petition was dismissed, in circumstances.

Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472 ref.

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

----Ss.15 & 19---Eviction of tenant---Expiry of lease---Scope---Verbal extension of tenancy for unlimited period was asserted by the tenant---Held, that under S.15 of the Punjab Rented Premises Act, 2009 , the expiry of lease of agreement was in itself a ground for eviction of tenant---Plea of the petitioner/tenant of verbal extension of tenancy for unlimited period could not possibly be given credence ---Treating the ejectment petition as notice, in the circumstances, was permissible under the law---Both the Courts below had rightly allowed the eviction of the petitioner on ground of expiry of lease---Constitutional petition was dismissed, in circumstances.

Asad Ullah Jaral for Petitioner.

Syed Tassadaq Mustafa Naqvi and Syed Tassadaq Murtaza Naqvi for Respondent No.2.

2022 C L C 264

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD ZAHEER----Petitioner

Versus

ABDUL MAJEED----Respondent

Civil Revision No.33725 of 2019, decided on 8th September, 2021.

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

----O.XXXVII, R.2 & O.VII, R.10---Promissory note---Additional security of mortgage deed---Jurisdiction---Scope---Document showed that respondent unconditionally undertook to pay Rs.402000/- to the petitioner along with Rs.24000/- per month as profit/rent---Said document was duly signed by the respondent---Such document fulfilled the essentials of promissory note---Petitioner sought money decree on the basis of pro-note and not for recovery of amount by selling the mortgage property on the basis of mortgage deed---Mere fact that mortgage deed had been executed in addition to a promissory-note as an additional security in respect of the same loan amount would not exclude the summary jurisdiction of Court under O.XXXVII, R.2, C.P.C., for the enforcement of promissory note---Such fact would not render the suit liable to be returned under O.VII, R.10, C.P.C.---Civil revision was allowed accordingly.

Hatimbhai v. Karimbhai 1993 MLD 988 and Sindh Engineering and Bangle Works Hyderabad and others v. Habab Bank Ltd. PLD 1993 Karachi 38 rel.

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

----S.4---Promissory note---Essentials---Document would be regarded as promissory note if it fulfilled the requirements to the effect that (i) an unconditional undertaking to pay, (ii) the sum should be a sum of money and should be certain, (iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, (iv) and the maker should sign it.

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

----O.XXXVII, R.2---Promissory note---Additional security of mortgage deed---Jurisdiction---Scope---Reliance on additional supporting documentary material other than the promissory note would not take the suit out of the jurisdiction of Court under O.XXXVII of C.P.C.

Messrs Nagina Cotton Industries and others v. Cotton Export Corporation of Pakistan 1994 CLC 2281 ref.

Abdul Waheed Zaman Qureshi for Petitioner.

2022 C L C 294

[Lahore]

Before Abid Hussain Chattha, J

LAHORE DEVELOPMENT AUTHORITY through Director General----Appellant

Versus

HABIB CONSTRUCTION SERVICES LIMITED through Chief Executive----Respondent

F.A.O. No.52305 of 2019, decided on 1st September, 2021.

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

----S.20---Arbitration agreement---Court, intervention of---Purpose---Term 'sufficient cause'---Court underlines sanctity of an arbitration agreement and reinforces basic principle that where parties to an agreement have undertaken to resolve their inter se disputes through arbitration, the intention of parties ought to be respected and given effect---Provision of S.20 of Arbitration Act, 1940, fundamentally is limited to determination of existence of a real and alive dispute between the parties in a summary procedure---Court is only required to prima facie satisfy itself regarding existence of dispute measured with the yardstick of "sufficient cause".

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

----S.20---Arbitration---Duty of Court---Live issue, determination of---Respondent filed application before Trial Court to resolve the dispute by appointment of arbitrator---Appellant was aggrieved of appointment of arbitrator and direction issued by Trial Court to file arbitration agreement---Validity---Question as to whether dispute or claim raised by respondent was legitimate or not was to be determined through arbitration and dispute between parties fell within prerogative and domain of arbitrator---Mere bald and general denial by appellant by simply stating that no dispute existed did not mean that there was no dispute---Scope of S.20 of Arbitration Act, 1940, restricted Trial Court to give findings on issues emanating from agreement itself regarding which parties have agreed to resolve through arbitration---Court was only required to satisfy itself regarding existence of a real and alive dispute between the parties---Reference to arbitration could not be a futile exercise and Court could not blindly refer a non-existent dispute to arbitration but it was required to satisfy itself that there was a tangible prima facie dispute between parties which required resolution through arbitration as agreed by parties---Court was empowered to determine itself, if application under S.20 of Arbitration Act, 1940, was barred by time or not, such was not an issue before Trial Court---All controversies inter se parties fell within the ambit of arbitration under the contract between parties---High Court declined to interfere in the order passed by Trial Court as there existed no sufficient cause within the contemplation of S.20(4) of Arbitration Act, 1940, to refuse application filed under S.20 of Arbitration Act, 1940 and making order of reference to arbitrator---Appeal was dismissed, in circumstances.

Industrial Fabrication Company through M.D. v. Managing Director, Pak American Fertilizer Limited PLD 2015 SC 154; Pakistan Insulations (Pvt.) Ltd. v. Messrs Ranhill Engineers and Constructors DDFC Group of Companies through General Pakistan Operations Manager and 2 others 2009 CLD 1077; Modern Traders v. Province of Sindh through Secretary Works and Communication Sindh Sectt. Building, Karachi and 2 others 1985 MLD 402; Oil and Gas Development Company Ltd. v. Agha Muhammad and Brothers and others 2015 MLD 1821; Federation of Pakistan through D.G. National Training Bureau v. Messrs James Construction Company (Pvt.) Ltd. PLD 2018 Isl. 01; Messrs Abdul Rauf Muhammad Hanif (Pvt.) Ltd. through Chief Executive v. WAPDA through Chairman and another PLD 2007 Lah. 335; Muhammad Umar v. Yar Muhammad through Legal Heirs and others 2009 CLD 305; Mujtaba Hussain Siddiqui v. Sultan Ahmed 2005 YLR 2709; A.J. Corporation through Managing Partner v. Fauji Fertilizer Bin Qasim Limited through Chief Executive Officer 2013 CLD 636; Pakistan through Ministry of Defence v. Ch. Fazal Muhammad and others 2005 YLR 2896; Malik Muhammad Mumtaz v. Malik Abdul Rauf through Legal Heirs 2002 YLR 2238; Muhammad Abdul Latif Faruqi v. Nisar Ahmad and another PLD 1959 (W.P.) Karachi 465; Messrs Jamia Industries Ltd. v. Messrs Pakistan Refinery Ltd., Karachi PLD 1976 Kar. 644; Messrs Quality Builders Ltd. v. Messrs National Insurance Corporation, Karachi PLD 1994 Kar. 407 and Poineer Builders through Managing Partner v. Additional Deputy Commissioner (G) and 2 others PLD 2007 Lah. 280 ref.

Sahibzada Muzaffar Ali for Appellant.

Syed Tassadaq Mustafa Naqvi, Syed Tassadaq Murtaza Naqvi and Syed Ali Naqi for Respondents.

2022 C L C 312

[Lahore]

Before Sultan Tanvir Ahmad, J

IMRAN SAEED MALIK----Petitioner

Versus

APPELLATE AUTHORITY/CANTT. EXECUTIVE OFFICER and 3 others----Respondents

Writ Petition No.50075 of 2021, heard on 17th August, 2021.

Cantonment Ordinance (CXXXVII of 2002)---

----S.60(1)(i)---Cantonment Local Government (Election) Rules, 2015, R.17(5) & Form-IV---Nomination papers---Declaration of assets---Object, purpose and scope---Probe and inquiry---Petitioner was a candidate for election of Cantonment Board---Nomination papers of petitioner were rejected by Appellate Authority on the ground that he concealed one partnership deed in his assets declaration form---Validity---Requirement to file declaration of assets was to ensure that no dishonest person should be allowed to hold affairs of public of the given 'ward' or the area of cantonment---Object was to create a primary filter to ensure that no dishonest person or a person having such history or person likely to misuse his power for obtaining any personal or any undue benefit (based on dependable evidence) should be elected---No intention behind legislation to disqualify a person from exercising his right to contest election or to be elected on the basis of mere technicalities or an innocent mistake or omission to declare a property acquired through lawful means---Appellate Authority rejected nomination papers without proper probe and inquiry as well as without disclosing asset and income which had been concealed dishonestly---High Court set aside the order passed by Appellate Authority and restored that of Returning Officer accepting nomination papers as petitioner had no bad intent behind not mentioning of name of partnership in question in Form IV of nomination paper---Nothing was on record showing any benefit derived by petitioner from alleged mis-declaration---Constitutional petition was allowed accordingly.

Shamona Badshah Qaisarani v. Election Tribunal, Multan and others 2021 SCMR 988 and Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 70 rel.

Hassan Iqbal Warraich for Petitioner.

Ch. Zulfiqar Ali for Respondent No.2.

Mian Mureed Hussain and Naeem Sarwar Advocates/Legal Advisors with Ch. Umer Hayat, Director (Legal), Hafiz Adeel Ashraf and Hafiz Muhammad Bilal Azhar, Legal Assistants for Respondent No.4.

2022 C L C 327

[Lahore]

Before Muhammad Shan Gul, J

AYESHA----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, SIALKOT and others----Respondents

Writ Petition No.42051 of 2021, heard on 29th June, 2021.

Specific Relief Act (I of 1877)---

----Ss.39, 42 & 54---Civil Procedure Code (V of 1908), O.VI, R.17---Amendment of plaint---Principles---Suit for cancellation of Hiba (gift) Deed, declaration and injunction was filed by respondent/plaintiff regarding suit property---Respondent/plaintiff filed application to amend her plaint to include her prayer of restoration of possession on the plea that she was illegally dispossessed by petitioner/defendant from suit property---Lower Appellate Court allowed to respondent/plaintiff to amend her plaint---Validity---All rules of Civil Procedure Code, 1908, are geared towards securing proper administration of justice and were always to be interpreted with such aim and purpose--- Discretionary power conferred under O.VI, R.17, C.P.C. on a Court has to be only exercised in consonance with and in the light of judicial principles contained in judicial precedents--- Amendment in pleadings may be allowed where multiplicity of suits can be avoided; amendment does not alter subject matter of suit or cause of action of suit; does not take away any accrued right; plaintiff becomes entitled to further relief by reason of events subsequent to filing of suit; cause of action needs amplification; interest of safe and accurate administration of justice so requires; on account of plaintiff's evidence a new statutory line of defence gets triggered; no injustice is caused; and relief is inadvertently left out---Such list is not exhaustive but just to cataloguing instances where it would be in line with trite and established law to allow amendment in pleadings under O.VI, R.17, C.P.C.---High Court declined to interfere in the order passed by Lower Appellate Court---Constitutional petition was dismissed, in circumstances.

Syed Muhammad Ali and others v. Syed Dabir Ali and others 2016 SCMR 2164; Haji Sultan Majeed (Decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen and others 2018 SCMR 82; Karamat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Muhammad Mian v. Syed Shamimullah and 2 others 1995 SCMR 69; Muhammad Fayyaz v. Hafiz Liaqat Ali and 5 others 2020 CLC 1184; Syed Nazir Ali Rizvi v. Zahoor Ahmad and another PLD 2005 SC 787 and C.A. Waheed v. Aftab Ahmad Mian and another PLD 2006 Lah. 68 ref.

Mst. Sughran Bibi v. The State PLD 2018 SC 595; Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; GCHQ case 1985 AC 374 House of Lords and Wednesbury Corporation's case 1948 (1) KB 223 rel.

Wajid Ali Chishti for Petitioner.

Barrister Syed Ali Nouman, Assistant Advocate General for Respondent.

2022 C L C 349

[Lahore]

Before Asim Hafeez, J

Mian IMRAN SAEED and others----Petitioners

Versus

Mst. SALIMA BIBI and others----Respondents

C.M. No.7536 of 2021 in Civil Revision No.1108 of 2006, decided on 16th April, 2021.

Civil Procedure Code (V of 1908)---

----S.12(2)---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of agreement to sell--- Transfer of property during pendency of suit---Suit property was decreed by Trial Court in favour of the person from whom applicants purchased the property---Subsequently High Court in exercise of revisional jurisdiction reversed the findings and suit filed by respondent was decreed in his favour---Plea raised by applicants was that judgment in favour of respondent was result of fraud and misrepresentation---Validity---Applicants could not seek perfection of alleged right through attacking decree on the basis of executory or inchoate document, when sale deed was not executed by respondent---As long as agreement to sell was not cancelled upon judicial determination by way of decree of Court, alleged sale deed and agreement could extend no legal right to applicants against respondent or his legal heirs---Applicants were hit by provisions of S.52 of Transfer of Property Act, 1882, to the extent of alleged sale deed and agreement in their favour---No enforceable right in property was available against respondent, as applicants failed to seek enforcement of alleged representation against respondent or cancellation of agreement---High Court declined to determine legitimacy and effect of agreement while determining validity of decree in terms of S.12(2) C.P.C.--- Agreement in question could not be construed as surrender document, regarding rights of respondent--- Applicants lacked eligibility to challenge decree in terms of S.12(2), C.P.C., as no fraud, misrepresentation of jurisdictional defect was found to upset decree in question---Application was dismissed, in circumstances.

Sunni View Cooperative Housing Society v. Irshad Hussain and others 1993 CLC 2336; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Muhammad Aslam and others v. Mst. Kundan Mai and others 2004 SCMR 843; Haji Khalid Mahmood and 27 others v. Abdul Hamid and 10 others 2006 YLR 2311; Messrs Ark Garments Industry (Pvt.) Ltd. through Managing Director and 2 others v. National Bank of Pakistan 2013 CLD 1002; Muhammad Iqbal and others v. Khair Din through L.Rs and others 2014 SCMR 33 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

2022 C L C 364

[Lahore]

Before Ayesha A. Malik, J

KHAN CONSTRUCTION COMPANY through Partner/Attorney----Petitioner

Versus

PUNJAB PROVINCE through Secretary HUD and PHED Government of the Punjab, Lahore and 2 others----Respondents

Writ Petition No.61452 of 2021, heard on 8th October, 2021.

(a) Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----Ss.26 & 27---Punjab Procurement Rules, 2014, Rr.17, 38 & 67---Technical bid---Disqualification on pre-qualification---Petitioner being a registered contractor contended that his technical bid was rejected without specifying any reasons and without giving him an opportunity to improve upon its technical bid---Held, that tender notice clearly mentioned that procedure of single stage two envelope bidding would be followed consisting of the technical and financial proposals---Petitioner participated in the bid on 27/09/2021 and was informed on 30/09/2021 that its technical bid did not meet the criteria---Petitioner applied on 07/10/2021 for the reasons for rejection of its technical bid and was informed of the same on the same day---Petition was filed on 04/10/2021 and on 05/10/2021 the Petitioner stated that it did not know the reasons as to why its technical bid was rejected---Petitioner was well aware of the law/rules, filed its application and was communicated the reasons; yet in an attempt to have its financial bid considered, the petitioner misrepresented itself before High Court and misstated the facts to get an opportunity to have its financial bid considered despite its technically deficiency---Petitioner filed present petition at district "B" instead of District "A" and impleaded the Secretary, HUD and PHE Department, who was not relevant to the present dispute so that its petition should be fixed at "B"---Petitioner deliberately/with mala fide intent had misled the Court by insisting that due procedure was not followed whereas record showed that the procedure was followed---Remedy was before the Grievance Committee yet, by abusing the process of law, petitioner filed present Petition---Petitioner was directed to pay cost in the sum of Rs.50,000/- for wasting the time of the Court and abusing the process of the Court---Constitutional petition was dismissed accordingly.

(b) Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----Ss.26 & 27---Punjab Procurement Rules, 2014, R. 38---Technical bid---"Single stage" and "two stage bidding"---Distinction---Rule 38 of Punjab Procurement Rules, 2014, had given three methods to select a contractor, (i) single stage two envelope bidding; (ii) two stage bidding; or (iii) two stage two envelope bidding---Basic difference between "single stage two envelope bidding" and "two stage bidding" was that in the former procuring agent was clear about its technical requirements and needed to evaluate price proposal of those bidders who were technically sound and met the requirements; whereas in the latter process, the bidders could be given an opportunity to meet the technical requirements which were prescribed under the Punjab Procurement Rules, 2014, in terms of cls. (b) & (c) of R.38(2)---In the two stage process, there was room to improve/discuss technical requirements whereas in the single stage, the technical requirements were specific and needed to be met with.

Raiz Karim Qureshi and Farrukh Ilyas Cheema for Petitioner.

Akhtar Javed, Additional Advocate General, Punjab along with Sadam Hussain, Assistant Director in the office of Respondent No.2 and Jawad Kalim Ullah, XEN, Public Health Engineering Division, Multan for Respondents.

2022 C L C 379

[Lahore]

Before Raheel Kamran, J

PROVINCE OF PUNJAB and others----Petitioners

Versus

Mian GOHAR MUBASHAR HAMEED----Respondent

Civil Revision No.2838 of 2012, decided on 20th September, 2021.

(a) Stamp Act (II of 1899)---

----S.27-A---Stamp duty---Valuation Table, notification of---"Duly notified", meaning of---Respondent challenged the notice issued by the petitioners for recovery of a mount being the deficient stamp duty calculated on the basis of Valuation Table issued by the Collector---Suit dismissed by Trial Court---Appeal allowed---Petitioners (Authorities) contended that vires of the Valuation Table were not challenged in the suit on the ground of not being duly "notified"---Held, that demand of stamp duty through impugned notice was declared to be unlawful, because the petitioners (authorities) had not produced any concerned officer before Trial Court to prove that the Valuation Table was published in Official Gazette/newspaper or made known to public by beat of drum/affixation at some conspicuous place/offices of the Assistant Collectors, therefore, the same was not proved to have been duly notified on the relevant date to satisfy---At appellate stage, no application for additional evidence was filed by petitioners as to establish that Valuation Table was duly notified on relevant date---Revision petition was dismissed accordingly.

(b) Stamp Act (II of 1899)---

----S.27-A---Valuation Table, notification of---Commencement of effect---Principle---Mandatory requirement for effectiveness / applicability of Valuation Table determining the value of properties situated in the concerned locality that it must be "notified" by the District Collector---Effect of the Valuation Table had been judicially recognized to commence from the date when it was duly "notified" i.e. published in the Official Gazette.

Mubarak Ahmad v. Sub-Registrar, District Courts, Faisalabad 1993 CLC 1666; Abdul Sattar v. Province of the Punjab and others 1995 CLC 187; Mubarak Ahmad v. Sub-Registrar, District Courts, Faisalabad 1993 CLC 1666; Province of Punjab v. Messrs Marhaba Dawakhana 1999 CLC 450; Muhammad Suleman Khan v. D.C./Registrar, Lahore District 2002 CLC 226 and Allah Ditta v. Amjad Saeed PLD 2009 Lah 440 ref.

(c) Stamp Act (II of 1899)---

----S.27-A---Valuation of property, fixation of---Term "notify"---Connotation---Term "notify" meant to give notice, proclaim or publish in any recognized manner.

Karachi Metropolitan Corporation v. Messrs S.N.H. Industries (Pvt.) Ltd. 1997 SCMR 1228 ref.

(d) Stamp Act (II of 1899)---

----S.27-A---Stamp duty---Valuation of property, fixation of---Discretion of parties---Scope---By insertion of S.27-A in Stamp Act, 1899, discretion of parties in fixing the valuation of property for the purpose of payment of stamp duty has been taken away.

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

----O.XIV, R.1---Stamp duty---Valuation Table, notification of---Framing of issues---Petitioners contended that no issue regarding vires of Valuation Table was framed on which the appellate court recorded its findings---Held, that no specific issue was framed on whether the Valuation Table was duly notified, if so, on which date but another issue framed by the Trial Court was comprehensive enough to allow the Courts to give their respective findings on validity or otherwise of the notice---Framing/non-framing of an issue could not be a ground for reversing the judgment/decree of any court when the same did not cause prejudice to the case of a party.

Muhammad Ibrahim v. Taza Gul and others 2020 SCMR 2033; Abdul Karim v. Haji Noor Badshah 2012 SCMR 212; Sh. Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460 and The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82 ref.

Zafar Rahim Sukhera, Assistant Advocate General, Punjab for Petitioner.

The Respondent was proceeded against ex parte, vide order dated 13-2-2017.

2022 C L C 391

[Lahore]

Before Raheel Kamran, J

QAISER-UR-REHMAN----Petitioner

Versus

CIVIL JUDGE and another----Respondents

Writ Petition No.3646 of 2021, decided on 12th November, 2021.

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

----Ss.8 & 9---Constitutional petition---Date of hearing to be carefully noted---Suit for dissolution of marriage, dowry articles, maintenance---Right of petitioner/defendant to file written statement was closed by Family Court---Contention that petitioner failed to appear before Court on account of misunderstanding regarding date of hearing---Held, that Family Courts had been established for expeditious settlement/disposal of disputes relating to marriage/family affairs---Petitioner failed to appear on date of hearing but appeared more than 20 days after the date fixed in person and sought adjournment---Petitioner failed to submit written statement on due date was given final opportunity subject to costs---Presiding Officer, on next two dates was on leave---Finally petitioner's right was struck off---Opportunities/maximum statutory period was mechanically extended by Family Court in petitioner's favour without even recording sufficient reasons---Petitioner/his counsel had no lawful excuse for their negligence/indolence in noting down actual date of hearing and filing the written statement---Allowing the Constitutional petition would defeat the very purpose/object of Family Court Act, 1964 (i.e. expeditious settlement/disposal)---Constitutional petition was dismissed in limine.

(b) Constitution of Pakistan---

----Art.10A---Family Courts Act (XXXV of 1964), Ss. 8 & 9---Opportunity to file written statement---Scope---Right to fair trial only guarantees a fair opportunity to a defendant to defend himself in a trial for the determination of his civil rights/obligations---Requirement of fairness under Art. 10A does not warrant grant of numerous opportunities and several months to file written statement that too in disputes relating to marriage/family affairs.

2022 C L C 404

[Lahore]

Before Muhammad Ameer Bhatti, CJ

GHULAM ULLAH Deceased through L.Rs.----Petitioner

Versus

GHULAM HASSAN and others----Respondents

Civil Revision No.3788 of 2016 and C.Ms. Nos.1-C, 2-C of 2021, decided on 3rd November, 2021.

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

----S.12(2)---Constitution of Pakistan, Art.10A---Decree on basis of compromise---Application of petitioner for setting aside decree on basis of fraud was dismissed by appellate/decreeing Court without framing issues/recording evidence---Power of attorney on behalf of petitioner/applicant was available on record---Petitioner's contention that he never appointed the attorney as counsel nor any power of attorney was executed in his favour; that alleged power of attorney did not reflect any sign/stamp; and that petitioner/applicant was not given opportunity of hearing---Validity---Application under S.12(2) of Civil Procedure Code needed framing of issues and recording of evidence---Application elaborated that counsel who agreed to appoint referee for obtaining his decision regarding dispute pending before Court and consequential decree on basis of the same decision of referee was without their consent---Statement of such counsel was without any lawful authority---For determination of such fraud/misrepresentation framing of issue and recording of evidence were essential/obligatory for providing opportunity to the parties to prove the factual dispute---Revision petition was accepted and case was remanded for re-adjudication after framing issues and recording evidence.

Muhammad Altaf v. District Judge and 3 others 2016 YLR 1191; Lahore Development Authority through Director General v. Arif Manzoor Qureshi and others 2006 SCMR 1530; Farida Zafar Zehri and others v. Feroza Khanum and others 2007 SCMR 726; Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 and Warraich Zarai Corporation v. FMC United (Pvt.) Ltd. 2006 SCMR 531 rel.

(b) Constitution of Pakistan---

----Art.10A---Right of hearing of a party to lis was one of the fundamental principles of jurisprudence which is guaranteed by Art.10A of the Constitution in its assurance of a "fair trial and due process" to a litigant.

Altaf Ibrahim Qureshi and another v. Aalmlog Ittehad and others PLD 2019 SC 745; Naseer Khan v. Said Qadeem and others 2020 SCMR 293; Mrs. Shagufta Shaheen and others v. The State through D.G. NAB, Khyber Pakhtunkhwa and another 2019 SCMR 1106 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

Muhammad Mumtaz Faridi, Qamar Hayat, Waheed Ashraf Bhatti, Kashif Bashir and Zahir Abbas for Petitioners.

Azmeer Javed Syed for Respondents.

2022 C L C 414

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

Malik ALLAH DITTA and others----Appellants

Versus

MEMBER BOARD OF REVENUE/(JUDICIAL-V)/ CHIEF SETTLEMENT COMMISSIONER/NOTIFIED OFFICER, PUNJAB, LAHORE and another----Respondents

I.C.A. No.761 of 2014 in Writ Petition No.23-R of 2010, heard on 21st October, 2021.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3---Transfer of State land--- Private treaty--- Transfer of land in question was settled between private parties through a settlement and on the basis of such private treaty, Settlement Authorities demanded price of land at prevalent market value---Appellants were aggrieved of price demanded by authorities---Validity---Land in question was a public property and Courts of law were custodian of public properties and public interest---While dealing with matters related to such properties and interests, it was duty of Courts to be very careful and cautious and assure itself to the extent of certainty that no foul / mischief was played with State assets---Extraordinary obligation was placed upon Constitutional Courts to keep abreast itself with law and facts of the case and when certain material facts unearthed before it then the matter should be decided as per law even without influenced by respective pleadings of parties---Appellants did not fulfil criteria prescribed in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, as well as the Scheme for grant of offer to them for sale of land in question---Findings of Chief Settlement Commissioner recorded and findings contained in judgment passed by Single Judge of High Court, whereby appellants / illegal occupants were allowed to purchase land in question at market price was against the law and was set aside---Division Bench of High Court directed Chief Settlement Commissioner to retrieve possession of land in question from appellants/illegal occupants, impose penal rent / TAWAN upon them since the date of their illegal possession till retrieval of the same---Division Bench of High Court further directed the authorities to dispose of land in question through unrestricted open public auction---Intra Court Appeal was dismissed accordingly.

Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others 1997 SCMR 1635; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Muhammad Sharif v. Settlement Commissioner and others 2007 SCMR 707; Iffat Jabeen v. District Education Officer (M.E.E), Lahore and another 2011 SCMR 437 and Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf and others 2021 SCMR 1509 ref.

Saif-ul-Haq Ziay for Appellants.

Raja Muhammad Arif, Additional Advocate General for Respondents.

2022 C L C 433

[Lahore]

Before Muhammad Ameer Bhatti, CJ

Mst. KHANAI and 4 others----Petitioners

Versus

GHULAM RASOOL and 9 others----Respondents

Civil Revision No.2374 of 2012, heard on 17th November, 2021.

Specific Relief Act (I of 1877)---

----Ss.2 & 54---Punjab Land Revenue Act (XVII of 1967), S.42---Punjab Land Revenue Rules, 1968, R.34---Suit for declaration and injunction---Oral gift---Proof---Suit was filed by respondent/ plaintiff assailed mutation of gift made in favour of petitioners/ defendants on the plea of fraud---Trial Court dismissed the suit filed but Lower Appellate Court decreed the same against petitioners/ defendants---Validity---Roznamcha Waqiati was the first document wherein fact of acquiring any right and ownership in immovable property through any mode, including of gift, was ought to be recorded as per statutory command of S.42 of Punjab Land Revenue Act, 1967 and R.34 of Punjab Land Revenue Rules, 1968---If any person had acquired ownership through gift in land of an estate, then that person was required to prove that his / her claim was duly brought before Patwari to be recorded in Roznamcha for subsequent entry of mutation and sanctioning thereof and then its ultimate incorporation in Periodical Records of such estate, failure would jeopardize his/ her claim and would make it non est---Petitioners/ defendants did not plead with particulars relating to performance of gift in their written statement which was sine qua non and silence of record about performance of three essential ingredients of gift besides omission of its date, time and place, had made the transaction non est---Missing of all such essential ingredients from written statement along with date, time and place of performance was enough to annul transaction/ mutation---No party to lis could be allowed to lead evidence beyond pleadings nor could it be read in evidence---No such evidence was produced by petitioners/ defendants to prove that essential ingredients for a valid gift were performed/ fulfilled---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as neither any illegality nor irregularity was committed even findings were also not perverse and were recorded in conformity with law as well as evidence available on record---Revision was dismissed, in circumstances.

Peer Baksh through LTs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Ghulam Mustafa through LRs. and others v. Muhammad Yahya and others 2013 SCMR 684; Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582; Sheikh Rauf Ahmad v. Dr. Nazir Saeed, Member (Judicial-V), Board of Revenue 2020 YLR Note 52; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others 2021 SCMR 73; Muhammad Shafi and others v. Sultan Mahmood and others 2010 SCMR 827 and Muhammad Hassan v. Khawaja Khalil-ur-Rehman 2007 SCMR 576 ref.

Fayyaz Ahmad Kaleem and Waheed Ashraf Bhatti for Petitioners.

Muhammad Ashraf for Respondents.

2022 C L C 463

[Lahore]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

JAMSHED IQBAL CHEEMA----Petitioner

Versus

The ELECTION APPELLATE TRIBUNAL and 19 others----Respondents

Writ Petition No.70103 of 2021, heard on 16th November, 2021.

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

----Ss.2(xli), 27 & 60---Constitution of Pakistan, Art.199---Constitutional petition---Enrollment in electoral roll---Pre-conditions---Nomination papers of petitioner/candidate were rejected by Returning Officer as well as Election Appellate Tribunal on the ground that name of proposer was not included in electoral roll of the constituency---Validity---Enrollment in electoral roll was basic and fundamental requirement for a person to be a voter of a particular electoral area---Mere residing in an area or having a temporary or permanent residence in any part of electoral area of a constituency was not a determinative factor to term a person as voter within the meaning of Elections Act, 2017---Provisions relating to proposer and seconder of a candidate in Elections Act, 2017, were mandatory in nature and any defect in respect thereof in nomination, was a defect of substantial nature, and the same could not be cured at subsequent stage and nomination papers invalid on such account could not be allowed to be validated afterwards in exercise of powers either by Returning Officer or even by Appellate Tribunal---High Court declined to interfere in the orders passed by Election forums below---Constitutional petition was dismissed, in circumstances.

Nadeem Shafi v. Tariq Shuja Butt and others PLD 2016 SC 944; Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277; Rao Muhammad Sarwar v. Returning Officer, PP-77, Sargodha and another (W.P. No.221907 of 2018); Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; The Collector of Sales Tax, Gujranwala v. Messrs Super Asia Mohammad Din & Sons 2017 SCMR 1427; Zia ur Rehman v. Syed Ahmed Hussain 2014 SCMR 1015; Hakim Ali v. Muhammad Salim 1992 SCMR 46; Mudassar Qayyum Nahra v. Election Tribunal, Punjab, Lahore and 10 others 2003 MLD 1089 and Hafiz Muhammad Abbas v. Retruning Officer and 16 others 1993 MLD 2509 rel.

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

----S.62(6)---Electoral roll, correctness of---Returning Officer---Jurisdiction---Such is beyond the competence of Returning Officer to go into the question of correctness or validity of any entry in electoral roll---Such is defined function of Registration Officer under superintendence and command of Election Commission.

(c) Interpretation of statutes---

----Preamble---Scope---Preamble to a statute is though not an operational part of enactment but it is a gateway, which opens before Court the purpose and intent of the Legislature, which necessitated legislation on the subject--- Preamble also sheds clear light on the goals which the Legislator aimed to secure through introduction of such law---Preamble of a statute holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

(d) Interpretation of statutes---

----Proviso---Scope---Proviso added to an enactment to qualify or create an exception to what is in the enactment---Ordinarily, a proviso is not interpreted as stating a general rule--- Proviso which is inserted to remedy unintended consequences and to make provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a whole.

Pakistan Match Industries (Pvt.) Ltd. and others v. Assistant Collector, Sales Tax and Central Excise Mardan and others 2019 SCMR 906 and Collector of Customs Appraisement, Collectorate, Customs House, Karachi v. Messrs Gul Rehman, Proprietor Messrs G. Kin Enterprises, Ghazali Street, Nasir Road, Sialkot 2017 SCMR 339 rel.

(e) Interpretation of statutes---

----Legislature, intention of---Scope---Interpretation that where intention of the Legislature is clear and the object for which law has been enacted, Courts are not allowed to interpret such a law in a manner which could impede or defeat the object for which such law has been enacted.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; R V. Venkataswami Naidu v. Narasram AIR 1966 SC 361; Tehsildar Singh v. State of U.P. AIR 1959 SC 1012, 1022; Gurmej Singh v. Partab Singh AIR 1960 SC 122, 124 and State of Bihar v. Hiralal AIR 1960 SC 47, 50 rel.

Mubeen Uddin Qazi, Advocate Supreme Court along with Rana Abdul Shakoor, Ch. Tahir Mahmood, Rana Mushtaq Ahmad Toor, Muhammad Azam Chaudhry and Ahmad Sardar Khan for Petitioner.

Mohammad Ahmad Qayyum, Advocate Supreme Court along with Shumail Arif, Advocate for the Respondent No.3.

Barrister Ahmad Pervaiz, Advocate for the Respondent No.13.

Imran Arif Ranjha, Legal Advisor, Ch. Umer Hayat, Director Legal, Hafiz Adeel Ashraf, Hafiz Muhammad Bilal Azhar, Legal Assistants, Election Commission of Pakistan.

Ashtar Ausaf, Barrister Zargham Lukhesar and Waqar Saeed Khan, Assistant Advocates General.

2022 C L C 492

[Lahore]

Before Ahmad Nadeem Arshad, J

SADIQ RASHEED and another----Petitioners

Versus

Mst. UZMA RIZWAN and 10 others----Respondents

Civil Revision No.1242 of 2019, decided on 27th September, 2021.

(a) Benami Transactions (Prohibition) Act (V of 2017)---

----S.43---Civil Procedure Code (V of 1908), S. 9---Civil Court, jurisdiction of---Ousting clause---Applicability---Respondent/plaintiff filed three suits for declaration alleging that suit property belonged to her predecessor and defendants were only Benami owners, which were rejected by Trial Court on ground of being barred by law---Respondent's appeals were allowed by appellate Court---Held, that respondent neither impugned any proceedings initiated/conducted by the authorities under the Benami Transactions Act, 2017, nor claimed any other relief regarding such acts/deeds and no act of authority/tribunal had been challenged, therefore, S.43 of the Act, 2017 was not applicable---Property in dispute was not an un-attended/title-less property---Same had been duly registered in the office of Sub-Registrar---Exclusive jurisdiction vested in the Civil Courts to decide the title/ownership of such property after recording of evidence of parties---Benami Transactions (Prohibition) Act, 2017, was not applicable in the present case---All three revision petitions were accordingly dismissed.

(b) Benami Transactions (Prohibition) Act (V of 2017) ---

----Preamble and S. 22---Object and scope---If a property was purchased in the name of a person who according to his social status was unable to have purchased any property by his own means, if such property was found in his name then the Benami Transaction (Prohibition) Act, 2017, would come into play and would act upon the procedure under S.22 of the Act; such property would be considered as "Benami property" and would be subjected to confiscation in favour of the State.

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

----S.9---Civil Court, exclusive jurisdiction of---Civil Courts had the exclusive/ultimate jurisdiction to declare the rights, title and status of a person/property.

Imran Shahzad Bhatti for Petitioners.

Muhammad Suleman Bhatti, Syed Tajamal Hussain Bukhari, Bilal Amin and Malik Nazir Hussain for Respondents.

2022 C L C 507

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD ASHRAF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.1395 of 2021, decided on 29th January, 2021.

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

----Ss.17-A & 14---Suit for maintenance---Interim maintenance, fixation of---Appeal---Scope---When application for fixing interim maintenance allowance is dismissed, the same attains finality at least to the extent of claim of interim maintenance allowance during the pendency of the suit, consequently, the affected party, may agitate the matter before the Appellate Authority by filing appeal against the decision given on his/her application in terms of S.14 of the Family Courts Act, 1964.

Nusrat Bibi and another v. Zeeshan Ahmad and another PLD 2019 Lah. 226 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---High Court in its constitutional jurisdiction can refuse to interfere in the impugned order even if it is passed without jurisdiction but tends to further the cause of justice.

Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859; Messrs Norwich Union Fire Insurance Society Limited v Muhammad Javed Iqbal and another 1986 SCMR 1071 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

2022 C L C 513

[Lahore]

Before Muhammad Ameer Bhatti, CJ Mst. NAHEED SHAHID and others----Petitioner

Versus

MUHAMMAD TARIQ----Respondent

Civil Revision No.234103 of 2018, heard on 8th September, 2021.

Civil Procedure Code (V of 1908)---

---O.XXXIX, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Gift deed---Allegation of forgery---Suit for declaration, cancellation, partition, mesne profit and permanent injunction---Application for temporary injunction was rejected by Trial Court---Appeal was dismissed---Held, that question of limitation being a mixed question of fact and law would be determined by the Trial Court after recording evidence at the time of final adjudication---In case of denial by plaintiff in witness box, onus would be on respondent to prove gift deed coupled with the circumstances warranting exclusion of the petitioners from inheritance---Beneficiary was under legal obligation to prove the validity of the transaction particularly where females had been deprived from their legitimate rights of inheritance through gift deed---Petitioners would suffer irreparable loss if disputed property was further transferred by respondent and in such eventuality they would face inconvenience for multiplicity of litigation---Arguable case, apprehension of irreparable loss and balance of inconvenience existed in favour of the petitioner---Revision petition was accepted accordingly.

Mian Asghar Ali, Muhammad Rehan Sarwar and Rana M. Afzal Razzaq Khan for Petitioners.

Syed Muhammad Kalik Khurshid, Ch. Hafeez-ur-Rehman, Fazal Abi Akbar and Muhammad Sohail Anjum for Respondents.

2022 C L C 532

[Lahore]

Before Jawad Hassan, J

MUHAMMAD AZAM----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Writ Petition No.53173 of 2021, decided on 7th September, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Judicial restraint---Policy decision by Government---Interim relief---Scope---Petitioner filed constitutional petition challenging the action of the respondents in taking over the land situated at old Walton Airport (Lahore) owned by Civil Aviation Authority (CAA) in an illegal manner---Validity---In the absence of any glaring illegality or violation of fundamental rights, it was imperative that the Courts should exercise judicial restraint from passing any adverse order, which could potentially hinder or nullify any government initiative to encourage and promote the investment process because judicial restraint encouraged the judges to exercise their powers with restraint and wisdom and limit the exercise of their own powers while intervening in the matters relating to policy of the government having financial perspective and outcome and exercise---High Court observed that without there being any obvious illegality and deviation from law, any interference by the Court within the purview of Art.199 of the Constitution would badly hamper the initiatives to enhance business activities and would put the whole scheme of actions for promotion of business and trade for the public, a fundamental right provided under Art.18 of the Constitution, to a standstill---Under Art.199 of the Constitution, High Court was though competent to exercise power of judicial review to examine administrative actions from the touchstone of violation of law and breach of Constitution yet the power of judicial review was regulated by the principles of Judicial Restraint---Interim relief, in writ petition, could only be granted as per mandate of Art.199(4) of the Constitution where it was clearly stated that under writ jurisdiction, before making an interim order, the Court had to look into the public interest which should not be harmed/hampered in any manner, therefore, keeping in view the fact that the petitioner had failed to make out a prima facie case in his favour and balance of convenience was not tilted in favour for grant of interim relief---Application for grant of interim relief was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Judicial restraint---Scope---Scope, purpose and limit of the judicial restraint asserts and advocates that the judges should hesitate to strike down laws unless they are obviously unconstitutional.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and Human Rights Case No.14392 of 2013 2014 SCMR 220 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Judicial review---Judicial restraint---Scope---While using powers under Art.199 of the Constitution relating to a policy of the Government with financial layout and implications, the Court exercise the power of judicial review with judicial restraint as a substantive approach to interfere in such matters within the contemplation of judicial review while exercising constitutional jurisdiction.

Waqar A. Sheikh, Advocate Supreme Court assisted by Rafay Alam for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General, Punjab (on Court's call).

Ms. Sadia Malik, Assistant Attorney General for Federation of Pakistan (on Court's call).

2022 C L C 547

[Lahore]

Before Shahid Bilal Hassan, J

ARSHAD ALTAF TAHIR and others----Petitioners

Versus

TARIQ MAHMOOD HASHMI (DECEASED) through L.Rs. and others----Respondents

Civil Revision No.155 of 2009, decided on 8th November, 2021.

Civil Procedure Code (V of 1908)---

----S.115 & O.XLI, R.23---Revision---Remand of case by Appellate Court---Scope---Petitioners assailed order passed by Appellate Court whereby case was remanded to the Trial Court---Validity---Appellate Court had rightly pointed out the questions with regards to non-discussion of evidence produced by a respondent with regard to his agreement to sell---Trial Court had partially decreed the suit but had not considered and addressed the question of prior agreement to sell---No illegality or irregularity was apparent in the impugned judgment warranting interference by the High Court in exercise of its revisional jurisdiction---Revision petition was dismissed.

Doctor Imran Manzoor and another v. Mst. Nighat Bahar Khanum and 10 others 2015 CLC 1428 rel.

Abdul Hameed Chaudhry for Petitioners.

2022 C L C 563

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ALTAF HUSSAIN and others----Petitioners

Versus

Mst. SABAN and others----Respondents

R.S.A. No.264 of 2010, heard on 25th May, 2021.

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

----O.VII, R.1---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Pleadings---Proof---Onus to prove---Plaintiff, in order to succeed, has to stand on his own legs---Imperative for plaintiff to prove his case independently and without merely getting any support or flaws/lapses, if any, of his adversary.

Amir Ullah Khan and another v. Muhammad Akram 2004 YLR 709 and Fazal Khan v. Mukaram Khan and others 2007 CLC 894 rel.

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

----S.3 Arts.113 & 120---Specific Relief Act (I of 1877), Ss. 42 & 54---Limitation, determination of---Jurisdiction of Court---Respondent-plaintiff filed suit for declaration and injunction in which he claimed to be owner in possession of suit land on the basis of an agreement to sell---Suit filed by respondent-plaintiff was dismissed by Trial Court but Lower Appellate Court decreed the same in his favour---Validity---Lower Appellate Court failed to consider that on the basis of some agreement, suit for declaration was not maintainable---To seek decree for its specific performance, period of only three years per Art.113 of Limitation Act, 1908, was available to institute the suit---Agreement in question was settled on 22-3-1995 and suit for specific performance on its strength could be filed till 21-3-1998, whereas while stretching it to accord decree for declaration Court was bound to satisfy that suit per Art. 120 of Limitation Act, 1908, was instituted within six years--- Suit was filed on 22-04-2002 after more than seven years and Lower Appellate Court did not attend such aspect--- As per mandate of S. 3 of Limitation Act, 1908, Lower Appellate Court was under obligation to scrutinize the plaint, application and appeal on the point of limitation regardless of the fact that the point of limitation was agitated by either party or not--- High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed, in circumstances.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 Pesh. 81; Niaz Rasool through Muhammad Bilal v. Mst. Perveen Ikram and others 2013 SCMR 397; Naveed Akram v. Muhammad Anwar 2019 SCMR 1095; Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193; "Muhammad Zakaria v. Bashier Ahmad 2001 CLC 595 and Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641 ref.

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

----S.3---Limitation---Object, purpose and scope--- Limitation is not merely a technicality, rather Limitation Act, 1908 furnishes certainty and regularity to human affairs, matters and dealings--- Law helps vigilant and not the indolent--- Delay of each and everyday has to be explained satisfactorily, otherwise delay cannot and should not be condoned.

Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others 2006 SCMR 630; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Muhammad Islam v. Inspector General of Police, Islamabad and others 2011 SCMR 8 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 rel.

Akhtar Masood Khan Awais and Khan Talib Hussain Baloch for Appellant.

Nemo. for Respondents.

2022 C L C 577

[Lahore]

Before Ch. Muhammad Iqbal, J

ARIF CHAUDHRY, ADVOCATE SUPREME COURT----Appellant

Versus

STATE LIFE INSURANCE CORPORATION through Chairman and 2 others----Respondent

R.F.A. No.36280 of 2019, heard on 19th December, 2019.

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

----O.VI, R.2---Qanun-e-Shahadat (10 of 1984), Arts. 49, 74, 76, 117 & 118---Appellant obtained loan of Rs.3,00,000/- during pendency of State Life Insurance Policy on 12-09-2000---Appellant allegedly paid Rs.2,00,000/- in June, 2003 and Rs.1,50,000/- to Area Manager of the Respondent Company---Appellant further deposited five consequent instalments---On 19-01-2006 appellant was informed that his policy had been auto surrendered on 30-3-2003 and amount of Rs.5,42,100/- with markup was outstanding against him---Insurance Tribunal dismissed the suit of appellant---High Court allowed appeal and remanded case to District Court---District Court dismissed the suit---Validity---Onus to prove the factum of payment lay on the appellant/plaintiff---Plaintiff did not disclose in his plaint the exact date, time, place and names of the witnesses in whose presence alleged payments were made---Facts deposed by witnesses were not written in plaint hence, could not be considered/discussed and ought to be ignored while deciding the lis---Photocopy of receipt was submitted without explaining the original---Admittedly, Area Manager was not authorised to receive any amount on behalf of State Life Insurance Corporation---Respondent produced the statement of appellant's account which showed Rs.10,48,424/- due against appellant and presumption of truth was attached to the said document--­-Appeal was dismissed accordingly.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914 and Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730 rel.

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

----Arts.75 & 76---Photocopy per se was not admissible in evidence under the law until/unless permission for adducing the secondary evidence was obtained from the court---If any photocopy was available on the record without the permission of the court that could not be considered as a valid piece of evidence.

Province of Punjab through Collector Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172 and Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 ref.

Syed Khurshid Anwar Rizvi for Appellant.

Syed Waqar Hussain Naqvi and Ashiq Hussain Hanjra for Respondent.

2022 C L C 608

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

ABDUL GHAFOOR----Petitioner

Versus

PROVINCE OF THE PUNJAB and others----Respondents

Civil Revision No.219-D of 2005, decided on 27th September, 2021.

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

----S. 11---Res judicata---Order of dismissal in limine, finality of---Suit for declaration and permanent injunction---Two rounds of concurrent dismissal on ground of res judicata---Petitioner's contentions were that the suit property was allotted to him by drawing lot on 24/05/1971 by the Assistant Commissioner under 15 Years Lease Scheme; that Constitutional petition was dismissed in limine without discussing/giving findings on facts; that the principle of res judicata was not attracted---Validity---Respondent's review petition against said allotment was accepted by Member Board of Revenue on 10/04/1975---Petitioner challenged the same through Constitutional petition which was dismissed in limine on 21/11/1975---Order of High Court was not challenged further and the same had attained finality---Petitioner challenged order dated 10/04/1975 through the suit, which was concurrently dismissed on ground of res judicata---Order of High Court dated 21/11/1975 was final, binding on sub ordinate courts and the same could not be re-agitated before Civil Court---Contention that order in limine would not operate as res judicata carried no weight---Said order of the High Court was in constitutional petition and not in a suit, therefore S.11 of Civil Procedure Code, 1908 did not apply; but general principles of res judicata would apply---One should not be vexed twice by one/same cause---Review was allowed and allotment was cancelled mainly on the ground that alleged allotment was made after ceaser of the scheme---No illegality, irregularity and mis-reading/non-reading of evidence was found on the part of lower Courts---Revision petition was dismissed accordingly.

Muhammad Chiragh-Ud-Din Bhatti v. The Province of West Pakistan (Now Punjab) through Collectors, Bahawalpur and 2 others 1971 SCMR 447; Sher Muhammad v. Province of Punjab through District Collector, Vehari and 2 others 1998 SCMR 2636; Muhammad Shafi and another v. Muhammad Bakhsh and another PLD 1971 Lah. 148; Abdul Majid v. Abdul Ghafoor Khan PLD 1982 SC 146; Mst. Rabia Bibi and others v. Fateh Muhammad through Legal Heirs 1994 CLC 1151 and Mukhtar Ali Khan and 2 others v. Government Of Pakistan through Secretary, Ministry of Rehabilitation and Works Islamabad 1993 CLC 1239 rel.

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

----Ss.11 & 151---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Res judicata, applicability of----Even if S.11 of Civil Procedure Code, 1908 was not applicable in support of the plea of res judicata against re-agitating the matter afresh by a civil suit which had been put at rest by a judgment of High Court passed in Constitutional jurisdiction, general principles of res judicata would clearly attract to debar a party from the same---Courts always had inherent power to prevent abuse of their process.

Muhammad Akhtar and others v. Abdul Hadie and 1981 SCMR 878 rel.

(c) Administration of justice---

----No one should be vexed twice for the same cause---Principle---Two reasons have always been assigned to the said principle: firstly, public policy; and secondly, hardship on the individual.

Syed Muhammad Ali Gillani for Petitioner.

Khush Bakhat Khan, Assistant Advocate-General of Punjab for Respondents.

Nemo for private respondents (proceeded against ex parte vide order dated 19-1-2017).

2022 C L C 634

[Lahore (Rawalpindi Bench)]

Before Reheel Kamran, J

SAFEER AHMAD----Petitioner

Versus

Mst. GULSHAN BIBI and others----Respondents

Writ Petition No.3392 of 2021, decided on 26th January, 2021.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Scope---Petitioner/husband assailed award of maintenance allowance to the respondent/wife on the ground that she herself had left his house of her own volition---Validity---Respondent levelled allegations of bad and disrespectful behaviour on part of the petitioner towards her and she deposed in her evidence that on account of torture inflicted by the petitioner upon asking for maintenance, she had left the house of the petitioner and to that extent her testimony was not discredited in cross-examination by the petitioner---Respondent had left the house of the petitioner under compelling circumstances to reside with her parents and the petitioner could not prove any attempt on his part to reconcile with her---Defence witnesses had admitted the date of desertion as well as the fact that the petitioner had not paid any amount of maintenance from the said date till dissolution of the marriage---Decree for maintenance was rightly passed in favour of the respondent---Constitutional petition was dismissed, in circumstances.

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

----Ss.5, 10(5) & 10(6)---Suit for dissolution of marriage on basis of Khula---Return of dower---Scope---No legal requirement exists in a suit for dissolution of marriage to restore to the husband the Haq Mehar received by wife in consideration of marriage at the time of Nikah---In terms of S. 10(5) of the Family Courts Act, 1964 the surrender of dower by wife in a case of dissolution of marriage through khula is no more mandatory or a matter of course rather it is discretionary---Such surrender is not automatic but depends upon direction of the Family Court---Surrender by the wife under S. 10(5) is only a part of the dower and not the whole of it---Scope of discretion of the Family Court in this regard covers not only whether or not to direct surrender of the dower by the wife but also how much or what part of the prompt or deferred dower---Such direction for surrender has to be within the ceiling prescribed by the legislature in either case i.e. up to fifty percent of the deferred dower or up to twenty five percent of the admitted prompt dower---Any direction by the Family Court to the wife for the surrender of dower has to be part of either of the two, namely deferred dower or admitted prompt dower and not both---In the decree for dissolution of marriage, in case whole or part of the deferred dower is outstanding, subject to S. 10(5), it is mandatory for the Family Court under S. 10(6) to direct the husband to pay the same to the wife.

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

----Ss.5 & 14---Constitution of Pakistan, Art.199---Suit for recovery of maintenance allowance---Appeal---Constitutional petition---Maintainability---Scope---Award of maintenance allowance at the rate of Rs.5000/- per month---Husband/petitioner challenged such award in Constitution jurisdiction of High Court---High Court observed that the same had already been considered by legislature to be too meager even to allow an appeal under S. 14 of the Family Courts Act, 1964, therefore, entertaining a writ petition would tantamount to defeating the legislative intent and purpose of restricting the challenge to such decree Constitutional petition was dismissed.

Sarfraz v. Additional District Judge and 5 others 2017 YLR 1684; Abdul Hameed v. Additional District Judge, Dera Ghazi Khan and 3 others 2014 CLC 11 and Mst. Tabassum v. Waqar Hussain and another 2011 MLD 351 ref.

2022 C L C 649

[Lahore]

Before Jawad Hassan, J

Sardar QURBAN ALI DOGAR----Petitioner

Versus

PAKISTAN BAR COUNCIL through Chairman and 8 others----Respondents

Writ Petition No.228 of 2022, decided on 5th January, 2022.

Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 175-G, 175-I & 175-K---Constitution of Pakistan, Arts. 189 & 199(5)---Constitutional petition---Maintainability---"Limine Control", doctrine of---Judgment of Supreme Court---Effect---Petitioner was aggrieved of orders passed by Pakistan Bar Council and Punjab Bar Council---Validity---No interference could be made by High Court to the orders passed by two Councils---Principles enunciated by Supreme Court in its judgments were binding on High Court under Art.189 of the Constitution---Bar Councils did not fall within the meaning of 'persons' as per Art. 199(5) of the Constitution---Neither the Bar Councils nor any of its committee could be regarded as persons--- Pakistan Bar Council and Punjab Bar Council were not amenable to invoke Constitutional jurisdiction of High Court--- High Court applied doctrine of Limine Control---Constitutional petition was dismissed, in circumstances.

Muhammad Shoaib Shaheen v. Pakistan Bar Council PLD 2017 SC 231; Mirza Muhammad Nazakat Baig v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another 2020 SCMR 631 and Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others 2021 SCMR 425 ref.

Aown Abbas Bhatti v. Forman Christian College through Rector and others PLD 2018 Lah. 435 and Asif Saleem v. Chairman Bog University of Lahore and others 2019 PLD Lah. 407 rel.

2022 C L C 675

[Lahore]

Before Faisal Zaman Khan, J

GULZAR AHMAD and another----Petitioners

Versus

AYESHA NAZ SARWAR and 2 others----Respondents

Civil Revision No.1514 of 2012, heard on 11th October, 2021.

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

----Arts.2(7), 117 & 118---Inheritance/succession---Muslim personal law---Presumption of fact---Burden to prove---Suit for declaration---Petitioners/plaintiffs assailed mutation of inheritance of their deceased brother alleging that the deceased was of Sunni faith but impugned mutation was fraudulently sanctioned in favour of respondents/wife and daughter of the deceased showing the deceased to be of Shia faith---Concurrent dismissal---Petitioners contended that Nikah of deceased was solemnized by Sunni Maulana; that Bank statement of deceased revealed that he opted the deduction of Zakat; that respondent had failed to show her knowledge about Shia faith---Validity---As to answer the question of fact whether the deceased was of Sunni faith or Shia faith being a particular fact, onus to prove was on the petitioners, which they had failed to discharge---Petitioners could not be able to point out any evidence wherefrom such aspect could be proved---Petitioners had failed to produce evidence wherefrom it could be proved/presumed that a Maulana who was following Sunni faith was debarred from solemnizing the Nikah of the spouses following Shia faith---Fact that deceased had been paying Zakat form his Bank account did not prove that he was of Sunni faith---Lack of knowledge regarding Shia faith could by no means prove that deceased was not following the Shia faith---Estate of a deceased had to be divided according to his faith and personal law and not according to the faith of the successors---Certificate issued by Jafria Trust highlighting that the deceased was their member and was practicing Shia faith was not challenged by the petitioners in the main suit---Revision petition was dismissed accordingly.

(b) Islamic Law---

----Presumption as to be Sunni unless proved otherwise---Islamic law did not refer to any presumption upon which it could be ascertained/held that it was presumed that every Muslim as of Sunni faith unless proved otherwise.

Contra. Pathana v. Mst. Wasai and another PLD 1965 SC 134 ref.

(c) Islamic law---

----Presumption as to be Sunni unless proved otherwise---No reference could be made to any provision of law or a research upon which the presumption could be drawn that every Muslim in the subcontinent had to be presumed of Sunni faith unless proved otherwise.

Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480; Shirin Bai v. Muhammad Ali and others PLD 1970 Kar. 450; Hussain v. Mansoor Ali and others PLD 1977 Kar. 320; Muhammad Sulaiman Malik and another v. Royhal Trust Corporation of Canada and others 1979 CLC 48; Zainul Hassan Mian and others v. Mst. Khuwand Naka and others 1998 MLD 1857; Mst. Fatima through legal heirs and another v. Lal Khan and 19 others 2001 CLC 229; Akbarally A. Adamji Peerbhoy and others v. Mahomedally Adamji Peerboy and others AIR 1932 Bombay 356; Moosa Seethi v. Mariyakutty AIR 1954 TC 432; Vol. 41, CN 148 and Mt. Iqbal Begum v. Mt. Syed Begum 1933, 140 IC 829 distinguished.

(d) Islamic law---

----Publication titled as Muhammadan Law by D.F. Mullah---Could only be consulted as a reference book and could not be termed to be statutory law having binding effect, upon which any presumption could be drawn against a person.

Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 4 others PLD 2021 FSC 1 rel.

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

----Arts.2(7), 2(8) & 2(9)---Presumption, kinds of---Elaborated.

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

----Arts. 117 & 118---Party who alleged a fact had to prove his case himself and could not thrive on the lacunas left by the opposite party.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Mst. Zainab v. Majeed Ali and another 1993 SCMR 356 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Moiz Tariq for Petitioners.

Aamir Latif Bhutta for Respondents Nos.1 and 2.

Respondent No.3 ex parte.

2022 C L C 701

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ELECTION COMMISSION OF PAKISTAN through Secretary and others----Petitioners

Versus

APPELLATE AUTHORITY, DISTRICT JUDGE, RAWALPINDI and 2 others----Respondents

Writ Petitions Nos.2543 and 2542 of 2021, heard on 23rd August, 2021.

Cantonments Local Government (Election) Rules, 2015---

----R.17(2)---Cantonments Ordinance (CXXXVII of 2002), S.60---Election dispute---Substantial defect---Electoral roll, absence of name---Petitioner was candidate for local bodies elections and was aggrieved of order passed by Election Appellate Authority to transfer vote of respondent from other ward to the ward in question---Validity---Respondent was suffering with "defect of substantial nature", so he could not be allowed to contest election from the ward in question---Appellate Authority adopted a weird and queer procedure and despite observing that respondent was not registered voter in ward in question directed Election Commission for shifting /transfer of his nomination papers thereafter--- High Court set aside order passed by Appellate Authority as the same was beyond his mandate and scope---Constitutional petition was allowed, in circumstances.

Nadeem Shafi v. Tariq Shuja Butt and others PLD 2016 SC 944 rel.

Haseeb Shakoor Paracha and Malik Saqib Mehmood Khalid along with Muhammad Arshad, Director General (Law), Election Commission of Pakistan and Rai Sultan Bhatti, District Election Commissioner-I, Rawalpindi for Petitioners.

Nemo. for Respondents Nos.1 and 2.

Kamran Yousaf Kiani and Tanvir Akram for Respondent No.3.

2022 C L C 713

[Lahore]

Before Shahid Karim, J

ITTEFAQ SUGAR MILLS through authorized Director ----Petitioner

Versus

GOVERNMENT OF PUNJAB through Director Industries and 9 others----Respondents

Writ Petition No.15259 of 2021, heard on 29th June, 2021.

Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S.3---Restriction on establishment of industrial undertakings--- Principle--- Dispute was with regard to establishing a sugar mill but authorities on the basis of notification dated 6-12-2006 refused to grant permission on the pretext of ban---Validity---Punjab Government was not required to place a ban on establishment of industrial undertakings (nor the same was done through notification)---Statute itself imposed ban and while doing so, placed a discretion in the hands of Government to grant or refuse permission in a given case on rational basis---Specific clause inserted through notification had no other meaning and purport but to hammer in the statutory enterprise---Notification in question did not use word 'ban' but merely stated that "no new sugar mill shall be set up and no enlargement in capacity of existing sugar mill is allowed in the Province"---Administrative act could not subvert a statutory provision---Word "except in accordance with S.3 of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, was to be read in to lend actuality to the terms of specific clause in the Notification---High Court directed the authorities to proceed to process the case of petitioner further for establishment of sugar mill as requirements of S.3 of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, were met with---Constitutional petition was allowed, in circumstances.

Messrs Chaudhry Sugar Mills Ltd. v. Province of Punjab and others PLD 2017 Lah. 848 and Tariq Khan Mazari and three others v. Government of the Punjab through Secretary Industries and 3 others PLD 2016 SC 778 ref.

Kh. Ahmad Tariq Rahim, Hissam Tariq Rahim and Hashim Tariq Rahim for Petitioners.

Mirza Nasar Ahmad for Respondents Nos.4 to 10.

Saqib Haroon Chishti, A.A.G.

2022 C L C 729

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD SAJJAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JALALPUR PIRWALA, DISTRICT MULTAN and 2 others----Respondents

Writ Petition No.1802 of 2019, heard on 8th February, 2021.

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

----Ss.5 & 7---Nikahnama, column No.19---Talaq, pronouncement of---Absolute right of husband---Restrictions, vires of---Damages on account of unjustified/second divorce, award of---Respondent's/Plaintiff's (wife's) entitlement to recover stipulated amount from her husband due to the second marriage without her permission---Suit for recovery of stipulated amount as mentioned in Nikahnama was decreed---Validity---Holy Qur'an, had delegated uncovenanted powers to husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds---Husband had absolute right to divorce his wife from his free will and in that regard no condition was described in the Sharia and codified law---Condition, if any, imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce was against the basic principles of Islamic Law---Constitutional petition of the petitioner/husband was partly accepted only to the extent of said effect.

Al-Qur'an (02:227-228&65:01); SahihBukhari (Hadith No.235) and Code of Muslim Personal Law by Dr. Tanzil-ur-Rahman (Vol. 1, Chap. XII, S.105) ref.

Mst. Zeenat Bibi v. Muhammad Hayat and 2 others 2012 CLC 837 and Muhammad Asif v. Mst. Nazia Riasat and 2 others 2018 CLC 1844 rel.

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

----S.7---Column No. 16 of Nikahnama---Cutting of particulars---Contradiction in the particulars of the stipulated house as mentioned in two copies of Nikahnama---Suit regarding house measuring 05-Marlas was concurrently decreed---Validity---Proved on record that house/plot measuring 05-Marlas was settled between the parties---Existence of cutting in column No.16 of Nikahnama was clarified by Registrar in his statement as witness---Such part of his statement had not been questioned/shaken in cross-examination which deposition was deemed to be correct/admitted---Constitutional petition was dismissed to the extent of the said effect.

Malik Javed Akhtar Wains for Petitioner.

Jam Ghulam Asghar for Respondent No.3.

2022 C L C 744

[Lahore]

Before Sultan Tanvir Ahmad, J

MUHAMMAD NAEEM SHAFI and another----Appellants

Versus

Mst. SHAMIM AKHTAR and another----Respondents

Regular Second Appeals Nos.121 and 122 of 2011, heard on 24th June, 2021.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.100---Specific performance of agreement to sell---Consequence of breach---Determination---Readiness to complete part of agreement---Proof---Appellant/plaintiff sought specific performance of agreement to sell regarding suit property on the plea that he was ready to perform the agreement---Trial Court dismissed the suit to the extent of specific performance of agreement to sell and decreed the same to the extent of recovery of earnest money---Validity---Crossing out clause of right of specific performance before execution of agreement, indicated that while setting the terms, at the final stage, parties agreed and they were mindful that consequence of breach was not specific performance but penalty--- Parties at the time of execution were not to get agreement specifically performed but showed contentment to penalty clauses--- Throughout trial no plausible evidence could be given by appellant/plaintiff that he ever had balance consideration amount at the time of filing the case--- Remaining consideration amount was not deposited and no attempt was made to bring on record statement of Bank account or any other evidence to show that appellant/plaintiff had adequate money at the requisite time---To seek discretionary and equitable relief of specific performance it was incumbent upon appellant/plaintiff to show his readiness, willingness as well as capacity to perform agreement---High Court in exercise of appellate jurisdiction under S.100, C.P.C. declined to interfere in concurrent findings of facts by two Courts below as no material issue could be determined nor any substantial defect or error in procedure could be shown by appellant/plaintiff---Second appeal was dismissed, in circumstances.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Muhammad Afzal (Decd.) through L.Rs. and others v. Muhammad Bashir and another 2020 SCMR 197; Fazal-ur-Rehman v. Ahmad Saeed Mughal and 2 others 2004 SCMR 436 and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 ref.

Dr. Mian Anjum Habib and another v. Waseem Ahmed Khan and another 2014 SCMR 1621; Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7; Nisar Ahmed Afzal v. Muhammad Taj and 7 others 2013 SCMR 146; Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; P.D. Souza v. Shondrilo Naidu (2004) 6 SCC 649; Manzoor Ahmed Mangray v. Ghulam Hassan Aram and others (1999) 7 SCC 703; Abdul Rahman v. Nasir Ali Khan AIR 1931 Lah. 657; Mirza Shafaat Ali Baig v. Wg. Cdr. (Rtd.) Khurshid Anwar and another 2020 YLR 886; Muhammad Riaz Hussain v. Zahoor ul Hassan 2021 SCMR 431; Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111; Abdul Karim v. Muhammad Shafi and another 1973 SCMR 225; Muhammad Hafeez v. Saif-ur-Rehaman and 2 others 2018 CLC Note 130; Abdul Majeed through Legal Heirs v. Ghulam Shabbir and 4 others 2000 CLC 643 and Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497 rel.

Malik Noor Muhammad Awan for Appellants.

Abdul Wahid Ch. for Respondent No.1.

Syed Ali Mehdi for Respondent No.2.

2022 C L C 762

[Lahore]

Before Safdar Saleem Shahid, J

Mst. SAFIA BIBI and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.17918 of 2014, heard on 1st July, 2021.

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

----S.17---Custody of minor---Preferential right---Age factor---Intelligent/reasonable preference by minor---Welfare of minor---Scope---Ex-parte proceedings were initiated against the petitioner (mother)--­-Application under S.12(2), C.P.C., of petitioner was dismissed also made a ground to dismiss the appeal of the petitioners---Minors' ages being 16 and 15 years were considerable point---Welfare of the minor coupled with his/her own wish, particularly when he/her can make a reasonable preference on account of his/her age, is the primary consideration for a court of law for the decision of such cases---Intelligence preference of the minor could be the way to reach at the consideration regarding the entitlement of the custody, but it was not the sin qua non for the court to make it the basis for its decision---Any force applied in the matter of custody against their wishes, when they had attained sufficient maturity in exercising their preference would not be consistent with their welfare and rather may have adverse effect---High Court set-aside the ex-parte order of Guardian Judge, subject to special cost of Rs.20,000/-; and remanded the case to the Guardian Judge---Constitutional petition was allowed accordingly.

Mst. Ayesha Abdul Maleek v. Additional District Judge, Sahiwal and 2 others 2020 YLR 401; Tariq Mehmood and others v. Additional District Judge and others 2016 MLD 1767 and Tahira Bibi v. Muhammad Saeed and another 2009 MLD 33 ref.

(b) Islamic law---

----Hizanat---Preferential right---Holy Quran and Sunnah did not bar for mother or even the father to hold the custody nor was there any provision which would stipulate that the preferential right of custody lies with the father or the mother; or in their absence grand-parents/uncles/cousins would be eligible to claim custody---Mother had the preferential right of Hizanat till the minor attained the age of 7 years in the case of males and the age of puberty in case of female minors.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 rel.

(c) Constitution of Pakistan---

----Art.227---Quran and Sunnah, injunctions of---Repugnancy---Constitution guarantees that every law of the land will be in accordance with Quran and Sunnah and there will be no deviation from the Ahkam of Allah and Rasool Muhammad (Peace be upon him).

(d) Constitution of Pakistan---

----Art.8---Custom---Law would respect all the traditions/customs of the individual caste if those were not contrary to the law of land.

(e) Constitution of Pakistan---

----Art.199---Custody of minors---Welfare, question of---Jurisdiction---Scope---Welfare of the minors could not be determined within the jurisdiction of Constitution petition---Such was purely the prerogative of the Guardian Court to decide the same.

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

----Ss.12 & 25--­-Custody of minor---Preferential right---Determining factors---Scope---Held, that court had to see the welfare of the minor, keeping in view whether the person to whom the custody was being given, could facilitate the minor with respect to the health, education and other social norms which were required to build up the person of the minor; what was the financial status of the claiming person as guardian; whether person was capable of having the guardianship as to make the minor a good citizen in a real sense; whether the guardian himself follows law; whether he/she had respect for the law; whether he/she understood regarding the good and bad things/norms of the society; whether he/she had the level of intellect to train the minor to be a good and useful citizen of the society---Character building was not an easy task---Person who was always thinking about his/her benefit, could not be a good leader to build the character of the others.

Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others PLD 2003 SC 877; Mst. Rubia Jilani v. Zahoor Akhtar Raja and 2 others 1999 SCMR 1834; Muhammad Tahir v. Mst. Raeesa Fatimah and others 2003 SCMR 1344; Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357; Mst. Beena v. Raja Muhamamd and others PLD 2020 SC 508 and Mst. Naseem Akhtar v. District Judge, Multan and others 2009 SCMR 1052 ref.

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

----S.17---Conduct of parents---Second marriage of monther---Welfare of the minors was paramount and the conduct of the parents was a secondary consideration---Second marriage of the mother does not disentitle her from the custody of entitlement of ward.

Afshan Noreen v. Nadeem Abbas Shah 1997 MLD 197 and Mst. Ayesha Altaf v. Fahad Ali and 2 others 2019 CLC Note 66 ref.

Rana Habib ur Rehman Khan for Petitioner.

Imran Mushtaq Bhatti for Respondent No.3.

2022 C L C 775

[Lahore (Bahawalpur Bench)]

Before Raheel Kamran, J

BAHAWALPUR MEDICAL AND DENTAL COLLEGE----Petitioner

Versus

PAKISTAN MEDICAL COMMISSION through Secretary and others----Respondent

Writ Petition No.910 of 2022, decided on 8th February, 2022.

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

----S.36---Cognizance of offences---Scope---Subsection (1) of S.36 embodies an ouster clause that ousts jurisdiction of any other court to take cognizance of any offence or matter under the Act to which jurisdiction of the Medical Tribunal extends, subsection (2) thereof confers original jurisdiction upon the Medical Tribunal to provide remedies of a complaint or claim to any person aggrieved by an act which is an offence under the Act---Original jurisdiction conferred under S.36(2) provides remedies to an aggrieved person on criminal as well as civil sides i.e. a criminal complaint and a civil claim in relation to an act which constitutes an offence under the Act.

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

----Ss.37 & 36---Appeals to the Medical Tribunal---Scope---Plain reading of S.37(1) of the Act confers appellate jurisdiction upon the Medical Tribunal in contradistinction to the original jurisdiction visualized under S.36---Remedy of appeal under S.37(1) is available to any aggrieved person including an employee of the Commission---Such remedy is available against any order or direction of the Commission including the Council, Authority or Disciplinary Committee under any provision of the Act or Rules or Regulations---Limitation of thirty days from the date of communication of the impugned order or direction is also provided in the section---Original and appellate jurisdictions of the Medical Tribunal under Ss.36(2) & 37(1) of the Act are independent of each other.

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

----S.36---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Cognizance of offences---Scope---Ouster of jurisdiction in S.36(1) is confined to taking of cognizance of any offence or matter under the Act to which the jurisdiction of the Medical Tribunal extends i.e. the matters falling within the original and the appellate jurisdiction of the Medical Tribunal---Conferring of jurisdiction under the Act does not control, curtail or restrict the jurisdiction of High Court under Art.199 of the Constitution to entertain and decide a constitutional challenge qua vires of any provision of the Act, Rules or Regulations made thereunder.

(d) Jurisdiction---

----Ouster clause in a statute---Scope---Legislature is competent to exclude jurisdiction of a court, however, there exists a presumption against the ouster of jurisdiction---Any law or statutory provision which denies access to courts is to be construed strictly---Ouster of jurisdiction must either be explicitly expressed or clearly implied and is not to be readily inferred---Language used by the legislature in that regard ought to show express and unequivocal manifestation of legislative intent to exclude jurisdiction of the courts---If language of an ouster clause is so clear and unmistakable that it leaves no doubt as to intention of the legislature in ousting jurisdiction in all circumstances, then the same should be given effect---If an ouster of jurisdiction clause is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.

Karamat Ali and another v. Muhammad Younas Haji and others PLD 1963 SC 191; Muhammad Ismail and others v. The State PLD 1969 SC 241; Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd) and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3 and Anisminic Limited v. The Foreign Compensation Commission and another (1969) 1 All E.R. 2008 ref.

Muhammad Nawazish Ali Pirzada and Muhammad Abbas Azeem for Petitioners.

Khalil-ur-Rehman Khan, Deputy Attorney General for Pakistan (On Court's call).

2022 C L C 793

[Lahore]

Before Ayesha A. Malik, J

LEARNING ALLIANCE (PRIVATE) LIMITED through Chief Executive and 3 others----Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Housing, Urban Development and PHED and 2 others----Respondents

Writ Petition No.18066 of 2014, decided on 30th July, 2021.

(a) Lahore Development Authority Land Use Rules, 2014---

----R.2 (x)---Land use plan---Object, purpose and scope---Land use essentially is a planning device which ensures that individuals use their land in the interest of environment and for surrounding area---Purpose of classifying land use is to provide permissible limits of land usage---Conversion of land use means that owner of land takes permission to convert land use from that which is prescribed in land use plan or scheme---Land use conversion means that where area is classified as residential or institutional permission is sought to use land for a different purpose other than that prescribed--- Where land usage is as per its classification then there is no element of conversion involved---Conversion must be as per rules with the permission of the Authority.

(b) Lahore Development Authority Act (XXX of 1975)---

----S.28---Rates and fees---Scope---Lahore Development Authority can levy fees on change of land use owing to classification or re-classification to raise adequate funds to meet cost of planning, expansion, development and re-development amongst other reasons.

(c) Interpretation of statutes---

----Fiscal statute---"Fee" and "tax"---Distinction---Tax is part of common burden but fee is for a specific purpose---Fee must co-relate to the expenses incurred.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630 and Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402 rel.

(d) Lahore Development Authority Act (XXX of 1975)---

----S.28---Constitution of Pakistan, Art.199---Constitutional petition---Rates and fees---Commercialization fee---Quantum---Petitioners were aggrieved of levy of conversion fee at the rate of 20% of commercial value of property---Validity---No basis were available to justify rates and there was no accountability for money collected as fee and where it was spent---Such was against good governance and it required a public body to be transparent and declare its costs and use of fees collected---For fee to be levied to cover costs under S.28 of Lahore Development Authority Act, 1975, it had to declare the costs, the development and maintenance works required or undertaken to recover the costs---Provisions of S.28 of Lahore Development Authority Act, 1975 could not be used as a ways and means of generating revenue to undertake projects which were made under the garb of general development and improvement---Lahore Development Authority had a specific mandate to plan and coordinate with government agencies for preparing a master plan to develop, operate, maintain water supply, sewerage, drainage with WASA and to plan annually for development programs and maintain planning controls and building regulations---Purpose of levying a conversion fee had to be such that Lahore Development Authority would fulfill its mandate and made necessary disclosures and declarations---High Court declared that levy of conversion fee at the rate of 20% of commercial value of property was without any justification and against requirements of S.28 of Lahore Development Authority Act, 1975---High Court directed that demand notices raised and public advertisement issued in newspapers could not form basis to collect conversion fee from an area which was already declared commercial---For the purpose of S.28 of Lahore Development Authority Act, 1975, where Lahore Development Authority was to raise adequate funds to meet the cost of planning, expansion, execution, development, re-development, maintenance, zoning, classification, re-classification, augmentation, supervision, regulation and conversion of any property in any present or future scheme, it was to declare the cost so incurred, which it was to recover in the form of a fee with full disclosure of all amounts spent on development and expansion projects and schemes to maintain good governance and transparency and to establish need to meet the costs for the fee that it had imposed---Constitutional petition was allowed accordingly.

Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402; Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Seven Up Bottling Company (Pvt.) Ltd. v. Lahore Development Authority (L.D.A.), Lahore through Managing Director, WASA and its Deputy Director Revenue (South), WASA, Lahore Development Authority and another 2003 CLC 513; Trade Serve International (Private) Limited and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2017 Lah. 563; Secunderabad Hyderabad Hotel Owners Association and others v. Hyderabad Municipal Corporation, Hyderabad and another AIR 1999 SC 635; Shell Pakistan Limited, Karachi through Attorney v. Capital Development Authority through Chairman and 2 others PLD 2015 Isl. 36; Syeda Abida Hussain Imam and others v. The Province of Punjab through Secretary and others 2015 YLR 1522 and Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522 ref.

Iftikharuddin Riaz, Imran Iqbal, Barrister Muhammad Umar Riaz, Waqas Umar, Ali Sibtain Fazli, Hasham Ahmad Khan, Esa Jalil, Syed Ali Zafar, Ms. Mehak Zafar, Mubashir Aslam Zar, Nadeem ud Din Malik, Asad Ayub, Munawar-us-Salam, Haroon Mumtaz, Mian Qamar uz Zaman, Syed Salman Haider Jafri, Munib Iqbal, Aamir Majeed Rana, Rana M. Wakil Khan, Ms. Ayesha Warsi, Ms. Amna Warsi, Sohail Asghar Chaudhary, Dr. Ilyas Zafar, Sultan Mahmood, Ashraf Bhatti, Rana Muhammad Asif, Muhammad Baleegh uz Zaman, Azmat Lodhi, Muhammad Akhtar Rana, Mian Ijaz Hussain, Syed Shahab Qutub, Mian Tariq Hassan, Ms. Maria Farooq, Muhammad Shabbir Hussain, Nadeem Shehzad, Usman Ali Bhoon, Malik Ahsan Mehmood, Tahir Attique Piracha, Chaudhary Muhammad Naseer, Ms. Samra Malik, Abid Hussain Chaudhary, Muhammad Akram Khawaja, Khawaja Ahmad Hassan Anwari, Mehboob Azhar Sheikh, Muqtedir Akhtar Shabbir, Mirza Shahryar Beg, Muhammad Raza Qureshi, Asad Javed, Sikendar Abbas, Malik Aslam Ali Saif, Nusrat Joya, Mian Ijaz Latif, Chaudhary Inayat Ullah, Ms. Bushra Inayat, Mushtaq Ahmad Chaudhary, Ch. Habib ur Rehman, Hashim Sabir Raja, Sohail Arshad, Ghulam Abbas Tarar, Zahir Abbas, Khalid Khan, Muhammad Immad Qamar, Muhammad Adil Khokhar, Chaudhary Tariq Mehmood, Noor Muhammad Khan Chandia, Waheed Afzal Malik, Shahid Rafiq Mayo, Talaat Farooq Sheikh, Qamar Hayat Bhuttah, Sheraz Khalid, Muhammad Sohail Anjum, Masood Sadiq, Asad Ali Bajwa, Muhammad Yasin Bhatti for Petitioners.

Akhtar Javed, Additional Advocate General, Punjab along with Muhammad Fahad, Litigation Officer, LG&CD Department.

Mustafa Ramday, Ms. Nadia Hafeez, Ms. Rabia Hassan, Saad Sibghatullah, Asfand Mir, Waqar A. Sheikh, Syed Muhammad Ali Mehdi Bukhari, Sahabzada Muzaffar Ali Khan, Amir Saeed Rawn, Ahmad Jamal for Respondent LDA along with Ali Nusrat, Director Town Planning, Naveed Ahmad Bhatti, Director (Commercial), Mehmood Ali, Muhammad Haris Ali, Deputy Directors, Qasim Abbas Bhatti, Deputy Director Law, Muhammad Shoaib, Assistant Director.

Iftikhar Ahmad Mian for City District Government, Lahore.

Barrister Chaudhary Saeed H. Nangra, Sardar M.S. Tahir and Zafar Iqbal Bhatti for Respondents.

2022 C L C 835

[Lahore]

Before Rasaal Hasan Syed, J

Messrs SHIFA HEALTH CARE (PVT.) LTD. through Director----Petitioner

Versus

SPECIAL JUDGE (RENT) LAHORE and 2 others----Respondents

Writ Petition No.48322 of 2021, heard on 22nd October, 2021.

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

----S.19---Eviction---Fresh lease agreement---Execution proceedings---Report of bailiff, credibility of---Respondents filed ejectment application contending that premises was rented out for 10 years; that petitioner committed default in payment of monthly rent and did not pay withholding tax and violated terms and conditions of lease agreement---Ejectment application was disposed of on basis of compromise and fresh lease agreement was made with new terms and conditions---After 21 days of said disposal respondents filed application for execution of the order---Special Judge (Rent) passed order for issuance of warrants of possession---Order for police assistance and lock/door-breaking was passed---Validity---Statement of one of the respondents in eviction petition was recorded to the effect that a fresh tenancy agreement had been executed between parties and ejectment application be disposed of---No endorsement of other two respondents who filed execution application asserting that the order of disposal of petition on the basis of compromise was not complied with---After two days of order for issuance of warrant of possession, a report was submitted by the bailiff that the possession could not be delivered without police assistance---Report showing two witnesses who were not residents of the area---Such report was unworthy of credence but was relied upon and order for enforcement of warrants of possession through breaking of locks, doors, etc. with police assistance was passed---At the time of passing order of disposal of petition on the basis of compromise only attendance of bailiff and counsel for decree-holder was recorded---Neither any inquiry was made nor the statement of bailiff was recorded to verify the report and in a mechanical manner permission was granted for breaking doors, locks, etc. with assistance of police and in consequence thereof, tenant was thrown out of the rented property---No eviction order was passed by Special Judge (Rent) and only eviction petition was disposed of---Parties having executed a fresh rent note on new terms/conditions whereby rate of rent was changed, period of tenancy was changed and other terms were also modified---Outright execution of fresh rent agreement could not result in eviction of the tenant ipso facto merely because landlord claimed that the terms were breached, unless proper inquiry was held in fresh round of litigation---Respondents did not raise any objection to the execution of fresh agreement and did not object to fresh terms/conditions---High Court observed that proper remedy was to file an eviction application on the plea of fresh cause of action and not to seek execution of an order that did not contain any condition of eviction­---Such order was not executable---Constitutional petition was allowed and execution petition was dismissed.

Mrs. Ameena Lodhi and 2 others v. Maqbool Hussain 1983 CLC 178 rel.

Hassan Masud Malik v. Dr. Muhammad Iqbal and others 1995 SCMR 766 and Ijaz Ahmad Mirza v. Civil Judge and others 2018 CLC 468 distinguished.

Irfan Hayat Bajwa for Petitioner.

Syed Muhammad Shah for Respondents Nos.2 and 3.

2022 C L C 856

[Lahore]

Before Muzamil Akhtar Shabir, J

MANZOOR AHMAD SAJJAD----Petitioner

Versus

AKHTAR HUSSAIN----Respondent

C.R. No.65026 of 2020, decided on 21st September, 2021.

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

----O.XVI, R.3---Suit for Recovery of money against dishonoured Cheque---Summoning of witnesses---Limitation---'Good cause'---Application of respondent/plaintiff for summoning of two witnesses against issuance of cheque was allowed by Trial Court---Petitioner's contention that respondent failed to show good cause for not mentioning the names of those witnesses in list of witnesses so the Court was not justified to allow them to appear as witnesses---Validity---Names of the same witnesses found mentioned in the plaint, therefore, it could not be said that petitioner/defendant would be taken by surprise or there was chance of fabrication of new evidence by belated inclusion of names of such witnesses and permitting the respondent to produce them in evidence---Mentioning names of witnesses in plaint with their role at very inception of matter before Court, which was even prior in time to framing of issues and time of seven days provided under O.XVI, R.1 of Civil Procedure Code, 1908 for filing list of witnesses in Court, would be 'good cause' and 'sufficient reason' to allow the respondent to produce them in evidence even if their names were not earlier included in list of witnesses---No prejudice would be caused to petitioner if the said witnesses were produced in evidence and petitioner would have a right to cross-examine said witnesses in order to dig out the truth---Purpose of procedure was to advance the cause of justice and not to hamper it and the production of said witnesses may facilitate the Court to reach just decision in the matter---No illegality / jurisdictional defect found in impugned order---Revision petition was dismissed accordingly.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Muhammad Sana Ullah v. Additional District Judge and others PLD 2020 Lah. 675 and Muhammad Iqbal v. District Judge, Vehari and others 2020 MLD 1760 distinguished.

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

----O.XVI, R.3---Summoning of witnesses---Limitation---'Good cause'---Scope---Not an absolute rule of law that once a party omitted to file list of witnesses or to mention the name of witness in such list, it would thereafter be precluded from seeking permission of Court to produce that witness in the case---Court had to allow/refuse permission to produce such witness in evidence on case to case basis by keeping in view the facts of the case and circumstances in which list of witnesses was not filed, which inter alia were relevant factors for determining whether party had made out a good cause for allowing/refusing grant of permission to produce such witnesses.

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

----O.XVI, R. 3---List of witnesses---Limitation---Exception---'Good cause'---Scope---Actual purpose of providing names of witnesses through list of witnesses to be filed under O.XVI of C.P.C. was to enable the other party to know what evidence had to be produced so that it may not be taken by surprise and evidence might not be fabricated later on---However, on 'good cause' being shown the Court in its discretion, if judicial conscious thereof was satisfied with justifiable reason could allow the party to produce witnesses whose names were not mentioned in the list of witnesses.

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

Anwaar Hussain for Petitioner.

2022 C L C 890

[Lahore]

Before Rasaal Hassan Syed, J

Mst. KAMALAN BIBI----Petitioner

Versus

PROVINCE OF PUNJAB through District Officer and 9 others----Respondents

Civil Revision No.2682 of 2011, decided on 15th October, 2021.

(a) Gift---

----Oral gift---Inheritance---Suit for declaration filed by petitioner alongwith her sister challenging alleged oral gift on the grounds of fraud/collusion and being inoperative on their right of inheritance---Suit was concurrently dismissed---Contention that predecessor-in-interest of parties was survived by two daughters and two sons; that petitioner and her sister were owners of 1/3rd share in estate of their deceased father; that they were being paid share from the produce by respondents/defendants who stopped doing so a year before filing the suit and claimed the transfer of property in their name; that their deceased father had never made any gift nor transferred any part of his property in his lifetime, nor had appeared before revenue officials nor ever thumb-marked or signed the revenue papers pertaining to alleged mutation of gift; that mandatory ingredients of gift were never fulfilled, no offer/acceptance was ever made, nor was the possession ever transferred under oral gift; that particulars of the witnesses in whose presence the oral gift was alleged to have been made were not mentioned; venue of alleged oral gift and period before the alleged attestation of mutation was not mentioned---Validity---Neither patwari who allegedly entered the mutation in the roznamcha waqiati was produced nor copy of roznamcha waqiati itself was adduced---Revenue officer who allegedly attested the mutations was not produced in evidence---Mutations did not bear thumb-impression/signatures of deceased/alleged donor---Essential particulars of witnesses of oral gift were missing in written statement and in the statements of defendant's witnesses---Stance that witnesses were not alive was taken only in cross-examination although it had been suggested to the contrary---Respondents had to produce death certificates of the witnesses to prove their death or to produce some male member of the family of those witnesses in evidence to confirm the stance of alleged death---Best evidence in said respect was withheld---No explanation as to absence of person who was shown to have identified the alleged donor in one mutation---Considering the effect of absence of date, time, place and the names of the witnesses in whose presence the oral gift was allegedly made in the written statement as also in the evidence, it was observed that the beneficiary on whom the onus to prove the oral gift rested would be deemed to have utterly/miserably failed to prove the same in the manner prescribed by law---Mutations were attested in a casual manner and Revenue Officers did not attempt to find out the extraordinary reasons for depriving the daughters from inheritance or awarding special favour to the sons to the exclusion of the daughters---Daughters were not even summoned to find out as to whether any such transaction of gift was being made in reality by their father and also to their knowledge---Revenue officer had not indicated any special reason from the donor to deprive his daughters from their share of inheritance---Court below assumed that mere attestation of mutations would suffice to assume the declaration and acceptance of gift and transfer of possession---Mutations were not document of title---Where the transaction itself was in issue, beneficiary was legally obligated to discharge the onus by alleging/proving through credible evidence the prerequisites of a valid oral gift---Khasra girdawari for relevant year was not produced to support the plea of transfer of possession and non-production thereof was fatal to the stance of respondents---Revenue record transpired that fraud had been committed and the suit was instituted immediately thereafter---Pleadings and statement of witness revealed that said fact was affirmed which could not be dislodged in cross-examination---Revision petition was accepted and petitioner's suit was decreed as prayed for with costs throughout.

Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095; Muhammad Sarwar v. Mumtaz Bibi and others2020 SCMR 276; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others 2021 SCMR 73; Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others 2016 SCMR 986; Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30 rel.

(b) Gift---

----Oral gift---Proof---If oral gift was claimed, it was imperative for the beneficiary to allege foundational ingredients of the gift including time, date and place of the alleged gift in the pleadings and prove the same---Necessary to disclose the names of witnesses in whose presence the alleged declaration and acceptance of oral gift was announced---In the absence of such disclosure no evidence could be led and even if any evidence came on record the same was liable to be ignored.

Saddaruddin through LRs. v. Sultan Khan through LRs and others 2021 SCMR 642; Sheikh Ishtiaq Ahmad and others v. Muhammad Usman Ali Sheikh and another 2021 SCMR 1277; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698 rel.

(c) Constitution of Pakistan---

----Art.24---Gift---Disinheritence---Protection of women---Where the exclusion of legal heirs was claimed by way of gift, there should be evidence to justify the disinheritance of other legal heirs from the gift.

Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Ghulam Haider v. Ghulam Rasool and others 2003 SCMR 1829 and Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others 2002 SCMR 1938 rel.

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

----Arts. 80 & 129(g)---Where witness was not found or had died, the factum of such death must be specifically proved---If no effort was made to prove death of witness, strong inference contra the party would obviously be stimulated.

(e) Constitution of Pakistan---

----Arts.24, 25 & 34---Islamic Law---Inheritance---Discrimination against women---When vulnerable women were compelled to relinquish their inheritance in favour of their male relations such relinquishment offended public policy and was contrary to shariah.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar NaqviPLD 1990 SC 1 rel.

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

----S.3---Inheritance---Islamic Law---Scope---On opening of succession, the property automatically devolve upon the legal heirs---Efflux of time would not extinguish the right of inheritance and limitation in such matters start from the date when right of any co-sharer/inheritor was denied by someone.

Mst. Suban v. Allah Ditta and others 2007 SCMR 635 rel.

(g) Constitution of Pakistan---

----Arts.24, 25 & 34---In the absence of legal and valid deed/document of relinquishment for transfer of property on the part of sisters, the possession of the co-owners/brothers could only be construed as possession on behalf of all the co-owners including the sisters.

Mst. Gohar Khanum and others v.Mst. Jamila Jan and others 2014 SCMR 801; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others 1998 SCMR 996 and Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 rel.

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

----O.XLI, Rr.4 & 33---Where there were multiple plaintiffs/defendants and decree appealed from proceeded on any ground common to all the plaintiffs/defendants, any one of them could appeal from the whole decree and, thereupon, the appellate court could reverse or vary the decree in favour of all the plaintiffs or defendants.

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

----S.115---Concurrent findings/judgements---Scope---Court could interfere when the concurrent findings of fact recorded were based on insufficient/inadmissible evidence; misreading/non-consideration of material evidence; erroneous assumptions of fact; patent errors of law; or reveal arbitrary exercise of power; abuse of jurisdiction; or where the view taken was demonstrably unreasonable which was not in consonance with material evidence.

Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 and Mst. Naziran Begum through Legal Heirs v. Mst. Khurshid Begum through Legal Heirs 1999 SCMR 1171 rel.

A.G. Tariq Ch. and Javed-ur-Rehman Rana for Petitioner.

Waqar Saeed Khan, Asst. Advocate General Punjab for Respondent No.1.

Shahid Azeem for Respondents Nos.2 to 9.

2022 C L C 908

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

PROVINCE OF PUNJAB through D.O.(R) Sahiwal----Petitioner

Versus

DISTRICT JUDGE and others----Respondents

Writ Petition No.7044 of 2008, decided on 23rd November, 2021.

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

----S.12(2)---Transfer of Property Act (IV of 1882), S. 54---Specific Relief Act (I of 1877), S. 42---Suit for declaration and permanent injunction was filed by respondent against another respondent contending that said respondent being owner of lands in question sold the same to the said respondent and received total consideration---Respondent filed consenting written statement and also recorded statement that a compromise had been effected between the parties; accepted the suit of said another respondent as correct---Trial Court decreed the suit in favour of the respondent---Petitioner/Province filed application under S.12(2) of Civil Procedure Code, 1908 contending that both the respondents collusively got decreed the suit just to evade the payment of stamp duty etc.; that suit property was falling within the jurisdiction of the Municipal Committee and the same could not be alienated without a registered deed; that said respondents had played fraud; that the Court had no jurisdiction to entertain the suit for declaration of respondents who did not possess any title---Held, that since no title document existed, the alleged sale between respondent was not completed---One respondent sought declaration of his title on the basis of agreement to sell by claiming himself the owner of suit property instead of filing suit for specific performance of an agreement as he could not seek declaration merely on the strength of said document, therefore, the form of the suit was incorrect---After Notification No.15246/74/ 2237/LR-V, dated 30-12-1974 issued by Provincial Government making S.54 Transfer of Property Act, 1882, applicable in the whole Province, no oral sale could take place and transfer of immovable property worth Rs.100/- or more could only be transferred by a registered instrument of transfer---Such requirement of compulsory registration was restricted only to Municipalities/Notified Areas---As far the agreement to sell of immovable property was concerned, sale of such property would take place in terms settled between the parties and rights arising out of that agreement were to be sought through its specific performance---Declaratory decree procured by any person on the basis of agreement to sell was void ab-initio, therefore, the same was of no avail to him to use as a plank---If decree was challenged on the basis of fraud, misrepresentation or without jurisdiction, the court had first to see whether the suit was maintainable under the law and then to see whether any fraud/misrepresentation was made out from the available record---Transfer of title under the garb of consent decree on basis of agreement to sell was void ab-initio---One of the Respondents in the garb of declaratory suit, intended to save dues/duties fraudulently---Respondents had entered into compromise dishonestly, by concealing the true facts from the Court, deliberately/knowingly to get the suit decreed---Constitutional petition was accepted accordingly.

Fazal Karim through legal heirs and others v. Muhammad Afzal through legal heirs and others PLD 2003 SC 818 rel.

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

----S.54---Specific Relief Act (I of 1877), S. 42---Agreement to sell---Nature and scope---Agreement to sell, per se, would not create title/interest/charge on property, nor would it create ownership in land under the agreement---Person in whose favour such an agreement was made could not claim a decree of title---Such agreement would only create a right to obtain another document and did not require registration though containing acknowledgment of the receipt of earnest/part payment of the price---Decree giving title on the basis of such an agreement to sell was required to be recalled---Agreement to sell did not amount to actual transfer of any interest in the property, nor did it create any right/title/interest in immovable property---When a person was put into possession in part performance of the contract, he could use such document as a shield to protect his possession and not as a sword to claim the title---No declaration could be granted on the basis of agreement to sell except grant of decree for specific performance.

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

----S.12(2)---Terms "fraud", "misrepresentation", and "collusion"---Explained.

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

----S.12(2)---Fraud---Proof---Fraud could not be directly proved---Fraud had to be inferred from the surrounding circumstances and conduct of parties.

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

----S.12(2)---Filing of application under S.12(2), C.P.C.---Locus standi---Held, if the lawmaker had intended to restrict the right of filing application only to the person who was party to the suit, then the word "party" ought to have been used.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Khawja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516 and Ch. Jalal ud Din v. Mst. Asghari Begum 1984 SCMR 584 rel.

Altaf Hussain Raan, Assistant Advocate General of Punjab for Petitioner.

Muhammad Masood Bilal for Respondents Nos.3 and 4.

2022 C L C 947

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

EJAZ IQBAL----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.3075 of 2021, decided on 23rd November, 2021.

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

----Arts.90, 95, 99, 117, 120 & 129---"Burden to prove" and "presumption"---Distinction---Presumption of a specific fact shifts burden to other party---Presumption implies that a certain fact is deemed to be true or proved on the basis of some other relevant fact which is proved to be true---Existence of a fact or set of facts is considered as proof of existence of some other fact---Such presumptions may be presumption of fact or presumptions of law--- Presumption can be conclusive or rebuttable---Rebuttable presumptions involve use of words "shall presume".

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

----S.8, Form II---Family Courts Act (XXXV of 1964), S.5---Qanun-e-Shahadat (10 of 1984), Art. 129 Illustration (g)---Nikahnama, entries in---Proof---Concurrent findings of facts by two Courts below---Withholding of evidence---Presumption---Suit for recovery 5 Marla house as dower amount filed by respondent / plaintiff was decreed in her favour, as the same was mentioned in Nikahnama---Validity---Nikahnama was to be examined as a simple contract between parties without any presumption of truth attached to it--- Petitioner's copy (پرت)of Nikahnama was his best evidence and by producing that copy (پرت) of Nikahnama petitioner could have dispelled statement of Nikah Registrar that he forgot to fill conditions of Nikah only in "fourth copy" (پرت) prior to submitting the same in Union Council concerned under the law--- In absence of such copy there was no reason in disbelieving unshaken testimony of respondent / plaintiff, her witness as well as scribe of Nikahnama---Non-production of his own copy of Nikahnama led to an adverse inference against petitioner as the best evidence in such regard was withheld by him---Case of petitioner fell within the purview of Illustration (g) to Art.129 of Qanun-e-Shahadat, 1984---High Court declined to interfere in concurrent findings of facts by two Courts below---Constitutional petition was dismissed, in circumstances.

Mst. Tanzeela Butt v. Additional District Judge and others 2018 MLD 320; Abdul Malik and others v. Mst. Subbha Mai alias Sabbah Mai 2016 MLD 925 and Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88 ref.

Mst. Shaista Shahzad and another v. Additional District Judge and others PLD 2012 Lah. 245; Dilshad Begum v. Nisar Akhtar 2012 SCMR 1106 and Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 rel.

Syed Haider Ali Bokhari for Petitioner.

Ghulam Qadir Khan Chandia for Respondent No.3.

2022 C L C 963

[Lahore]

Before Asim Hafeez, J

GHULAM SHABBIR----Petitioner

versus

Mst. ABBAS BIBI and others----Respondents

Writ Petition No.7506 of 2019, decided on 30th December, 2021.

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

----S.5, Sched.---Suit for recovery of alimony--- Nikahnama, Cl. 19---Scope---Sole ground to challenge Cl. 19 was the decree passed on the basis of Cl. 19 of Nikahnama, wherein parties had mutually agreed that in case of an unreasoned divorce, declared by petitioner to his wife, petitioner would provide gold ornaments/finances as specified therein---Contention of petitioner was that the condition imposed in the Nikahnama was contrary to the law and Islamic Injunctions---Validity---Financial benefits agreed mutually were in the nature of reasonable financial support for setting the wife free---Nikahnama was a civil contract between the parties, both of which were at liberty to agree to the terms of arrangement---Clause 19, as available in Nikahnama, was not in the nature of absolute bar qua right to divorce---Petitioner had divorced the wife, which manifested that no bar to divorce was imposed---Constitutional petition was dismissed.

Muhammad Sajjad v. ADJ and others PLJ 2021 Lahore 485; Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186; Rukhsana Ambreen v. District and Sessions Judge, Khushab and 2 others 2021 CLC 1512 and Muhammad Ahmad v. Additional District, Judge and others 2019 CLC 89 distinguished.

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

----S.5, Sched.---Matters arising out of Cl.19 of Nikahnama---Scope---No restriction existed that husband cannot agree to arrange for maintenance or agree to extend fiscal advantage to the wife, even after the divorce---Such nature of the benefit/advantage, which in any manner is not restricting the right of divorce, is in fact an act of bestowing benefit or gift upon wife to support her, hence, cannot be termed as illegal or contrary to the Spirit of Islam and Teachings of Holy Quran---Concept of alimony is not alien to the Islam---Financial support agreed to in Cl. 19 cannot be construed as encumbrance or clog on the right to divorce but manifests sense of continuing responsibility and affection, which cannot be construed as continuing maintenance allowance beyond the period of iddat.

Rana Muhammad Hussain for Petitioner.

2022 C L C 974

[Lahore]

Before Shahid Bilal Hassan and Ayesha A. Malik, JJ

MEEZAN BANK LIMITED----Appellants

Versus

WAPDA FIRST SUKUK COMPANY LIMITED and others----Respondents

R.F.A. No.54274 of 2017, decided on 1st December, 2021.

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

----O.VI, R.4---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Fraud---Proof---Where fraud is alleged, general rule is that person who pleads fraud must establish fraud--- Burden is on the person alleging fraud--- Alleged fraud must be detailed, such that the person alleging fraud must set out all details of fraud that was committed with clarity and certainty.

Taj Muhammad Khan through L.Rs and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598; Ghulam Shabbir v. Mst. Nur Begum and others PLD 1977 SC 75 and Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703 rel.

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

----Arts.18, 19, 117 & 120---Relevance of fact---Onus to prove---Standard of proof in civil cases is on balance of probabilities that is what fact is more likely to have happened based on the evidence---Every fact become relevant, its falsity is relevant, the deceitor is relevant and injury is relevant---Person asserting a fact has to prove that fact---Fact is proved when a Court either believes it to exist or considers its existence to be probable, such that a prudent man ought to believe its existence---Balance of probabilities in civil cases gives Court ability to determine whether a fact has occurred or is likely to have occurred---Trial Court tries to ascertain factual truth from evidence before it in its entirety.

Abdul Wahid v. Mst. Zamrut PLD 1967 SC 153; Zaheer Ahmed Qureshi through Legal Heirs v. Syed Iftikhar Hussain Shah 1999 SCMR 2605; Zakaullah Khan v. Muhammad Aslam and another 1991 SCMR 2126; Mst. Bakht Bibi v. Muhammad Aslam Khan and others 2016 MLD 1411 and Messrs Sazco (Pvt.) Ltd. v. Askari Commercial Bank Limited 2021 SCMR 558 rel.

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

----Art.59---Expert opinion---Report, admissibility of---Precondition---Author of report has to appear in Trial Court as witness and to be subjected to cross examination without which his evidence is inadmissible and such fact remains not proved.

Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696 and Allah Dino and 2 others v. Mohammad Umar and 2 others 1974 SCMR 411 rel.

(d) Central Depository Act (XIX of 1997)---

----S.11---Bar on rectification of central depository register---Object, purpose and scope---Purpose of S.11 of Central Depository Act, 1997 is to allow smooth transfer of securities on a reliable and regulated system; it not only protects transaction but also the tile of security holders.

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

----S.88 & O. XXXV, R.1 & 4---Inter-pleader suit---Scope---Where there are rival claimants with respect to same debt against same person, which person being stakeholder claims no interest in the debt other than for charges or cost, who is ready to pay or deliver debt to rival claimants then such a person can institute a suit of inter-pleader against all claimants for the purposes of obtaining a decision as to whom payment or delivery must be made to--- Inter-pleader suit is filed by a person to determine rightful owner of a debt or property amongst rival claimants so as to avoid multiplicity of litigation and conflicting judgments---Such is a joinder device whereby all those who claim any interest in the same debt or property are joined in one action within which they may assert their claim against debt or property--- In terms of requirements of S.88, C.P.C., rival claimants must all seek a claim against the same debt, against the same person who claims no interest in debt and is willing to make payment or delivery of debt or property to lawful claimant---Party which is confronted with conflicting claims from rival claimants does not itself have any claim in debt and may in good faith interplead various different claimants so as to ensure that conflicting rights or claims against the same property or debt are decisively determined in one case, such that to whom the debt has to be paid---Party faced with rival claimants must not have any interest in debt itself and must be willing to discharge its liability in totality towards those seeking the debt--- Purpose of inter-pleader suit is not only to avoid multiple litigation but also to protect stakeholder from conflicting claims to the same debt or property---When all actions are joined together then all claims are adjudged with respect to the same debt or property in the same suit to determine who is entitled to same debt or property--- Such avoids expenditures and inconveniences of multiple cases which may also result in conflicting orders and adverse rulings by different courts.

Halsbury Laws of England, Vol.47 (2014)/2, para.89; National Insurance Co. Ltd. v. Antony T George and others Ker HC 1989; Jagdish Chandra and others v. Krishna Mohan Aggrawal and others All HC 2020; pp.11 RJ, MacLennan (1901); American Jurisprudence, Second Edition, Volume 45 ; Dakota Livestock Company and Farmers Union Marketing and Processing Association v. Gary Keim et. al 552 F.2d 1302 (1977); Odell Dick v. The First International Bank of Birmingham, a National Banking Association 334 So 2d 922 (1976); Syed Shamshul Haque v. Sitram Singh AIR 1978 Patna 151 and Raja Bhagwali Baksh Singh v. The Civil Judge AIR 1961 All. 559 rel.

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

----S.88---Inter-pleader suit---Words "for the purposes of obtaining a decision"---Consequential relief, deciding of---Scope---Nothing in S.88, C.P.C. which prevents a decision on claims against person filing suit which are related to its obligation to pay debt, money or property---No special jurisdiction is created under S.88, C.P.C. in which inter-pleader suit is to be heard, it merely sets out procedure to be followed in such cases---True origin of jurisdiction under S.88, C.P.C. is in equity, where plaintiff comes to Court claiming no interest in debt, money or property, against several claimants so as to rid itself of controversy in one suit---Interpleader relief is discretionary subject to plaintiff meeting basic conditions that it has no interest in debt, money or property nor has colluded with any claimant and is willing to make payment or transfer---Such is a power that Court has while deciding cases of such nature---No bar existed in S.88, C.P.C. with respect to consequential relief sought by claimants, nor the words "for the purposes of obtaining a decision" in S.88, C.P.C. limits jurisdiction of Court to decide connected issues.

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

----Ss.88 & 11---Inter-pleader suit---Res judicata, principle of---Applicability--- Decision of Court in an interpleader suit indemnifies plaintiff on payment of money or delivery of property against claimants and if other suits are filed they must be stayed---If claimants' claims are not decided in inter-pleader suit, they may be adversely affected and even if plaintiff claims it does not seek indemnification the decision operates as res judicata between the parties.

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

----S.88---Inter-pleader---Connotation---Typical inter-pleader is an innocent stakeholder, who is subject to competing claims---Where claims of defendants are inextricably interrelated it has to be adjudged in the same suit---Relevant ingredient to file inter-pleader suit is that plaintiff / stakeholder has to be neutral to or disinterested in payment of debt or property---If plaintiff / stakeholder has incurred a liability against claimant(s), which has nexus to its obligations and capacity, then such claims should be finally decided in inter-pleader suit---Trial Court cannot discharge plaintiff / stakeholder from further liability in order to sustain inter-pleader suit as such may give an undue advantage to plaintiff filing the suit, where there is potential for claims for damages.

----S.42---Civil Procedure Code (V of 1908), S.88, O.XXXV, Rr.3 & 4---Suit for declaration, recovery of damages---Inter-pleader claim---Water And Power Development Authority filed suit seeking declaration to the effect that it was lawful owner of all rights of Sukuks and was also entitled to Ijara rentals with accumulated markup / profits---Appellants / defendants were financial institutions who filed inter-pleader suits and raised their counter claims over Sukuks against respondent / plaintiff--- Suit filed by respondent / plaintiff was decreed by Trial Court--- Validity--- Respondents / plaintiffs tried to shield themselves from any liability with reference to their negligence by filing inter-pleader suit and thereafter claiming that the only issue which needed determination in inter-pleader suit was as to whom payment of Ijara should be made, that was to decide who was the owner of disputed Sukuks---Respondents / plaintiffs failed to make out a case of fraud and case of negligence and breach of duties was evident from evidence---Contention of respondents / plaintiffs that their was no cogent evidence of negligence and breach of duty by its employees was without bases, as their own documents testified to the negligence--- Respondents / plaintiffs were liable for negligence which resulted in duplication of 72 Sukuk certificates and failed to provide investors with required contractual duty of care and trust--- Such facts were evident from their own fact finding report, special audit report and audit report---Respondents / plaintiffs were liable to pay price of 72 Sukuk certificates which were claimed and it did not sell and by way of compensation it could not recover Ijara payments on account of its own negligence and payments made by appellant / defendant were suffice as compensation---Appellant / defendant did not claim any specific loss or damage from respondents / plaintiffs and compensation in the form of retaining Ijara payments was to compensate for negligence caused by respondents/plaintiffs---High Court set aside the judgment and decree passed by Trial Court---Appeal was allowed accordingly.

Al-Meezan Investment Management Company Limited and 2 others v. WAPDA First Sukuk Company Limited, Lahore and others PLD 2017 SC 1; Muhammad Khurshid v. the State PLD 1963 SC 157; and Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Abdul Hameed through L.Rs and others v. Shamasuddin and others PLD 2008 SC 140; Reddaway v. Banham [1896] AC 199; Lazarus Estates Ltd. v. Beasley [1956] 1 Q.B.702; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; 2003 SCMR 549; Baja through L.Rs and others v. Mst. Bakhan and others 2015 SCMR 1704; Administrator Municipal Corporation, Peshawar v. Taimoor Hussain Amin and others PLD 2020 SC 249; 2015 SCMR 1; 2010 SCMR 1370; 2010 SCMR 1358; 2010 SCMR 1351; 2005 SCMR 236; S.M. Zahir v. Pirzada Syed Fazal Ali Ajmeri 1974 SCMR 490; Ghulam Rasool and others v. Sardar-ul-Hassan and another 1997 SCMR 976; Muslim Commercial Bank Ltd. through General Attorney and another v. Amir Hussain and another 1996 SCMR 464; Mst. Mehrun Nisa v. Zainul Abidin and 5 others 1995 SCMR 1139; C.M.A. No.3443-L/2016 in C.R.P. Nil/2016 in C.A. No.104-L/2015 and C.R.P. 71-L/2016 in C.A. 104-L/2015; WAPDA First Sukuk Company through Director/Company Secretary and another v. National Fertilizer Corporation of Pakistan (Pvt.) Ltd. through Chief Executive and 4 others 2015 CLC 934; Johnston v. Sunwest Bank of Grant County 116 N. M. 422, 863 P.2d 1043 (1993); Republic of the Philippines, et al., v. Jerry S. Pimentel, Temporary Administrator of the Estate of Mariano J. Pimentel, Deceased, et al. 128 S.Ct.2180 (2008); Travelers Ins. Co. v. Montoya 566 P.2d 105 (1977) and Christina Louise ROBERTSON, Executrix of the Estate of Marian Winski v. La LINDA, INC. and John Z. Winski (548 So.2d 1308 (1989) ref.

Uzair Karamat Bhandari, Mian Muhammad Kashif and Abdul Muqtadir Khan for Appellants.

Mian Sami ud Din for Appellant (in R.F.A. No.54270 of 2017).

Adil Bandial, Asad Hussain, Zubair Hussain, Zahir Abbas and Shahzad Ahmad Cheema for Appellant (in R.F.A. No.50966 of 2017).

Jawad Qureshi, Hashim Zafar, Syed Shahid Hussain and Shahid Rafiq Mayo for Appellant (in R.F.A. No.67900 of 2017).

A.W. Butt and Obaid Aslam for Appellant (in F.A.O. No.18169 of 2017).

Ms. Ayesha Hamid, Atta Mustafa Rizvi, Ms. Sahar Zareen Bandial and Raja Akbar Ali Mehboob for Respondents Nos.1 and 2.

Asad Javed, Sikandar Abbas Jajja and Farrukh Ilyas Cheema for Respondent No.3.

2022 C L C 1060

[Lahore]

Before Muhammad Ameer Bhatti, CJ

GHULAM QASIM and others----Petitioners

Versus

MEMBER BOARD OF REVENUE PUNJAB and others----Respondents

Civil Revision No.2486 of 2012, heard on 7th December, 2021.

Specific Relief Act (I of 1877)---

----S.42---Transfer of Property Act (IV of 1882), S. 60---Suit for declaration---Right of mortgagor to redeem---Limitation---Scope---Suit land was mortgaged with the petitioners-mortgagees by respondents-mortgagors in the year 1933---Respondents moved an application for redemption of their mortgaged land in the year 2004 which was accepted throughout the revenue hierarchy---Petitioners filed suit for declaration and challenged validity of orders passed by the revenue hierarchy---Suit was concurrently dismissed---Validity---Suit land was mortgaged in the year 1933 and its redemption period as stipulated under the Limitation Act, 1908, was sixty years, which if calculated from the date of mortgage was 1993, so, the mortgagors had right to apply for redemption of mortgaged land till said date but before completion of that period the condition of period imposed in the Limitation Act, 1908 was removed by the Supreme Court in Maqbool Ahmad v. Hakoomat-e-Pakistan [1991 SCMR 2063]---Case of the mortgagee's time to apply for getting declaration of their being full owners had not commenced---Application filed by the mortgagors before the revenue hierarchy for redemption of their land was competently dealt with---Courts below had not committed any illegality and irregularity by rendering the impugned decisions---Revision petition was dismissed, in circumstances.

Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92; Durranai and 35 others v. Hamidullah Khan and 15 others 2007 SCMR 480 and Zwahir Jan and others v. Lal Rehman and others 2010 YLR 2503 ref.

Mian Shah Abbas Iqbal and Sheraz Khalid for Petitioners.

Najam Iqbal Balal for Respondents.

2022 C L C 1083

[Lahore]

Before Abid Hussain Chattha, J

ABDUL HAMEED----Petitioner

Versus

PROVINCE OF THE PUNJAB and 7 others----Respondents

Writ Petition No.4488 of 2021/BWP, heard on 30th September, 2021.

(a) Constitution of Pakistan---

----Arts.4, 10-A & 25---Punjab Finance Act (XLI of 2012), S.6 [since omitted]---Punjab Finance Act (VI of 2010), S.6 [since omitted]---Right of individuals to be dealt in accordance with law---Right to fair trial---Equality of citizens---Recovery of Capital Value Tax (CVT)---Due process---Condemned unheard---Scope---Petitioners were aggrieved of issuance of notices by Sub-Registrar for payment of CVT which could not be collected in full at the time of registration of documents---Validity---Impugned notice(s) seeking payment of deficiency of the CVT were not sustainable in the eyes of law for the reason that the same had been issued without providing a right of personal hearing to the petitioner(s), without determination of the amount due mentioned therein as stipulated under the law and without considering the exemptions contained in the applicable law---Impugned notice(s) were illegal and of no legal effect as the same had been issued without lawful authority and in violation of due process of law---Fresh proceedings could be initiated against the petitioner(s) for the recovery of deficient amount of the CVT in accordance with law provided there was a valid assessment order---Constitutional petitions were allowed.

(b) Interpretation of statues---

----Taxing statute---Amendments---Scope---Procedural amendments providing a machinery to collect and recover a tax through due process are given retrospective effect, especially when they are beneficial to the taxpayer.

Faisalabad Electric Supply Company Ltd. (FESCO) v. Federation of Pakistan through Secretary Finance, Islamabad and others 2019 PTD 1780; Commissioner Inland Revenue Zone-II, Regional Tax Office, Multan v. Mrs. Ambreen Fawad C/o Pak Arab Fertilizers Limited, Multan PLD 2014 Lah. 72; The Commissioner of Income Tax, Central Zone B, Karachi v. M/s Asbestos Cement Industries Limited, Karachi 1993 SCMR 1276 and Messrs Leather Connections (Pvt.) Limited through its Chief Executive v. Central Board of Revenue, Government of Pakistan, Islamabad through Chairman and 2 others 2000 PTD 3369 ref.

(c) Constitution of Pakistan---

----Arts. 4, 10-A & 25---Right of individuals to be dealt in accordance with law---Right to fair trial---Equality of citizens---Scope---Absence of due process offends Arts. 4, 10-A and 25 of the Constitution.

Faisalabad Electric Supply Company Ltd. (FESCO) v. Federation of Pakistan through Secretary Finance, Islamabad and others 2019 PTD 1780; Commissioner Inland Revenue Zone-II, Regional Tax Office, Multan v. Mrs. Ambreen Fawad C/o Pak Arab Fertilizers Limited, Multan (PLD 2014 Lah. 72; The Commissioner of Income Tax, Central Zone B, Karachi v. M/s Asbestos Cement Industries Limited, Karachi 1993 SCMR 1276 and Messrs Leather Connections (Pvt.) Limited through its Chief Executive v. Central Board of Revenue, Government of Pakistan, Islamabad through Chairman and 2 others 2000 PTD 3369 ref.

Mushtaq Musaddiq for Petitioner (in W.P. No. 5316 of 2021 / BWP).

M. Abdul Rasheed Rashid for Petitioner (in W. P. No. 4703 / 2021).

Malik Munir Ahmad Waran for Petitioners (in W. Ps. Nos. 7546 and 7557 of 2021 / BWP).

Muhammad Asif Mehmood Pirzada for Petitionerw (in W.Ps. Nos. 1240, 1241, 1242, 1243, 1244, 1245, 1246 and 4300 of 2021/BWP).

Imran Pasha for Petitioners (in W.Ps. Nos. 5016, 4798, 6260 and 4815 of 2021/BWP).

Mian Muhammad Azhar for Petitioners (in W.Ps. Nos. 5015, 4964 and 4965 of 2021 / BWP).

Mansoor Mooin and Malik M. Hafeez for Petitioners (in W.P. No. 5015 of 2021 / BWP).

Rao Nasir Mehmood for Petitioner (in W.P. No. 5005 of 2021 / BWP).

Zeeshan Ali for Petitioner (in W.Ps. Nos. 4252 and 5099 of 2021 / BWP).

Hassan Mehmood Ch. for Petitioner (in W.Ps. Nos. 5275, 1246, 4254 and 4253 of 2021 / BWP).

Muhammad Uzair Qayyum and Hafiz Muhammad Abdul Qayyum for Petitioner (in W. P. No. 3103 of 2021 / BWP).

Syed Mudassir Hussain Naqvi and Muhammad Farooq, for Petitioner (in W.Ps. Nos. 5406, 5508 and 5407 of 2021 / BWP).

Tariq Mahmood Khan, Advocate in W.P. No. 951 of 2021 / BWP).

Chaudhary Shahid Mehmood, Assistant Advocate General along with Inspector of Stamps, Board of Revenue, Muhammad Saleem Akhtar and Muhammad Shahid Riaz, representatives of the Respondents

Mehwish Mahmood, Research Officer.

2022 C L C 1137

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

MUHAMMAD AKRAM----Appellant

Versus

MUHAMMAD ASIF----Respondent

R.F.A. No.14 of 2021, decided on 2nd November, 2021.

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

----O.VIII, R.6 & 10---Qanun-e-Shahadat (10 of 1984), Arts.76 & 77---Suit for recovery---Cheque dishonoured---Counter claim/set-off---Right to file replication/rejoinder---Leave to appear/defend was allowed---Respondent filed written statement wherein he pleaded that some amount was payable by the appellant/plaintiff relying on photocopies of two cheques---Suit of the appellant was dismissed and the claim of respondent was decreed---Appellant contended that when suit of the appellant/plaintiff was dismissed, the set-off claim could not survive, which at best could have been considered as defence---Validity---After filing of written statement/counter-claim, Trial Court fixed the case for framing of additional issues and called/recorded the evidence---Case was never fixed for filing of written statement/rejoinder to the counter claim---Without calling upon the appellant or putting the notice to file written statement/replication/rejoinder against the counter claim of the respondent/defendant, Trial Court had driven the negative inference and took the failure to file the rejoinder/written statement as admission to the claim of respondent, which clearly caused prejudice to the case of the appellant---Documents in question i.e. cheques along with dishonour-slips being in the possession of the Police in connection with criminal case registered under S.489-F of P.P.C., were not beyond the reach of learned Trial Court and the original could have easily been procured/compared/exhibited---Photocopies of the dishonour-slips were on record without examining its maker---Examination-in-chief evidence that objection was raised when such photocopies were exhibited in the Trial Court---Said objection was not decided by the Trial Court---Reliance on such photocopies, rather bringing the same on record when the primary evidence was readily available, was contradictory to provisions of Qanun-e-Shahadat, 1984---Appeal was allowed accordingly.

Abdul Rehman and another v. Zia-ul-Haque Makhduoom and others 2012 SCMR 954 and Abdul Rahman through L.Rs. v. Haji Muhammad Yousaf through L.Rs 2007 SCMR 61 rel.

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

----O.VIII, R. 6---Counter claim to be considered as set-off---Jurisdiction of court---Although a counter claim was neither a legal set-off nor an equitable set-off, however, no law precluded a Court from treating a counter claim as a plaint, provided it contained all the necessary requisites sufficient to be treated as a plaint.

Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another PLD 1983 Supreme Court 5; Syed Ahmad Saeed Kirmani v. M/s Muslim Commercial Bank Ltd., Islamabad 1993 SCMR 441 and Civil Aviation Authority, Quaid-e-Azam, International Airport, Karachi v. Japak International (Pvt.) Limited, Lahore 2009 SCMR 666 rel.

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

----O.VIII, R.6---Set-off to surviveafter failure of the claim of the plaintiff---Claim of set-off would survive even if the claim of the plaintiff broke down for any reason.

Muhammad Khalid v. Muhammad Adnan Qureshi 2018 CLC 585; Jamandass Nagindass v. Beharilal Bishweshwarlal Zunzunwalla AIR 1941 Nagpur 258 and (Firm) Bansi Dhar Kunji Lal v. Lalta Prasad and anotherAIR 1934 Allahabad 543 rel.

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

----Arts.76 & 77---Secondary evidence as to the existence/conditions / contents of documents could be given in limited circumstances---Condition to produce the secondary evidence was the notice to the party in whose possession/power the document existed, unless the case was falling in the proviso of Art.77 of Qanun-e-Shahadat, 1984---Admitting photocopy of documents in evidence and reading the same without observing legal requirements of Art. 76 was illegal.

Azhar Abbas and others v. Haji Tahir Abbas and another 2021 CLC 1351; Razia Begum v. Abdul Aziz 2006 CLC 772 and Danial Shafqat v. Nasreen 2005 YLR 1185 rel.

Waseem Sarwar Khan for Appellant.

Muhammad Masood Bilal for Respondent.

2022 C L C 1153

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Syed FAISAL MEHBOOB----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.145 of 2022, decided on 20th January, 2022.

(a) Civil Aviation Ordinance (XXXII of 1960)---

----S.6A---Civil Aviation Rules (1994), R.68---Constitution of Pakistan, Arts.23, 24 & 91---Judicial restraint---Constitutional petition---Structure free zone within the limits of Airport, Notification permitting establishment of---Petitioner prayed for an order restraining the respondents (Government Officials) from interfering into petitioner's peaceful possession over the land and from demolishing any constructions raised thereupon under the garb of impugned Notification---Petitioner contended that the notification was issued for a limited period/on temporary basis for a specific purpose to cater for the security threats apprehended during the construction phase of the Airport; that said purpose had been fulfilled and the said Notification was no longer enforceable being lapsed with the afflux of time; that the impugned Notification itself stated that the same would remain in force till the security environment of the area was improved; that the respondents authorities could not interfere into the peaceful possession of the petitioner over his land under the garb of a lapsed Notification unless a new notification was issued by the competent authority; that impugned Notification had neither been approved by the Federal Cabinet nor published in the official gazette in terms of Art.91 of the Constitution at the relevant time---Impugned Notification was issued by Federal Government to protect the aviation industry in order to curtail the tendency of incidents of aeroplane crashing---Restraining order if issued by High Court could possibly put a complete halt/hiatus to the initiatives taken by the Government for encouraging security plans/activities in country by enhancing security environment through the aviation industry to avoid any incident---Courts should hesitate to strike down laws unless they were obviously unconstitutional---Petitioner failed to point out any unconstitutional act committed by the respondents official---Interference by High Court within the purview of Art.199 of the Constitution would badly hamper the initiatives being taken by respondents authorities for security purposes and would also put an embargo on such like security based activities in future---Petitioner also failed to establish that a prima facie arguable case irreparable loss and balance of inconvenience were in favour of his claim---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 8, 29 &199---Jurisdiction of High Court---Judicial restraint---Scope---In absence of any glaring illegality/violation of fundamental rights, it was imperative that the Courts should exercise judicial restraint for passing any adverse order, which could potentially hinder/nullify any government initiative, particularly taken for the security enhancement---Judicial restraint would encourage the judges to exercise their powers with restraint/wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the Government having financial perspective/outcome/exercise.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and Human Rights Case No.14392 of 2013, 2014 SCMR 220 rel.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Essentials---For grant of interim injunction, all three ingredients, i.e. (i) prima facie arguable case (ii) irreparable loss and (iii) balance of inconvenience must co-exist and if one ingredient was missing, injunction could not be granted.

Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092; Saleem Mahmood Akhtar and 2 others v. Assistant District Officer and 5 others 2020 CLC 1094; Dewan Petroleum (Pvt.) Ltd. v. Oil and Gas Investment Ltd. 2019 CLC 1486; Mst. Rukayya Parveen and another v. Province of Punjab through D.O. (R) Pakpattan Sharif and 4 others 2017 MLD 1493; Mst. Azra Parvez and 3 others versus Sheikh Ashfaq Hussain and 7 others 2015 CLC 1695 and Gulzar Begum v. Ehboob Hussain alias Mehboob Khan 2012 YLR 809 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Interim relief, grant of---Scope---Interim relief could only be granted as per mandate of Art.199(4) of the Constitution where it had been clearly stated that before making an interim order, the Court had to look into the public interest which should not be harmed/hampered in any manner.

Barrister Haroon Dugal, Advocate Supreme Court along with Waheed Alam for Petitioner.

Rashid Hanif, Deputy Attorney General and Malik Ahtesham Saleem, Assistant Attorney General for Federation of Pakistan (on Court call).

2022 C L C 1166

[Lahore]

Before Ch. Muhammad Iqbal, J

ABDUL REHMAN KHAN through Special Attorney and others----Petitioners

Versus

The MEMBER (JUDICIAL-V)/CHIEF SETTLEMENT COMMISSIONER and others----Respondents

Writ Petition No.14-R of 2011, decided on 5th October, 2021.

(a) Administration of justice---

----Fraud---Effect---Fraud vitiates the most solemn proceedings---Any edifice so raised on the basis of such fraudulent transaction, stands automatically dismantled---Any ill-gotten gain achieved by committing fraud cannot be validated under any law.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Khursheed Begum and others v. Inam-ur-Rehman Khan and others PLD 2009 Lah. 552; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097 rel.

(b) Administration of justice---

----Void order---Scope---Any order which is passed by an authority without jurisdiction, is illegal and void ab-initio.

Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Bashir Ahmad v. Meer Aslam Jan 2007 CLC 1544 and Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others 2009 CLD 960 rel.

(c) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3---Allotment, cancellation of---Chief Settlement Commissioner---Jurisdiction---Fraud and misrepresentation---Effect---Petitioner assailed order of cancellation of allotment order regarding land in question---Validity---Petitioner obtained allotment order on 6-6-2009 by practicing fraud and misrepresentation of true facts---Factum of allotment to non-evacuee citizens of enemy state came to the knowledge of Chief Settlement Commissioner who by declaring order of allotment as result of fraud and misrepresentation withdrew the same and cancelled allotment vide subsequent order dated 17-7-2009 and committed no illegality---High Court declined to interfere in the order passed by Chief Settlement Commissioner, as it was neither perverse nor illegal and there was no jurisdictional defect---Constitutional petition was dismissed, in circumstances.

Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd. and others 2016 SCMR 222; Virasat Ullah Versus Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others PLD 1991 SC 691 and Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819 rel.

Ch. Rashid Abdullah for Petitioner.

Gohar Nawaz Sandhu, Assistant Advocate General, Waseem Iqbal Butt and Muhammad Boota for Respondents.

2022 C L C 1188

[Lahore]

Before Asim Hafeez, J

AYESHA SAJID----Petitioner

Versus

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

Writ Petition No.78490 of 2021, decided on 16th December, 2021.

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

----O.XXXIX, Rr.1 & 2---Constitution of Pakistan, Art.199---Constitutional petition---Injunction sought---Jurisdiction of High Court---Outstanding tax payable under a tax statute, recovery of---Petitioner prayed for restraining order on the premise that appeal was pending adjudication before the respondent/authority being first forum of appeal in terms of statutory remedy and that petitioner had the right that his pending appeal be heard on merits before initiating recovery of disputed liability---Held, that appeal was fixed before the Commissioner (Appeals) but that significant fact was not disclosed in the petition, which amounted to withholding of material information---Injunction, if granted, would have the cause/effect of impeding the collection of public revenues---In absence of satisfaction that injunction solicited would not have the effect of impeding collection of public revenues, High Court could not grant injunction when no case of any jurisdictional error was pointed out---Constitutional petition was dismissed accordingly.

Messrs Imran Traders v. Commissioner Inland Revenue and others W.P. No.77496 of 2021, dated 14/12/2021 rel.

Messrs Usman Cloth Mills (Pvt.) Ltd. v. Federation of Pakistan, ICA No.72608 of 2021, dated 29/11/2021 and Messrs Ameen Steel Industries Ltd. v. Federation of Pakistan I.C.A. No.68764 of 2021 dated 04/11/2021 declared as per-incurium.

(b) Constitution of Pakistan---

----Arts.189 & 203---"Judgment per-incurium"---Defined---Word "per-incuriam" meant "carelessness"---Once the Court had come to the conclusion that the judgment was delivered per-incuriam, such judgment itself was without jurisdiction as per-incuriam, therefore, High Court erred in law to give due weight to said observation without application of mind.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 Supreme Court 879 and Fasih-ud-Din Khan and others v. Government of Punjab and others 2010 SCMR 1778 rel.

(c) Precedent---

----"Obiter dicta"---Scope and meaning [p. 1193] F

Judicial Review of Public Actions by Fazal Karim (Second Edition), Volume-1 ref.

Zahid Imran Gondal, assisted by Zeshan Ghani Sulehria for Petitioner.

Shehzad Ahmad Cheema, assisted by Ch. Zeeshan Afzaal Hashmi and M. Nouman Shams Qazi for Respondents.

2022 C L C 1196

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Syed TAHWER HUSSAIN RIZVI----Petitioner

Versus

Syed JAVED ALI RIZVI----Respondent

Civil Revision No.707 of 2021, decided on 30th June, 2021.

(a) BenamiTransaction (Prohibition) Act (Vof 2017)---

----S.43---Civil Procedure Code (V of 1908), S.9, O.VII, R.11---Suit for declaration---Respondent's suit was rejected by Civil Court for want of jurisdiction---Appellate Court reversed and remanded the case---Validity---Any suit of civil nature was to be tried by the civil courts unless jurisdiction was expressly or impliedly barred---Curtailment/ouster of jurisdiction of civil Court was to be construed strictly---For applicability of Benami Transaction (Prohibition) Act, 2017 on a transaction, property must be held by a benamidar under clause (a) & (b) of S. 2(8)(A) of the Act and not under exclusion envisaged thereunder---No proceedings had been initiated under Act, 2017 in respect of suit property---Two private persons admittedly related by kinship had dispute as to real ownership---Revision petition was dismissed accordingly.

Hakam and others v. TassaduqHussain Shah PLD 2007 Lah. 261 rel.

(b) Benami Transaction (Prohibition) Act (V of 2017)---

----Preamble---Scope---Practice of holding benami property had become a device for corrupt segment of the society as means of concealing money or property to evade payment of proper taxes or to hide their ill-gotten money in the name of some fictitious person or person who would act in connivance with the corrupt person to hide his property and for that reason Benami Transaction (Prohibition) Act, 2017, had been promulgated by the Legislature with the aim to check such corrupt practices.

2022 C L C 1261

[Lahore (Bahawalpur Bench)]

Before Ahmad Nadeem Arshad, J

Malik GULL ZAMAN----Petitioner

Versus

DEPUTY COMMISSIONER and others----Respondents

Writ Petition No.4808 of 2021/BWP, decided on 6th July, 2021.

(a) Punjab Local Government Act (XIIIof 2019)---

----S.284 & 5th Schd., item No.62---Erection/re-erection of a building without approval of the site/building plan---Petitioner failed to provide copy of the sanction site plan---Chief Officer, Town Committee issued notice with averments that petitioner constructed 22 shops without getting sanction of plan---Said Officer warned that in case of failure to submit fresh map/plan along with dues for approval within three days, such illegal construction would be demolished---Said shops were subsequently sealed---Held, power to seal the shops was not to be exercised automatically where the construction was against the approved plan/plan was not got approved---Authority regardless of the legal status of the shops should be satisfied that the sealing of the shops was necessary to avoid any serious threat to the public health, safety, welfare or danger to life and property---Written order of concerned officer as denoted by S.284 of Punjab Local Government Act, 2019 was lacking---Municipal Committee admitted that record of deposit of receipt was not available and was destroyed due to riots---FIR was also got registered in that regard---Municipal Committee never asked the petitioner to demolish/make alteration in the building nor demanded any composition fee during the period when the area of shops remained within its local limits---Silence for such a long period tantamount to acquiescence---No provision and procedure was available in the Punjab Local Government Act, 2019 for approval of a site plan for erection and re-erection of a building; how the authority of a Town Committee could ask for submission of a plan for fresh approval thereof; would issue notices for its non-compliance; and taking any action for violation of the Punjab Local Government Act, 2019---Shops of the petitioner were sealed without any prior inquiry to determine whether there was any serious threat/danger to public life/property and secondly it was without hearing, hence was violative of fundamental rights and therefore without jurisdiction/authority---Constitutional petition being maintainable was accepted---High Court referred the matter to Town Committee for decision afresh through detailed reasoning; and required the authority in case of petitioner's failure in proving approval of site plan in his favour, to see the possibility of grant of ex-post facto approval of the site plan if the concerned Act and Rules provided any mechanism/procedure; and also directed to immediately de-seal the shops.

Wattan Party through President v. Federation of Pakistan Through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Muslimabad Cooperative Housing Society Ltd., Through Secretary v. Mst. Siddiqa Faiz and others PLD 2008 SC 135 and The Muree Burwery Co Ltd v. Pakistan, through The Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 ref.

(b) General Clauses Act (10 of 1897)---

----S.24A---Speaking order---Scope---Observation/comments "allowed as rules as per law" could, by no stretch of imagination, be called as an order and if it was presumed as an order then it did not qualify the test of a speaking order in terms of S.24-A of the General Clauses Act.

(c) Punjab Local Government Act (XIII of 2019)---

----S.284---Constitution of Pakistan, Arts.4, 9, 18, 23 & 24---Sealing a premises not having sanctioned site plan---Power of sealing the property without satisfying the conditions as provided in S.284 of the Punjab Local Government Act, 2019 would encroach upon right of property and right to carry lawful business which was a fundamental right of every citizen enshrined in Arts. 4, 9, 18, 23 and 24 of the Constitution.

(d) Constitution of Pakistan---

----Art.10A---Due process---Fair opportunity to hearing---Notice---Scope---Contention on behalf of the Authority was that prior to sealing, notices were given---Simple notice could not meet with the principle of rule of natural justice i.e. audi alterm partem---Public functionaries while exercising their discretionary power, had to act justly and fairly especially where fundamental rights of the citizen were involved---After introduction of Art.10A in the Constitution, fair trial and due process was a fundamental right of every citizen of Pakistan.

Ishtiaq Ahmed v. Competent Authority through Registrar, Supreme Court of Pakistan 2016 SCMR 943 and Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others PLD 2019 SC 745 ref.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---No adequate/efficacious remedy---Scope---Mere fact that the alternative remedy of appeal was available to the parties, did not bar the jurisdiction of High Court; especially if the remedy was not adequate and efficacious---Rule of alternate remedy was to regulate the constitutional jurisdiction and exception to such rule was where the impugned order was patently illegal and without jurisdiction.

(f) Discretion---

----Discretionary Powers---Scope---Discretionary decision should be made according to rational reasons, otherwise the decision would be arbitrary and might be considered misuse of power.

Corruption in Haji Arrangements in Suo Motu case No.24 of 2010 and others PLD 2011 SC 963 and Director Food, N.W.F.P. and another v. Messrs Madina Flour And General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1 ref.

Muhammad Aslam Khan Dhukkar for Petitioner.

Malik Shahnawaz Kalyar, Assistant Advocate General.

2022 C L C 1296

[Lahore]

Before Jawad Hassan, J

AHMAD ABBAS----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.48330 of 2021, decided on 15th September, 2021.

Civil Procedure Code (V of 1908)---

----S.47, O.XIII, R.10---Questions to be determined by the Court executing decree---Rented premises---Ejectment petition---Partition of Joint Khata---Demarcation of property---Scope---Petitioner assailed the dismissal of his application under S.47 read with O.XIII, R.10, C.P.C.---Contention of petitioner was that suit property was situated in joint khewat and no specific boundary or number of property was mentioned in the ejectment petition, therefore, the same could not be indentified without demarcation and that the Executing Court had gone beyond the decree by passing the order regarding removal of structure and machinery installed on the property in question---Validity---Petitioner had to return possession of the property which was given to him on rent and it was not relevant whether property was part of joint khata or not---No controversy was left which had to be resolved by the Executing Court---Courts below had rightly dismissed the application---Writ petition was dismissed.

Mst. Sanobar Sultan and others v. Obaidullah Khan and others PLD 2009 SC 71; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260; Mst. Noor-un-Nisa and others v. United Bank Ltd. PLD 2021 Lah. 90 and Mst. Azra Riaz v. Additional District Judge and others 2021 CLC 623 ref.

Babar Shahzad Hashmi for Petitioner.

Mian Muhammad Azam Mahmood for Respondents.

2022 C L C 1300

[Lahore]

Before Safdar Saleem Shahid, J

BASHIR AHMAD----Petitioner

Versus

KHADIM HUSSAIN and others----Respondents

Civil Revision No.2025 of 2013, decided on 16th June, 2021.

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

----S.12---Specific performance of agreement--- Scope---Such is a discretionary relief under Specific Relief Act, 1877---Even if agreement is proved, Court is not bound to decree the suit in the light of prayer but Court may consider other relevant factors brought before it while deciding fate of the case for specific performance.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 rel.

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

----S.12---Transfer of Property Act (IV of 1882), S.53-A---Specific performance of agreement to sell---Title over property---Part performance---Effect---Mere agreement to sell does not create any title and it cannot place any restriction on the rights of owner unless it is proved--- If person having agreement to sell proves its execution then provision of S.53-A of Transfer of Property Act, 1882, protects his rights, otherwise mere on the basis of agreement to sell right to enjoy property by owner cannot be curtaild.

Muhammad Younas and others v. Mst. Muhammad Bibi and others 2001 YLR 2789; Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165; Muhammad Ashraf v. Muslim Commercial Bank Limited and 2 others 2018 CLD 911 and Ali Akbar v. Muhammad Aslam Khan and 10 others 2008 CLC 145 rel.

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

----S.12---Suit for specific performance of agreement to sell---Agreement---Proof---Pre-conditions---Misreading and non-reading of evidence---Respondent/plaintiff sought specific performance of agreement to sell regarding suit property---Trial Court and Lower Appellate Court decreed the suit in favour of respondent/plaintiff---Validity---Mere existence of document did not prove its execution---If contents of document in question were specifically denied, then beneficiary of the document was to prove the same, specially where executant was Parada observing lady or an illiterate person--- Claiming person had to prove that document was executed with free consent and knowledge of executant and consideration amount was also paid---High Court was not satisfied with genuineness of document in question and its execution was not proved as neither consideration amount was proved nor it had been proved that the executant was given understanding about its contents---High Court set aside concurrent judgments and decrees passed by two Courts below as error had been committed while appraising evidence of respondent/plaintiff---Revision was allowed accordingly.

Abdul Wahab v. Sarbaz 2014 YLR 1338; Abdul Majid v. Ghulam Hussain 2008 CLC 268; Mst. Waris Jan and another v. Liaqat Ali and others PLD 2019 Lah. 333; Zahid Islam v. Mst. Rehmat Bibi and others 2020 CLC 54; Muhammad Aslam v. Mst. Razia Begum and 3 others 1999 YLR 620 and Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Wazir Mai PLD 2005 SC 658 rel.

Javaid Anwar Janjua for Petitioner.

Syed Mukhtar Abbas and Ch. Amjad Hussain for Respondents.

2022 C L C 1328

[Lahore]

Before Abid Aziz Sheikh and Muhammad Shan Gul, JJ

SALMAN SHAHID----Petitioner

Versus

UNIVERSITY OF MANAGEMENT AND TECHNOLOGY, through Chairman, Board of Governors and Boards of Trustees and 9 others----Respondents

Intra Court Appeal No.454 of 2016 in Writ Petition No.12653 of 2014, decided on 21st June of 2021.

Constitution of Pakistan, 1973 ---

----Art.199---University of Management and Technology, Lahore Act (XV of 2004), Ss. 9, 13 & 14---Constitutional petition filed by a student of private sector university---Maintainability---Whether the University of Management and Technology, Lahore ('the University') was a "person"---Functional test---Scope---Student contended that constitutional jurisdiction of the High Court could be invoked as the University had statutory rules ---Grievance of the student was that he completed thirty credit hours required for the award of degree of MS/M.Phil, therefore, requirement of submission of thesis, equivalent to six credit hours, by the University was unjustified---Held, that the test to determine whether University of Management and Technology ('the University ') was a "person" amenable to judicial review could be ascertained firstly from the functions performed by the University and secondly, the status of administrative and financial control of the Government with respect to the University ; which the Courts generally classified as "functional test"---Under S.14 of the University of Management and Technology, Lahore Act, 2004 ('the Act 2004'), the administration and management of the University vested in the Board---Section 13 of the Act 2004 stipulated that Board of Governors shall consist of various individuals, including members of the Board of Trustees ---Though some of the Government officials were also members of the Board of Governors, however, majority members of the Board were private individuals, hence Government did not have complete domination in running the affairs of the University---Under S.9 of the Act 2004, all appointments as well as terms and conditions of such appointments were determined by the Board and not by the Government---Funds of the University were also generated from private source (fee etc.) and the Government had no direct financial control on the University ---Functions of the University were also for private gains/profits and not exclusively for the benefit of public without any profits ---University was not a 'person' performing functions in connection with the affairs of Federation, Government or Local Authority for the purpose of judicial review under Art. 199 of the Constitution---Mere fact that the University had been established under the statute would itself not be sufficient to treat the University as a ' person 'for the purpose of Art. 199 of the Constitution---Constitutional petition against the University was not maintainable and was thus rightly dismissed by the Single Bench of the High Court---Intra Court Appeal of the appellant/student was dismissed, in circumstances.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Anoosha Shaigan v. Lahore University of Management Sciences and others PLD 2007 Lah. 568; Aown Abbas Bhatti v. Forman Christian College and others PLD 2018 Lah. 435; Noor Badshah v. United Bank Limited and others 2015 PLC (C.S.) 468; Pervaiz Akhter Bhatti v. Federation of Pakistan and others 2020 IHC 146; Abdul Sami Memon and others v. Federation of Pakistan and others 2020 PLC 125 and Pakistan Olympic Association and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221 ref.

Muhammad Zafar Sultan for Appellant.

2022 C L C 1368

[Lahore]

Before Safdar Saleem Shahid, J

GHULAM RASUL----Petitioner

Versus

JAVED AHMAD and others----Respondents

Civil Revision No.1378 of 2009, heard on 27th May, 2021.

(a) Punjab Pre-emption Act (I of 1913) [since repealed]---

----S.22---Plaintiff may be called on to make deposit or to file security---Scope---Where the decretal amount was deposited by the plaintiff and the possession was also delivered to him then the question of non-deposit of Zar-e-Panjum was of no significance.

(b) High Court (Lahore) Rules and Orders---

----Vol.IV, Chap. 16, Part-D, Cl.(4)---Custody of judicial records---Scope---If any document or part of record is subsequently found missing, the Presiding Officer of the Court shall immediately take action for its recovery or reconstruction---Presiding Officer shall also fix responsibility on the custodian if the document was on the index, or on the official whom the custodian relieved, if it was not on the index.

Nazir Ahmad v. Muhammad Rafiq 1993 CLC 257 and Mst. Gul Begum and 17 others v. Mst. Rehmat Jan and 8 others 1995 CLC 1643 ref.

Mst. Khudija Begum v. The State and others PLD 1971 Baghdad-ul-Jadid 19 rel.

(c) Administration of justice---

----Principle that acts or omissions of a Court do not injure a litigant is a truism by now.

Namdar Khan v. Muhammad Akram Khan and 14 others 1993 SCMR 434 ref.

Sh. Suleman Elahi for Petitioner.

Arshad Malik Awan for Respondents Nos.1 and 2.

2022 C L C 1397

[Lahore]

Before Atir Mahmood, J

Messrs FACT FINDERS (PVT.) LTD. and others----Appellants

Versus

CNBC PAKISTAN and others----Respondents

F.A.O. No.264 of 2015, heard on 19th October, 2020.

(a) Defamation Ordinance (LVI of 2002)-

----S.13---Civil Procedure Code (V of 1908), S.9---Remedies under special and general laws---Ouster clause---Bar on jurisdiction---Civil Court ; concurrent jurisdiction of---Law of Torts; history in Pakistan---History of Tort and law of Defamation in Pakistan had been derived from the English common law---Before promulgation and introduction of the Defamation Ordinance, 2002, the defamation laws were actionable before the Civil Court under S.9 of C.P.C.---Defamation Ordinance, 2002 did not contain any ouster clause---Ordinance nowhere mentioned that the jurisdiction of the Civil Court would be barred with regard to the actions against defamation---Section 13 of the Ordinance, only prescribed the remedy to enforce the right, without ousting the general jurisdiction of the civil courts and did not preclude a person from initiating an action for damages under the law of Torts by filing a suit for damages under Civil Procedure Code, 1908---Any person aggrieved by any act of defamation had to select one of the two remedies i.e. under civil law or general law, however, after selecting anyone of the multiple remedies the other remedy would become completely barred---Appellants, in the present case, availed the option of filing of suit before the Civil Judge therefore, same was not against the law---Impugned order passed by the Trial Court was illegal and arbitrary, ultra vires, coram non judice and void and was declared to be not sustainable.

Ch. Zulfiqqar Ali Cheema v. Farhan Arshad Mir and others PLD 2015 SC 134; Dr. Faiza Asghar v. Nighat Nasir Sheikh and others PLD 2017 Lah. 884; and Raees Ghulam Sarwar v. Mansoor Sadiq and 4 others PLD 2008 Kar. 458 ref.

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

----S.9---Ultimate jurisdiction of Civil Court---Scope---Civil Courts were courts of ultimate jurisdiction and should continue to assume jurisdiction in respect of all civil matters, unless their jurisdiction were expressly or impliedly barred.

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

----O.VII, Rr.10(1) & 11---Defamation Ordinance (LVI of 2002), Preamble---"Return" and "rejection" of plaint---Distinction---Suit for defamation---Held, that "Return" was different from rejection---Return of plaint did not connote that the plaint had mistakes or that the rules for drafting the plaint were not conformed to, it simply meant that the court was not empowered to try the suit for which the plaint was filed---Under O.VII, R.10(1) of C.P.C., a plaint was returned on the sole ground of lack of jurisdiction with the concerned court---Defamation Ordinance, 2002 does not debar the plaintiff to file the suit for defamation before the Civil Court and the Defamation Ordinance, 2002 has not any overriding effect qua the jurisdiction of the ordinary civil court which had been provided by the legislature, therefore, the suit of the appellant was not returnable under O.VII, R.10, C.P.C.

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

----S.9---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.7(4) & 22(3)---Defamation Ordinance (LVI of 2002), S.13---Special and general law---Financial Institutions (Recovery of Finances) Ordinance, 2001 was a special law which gets priority over the Offences in Respect of Banks (Special Courts) Ordinance, 1984, the Cr.P.C. and the P.P.C. to try the same offence and the Banking Court has exclusive jurisdiction to try such cases---Section 22(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provided that there was no other Court except the Tribunal to adjudicate the insurance related matters, however, with regard to the suit for defamation, there was no bar in the Defamation Ordinance, 2002---Such was the choice of the aggrieved person to file suit before the Civil Court or avail remedy before the District Judge under special law i.e. Defamation Ordinance, 2002.

Syed Waqar Hussain Naqvi and Ashiq Hussain Hunjra for Appellants.

Muhammad Raheel Kamran Sheikh for Respondents.

2022 C L C 1442

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD SIDDIQUE----Appellant

Versus

NASIR IQBAL and another----Respondents

F.A.O. No.80 of 2018, heard on 29th June, 2021.

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

----S.17(4)(b)---Ejectment application---Commercial building---Personal need of the landlord's son---Rent Controller dismissed the ejectment application of the landlord/appellant on the ground that he was seeking eviction of shop (demised property) for his son and not for his own use---Held, that in case of residential building, the landlord could move the ejectment petition if he required the same in good faith for his own use or for the use of any member of his family (subject to fulfillment of other conditions as well), but if the demised property was commercial then landlord could move the ejectment application only for his own use---Statement of the appellant/landlord adduced in the evidence showed his intention to get the shop evicted for his son/children and not for his own personal need---Section 17(4)(b) of the Cantonment Rent Restriction Act, 1963, did not recognize the need of the children of the landlord as a valid ground for eviction of tenant---Record also showed that landlord owned others/multiple commercial buildings also, few of which were lying vacated---Additional Rent Controller had rightly dismissed ejectment application of the landlord---Appeal of the landlord was dismissed, in circumstances.

Mrs. Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933 and Muhammad Yousuf v. Mrs. Noor Jehan Bi through Attorney 2000 CLC 1252 ref.

Zamir Ahmad Malik for Appellant.

Sh. Usman Ullah Waleem for Respondent No.1.

2022 C L C 1451

[Lahore]

Before Muhammad Ameer Bhatti, CJ

Maj. (Retd.) BASHIR AHMED----Appellant

Versus

PROVINCE OF PUNJAB and others----Respondents

R.F.As.13860 and 22896 of 2019, heard on 25th May, 2022.

Land Acquisition Act (I of 1894)---

----S.18---Acquisition of land---Compensation---Classification of land---Determination---Revenue record---Appellant/land owner was aggrieved of compensation fixed by Referee Court---Plea raised by land owner was that land in question was commercial in nature whereas it was treated as residential for the purposes of compensation---Validity---Use of land at the time of acquisition was also to be considered a factor to determine its status/classification---Revenue record could not be the exclusive criteria to determine its value and potential---Classification of land in dispute was determined on the basis of revenue record---Adjoining land was classified as "commercial" and compensation was assessed accordingly---Potential of the land was also ignored as many factories in running position were also existing adjacent to appellant's factory, which was acquired by the authorities---High Court set aside findings recorded by Referee Court and enhanced compensation of land as per commercial status---Appeal was allowed accordingly.

Land Acquisition Collector, BOR Punjab v. Syed Haroon Iftikhar and others 2014 SCMR 659 and Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 ref.

Hafiz Rehman Aziz and Salman Ahmad Dogar for Appellants.

Malik Abdul Aziz Awan, Additional Advocate General and Sajjad Ahmad Qureshi, LAC, Punjab Highway for Respondents.

2022 C L C 1461

[Lahore]

Before Masud Abid Naqvi, J

MUSHTAQ AHMAD----Petitioner

Versus

MOHSIN IQBAL----Respondent

Civil Revision No.70852 of 2019, heard on 7th April, 2022.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art.114---Suit for specific performance---Estoppel---Non-deposit of sale consideration by plaintiff---Scope---Plaintiff filed suit for specific performance of agreement to sell---Trial Court decreed the suit---Appellate Court directed the plaintiff to pay a certain amount as enhanced consideration amount within 30 days failing which the appeal filed by defendant would be deemed to have been accepted---Plaintiff filed an application before the Appellate Court seeking permission to deposit the enhanced consideration with certain delay, which application was dismissed---Meanwhile, defendant had filed a revision petition before the High Court---Plaintiff intentionally concealed the dismissal of his application and filed cross-objection before the High Court---Validity---Plaintiff had voluntarily and expressly showed his willingness to pay the decretal amount which amounted to an admission of his liability---Admission, even implied, by a party, before the court during the judicial proceedings had to be given sanctity while applying the principle of estoppel as well as to respect moral and ethical rules and if retraction therefrom was allowed as a matter of right, then it would definitely result into distrust of the public litigants over the judiciary and would damage the sacred image of the courts that they were not capable to implement the orders passed by them in the judicial proceedings---Any such admission even implied or statement given before the court of law would operate as legal estoppel and estoppel by conduct against a party making such admission or giving such a statement or understanding---Dismissal of plaintiff's application had created legal right in favour of defendant---Plaintiff could not have assailed the judgment and decree of the Appellate Court before the High Court---Cross-objection was dismissed---Appeal filed by defendant before Appellate Court was deemed to have been accepted---Revision petition was dismissed being infructuous.

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

----Art.114---Estoppel---Scope---Doctrine of estoppel enacted in Art.114 of Qanun-e-Shahadat, 1984, is, in fact, an equitable doctrine, a rule of exclusion, which implies that if a person has by act or omission altered his position, he will be estopped and be precluded or debarred from denying it or take a position so as to alter his position to the determinant of the other person/the opposite party and prevents the litigant from raising inconsistent plea(s) in judicial proceedings by disallowing the litigant from blowing hot and cold at the same time.

Anwar Ali Snagha for Petitioner.

Nasrullah Khan Babar for Respondent.

2022 C L C 1473

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir and Muhammad Raza Qureshi, JJ

SHAFQAT ALI----Appellant

Versus

CHAIRMAN PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY, PEMRA and 5 others----Respondents

I.C.A. No.213 of 2020 in Writ Petition No.13462 of 2020, heard on 15th November, 2021.

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

----Ss.19 & 30-A---Pakistan Electronic Media Authority Rules, 2009, R.19---Pakistan Electronic Media Authority Cable Television (Operations) Regulations, 2002, Rgln. 28---Law Reforms Ordinance (XII of 1972), S. 3---Intra Court Appeal---Maintainability---Right of appeal, non-availing of---Petitioner assailed License to Operate Cable Television Network, issued to respondent in year 2017---Validity---Right to actionable claim to appellant arose on 05-07-2017 when in proceedings before Chairman Pakistan Electronic Media Authority, License to Operate Cable Television Network under S.19 of Pakistan Electronic Media Authority Ordinance, 2002, was issued to respondent---Such was the first step when proceedings commenced by which machinery of law i.e. Pakistan Electronic Media Authority Ordinance, 2002, Pakistan Electronic Media Authority Rules, 2009 and Pakistan Electronic Media Authority Cable Television (Operations) Regulations, 2002 framed thereunder were put into motion---Same License was assailed by appellant by invoking Constitutional jurisdiction of High Court and had sought its cancellation---Appellant was a person aggrieved who had remedy of appeal against order for issuance of a License by the Authority under Regln. 28 of Pakistan Electronic Media Authority Regulations, 2002 against order for grant of License to respondent---Order of the Authority was further appealable under S.30-A of Pakistan Electronic Media Authority Ordinance, 2002, before High Court--- Division Bench of High Court declined to interfere in the matter as approval/order for issuance of License in proceedings under Pakistan Electronic Media Authority Ordinance, 2002, Rules and Regulations framed thereunder was appealable under applicable provisions of law and action/License assailed in Constitutional Petition was subject to appeal---Intra Court Appeal was dismissed, in circumstances.

Province of Punjab v. Yasir Majeed Sheikh and others 2021 SCMR 624; Indus Trading and Contracting Company v. Collector of Customs and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

Syed Sajjad Haider Naqvi for Appellant.

Mehr Qamar Hussain Sandal, DAG and Usman Bin Umar Ahmad Gillani, AGM PEMRA for Respondents.

2022 C L C 1491

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Muhammad Raza Qureshi, JJ

Messrs TRAVEL INTERNATIONAL LIMITED and another----Petitioners

Versus

HABIB BANK LIMITED through Branch Manager and 34 others----Respondents

E.F.A. No.83 of 2016, heard on 23rd June, 2021.

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

----O.XXI, Rr.66 & 90---Limitation Act (IX of 1908), Art.166---Execution proceedings---Limitation---Notice to judgment debtor---Change of address---Knowledge of decree holder---Fraud, committing of---Effect---Appellant/judgment debtors were aggrieved of dismissal of their objections against auction of mortgaged land at throwaway price---Plea raised by them was that they were residing abroad and Bank had been corresponding with them on that address but notice were sent to the address available in record---Validity---Appellants/judgment debtors were not residing at addresses provided by decree holder Bank and address at Jeddah was known to Bank--- Executing Court was under legal obligation to identify through recording of evidence whether notices under O.XXI, R.66, C.P.C. were withheld fraudulently or not---If it was proved that Bank despite having knowledge of new address of appellants/judgment debtors withheld information from Executing Court then whole superstructure for sale was to fall---Judgment debtors were kept away from proceedings against them, then for such ex parte decree, subsequent auction proceedings and confirmation of sale, period of limitation was to commence from the date of knowledge of fraud or proceedings---Land in question was sold at a throwaway price and was causing substantial injury and loss to appellants/judgment debtors---Executing Court should have considered such aspect of the matter and exercised its jurisdiction under O.XXI, R.90, C.P.C. even in absence of appellants / judgment debtors---High Court set aside orders passed by Executing Court on objection petitions filed by appellants / judgment debtors and remanded the matter for decision afresh---Appeal was allowed accordingly.

Brig. (Retd.) Mazhar-ul-Haq and another v. Muslim Commercial Bank Limited and another PLD 1993 Lah. 706 and Muhammad Khalil v. Messrs Faisal M.B. Corporation and others 2019 SCMR 321 rel.

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

----Art.166---Execution of decree---Plea of fraud---Limitation, commencement of---Duty of Court---Instead of dismissing objection petition filed by judgment debtor summarily, Executing Court should frame issues.

Mir Wali Khan and another v. Manage Agricultural Development Bank of Pakistan and another PLD 2003 SC 500 and PLD 2009 Lah. 552 rel.

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

----O.XXI, R.66---"Reserve price" fixing of---Principle---Even if judgment debtor is not present before Executing Court, it is still an obligation of Executing Court to determine reserve price according to criteria of applicable provisions of law and dicta laid down by Courts.

Sh. Naveed Shahryar, Rana Khalid, Mehmood Habib ur Rehman, Bashir Ahmad, Saira Tufail, Fayyaz Ahmad Kaleem, Tauqeer Rana, Safina Safdar for the Appellants/Judgment Debtors.

Muhammad Imran Malik and Bilal Mehmood Khokhar for Appellants (in EFAs Nos.32320 and 32065 of 2021).

Ms. Ambreen Moeen along with Ms. Javeria Latif for Respondent No.1.

Shahid Tasawar Rao for Respondent No.2.

2022 C L C 1516

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

WAHID BUKHSH----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 7 others----Respondents

Writ Petition No.4024 of 2021, decided on 15th March, 2021.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Suit for recovery of dower---Oral nikahnama---Non-determination of dower at the time of nikah---Mehr-e-misl---Proper dower---Scope---Petitioner assailed orders passed by courts below whereby respondent (wife) was held entitled to recover mehr-e-misl---Validity---Nikah between the parties was orally solemnized according to Shariah---Under the Quranic Teachings the relations of Muslim family unit (spouse) was established through solemnization of nikah in order to determine the rights/obligations of a husband and wife and it was made mandatory for a husband to give dower to his wife---Quantum of the dower amount was left open for the parties to settle the same according to their independent opinion---In case the amount of dower was not mentioned in that eventuality a modus operandi was provided in Shariah to ascertain the same from the customs, status and allied social traits of the parties---Such settlement or determination of dower amount was named as proper dower (mehr-e-misl)---Litmus test for determination of proper dower was provided in Islamic jurisprudence whereby dower amount of other female members from the family of her father such as her other sisters, father's sisters, etcetera, would be considered as proper dower---Courts below had rightly declared the respondent entitled to receive proper dower i.e. similar as dower of her real sister---Constitutional petition was dismissed.

Mst. Manzoor Elahi v. Muhammad Nawaz and others 2002 MLD 988 ref.

Muhammadan Law by D.F. Mulla P. 289 rel.

2022 C L C 1529

[Lahore]

Before Ahmad Nadeem Arshad, J

MUHAMMAD HUSSAIN----Petitioner

Versus

Rana SOHAIL ANJUM and 8 others----Respondents

Civil Revision No.2020 of 2014, heard on 17th January, 2022.

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

----O.V, Rr.17, 19, 20 & O.IX, Rr. 6 & 13---Suit for declaration and permanent injunction filed by respondents---One of the petitioner/defendant was pleaded ex-parte while another two defendants contested the said suit---Respondents' suit was decreed by Trial Court---Petitioner moved application for setting aside ex-parte decree---Petitioner's application was concurrently dismissed by Courts below---Validity---Petitioner was summoned in the suit by issuing notices instead of summons---Process Server reported on the back of notice that date of the case was so close that service could not take place---On the notice it was reported that the petitioner was out of city for his important work, therefore, the order could not be complied with---Trial Court without considering the reports of the process server, observed that the service was not possible through ordinary mode and directed that he be summoned through citation in the newspaper---Name of the petitioner was wrongly reflected on the newspaper and postal certificate was also not available on the file about posting of the newspaper at the address of petitioner---Summons was not duly served upon the petitioner---Petitioner had not been served properly and the substituted service was defective in the eye of law---Admittedly the petitioner was an illiterate rustic villager having no access to the newspaper---Nothing on the file to demonstrate that the petitioner had the knowledge of proceedings pending against him but he intentionally failed to appear---Relevant order of Trial Court did not demonstrate that it had made its satisfaction that the petitioner had been avoiding his service---Provisions of O.V, Rr. 17, 19 & 20 of Civil Procedure Code had been seriously violated in the case and the failure to comply with any of the requirements thereof would nullify the whole proceedings---Trial Court could not have resorted to substitute service on the basis of a sketchy/erroneous/illegal report submitted by the Process Server---Respondents could not establish that the petitioner had the knowledge of the date of hearing---Trial Court also failed to record any such reason that the petitioner had the knowledge of the date of hearing---Revision petition was allowed accordingly.

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

----O.V, Rr. 6 & 13---Setting aside ex-party decree---Essential requirements--­-Party seeking setting aside of ex parte decree would have to satisfy the Court: firstly, that summons was not duly served on him; or secondly, that he was prevented by any sufficient cause from appearing when the suit was called on for hearing---Either of the said two conditions was to be fulfilled to set aside the ex parte decree---Not essential that both the conditions should be satisfied simultaneously as the satisfaction of either of the conditions was sufficient in the eye of law to recall the ex parte decree.

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

----O.V, Rr.17, 18, 19 & 20---Setting aside ex-parte proceedings / decree---Service duly made---Substituted service---Scope---Process Server was bound to indicate in his report that the petitioner/his agent refused to sign the acknowledgment and he could not find the defendant or his agent and then he had affixed a copy of the summons on the conspicuous part of the house where the defendant was residing---In such case Court had to examine the Serving Officer on oath touching his proceedings and had to pass an order as to whether summons had been duly served or was to direct fresh service---Before passing of an order of substituted service, the Court was bound to record its satisfaction to the effect that there was reason to believe that the defendant was avoiding service and thereafter the court had to order the service of summons through substituted modes in terms of R.20 of O.V, Civil Procedure Code---After the court satisfied itself that it was a case for substituted service, it should order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house---High Court observed that service through publication in the newspaper should not be resorted to unless the Court is satisfied that the defendant had been properly served and he was avoiding service for reasons best known to him.

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

----Art.164---Summons not duly served---Period of limitation, commencement of---Where the summons was not duly served, the period of limitation had to commence with effect from the date from the acquisition of the knowledge of the decree.

(e) Constitution of Pakistan---

----Art.10A---Setting aside ex-parte decree---Due service---Maxim: Audi alteram partem---Administration of justice---No one was to be deprived of civil liberties and property unless provided with due opportunity of hearing---Petitioner was not found guilty of gross negligence, hence the ex-parte decree could not sustain---Mere negligence of petitioner to appear in the Court did not warrant severe action in the manner of the ex-parte decree---Such was not the intention of the law to thwart the adjudication of a lis on mere technicalities of procedure---Law favoured the decision of the cases on merits rather than stifling the matters on fetish pleas.

Munawar Hussain Ch. for Petitioner.

Ghulam Rasul Ch. for Respondents Nos.1 to 8.

Rao Muhammad Akram Khurram, A.A.G for Respondent No.9.

2022 C L C 1628

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ASLAM PARVEZ (DECEASED) through Legal Heirs----Appellant

Versus

JAVED AKHTAR and others----Respondents

R.S.A. No.220 of 2012, heard on 21st June, 2021.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pre-emption---Pre-emption, right of---Talb-i-Muwathibat---Date and time not specifically disclosed by witnesses ---Effect---Held, that two star witnesses (including informer) had not specifically disclosed the date and time when appellant/pre-emptor received information about disputed transactions and made Talb-i-Muwathibat; instead said witnesses, in general terms, stated that so- and-so years/months/days ago, the appellant was informed---Law insisted on utmost promptitude in making of Talb-i-Muwathibat---Convincing, reliable and consistent statements of witnesses, to prove the factor of time, were mandatory requirement of law as from the date and time of making Talb-i-Muwathibat, the period for sending notice of Talb-i-Ishhad was calculated.

(b) Punjab Pre-emption Act ( IX of 1991) ---

----S.13---Suit for pre-emption---Talb-i-Muwathibat---Proof---Not only the mention of the date, time and place of performance of Talb-i-Muwathibat in the plaint was a legal requirement, but also the plaintiff was legally bound to prove the same through cogent and trustworthy evidence before the Court because the contents of plaint could never be considered as evidence and by mentioning such details in the plaint , the plaintiff could not be absolved from the duty to prove the same through reliable and truthful evidence---Burden of proving Talb-i-Muwathibat, in the present case, had not been discharged in accordance with S.13 of the Punjab Pre-emption Act, 1991 ---Talb-i-Muwathibat was the foundation for exercise of right of pre-emption ---Without proving performance of Talb-i-Muwathibat, requirement of Talb-i-Ishhad, even if proved, would be of no consequence---Appeal of the pre-emptor was dismissed, in circumstances.

Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309; Feroz Khan v. Mst. Malik Zaro 2016 YLR 811; Mst. Amna Bi and 5 others v. Mst. Naseem Akhtar 2018 CLC 748 and Wali Muhammad through L.Rs. and others v. Ghulam Nabi 2018 MLD 1044 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pre-emption---Pre-emption, right of---Talb-i-Muwathibat---Contradictory statements of the witnesses---Effect---Contradictions in the statements of witnesses as to how/when pre-emptor was informed about sale-in-question could not be lightly brushed aside, particularly in a case of pre-emption where strict adherence to the requirements of law for making Talb-i-Muwathibat was necessary.

Dr. Pir Muhammad Khan v. Khuda Bukhsh and others 2015 SCMR 1243; Muhammad Tariq and others v. Abdul Razaq 2015 CLC 49; Umar Dad v. Muhammad Wahid and 3 others 2015 MLD 373 and Muhammad Bakhsh v. Faiz Muhammad and others PLD 2021 Lah. 52 ref.

(d) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pre-emption---Talb-i-Ishhad, notice of ---Proof--- Defendants deposed that an empty envelope was received by them---Held, that admission of the defendants/respondents did not confirm that Talb-i-Ishhad was made in accordance with law rather plaintiff/appellant was required to produce evidence including the postman to prove that in fact notice of Talb-i-Ishhad was served upon defendants/respondents---Appeal of pre-emptor was dismissed, in circumstances.

Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 and Sultan v. Noor Ashgar 2020 SCMR 682 ref.

(e) Punjab Pre-emption Act (IX of 1991)---

----S.13 ---Suit for pre-emption---Pre-emption, right of--- Proof---Right of pre-emption is a feeble right and evidence for exercise of such right, being oral, is required to be direct, confidence inspiring and duly supported by the witnesses.

Muhammad Anwar v. Muhammad Aslam 2021 SCMR 107; Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 and Mohammad Rafique v. Gul Mohammad and others 2017 YLR 308 ref.

Abdul Wahid Chaudhary and Ch. Muhammad Afzal for Appellants.

Barrister Ameer Abbas Ali Khan, A.A.G. on Court's call.

Malik Amjad Pervez for Respondents.

Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC.

2022 C L C 1659

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

Mst. AFIFA BIBI alias BEGUM AFIFA MOMDOOT----Petitioner

Versus

Mst. JAMEELA SIKANDAR----Respondent

Civil Revision No.586-D of 2006, decided on 9th March, 2021.

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

----Ss. 8 & 9---Qanun-e-Shahadat (10 of 1984), Art. 113---Agreement, acceptance of---Consideration, receiving of---Suit for specific performance--­-Plaintiff/respondent alleged that she purchased 4 plots (comprising of land measuring 27 Marlas) in Housing Colony/scheme launched by petitioner/defendant and paid Rs.20,000/- as earnest money against receipt on 17-06-1986; that petitioner had to transfer the said suit plots in the name of respondent after approval of the site plan of said Colony/scheme; that in 1997 she came to know that defendant had renamed said colony and was trying to sell the suit plots; that plaintiff was ready to pay the remaining consideration---Petitioner/defendant in written statement denied the execution of any agreement and receipt of consideration and raised objection that suit was time barred---Suit was dismissed by Civil Court---Appeal accepted by District Court with costs---Validity---Definition of "Agreement to sell" required that both the parties to agreement had to make promise for some lawful act against some lawful consideration---Noting in the Contract Act, 1872 required that offer and acceptance must necessarily be in writing or form a single document---Perusal of documents (receipt, Register Haqdaran Zameen and site plans) showed the existence of willing seller/willing buyer, settlement of the bargain, partial payment of consideration as well as the availability of specific property and consensus for the bargain between the parties---Petitioner received the amount of Rs.20,000 as earnest money and issued a duly signed receipt---As per written statement, the respondent was in possession the suit property---Receipt coupled with site plan conveniently lead to hold that valid agreement was executed between the parties on 22-06-1986---Said facts were admitted by attorney/real son of petitioner in his statement as witness---Admitted facts need not be proved---Witness went on saying that after failure of the said colony/scheme, the agreement with the plaintiff was verbally rescinded and amount received as partial consideration was returned to the plaintiff but in this respect no plea/assertion was taken in written statement nor proved through any corroborative evidence---Civil Revision was dismissed and respondent was directed to deposit the remaining consideration amount (Rs.61,000/-) with trial Court.

Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98; Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Mst. NurJehan Begum through LRs v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

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

----Arts. 70, 72 & 113---Agreement, acceptance of---Documentary evidence would always take preference over the oral deposition---Document could be rebutted by a document having better legal sanctity only.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837 and Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385 rel.

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

----S.100---Appellate Court, findings of---Preference---In event of conflict of judgments, findings of appellate Court were to be preferred and respected, unless it was shown from the record that such findings were not supported by evidence.

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

Muhammad Shahzad Shokat for Petitioner.

Muhammad Ali Siddiqui for Respondents Nos.1-A and 1-B.

2022 C L C 1684

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

MUHAMMAD ABDUL REHMAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others----Respondents

Writ Petition No.16168 of 2021, heard on 24th November, 2021.

Civil Procedure Code (V of 1908)---

----O.XXI, Rr.1 & 2 & S.47---Family Courts Act (XXXV of 1964), Preamble---Family suit---Execution petition---Out of court payment/settlement alleged---Scope---Suit of the respondent/wife was partially decreed holding her entitled for getting godown or alternate amount of Rs.30,00,000/---Petitioner filed objection petition pleading that Rs.851,000/- had already been paid out of the Court for satisfaction of decree and matter was settled---Respondent denied such an alleged payment/satisfaction/settlement out of Court---Petitioner's objection petition was dismissed---Warrant of arrest of the petitioner was issued and his appeal thereagainst was also dismissed in limine---Petitioner contended that Executing Court had ignored the compromise between parties before arbitrator; payment out of Court was in accordance with law; and that two affidavits and receipt purportedly issued by brother of respondent was also ignored by the Court---Held, that Court's decree if not intervened by appellate Court would attain finality and Executing Court could not go behind decree subject to very limited circumstances permissible under S.47 of Civil Procedure Code---Plea of out of Court payment, if not supported by proof of payment through banking instrument/postal money-order/written evidence carrying signatures of the decree-holder or his authorised agent, the executing Court could not accept such an out of Court payment, unless it was confirmed by the decree-holder to the executing Court---Wisdom behind Rules 1 and 2 of Order XXI clearly was to avoid another round of litigation with respect to the satisfaction of decree and multiplicity of litigation---Court had to examine the documents relied by the petitioner to show the payment and genuineness of his claim, which included two affidavits and a receipt purportedly issued by the brother of respondent---Said affidavits were given by the strangers to the lis/decree in question---Said receipt did not contain signature of decree-holder and was issued by brother of the decree-holder without any proof of the fact the he was recognized/authorized agent of the decree-holder---Constitutional petition was dismissed accordingly.

M.P. Shreevastava v. Mrs. Veena 1967 AIR 1193 and Muhammad Jamil and others v. Haji Muhammad Din & Sons PLD 1995 Lah. 107 rel.

Ms. Sittara Naeem Abbas for Petitioner.

Muhammad Asif Manzoor for Respondent No.3.

2022 C L C 1703

[Lahore]

Before Anwaar Hussain, J

SARDARAN BIBI----Petitioner

Versus

MUHAMMAD ARSHAD and others----Respondents

Civil Revision No.170-D of 2011, decided on 23rd November, 2021.

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

----S.8---Civil Procedure Code (V of 1908), Order II, R.2 & O.XXIII, R.1---Punjab Land Revenue Act (XVII of 1967), Ss.42 & 52---In prior suit for declaration and permanent injunction, petitioner alleged that she was owner in possession of the suit property---Respondents contested on the ground that they were in possession of the same as their predecessor-in-interest was in possession of the suit property since 1964---Local commission submitted report that the respondents were in possession and name of the grandfather of respondents was engraved on the front wall of the property---Petitioner filed another suit (later suit) for eviction and mandatory injunction, wherein claimed that she, being the owner on the basis of revenue record, had given the suit property to the grandfather of the respondents some 30 years ago for tethering the horse/cattle; and after the demise of their grandfather, respondents continued to use the said property and denied to hand over the property back to the petitioner---Prior suit was withdrawn a month after the institution of the later suit---Respondents contested on the ground of being owner in possession and that the suit was barred by law as the same was filed during the pendency of the prior suit---Suit was concurrently dismissed---Petitioner contended that the bar contained in O.XXIII, R.1 of Civil Procedure Code was not attracted where the second suit was filed during the pendency of the first suit and the first suit was withdrawn subsequently---Validity---Both the courts below proceeded on wrong premises while dismissing petitioner's latter suit and appeal on the basis that the same was barred in terms of O.II, R.2 of Civil Procedure Code---Possession was claimed on the basis of the revenue record reflecting the petitioner to be owner of the suit property---Respondents merely denied the ownership of the petitioner through verbal assertion without proving their possession on the basis of some title---Respondents admitted that name of their grandfather/father was not reflected anywhere in the revenue record, rather petitioner's name was reflected therein---Respondents' witnesses did not deny in cross-examination that the petitioner was owner of the land---Respondents failed to dispel the presumption of correctness of revenue entry in favour of petitioner through preponderance of evidence which was sufficient to hold that petitioner had proved her entitlement to the possession---Petitioner could not be non-suited on the ground that complete revenue record for the last 30 years had not been brought on record by the petitioner and only a copy of Record of Rights for the years 2001-2002 was submitted, without appreciating the presumption of truth attached to the record produced before it---Petitioners claimed a right on basis of adverse possession which was not permissible---Revision petition was allowed accordingly.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725; Mazoloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571 and Muhammad Riaz v. Government of Punjab through Collector and others PLD 2021 Lah. 33 rel.

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

----O.XXIII, R.1---Subsequent suit, institution before withdrawal of the prior---Scope---Bar contained in O.XXIII, R.1, C.P.C. against filing the fresh suit after withdrawal of the first suit without permission of the court for filing a fresh suit does not attract where subsequent suit was instituted before withdrawal of the prior suit.

Khairat Masih through LRs v. Aziz Sadiq 2004 MLD 943 Lahore; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344 and Liaqat Ali v. Muhammad Ashraf and others 2016 YLR 551 ref.

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

----S.8---Phrase "entitled to the possession" presupposes that in order to obtain a decree for possession, the plaintiff is entitled to the possession and that it implies an inbuilt declaration as to entitlement of a plaintiff qua the property in dispute.

Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380 and Taj Wali Shah v. Bakhti Zaman 2019 SCMR 84 ref.

(d) Islamic Law---

----Adverse possession---Party's claim as to the right to occupy the disputed property on the basis of adverse possession is not permissible under the law and adverse possession has been declared as un-Islamic by Supreme Court of Pakistan.

Maqbool Ahmed v. Hakoomat-e-Pakistan 1991 SCMR 2063 rel.

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

----Ss.42 & 52---Mutation/revenue entry---Presumption of correctness---Revenue record is not a conclusive evidence of the ownership---Mutation is not a title deed but it is sanctioned under S.42 of the Punjab Land Revenue Act, 1967 by the officer concerned, in revenue hierarchy, in discharge of his official duties---Entries of record of revenue carry presumption of truth until the contrary is proved or a new entry is incorporated in place of the existing one in accordance with law.

(f) Constitution of Pakistan---

----Art.150---Qanun-e-Shahadat (10 of 1984), Art. 85---Full faith/credit shall be given throughout Pakistan to public acts/records.

Muhammad Masood Bilal and Nadir Sultan Mirali for Petitioners.

Muhammad Nasrullah Khan Joiya for Respondents.

2022 C L C 1719

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ZAHID MEHMOOD and others----Petitioners

Versus

Malik MUHAMMAD FAHAD and others----Respondents

Writ Petition No. 124 of 2018, heard on 16th December, 2021.

Civil Procedure Code (V of 1908)---

----S.75 & O.XXVI, R.9---Execution proceedings---Suit for permanent/mandatory injunction filed by respondents claiming that they were owners of land and the petitioners/defendants intended to demolish the construction raised on the said land---Suit was dismissed on basis of the statement/undertaking of petitioners---Respondents then moved an application under O.XXI, R.32 of C.P.C.---During pendency of the said application, respondents also filed an application seeking appointment of local commission for the purpose of demarcation at the site which was accepted---Petitioners filed revision petition against said order which was dismissed by District Court---Petitioners contended that executing court was not vested with any authority to appoint a local commission---Held, that language of the provisions of O.XXVI, R.9 of Civil Procedure Code, 1908 were manifestly clear that power of the court to appoint local commission was restricted to the proceedings in the suit---Executing court was not a civil court and the same could not appoint local commission during the execution proceedings---Constitution petition was allowed accordingly.

Maqsood-Ur-Rehman and another v. Abdul Manan 2007 YLR 2724 and Ch. Gulzar Khan and 3 others v. Saghir Ahmed and 7 others 2004 MLD 402 rel.

Muhammad Nazir v. Muhammad Bashir and others 2017 YLR Note 228 distinguished.

Arslan Fazil for Petitioners.

Sardar Bilal Firdous for Respondents Nos.1 and 2.

2022 C L C 1754

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

ABDUL WAHEED and another----Petitioners

Versus

Mst. RUBINA SHAHEEN----Respondent

Civil Revision No.52-D of 2022, decided on 20th January, 2022.

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

----Ss.3, 9 & Art.120---Civil Procedure Code (V of 1908), O.VI, R.11---Mutation---Hiba, (gift) validity of---Respondent/plaintiff challenged the mutation based on hibanama in favour of the petitioner, (being her brother in law as well as the foster son of her father, in collusion with his wife (real sister of the respondent),claiming that the said hibanama was based on fraud/misrepresentation and that the impugned mutations recorded/sanctioned on basis of such hibanama was to be cancelled---Petitioners contested the suit by filing written statement accompanied by an application for rejection of the plaint on the ground of being barred by limitation---Trial Court allowed the application and dismissed the suit after hearing arguments of both the parties---District Court allowed the respondent's appeal and remanded the suit---Petitioners contended that the suit was barred by time as the same was filed after 17 years of the mutation entry; that no cause of action was given in the plaint; and that no particulars of fraud were mentioned in either of the plaints---Validity---One of the petitioners being real sister of the respondent did not choose to challenge the impugned mutations/hibanamaas as her interest was not adverse to that of other petitioner---Contents of the plaint clearly revealed that not only fraud had been alleged but even particulars in respect thereto had been delineated quite clearly---Respondent had also clearly mentioned the time when she discovered (in December, 2017) about the allegedly fraudulent mutations / hibanamas---Limitation would start to run from the said time (December, 2017)---Question of limitation could not possibly qualify as a pure question of law on account of what had been stated in the plaints---For determining the point of commencement of the limitation period, Trial Court was required to determine whether respondent had actually gained knowledge in December, 2017 and on what basis and from whom and how and only---In the present case the question of limitation was clearly a mixed question of law and facts---Revision petition was dismissed accordingly.

Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704; Jan Muhammad and others v. Mst. Sakina Bibi and others PLD 2017 SC 158; Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493; Messrs Anwar Textile Mills Limited v. Pakistan Telecommunication Company Limited and others 2013 SCMR 1570 and Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others 2007 SCMR 969 rel.

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

----S.115---Revision of the order remanding the case---Scope---In matters where a case was remanded, the facility of civil revision was only available when the order directing remand was either absolutely perfunctory, manifestly perverse or evidently illegal.

Noor Ahmed through L.Rs. and others v. Province of Punjab and others 2016 SCMR 2174 and Allah Ditta and others v. Member (Judicial),Board of Revenue and others 2018 SCMR 1177 rel.

Syed Riaz ul Hassan Gillani for Petitioners.

2022 C L C 1805

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ZAFAR IQBAL----Petitioner

Versus

ASSISTANT COMMISSIONER CHUNNIAN, DISTRICT KASUR and 5 others----Respondents

Writ Petition No.43583 of 2020, heard on 12th January, 2022.

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

----Ss.9, 11 & 12---Constitution of Pakistan, Arts. 10A, 23 & 24---Fresh demarcation of property and payment of liquidated damages/compensation---Petitioner's land was situated in the notified area for construction of Highway as per its plan approved and notification issued---Notification under S.6 of Land Acquisition Act, 1894, was issued---Award for acquisition of total land measuring 99 Kanals and 11 Marlas was announced, including 14 Marlas of the petitioner---Petitioner's claim was that his land measuring 4 Marls was acquired and he was still owner of remaining 10 Marlas land---Authorities had demolished the building constructed over the said 14 Marlas land---Petitioner contended that there was an inordinate delay between issuance of notification under Ss.4 & 6 of the Land Acquisition Act, 1894; that no justifications had been provided for invoking emergency provisions and dispensing with the requirement of issuing notification under S.5 of the Act; that mandatory provisions of the Act had been violated; that his total land had illegally been transferred; that he was totally unaware about the land acquisition proceedings as he never received any notice in that regard; that he was regularly paying the property tax; and that authorities illegally demolished his building without any prior written notice---Held, that there was a gap of almost 4 years and 6 months between issuance of Notifications under Ss. 4 and 6 of the Land Acquisition Act, 1894; and about 9 years between issuance of notification under S.6 and announcement of award; and more than 14 years between issuance of Notification under S.4 and announcement of award---Such delay demonstrated lethargic inactive performance of statutory duties on part of authorities---Authorities were required to complete the process of acquisition within a reasonable time as the land owners could not be put in agony of uncertainty---During the period of more than 14 years, price of land had escalated and was liable to be added into potential value of land previously determined by the Land Acquisition Collector---Notice in terms of S.9 of the Act was not issued to the petitioner---Enquiry in the objections in terms of S.11 was also not conducted---Notice in terms of S.12(2) was also not served upon petitioner---Entire acquisition proceedings were kept secret till the time of demolition and possession---No notice was issued before starting demolition proceedings and taking over possession---Constitutional petition was allowed accordingly.

Divisional Engineer (Dev.) N-II T&T, Gujranwala and 3 others v. Rana Muhammad Sharif 2002 CLC 985; Mian Tariq Maqsood and others v. Province of Punjab and another 2017 CLC 389 and Qasim Ali and 2 others v. Province of Punjab through, Secretary, Irrigation Department, Lahore and 4 others 2021 YLR 1261 ref.

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

----Ss.9, 11 & 12---Requirement of serving notice, non-compliance of---Vitiation of Award---Service of notice under Ss. 9 & 12 of the Land Acquisition Act, 1894 was mandatory requirement which could not be dispensed with---Result of non-compliance with such obligatory part of the statute would be that the award given by the Collector would be vitiated and action under S.11 should have been taken afresh so that a new award be made.

Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others PLD 1970 Lahore 321; Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lahore 458; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lahore 440; Lt.-Col. Iqbal Janjua v. Military Estate Officer, Lahore and 3 others PLD 2013 Lah. 273 and Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and another v. Waheed Ahmed Khan and 10 others 2017 YLR 1895 rel.

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

----S.12---Constitution of Pakistan, Arts.10A, 23 & 24---Fair acquisition---Service of notice---No person could be condemned unheard and no person could be divested of property without due course of law---Principles of natural justice are deemed to be imbedded and enshrined in every statute, unless expressly excluded---Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person necessary.

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

----Preamble---Constitution of Pakistan, Arts. 10A, 23 & 24---Acquisition through due process of law---Object of Land Acquisition Act, 1894, was not to deprive a person from his property-right without due process of law---One of the essential intrinsic requirements of principle of natural justice was to give proper/meaningful opportunity to the affected person to challenge and object to the proposed or likely acquisition of land under the Act.

Muhammad Hanif Khan v. Province of Sindh through Secretary, Land Utilization Department, Karachi and 8 others PLD 2006 Kar. 531 rel.

Imran Muhammad Sarwar, Barrister Ch. Muhammad Umer, Rana Muhammad Ansar, Tauqeer Haider Bhatti and Kashif Habib for Petitioners.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General along with Mushtaq, Supervisor, Office of Land Acquisition Collector for Respondent.

2022 C L C 1815

[Lahore]

Before Safdar Saleem Shahid, J

MUHAMMAD ASHRAF----Appellant

Versus

RIAZ MAHMOOD----Respondent

R.F.A. No.31 of 2021, decided on 7th October, 2021.

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

----O.XXXVII, Rr. 2 & 3---Qanun-e-Shahadat (10 of 1984), Arts. 21 & 113---Suit for recovery---Cheque dishonoured on ground of insufficient balance---Respondent launched FIR which was cancelled by the Police---Respondent/plaintiff claimed that appellant demanded and received an amount of Rs.18,00,000/- and issued a cheque which was dishonoured---Appellant's application for leave to defend was accepted and he failed to comply with the Trial Court's direction to deposit surety bond equivalent to the amount mentioned in the cheque---Trial Court recalled its order due to non-compliance and decreed the suit---Appellant contended that witnesses had not proved execution of the cheque; that cheque was not produced through Bank employees and had not been exhibited in the statement of respondent as witness; that FIR lodged by respondent was cancelled by the police after due investigation as cheque was issued by the appellant in lieu of the alleged amount; that the appellant was a wealthy person, settled abroad since long and had no need to borrow said amount; that without framing the issues ex-parte evidence was recorded by the learned trial Court; that due to "Corona" virus crises and strike of revenue officials the appellant could not deposit the surety bond within time; that the appellant was not present in the Trial Court; that Trial Court took harsh step under O.XVII, R.3, C.P.C. instead of the initiation of the proceedings under O.XVII, R.2, C.P.C.; on the date of hearing for recording of evidence, but on that date evidence was recorded, the suit was decreed and the suit was converted into execution proceedings and Court issued the show-cause notice to appellant/judgment debtor---Validity---Appellant was given by the trial Court three opportunities to deposit the surety bond but he failed to deposit the same---Trial Court adjourned the case for recording of the ex-parte evidence and on the next hearing evidence of the respondent was recorded and the suit was decreed---Appellant did not file any application to get set aside the order of Trial Court, nor any application for extension of time for deposit surety bond---Appellant, after initiation of execution proceedings, did not appear before the Court rather he filed present appeal and did not comply with its direction to deposit 50% of the decretal amount within 15 days---Appellant's conduct/attitude reflected that he was not entitled for any relief---Appellant, in his application for leave to defend, admitted that the cheque was issued by him, therefore, Trial Court had no need to record any evidence to prove such admitted fact---No plausible explanation was tendered by the appellant for non-depositing of the surety bond during the trial and non-depositing of the 50% decretal amount in execution proceedings---Record showed that, appellant's counsel was present but order of the Court was not complied with nor any application for extension of time was submitted---Appeal was dismissed accordingly.

Haji Ali Khan & Company Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited Abbottabad PLD 1995 SC 362 rel.

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

----O.XXXVII, Rr. 2 & 3---Summary procedure---Judicial wisdom---Procedure for suit founded on the special documents was that defendant was not, as in ordinary suit, entitled as of right to defend the suit---Object underlying such procedure was to prevent unreasonable obstruction by defendant who had no good defence to put up---When it was a suit upon a bill of exchange/Hundi/Promissory note and the plaint/summonses were in the prescribed form, the defendant would not be allowed to appear/defend the suit unless he obtains leave from the Court.

Abdul Ghaffar Khan Chughtai for Petitioner.

Ms. Samina Qureshi for Respondent.

2022 C L C 1842

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

Malik FAHIM ULLAH KHAN----Petitioner

Versus

The DISTRICT RETURNING OFFICER and another----Respondents

Election Appeal No.05 of 2020/BWP, heard on 18th August, 2022.

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

----S.62---Scrutiny---Scope---Case of appellant was that as per election schedule, the last date of scrutiny of nomination papers was fixed as 11-08-2022, but the Returning Officer conducted the scrutiny on 10-08-2022 without issuing any notice or providing any opportunity of hearing as such it was violation of S.62 of the Elections Act, 2017---Validity---Scrutiny of nomination papers of the appellant was conducted on 10-08-2022 at 2:45 p.m. and thereafter, the scrutiny of nomination papers of another candidate was done on the same day at 3:00 p.m., therefore, the appellant was aware of the same but he remained quiet for twenty four hours and filed his objections on 11-08-2022 at 2:45 p.m.---Scrutiny process was conducted by the Returning Officer in presence of the appellant on 10-08-2022---Appellant had no locus standi to be heard by the Election Tribunal---Appeal was dismissed.

Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 and Muhammad Nawazish Ali Pirzada v. Election Commission of Pakistan and 6 others PLD 2018 Lah. 318 ref.

Muhammad Nawazish Ali Pirzada v. Election Commission of Pakistan and 6 others PLD 2018 Lah. 318 rel.

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

----S.62---Scrutiny---Scope---Section 62 of the Elections Act, 2017 states that any voter of a constituency may file objections to the candidature of a candidate before the Returning Officer within the period specified by the Commission for the scrutiny of nomination papers of candidates.

Muhammad Sarwar Chaudhry, Advocate Supreme Court with Sultan Qadir, Ch. Saqib Tariq, Malik Muhammad Sadiq Joiya, Makhdoom Kaleem Ullah Hashmi, Muhammad Arslan Asghar Chaudhry, Farhan Akhtar Chaudhry, Javaid Aslam Naich, Asif Usman Qureshi, Ch. Abdul Jabbar, Muhammad Ahmad, Muhammad Noor ul Amin, Malik Asad Hayat and Syed Munawar Hassan Bukhari for Appellant.

A.R. Aurangzeb, Advocate Supreme Court for the Respondent No.3 with Muhammad Saleem Faiz, Mian Muhammad Haroon, Shakeel Ahmad Malik, Muhammad Ashraf Chaudhry, Ali Khan for Respondents.

Naveed Khalil Chaudhry, Additional Advocate-General.

Muhammad Arshad Ali, Assistant Attorney General for Pakistan.

Muhammad Jafar, Law Officer for the Respondents/ECP with Irfan, District Election Commissioner.

2022 C L C 1871

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD AKHTAR----Petitioner

Versus

ABDUL REHMAN and another----Respondents

Civil Revision No.13326 of 2019, decided on 24th December, 2021.

Civil Procedure Code (V of 1908)---

----S.115, O.XXXVII, Rr.1, 2 & 4---Limitation Act (IX of 1908), Ss. 3 & 5---Recovery of money---Ex-parte judgment, setting aside of---Limitation---Proceedings beyond limitation---Effect---Petitioner / defendant sought setting aside of ex-parte judgment and decree passed against him---Trial Court declined to set aside judgment and decree in question as the same was filed beyond limitation---Validity---Limitation Act, 1908, is a substantive law and after lapse of prescribed period provided under law valuable right accrues in favour of opposite party in whose favour an order or judgment is passed---Party aggrieved has to explain delay of each and every day showing sufficient cause---Petitioner/defendant gained knowledge on 09-09-2015 but filed application for obtaining certified copies on 10-10-2015 i.e. after lapse of prescribed period for filing application for leave to appear and contest the suit after service or gaining knowledge---Lethargic attitude adopted by petitioner/defendant could not be ignored because ignorance of law was not ground for condoning delay---High Court maintained order passed by Trial Court, as there was no illegality and irregularity committed rather vested jurisdiction was aptly and judiciously exercised while passing order in question---Revision was dismissed, in circumstances.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; United Bank Limited and others v. Noor-Un-Nisa and others 2015 SCMR 380; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others 1992 SCMR 2435 and Mian Muhammad Sabir v. Malik Muhammad Sadiq through Legal Heirs and others PLD 2008 SC 577 rel.

Mohsin Shahzad Cheema for Petitioner.

Malik Sahib Khan Awan for Respondents.

2022 C L C 1891

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

KHAN MUHAMMAD and others----Petitioners

Versus

MUHAMMAD SADIQ and others----Respondents

R.S.A. No.86 of 2015, heard on 24th May, 2021.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss.13 & 30---Suit for pre-emption---Limitation---Scope---Defendant/vendee in a suit for pre-emption claimed that he had purchased the land vide sale receipt by making advance payment, when allegedly possession was also delivered to him, whereas remaining sale price was paid at the time of attestation of sale deed, thus institution of suit beyond one year of the basic sale was time barred---Validity---Onus probandi was upon the defendant to prove that the sale indeed was basically effected upon payment of advance payment---On his part there was his solitary statement, who being witness tendered receipt, which did not find mention that possession was also delivered thereunder---Neither original vendor nor anyone out of two marginal witnesses of sale deed despite availability were produced---Sale deed was found mute as well qua any prior deal, whereas none of the copies of khasra girdawaries were got exhibited by the defendant to expose that possession under purported sale was ever delivered---Mere exhibition of receipt was of no help to the latter to hold that suit was barred by time---Contention of the defendant was turned down---Second appeal was dismissed, in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pre-emption---Scope---Pre-emptor and second vendee had claimed superior right of pre-emption---Validity---Original vendor, pre-emptor and second vendee had common ancestor---Pre-emptor being male descendant fell within the category of residuary, whereas second vendee as female successor-in-interest went out of said list---Second vendee became remote to the vendor as compared to the pre-emptor---Latter being nearer per settled principle had to exclude the remote, thus superior right of pre-emption was perfectly adjudicated upon in favour of pre-emptor---Second appeal was dismissed, in circumstances.

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

----S.100---Second appeal---Scope---Scope of interference in second appeal is narrower and restricted, which can only be invoked where some gross illegality appears to have been committed by the Courts below or evidence was not perused in its true perspective.

Ch. Muhammad Zubair Rafique Warraich for Appellant.

Muhammad Shahid Tasawar Rao for Respondent No.1.

Ch. Muhammad Akbrar Warraich for Respondent No.2

(A & D).

Ihsan Ullah for Respondent No.2 (B)

2022 C L C 1925

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

SARDAR ALI----Petitioner

Versus

ABDUL GHAFOOR and others----Respondents

Civil Revision No.269 of 2020, heard on 10th November, 2021.

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

----S.47 O. XXI, Rr. 97, 100 & 103---Suit for specific performance---Execution---Objection petition---Factual controversy as to title---Court's duty to frame issues and record evidence---Suit by petitioner against one of the respondents was decreed, execution petition was filed---Another respondent allegedly was owner of suit property prior to the institution of suit, filed objection petition and application for cancellation of sale deed before Executing Court---Executing Court accepted objection petition, cancelled registered sale deed and dismissed the execution petition---Petitioner's appeal was also dismissed by appellate Court---Validity---Admittedly, said one of the respondent was owner of Ahata (measuring 8 marla, 1 sarsohi), who sold portion (4 marla 2 sarsohi) to the petitioner---Petitioner filed suit for specific performance against said respondents on who submitted consenting written statement---Trial Court decreed the suit---One of the alleged purchasers of the said Ahata for consideration from said one of the respondents through allegedly registered power of attorney executed by said respondent in his favour, alienated portion of said Ahata measuring 4 marla 2-sarsohi in favour of the respondent who got executed an oral sale mutation sanctioned prior to institution of petitioner's suit---Executing Court executed sale deed in favour of petitioner and possession of decretal property was also transferred to him on---Said respondent moved objection petition and also moved application for cancellation of said sale deed before Executing Court---Executing Court, without framing issues and recording evidence, accepted the petition/application dismissing the execution petition of petitioner and setting aside the sale deed---Mutation sanctioned in favour of said respondent, which was prior to the institution of the suit by petitioner on basis of agreement to sell, but such agreement to sell was executed prior to the sanction of said mutation---Said mutation had not been incorporated by said one of the respondents (original owner) himself but through general attorney having power of attorney executed on date after the date of execution of said agreement to sell and in a city other than the city where property situated---Facts of the purchase of property by said respondent from alleged seller, for alleged consideration, and execution of power of attorney by original owner in favour of such seller were not established on record which required evidence---Said respondent had every knowledge of decree (of Trial Court) as he himself challenged that decree by way of application under S.12(2) of Civil Procedure Code, 1908---Question of limitation was also relevant---All questions could not be resolved without recording of evidence---Executing Court had to frame necessary issues to have recourse to evidence to resolve the factual controversy---Executing Court summarily accepted the assertions made by said respondent on extraneous consideration/personal assumptions---Revision petition was allowed, impugned orders of Courts below were set aside, and execution petition, objection petition, and application for setting aside sale deed were deemed pending before the Executing Court.

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

----S.47---Executing Court---Jurisdiction---Execution, discharge or satisfaction of decree---Object and scope---Object of S.47 of the Civil Procedure Code is to provide remedy to parties in matters arising out of an execution of decree---Said section empowers Executing Court to determine the question relating to execution, discharge or satisfaction of decree and it barred a separate suit---Executing Court possesses jurisdiction to finally dispose of all questions, arising out of execution, discharge or satisfaction of decree and grant relief---Executing Court becomes functus officio once the decree is fully discharged---Term "discharge or satisfaction" has not been defined and a flexible/liberal interpretation should be given to such words keeping with the object behind S.47 of Civil Procedure Code, 1908---Such words, however, in their context would be limited to the matters arising after passage of decree and arising in course of/in connection with the execution of decree.

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

----Ss.9 & 47---Executing Court---Remedy of Civil Court, not barred---Scope---Provision of S.47 of Civil Procedure Code, 1908 is analogues to those of S.9 of the said Code, in so far as they confer jurisdiction to execute a decree---Section 47, C.P.C, does not bar the remedy but only regulates the form for enforcement of rights in so far as it channelizes all matters relating to the execution, discharge or satisfaction of the decree to Executing Court.

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

----S. 47---Executing Court---Jurisdiction---Terms "parties to suit" and "their representative"---Scope---Term "parties to suit" refers to those persons whose names are borne on the record of the suit as plaintiff and defendant---Term "representative" has a much wider connotation than the term "legal representative" and means any representative in interest of a party to the suit by assignment etc.

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

----S.47 & O.XXI, Rr. 97, 100 & 103---Executing Court---Proceedings equal to trial of the suit---Framing issues and recording evidence---Scope---After promulgation of Law Reforms Ordinance, 1972, all questions arising as to title, right or interest in, or in possession of immoveable property under R.97 or 100 of O.XXI, Civil Procedure Code, 1908 are to be decided by an Executing Court and not be a separate suit---All said questions determined and adjudicated upon by the Court in execution would not be merely summery proceedings, but would be considered as trial of suit---Provisions of the C.P.C. relating to trial of suit such as framing of issues and providing opportunities to parties to lead documentary/oral evidence, would apply to such proceedings.

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

----S.47---Constitution of Pakistan (1973), Art. 10A---Executing Court---Objection petition---Factual controversy---Evidence, opportunity to record---Fair trial---Scope---Acceptance of objection petition by Executing Court during execution proceedings being an order of final nature without providing a fair opportunity of hearing violative to the fundamental right of fair trial and due process protected under Art. 10A of the Constitution.

Province of Punjab and others v. Abdul Rashid 2015 CLC 987 rel.

Syed Muhammad Ali Gillani and Ch. Shahid Mehmood Buttar for Petitioners.

Ch. Khadim Hussain Gehlan for Respondent.

2022 C L C 1950

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD RIAZ----Petitioner

Versus

GOVERNMENT OF PAKISTAN and others----Respondents

Case Diary No.39914 of 2022, decided on 17th March, 2022.

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

----Art.95---Constitution of Pakistan, Art.199---Constitutional petition---Filing---Office objection---Wakalatnama (power of attorney) signed by Notary Public---Presumption---Petitioner was residing abroad and from there he sent Wakalatnama / Power of attorney in favour of counsel to file the petition---Office of High Court raised objection to Wakalatnama / power of attorney in favour of counsel that the same was not attested lawfully from abroad---Validity---Court could presume that a document purported to be power of attorney, executed and authenticated by a Notary Public, was so executed and authenticated---Power of attorney/Wakalatnama in question executed in favour of counsel did not disclose that Notary Public authenticated appointment as counsel to represent petitioner before High Court, rather only a stamp of Notary Public had been affixed thereon---Office objection sustained, in circumstances.

Sultan Samundar alias Samundar Khan through Legal Heirs v. Muhammad Bashir and 4 others 2015 MLD 378; Azra Saeed v. Raees Khan through General Attorney and 5 others 2009 CLD 779; Muhammad Maroof Ahsan v. Messrs Beach Developers through Partner 2011 MLD 36 and Executive Neelum Jhelum Project and another v. Azad Jammu and Kashmir Council Board of Revenue and others 2017 CLC 1519 ref.

2022 C L C 1973

[Lahore]

Before Shahid Waheed, J

MUHAMMAD HUSSAIN Deceased through L.Rs and others----Petitioners

Versus

MUHAMMAD ALI through L.Rs. and others----Respondents

Civil Revision No.490 of 2013, heard on 12th May, 2022.

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

----S.122---Gift, ingredients of---General power of attorney, use as to gift property---Suit for declaration of un-partitioned share of land---Suit land belonged to deceased who was unmarried and had two brothers who had also died---Disputed land was mutated in the name of defendant being son of one of the brother of deceased on basis of two documents: (1) Registered General Power of Attorney in which another defendant i.e. grandson of brother of deceased was stated to be the attorney of deceased and (2) registered gift deed ("Doc-2") by which one of deceased's brother transferred the disputed land to his other brother---Plaintiffs (son of deceased and daughters of his son) instituted the suit seeking declaration to the effect that Gift deed and power of attorney and mutation were illegal; that deceased was over 90 years old at the time of alleged execution of the Power of attorney and had lost his senses/eyesight, and since the son was a Lambardar, who fraudulently got appointed his other son as general attorney by obtaining a thumb-mark of deceased on power of attorney and then got transferred the disputed land to his name through gift and mutation---Suit was concurrently dismissed---Respondents argued that a suit for declaration of title on basis of gift had been filed by them against deceased who appeared in the suit and admitted the gift and the suit was withdrawn; that since deceased had never questioned the gift in his lifetime, the petitioners had no right to challenge the same; that suit was time barred; and that the plaintiffs were estopped by their words/conduct to challenge the gift as plaintiff had brought the proceedings before the Revenue Officer for getting separate possession of his share by partitioning the total land but he had not claimed any share in the disputed land or the land of the deceased---Validity---Love and affection, as per principle, could not be expressed by the attorney on behalf of deceased---Evidence available on record did not suggest that the attorney before executing gift deed or making gift in favour of his father ever obtained the consent and permission of the deceased, and recitals of the gift deed indicated that the attorney, on his own, had transferred the property through gift to his father, which was not permissible under the law---Father was beneficiary but he had not appeared as witness to prove essential ingredients of the gift---No evidence of declaration of gift by the deceased or its acceptance by "B1"---Father in his written statement did not state that deceased had ever made the gift but his stance was that his own son attorney had gifted him the property---Mere transfer of possession to father was not sufficient to constitute a valid gift, nor could the gift deed be held valid as it did not justify the disinheritance of other heirs from the gift---Copy of the suit allegedly filed by father against the deceased was never produced in evidence despite the fact that he had submitted application for production of additional evidence in that regard---Fraud committed by respondents had also become clear through the statement of attorney that he was general power of attorney of deceased and that he had gifted the property to father---Such statement showed that attorney had gifted the disputed property without getting approval of the deceased which was illegal---Petitioners were denied their rights when deceased passed away in 1998 and the suit was within time from that date---Documents relating to proceedings before revenue officers were signed/executed before the date of the death of deceased, thus, there was no occasion to claim any share in the inheritance of deceased the and also the petitioners nowhere in such documents stated that they had relinquished or surrendered their share---Revision petition was granted and suit was decreed accordingly.

Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others 2002 SCMR 1938 rel.

(b) Power of attorney---

----Use by attorney as gift the principal's property---Gift was a personal action which could be performed by the owner himself only and for that reason the agent could not, on his own, transfer the immovable property of the principal/owner through gift based on any power of attorney, even if the power of attorney contained the power to transfer the property through gift---Such powers could only be used for completion of codal formalities of the gift which must be by the owner himself and if on the contrary a transfer was made, it would be invalid.

Ijaz Bashir Qureshi v. Shams-Un-Nisa Qureshi and others 2021 SCMR 1298 rel.

(c) Gift---

----Registered deed excluding heir---Validity---Donee claiming under a gift that excludes an heir, is required bylaw to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed.

Ghulam Haider v. Ghulam Rasool and others 2003 SCMR 1829 and Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

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

----S.3---Inheritance---Limitation would not run against co-sharers nor could it be allowed to form the basis for depriving a legal heir of his share in the inheritance.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 ref.

Mian Mahmud Ahmad Kasuri for Petitioners.

Shaukat Alil Mehar, Malik Muhammad Aslam and Abdul Khaliq Butt for Respondents Nos.1-A to 1-E and 2.

Nemo. for Respondents Nos.3 to 10.

2022 C L C 1992

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh, J

MEPCO CHIEF EXECUTIVE OFFICER and 4 others----Petitioners

Versus

FAZAL CLOTH MILLS LTD. and 2 others----Respondents

Writ Petition No.16328 of 2015, heard on 8th February, 2022.

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

----S.38---Provincial office of inspection---Appeal---Limitation---Scope---Appeal against the order passed by Provincial Office of Inspection can be filed before the National Electric Power Regulatory Authority within a period of 30 days of the receipt of order.

Bashir Ahmad v. Inayat Ullah and another 1998 CLC 590 distinguished.

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

----S.38---Limitation Act (IX of 1908), Ss. 29 & 5---Provincial Office of Inspection---Appeal---Limitation---Scope---Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, shows that its provisions are to provide for regulation, generation, transmission and distribution of electric power and matters connected therewith and incidental thereto to selected class of persons mentioned in the Act---For all intents and purposes, the Act is a special law, hence the provision of S. 5 of Limitation Act, 1908, shall not apply in view of S.29(2)(b) of Limitation Act, 1908, to condone the delay beyond the period of limitation of thirty days prescribed under S.38(3) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997.

Allah Dino and other v. Muhammad Shah and others 2001 SCMR 286; Rahim Jan v. Securities Exchange Commission of Pakistan and others 2002 CLD 1464; City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Chairman, District Evacuee Trust Committee, Rawalpindi v. Sharif Ahmad and others PLD 1991 SC 246; The State v. Zahid Hussain 1990 SCMR 164; Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239; Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Shehzad Ali Shah v. Special Judge Rent, Lahore and others PLD 2020 Lah. 354; Khawaja Muhammad Ahmad v. Muhammad Ayyub and others 2019 PCr.LJ 1010; State (NAB) v. Muhammad Aslam Bajwa and others 2016 PCr.LJ 1189; The State v. Said Raheem and others PLD 2016 Lah. 560; Aamir Iqbal Khan v. Muhammad Yaqoob Jaura and others 2017 PCr.LJ 1543 and Mohammad Khalid Naeem v. Habib Bank Limited 2018 CLD 1027 ref.

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

----S.29---Savings---Scope---Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed under the Limitation Act, 1908, then period prescribed in special or local law will prevail---In terms of S. 29, Limitation Act, 1908, only the provisions of Ss.4, 9 to 18 & 22 shall apply in so far as they are not expressly excluded by such special or local law and the remaining provisions including S.5 of Limitation Act, 1908 shall not apply.

(d) Words and phrases---

----"Local law"---Connotation.

Law which operates over a particular locality instead of whole territory.

Black's Law Dictionary rel.

(e) Words and phrases---

----"Special law"---Connotation.

Law made for individual cases and include law operating upon a selected class, rather than the public at large.

Black's Law Dictionary rel.

(f) Limitation---

----Each and every day consumed beyond the period of limitation has to be explained.

Lal Khan through legal heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Qaiser Mushtaq Ahmad v. Controller of Examination and others PLD 2011 SC 174 and Muhammad Amjad v. Senior Superintendent of Police (Operations), Lahore and others 2010 PLC (C.S.) 838 ref.

(g) Void order---

----Even a void order has to be assailed within the period of limitation prescribed under the law.

Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2015 PTD 107; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi, 2014 SCMR 1594; Gen. (R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.

(h) Limitation---

----No preferential treatment can be given to government in cases filed beyond the period of limitation.

Khuda Bakhsh and others v. Muzaffar through L.Rs and others 2007 SCMR 1032 and Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot 2006 SCMR 1248 ref.

Abdul Razaq Raja for Petitioners.

Malik M. Tariq Rajwana for Respondent No.1.

Malik Altaf Hussain Raan, Assistant Advocate-General, Punjab for Respondent No.2.

Sagheer Ahmad Bhatti, Assistant Attorney-General of Pakistan for Respondent No.3.

2022 C L C 2007

[Lahore]

Before Muzamil Akhtar Shabir, J

AKHTAR HUSSAIN through Special Power of Attorney----Petitioner

Versus

MUHAMMAD JAMAL and 4 others----Respondent

Civil Revision No.64239 of 2020, heard on 16th December, 2021.

Limitation Act (IX of 1908)---

----Arts.168 & 181---Appeal, restoration of---Residuary limitation period---Dismissal of petitioner's application for restoration of appeal---Application for restoration of earlier application was also dismissed being barred by time---Validity---Subsequent application was not an application for restoration of appeal rather the same was for restoration of an application for restoration of appeal---Provision of law under which the same was to be filed was not mentioned---Dismissal order did not show any provision of Limitation Act, 1908, under which the same was barred by time and what limitation was provided for filing the same---Residuary Art. 181 of Limitation Act, 1908, would be applicable in circumstances which provided period of 3 years for filing such applications for which no specific limitation was provided---Observation of Court in impugned order was not spelt out from record and the same was not in accordance with law---Earlier application was dismissed on ground that petitioner did not appear to be serous in pursuing his remedy---Court without giving any reason observed that application despite being barred by limitation was also devoid of sufficient grounds for restoration of application---Impugned order being vague/non-speaking order could not be sustained---Revision petition was allowed and petitioner's application for restoration of appeal was deemed to be pending before the Appellate Court. [pp. 2009, 2010, 2011, 2012] A, B, C, D, E, F, G & H

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820; Sardar Abdul Majid Khan Lashari v. Asio-Afrucab Co., Ltd. 1972 SCMR 236; Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 216 SC 712; Mst. Nazir Begum v. Iqbal Hussain Qureshi 1986 CLC 2167 and Khushrang v. Waris Khan 1988 CLC 460 rel.

Ms. Saima Riasat for Petitioner.

Ch. Ashiq Hussain for Respondent No.1.

2022 C L C 2030

[Lahore]

Before Asim Hafeez, J

MUMTAZ HUSSAIN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 8 others----Respondents

Writ Petition No.45999 of 2019, decided on 3rd December, 2021.

Succession Act (XXXIX of 1925)---

----Ss.371, 372 & 373---Succession certificate, cancellation of---Nominee of service benefits---Uninheritable nature---Scope---Succession certificate was issued in favour of respondent being widow of the deceased---Petitioner filed application for revocation/cancellation of said succession certificate claiming entitlement to service benefits i.e. pension; death gratuity; insurance; monthly salary; and other service claims---Petitioner (maternal nephew/adopted son of deceased) contended that said benefits were construable as compensation/grant not classifiable as estate of deceased/Tarka/heritable payable to petitioner being nominee of deceased under nomination form which the deceased submitted to Bank at time of employment and that respondent/widow had concealed the identity of other legal heirs of deceased---Petitioner's application was concurrently dismissed---Held, that group insurance, provident and benevolent funds were grants/compensation being service benefits not claimable by the employee during his lifetime and would only mature after his/her death, hence same being not form part of Tarka not heritable---Respondent/widow had claimed certain amounts including salary payable at time of deceased' death, which could be termed as heritable---Petitioner failed to refer to available rules/regulations of concerned Bank as to help in determination of status of alleged nominee/entitlement claimed---Report procured from manager of concerned branch/Bank showed that in case of dispute arose between parties, Bank would always request the parties to seek the court order and disburse the due amount to the legal heirs according to succession certificate issued by competent court of law---Status of nominee and claim raised thereby in context of competing interests with legal heirs was always held unenforceable being subservient to the dictates of law of succession---Issues regarding service benefits on basis of nomination form and that regarding heritable/payable salary were construable as intricate issues which would require determination by the competent court, enjoying general/plenary jurisdiction upon filing of a suit---Notwithstanding accrual of intricate issues, a certificate could be issued in terms of subsection (3) of S.373 of Succession Act, 1925, upon achieving prima facie satisfaction qua successor and after securing security as condition precedent for rendering accounts and extending protection to the potential claimants, whose rights would be determined/declared through judicial pronouncement---Petitioner's application for revocation of succession certificate was rightly dismissed by courts below on ground that rights claimed could not be determined in proceedings under Succession Act, 1925 and remedy lied before court exercising general jurisdiction---Constitutional petition was dismissed accordingly.

Sh. Waqas Javed for Petitioner.

Sh. Mumtaz Ali for Respondent No.4.

Kh. Reham Ahmad for Respondents Nos.5 to 8.

2022 C L C 2045

[Lahore (Bahwalpur Bench)]

Before Jawad Hassan, J

CH. MUHAMMAD ASHRAF----Appellant

Versus

Malik MUHAMMAD MUZAFFAR KHAN and others----Respondents

Election Appeal No.06 of 2022/BWP, decided on 18th August, 2022.

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

----S.62---Nomination papers---Scrutiny---Rectification of defects---Scope---Question before Election Tribunal was whether a candidate who had filed nomination papers as per requirement of S. 60(2)(d) of the Elections Act, 2017 read with Form-A and Form-B, could move an application for rectification of some information before the closing date as notified by the Election Commission of Pakistan---Held; that plain reading of S. 62(9)(d)(ii) of Elections Act, 2017 revealed in unequivocal terms that the Returning Officer shall not reject a nomination paper on the ground of any defect which was not of a substantial nature and might allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll---Candidate himself had pointed out the omission, therefore, the same was not substantial in nature---Application for rectification was filed within the timeframe given by Election Commission---No illegality or perversity was found in the impugned orders---Appeals were dismissed.

Shaheen Merchant v. Federation of Pakistan and others 2021 PTD 2126; Abdullah Khan Usmani v. Securities and Exchange Commission of Pakistan and others 2022 CLD 821; Jam Zeeshan Ali v. Returning Officer and others 2022 CLC 119; Umar Ayub Khan v. Returning Officer NA-19, N.W.F.P., District Haripur/Additional District and Sessions Judge, Haripur and another 2003 MLD 222 and Aitbar and another v. Provincial Election Commission through DEO, District N/Feroze, through A.A.G. Sindh and 5 others (2017 CLC Note 179 rel.

Shamona Badshah Qaisarani v. Election Tribunal, Multan and others 2021 SCMR 988; Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others 2016 SCMR 763; Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277; Muzafar Abbas v. Maulana Muhammad Ahmad Lukhianvi and 31 others PLD 2017 Lah. 394; Dr. Shahzad Niazi versus Election Appellate Tribunal and 3 others PLD 2018 Lah. 748; Luqman Sajid v. Returning Officer and 5 others 2018 YLR 2319 and Muhammad Iqbal and another v. District Returning Officer, Bhakkar and another PLD 2006 Lah. 13 ref.

(b) Interpretation of statutes---

----Proviso---When something is given in a proviso in the law, its purpose has to be seen from the intent of the legislature.

Abwa Knowledge Village (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2021 Lah. 436 and Jamshed Iqbal Cheema v. The Election Appellate Tribunal and 19 others 2022 CLC 463 ref.

A.R. Aurangzeb, Advocate Supreme Court along with Muhammad Saleem Faiz, Malik Abid Daragh, Ali Khan, Shakeel Ahmed Malik, Muhammad Ashraf Chaudhry, Sardar Afzaal Ahmad and Ms Asma Nawaz for Appellant

Naveed Khalil Chaudhary, Additional Advocate General Punjab.

Muhammad Arshad Ali, Assistant Attorney General.

Muhammad Jaffar, Law Officer on behalf of Election Commission of Pakistan.

Raja Sohail Iftikhar and Muhammad Sarwar Chaudhary, Advocate Supreme Courts along with Ch. Saqib Tariq, Sultan Qadir Altaf, Malik Muhammad Sadiq Tariq, Sultan Qadir Altaf, Malik Muhammad Tariq Joiya, Makhdoom Kaleem Ullah Hashmi, Hafiz Ajalal Haider, Muhammad Arsalan Asghar Chaudhary and Farhan Akhtar for Respondent No.1.

Muhammad Asif Mahmood Pirzada, Muhammad Asif Usman Qureshi, Muhammad Zia Mehmood Pirzada, Mohsin Mansoor, Malik Javed Aslam Naich, Malik Zahid Aslam Naich, Malik Asad Hayat and Syed Munawar Hussain Bukhari for Respondents.

2022 C L C 2072

[Lahore]

Before Mirza Viqas Rauf and Jawad Hassan, JJ

FEDERATION OF PAKISTAN----Petitioner

Versus

NASIR MUNIR AHMED and others----Respondents

Regular First Appeal No.34 of 2020, decided on 9th February, 2022.

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

----S.18---Reference to Court---Scope---Acquiring agency assailed order passed by Referee Court whereby compensation of acquired land was enhanced---Validity---Existing status and future potential of the acquired land found support from an un-rebutted, rather admitted officially prepared document relating to award of compensation in connection with another acquired land for construction of a project---Referee Court had correctly based enhancement upon valuation of other acquired land in same vicinity located not too far from the subject land of instant lis---Appellant had not only remained unable to dislodge said finding of fact with any reliable record, but had also been unable to bring on record any other document leading inference of Court with regard to market value of acquired subject land other than so assessed by the Referee Court---Appeal, being devoid of merit, was dismissed.

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

----Ss.18& 31---Qanun-e-Shahadat (10 of 1984), Art.114---Reference to Court---Payment of compensation or deposit of same in Court---Compensation received "under protest"---Estoppel---Scope---Acquiring agency assailed order passed by Referee Court whereby compensation of acquired land was enhanced---Contention of appellant was that entering into an agreement as well as after having received amount of compensation struck therein, the respondent was left with no locus standi to retreat from his act to step ahead for institution of reference under S.18 of the Land Acquisition Act, 1894---Contention of respondent was that the agreement was forcibly executed---Validity---Bare reading of proviso to subsection (2) of S. 31 of the Land Acquisition Act, 1897 revealed that the Act did not provide any particular mode, manner and method of protest by a claimant at the time of receipt of amount of compensation, awarded under S. 11, hence, the protest could be made either in writing or through reference under S.18---Section 31(4) clearly demonstrated that for payment of compensation of acquired land to interested party, only Collector concerned was competent to execute any contract while in the case in hand, the agreement was executed between the respondent and an Army official who was not competent to execute the same---Requirement of making agreement with the Collector was a mandatory requirement---Appeal, being devoid of merit, was dismissed.

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

----S.23---Matters to be considered in determining compensation---Scope---Mode for determining the compensation of acquired land is provided in S. 23 of the Land Acquisition Act, 1894 according to which the landowner is entitled to compensation and not just market-value and, therefore, loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant---Delay in the consummation of acquisition proceedings cannot be lost sight of---While conducting said exercise, oral evidence, if found, credible and reliable can also be taken into account.

Abdur Rauf Khan v. Land Acquisition Collector/D.C. 1991 SCMR 2164 rel.

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

----S.23---Matters to be considered in determining compensation---Scope---Term "market-value" as employed in S. 23 of the Land Acquisition Act, 1894 implies the price that a willing purchaser would pay to a willing buyer in an open market arms length transaction entered into without any compulsion.

(e) Interpretation of statutes---

----Preamble---Scope---Preamble to a statute is though not an operational part of the enactment yet it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also shed clear light on the goals which the legislator aimed to secure through the introduction of such law---Preamble of a statute, therefore, holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law.

Director General, FIA and others v. Kamran Iqbal and others" 2016 SCMR 447 rel.

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

----O.XIII, R. 6---Qanun-e-Shahadat (10 of 1984), Arts. 111, 112, 113, 85, 88 & 89---Endorsements on documents rejected as inadmissible in evidence---Facts which need not be proved---Public documents---Proof of documents by production of certified copies---Proof of other public documents---Scope---Document which has been made part of record and is only labelled as 'Mark', ordinarily cannot be treated as admissible in evidence but where authenticity of the document is not disputed by any of the sides and the document is a public document, the Court can take judicial notice of the same for arriving at the just decision of the case.

(g) Administration of justice---

----If the law provides a mechanism for doing an act, taking an action or initiating certain measures, then the same must be complied with as and when the law provided that thing to be done in that manner and if anything is done contrary or in deviation to that, the same shall be deemed to have not been done at all.

(h) Administration of justice---

----Illegality---If base/foundation of any order or action is illegal then whole superstructure built thereupon cannot be sustained.

(i) Administration of justice---

----When the law specifies a particular manner and procedure then it is obligatory for the functionary of the State to adhere to the same and comply with it in all respects and any negligence, failure or omission to do so invalidates the proceedings on account of which whole superstructure raised on such defective foundation automatically crumbles down.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 rel.

Haroon Irshad Janjua, Deputy Attorney General for Pakistan for Appellant.

Sh. Zamir Hussain, Advocate Supreme Court for Respondent No.1.

2022 C L C 2094

[Lahore]

Before Anwaar Hussain, J

KASHIF IQBAL----Petitioner

Versus

ASGHAR ALI GHUMMAN----Respondent

F.A.O. No.39098 of 2022, decided on 7th July, 2022.

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

----S.12---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance of agreement to sell---Temporary injunction, refusal of---Possession of property---Scope---Case of appellant was that he had entered into an agreement to sell with the respondent as a result of which he had obtained possession of the suit property---Temporary injunction was sought restraining the respondent from interfering into the possession of appellant but the same was declined vide impugned order---Validity---At this stage, for the purpose of establishing a prima facie case, it certainly belied all logic that a huge amount was paid in cash, which came to around 98.75% of the total purported consideration qua suit property in respect of which, admittedly, a family dispute was pending---More so, when no documentary proof qua financial capacity of the appellant to have such a huge amount on the date of the agreement was appended with the plaint of the suit---Apart from the agreement, no document was appended with the plaint regarding possession of the appellant---Neither in the agreement nor in the plaint, it had been mentioned as to which specific portion of the suit property had been given to the appellant when admittedly the respondent and other co-sharers had a dispute qua the same and without partition, it was not possible to hand over possession over any specific portion to the appellant---Appellant had failed to prove prima facie case in his favour---Application for grant of temporary injunction had rightly been dismissed---Appeal was dismissed.

Tahira Begum v. Syeda Saira Awais 2010 M LD 82 rel.

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

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement to sell---Temporary injunction---Scope---Agreement to sell does not create any right in respect of the immovable property and its importance while deciding an application for grant of the interim injunction has to be measured up and weighed in by tentative examination of the attending circumstances.

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

----O.XXXIX, Rr.1 & 2---Temporary injunction---Ingredients---Scope---Temporary injunction, by its nature, is a preventive remedy with the object to maintain the status quo and prevent irreparable damage or preserve the subject-matter of the litigation until the trial is concluded---In order to succeed in obtaining temporary injunction in a case, a plaintiff has to establish co-existence of three conditions/ingredients i.e., (i) prima facie case; (ii) possibility of suffering irreparable loss if temporary injunction is declined; and (iii) the balance of convenience leans in his favour---Of the three conditions, existence of prima facie case is foundational and the other two conditions are considered once the plaintiff establishes a prima facie case in his favour.

Chairman, Municipal Committee, Taxila v. Mohammad Jan and 4 others 1987 CLC 2416 and Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others 1985 CLC 261 rel.

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

----O.XXXIX, Rr. 1 & 2---Temporary injunction---Prima facie case---Scope---Words 'prima facie' mean 'at first sight' or 'on the first impression'---Existence of the right of the plaintiff is to be adjudicated on the first sight on comparative consideration of pleadings of the parties---Court has to form its opinion as to who has a better case after tentatively analyzing from the rival contention of the parties as contained in their pleadings---If the Court is satisfied that the case of plaintiff is on a better footing, and on conclusion of the trial relief may be granted to him in all likelihoods, then the Court can infer that the plaintiff has a prima facie case---To ascertain whether a plaintiff has a prime facie case, the Court tentatively examines not only the pleadings of the parties but their affidavits, counter-affidavits and the documents appended with the plaint and the written statement.

Ch. Imran Raza Chadhar for Appellant.

Haris Azmat, assisted by Ms. Maryam Hayat for Respondent.

2022 C L C 2115

[Lahore (Multan Bench)]

Before Muhammad Raza Qureshi, J

MUHAMMAD ALI----Petitioner

Versus

Mian MAQBOOL AHMED----Respondent

Regular First Appeal No.38 of 2012, decided on 20th September, 2021.

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

----O.XXXVII Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 118---Negotiable instrument---Proof---Presumption as to negotiable instrument---Admission in cross-examination---Effect---Respondent/plaintiff filed a suit for recovery of sum on basis of promissory note before Trial Court---Appellant/defendant contested the suit and denied the execution of any promissory note or receipt in respect thereof---Trial Court decreed the suit against appellant/defendant---Held, that appellant in his written statement stated that he had no introduction with the respondent, but conceded that respondent was well known to appellant's elder brother; that he borrowed an amount from the respondent; and appellant had also conceded that he put his thumb impressions on some documents securing the borrowed amount from respondent----In appellant's depositions as witness, he conceded that he had affixed his thumb impressions on papers and that the respondent obtained his picture---In appellant's examination-in-chief ,he had deposed that he borrowed an amount for his elder brother "A.Y" who was never produced in evidence, but during cross-examination appellant had admitted that said amount was borrowed for appellant's own use----Appellant admitted that while making repayments, no one accompanied him nor he obtained any receipts of those repayments---Serious contradictions were found in the evidence of appellant and after such glaring admissions in appellant's cross-examination ,there was no need for the respondent to produce any evidence in rebuttal whose deposition was even otherwise consistent with his suit and also consistent with the depositions of other witnesses---Once in affirmative evidence respondent had discharged his onus, the same was shifted to appellant who had an opportunity to rebut the same through trustworthy and reliable evidence---Not only serious contradictions were found in appellant's deposition, but also categorical admission of appellant's thumb impressions on promissory note and receipt of promissory note---Promissory note as well as receipt annexed in plaint had clearly reflected that the suit amount was mentioned in Urdu language as well as in numbers in three different columns and even the receipt described the half amount---Stance of appellant that through forgery, amount of Rs. 25000/- had been mentioned as Rs.125,000/- represented a concocted story---Subject matter was lawfully proved and presumption attached to it under S.118 of the Negotiable Instruments Act, 1881, was not rebutted or proved to be contrary by appellant/defendant, rather the admissions made by appellant/ defendant in his cross-examination demolished the whole defence and the grounds agitated in the appeal---Simple denial in appellant's evidence or reply to every sentence, the question or suggestion in the negative in pleadings or depositions also operated against appellant---Appeal was dismissed being meritless.

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

----Arts.72, 75 & 79---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2 ---Promissory note---Proving the existence, execution and contents of promissory note---Respondent/plaintiff by proving the existence, execution and contents of promissory note had passed all tests laid down by the law and the Qanun-e-Shahadat Order, 1984 and appellant failed to impeach the respondent's evidence---Contention of appellant that respondent was not holder of promissory note in due course of law or the subject matter promissory note was inadmissible in evidence had no foundation and was declared meritless---Appeal was dismissed.

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

----S.118---Presumption as to negotiable instrument---Initial presumption---Onus to prove----Initial presumption is that the negotiable instrument is made, drawn, accepted or introduced for consideration , but under the law this is a rebuttable presumption and onus is on the person who denies consideration to allege and prove the same.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 and Syed Kauser Abbas Shah v. Sardar Khan 2005 YLR 3321 rel.

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

----S.118-----Term "until the contrary is proved" in Negotiable Instruments Act, 1881---Meaning---Term "until the contrary is proved" in the beginning of S.118 of the Act indicates that it should be the responsibility of the person who claims that the instrument was executed without consideration to prove the reasons why it is so executed---Once this is done, the onus shifts to the holder of the instrument---Said presumption unless rebutted is statutory and mandatory and the person who wishes to dispel it must furnish proof to the contrary---In a case where a person, who challenges the consideration of a negotiable instrument does not adduce satisfactory evidence or absence of consideration or where no evidence is produced, the statutory presumption under S.118 of the Act comes into play to the effect that the negotiable instrument was made or drawn for valid consideration.

Shell Pakistan Ltd. through Attorney v. Aero Asia International (Pvt.) Ltd. through Chief Executive and another 2008 CLD 996 rel.

(e) Administration of justice---

---Presumption---Scope---When the law prescribes that presumption shall be attached to a particular fact, the said fact has to be presumed to be true unless otherwise is proved by the party alleging the same.

(e) Administration of justice---

----Law would help a person who controverted the controversies, but the one who denied everything, would lose credibility.

2022 C L C 2126

[Lahore]

Before Ahmad Nadeem Arshad, J

BASHARAT ALI----Petitioner

Versus

SUBEDAR KHAN and 2 others----Respondents

Civil Revision No.193043 of 2018, heard on 20th January, 2022.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.24---Pre-emption---Zar-e-Soim, one Rupee less deposit than that directed---Bona fide mistake---Trial Court rejected the plaint for non-deposit of 1/3rd of the total sale price of the property---District Court had dismissed the petitioner's appeal---Petitioner contended that he deposited Rs.3,83,333/- as Zar-e-Soim keeping in view the sale price of Rs.11,50,000/- within time allowed by the Court---Validity---Required deposit of Zar-e-Soim was subject to the order of the Court,therefore, if the Court failed to pass an order to deposit Zar-e-Soim then the pre-emptor could not be penalized for such non-deposit---Trial Court wrongly calculated the 1/3rd of the sale price (Zar-e-Soim) as Rs.3,83,334/- instead of Rs.3,83,333.3333/---Court was only required to direct the plaintiff to deposit 1/3rd of sale price (Zar-e-Soim) and the Court was not bound to mention specific amount of Zar-e-Soim---Petitioner deposited less amount of Rs.1/- in the light of direction of the Trial Court and deposited less amount of 33 paisa in the light of S.24 of the Punjab Pre-emption Act, 1991---Such less deposit was very meager amount---Petitioner deposited deficient amount due to bona-fide mistake which would deserve serious/earnest/compensate consideration as the Courts were under obligation to decide the lis on merit rather as per technicalities---Petitioner made Zar-e-Soim round figure in a lesser side rather the greater side because paisas (coins) were not counted now a days and he was not guilty of contumacy---Revision petition was allowed accordingly.

Malik Tariq Mahmood and others versus Ghulam Ahmad and others PLD 2017 SC 674; Gul Usman and two others v. Mst. Ahmero and 11 others 2000 SCMR 866 and Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40 rel.

(b) Administration of justice---

----Technicalities---Procedural technicalities cannot restrain the court in doing complete justice.

Raja Rafaqat Ali and Shabbir Ahmad Khan Petitioner.

Ch. Abdul Majeed and Ch. Ihsan-ul-Haq for Respondents.

2022 C L C 100

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary (E&S) Education Department, Peshawar and 2 others----Petitioners

Versus

NAJIB ULLAH KHAN----Respondent

Civil Revision No.71-B of 2021, decided on 13th September, 2021.

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

----S.42---Concealment of facts---One who seeks equity must come to the court with clean hands---Equity, discretionary relief of--- Respondent/plaintiff filed suit for declaration/perpetual injunctions against his non-appointment while the candidates appointed who were lower in merit list than the respondent---Suit was concurrently decreed---Petitioners exposed the Constitutional petition filed by respondent earlier than filing the suit---Validity---Ground taken by the respondent in his Constitutional petition disposed of earlier by the High Court, was the same as it was the taken in present suit---Respondent concealed the fact of decision in the said petition and points agitated regarding certain appointments were nor mentioned in the plaint---High Court on the basis of inquiry conducted by Additional Registrar had appraised to the effect that respondent was refused appointment on other ground, i.e. respondent was unable to make place in Union Council/District open merit---Neither the respondent had got any right nor his any such right was ever violated rather the respondent/plaintiff had concealed the facts from the court---Concealment of fact was a ground to preclude the respondent from the relief so claimed by him before the Trial Court---High Court exercised its discretion in favour of petitioner---Revision petition was allowed, in circumstances and concurrent judgments/decrees were set-aside.

Fazal Hussain v. Deputy Director, Administration and Housing Management, Kot Lakhpat Housing Project, Township, Lahore PLD 1987 Lah. 297 and Telecard Limited through Authorised Representative v. Federation of Pakistan through Secretary Ministry of Information and Technology and another 2017 CLC note 81 rel.

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

----S.115---Revisional jurisdiction---Concurrent findings---Concealment of facts---Scope---Erroneous concurrent findings based on misreading and non-reading of evidence were not sacrosanct---Judgments/decrees of both the courts below were not immune from interference of High Court by invoking revisional jurisdiction, provided the judgments/decrees were result of concealment of fact, mis-reading/non-reading of record and by not filing the suit with clean hands.

Nazi mud Din and others v. Sh. Zia ul Qamar and others 2016 SCMR 24 and Noor Muhammad and others Vs. Mst. Azmate Bibi 2012 SCMR 1373 rel.

Qudrat Ullah Khan Gandapur, A.A.G. for Petitioners.

Masood-ur-Rehman Wazir for Respondent.

2022 C L C 127

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

MUHAMMAD SYED ALI SHAH through L.Rs----Petitioners

Versus

Syed NOOR DIN SHAH through L.Rs ----Respondents

Civil Revision No.198-B of 2020, decided on 20th September, 2021.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Description of property, inadvertent/clerical mistake in---Property numbers written in Urdu numbering were wrongly given in notice of Talb and plaint--­-Courts below dismissed the suit---Validity---Description of property was mentioned in plaint---Copy of registered deed was annexed with the plaint---Vendee had never denied the factum of purchase of property through the said deed---Description of property was written in registered deed in Urdu numbers on basis of which notice of Talb-i-Ishhad was issued and plaint was drafted---All other numbers were in English---Neither the officials of revenue hierarchy nor lawyers could read or write Urdu and Persian numbers nowadays, nor those were taught in schools---Scribe of plaint and notice of Talb-i-Ishhad had inadvertently read the numbers in Urdu in registered deed "22" as "44" with respect to its similarity/resemblance---Law required the adjudication on merits rather than technicalities---Revision petition was allowed with cost and suit was deemed pending before Trial Court.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Gulshan Yaseen and others v. Ajab Gul 2013 SCMR 23 and Zohra Bibi and another v. Haji Sultan Mehmood and others 2018 SCMR 762 ref.

(b) Administration of justice---

----Whenever it was possible to grant a relief under the law, then technicalities in way of administration of justice should be avoided to the possible extent.

Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.16---Right of pre-emption---Transfer to legal heirs---Scope---Death of pre-emptor did not abate the suit but the right of pre-emption being survived would devolve upon the legal heirs.

Alam Sher and 2 others v. Muhammad Usman Khan through legal heirs and 2 others 2017 CLC Nore 189 ref.

(d) Words and phrases---

----"Mistake"/"clerical mistake"---Connotation---Mistake made in a letter, paper or document that changed its meaning such as typographical error or un-intentional addition/omission or a word, phrase or a figure, a mistake of any of the said kinds was a result of oversight.

Black's Law Dictionary ref.

Zahid-ul-Haq for Petitioners.

Abdul Rashid Khan Marwat for Respondents.

2022 C L C 142

[Peshawar]

Before Lal Jan Khattak and Shakeel Ahmad, JJ

FAWAD AFZAL KHAN----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others----Respondents

Writ Petition No.5641-P of 2020 with C.M. No.1072 of 2021, decided on 8th July 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Vires of law---Scope---Vires of a law can only be assailed if it is shown that either Legislature was not competent to enact it or there was any mala fide on the part of Parliament in the enactment---If none of the said elements exist then desired writ to declare the law ultra vires of the Constitution cannot be issued.

(b) Khyber Pakhtunkhwa Alternate Dispute Resolution Act (XLVIII of 2020)---

----S.3---Constitution of Pakistan, Art.199---Constitutional petition---Vires of law---Alternate Dispute Resolution---Object, purpose and scope---Petitioner assailed Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020, on the plea that the same was ultra vires the Constitution---Validity---Provincial Government was competent to legislate on the subject and there was no mala fide on the part of the Legislature to pass the law---Apart from providing inexpensive and expeditious justice to litigants, there were further advantages of Alternate Dispute Resolution System, which included direct engagement of parties in the process than what was usually done in the Courts of law---Parties before Saliseen were in better position to explain their stance in their own languages, accents and styles to the Saliseen who also knew well the customs and traditions prevailing the area, who could discuss the issue holistically and try to put an end to a lis once for all without adverting to technicalities--- Constitutional petition was dismissed, in circumstances.

Noor Alam Khan for Petitioner.

Shumail Ahmad Butt, A.G. and Kamran Murtaza, A.A.G. for Respondents.

2022 C L C 163

[Peshawar]

Before Syed Arshad Ali, J

Mst. HUSSNA BIBI through L.Rs.----Petitioner

Versus

UBAID-UR-REHMAN and others----Respondents

Civil Revision No.495-P of 2021, decided on 8th July, 2021.

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

----S.47---Executing Court, power of---Scope---Petitioner being guardian of minors/respondents sold the property/house of deceased father of the respondents---Trial Court revoked guardianship and directed the petitioner to deposit the share of the minors in Court against the sale consideration---Decree was upheld by District Court and High Court---Petitioner contended in objection petition that share of the minors was not properly determined---Held, that issue had already been determined in the earlier round of litigation up to High Court---Re-agitating the matter through objection petition was obviously mala fide---Executing Court had no mandate to re-adjudicate upon the legality and proprietary of a decree for which the objector had other avenues---Revision petition was dismissed with cost of Rs.50,000/- to be recovered by executing Court.

Saifee Development Corporation Ltd., Karachi v. M.A. Karim PLD 1968 Lah. 144 ref.

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

----S.47---Execution proceeding---Jurisdiction---Objection petition, ground of---Scope---Executing Court had no mandate to go beyond the decree---Once rights of the parties were settled by Trial Court and later affirmed by the appellate/further fora, then objection petition during the execution proceedings on the same ground is not only misconceived but should be summarily dismissed, enabling the decree holder to reap the fruits of their decree.

Topanmal Chhotamal v. Ms. Kundomal Gangaram and other AIR 1960 SC 388 and FazalIlahi and another AIR 1935 Lah. 549 ref.

Gul Rehman Mohmand for Petitioners.

2022 C L C 202

[Peshawar]

Before Muhammad Naeem Anwar, J

MUHAMMAD NAWAZ KHAN and 2 others----Petitioners

Versus

BAHADAR NAWAZ KHAN and 17 others----Respondents

Civil Revision Petition No.11-B of 2015, decided on 26th January, 2021.

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

----O.VII, R.11(a)---Rejection of plaint---Cause of action---Determination---Effect---"Accrual of cause of action" and "disclosure of the same" are distinct from each other---Former can only be decided after recording of evidence whereas the latter if does not disclose cause of action would result into rejection of plaint.

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

----Ss.8, 42 & 54--- Civil Procedure Code (V of 1908), S.11---Suit for recovery of possession, declaration and injunction---Res judicata, principle of---Concurrent findings of facts by Courts below---Petitioners/plaintiffs claimed to be owners on the basis of entries in Record of Rights (Jamabandi) to the extent of their shares in suit land---On application filed by respondent/defendant Trial Court rejected the plaint and appeal filed by petitioners/plaintiffs was dismissed by Lower Appellate Court, as the matter had already been decided by Courts in earlier suit---Validity---Petitioners/plaintiffs were time and again raising one and the same plea through different modes and manners, which in the circumstances of law was neither permissible nor could be allowed---Concurrent findings with respect to the facts to two suits could only be set at naught when findings of both the Courts below were perverse against law, illegal and result of mis-reading, non-reading and misapplication of law---High Court declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed, in circumstances.

Muhammad Saleem and others v. Rasheed Ahmed and others 2004 SCMR 1144 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Farman Ali Khan for Petitioners.

Muhammad Riaz Khan for Respondents.

2022 C L C 237

[Peshawar]

Before Qaiser Rashid Khan and Ijaz Anwar, JJ

Mst. FARZANA IFTIKHAR----Petitioner

Versus

FEDERAL SECRETARY OVERSEAS PAKISTANIS FOUNDATION/CHAIRMAN OVERSEAS PAKISTANIS FOUNDATION, ISLAMABAD and others---Respondents

Writ Petition No.5347-P of 2019, decided on 30th September, 2020.

(a) Emigration Rules, 1979---

----R.2(gg)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Overseas Pakistani Foundation (OPF)---Scope---Overseas Pakistanis Foundation is set up by Federal Government to be managed by Board of Governors comprising of minister in charge of affairs of emigrants and such other members that Government may from time to time nominate---Functions entrusted to OPF were amenable to Constitutional jurisdiction of High Court---Constitutional petition was maintainable, in circumstances.

Tanvir Iqbal Siddiqi v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad 1994 SCMR 958; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; W.P. No.592 of 2011, decided on 19-1-2012 and W.P. No.3847 of 2009 decided on 21-4-2011 distinguished.

Salah-ud-Din and 02 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others PLD 1975 SC 244 and Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326 rel.

(b) Emigration Ordinance (XVIII of 1979)---

----S.16(2)(n)---Emigration Rules, 1979, R.2(gg)---Constitution of Pakistan, Art.199---Constitutional petition---Overseas Pakistani Foundation (OPF)---Assistance Package---Decision of Board of Governors, retrospective effect---Petitioner was widow of a deceased officer of the Foundation and she was denied Assistance Package---Husband of petitioner died on 17-05-2017 whereas decision of Board of Governors was made on 20-12-2018---Plea raised by OPF was that decision of Board of Governors could not be applied retrospectively---Validity---Board of Governors gave approval of Assistance Package in its 148th meeting held on 20-12-2018 and gave uniform package to all its employees who died during service in any OPF's grade---On representation of petitioner, the Assistance Package was extended to families of officers cadre, albeit, with immediate effect but petitioner remained deprived of such Package / benefit---High Court directed the Foundation to grant Assistance Package to petitioner and her family---Constitutional petition was allowed, in circumstances.

Akhtar Munir v. Secretary Home and Tribal Affairs, Khyber Pakhtunkhwa, Peshawar and 08 others 2016 MLD 999 and Dr. Zahra Hassan v. Government of Punjab through Secretary Health and 02 others 2013 MLD 1835 rel.

(c) Interpretation of statutes---

----Retrospective effect---Pending proceedings---Notification which purports to impair an existing or vested right or imposes a new liability or obligation cannot operate retrospectively in absence of legal sanction but the converse i.e. a notification which confers benefit can operate retrospectively.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Government of Pakistan through Secretary Ministry of Commerce, Islamabad v. Messrs Village Development Organization, V.P.O. Landrwan, District Laki Marwat through General Attorney Sher Adam 2005 SCMR 492; Muhammad Ramzan Katiar through Legal Heirs v. Pakistan Refinery Ltd and another PLD 2013 Sindh 01 and Messrs Farooqui Ice Factory, Gambat through Proprietor and 24 others v. Revenue Officer SEPCO (WAPDA), Ranipur, District Khairpur and 14 others PLD 2014 Sindh 443 rel.

Waseem-ud-Din Khattak for Petitioner.

Amir Javed, DAG, for Federation.

Muhammad Asad-ul-Haq, Section Officer and Muhammad Fayyaz, Law Officer, Ministry of Overseas Pakistanis and Human Resource Development, Islamabad.

2022 C L C 277

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

MUHAMMAD ZAMAN and others----Petitioners

Versus

Syed ZAIN-UL-ABIDEEN and others----Respondents

Civil Miscellaneous Nos.12(2) and 13-M of 2019 with Civil Miscellaneous No.511 of 2021 in Civil Revision No.501-P of 2007 decided on 8th March, 2021.

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

----S.52---Lis pendens, doctrine of---Object, purpose and scope--- Main purpose of doctrine of lispendens is to obviate chances of any intermeddling with a property under litigation and if any one so intermeddles, he does it at his own risk---Principle/doctrine is to provide protection to interest of parties under litigation---Rights made during the course of litigation are subject to final outcome of such litigation under doctrine of lis pendens.

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

----Ss.42 & 54---Transfer of Property Act (IV of 1882), Ss. 41 & 54---Civil Procedure Code (V of 1908), S. 12(2)---Judgment and decree maintaining of---Ostensible owner, transfer from---Doctrine of lis pendens---Scope---Applicant purchased suit property from a judgment debtor and sought setting aside of judgment on the plea of bona fide purchaser---Validity---Person acquiring property from a judgment debtor could not claim his right protected under S.41 of Transfer of Property Act, 1882, as a bona fide purchaser---Rights acquired during the course of litigation had to give way to final outcome of the suit---Rights of applicant were subject to final outcome of adjudication which was finalized with judgment passed by High Court in exercise of revisional jurisdiction---Applicant could not challenge that judgment of High Court in his application under S.12(2), C.P.C.---High Court declined to set aside judgment and decree as challenge to the orders of Court could not be raised by a person purchasing property during the course of earlier litigation---Application was dismissed, in circumstances.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd. Sialkot and another PLD 1993 SC 292; Muhammad Nawaz Khan and Muhammad Khan and 2 others 2002 SCMR 2003 and Risaldar Ghazi Khan and another v. Abdur Rehman and another 1984 CLC 1615 rel.

Abdul Halim Khan for Petitioners.

2022 C L C 308

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

GUL SAHIB KHAN and 39 others----Petitioners

Versus

ABDUL RASHID KHAN and 23 others----Respondents

Writ Petition No.595-B of 2021, decided on 16th September, 2021.

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

----S.12---General Clauses Act (X of 1897), S.9---Limitation, commencement/termination of---Exclusion of time in legal proceedings---Suit for possession---Revenue hierarchy---Ex-parte decree was passed vide order dated 17/07/2019---Petitioners/defendants had filed appeal on 19/08/2019, which was dismissed on ground of being barred by time---Held, that in all forums of revenue hierarchy time for filing of appeal was either overlooked or not properly calculated, which prima facie was filed on 30th day and as such the appeal of the petitioners was well within time---Petitioners were entitled for adjudication / decision of their appeal on merits----Constitutional petition was allowed accordingly.

Malik Muhammad Nawaz, Haji Aziz Ahmad, Commission Agents, Chakwal v. Syed Mehmood Hussain 2002 SCMR 264 and Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 rel.

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

----S.12---General Clauses Act (X of 1897), S.9---Day of pronouncement of order, exclusion of---Section 9 of the General Clauses Act, 1897, prescribed a method for computation of period of limitation---Date from which any act has been ordered to be performed was excluded.

Messrs Malik Muhammad Nawaz, Haji Aziz Ahmad, Commission Agents, Chakwal v. Syed Mehmood Hussain 2002 SCMR 264 and Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 rel.

(c) Administration of Justice---

----Technicalities should not hamper the administration/dispensation of justice---Whenever it was possible to grant a relief under the law, then technicalities in way of administration of justice should be avoided to the possible extent by remaining within the domain of law.

Zohra Bibi and another Vs. Haji Sultan Mehmood and others 2018 SCMR 762; Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 and Zahid Zaman and others v. Khan Afsar and others PLD 016 SC 09 rel.

Muhammad Tariq Qureshi for Petitioner.

Arshad Hussain Yousafzai, A.A.G. for Respondents.

Sardar Ali Khan and Abdur Rashid Khan Marwat for Respondents.

2022 C L C 479

[Peshawar]

Before Muhammad Naeem Anwar, J

NIJAT ALI and another----Petitioners

Versus

ASMAT ARA and 2 others----Respondents

Writ Petition No.1163 of 2011, with C.M. No.94-P of 2012 decided on 21st June, 2021.

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

----S.9---Written statement---Scope---Specific mechanism is provided in the Family Courts Act, 1964, for settlement of disputes relating to marriage and family affairs and also other ancillary matters connected therewith---Basic object of the Family Courts Act, 1964 is to facilitate the party seeking their rights, to provide justice and to curtail insufficient delay in legal and procedural formalities as the Act does not intend to create hurdles, problems and difficulties for spouses or for the Courts dealing with their matters---Section 9(5) of the Family Courts Act, 1964, envisages that when the defendant does not appear on the date fixed by the Court, he would be proceeded ex parte---Section 9(5) provides that in case when the defendant is proceeded ex parte and on showing or assigning good cause or reasons for his non-appearance, ex parte proceedings are set aside---Section 9(6) of the Act provides the period within which the application for setting aside of ex parte decree can be filed and when it is proved that either the defendant was not served properly or he was prevented by sufficient cause from appearing, when the suit was heard or called for hearing, the Court shall set aside the ex parte decree.

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

----S.10---Pre-trial proceedings---Date of hearing---Scope---Term "date of hearing" has not been defined in the Family Courts Act, 1964 and Family Courts Rules, 1965, however, the term "date of hearing" would mean the date on which the cause proceeds ahead, a step taken in the proceedings---Term "reconciliation" is in fact a progress of suit when in presence of the parties even the suit can be disposed of on such terms and conditions as settled between them, therefore, the date fixed for reconciliation is a date of hearing and when this date is fixed in presence of the defendant or his counsel then on the next date of hearing, his non-appearance would be termed as deliberate or intentional unless proved otherwise.

(c) Words and phrases---

----"Per incuriam"---Meaning---Scope---Term "per incuriam" is defined as when the Court has acted in ignorance of previous decision of its own or of a Court of coordinate jurisdiction when covered the case before it, in which case, it must decide, which case to follow or when it has acted in ignorance---In legal parlance, it may be defined as through lack of care.

Moinuddin and others v. The State and others PLD 2019 SC 749 rel.

Ghulam Mohy-ud-Din Malik for Petitioners.

Taimur Haider Khan for Respondents.

2022 C L C 502

[Peshawar]

Before Muhammad Naeem Anwar, J

JAVED IQBAL and 5 others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government, Peshawar and 4 others----Respondents

Civil Revision No.1036-P of 2019, decided on 19th October, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Interim injunction---"Prima facie case"---Preconditions---Interim injunction, refusal of---Concurrent findings of facts by two Courts below---Petitioners/plaintiffs claimed to be tenants in shops in question and claimed that respondents/defendants had no right to dispossess them---Both the Courts below concurrently declined to grant interim injunction against respondents/defendants---Validity---For grant of temporary injunction, it was sine qua non for petitioners/plaintiffs to have on record a prima facie case regarding balance of convenience and irreparable loss with co-existence such ingredients in their favour---Mala fide attributed to respondents / defendants required evidence---Case standing in need of evidence required to be established was not a "prima facie case" for the purpose of grant of temporary injunction--- Petitioners/plaintiffs were in possession of disputed property for more than three decades, which signified dilapidated condition of building and the same further led to conclusion that balance of convenience and irreparable loss was tilting in favour of respondents/defendants--- Concurrent findings of Courts below could only be set aside if the same were result of misreading, non-reading of evidence or any irregularity or patent illegality committed by Courts below---Revision was dismissed, in circumstances.

1987 CLC 2416; Allah Bakhsh and others v. Province of Punjab and others 2002 SCMR 2002 and Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469 rel.

Zia-ur-Rehman and Hassan U.K. Afridi for Petitioners.

Sabah-ud-Din Khattak, for Respondent.

2022 C L C 626

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

FAIZULLAH KHAN and 26 others----Petitioners

Versus

GUL DARAZ KHAN and 133 others----Respondents

Civil Revision No.173-B of 2016, decided on 28th October, 2021.

(a) Islamic law---

----Inheritance---Sharer and residuary---Predecessors in interest of parties were four brothers ("A", "B", "C" and "D")---Petitioners were successors of "A-1" and "A-2", who were sons of "A" whereas the respondents were the successors of "B"---Inheritance of "A-3" was devolved upon her mother "A-4", her paternal uncle "B", and her brothers "A-1" and "A-2" through impugned mutation---Petitioners filed suit challenging the said mutation to the extent of "B" on the ground that the legacy of "A-3" could not be devolved upon her paternal uncle "B" in presence of her brothers "A-1" and "A-2"; that alienation of property in favour of "B" was against facts, laws and Sharia and inoperative upon their rights---Trial Court decreed the suit---District Court accepted the appeal of respondents on grounds that petitioners had not been able to prove that "A-1" and "A-2" were brothers of "A-3" and that suit was barred by law---Validity---Name of "A-3" had not specifically been mentioned in pedigree table being daughter of "A", and her mother "A-4" did not figure in inheritance mutation, but it did not mean that "A-3" was not the daughter of "A-4"---Admittedly, controversy was in respect of the inheritance of "A-3", therefore, the arguments of respondents that "A-3" was not daughter of "A-4" from her earlier husband and "A" was not her real father had got no relevance as neither such fact was categorically mentioned in their written statement nor any such evidence was available on record---Factual aspect could not be allowed to be taken/asserted for the first time before High Court---It was undisputed that property of "A-3" was in question and the fact that by whom she inherited the same was irrelevant---Once legal heirs of "B" asserted that "B" was paternal uncle of "A-3" then they were estopped to say that "A" was not real father of "A-3" because "A" and "B" were real brothers and "B" could only be the paternal uncle of "A-3" if she was the daughter of "A"---One could not be allowed to approbate and reprobate as the respondents could not blow hot and cold in the same breath---When "A", "B", "C" and "D" along with "A-1" and "A-2" were named in the inheritance mutation in juxtaposition with the admission of the respondents that "A-4" was the real mother of "A-3" and that "A-4" was wife of "A" and "A-1" and "A-2" were real sons of "A" then they could not deny the fact that "A-3" was the real daughter of "A"---Paternal uncles are not in the table of sharer rather they were in the table of residuary and order of residuary was considered on the principle that nearer in relation had to exclude more remote---Inheritance would be distributed amongst the legal heirs such a way that each of the "A-4" "A-1" and "A-2" would get 2/6---Inheritance mutation was attested in year 1939 and the same was a public document---Mere 30 years old document would not be considered as gospel truth and when a document was challenged, the beneficiary was required to prove the same---Estoppel was a doctrine of law which precludes a person from denying the truth of statement formally made by him, thus, respondents were estopped by their conduct by alleging them to be the legal heirs of paternal uncle of "A-3" and asserting that "A-3" was not the daughter of "A"---Distribution of property was against law of Sharia on two-fold grounds: Firstly, that Sharia did not entitle a paternal uncle of the deceased to get the inheritance in presence of other legal heirs; and Secondly, that the perplexed version of respondents would create a hurdle/bar in between their claim in the capacity of paternal uncle and at the same time disputing the parentage of "A-3" to be the daughter of "A"---Inheritance would be devolved in consonance with Sharia and would not be hit by limitation in any manner whatsoever---Revision petition was allowed accordingly.

Muhammadan Law, Section 65; Nazir Ahmed deceased through LRs v. Karim Bakhsh (Late) through LRs) 2017 SCMR 1934; 2016 MLD 1974; 1998 SCMR 996; 2018 CLC 254; 2014 SCMR 801; 2015 SCMR 869; 2017 MLD 1567; 2017 CLC 436; 2007 SCMR 635; PLD 1990 SC 1; 2004 SCMR 1391; PLD 2002 SC 677; 2005 SCMR 1217; 2005 SCMR 1281; 1990 SCMR 1667 and 2003 SCMR 362 rel.

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

----S.115---Revisional jurisdiction---Raising new facts---Scope---Not permissible for either party to assert a new fact for the first time before High Court when the matter was being heard under S.115 of the Code of Civil Procedure, 1908, the powers of High Court were limited as to whether the lower forum had committed an illegality, or exercised the jurisdiction not so vested in that court, or the order passed in excess of jurisdiction not so vested in the court below.

Alamzeb Khan for Petitioners.

Jan Muhammad Khan and Hafiz Muhammad Hanif for Respondents.

2022 C L C 644

[Peshawar]

Before Musarrat Hilali, J

ARBAB ALTAF QADIR----Petitioner

Versus

AUQAF----Respondent

R.F.A. No.01 of 2013, decided on 9th December, 2021.

(a) Khyber Pakhtunkhwa Waqf Property Ordinance (II of 1979)---

----Ss.2(e), 7 & 11---Limitation Act (IX of 1908), Ss. 5 & 29---Notification by Chief Administrator Auqaf---Condonaiton of delay---Applicability---Appellants/applicants alleged that land along with superstructure of a Mosque along with 2 shops was owned and possessed by them; that Auqaf department took over administrative control management/maintenance of the said property vide notification; that that property in question was not Waqf property; that neither the notification was served upon appellants nor it was affixed on some conspicuous part of the property; that they came to know about the said notification during pendency of the suit filed by them before civil court; that delay in filing petition was not deliberate; that such acts of the Department were illegal, mala fide and void---Trial Court rejected appellant's petition under O.VII, R.11 of Civil Procedure Code, 1908 on ground of being barred by time (with 52 years delay)---Validity---Notification in question issued by Chief Administrator of Auqaf Department was duly published by Authority in Gazette---"Waqf property" meant property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable---If a property had been used from time immemorial for any such purpose, then in spite of there being no evidence of express dedication, such property would be deemed to be waqf property---When a waqf was created, all rights of property passed out of waqif and vest in the Almighty---Chief Administrator while exercising powers under S. 7 of Khyber Pakhtunkhwa Waqf Property Ordinance, 1979, issued impugned notification by taking over and assuming the administrative control, management and maintenance of the mosque in question---Such property had to be registered under S.6 of the Ordinance, 1979, by every person acting as in-charge including a person creating the waqf, however, non-compliance of the provisions of said S.6 would not oust the powers of the Chief Administrator from taking over such property by way of notification---Appellant did not challenge the impugned notification within the stipulated period of 30 days and remained mum for a period of more than 5 decades in year 2011---Impugned notification was issued in year 1960 while the provisions of service of notification and its affixation on some visible place was inserted vide Khyber Pakhtunkhwa Act, 1985---Ordinance, 1979, was a special law for the purpose of S.29 of the Limitation Act, 1908 which made it clear that S.5 of Limitation Act, 1908, would not apply to an application under a special or local law---Impugned notification was also discussed by Civil Judge in an interlocutory order in appellants' suit, meaning thereby the appellants were already in knowledge of such notification as the present petition was filed on 05/03/2011---Appeal was dismissed accordingly.

Elahi Bakhsh v. Chief Administrators, Waqf Property 1982 SCMR 160; Chief Administrators of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102; PLD 1994 Lahore 241 and 2000 YLR 2506 rel.

Arbab Yasir Hayat for Petitioner.

Nasir Mehmood and Yasir Khalid for Respondent.

2022 C L C 659

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

SHAHZADA AMAN ROOM and others----Petitioners

Versus

MIANGUL HILAL and others----Respondents

Civil Revision No.18-P of 2010, decided on 22nd March, 2021.

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

----O.XVII, R.3---Court may proceed notwithstanding either party fails to produce evidence---Scope---Petitioners assailed the dismissal of their suit under O.XVII, R.3 of C.P.C.---Validity---Trial Court before proceeding under O. XVII, R.3 of C.P.C. and closing the right of petitioners to produce their evidence had granted innumerable opportunities---Contention of the petitioners was that after striking-off their right to produce evidence the case should have been further processed and evidence of respondents should have been recorded---High Court observed that petitioners had not got even a single witness examined in support of their case---Pleadings were not evidence by itself---When the petitioners had not been able to examine any of their evidence in support of their case, there had in fact been no evidence in support of the contention of the petitioners, then in such circumstances, putting the case for defendants' evidence and recording the same would have been a matter of mere legal formality having no substantial effect---Such ground for reversal of impugned order was not sufficient---Revision petition was dismissed.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180; 1990 CLC 729; 1992 CLC 102, 1994 CLC 1679; 1994 CLC 1007 and 2017 MLD 1544 ref.

Muhammad Aslam v. Nazir Ahmad 2008 SCMR 942; Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637; Abdul Wahid v. Syed Ghulam Mujaddad and 6 others 1989 CLC 697 and Messrs Transtech Limited v. Messrs Pakistan Tobacco Company Limited 2004 MLD 1242 distinguished.

Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager Rawalpindi and another 2020 SCMR 300 and Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 rel.

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

----O.XVII, R.3---Court may proceed notwithstanding either party fails to produce evidence---Scope---Once the case of a delinquent litigant squarely fell within the purview of mischief of O.XVII, R.3, C.P.C., then neither a concession should be shown to such litigant nor a lenient view favouring him should be resorted to.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 ref.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 rel.

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

----O.XVII, R.3---Court may proceed notwithstanding either party fails to produce evidence---Scope---If the orders passed under O.XVII, R.3, C.P.C., are liberally set aside then there would be no discipline in the adjudication of civil litigations and the delinquent litigant whose case was though squarely hit and covered by the penal provisions of O.XVII, R.3, C.P.C., would be given a chance to his advantage and to the disadvantage of his opposing side---Such an approach is not according to the spirit of law.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 ref.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 rel.

Asghar Ali and Inayat Ullah Khan for Petitioners.

Aziz-ur-Rehman for Applicants (in C.M. No.1552-M of 2017).

Faridullah Khan for Respondents.

2022 C L C 686

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

Mst. RABIYAZ BIBI----Petitioner

Versus

MATIUR REHMAN and others----Respondents

Writ Petition No.164-B of 2017, decided on 20th May, 2021.

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

----S.5, Sched.---Suit for dower, dowry articles and maintenance allowance---Maxim: Secundum allegata et probata---Scope---Petitioner filed a suit for recovery of dower, dowry articles and maintenance allowance---Trial court partially decreed the suit to the extent of maintenance allowance for iddat period, whereas rest of the reliefs as prayed for were turned down---Appeal was dismissed---Validity---Petitioner was required to prove fixation of the dower as alleged by her on basis of maxim secundum allegata et probata i.e. the burden of proof would lie upon the person who asserted or alleged a fact---Mere mentioning of particular fact in the pleading was not enough to grant a relief unless and until it was proved through cogent, reliable, sufficient and direct evidence as pleadings was not the evidence---Even the father of petitioner was not certain regarding fixation of quantum of dower i.e. 08 tola gold---List of dowry articles was undated, unsigned and prepared at the time of institution of the suit, as such, could not be relied upon---Fixation of maintenance allowance was proper which required no interference---Constitutional petition was dismissed.

Anwar Ahmad's case 2005 SCMR 152; Inayat Ali Shah v. Anwar Hussain 1995 MLD 1714; Pir Wali Khan v. Niaz Badshah 2013 MLD 1106; Mir Laiq Khan v. Sarfraz Jehan 2013 MLD 1449; Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani 2013 CLC 1406 and Messrs Choudhary Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804 ref.

(b) Pleadings---

----Fact not asserted in the pleadings cannot be proved by producing evidence and even if an iota of evidence is led, that has to be ignored.

Inayat Ali Shah v. Anwar Hussain 1995 MLD 1714; Pir Wali Khan v. Niaz Badshah 2013 MLD 1106; Mir Laiq Khan v. Sarfraz Jehan 2013 MLD 1449; Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani 2013 CLC 1406 and Messrs Choudhary Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804 ref.

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

----Art.72---Proof of contents of document---Scope---Exhibition of document is one thing and its proof, as prescribed by law, is another thing---Exhibition of a document does not mean that it stands proved, rather the party relying upon such document is supposed to prove the same in accordance with law and procedure provided in Qanun-e-Shahadat, 1984---Philosophy of exhibition and admission of document are not one and the same, as in the former the document is tendered in the evidence whereas in the latter it requires to be proved in accordance with the principles of Qanun-e-Shahadat or rule of evidence---Exhibition is something else being a process led to the proof of a document---Mere exhibition of a document was not tantamount to an admission of a document or proof thereof irrespective of the fact that a document was exhibited and that too without objection, the same is required to be proved.

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

----Art.72---Proof of contents of document---Scope---Any document filed by either party passes through three stages before it is held to be proved or disproved---First stage: when the document is filed by either party in the Court; this document though on file, does not become part of the judicial record; second stage; when the document is tendered or produced in evidence by a party and the Court admits the documents in evidence---Document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence; and third stage: the documents are 'proved, not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Qanun-e-Shahadat, 1984.

1998 MLD 1592 and PLD 1993 SC 160. ref.

Muhammad Nishan, Khattak for Petitioner.

Samiullah Khattak for Respondents.

2022 C L C 873

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

IMAM SHAH and 5 others----Petitioners

Versus

BANAT SHAH and 4 others----Respondents

Civil Revision No.8-B of 2017, decided on 13th December, 2021.

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

----S.10 & O.VII, R. 11 & O.XLI, R.22---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for declaration was filed by petitioners alleging that they were the legal heirs of ("A") who was successor of ("B") on strength of mutation attested on 24/07/1998 through decree of the Court; that non-incorporation of their names in the periodical record was wrong/collusive/mala fide---Petitioner's plaint was rejected under O.VII, R.11 of the Civil Procedure Code---Appeal was also dismissed---Question whether non-incorporation of mutation in revenue paper despite attestation of the same mutation, be judged by the Trial Court (at early stage) without recording of evidence---Validity---Not only the parties were heard at length on four different dates but ADK was also summoned along with record---"A" had instituted suit in 1985 wherein issue was framed as to judge whether the suit was hit by the doctrine of res subjudice---"B" had died issueless in the year 1962, therefore, petitioners were rightly not named/incorporated in the Jamabandi for the year 2001/02---Reference of impugned mutation had already been incorporated with determination of correct shares---Suit of "A" was dismissed by the civil court on 16/05/1990 and the judgment and decree was maintained by High Court through the judgment in Civil Revision decided on 13/03/1998---Petitioners by their own conduct were stopped under the principle of estoppel by acquiescence because judgment in civil suit filed by "A" was an estoppel by record, to the effect that "where a judgment had been given by a competent court, and the effect of it was that the matters decided could not be reopened by a person who was a party to the judgment or his representative---Findings of High Court in said revision petition were not challenged before apex Court as such attained finality---Revision petition was dismissed accordingly.

Muhammad Aslam and 2 others v. Muhammad Azeem Shah 1996 SCMR 1862 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.

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

----Art.114---"Estoppel by acquiescence"---Definition---Acquiescence is a species of estoppel---Estoppel arises where the party aware of his rights sees other parties acting upon the mistaken notion of his rights---Injury accruing from one's acquiesces in another's action to his prejudice creates estoppel.

Osborn's dictionary ref.

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

----O.XLI, R.22---Appeal, non-filing of---Judgment/order, finality of---Principle---Judgment/order passed by the Court of competent jurisdiction, if not assailed in the higher forum shall attain finality.

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

----S.11---Res judicata, principle of---Institution of suit on the basis of same cause of action which has earlier been alleged and decided by the Court to its logical conclusion and trial of suit filed later on would be nothing but a futile exercise.

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

----O.VII, R. 11---Plaint, rejection of---Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under R.1l of O.VII, Civil Procedure Code---Incompetent, illegal, vexatious and frivolous suits must be buried at their inception, as the birth of those suits would not only prolong the agony of the parties but the wastage of precious time of the Courts as well---Fruitless and useless litigation must not be encouraged.

Raia Ali Shan v. Messrs. Essem Hotel Limited and others 2007 SCMR 741 rel.

Muhammad Tariq Qureshi and Waris Faheem for Petitioners.

Rustam Khan Kundi and Irfanullah Marwat for Respondents.

2022 C L C 928

[Peshawar]

Before Qaiser Rashid Khan, CJ and Shakeel Ahmad, J

SHAHZADA SHAHPUR JAN----Petitioner

Versus

PROVINCE OF KHYBER PAKHTUNKHWA through Chief Secretary Government of Khyber Pakhtunkhwa Peshawar and 2 others----Respondents

Writ Petition No.5819-P of 2018, decided on 18th November, 2021.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss.42, 66, 73, 117 & 123---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Public Limited Company---Petitioners assailed functions of Water and Sanitation Services Peshawar (WSSP) a public limited company, before High Court in exercise of jurisdiction under Art.199 of the Constitution---Objection was raised by authorities to maintainability of petition---Validity---Respondent company was set up for performing functions, which were primarily those of the State or local government or Provincial Government---Petitioners also challenged action of WSSP to levy tax / fee and notifications issued by official respondents, purportedly authorizing WSSP to do that was amenable to judicial review---Objection to maintainability of Constitutional petition was not sustainable---Objection was overruled in circumstances.

(b) Interpretation of statutes---

----Fiscal statutes---Fee---Meaning---Fee is a consideration for services provided by government or its agencies or company or an organization or any person, as the case may be to the person from whom it is collected.

Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar AIR 1954 SC 282; Government of Andhra Pradesh v. Hindustan Machine Tools AIR 1975 SC 2037 and Workers Welfare Funds Ministry of Human Resources Development, Islamabad through Secretary and others v. East Pakistan Chrome Tannery through GM (Finance) and others PLD 1917 SC 28 rel.

(c) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 2(l), 42, 66, 73, 113, 123, 115-A [as inserted by Khyber Pakhtunkhwa Local Government (Amendment) Act (XXV of 2019)]& Third Schedule---Notification No. WSSP/Revenue-Tariff/2017 dated 10-2-2017---Constitution of Pakistan, Art. 199--- Constitutional petition---Imposition of levy or increase in tax--- Outsourcing of power---Petitioners were getting supply of water from respondent company namely Water and Sanitation Services (WSSP), incorporated under the provisions of Khyber Pakhtunkhwa Local Government Act, 2013---Petitioners assailed imposition of levy and increase in taxes by respondent company---Plea raised by respondent company was that Provincial Government had outsourced its power---Validity---Provincial Government, under the provisions of Ss.42, 66, 113 and 123 of Khyber Pakhtunkhwa Local Government Act, 2013, did not cover or deal the situation where core power of State functionary in the form of Local Government to impose levy and increase tax or fee as envisaged in S.42 of Khyber Pakhtunkhwa Local Government Act, 2013, could be outsourced or delegated to someone, who was not a local government as defined in S.2(l) of Khyber Pakhtunkhwa Local Government Act, 2013---Entrustment of powers to impose levy and enhance water tariff upon WSSP through notification in question, was in conflict with express provisions of S.42 of Khyber Pakhtunkhwa Local Government Act, 2013---Notification relied upon by authorities lacked statutory backing, imposition of tax and fee for specific services as mentioned in Third Schedule of Khyber Pakhtunkhwa Local Government Act, 2013---Enhancement of duties was a statutory power of local government / Tehsil Local Government and it could not be delegated or outsourced to any other entity or company--- Such function could only be done by State functionary and that too under the command of law---High Court declared notification No. WSSP/Revenue-Tariff/2017 dated 10-2-2017, illegal and ultra vires of S.42 of Khyber Pakhtunkhwa Local Government Act, 2013 and respondent company was not entitled to claim water charges from petitioners---Constitutional petition was dismissed in circumstances.

Nizar Ali v. Karachi Water and Sewerage Board 2004 CLC 578 and Seven-up Bottling Co. v. LDA 2003 CLC 513 rel.

Petitioner in Person.

Sardar Ali Raza, A.A.G. and Barrister Muhammad Ibrahim Khan and Qazi Jawad Ehsanullah (amici curiae) and Bilal Ahmad Durrani, Mashal Azam and Barrister Asad-ul-Mulk along with CFO, Haider Ali, Manager and Nusrat Ali Shah, Financing Billing WSSP for Respondents.

2022 C L C 959

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

BAHADAR HILAL----Petitioner

Versus

SHAUKAT HAYAT and others----Respondents

Writ Petition No.1113-M with Interim Relief (N) and C.M. No.1807 of 2020, decided on 18th January, 2021.

Civil Procedure Code (V of 1908)---

----S.47 & O. XLV, R. 15---Constitution of Pakistan, Arts.5, 187 & 190---Procedure to enforce orders of Supreme Court---Issue and execution of processes of Supreme Court---Loyalty to State and obedience to Constitution and law---Scope---In the present case, the sole objection of the judgment debtor was that the decree was passed by Supreme Court and the execution of such decree could not have been made by the Civil Court without the same being sent by the High Court---Validity---High Court would not allow the judgment debtor to evade execution of the decree in either of the execution petitions just for the reason that one of the decree-holders had not filed any application for sending the same to the Civil Court---Solemn duty of the High Court as well as the authorities functioning in State was to ensure compliance of judgment of the High Court according to Article 190 of the Constitution---High Court also had jurisdiction to execute or order execution of any judgment, decree, order of Supreme Court under Art.187 of the Constitution---Judgment debtor was duty bound to submit to the dictates of law and not to hinder the process of execution of judgment and decree of Supreme Court---Obedience to law and the Constitution was inviolable obligation of every citizen including the petitioner as per Art.5 of the Constitution---Petitions were disposed of with the direction that judgment and decrees would be deemed to have been sent to the executing court for execution under R.15 of O.XLV of C.P.C.

Shah Salam Khan for Petitioner.

Mujahid Farooq for Respondent No.1.

2022 C L C 1118

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through District Officer Revenue and others----Appellant

Versus

RESIDENT OF VILLAGE MATKANI through Representatives and another----Respondents

R.F.A. No.95-M, 96-M, 101-M with C.M. No.1569, 106-M with C.Ms. Nos.1583 and 1584, 107-M with C.M.No.1585, 108-M with C.M. No.1586, 109-M with C.M. No.1587 of 2017 and 18-M of 2018, decided on 5th October, 2020.

Land Acquisition Act (I of 1894)---

----S.18---Reference to Court---Non-availability of revenue record---Report of Local Commission---Scope---Acquiring Agency assailed enhancement of compensation by the Referee Court---Settlement of land was not carried on in the area acquired through the award, therefore, revenue record was not available---Job of the Acquiring Agency was further complicated by the fact that they could not find even a single registered deed regarding sale of any property in the revenue estates---Acquiring agency had based its determination of rates on the Rate Reasonability Certificate---Sale deeds produced in different cases were not relied upon by the Referee Court as the sale deeds were executed much after the date of award---Referee Court had appointed a local commission for local investigations, who had accordingly submitted his reports---Approach of the Referee Court was justified as there was no other reliable evidence before him---Local Commission, summoned by the Court, was examined and cross-examined but nothing was extracted from him, which could have vitiated the authenticity of his reports or propriety of the proceedings conducted during the course of local investigations---Determination of rate of compensation made by the Acquiring Agency was not based on proper appraisal of market rate---Naib Tehsildar had himself not based his report on any data or any evidence to that effect but had rather conducted a subjective assessment---High Court had earlier dismissed appeals of the Acquiring Agency arising out of one and same award whereby enhancement of rates by the Referee Judge made in similar manner were under challenge as such, present appeals deserved similar treatment---Appeals were dismissed.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; WAPDA through Chairman and 4 others v. Jamil Ahmad Khan and others 2017 YLR 2272; Ehsan-ul-Haq and others v. Executive Engineer Highway and others 2006 CLC 210 and Province of Punjab through Member Board of Revenue, Lahore and 3 others v. Haji Ahmad Ali 2006 YLR 729 ref.

Province of through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 and Mehinwal Khan v. Khuda Bakhsh and others 1996 MLD 252 rel.

Sohail Sultan, Assistant Advocate General for Appellants.

Bashirullah and Sardar Zulfiqar for North Frontier Highways Authority Swat for Respondents.

2022 C L C 1193

[Peshawar (D.I. Khan Bench)]

Before S M Attique Shah and Muhammad Faheem Wali, JJ

MUHAMMAD RIZWAN----Petitioner

Versus

Syed TAHIR ABBAS SHAH and others----Respondents

Writ Petition No.418-D of 2021 with C.M. No.721-D of 2021, decided on 29th March, 2022.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Specific Relief Act (I of 1877), S.12---Qanun-e-Shahadat (10 of 1984), Art.115---Eviction of tenant---Estoppel of tenant in possession---Deposit of rent in Court---Suit for specific performance, pendency of---Effect---Petitioner (tenant) assailed order passed by Rent Controller whereby respondent's (landlord's) application for direction to the tenants to deposit monthly rent of the shop in the Court, was accepted---Contention of petitioner was that his father had entered into an agreement to sell with the respondent and suit for specific performance was also pending adjudication in that respect---Validity---Title of the demised premises was still in the name of respondent and it was not transferred in favour of the petitioner, therefore, it could not be claimed that the respondent had sold the demised premises---Even the petitioner could not claim with conviction that he would succeed in his suit as specific performance could not be claimed as a matter of right and it was the discretion of the Court to grant or refuse the same which discretion was to be exercised by the Court keeping in view the facts and circumstances of each case---Petitioner could not point out any illegality or jurisdictional error in the impugned order calling for interference by the Court, as such, the same was upheld---Constitutional petition was dismissed.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Kassim and another v. S. Rahim Shah 1990 SCMR 647 and Muhammad Iqbal Haider and another v. Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396 rel.

Muhammad Ghazanfar Ali for Petitioner.

Nemo for Respondents.

2022 C L C 1245

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

AMAN ULLAH----Petitioner

Versus

TUFAIL AHMAD and 3 others----Respondents

Civil Revision No.61-B of 2015, decided on 8th December, 2021.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss.13 & 6---Demand of pre-emption---Persons in whom the right of pre-emption vests---Superior right---Scope---Petitioner filed a suit for recovery of possession through pre-emption---Trial Court as well as Appellate Court dismissed the suit---Validity---Not even a single line/side of any survey number of the disputed property was connected with the property owned by petitioner---Petitioner had no superior right on the ground of contiguity or compact block with the disputed property---Pre-emptor had proved his "talbs" in accordance with law, however, he could not prove his superior right being contigious owner of the property in dispute---Order of dismissal of the suit was maintained.

PLD 2004 Lah. 12; Allah Ditta v. Ali Muhammad 1999 CLC 831; Subhan-ud-Din and others v. Pir Ghulam PLD 2015 SC 69; 2006 MLD 1001; Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597 and Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119 ref.

Allah Ditta v. Ali Muhammad 1999 CLC 831; Ahmed Khan v. Sattar Din PLD 1981 SC 148; S.M. Khaliq Shah and another v. Haji Feroz Khan and others 1983 SCMR 223; Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and others 1998 SCMR 2306 and Suba and others v. Abdul Aziz and others 2008 SCMR 332 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Demand of pre-emption---Talb-i-Muwathibat---Scope---Talb-i-Muwathibat is a jumping demand having its root in the right of pre-emptor but without any delay upon getting the knowledge of sale in question---Such is sine qua non for pre-emptor to mention in the plaint the date, time and place of making Talb-i-Muwathibat and also to produce the informer before the Court but neither it is requirement of law to produce a person who has conveyed the information to the informer of pre-emptor.

Subhan-ud-Din and others v. Pir Ghulam PLD 2015 SC 69 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Demand of pre-emption---Tab-i-Ishhad---Production of postman---Scope---Only duty of the pre-emptor is to dispatch the notice under cover of registered AD (acknowledgement due) with a proper address of the vendee and to prove it that notice was properly dispatched from the post office, if the facility is available, he is not required to serve it upon the vendee either himself or through postman, rather it is the duty of the postman---If it is not served, postman while appearing before the court will explain it and in case if the addressee denied the receipt of notice then his statement can serve the purpose of sending of a notice through registered envelope under acknowledgement due.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Demand of pre-emption---Suit against minor without next friend---Scope---Where sale document did not reflect the minority or majority of vendee, High Court observed that pre-emptor was not legally required to sue the vendee through next friend.

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

----S.115---Revision---Scope---Where an illegality is pointed out then in such circumstances, the High Court can exercise jurisdiction provided under S. 115, C.P.C., and has the power to undo the legality.

Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Mushtari Khan v. Jehangir Khan 2006 SCMR 1238; Muhammad Nawaz alias Nawaza v. Member Judicial BoR and others 2014 SCMR 914 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 ref.

Haji Habib-ur-Rehman for Petitioner.

Irfanullah Marwat for Respondents.

2022 C L C 1298

[Peshawar]

Before Muhammad Naeem Anwar, J

Messrs PFIZER PAKISTAN LIMITED and 2 others----Appellants

Versus

PHARMA PLUS INTERNATIONAL through Managing Partner----Respondent

F.A.O. No.67-P of 2020, decided on 31st May, 2021.

Civil Procedure Code (V of 1908)---

----O.XXXIX, R.2-B---Interim injunction, expiry of---Scope---Rule 2-B of O.XXXIX, C.P.Cs. provides that the statutory life of the order passed after hearing both the parties is six months and after expiry of six months the order automatically expires or remains no more in field.

Raja Talat Mehmood v. Ismat Ehtishamul Haq 1999 SCMR 2215 and Muhammad Zahir v. Ahmad Yar and 3 others 2005 YLR 210 rel.

Muhammad Saad Wazir on behalf of Syed Haziq Ali Shah for Appellants.

2022 C L C 1392

[Peshawar]

Before Muhammad Ijaz Khan, J

ASSISTANT DIRECTOR MINES AND MINERAL DEPARTMENT, SWABI----Petitioner

Versus

FAZAL SADIQ and others----Respondents

Writ Petition No.4304-P of 2021, heard on 21st February, 2022.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan, Art. 199---Rejection of plaint---Principle---Concurrent findings of facts by two Courts below---Interference under Constitutional jurisdiction---Scope---Petitioner/defendant was aggrieved of refusal by Trial Court and Lower Appellate Court to reject suit filed by respondent / plaintiff---Validity---At the time of deciding application filed under O.VII, R.11 C.P.C. for rejection of plaint, Court has to just consider "contents" of plaint---Every fact mentioned in plaint has to be considered as true and correct--- Even written statement or a plea taken in written statement cannot be taken into consideration---Fact / apprehension that respondent / plaintiff might not be ultimately successful in establishing averments made in plaint, could not be a ground for rejecting plaint under O.VII, R.11, C.P.C.---Two Courts below had concurrently discarded plea of petitioner / defendant, who under Constitutional jurisdiction was required to show that orders / judgments of Courts below suffered from jurisdictional defects or two Courts below had exercised their jurisdiction in an illegal and arbitrary manner or some material irregularities were committed by Courts below which could justify interference by High Court in a Petition filed under Art.199 of the Constitution---High Court declined to interfere in the orders passed by two Courts below---Constitutional petition was dismissed, in circumstances.

Jewan and 07 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 02 others 1994 SCMR 826 and Shehzada v. Khairullah and others 2012 CLD 758 rel.

Ms. Abida Safdar, A.A.G. for Petitioner.

Nemo. for Respondent Motion case.

2022 C L C 1507

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

WAJID ALI SHAH----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and 13 others----Respondents

Write Petition No.73-B of 2022, decided on 10th February, 2022.

(a) Administration of justice---

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

Qamar Javed v. Gul Jahan 2005 MLD 1329; Syed Bashir Hussain v. Abdul Waheed 2013 MLD 1675; SNGPL v. OGRA PLD 2013 Lah. 289; Cantonment Board Clifton v. Sultan Ahmad Siddique 2016 CLC 919; Muhammad Akram Javid v. Bashir Ahmad Soauk 2016 CLC 1751; Hassan Bakhsh v. Sultan 2016 MLD 1157 and Ajmir Shah, Ex-Sepoy v. The Inspector General, Frontier Corps Khyber Pakhtunkhwa and another 2020 SCMR 2129 rel.

(b) Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021--

----Rr.2(P), 9, 62 & 66---Constitution of Pakistan, Art. 199---Constitutional petition---Qualification of candidate---Determination---Petitioner contested election for the seat of General Councilor and secured second highest votes---Election Commission rejected nomination papers of petitioner on ground of lack of qualification---Validity---While determining qualification, Election Commission did not consider powers as provided in Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021---Order of Election Commission was mainly based upon decision rendered by High Court in a Constitutional petition which was dismissed much earlier to the polling day---Neither nomination papers of petitioner were rejected nor any appeal under law was filed---Election Commission could not exercise all powers of Election Tribunal as in exercising such powers the Commission was to see illegalities or violation of provisions of Election Act, 2017, which had affected result of polls either at one or more polling stations or in the whole constituency and in such case the Commission was to order for repoll and order in question did not reflect any such observation---Election Commission was not competent to declare respondent as returned candidate---Election Commission was not empowered to disqualify a candidate after completion of election process---Election Commission could not exercise all powers as provided in Rr.62 & 55 of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021---Powers conferred upon Election Commission under R.9 of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021, were restricted within the ambit of R.9(1) of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021---High Court set aside the order of the Election Commission---Constitutional petition was allowed accordingly.

Muhammad Salman v. Naveed Anjum and others 2021 SCMR 1675 ref.

Sawal Nazir Khan for Petitioner.

Saif-ur-Rehman Khattak, Additional Advocate General, Mohsin Kamran Siddique and Khawaja Samran Jehangir, Law Officer for Respondents.

2022 C L C 1545

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

AYAZ MUHAMMAD and others----Petitioners

Versus

Mst. NARGIS and others----Respondents

Civil Revision No.79-M of 2022 with C.M. No.281 of 2022, decided on 7th March, 2022.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.17, 79, 117 & 118---Inheritance---Gift mutation against Legal/Shara'i shares---Suit for declaration filed by the respondents being legal heirs (widow and children) of the deceased claiming that suit properties were fraudulently mutated in favour of petitioners/defendants; that the said properties were the legacies of their deceased husband/father; and that the respondents were entitled to their respective shares in the properties---Petitioners contested the suit alleging that the deceased had gifted the suit properties; that the petitioners were also legal heirs (other widow and sons) of the deceased; and that the suit properties were not the legacies of the deceased anymore---Respondents' suit was concurrently decreed---Validity---Relationship between the parties being legal heirs of the deceased was not denied and as such the pedigree-table given in the plaint was admitted by both the parties and petitioners were also widow/children of the deceased---Petitioners being beneficiaries of the suit properties were under heavy burden to prove the incident of gift and the execution of gift mutation as per the required standard of proof but they could not prove the same---Only one marginal witness of the impugned gift deed was produced and such deed was not executed in the mode/manner as prescribed in S.42 of Khyber Pakhtunkwa Land Revenue Act, 1967 and Arts.17 & 79 of the Qanun-e-Shahadat, 1984---Petitioner, in their statements and their witnesses did not utter a single word regarding the incident of the alleged gift a nd thus the same could not be treated as valid one---Revision petition was dismissed accordingly.

Muhammad Srawar v. Mumtaz Bibiand others 2020 SCMR 276; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Islam-ud-din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others 2016 SCMR 986; Peer Baksh through L.Rs and others v. Mst. Khanzadi and others 2016 SCMR 1417 rel.

(b) Gift---

----Registered gift-deed---Proof---Registered gift deed, the incident of gift in terms of date, day and time has to be established by the donee through independent, cogent, confidence inspiring, coherent and trustworthy evidence.

2018 SCMR 139 rel.

(c) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.42---Mutation, evidentiary value of---Scope---Mutation by itself is neither a document of title nor the same creates any right of ownership in favour of the transferee/beneficiary.

Mst. Kalsoom Begum v. Rizwan Shah and others 2020 SCMR 2029 rel.

(d) Islamic Law---

----Inheritance---Mutation against Shariah---Scope---If any mutation is entered in violation of Shariah law, then it will be of no legal effect and the beneficiary of such mutation will not be entitled for any benefit from it.

Shabla and others v. Ms. Jahan Afroz Khilat and others reported as 2020 SCMR 352 rel.

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

----S.115---Concurrent decision---Revisionary jurisdiction---Scope---Court in revisional jurisdiction can only interfere in the concurrent findings recorded by the two Courts below if the same suffer from any misreading or non-reading of evidence or misapplication of law.

Hamza Nawab for Petitioners.

Rahmat Ali Khan for Respondents Nos.1 to 5.

2022 C L C 1605

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MOAMBAR and others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others----Respondents

Writ Petition No.551-M with C.M. No.1759 of 2019, Writ Petition No.287-M with C.M No.256 of 2019, Writ Petition No.358-M of 2016, Writ Petition No.699-M of 2016 with Inter Relief, Writ Petition No.353-M of 2017 with Interim Relief, Writ Petitions Nos.612-M, 613-M of 2019, Writ Petition No.880-M of 2019, with Interim Relief and C.M. No.1245 of 2019, Writ Petitions Nos.974-M, 1245-M of 2019, Writ Petition No.627-M of 2020 with C.M. No.713 of 2020, Writ Petition No.57-M with Interim Relief, Writ Petition No.166-M of 2021 with Interim Relief, Civil Revision No.43-M of 2015 with C.M No.256 of 2015, C.M. No.321 of 2015 and C.R. No.103-M of 2016, decided on 24th March, 2021.

(a) Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----Ss.5(1),17, 20, 24, 29, 32 & 92---Specific Relief Act (I of 1877), S.42---Declaration of title---Protected forest---Powers of Board---Scope---Petitioners / plaintiffs claimed to be owners of land which was not part of protected forest---Trial Court rejected / returned plaints on the ground of bar of jurisdiction of Civil Court---Validity---When once forest was declared protected and notification to such effect was issued and published in official gazette, then power to declare any protected forest as no longer protected rested with Government only--- Neither the Board nor any other authority could declare protected forest no longer protected--- Board had its relevance only when Government intended to declare any land or wasteland as a reserved or protected forest and had issued any notification to such effect under S.5(1) of Khyber Pakhtunkhwa Forest Ordinance, 2002 in case of reserved forest and under S.29 read with S.5(1) of Khyber Pakhtunkhwa Forest Ordinance, 2002, in case of protected forest---With determination of all disputes, issuance and publication of final notification under S.20 read with S.24 or S.29 of Khyber Pakhtunkhwa Forest Ordinance, 2002, forum of Board would become functus officio and had no more remainedavailable---Same was the case with appellate forum provided under S.17 of Khyber Pakhtunkhwa Forest Ordinance, 2002, therefore, no direction could be issued to Government for constitution of Board--- Petitioners had recourse to appropriate forum available under law--- Orders of rejection of plaint or its return made in pursuance to a judgment passed by Single Judge of High Court in an earlier case was per incuriam and did not constitute bar in the way of institution of fresh suits---Constitutional petition was disposed of accordingly.

Provincial Government of N.W.F.P. through Chief Secretary and 5 others v. Mohammad Raziq and 13 others 2017 CLC 908 dissent.

Understanding Statutes and The Commercial Bank of Australia Ltd. [(1893) 19 VLR 3 at P. 375 ref.

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

----S.9---Jurisdiction of Civil Court, ouster of---Principle---Established jurisdiction vested in Civil Court cannot be deemed to have been taken away merely by a far-fetched implication contained in some special Act---Jurisdiction of Civil Court can only be taken away by express words and necessary intendments of Legislature.

Mexwell on the Interpretation of Statutes Twelfth Edition; Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others reported as PLD 1997 Supreme Court 3 and PLD 1963 SC 382, PLD 1965 SC 671 and PLD 1990 SC 1051 rel.

(c) Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----S.92---Civil Court, bar of jurisdiction---Scope---When a person brings plaint before Civil Court claiming therein that he had been owner and in possession of some property, which had not been part of any protected or reserved forest but is wrongly claimed to be part of such protected or reserved forest, then such question would be purely a question of civil nature involving title of a person in some immovable property---Jurisdiction of Civil Court has nowhere been excluded regarding determination of such question, by any provision of Khyber Pakhtunkhwa Forest Ordinance, 2002---Such provisions which provide for exclusion of jurisdiction of Civil Court is to be narrowly interpreted---Merely on the basis of a likelihood that an investigation or prosecution may simultaneously be lodged under the provisions of Khyber Pakhtunkhwa Forest Ordinance, 2002, would not be sufficient to totally oust jurisdiction of Civil Court even in matter of deciding question of title.

Mian Kausar Hussain, Muhammad Javaid Khan, Hamayoon Khan Toorwali, Sanaullah, Gul Muhammad Khan Kattana, Mukaram Shah Khan, Israr Ahmad, Ahmad Hussain, Muhammad Qayum Khan and Saif-ul-Malook Saif for Petitioners.

Razauddin Khan, A.A.G. for Official Respondents.

Inayatullah Khan for Respondents/Forest Department.

2022 C L C 1605

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MOAMBAR and others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others----Respondents

Writ Petition No.551-M with C.M. No.1759 of 2019, Writ Petition No.287-M with C.M No.256 of 2019, Writ Petition No.358-M of 2016, Writ Petition No.699-M of 2016 with Inter Relief, Writ Petition No.353-M of 2017 with Interim Relief, Writ Petitions Nos.612-M, 613-M of 2019, Writ Petition No.880-M of 2019, with Interim Relief and C.M. No.1245 of 2019, Writ Petitions Nos.974-M, 1245-M of 2019, Writ Petition No.627-M of 2020 with C.M. No.713 of 2020, Writ Petition No.57-M with Interim Relief, Writ Petition No.166-M of 2021 with Interim Relief, Civil Revision No.43-M of 2015 with C.M No.256 of 2015, C.M. No.321 of 2015 and C.R. No.103-M of 2016, decided on 24th March, 2021.

(a) Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----Ss.5(1),17, 20, 24, 29, 32 & 92---Specific Relief Act (I of 1877), S.42---Declaration of title---Protected forest---Powers of Board---Scope---Petitioners / plaintiffs claimed to be owners of land which was not part of protected forest---Trial Court rejected / returned plaints on the ground of bar of jurisdiction of Civil Court---Validity---When once forest was declared protected and notification to such effect was issued and published in official gazette, then power to declare any protected forest as no longer protected rested with Government only--- Neither the Board nor any other authority could declare protected forest no longer protected--- Board had its relevance only when Government intended to declare any land or wasteland as a reserved or protected forest and had issued any notification to such effect under S.5(1) of Khyber Pakhtunkhwa Forest Ordinance, 2002 in case of reserved forest and under S.29 read with S.5(1) of Khyber Pakhtunkhwa Forest Ordinance, 2002, in case of protected forest---With determination of all disputes, issuance and publication of final notification under S.20 read with S.24 or S.29 of Khyber Pakhtunkhwa Forest Ordinance, 2002, forum of Board would become functus officio and had no more remainedavailable---Same was the case with appellate forum provided under S.17 of Khyber Pakhtunkhwa Forest Ordinance, 2002, therefore, no direction could be issued to Government for constitution of Board--- Petitioners had recourse to appropriate forum available under law--- Orders of rejection of plaint or its return made in pursuance to a judgment passed by Single Judge of High Court in an earlier case was per incuriam and did not constitute bar in the way of institution of fresh suits---Constitutional petition was disposed of accordingly.

Provincial Government of N.W.F.P. through Chief Secretary and 5 others v. Mohammad Raziq and 13 others 2017 CLC 908 dissent.

Understanding Statutes and The Commercial Bank of Australia Ltd. [(1893) 19 VLR 3 at P. 375 ref.

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

----S.9---Jurisdiction of Civil Court, ouster of---Principle---Established jurisdiction vested in Civil Court cannot be deemed to have been taken away merely by a far-fetched implication contained in some special Act---Jurisdiction of Civil Court can only be taken away by express words and necessary intendments of Legislature.

Mexwell on the Interpretation of Statutes Twelfth Edition; Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others reported as PLD 1997 Supreme Court 3 and PLD 1963 SC 382, PLD 1965 SC 671 and PLD 1990 SC 1051 rel.

(c) Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----S.92---Civil Court, bar of jurisdiction---Scope---When a person brings plaint before Civil Court claiming therein that he had been owner and in possession of some property, which had not been part of any protected or reserved forest but is wrongly claimed to be part of such protected or reserved forest, then such question would be purely a question of civil nature involving title of a person in some immovable property---Jurisdiction of Civil Court has nowhere been excluded regarding determination of such question, by any provision of Khyber Pakhtunkhwa Forest Ordinance, 2002---Such provisions which provide for exclusion of jurisdiction of Civil Court is to be narrowly interpreted---Merely on the basis of a likelihood that an investigation or prosecution may simultaneously be lodged under the provisions of Khyber Pakhtunkhwa Forest Ordinance, 2002, would not be sufficient to totally oust jurisdiction of Civil Court even in matter of deciding question of title.

Mian Kausar Hussain, Muhammad Javaid Khan, Hamayoon Khan Toorwali, Sanaullah, Gul Muhammad Khan Kattana, Mukaram Shah Khan, Israr Ahmad, Ahmad Hussain, Muhammad Qayum Khan and Saif-ul-Malook Saif for Petitioners.

Razauddin Khan, A.A.G. for Official Respondents.

Inayatullah Khan for Respondents/Forest Department.

2022 C L C 1740

[Peshawar]

Before Syed Arshad Ali, J

MUHAMMAD AYUB and 14 others----Petitioners

Versus

SALIM and 6 others----Respondents

Civil Revision No.732 of 2010, decided on 21st December, 2021.

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

----Ss.42 & 45---Qanun-e-Shahadat (10 of 1984), Art.79---Civil Procedure Code (V of 1908), S. 115 & O.VII, R.7---Limitation Act (IX of 1908), Art. 113---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Suit for declaration and injunction---Revenue record---Proof of title---Scope---Relief, molding of---Concurrent findings of facts by two Courts below---Petitioner / plaintiff claimed to be owner in possession of suit property on the basis of acknowledgement agreement executed by defendant---Suit property was incorporated in the name of defendant in revenue record---Suit and appeal were concurrently dismissed by Trial Court and Lower Appellate Court respectively---Validity---Entry in revenue record / registration of mutation were made for fiscal purposes and did not confer any title on beneficiary, who had to independently establish transfer of property in her favour through any arrangement preceding attestation of mutation--- Burden to establish title which plaintiff acquired on the basis of mutation, was on him which he was to establish in manner as provided under Art.79 of Qanun-e-Shahadat, 1984---Court was empowered under O.VII, R.7, C.P.C. to grant such relief on conclusion of trial as it could think just to the same extent as if it had been asked for---Court of equities while administering civil justice could never remain mistress of rules and procedures---Both the parties did not give any date for registration of deed---Limitation was to run from date when it was noticed by plaintiff that vendor / defendant refused to perform her part of obligation i.e. attestation of mutation or execution of registered deed---Suit of plaintiff against defendant if considered as suit for specific performance, was not barred by any period of limitation---High Court converted suit for specific performance of agreement and directed defendant to execute registered sale deed in favour of plaintiff---Revision was allowed, in circumstances.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 and Mst. Zeba and 12 others v. Member-III Board of Revenue Balochistan and 2 others 1986 CLC 233 ref.

Muhammad Hussain and others v. Wahid Bakhsh (deceased) through Legal Heirs 2004 SCMR 1137; Mst. Suban v. Allah Ditta and others 2007 SCMR 635; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614; Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others PLD 2007 SC 287; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Akhtar Sultana's case PLD 2021 SC 715 rel.

(b) Registration Act (XVI of 1908)---

----Ss.17 & 49---Transfer of Property Act (IV of 1882), S.54---Sale deed, non-registration of---Effect---Sale-deed in terms of S.17 of Registration Act, 1908 is required to be attested by two witnesses but is also required its mandatory registration in terms of S.49 of Registration Act, 1908 and S. 54 of transfer of Property Act, 1882---Mere writing an agreement in absence of registration, does not create any right title or interest in immovable property in favor of beneficiary of such deed despite the fact that entire sale consideration was paid by vendee on the basis of such deed.

Muhammad Ipbal and others v. Mst. Baseerat and others 2017 SCMR 367 and Zafar Ahmad v. Mst. Hajran Bibi PLD 1986 Lah. 399 rel.

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

----S.53-A---Part performance of agreement---Transfer of possession---Scope---In terms of S.53-A of Transfer of Property Act, 1882 transfer of land through unregistered deed clothes transferee to protect his possession subject to full fulfillment of two conditions firstly existence of an agreement to transfer a property and secondly the transferee was put in possession of such property in part performance of agreement---Provision of S.53-A of Transfer of Property Act, 1882 can be used as shield and not a sword.

Muhammad Yousaf v. Munawar Hussain and 05 others 2000 SCMR 204 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---While exercising revisional jurisdiction, High Court has ample power to correct judgments of subordinate courts, wherein unreasonable view was in disregard of established legal position or evidence has been incorrectly appreciated.

Abdul Sattar v. Ansar Bibi PLD 2007 SC 609; Mubarak Ali through legal heirs v. Amro Khan through legal heirs 2007 SCMR 1714 and Muhammad Bakhsh v. Ilahi Bakhsh 2003 SCMR 286 rel.

Abdul Sattar Khan for Petitioners.

Muhammad Shoaib Khan for Respondents.

2022 C L C 1821

[Peshawar]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

UMAR KHITAB----Petitioner

Versus

Mst. SANA SHAH and another----Respondents

Writ Petition No.932-M of 2021 with Interim Relief (N), decided on 9th March, 2022.

Dissolution of Muslim Marriages Act (VIII of 1939)---

----Ss.2(v) & 2(ix)(c)---Constitution of Pakistan, Preamble & Arts. 2A, 4 & 25---Impotency, medical examination---Procedure and proof---Suit for dissolution of marriage on ground of impotency, non-payment of maintenance and cruelty wherein recovery of maintenance and dowry articles were also prayed for---Petitioner/husband in his written statement denied all the allegations including that of impotency and annexed his medical report from a famous laboratory as to prove potency---On stage of recording of evidence, respondent/wife submitted application for sending the petitioner for medical examination as to his impotency---Trial Court directed the petitioner to appear before Medical Board---Held, that for passing a decree on the ground of impotency of husband, the Family Court was not required to send the husband to appear before a Medical Board for its report---Family Court had to require the husband to satisfy within a period of one year from the date of its order that he had ceased to be impotent---If the husband would satisfy the Court, then decree of dissolution should not be passed on the ground of impotency---Section 2(v), (ix) and proviso (c) of clause (ix) of Dissolution of Muslim Marriages Act, 1939, was in line/conformity with Sharia, therefore no deviation could be allowed to sustain in the form of the impugned order of the Judge Family Court---Legal worth of medical report submitted by the petitioner and his plea of being a healthy/potent man was yet to be determined by the Family Court after recording of pro/contra evidence---Controversy had already been pleaded by parties, issues had been framed; parties were yet to produce their respective evidence---Procedure adopted by Family Court was alien to law---Allowing the impugned direction of appearance before the Medical Board to sustain, would cast a doubt over the legitimacy of the new born baby and petitioner would face an unending social humiliation and be deprived of social justice as guaranteed by the Preamble and Art. 2-A of the Constitution---Petitioner had not been treated by Family Court in accordance with law; had been compelled to do which the law did not require him to do; and had been deprived of the protection of law of the land---Constitutional petition was allowed accordingly.

Majmua Qawaneen-e-Islam by Tanzil-ur-Rehman, J., S. 122(i) rel.

Malak Ahmad Jan for Petitioner.

Tariq Aziz for Respondent No.1.

Barrister Dr. Adnan Khan and Abdul Nasir as amici curiae.

2022 C L C 1879

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

KHANIMULLAH and others----Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Home Secretary and others----Respondents

Civil Revision No.985-P of 2007, decided on 4th April, 2022.

(a) Devolution and Distribution of Property (Dir and Swat) Regulation, 1972 (Martial Law Regulation No.122 dated 12-04-1972)---

----Para. 2(a)---Settlement of Immovable Property Disputes (Dir and Swat) Regulations, 1972 (Martial Law Regulations No. 123 dated 12-04-1972), Paras. 3(1)(a)(b)(c) & 5-A---Civil Procedure Code (V of 1908), O.VII, R.10---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Jurisdiction--- Return of plaint--- Petitioners / plaintiffs claimed suit properties to be their ancestral properties or purchased by them--- Properties in dispute were recorded in the name of Land Commission, who was custodian of properties of ex-rulers of Swat or their legal heirs--- Trial Court and Lower Appellate Court concurrently returned plaints to petitioners / plaintiffs for want of jurisdiction--- Validity--- Petitioners / plaintiffs claimed their ownership of properties, which was basically owned by ex-rulers, so such disputes were disputes falling within the scope of para 3 of Settlement of Immovable Property Disputes (Dir and Swat) Regulation, 1972 (Martial Law Regulation No.123 dated 12-04-1972)---Such disputes were to be determined by specifically authorized person by Provincial Government in such behalf under para 5-A of Settlement of Immovable Property Disputes (Dir and Swat) Regulation, 1972 (Martial Law Regulation No. 123 dated 12-04-1972)---Any court or other authority had no jurisdiction to entertain and decide such disputes under Para 3 (3) of Settlement of Immovable Property Disputes (Dir and Swat) Regulation, 1972 (Martial Law Regulation No. 123 dated 12-04-1972)---High Court declined to interfere in judgments and decrees passed by two Courts below as Civil court did not have jurisdiction to entertain such disputes---Revision was dismissed, in circumstances.

Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others v. Abdul Manan and others 2021 SCMR 1871; Umer Hakim and others v. Deputy Commissioner, Dir and others PLD 1990 Pesh. 91 and Shah Zir and another v. Shahzada Aman Rome and 21 others PLD 2012 Pesh. 176 ref.

Syed Muhammad Hussain Shah v. Abdul Qayyum and others 2011 SCMR 743 and Muhammad Ameer Qazi v. Muhammad Asif Ali and others PLD 2015 Lahore 235 rel.

(b) Jurisdiction---

----Jurisdiction cannot be conferred upon court or any other authority at whims and wishes of parties, when specifically provided by relevant law.

Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 rel.

Mian Kausar Hussain for Petitioners.

Sohail Sultan, Asstt: A.G. for Official Respondents.

Asghar Ali and Hameedullah for Private Respondents.

2022 C L C 1896

[Peshawar]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

Mst. ALIYA KHISRO----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Relief, Rehabilitation and Settlement Department at Secretariat,Peshawar and 9 others----Respondent

Writ Petition No.1013-M of 2019, decided on 24th May, 2022.

Constitution of Pakistan---

----Arts. 24 & 199---Constitutional petition---Property rights---Finality of judgment---Petitioner was aggrieved of notification issued by authorities declaring land owned by her as 'state land'---Plea raised by petitioner was that land in question was decreed in her favour which decree was not assailed by authorities---Validity---One could not blow hot and cold in the same breath i.e. approbate and reprobate and on the basis of principle of estoppel---Once decree was passed and remained unchallenged, it had attained finality, therefore, claim of petitioner was admitted in terms of degree of Civil Court and report of Patwari was in negation of claim of authorities---For setting up of claim about 'state land' authorities were required not only to assail decree of Civil Court but also of Referee Court, especially when possession of property was handed over to petitioner---Petitioner was required to have been associated with any proceedings conducted by authorities for holding it to be a state land---If authorities were in need of that particular piece of land, they could get it but in accordance with provisions of the Constitution---Authorities could not be allowed to usurp property of petitioner, to dispossess her or infringe her fundamental and statutory rights that too in violation of law of land---Authorities were duty bound to act in accordance with law and petitioner was entitled to be treated in consonance with law---High Court declared notification in question to be illegal, against the law, in violation of fundamental rights of petitioner and basic statutory provisions affecting the rights of petitioner--- Constitutional petition was allowed, in circumstances.

Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah 1996 SCMR 1862 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 ref.

Hazrat Rehman for Petitioner.

2022 C L C 1980

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

GENERAL MANAGER NATIONAL HIGHWAY AUTHORITY and others----Appellants

Versus

NORANG KHAN and others----Respondents

R.F.A. No.47-D of 2021, decided on 11th May, 2022.

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

----Ss.18 & 23---Enhancement of compensation---Scope---Acquiring agency assailed order passed by Referee Court whereby compensation of land was enhanced---Validity---Land of respondents was front face to the main road, part and parcel of village site, used for agricultural purposes, residential houses and shops were constructed and business activities were carried on in these shops situated a few kilometers away from the main city at a 15 minutes' drive---Land under consideration had great potential and could be used for construction of multistorey buildings, shops and other business like installation of gas and petrol pumps, etc---Acquiring authority had not denied the nature of prospective use of the land, however, had stuck to one year average rates, as supplied by the Collector, based on some sale mutations effected in the area---Compensation of lands acquired under the award had been enhanced on appeal of the other land owners, therefore, the High Court to eliminate the aspect of discrimination among affected land owners enhanced the compensation of the acquired land---Appeal was allowed with modification in the impugned judgment.

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

----Ss. 18 & 54---Reference to court---Scope---Non-appealing affected land owners are also entitled to the same treatment which had been offered by the Court to similarly placed appealing parties.

Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878 rel.

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

----S.23---Matters to be considered in determining compensation---Scope---Potentiality of land cannot be determined without examining its future prospects and therefore, compensation cannot be placed merely on the basis of past sales---Compensation shall be taken in its broad meaning and only market value cannot be the proper compensation for a land acquired compulsorily---Paramount consideration in determining compensation of land compulsorily acquired would be its location and nature of future use, its location to the main cities and its future prospects to become part of the main cities.

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

----S.23---Matters to be considered in determining compensation---Scope---In determining the rate of compensation, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality may be taken into account---Award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality cannot be ignored---Basic criteria for determining value of the land is the future use of a land.

Mst. Surraya Mehmood Jan 2015 SCMR 28 and Sarhad Development Authority N.W.F.P. (now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others 2020 SCMR 265 ref.

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

----S.54---Civil Procedure Code (V of 1908), S. 96---Appeal---Scope---Appeal is a continuation of the original proceedings and the Appellate Court has ample power to scrutinize the documents on the record---Appellate Court while hearing an appeal against an order/judgment or a decree of a Trial Court exercises the same jurisdiction which is vested in the Trial Court---In an appeal, the lis becomes open and the Appellate Court can do all that the Trial Court could do.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Inayat v. Darbara Singh AIR 1920 Lah. 47; North-West Frontier Province Government, Peshawar v. Abdul Ghafar Khan PLD 1993 SC 418 and Province of Punjab through Collector Bahawalpur v. Col. Abdul Majeed 1997 SCMR 1692 ref.

Nasrullah Jan for Appellants.

Salimullah Khan Ranazai and Malik Muhammad Faisal for Respondents.

2022 C L C 2013

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

MUJEEB-UR-REHMAN----Petitioner

Versus

MALAK SADIQ AHMAD and 2 others----Respondents

Writ Petition No.97-M of 2022 with C.M. 199 and 200 of 2022, decided on 14th March, 2022.

(a) Khyber Pakhtunkhwa Pre-emption Act (10 of 1987)---

----S.24---Zar-e-Soim, deposit of---Thirty days limitation---Suit for possession through enforcement of the right of pre-emption as against a sale transaction filed by petitioner---Court directed the petitioner to deposit 1/3rd of the pre-emption amount (Zar-e-Soim)---Sale consideration was not mentioned in the plaint/notice of Talb-i-Ishhad and copy of the mutation was not annexed with the plaint---Trial Court directed the petitioner to produce the copy of the mutation---On 2 out of 5 total adjournments, petitioner and his counsel remained absent---Trial Court dismissed the suit filed by the petitioner for non-deposit of 1/3rd of preemption amount till 100 days of filing the suit---Petitioner's appeal was also dismissed by the District Court---Petitioner contended that Court had not directed him to deposit a fixed amount, therefore the penal consequences could not be pressed against him---Validity---Court was left with no discretion, in any circumstances, whatsoever, to allow the pre-emptor to make deposit of the Zar-e-Soim beyond the period of 30th days---On the day of institution of suit, Trial Court directed the pre-emptor to deposit the pre-emption amount and simultaneously directed to provide copy of the mutation within 30 days of filing the suit---Petitioner's response/conduct was indolent, lethargic, oblique and regrettable who had never bothered to attend the Court in person right from the date of filing the suit and remained absent on 5 adjournments---Pre-emptor was duty bound to produce the mutation, or at least should have disclosed a probable amount of the suit property, so that the Court may be in a position to order for deposit of a fixed amount---Petitioner failed to perform the said duty which showed that he had never been vigilant in pursing of his case and to comply with the mandatory provision of law---Constitutional petition was dismissed accordingly.

Hamza Sheraz and another v. Riaz Mehmood (deceased) through L.Rs. PLD 2022 Supreme Court 3; Malik Tariq Mehmood and others v. Ghulam Ahmad and others PLD 2017 SC 674; Raja v. Tanveer Riaz and others PLD 2014 Supreme Court 466; Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489; 2000 SCMR 1305; PLD 2014 SC 428; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28; Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311 and Ali Raza v. Muhammad Shoaib and 2 others 2014 CLC 1343 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (10 of 1987)---

----S.24---Civil Procedure Code (V of 1908), O.IV, R.1---Limitation Act (IX of 1908), S. 3---Phrase "shall not extend beyond thirty days of the filing of the suit"---Explanation of the proviso---Word "beyond" meant a decree where a specified action impossible---"Filing of the suit" would definitely mean the day when the Presiding Officer after removal of all office objections directs formal registration of suit by entering it in the institution register, because the word "file" meant to deliver a legal document to the Court Clerk/custodian of record for placement in the official record---Order IV, R.1(1) of Civil Procedure Code provided that every suit had to be instituted by presenting a plaint to the Court or such officer as it would appoint in this behalf and R.2 of the same O.IV required that every plaint presented to the Court has to be entered/numbered in a book (register of civil suits)---As par Explanation to Section 3 of the Limitation Act, 1908, a suit was instituted in ordinary cases, when the plaint was presented to the proper officer.

Oxford Dictionary, 12th Edn. & Black's Law Dictionary 10th Edition ref.

(c) Khyber Pakhtunkhwa Pre-emption Act (10 of 1987)---

----S.24---Deposit of Zar-e-Soim---Scope---Purpose behind the first proviso of S.24(1) of the Pre-emption Act, 1987 was: firstly, to protect the vendee from frivolous litigation; and secondly, to ascertain the financial capacity of the intending pre-emptor to purchase the property sought to be pre-empted at the time when the property was being sold, keeping in mind the period of such deposit which would commence from the date of filing of the suit---Said provision would place a check on the pre-emptor so that he might not prolong the deposit of Zar-e-Soim and as such any relaxation in the same would amount to frustrate the very purpose of the said proviso to S.24(1) of Act, 1987.

2022 C L C 2106

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

RAHAMDAL KHAN----Petitioner

Versus

IHSAN ULLAH and others----Respondents

Civil Revision No.309-M of 2012, decided on 16th May, 2022.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.25---Possession through pre-emption--- Balance sale consideration, deposit of--- Suit filed by petitioner / plaintiff was decreed in his favour by Trial Court--- Lower Appellate Court set aside judgment and decree passed by Trial Court on the ground that petitioner / plaintiff failed to deposit balance consideration amount---Validity---Trial Court could become functus officio after announcement of judgment only when there was a self-operative default clause in judgment that after expiry of stipulated period suit of petitioner / plaintiff would be deemed to have been dismissed--- When no such clause was mentioned by Trial Court and amount so determined came to know to petitioner / plaintiff after obtaining attested copy of judgment, Trial Court could not be termed as to be functus officio---Petitioner / plaintiff was much vigilant as he applied for depositing remaining pre-emption amount and the same was deposited without any delay---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.

Wali Khan v. Waheed Ghani Khan 2013 MLD 360; Muhammad Nawaz' case 1995 SCMR 105; Nazir Ahmad's case 1999 SCMR 342; Muhammad Irshad's case 1991 SCMR 2149; Bhai Khan's case 1986 SCMR 849; Muhammad Yusuf's case 2007 SCMR 1485; Riaz Hussain's case 2005 SCMR 1664; Shujat Ali's case PLD 2006 SC 140; Dost Muhammad v. Nazar Hussain Khan 1984 SCMR 325; Nazir Ahmad v. Ghulama 1987 SCMR 1704; Miraj-ud-Din v. Muhammad Shoaib and 2 others 2012 MLD 1371 and Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146 ref.

Abdul Halim Khan for Petitioner.

Rashid Ali Khan for Respondents.

2022 C L C 2136

[Peshawar]

Before Wiqar Ahmad, J

IMDADULLAH through L.Rs.----Petitioner

Versus

Mst. ZAHIDA and others----Respondents

Civil Revision No.551-M and 665-M of 2012 with C.Ms. Nos.177 and 676 of 2016, decided on 13th December, 2021.

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

----S.41---Qanun-e-Shahadat (10 of 1984), Art. 114---Limitation Act (IX of 1908), S.3---Inheritance---Suit for declaration/permanent injunction---Estoppel, principle of---Applicability---Plaintiffs claimed that defendant with collusion of revenue authorities had entered the entire legacy of the predecessor in interest ("A") of the plaintiffs in his name in the revenue record; that plaintiffs had been deprived of their shari shares; that revenue record had been ineffective upon rights of the plaintiffs and liable to correction---Suit was partially decreed by Civil Court---Both parties filed separate appeals which were dismissed by District Court and thereafter both filed revision petitions---Validity---Pedigree-table showed that "A" had been survived by one son ("B") and 8 daughters---Said predecessor had died before the time when district land record settlement was being conducted and his son "B" had died---Defendants case was that "B" had inherited from "A" but had disposed of all of his property during his lifetime and therefore, he had not been owning any property at the time of his death from which shares of the plaintiffs could be paid---Defendants had been aggrieved of Civil Court's judgment whereby property in the name of widow of "B" (hereinafter "C") had been included in the pool for distribution among the legal heirs, besides burdening them to compensate the plaintiffs for the entire property that deceased "B" had disposed of during his lifetime---Plaintiffs were aggrieved to the extent that the benefit of S.41 of Transfer of Property Act, 1882, had wrongly been extended to all the vendees, who had acquired title from "B"---No mutation/inheritance had been effected in respect of any legacy of "B" for he had not been shown owner of any property at the time of his death---Statement of Patwari Halqa supported the said version and other evidence of plaintiffs was also silent about any inheritance mutation of "B"--- No other evidence could be brought on record establishing that "B" had been owner of any property---No mutation of inheritance had been effected in respect of any legacy of "B" for the reason that he had not been shown owner of any property at the time of his death---No other evidence could be brought on record establishing that "B" had been owner of any property---Statements of witnesses were silent regarding the fact whether the deceased had been owning any property at the time of his death or not---Official witness produced record and stated in his cross-examination that in Fard Jamabandi, only names of the decree-holders had been mentioned but names of the parties to the suit had not been mentioned---Defendants evidence deposed in cross-examination that "B" used to live a luxurious life; that he used to sell his property for having luxury tours; that he had not been doing any job and had got no other means of income than selling of the properties and that he had been on good terms with his sisters, i.e. plaintiffs and that plaintiffs also used to advise him for selling the inherited property---In response to the suggestion, plaintiffs stated that her bother "B" used to do everything in consultation with his mother and sisters---Plaintiffs were Pardanasheen ladies but they had never brought a case for preventing these transactions---Evidence showed that plaintiffs had been well aware of all such transactions which had not been conducted surreptitiously but had been open transactions, wherein possession had also changed hands---No suit had been brought at the death of "B" when he had disposed of all of his properties---Plaintiffs remained mum and had not created any hurdle rather they had also been beneficiary of the income generated by such sales of properties---Principle of estoppel could be invoked against the plaintiffs---Conduct of claimant would become relevant/material when the bar of limitation was pleaded by the adversary---Revision petition was allowed accordingly.

Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; 2006 SCMR 50 and 2008 SCMR 428 rel.

Ghulam Ali v. Mst. Resham Jan PLD 1990 SC 1 distinguished.

Shams-ur-Rehman for Petitioners.

Mujahid Farooq for Respondents.

2022 C L C 81

[Balochistan]

Before Abdul Hameed Baloch, J

IMAM BAKHSH and others----Petitioners

Versus

MUHAMMAD SIDDIQUE----Respondent

Civil Revision No.144 of 2013, decided on 19th April, 2021.

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

----Ss.12 & 54---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), S.47---Suit for specific performance of agreement to sell and injunction---Limitation period, computation of---Principle---Suit filed by respondent/plaintiff was decreed in his favour---Plea raised by petitioner/defendant was that suit was barred by time---Validity---Limitation period prescribed under Art.113 of Limitation Act, 1908, was 3 years for filing of suit for specific performance of agreement---Two categories viz where in agreement date was fixed for performance and where no date of agreement was fixed---In first case period was to commence from date fixed in agreement, while in the second case period was to commence from the date of refusal--- Respondent/plaintiff filed suit after more than 10 years of refusal to perform agreement despite direction was made by Board of Revenue to approach Civil Court---Instead of approaching Civil Court respondent/plaintiff assailed orders/judgments up to High Court and Supreme Court--- Judgment of Board of Revenue was upheld by Supreme Court and delay of intervening period of litigation before revenue hierarchy was not condoned by High Court---Judgments and decrees passed by two Courts below were set aside as suit filed by respondent/plaintiff was barred by time--- Revision was allowed, in circumstances.

Sherin v. Fazal Muhammad 1995 SCMR 584; 2013 SCMR 171 and 2012 MLD 1607 ref.

Muhammad Ashraf v. Jaffar PLD 2016 Lah. 487; Bashir Ahmed v. Muhammad Ashraf PLD 2001 SC 228 and Muhammad Sadiq v. Muhammad Mansha PLD 2018 SC 692 rel.

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

----S.115---Revisional jurisdiction---Concurrent findings of Courts below--- Different view, possibility of---Scope---Concurrent findings of Courts below cannot be set aside on the ground that on reappraisal of evidence different view was possible---Where concurrent findings are not in accordance with law, there is glaring illegality, non-reading or misreading of evidence, then High Court can interfere in concurrent findings of the Courts--- If concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as sacrosanct and can be interfered with.

Samar Gul v. Mohabat Khan 2000 SCMR 974 rel.

Muhammad Saleem Lashari for Petitioner.

M. Riaz Ahmed for Respondent.

2022 C L C 139

[Balochistan]

Before Jamal Khan Mandokhail, CJ and Muhammad Kamran Khan Mulakhail, J

ABDUL RAUF and 4 others----Petitioners

Versus

DIRECTOR ESTATE, QUETTA DEVELOPMENT AUTHORITY QUETTA and another----Respondents

C.P. No.1474 of 2019, decided on 22nd March, 2021.

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

----S.295---Civil Procedure Code (V of 1908), O.IX, R. 9---Application for grant of letter of administration---Dismissed by Trial Court for non-prosecution---Fresh application dismissed under O.IX R.9, C.P.C.---Revision petition dismissed by District Court---Held, that case was dismissed in default and for non-prosecution on initial stage and not contested by any interested person---Such proceedings did not attaint the status of civil suit nor a decree was passed by Trial Court upon its dismissal---Relief claimed was a continuous right---Fresh application would not come within the purview of O.IX, R.9, C.P.C.---Fresh application could be filed despite dismissal of the earlier one---Valuable right of petitioner was involved which required proper adjudication and could not be denied simply on technicalities---Constitutional petition was allowed, Trial Court was directed to decide fresh application strictly in accordance with law and on its own merits.

PLJ 2001 Magazine 372 SC (India); AIR 1962 Raj. 139 and PLD 1967 SC 402 rel.

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

----S.11, O.IX, Rr. 8 & 9---Dismissal for non-prosecution---Dismissal of application in default without deciding the same on merits could not come within the definition of 'suit decided' and could not hit by provisions of S.11 & O.IX, R.9, C.P.C.

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

----S.295---Civil Procedure Code (V of 1908), S. 9---If proceeding for grant of letter of administration was contested by an interested person then the proceedings would take the character of a regular suit to be tried by the Trial Court in accordance with the provision of the Civil Procedure Code, 1908.

Abdul Sattar Sherani for Petitioners.

Imran Khan Kakar for Respondents.

2022 C L C 173

[Balochistan]

Before Zaheer-ud-Din Kakar, J

Messrs IQRA ANWAR-UL-QURAN LIL ITEFAL through Director ----Appellants

Versus

PAKISTAN BROADCASTING CORPORATION, HEADQUARTER ISLAMABAD through Station Director BPS, Quetta ----Respondent

F.A.O. No.21 of 2018, decided on 26th March, 2021.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Ejectment of tenant---Bona fide personal need of landlord---Statement of landlord---Scope---Landlord/Pakistan Broadcasting Corporation (PBC) filed eviction petition on the ground that demised property (flats) were required in good faith for accommodation of its employees---Held, that statements adduced in the evidence by representative as well as witnesses of respondent/landlord, regarding the bona fide requirement, were found consistent with the averments of ejectment application and could not be dislodged/disproved/rebutted in cross-examination---Appellant/tenant had failed to shatter the veracity of statements of landlord as well as its witnesses ---Statement of landlord on oath, if consistent with the averment of ejectment application and not shaken in cross-examination, was sufficient to prove that its requirement was bona fide---Findings of the Rent Controller were based on elaborate and correct appraisal of evidence, allowing eviction of appellant/tenant---Appeal of tenant was dismissed, in circumstances.

M/s F.K. Irani and Co. v. Begum Feroz 1996 SCMR 1178 and Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 ref.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Constitution of Pakistan, Arts.23 & 24---Right of ownership---Eviction of tenant---Right of property as a fundamental right was protected under Arts. 23 & 24 of the Constitution---Right of ownership was a fundamental right superior than the right of tenancy---Appellant/tenant, being inferior in status regarding utilization of the demised property, could not determine its sufficiency or insufficiency---Rent Controller had rightly decided the issue regarding personal bona fide need of landlord---Appeal of tenant was dismissed, in circumstances.

Shehzad Ahmed and Yasir Adnan for Appellant.

Najam-ud-Din Mengal and Hafeezullah for Respondents.

2022 C L C 335

[Balochistan]

Before Abdul Hameed Baloch, J

QAHAIM KHAN and 4 others----Petitioners

Versus

AMAR KHAN and 2 others----Respondents

Civil Revision No.(S)19 of 2017, decided on 15th October, 2020.

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

----Ss.42 & 52---Qanun-e-Shahadat (10 of 1984), Arts.70 & 72---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Twenty two years of delay---Trial Court dismissed suit---Upheld by appellate court---Issue No. 4 resolved against respondent---Validity---Period provided for challenging mutation was 6 years---Both the courts below had overlooked the mutation entries effected in favour of respondents/defendants which was transferred by their father---Presumption of truth was attached to revenue entries which could not be discarded on verbal assertion unless proved through cogent trustworthy evidence---Documentary evidence would prevail over oral evidence if proved according to established procedure and law---Revision petition was dismissed accordingly.

Mazloom Hussain v. Abid Hussain PLD 2008 SC 571 ref.

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

----Art.117---Plaintiff had to prove his case on strength of his own evidence and could not take benefit from the weaknesses of the defendant's case.

Lalzada v. Mian Tauheedullah 2007 MLD 1683 rel.

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

----S.115---Revision, jurisdiction of---Scope---Revisional jurisdiction of High Court was very limited to interfere in the concurrent finding of the courts below, unless judgment/decree of courts below were result of non-reading/mis-reading of evidence and based against the record.

Shahbaz Gul v. Muhammad Younas Khan 2020 SCMR 869 ref.

Petitioner No.1 (called absent).

Muhammad Nasir Marri and Shahid Baloch, Additional Advocate-General for Respondent No.1.

2022 C L C 355

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD HASSAN and another----Petitioners

Versus

ABDUL HALEEM and 2 others----Respondents

Civil Revision No.27 of 2014, decided on 26th November, 2020.

Civil Procedure Code (V of 1908)---

----S.153---Arbitration Act (10 of 1940), S.32---Determination of real question/issue---Power and duty of court---Suit for declaration/permanent injunctions---Property purchased by respondents/plaintiffs whereof previous owner constructed ground water tank in front of the petitioner's/defendant's shop---Petitioners/defendant started interfering with the right to utilization of water by cutting pipeline---Suit was dismissed by Trial Court---Appeal accepted by District Court---Petitioners/defendants contended that suit was not competent as dispute had been resolved by Arbitrator---Respondents/plaintiffs stated that his suit was hit by Arbitration Act, 1940---Validity---Respondents/plaintiffs mentioned in plaint that where the ground water tank was constructed, the land beneath thereof was vested with Municipal Corporation being part of the street---Both courts below did not elaborate that aspect of the case---High Court observed that Courts should have to resolve such issue first---At time of decision by Arbitrator, matter was not pending before any court, so award was not presented before the court for making it rule of the Court---High Court accepted the Revision petition, remanded the matter to Trial Court with direction to frame the said issue and direct the respondents / plaintiffs to file amended suit by impleading Municipal Corporation as party.

Ajmal Lawan for Petitioner.

Ali Durrani for Respondents Nos.1 and 2.

Saifullah Sanjrani, Additional Advocate-General for Respondent No.3.

2022 C L C 372

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MUHAMMAD YASIR NAZEER----Petitioner

Versus

LUBNA KOSAR and 2 others----Respondents

C.P. No.353 of 2017, decided on 22nd July, 2020.

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

----Ss.5, Sched. & 14---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution of marriage---Appeal---Scope---Suit for dissolution of marriage was decreed by the Trial Court---Appeal filed against the decree was dismissed---Validity---Appeal against the marriage dissolved by Family Court on any ground, except the one mentioned in S.2(viii)(d) of Dissolution of Muslim Marriages Act, 1939, was not competent in view of S.14 of Family Courts Act, 1964---Statements of witnesses of defendant proved that there was maltreatment both physically and mentally from the defendant's side that was why he gave surety that next time there would be no beatings---Defendant had failed to maintain the plaintiff for more than four years, who was residing with her parents---"Cruelty" was not limited to physical beating rather it could be either mental or even by conduct---Petition was partly accepted and the impugned order of appellate court to the extent of return of appeal in respect of dower amount, maintenance, gold ornaments and medical expenses was set aside.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S.2---Grounds for decree for dissolution of marriage---Scope---Cruelty is not limited to physical beating rather that can be either mental or even by conduct.

(c) Interpretation of statutes---

----Proviso---Provision of proviso is to be strictly construed.

Muhammad Baqir Bakhtiar and Syed Abuzar Haider for Petitioner.

Muhammad Mushtaq Lodhi for Respondent No.1.

2022 C L C 537

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ASAD JAVED----Appellant

Versus

AHMED SHAH----Respondent

R.F.A. No.14 of 2018, decided on 28th September, 2021.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.118---Cheque dishonoured---Plaintiff filed suit for recovery of amount of Rs.20,80,820/- allegedly paid to Defendant for starting business---Plaintiff contended that defendant issued to him a cross cheque which was dishonoured for insufficient balance---Defendant contended that the said cheque was stolen by the brother of the plaintiff---Trial Court decreed the plaintiff's suit---Validity---Plaintiff's witness deposed before Trial Court that the plaintiff was his relative; that respondent and appellant were present in the office of plaintiff/respondent; that defendant obtained a loan from plaintiff amounting to Rs.20,80,820/---Appellant stated that said cheque was actually issued to the brother of the Plaintiff, and he, in a concealing manner, took the cheque; and that he had given a loan of Rs.3000 to the brother of the plaintiff---Such stand of the appellant/defendant was contradictory to his very stance---One could not steal a thing that did not exist---To support the claim of stealing/theft it was always necessary to establish the existence of an allegedly stolen thing, else the claim of theft should not stand even if it was admitted by an alleged thief---Such assertion did not stand to reason as to how the cheque, without the consent of its maker, was in possession of the respondent---No cogent evidence had been produced by the appellant that he had not issued a cheque nor signed---Record did not show that the cheque was torn out of his cheque book and it did not pertain to the account maintained by him in the Bank---Mere denial that he had not issued the cheque would not be sufficient---In case of negotiable instrument, it was the defendant who was duty-bound to prove contrary, because the presumption was attached to the negotiable instrument---Story cooked up by the plaintiff had not been supported by any cogent evidence---Plaintiff had failed to rebut the statutory presumption raised under S.118 of the Negotiable Instruments Act, 1881---Appeal was dismissed accordingly.

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

----S.118---Cheque---Execution of---Presumption---Scope---Cheque, in law, had been given the status of negotiable instrument, which, however, could not be engineered/fabricated as other document(s), declared/qualified as 'negotiable instrument'---Proper execution would normally require only two parties i.e. taking out the cheques from the cheque-book, which was believed to be in the safe hands of the account holder, and signing/execution thereof---No other person could perform such part except by stealing, defrauding, or finding a lost one, which claims should always be upon the person who otherwise was expected to keep cheque in safe hands.

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

----S.118---Cheque, execution of---Burden of proof---Presumption, rebuttables, nature of---Scope---Initial presumption is that a negotiable instrument/cheque is made, drawn, accepted or endorsed for consideration---Although such presumption is rebuttable, the onus is on the person denying consideration to allege and prove the same---Where execution of negotiable instrument is admitted, the burden of proof of non-payment of consideration will lie on the executant.

Mrs. Zarghoom Barreach for Appellant.

Khurram Javed Malik for Respondent.

2022 C L C 550

[Balochistan]

Before Muhammad Noor Meskanzai, CJ and Muhammad Ejaz Swati, J

AGHA CONSTRUCTION COMPANY through Proprietor----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Mineral and Mines Deptt. and another----Respondents

Constitution Petition No.529 of 2016, decided on 29th November, 2018.

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

----S.2---Balochistan Mineral Rules, 2002, R.104A---Royalty Collection Contract on Major Mineral for covering Mining Field areas---First highest bidder could not comply with the terms and conditions---Petitioner/Second highest bidder was issued offer letter regarding award of impugned contract---Petitioner's security/call deposit amount was forfeited on his failing to execute agreement within 10 days of issuance said letter---Petitioner's appeal was dismissed by Secretary Mines and Minerals Development Department (Appellate Authority)---Petitioner contended that neither any letter was received by him nor any opportunity was awarded to him before said forfeiture---Validity---In offer letter, column of the Government's approval was blank and said letter had been issued by the authority without mentioning the reference of approval of the impugned contract by the authority---No document produced by respondent as to whether opportunity was provided to the petitioner before passing order of forfeiture---High Court remanded the matter to the appellate authority---Constitutional petition was partly allowed---Impugned order passed by the said appellate authority (Secretary) was set aside and appeal deemed to be pending before him.

(b) Regulation of Mines and Oil-Fields and Mineral Development (Government Control) Act (XXIV of 1948)---

----S.2---Balochistan Mineral Rules, 2002, R.104A---Administrative Law---Royalty to be on daily basis---Incidental intervening period occurred between two auctions------Colourful exercise of power---Between two auctions the respondent/department accumulatively granted extension for period of one year---Respondent exercised the authority not vested in him---Provisions of Balochistan Mineral Rules, 2002 were brought for the augmentation of the Government revenue---Such was a check that Government revenue would not be made to suffer on account of unguided discretion because such course could not be in the public interest.

Mujeeb Ahmed Hashmi and Khushal Ahmed Kasi for Petitioner.

Sabira Islam, Additional A.G. and Zahoor Ahmed Baloch Assistant Advocate General for Respondents.

2022 C L C 574

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

SHAKARULLAH----Petitioner

Versus

BIBI SHAKEELA and another----Respondents

Constitution Petition No.1339 of 2019, decided on 7th December, 2020.

Family Courts Act ( XXXV of 1964)---

----S.17---Civil Procedure Code (V of 1908), Preamble---Qanun-e-Shahadat (10 of 1984 ), Preamble---Family Court Act, 1964---Object---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984---Applicability---Dismissal of suit on technicalities---Effect--- Family Court dismissed the suit of lady/respondent on the ground that she did not fulfil the requirements of the Qanun-e-Shahadat, 1984, while producing her documentary as well as oral evidence---Appellate Court remanded the matter to the Family Court---Held, that purpose of enacting the special law regarding family disputes was to advance justice and to avoid technicalities which were hindrance in providing ultimate justice to the parties---Family Courts Act, 1964, was promulgated for the expeditious settlement and disposal of disputes relating to the marriages and other family affairs and special procedure was provided to achieve the object---Purpose of enacting the Family Courts Act, 1964, was to frustrate the technicalities for the purpose of justice between the parties in the shortest possible time---Provisions of the Civil Procedure Code, 1908, as well as Qanun-e-Shahadat, 1984, were not applicable in stricto sensu to the proceedings before the Family Court---By virtue of S.17 of the Family Courts Act, 1964, the applicability of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984, had been excluded---Appellate Court had rightly remanded the matter to the Family Court---No illegality or infirmity had been noticed in the impugned order passed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361 ref.

Khalid Ahmed Kubdani for Petitioner.

Habib-ur-Rehman for Respondent No.1 (Absent).

2022 C L C 722

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

MAI MITHAN and 67 others----Petitioners

Versus

BANDA-E-ALI and 94 others----Respondents

Constitution Petition No.S-70 of 2021, decided on 30th September, 2021.

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

----O.VII, R.11---Rejection of plaint---Mutation, knowledge of---Not challenged in life time---Suit barred by time---Scope---Petitioner's suit for declaration, cancellation of revenue entries and permanent injunction was contested by respondents/defendants by filing written statement---Respondents' application for rejection of plaint had been dismissed by Qazi---Majlis-e-Shoora accepted revision petition filed by respondents and rejected the plaint---Petitioners contended that issue of limitation was a mixed question of law and facts which could be decided on the basis of evidence---Validity---Averments contained in plaint were presumed to be correct---Petitioner had challenged the mutation entries after 48 years---Plaint showed that predecessor of the petitioners was well aware about impugned mutation entries but they did not challenge said mutation in their life time---Suit appeared form statement in plaint was barred by limitation---Constitutional petition was dismissed accordingly.

Nazar Gul v. Islam and 3 others 1998 SCMR 1223; Hakim Muhammad Buta Vs. Habib Ahmed and other PLD 1985 SC 153; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; Noor Din and others Vs. Additional District Judge, Lahore and others 2014 SCMR 513 and Muhammad Rustam and other v. Mst. Makhan Jan and others 2013 SCMR 299 rel.

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

----O.VII, R.11---Rejection of plaint---Nature and Scope---Order VII, R.11 of Civil Procedure Code, 1908, laid down an independent remedy for defendant to challenge maintainability of suit instead of contesting the same on merit.

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

----O.VII, R. 11---Rejection of plaint---Object---Object of O.VII, R.11 of Civil Procedure Code was primarily to save the parties from the rigorous or frivolous litigation at the very inception of the proceedings.

Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif PLD 2008 SC 371 rel.

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

----O.VII, R.11---Rejection of plaint---Cause of action and limitation---Stage to decide---Court could exercise power at any stage of suit before passing of judgment for deciding application under O.VII, R.11 of C.P.C., 1908, relating to clause (a) & (d) and same could be exercised power before filing of written statement.

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

----O.VII, R.11---Rejection of plaint---Cause of action, existence of---Duty of Court---Scope---Order VII, R.11 of Civil Procedure Code, 1908 casts duty on court to perform its obligation if a plaint was hit by any clause of the said provisions, even without filing of application by defendants---While deciding application under O.VII, R.11, C.P.C., it was to be considered whether plaint disclosed a real cause of action or something purely illusory/imaginary / hollowed had been stated.

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

----O.VII, R.11---Rejection of plaint---Plaint, exclusiveness of---Scope---For O.VII, R.11 of Civil Procedure Code, it was plaint alone which was to be considered.

Muhammad Khan v. Muhammad Amin through L.Rs. and others 2008 SCMR 913 rel.

Ahsan Rafiq Rana and Barrister Saifullah Magsi for Petitioners.

Naseer-ud-Din Mengal, A.A.G. for Official Respondent.

Muhammad Sadiq for Respondent No.83.

Ghulam Mustafa Buzdar for Respondent No.90.

2022 C L C 755

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

YAR MUHAMMAD and another----Appellants

Versus

Moulvi ABDUL FATAH and another----Respondents

Succession Appeal No.S-1 of 2016, decided on 5th October, 2020.

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

----Ss.372 &378---Qanun-e-Shahadat (10 of 1984), Art. 49, 70, 91 & 92---Succession---Appellants/applicants applied for grant of succession certificate and Letter of administration---Appellants contended that they being descendent/legal heirs of the deceased were entitled for group insurance, gratuity, pensionary benefits, amount in Bank account, and immovable property---Respondent alleged that deceased was issueless and appellants were adopted son and daughter thereof---High Court remanded the matter to Trial Court, which dismissed said applications---Validity---Respondent produced oral evidence (13 witnesses) but appellants produced in their favour official record/official documents through concerned representatives without objection from respondent, i.e. NADRA record; school registration/leaving certificates; local certificates; opening documents of Bank account/nomination of GP Fund Account---Presumption of correctness was attached to the documents of official record---Deceased mentioned his name in all documents from school admission up to obtaining National Identity Card without objection from respondent---Oral evidence of respondent could not rebut the documentary evidence of appellant---Appeal was accepted.

Mst. Asma Naz v. Muhammad Younas Qureshi 2005 SCMR 401 rel.

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

----S.373---Succession---Jurisdiction of Civil Court---Procedure under S.373 of Succession Act, 1925 was summary in nature, it could not conclude the right of the parties---If a party desired for determination of his right the remedy would lie in suit before a court of competent jurisdiction---For determination of title, the same could be decided by the civil court of competent jurisdiction by way of filing civil suit for the purpose to establish the claim and recovery of share.

Asif Shah v. Mst. Attar Bibi 2016 CLC 1715 rel.

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

----Arts.49 & 92---Succession---Entries in public record---Scope---Presumption of correctness attached to the entries of educational testimony by the Educational Institutions, NADRA and other official documents issued by the authorities stating the fact while performing his duty---Such book, register or record was kept, was itself a relevant fact---Official document produced in accordance with law would always carry sanctity and strong evidence required to cast an aspersion on genuineness, and would be binding on the parties to lis.

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

----Art.91---Documents admitted without objection---Presumption---Once a document produced as evidence and admitted in evidence without any objection, it amounted the same had been duly proved.

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

----Arts.70 & 72---Succession---Documentary evidence would prevail over oral evidence---Oral evidence could not exclude documentary evidence---Document could be rebutted by document only.

Abdul Ghani Mengal for Appellants.

Inayatullah Marghazani for Respondent No.1.

2022 C L C 781

[Balochistan]

Before Naeem Akhtar Afghan, CJ and Abdul Hameed Baloch, J

ABDUL GHANI KHETRAN and another----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Irrigation Department and another----Respondents

Constitution Petitions Nos.1312 and 1348 of 2021, decided on 30th September, 2021.

Balochistan Public Procurement Regulatory Authority Rules, 2014---

----R.12(1)(b)(c)---Constitution of Pakistan, Art. 199---Packaging / Merging of construction contracts--- Petitioner was a pre-qualified contractor and aggrieved of packaging / merging of construction of ten water dams in four districts into four contracts---Validity---Public exchequer was not to be made to suffer due to exercise of powers by public functionaries in arbitrary and unreasonable manner giving extra favour to one party at the cost of others--- Contracts carrying elements of public interest were to be just, fair, transparent, reasonable and free from any taint of mala fides and all such aspects were always open for judicial review by High Court in exercise of Constitutional jurisdiction under Art.199 of the Constitution on the touchstone of reasonableness, fair play, natural justice, equality and non-discrimination---High Court declared packaging / merging of construction of ten dams into four contracts by authorities as null, void and of no legal effect---High Court further declared pre-qualification summary prepared by authorities for ten dams of four districts packed / merged into four contracts as null, void and of no legal effect---High Court cancelled financial bids submitted by construction companies for ten dams of four districts packed / merged into four contracts, as the same had not been opened till then---High Court directed the authorities to issue notice inviting tenders / invitations to bid to all already prequalified construction companies to participate in bidding process for construction of ten dams as ten different projects---Constitutional petition was allowed accordingly.

Airport Support Services v. Airport Manager 1998 SCMR 2268 and Muhammad Afzal v. Shahzad Asghar Dar 2003 SCMR 280 rel.

Nadir Ali Chalgari and Muhammad Bilal Mohsin for Petitioner (in C.P. No.1312 of 2021).

Habib-ur-Rehman Baloch for Petitioner (in C.P. No.1348 of 2021)

Zahoor Ahmed Baloch, Assistant Advocate General assisted by Shoaib Nadeem Project Director, Construction of 100 Dams in Balochistan and Siraj Ahmed, Assistant Project Engineer, Construction of 100 Dams in Balochistan, Irrigation Department, Government of Balochistan for Respondents (in C.Ps. Nos.1312 and 1348 of 2021).

2022 C L C 830

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD NASEEM JAVED----Petitioner

Versus

ANJUMAN-E-ASNA ASHRIA and another----Respondents

Civil Revision No.212 of 2016, decided on 6th November, 2020.

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

----S.92---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Waqf Property---Suit for declaration, cancellation documents and permanent injunction---Failure to obtain permission from Advocate General---Effect---Plaintiff assailed the dismissal of his suit for declaration, cancellation of documents, permanent injunction and consequential relief---Validity---Plaintiff had admitted that the property was actually Waqf property---Relief claimed in the suit fell within the scope of S.92, C.P.C., as such, permission from Advocate General was required, which was not obtained---Suit was not maintainable---Revision petition was dismissed.

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

----S.92---Public charities---Scope---Suit under S.92, C.P.C., is of special nature which pre-supposes the existence of a public trust of a religious or charitable character---Object of S.92, C.P.C., is to protect a public trust of a charitable and religious nature from being subjected to harassment by suits filed against them---Public trust for charitable and religious purposes are run for the benefit of the public---No individual should take benefit from them---Section 92, C.P.C., has no application where the plaintiff does not sue to vindicate the right of the public but seek declaration of his individual or personal rights.

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

----S.92---Public charities---Waqf property---Scope---Question, whether permission from Advocate General under S.92, C.P.C., is required, can only be determined once it is established that the property with respect to which the suit has been filed is waqf property---Where the Court holds on the basis of evidence that the property in question is waqf property and the relief sought by the plaintiff falls within the scope of Cls. (a) to (h) to subsection (i) of S.92, C.P.C., the suit can be dismissed on the sole ground that the consent under S.92, C.P.C., was not obtained prior to the filing of the suit---If on the other hand, the Court holds that the property is not waqf property or that the relief prayed for does not fall within the scope of S.92, C.P.C., then the consent under S.92, C.P.C., for filing a suit would not be necessary.

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

----S.115---Revision---Scope---High Court while exercising revisional jurisdiction is supposed to make a comparative analysis of both the judgments in order to determine their validity on the touchstone of S.115, C.P.C., but in the matter of giving preference to the judgments of lower courts, while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, if those are not suffering from any legal infirmity.

Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs and others 2013 SCMR 1300 rel.

Ahsan Rafiq Rana for Petitioner.

Muhammad Ayub, A.A.G. for Respondents.

2022 C L C 965

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD AJMAL and others----Applicant

Versus

PROVINCE OF BALOCHISTAN through Secretary Irrigation and others----Respondents

Review Application No.04 of 2021 in C.P. No.813 of 2019, decided on 14th September, 2021.

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

----S.114 & O.XLVII, R.1---Review---Jurisdiction---Scope---Courts while reviewing judgment/order could not sit as a Court of appeal as the grounds for appeal and review were totally different from each other---Clerical, arithmetical, accidental, typographical and a pencil slip mistake which was floating on the surface of record or which apparently was against the law coverable under O.XLVII, R.1 of the Civil Procedure Code, 1908, could be reviewed---For entertaining a review application, impugned order must suffer from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice---In review, Court, in review, would not sit in appeal over its own order---Rehearing of the matter was not permissible in law---Review constituted an exception to the general rule that once a judgment was signed/pronounced, the same should not be altered---Power of review could be exercised for correction of a mistake and not to substitute a view.

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

----S.114 & O.XLVII, R.1---Review of High Court judgment passed in Constitutional jurisdiction---Validity---Applicants prayed for review of the judgment to the extent of cultivation of wheat, barley contending that respondents did not place on record any kind of laboratory reports in order to show that the crops sown by the applicants were harmful/dangerous either for human being or animals---Held, that applicants failed to point out any illegality/material irregularity---All the contentions of applicants had already been duly attended in the impugned order---Number of studies/research reports issued by relevant departments of provincial government had been referred in the impugned judgment showing that sewage water was the richest source of micro/macronutrients; that the same was aimed for the better growth and productivity of plants, however heavy metals contents in vegetables and even soil would become very high which had harmful effects on human/animal health, unsuitable for agriculture purpose and sewage water also contaminated the surrounding environment---Review application was dismissed accordingly.

Shams-ud-Din Achakzai for Applicants.

Shai Haq Baloch, Addl: A.G., Ali Ahmed Kakar, Dr. Mir Sadat, President Balochistan Council for Peace and Policy (BCPP), Professor Dr. Zahoor Ahmed Bazai, Director Quality Education Balochistan and Ibrahim Baloch, DG, Balochistan Food Authority for Respondents.

2022 C L C 1048

[Balochistan]

Before Muhammad Ejaz Swatiand Zaheer-ud-Din Kakar, JJ

ABDUL RAZIQ----Petitioner

Versus

MUHAMMAD RAFIQ and others----Respondents

C.P. No.287 of 2020, decided on 14th September, 2021.

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

----S.153---Pre-emption---Talb-i-Muwathibat---Date, time and place, mentioning of---Application of petitioner/pre-emptor was allowed by Trial Court for correction of mistake---Petitioner prayed that in plaint he had inadvertently mentioned "AM", instead of "PM" due to accidental slip/omission---District Court accepted (ex-parte) revision petition of the respondent/defendant---Petitioner's application for setting aside ex parte order was dismissed---Petitioner contended that correction would not cause prejudice to respondents; that contents of plaint supported petitioner's version regarding error being accidental; that Trial Court's order was not a "case decided"---Held, that if an interim order was a final order relating to a part of proceedings/issue and having effect on merits of the case, such an order could be corrected in revisional jurisdiction---Court had general power to amend any defect/error in any proceedings in a suit at any time to determine real question/issue---Correction of error/mistake would depend on nature of mistake/error as per the facts of each case---Mentioning of particulars as to date, time and place of making talb of pre-emption was essential for substantiating such right and failure would be fatal and pre-emptor would face the consequence of omission---Such omission if allowed to be corrected/amended it would change the nature/complexion of the suit---Petitioner did not choose to seek correction until the said facts was not specifically denied by the respondents in the written statements, and that too for correction of time as "12 PM" instead of "12:30 AM" with an object to withdraw the admission made in the plaint and wipe out the defence taken by the respondent, hence not with bona fide intention---Constitutional petition was dismissed accordingly.

Rana Muhammad Tufail v. Munir Ahmed and others PLD 2001 SC 13; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 92; Mst. RoohAfza v. Aurangzeb and others 2015 SCMR 92; Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23; Abaid Ullah Malik v. Additional District Judge Minawali and others PLD 2013 SC 239 and Mian Pir Muhammad and others v. Faqir Muhammad and others through L.Rs and others PLD 2007 SC 302 rel.

Muhammad Anwar and 8 others v. Muhammad Ashraf PLD 2001 SC 209 and Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824 distinguished.

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

----S.115---Revisional jurisdiction---Term "case decided"---Scope---Expression "case decided" was not confined to an entire suit, but included an issue/part of a suit/proceedings where an interlocutory order, which dealt with substantial question in controversy between the parties and effect their right would come within the ambit of "case decided".

Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718 and Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board and others 1998 SCMR 1798 rel.

Gul Hassan Tareen for Petitioner.

Wasil Jan Bazai for Respondents.

2022 C L C 1282

[Balochistan]

Before Rozi Khan Barrech, J

SHARAF-UD-DIN----Petitioner

Versus

ABDUL WADOOD and 3 others----Respondents

Civil Revision No.215 of 2019, decided on 13th September, 2021.

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

----O.XXIII, Rr.1 & 2---"Formal defect" and "sufficient reason"---Scope---Suit for declaration and permanent injunction---Petitioner running a school had challenged construction of shops on the land adjacent to his school---Written statement was submitted by defendants---Petitioner filed application for withdrawal of plaint which was accepted by Trial Court but dismissed by appellate Court---Validity---No formal defect was pointed out by Trial Court in the suit filed by plaintiff/petitioner---Before allowing withdrawal of application, satisfaction of Court regarding formal defect/other sufficient grounds was necessary---Local commission was appointed who had submitted report before such application from plaintiff---Allowing application would cause harm/prejudice to defendants/respondents and would put them in disadvantageous position---Application was silent as to any justification/reasons or formal defect which ought to be removed by filing suit afresh and were not possible to be introduced by way of amendment---Petitioner's application for amendment in plaint had already been dismissed by trial Court---Revision petition was dismissed accordingly.

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

----O.XXIII, Rr. 1 & 2---Withdrawal of suit with permission to institute fresh suit---Privilege---"Sufficient grounds"---Scope---Plaintiff had absolute privilege/prerogative to withdraw his suit and /or abandon his claim/part thereof against all/any of defendants at any stage of proceeding---Where Plaintiff had exercised such privilege, he would be precluded from instituting new suit on basis of same cause of action qua same subject matter against same defendant---Sub-rule (2) was exception to sub-rules (1) and (3) that plaintiff would be obliged to seek permission of Court if he wanted to file new suit after withdrawal of the first suit---Such permission of Court should not be granted as a matter of right/course/routine---Conscious of Court should be satisfied that if permission was not given, the suit would fail on account of any formal defect---Other sufficient grounds were also there for allowing withdrawal of suit with permission to institute fresh suit---No hard and fast criteria could be laid down in respect of "sufficient grounds"---Plaintiff must elucidate/explain to Court the reason(s) for such withdrawal justifying the permission of Court---Court was duty-bound to advert to reasons propounded by plaintiff and to pass speaking order assigning reasons for its conclusion meeting the objective requirement of rule of 'satisfaction'---Order must spell out the objectivity test of satisfaction, so that the same could be gauged/judged that request of plaintiff for withdrawal was not tainted with oblique/mala fide motive; was not meant to cause harm/prejudice to defendant and put him in disadvantageous position; not motivated to misuse the authority of Court and abuse the process of law.

Muhammad Yar through L.Rs and others v. Muhammad Amin through L.Rs and others 2013 SCMR 464; Haji Muhammad Boota and others PLD 2003 SC 979 and Salma Khalil and three others v. Rashida Siddique and another 2000 CLC 260 rel.

Muhammad Abbas Kakar for Petitioner.

Azmatullah Achakzai for Respondents Nos.1 and 2.

Ala-ud-Din Kakar, Assistant Advocate General ("AAG") for Respondents Nos.3 and 4.

2022 C L C 1354

[Balochistan]

Before Nazeer Ahmed Langove, J

MUHAMMAD IMRAN----Appellant

Versus

MUHAMMAD AFZAL and 2 others----Respondents

F.A.O. No.20 of 2020, decided on 20th October, 2021.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13, 13A & 14---Personal bona fide need of landlord---Eviction application filed by appellant with averments that he was a lawful owner of commercial property (two shops with front-seat/platform); that respondents were tenants of previous owners; that one respondent sublet the platform of said shops without owner's permission/consent; that sub-tenants also failed to tender rent to the appellant; that appellant was unemployed and wanted to start his business in said shops; that he approached/appraised the respondents to vacate possession of said shops, followed by legal notice but with no response---Eviction Application was dismissed by Rent Controller---Validity---In previous round of litigation, first eviction application was disposed of on compromise; and second application was dismissed by Rent Controller mainly on ground that shops were required for personal/bona fide use of appellant (previous owner's brother)--Appellant through oral/documentary evidence proved that he was the legal/lawful owner of shops in dispute, required for his personal/bona fide use/occupation, moreover he had no other shop in same vicinity---Rent Controller failed to appreciate the oral and unrebutted documentary evidence and reached wrong conclusion which caused miscarriage of justice---Appellant himself appeared before Rent Controller and was subjected to cross-examination---Person who was the most relevant to prove personal requirement was the landlord himself, and none else could effectively testify to that fact except himself; hence, his statement was of immense importance/significance which had gone unchallenged in cross-examination---Principle of res-judicata did not bar the subsequent application; because the first application was disposed of on compromise while the second application was withdrawn on technical grounds---Private settlement made earlier could not constitute an eternal defect in landlord or debar him forever to get the shop for his personal use---After purchasing shops, appellant served notice under S.13A of the Ordinance, 1959, but rent was not remitted to the appellant, thus respondents committed wilful default---Issue of wilful default by respondents was established---Appeal was allowed and respondents were directed to handover the vacant possession of shops in dispute along with front-seat to appellant.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Personal/bona fide use---Statement of landlord on oath, if consistent with application for ejectment and not shaken in cross-examination nor disproved in rebuttal was sufficient to prove that requirement of landlord was bona fide---Landlord had right to occupy his property and could not be deprived of such right only because once it was rented out.

Muhammad Usman Yousafzai for Appellant.

Gul Hassan Tareen and Arif Bazai for Respondents.

2022 C L C 1382

[Balochistan]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

BEVERGH KHAN----Appellant

Versus

SURAT KHAN and 7 others----Respondents

Regular First Appeal No.(S)13 of 2017, decided on 16th February, 2021.

(a) Islamic law---

----Pre-emption, right of---Scope---Co-sharer---In Balochistan Province, the right of pre-emption was governed by S.231 of Muhammadan Law wherein co-sharer, a participator in amenities and in appendages and owner of adjoining immoveable property was entitled for such right.

(b) Islamic law---

----Pre-emption, right of ---Adjacent suit-land---Contents of the plaint revealed that the appellant pre-emptor had simply stated that his property was situated adjacent to the land-in-dispute without giving any description of the property-in-question---Vendees claimed in their written-statement that suit-land was not adjacent---Simple statement of pre-emptor was not enough to establish his entitlement to claim the suit-land through right of pre-emption---Suit for pre-emption was rightly dismissed---Appeal was dismissed.

(c) Islamic law---

----Pre-emption, right of---Talab-i-Muwathibath---Scope---Plaint of the appellant (plaintiff) neither contained the date, time and place of performance of Talab-i-Muwathibath nor the appellant mentioned the same in his evidence, which was contrary to law---Suit for pre-emption was rightly, dismissed---Appeal was dismissed.

(d) Islamic law---

----Pre-emption, right of---Talab-i-Muwathibath---Jumping demand---Scope---Appellant/pre-emptor stated that when he learnt about the sale, there after inquiry and investigation, he approached the vendees and in the presence of witnesses demanded to hand over the suit-land but they refused---Pre-emptor, in his statement, had not uttered a single word that on learning about the sale he made Talab-i-Muwathibath in the same Majlis---Talab-i-Muwathibath should be made as soon as the fact of sale was known to the claimant---Suit for pre-emption was rightly dismissed---Appeal was dismissed, in circumstances.

Shams-ur-Rehman for Appellant.

Muhammad Jamil for Respondents.

2022 C L C 1574

[Balochistan]

Before Jamal Khan Mondokhail, CJ and Nazeer Ahmed Langove, J

STATE BANK OF PAKISTAN through Chief Manager----Petitioner

Versus

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

Constitution Petition No.485 of 2020, decided on 31st August, 2020.

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

----S.49---Constitution of Pakistan, Art.165---Property tax, recovery of---Exemption---Respondent/Cantonment Board issued demand notice to the petitioner/State Bank for payment of property tax---Petitioner claimed that it was exempted from taxation---Held, that State Bank of Pakistan being a public service organization was exempted from property tax on its building for the reasons that profit of the Bank after providing expenditures was remittable to the Government; entire capital of the Bank vested in the Federal Government; and the same was not a commercial entity rather it performed functions on behalf of the Federal Government---Properties of the same needed to be treated as owned by the Federal Government---Constitutional petition was allowed accordingly.

Abdul Wadood Khan for Petitioner.

Ghulam Mustafa Buzdar, Deputy Attorney General for Respondents Nos.1 to 3 and 5.

Adnan Basharat for Respondent No.4.

Date of hearing: 21st July, 2020.

2022 C L C 1601

[Balochistan]

Before Abdul Hameed Baloch, J

BAZ MUHAMMAD and another----Petitioners

Versus

TAHIR MEHMOOD and 3 others----Respondents

Civil Revision No.342 of 2020, decided on 20th October, 2021.

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

----O.XLI, R. 31---Appellate Court, duty of---Points for determination, framing of---Suit for declaration, recovery of damages and injunctions was decreed---Appeal was dismissed by Additional District Judge---Validity---Appellate Court while deciding the appeal had failed to observe the mandate of O.XLI, R.31 of Civil Procedure Code, 1908---Mere reproduction of judgment of trial Court in dismissing the appeal was not the scheme of law---Appellate Courts should decide the appeal independently by framing points for determination and conclusion thereon on the basis of evidence on record, instead of stepping the judgment of trial Court mechanically without applying its mind---Appellate Court neither framed points for determination nor discussed the evidence for arriving the conclusion---Appeal was accepted and case was remanded to the appellate Court for decision afresh.

Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394 and Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 rel.

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

----O.XLI, R.31---Appellate Court, duty of---Phrase "points for determination"---Scope---Appellate Court was under obligation to state points for determination, decision thereon, reasons for the decision and whether the decree appealed from was reversed or varied---Phrase "point for determination" in O.XLI, R.31(a) of C.P.C. referred to all important questions involved in the case---Object of the said rule was to provide a pavement to the appellate Court for writing a good judgment----It was incumbent upon the appellate Court to give its issue-wise findings.

Rehmatullah Barrech for Petitioner.

Mahmood Ali Bhatti and Ayub Tareen, Assistant Advocate General for Respondents.

2022 C L C 1646

[Balochistan (Sibbi Bench)]

Before Abdul Hameed Baloch, J

PIR MUHAMMAD and others----Petitioners

Versus

MEHMOOD KHAN and others----Respondents

Civil Revision Petitions Nos.(s) 03, (s)04, (s)06 and (s)07 of 2012, decided on 5th November, 2020.

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

----Ss.54 & 123---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Suit property was mutated in the name of father of plaintiffs---Defendants contended that the suit property was purchased property which was purchased in 1951 but transferred in their name in 2001---Plaintiffs contended that they never sold the property to the defendants---Burden of proof lay on the defendants to prove that they validly purchased the suit property---None of the witnesses were present at the time of alleged sale/purchase---No valuation of sale was mentioned in written statement---Record showed that Transfer was effected on basis of hiba (gift)---Defendant produced no witness of purchase or hiba---Neither father of the defendants (who was Naib Tehsildar) nor the defendants bothered to transfer the same in their names for half a century---Adjacent property was transferred in the name of the father of defendants---Attorney stated that suit property was purchased by grandfather, but defendants stated that they purchased the same in 1951---National Identity Card showed that one defendant (Elder among brothers) was born in 1953---Transfer was effected without knowledge of plaintiffs, fraudulently with the connivance of concerned revenue authority---No limitation would run against fraudulent transactions---Fraud vitiated even solemn order-- Defendant, in respect of his claim of hiba, had neither produced any witness as to prove factum of hiba, nor any official from the revenue staff; and failed to furnish reason for such gift---Not believable that one deprived the sons and gift the property to another person---High Court observed that when respondent was no more a land owner how the sale purchase could remain intact---All three Revision petitions were dismissed accordingly.

Rehmatullah v. Saleh Khan 2007 SCMR 729 and Barkat Ali through legal heirs v. Muhammad Ismail through legal heirs 2002 SCMR 1938 ref.

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

----115---Revisional power of High Court---Scope---Such power was limited and court was not permitted to dilate upon merit or reopen the case---High Court in revisional jurisdiction would only confine itself to the law point involved in the matter or specific portion of evidence if omitted by the courts below---Concurrent findings of facts could not be disturbed unless it was against the evidence or perverse and it could amount to grave miscarriage of justice.

Kanwal Nain v. Fateh Khan PLD 1983 SC 53 ref.

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

----O.I, R.10---Concurrent findings---Appellate Court dismissed application for joinder---Party invoked revisional jurisdiction---Held, merely on ground that party had interest in the suit property by itself was no ground to remand the matter in order to frustrate the previous proceeding.

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

----O.XXII, Rr. 3 & 4---Limitation Act (IX of 1908), Art. 177---Where no application for impleading the legal representatives of deceased defendant within the prescribed time limit, the Court would proceed with the suit and continue the proceedings notwithstanding the death of the defendant---Non-impleading of legal representative of deceased plaintiff/defendant could not abate the suit automatically---Court was empowered to pass judgment when failure of party to bring on record the legal heirs of a deceased party in pending proceedings.

Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755 ref.

(e) Administration of justice---

----When basic order was illegal and without lawful authority then whole superstructure built on it would fall on the ground automatically.

Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mill's case PLD 1982 Lah. 1 ref.

Khalil-ur-Rehman for Petitioner (in Civil Revision Petitions Nos.(s) 3, (s) 4 of 2012).

Abdul Musawir and Ahmed Ali, Additional Advocate General for Respondents Nos.1 to 3 (in Civil Revision Petitions Nos.(s) 3, (s) 4 of 2012).

Abdul Musawir and Ahmed Ali, Additional Advocate General for Respondents Nos.1 to 3 (in Civil Revision Petitions Nos.(s) 6, (s) 7 of 2012).

2022 C L C 1713

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL GHAFOOR and others----Petitioners

Versus

MUHAMMAD MURAD and others----Respondents

Civil Revision No.213 of 2012, decided on 21st October, 2020.

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

----Ss.42 & 52---Mutation, raising objection at time of attestation---Proof---Inheritance from grandfather after death of father---Petitioners'/plaintiffs' contention that their inherited properties were fraudulently mutated in revenue record by respondents/defendants---Concurrent dismissal of suit---Held, that suit land had admittedly been mutated in names of respondents at time of final attestation---Petitioners had raised no objection on mutation and produced no evidence of their non-presence at the time of mutation---Mutation carried presumption of truth---Petitioners had not challenged the entries before revenue functionaries/civil court--­-No denial that father of petitioners had neither claimed inheritance during his life time, nor filed suit---Revision petition was dismissed being meritless.

Hakim Khan v. Aurangzeb 1979 SCMR 625 and Mst. ShahiLal v. Khurshid Ali Khan 2015 YLR 2443 ref.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 70 & 72---Document of entries could not be disregarded---Mere bald verbal statement of the kind hardly cut ice---Documentary evidence could not be rebutted by oral evidence.

Mt. Wallan v. Fazla AIR 1939 PC 114 rel.

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

----Art.117---Inheritance, claiming land on ground of---Mutation in name of defendants---Adverse inference---Held, that party seeking relief from Court would have to discharge his burden by proving his case on its own evidence---Plaintiff had to prove his case on strength of his own evidence and could not take benefit from the short coming of the defendant's evidence.

Amirullah Khan v. Muhammad Akram 2004 YLR 709 rel.

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

----Art.115---Revision---Jurisdiction of High Court---Finding of facts---Scope---Reappraisal of evidence was not the function of High Court---Mere fact that such court might have taken different view was no ground to interfere with the concurrent findings of fact recorded by the courts below.

Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50 rel.

Muhammad Akram Shah for Petitioner.

Khalid Ahmed Kubdani and Muhammad Ayub, Assistant Advocate General for Official Respondents Nos.18 to 24.

2022 C L C 1764

[Balochistan]

Before Rozi Khan Barrech, J

GHULAM SARWAR and 19 others----Petitioners

Versus

MUHAMMAD NASEEM and 5 others----Respondents

Civil Revision No.240 of 2016, decided on 6th November, 2020.

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

----Ss.42 & 52---Qanun-e-Shahadat (10 of 1984), Arts.70 & 72---Mutation, value of---Claim on basis of possession---Documentary evidence, preference of---Petitioners/plaintiffs contended that they were owners in possession of the suit property which was inherited from their forefathers; that property of respondents/defendants was adjacent to the petitioners' property; that both parties constructed wall between their properties; that respondents dishonestly tried to trespass and petitioner register complaint in Police station; hence the cause of action---Respondents alleged that inherited property was partitioned privately; each sharer was in proprietary possession of his due share; inheritance mutation had not been affected; that predecessor of petitioners had exchanged the suit property with respondents; that on suit property father of respondents excavated tube-well for irrigating fruit orchard, they had been cultivating several crops for years, erected separate boundary walls, and erected dwelling house---Both the courts below held that respondents/defendants had proved there constant possession since last 40 years without interference/objection, whereas petitioners/plaintiffs had failed to establish their possession---Validity---Petitioners produced mutation entries and ocular evidence who specifically stated that petitioners were owners of suit property---Respondents had failed to prove the said entries as collusive/forged---Presumption of truth was attached to the revenue entries in favour of petitioners---Respondents had failed to rebut the said entries---Claim on bases of possession was good against the world except the rightful owner---Claim of respondents merely on the basis of possession against the rue owner (petitioners) was unjustified/unwarranted---No documentary evidence was produced to establish cultivation for last 40 years---Held, that the petitioner was lawful owner of the suit property and was entitled to possession---Revision petition was allowed and impugned judgments/decrees were set aside.

AIR 2004 SC 4609 and AIR 1990 SC 673 ref.

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

----Ss.42 & 52---Qanun-e-Shahadat (10 of 1984), Arts. 70 & 72---Mutation---Documentary evidence, preference of---In presence of mutation entries in favour of one party, oral evidence produced by the opponent had no substantial value with regard to the ownership of the property in dispute---Mutation entry was a document bearing presumption of correctness unless rebutted.

Hakim Khan v. Nazar Ahmed Lughmani 1992 SCMR 1840 ref.

(c) Islamic jurisprudence---

---Adverse possession---Repugnancy---Possession howsoever adverse was, would not confer any ownership title to the possessee of the property---Claim on the basis of adverse possession was declared against injunctions of Islam.

Maqbool Ahmad v. Federal Government 1991 SCMR 2963 rel.

Abbas Ahmed Jamaldini for Petitioners.

Mian Baddar Munir for Respondents Nos.1 to 6.

2022 C L C 1778

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

DANAE INTERNATIONAL CORPORATION----Plaintiff

Versus

M.V. CAMEL (EX-CAMELOT) and another----Defendants

Admiralty Suit No.01 of 2021, decided on 31st May, 2021.

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

----S.2---Agreement for sale---Pre-conditions---Contract is an agreement having a lawful object, entered into voluntarily by two or more parties each of whom intends to create one or more legal obligations between them---Basic requirements of valid and enforceable contract are offer, acceptance, exchange of consideration and mutuality of obligations---Fundamentally important ingredient of valid contract is that it should be between parties who are competent to contract---Intention of parties to a contract must be looked at to determine where a contract has come into existence---Essential elements for any sale transaction are (a) payment of sale price of property, movable or immovable, or promise to pay the same by buyer or seller, and (b) delivery of possession of property---In case such two essential terms of sale of immovable property can be determined on the basis of contents of agreement between parties with certainty, it may constitute a valid agreement of sale between parties which subject to discretion of Court can be directed to be specifically performed---Basic test for resolving whether parties reached consensus ad idem for concluding a contract is to ascertain whether parties had consensus on all material points at the time agreement was executed between parties.

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

----S.3(1) &(2)---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for recovery of damages---Rejection of plaint---Action in rem---Scope---Plaintiff sought recovery of damages for violating sale agreement against vessel and its previous owner---Validity---Plaintiff claimed his right under S.3(1)(g) of Admiralty Jurisdiction of High Courts Ordinance, 1980, which spoke about "any claim for loss or damage to goods carried in a ship"---Plaintiff sought damages for alleged act of defendant who reneged from contract of sale---No such agreement existed between parties nor was proved--- Claim of plaintiff did not arise out of any condition provided in S.3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980---Plaintiff had no claim of nature provided in S.3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980, upon or against defendant vessel---Claim of plaintiff was that it suffered damages on account of agreement made by it for selling defendant vessel to plaintiff but had failed in their obligations and to honor their contract, resulting in selling of vessel to some other party---Such damages were not covered in provisions under S.3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980, and could not be enforced in rem against defendant ship---High Court declined to pass any decree in favour of plaintiff and against defendants---Plaint was rejected, in circumstances.

Messrs Kadriah-I Ltd. through duly Constituted Attorney v. M.V. "Spendour" through owner and others PLD 2011 Kar. 102 and Messrs Masoomi Enterprises Pakistan (Pvt.) Limited and others v. Messrs Ping TanFishery Company and others 2002 SCMR 1771 rel.

Agha Zafar for Plaintiff.

Ismail Zahid for Defendants.

2022 C L C 1917

[Balochistan]

Before Abdul Hameed Baloch, J

AKHTAR MUHAMMAD----Petitioner

Versus

SHABANA and another----Respondents

Civil Revision No.239 of 2020, decided on 18th March, 2021.

Succession Act (XXXIX of 1925)---

----Ss.372 & 373---Balochistan Government Employees Benevolent Fund Act (XV of 2018), S.2 (d) (ii)---Balochistan Civil Servants Pension Rules, 1989, R. 4.7---Succession---Tarka---Grant, entitlement of---Dependent on deceased---Proof---Petitioner/father claimed to be dependent upon deceased---Lower Appellate Court excluded petitioner from receiving any share in Grants--- Validity---Petitioner was employee and after retirement was getting pension and was not dependent on deceased, rather he himself was getting salary as a government employee---Dependent was a person who had no earning and was wholly dependent on income of his son---Mere living in same house did not mean that petitioner was dependent on his late son--- Benefits which had already become receivable by deceased during his life time payable by employer when he was alive or service benefit which employer gave as to an employee and name of family member of employee to receive it after his death, such was service grant and did not become inheritable by all legal heirs of the employee---High Court declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Dr. Nisar Ullah v. Abdul Majeed Soomro 2009 PLC (C.S.) 263; Mst. Samina Naz v. Baby Dua Saeed alias Hiba through her mother and natural guardian 2015 CLC 260; Sher Ali v. Director General Pakistan Rangers PLD 2019 Lah. 474 and Zaheer Abbas v. Pir Asif 2011 CLC 1528 ref.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC (Sharait Appellate Bench) 731 and Mst. Riffat Yasmeen v. Hassan Din 2014 CLC 126 rel.

Dawood Jan for Petitioner.

Atif Faizan and Sadiq Shah, SOC Irrigation Department for Respondent No.1.

2022 C L C 1966

[Balochistan]

Before Rozi Khan Barrech, J

CHANGAZ KHAN----Petitioner

Versus

MIAN KHAN and 2 others----Respondents

Civil Revision No.258 of 2021, decided on 25th October, 2021.

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

----O.XVII, Rr. 2 & 3---Constitution of Pakistan (1973), Art.10A---Suit for pre-emption, declaration, temporary and permanent injunction---Petitioner/plaintiff contended that his right to produce evidence was closed by trial Court; that provisions of O.XVII, R.3 of the Civil Procedure Code were discretionary and not mandatory; that no opportunity to produce evidence was granted to him; that technicalities must not come in the way of substantial justice; and that non-production of witnesses was not intentional as they were out of town---Validity---Trial Court ought to have offered the petitioner an opportunity to testify before the Court while closing his right to adduce remaining evidence which legal obligation had not been fulfilled by not affording such opportunity before closing his evidence---Petitioner had been deprived of his fundamental right of making statement to prove the contents of his case---Trial Court proceeded to decide the case without having any material before it and had acted in its jurisdiction illegally/with material illegality---Nothing in the record shown in the impugned order of Trial Court that matter was adjourned on the previous date of hearing on the request of the petitioner as the Court did not observe that it was the last chance for recording evidence of the petitioner/plaintiff---Valuable right of the petitioner was involved in the suit which could not be allowed to be defeated in law on mere technical point as courts were to avoid technicalities in deciding disputes between the parties and adhere to the merits of the case---Revision petition was accepted and Trial Court was directed to re-adjudicate the matter by granting two opportunities to the petitioner to produce his complete evidence subject to payment of the cost of Rs.30,000/- to the respondent/defendants.

Tanzeem Corporation Gupis/Yasin v. Momin Shah 2016 CLC 1490 rel.

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

----O.XVII, Rr.2 & 3---For proceeding according to the R.3 of O.XVII, Civil Procedure Code, 1908, there must be one of the given elements: (i) the adjournment must have been on the instance of party; (ii) there must be material on record for the Court to pursue/decide the case.

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

----O.XVII, Rr. 2 & 3---Right of a party to produce evidence could not be closed under O.XVII, R.3 of Civil Procedure Code for non-production of evidence where the case on the previous date was not adjourned at the request of such party.

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

----O.XVII, Rr.2 & 3---Pre-requisites for application of---For application of R.3 of O.XVII, Civil Procedure Code certain conditions must co-exist, viz.: (i) adjournment must have been granted to the party at his request; (ii) adjournment had been granted for the purposes mentioned in the Rule 3; (iii) party who had taken the time defaulted in doing the act, for which he took the time from the Court; (iv) party must be present/deemed to be present before the Court; (v) there must be some material on record for decision of the case on merits; and (vi) Court must decide the suit forthwith within a reasonable time.

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

----O.XVII, Rr.2 & 3---Dismissal of suit---Slipshod order bereft of just/legal reasoning passed under R.3 of O.XVII, Civil Procedure Code, dismissing the suit without considering the material on record, would be beyond the scope of powers specified under the said Rule.

Muhammad Ibrahim Lehri for Petitioner.

Muhammad Usman Yousufzai for Respondents Nos.1 to 2.

Allauddin Kakar, Assistant Advocate General (AAG) for Respondent No.3.

2022 C L C 1987

[Balochistan]

Before Rozi Khan Barrech, J

SHER MUHAMMAD----Appellant

Versus

BIBI SAFIA and 4 others----Respondents

F.A.O. No.63 of 2018, decided on 12th January, 2021.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Willful default---Personal bona fide need of landlord---Denial of relationship of landlord and tenant---Rent Controller, jurisdiction of---Scope---Appellant/tenant contended that Rent Controller lacked jurisdiction in the present matter as he was tenant of previous landlord of suit-house and was in its occupancy since long---Held, that though alleged previous landlord appeared as a witness for appellant but failed to establish his claim through any cogent and confidence inspiring evidence---Alleged previous landlord, had filed an independent suit for declaration to establish his claim which was dismissed and had attained finality for not being assailed before the appellate court---Landlord-respondent had produced mutation entries of demised property in his favour whereas the appellant failed to produce any sufficient evidence to justify his possession in any lawful capacity---As the appellant failed to produce any title document to support his possession over the demised property, Rent Controller or the Appellate Court were competent to determine the relationship of landlord and tenant between the parties---Existence of relationship between the parties would imply acceptance of title of landlord; as such whenever tenant denied that title and it was established that he was a tenant, he would forfeit his tenancy having become a trespasser and would be liable to be ejected forthwith---No illegality or infirmity was found in impugned judgment/order of eviction of appellant passed by the Rent Controller---Appeal was dismissed, in circumstances.

Ahmed Ali alias Ali Ahmed v. Nasar-ud-Din and others PLD 2009 SC 453 ref.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Denial of relationship of landlord and tenant---Verbal tenancy agreement---Scope---Tenant/appellant contended that in absence of tenancy agreement or rent receipt, mere mutation entry/ownership was not a determining factor to establish relationship of landlord and tenant between the parties---Held, that contention of the tenant was not relevant as in the eviction application the landlord had specifically given details of oral agreement between the parties---Provisions of the Balochistan Urban Rent Restriction Ordinance, 1959 ( 'the Ordinance 1959') did not contain any condition that agreement of landlord and tenant must be in particular form, it could even be verbal---Agreement mentioned in S.13(2)(i) of the Ordinance 1959, was any type of agreement without any insistence on formalities---Verbal agreement of tenancy had always been accepted as an agreement under the provisions of law---Appeal was dismissed.

Shajar Islam v. Muhammad Siddique PLD 2007 SC 45 ref.

(c) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Willful default---Personal bona fide need of landlord---Denial of relationship of landlord and tenant---Burden of proof---Appellant/tenant contended that he was tenant of previous landlord of suit-house and was in its occupancy since long---Held, that tenant had to stand on his own legs and was required to discharge onus of proof upon him---Appellant denied relationship of landlord and tenant, thus burden of proof heavily shifted on him to prove his title, capacity or locus standi for retaining the demised premises---Appellant though in his written-reply had challenged ownership of demised premises, but failed to prove the same through oral and documentary evidence---If tenant denied relationship of landlord and tenant, tenancy was automatically terminated and he was liable to eviction---Appeal was dismissed.

Mansoor Khan Jadoon for Appellant.

Iqbal Ahmed Kasi for Respondents.

2022 C L C 1999

[Balochistan]

Before Jamal Khan Mandokhail, CJ and Nazeer Ahmed Langove, J

Messrs NISAR AHMAD SHAHWANI AND BROTHERS through Owner and another----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN and another----Respondents

C.P. No.458 of 2020, decided on 13th July, 2020.

Balochistan Public Procurement Authority Act (VIII of 2009)---

----S.27---Balochistan Public Procurement Regulatory Rules, 2014, R.56---Redressal of grievances, mechanism for---Petitioner/qualified contractor who duly deposited call deposit alleged that on his request tender forms were not provided by respondents---Respondents' contention in comments was that petitioners had already approached the Appraisal Committee and had simultaneously filed the constitutional petition without following procedural requirement of 15 days delay---Held, that work order had been issued and work on the schemes had also been commenced---At such stage, it would not be appropriate to make orders for re-initiation of the process which had already been completed in all respects---Petition having been filed without obtaining result of Redressal Committee and Procurement Review Committee was not maintainable---While awarding the work, no glaring illegalities or irregularities had been committed by the official respondents---Constitutional petition was dismissed being non-maintainable, Balochistan Government was directed to evolve an effective/result oriented mechanism of surveillance of all projects/schemes wherein public exchequer was involved.

Habib-ur-Rehman for Petitioner.

Shai Haq Baloch, Additional Advocate General assisted by Shah Muhammad, Executive Engineer, B&R Mastung for Respondents.

2022 C L C 2022

[Balochistan]

Before Rozi Khan Barrech and Muhammad Aamir Nawaz Rana, JJ

FAROOQ AHMED and 2 others----Petitioners

Versus

MUHAMMAD AQIB JAVED and 2 others----Respondents

C.P. No.1149 of 2020, decided on 1st August, 2022.

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

----S.25---Custody of minors---Right of father vis-à-vis maternal grandmother---Scope---Maternal grandmother of minor assailed orders passed by courts below whereby minor's custody was granted to her real father/respondent---Validity---Mother of the minor had died and her natural guardian had sought custody of the minor which was allowed by the courts---Nothing was alleged against the respondent which could qualify or disentitle him from custody of the minor girl---Respondent was educated and did not suffer from any disqualification envisaged by law---Respondent, right from the inception was vigorously pursuing the remedies to obtain the custody of his daughter---Contention of petitioner that respondent had no feelings towards his daughter and he had deliberately left the daughter at the house of the petitioners after the death of his wife had no force---Constitutional petition was dismissed.

Nasir Raza v. Additional District Judge Jhelum 2018 SCMR 590 rel.

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

----S.17---Matters to be considered by the Court in appropriate guardian---Scope---While dealing with the question of custody of minor, the paramount consideration before the Court of law is the welfare of minor and the welfare of minor cannot be jeopardized on any other consideration.

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

----Preamble & S.17---Provisions of Evidence Act, 1872 and Code of Civil Procedure not to apply---Scope---Family Courts, which are creation of Family Courts Act, 1964, have to formulate their own procedure---Provisions of C.P.C. are not applied in the context---Legislature has intentionally kept the provisions of C.P.C. not applicable in the proceedings before the Family Court in order to expedite the proceedings and for early disposal of cases so that the litigants before the Family Court e.g. family members, husband or spouses should not suffer the agony of prolonged litigation.

Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore 2014 SCMR 1365 rel.

Ahsan Rafiq Rana for Petitioners.

2022 C L C 2059

[Balochistan]

Before Nazeer Ahmed Langove, J

AMIR TUFIL----Petitioner

Versus

ABBAS ----Respondent

Civil Revision No.460 of 2019, decided on 17th August, 2022.

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

----Art. 114---Civil Procedure Code (V of 1908), O. XXI, R. 1---Modes of paying money under decree---Estoppel---Scope---Suit for recovery of certain amount against the petitioner and his father was decreed---Respondent filed an application for execution of the judgment and decree against the petitioner and his brothers being successors of their late father---Petitioner also filed an application in the executing court with the prayer that he might be allowed to submit an amount of Rs. 20,000/ per month as monthly installments---Application filed by petitioner was allowed---Once again petitioner filed an application claiming therein that decretal amount ought to have been paid by the petitioner and his brothers i.e. all sons of the judgment-debtor but the execution proceedings were pending only against him---Application filed by petitioner was dismissed---Validity---Held; contention of petitioner that he was not aware of the consequences of agreement and liability imposed upon him in terms of payment of decretal amount for himself and rest of the judgment-debtors, was a lame excuse on petitioner's part for the simple reason that he had not only agreed to make payment of the entire decretal amount before the Court, but had also filed an affidavit in that behalf---Order passed by executing court was based on good grounds of law and facts---Revision petition was dismissed.

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

----O.XXII, R.1---Modes of paying money under decree---Scope---Parties to the decree are at liberty to contract with respect to their rights and obligations under the decree, and in so far as such an agreement does not bring under the decree a liability extraneous to the claim in the suit, it would be an adjustment and this rule provides a complete procedure for recording the adjustment in execution proceedings---Where new rights are created by an agreement, the executing court cannot enforce such rights, as it cannot go beyond the decree and for that purpose a separate suit may lie---Agreement to vary the mode in which the relief is to be realized or the time for such realization is not an adjustment; but where a dispute arises regarding the factum of adjustment, it is to be resolved by the executing court and a separate suit will be barred.

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

----Art.114---Estoppel---Scope---Conduct of a person may be such that he is estopped from litigating the issue all over again---Conduct of a person to operate as estoppel has to involve some kind of express or implied representation, which might have led another person to change his position to his disadvantage by believing the representation made to him as correct---Such is one of the essential elements of estoppel by conduct that the party against whom it is pleaded should have made some representation intended to induce a course of conduct by a party to whom it was made.

Syeda Tehmina Samad for Petitioner.

Zaib-ur-Rahman and Abdul Wahab Barech for Respondents.

2022 C L C 2090

[Balochistan]

Before Abdul Hameed Baloch, J

IZAT ALI----Petitioner

Versus

MUHAMMAD ASHFAQ and others----Respondents

Civil Revision No.173 of 2021, decided on 12th July, 2021.

Civil Procedure Code (V of 1908)---

----O.XLI, R.27, O.XIII, Rr.1 & 2---Production of additional evidence in Appellate Court---Documentary evidence to be produced at first hearing---Effect of non-production of documents---Scope---Provision of R.27 of O. XLI, C.P.C., is to do justice and not to fill up the lacuna of the case---Parties to the suit must be vigilant while contesting the case---If any party is careless, fails to take necessary steps for production of evidence it cannot be permitted under the garb of R. 27 of O.XLI, C.P.C. production of additional evidence---Rule 27 of O.XLI, C.P.C. must be read conjointly with O.XIII, Rr. 1 & 2, C.P.C.---Under O.XIII, R.1, C.P.C., the party must produce documentary evidence on first hearing---Word "shall" is used in the referred rule, meaning thereby that the party is under legal obligation to produce the documentary evidence in its possession or power on which it intend to rely---Under O. XIII, R. 2, C.P.C., the court shall receive the documentary evidence subject to satisfaction of Court or showing good cause for non-production of the same on last hearing, meaning thereby that the Court is empowered to receive the document subsequently subject to showing good cause for non-production of the document---Power under R. 27 of O. XLI, C.P.C., is to be exercised only if the court considers that it would not be able to pronounce judgement without further evidence and the Rule cannot be used to benefit a party which has not been vigilant enough---For production of additional evidence/documentary evidence the party has to establish that the evidence to be produced is unimpeachable in nature and its absence may cause miscarriage of justice, which in spite of due care and diligence could not be produced at trial and such evidence came to existence or knowledge of appellant after completion of trial---Party who wants to produce additional documentary evidence must convince the Court with proof---Additional evidence cannot be allowed to be produced to cover up the weaknesses of a party.

Shtamand v. Zahir Shah 2005 SCMR 348 rel.

Syed Muhammad Shah for Petitioner.

Mian Badar Munir and Muhammad Ayub Tareen, Assistant Advocate General for Official Respondents.

2022 C L C 772

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

IMRAN KHAN----Appellant

Versus

CHAIRMAN ALLOTMENT COMMITTEE, (MINISTER FOR INDUSTRIES), AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD and 2 others---Respondents

Civil Appeal No.231 of 2018, decided on 26th October, 2021.

(On appeal from the judgment of the High Court dated 13-9-2018 in Writ Petition No.801 of 2018).

Azad Jammu and Kashmir Industrial Control and Establishments of Industrial Estates and Artisan Workshop Rules, 1980---

----R.33---Civil Procedure Code (V of 1908), S.11---Appeal---Res judicata, principle of---Scope---Appellant applied for allotment of the industrial land---Matter was placed before the Allotment Committee, however, the Committee refused to make the allotment on the ground that the Committee had no power to allot the land in question---Appellant approached the High Court by filing a writ petition which was dismissed being hit by principle of res judicata---Validity---Appellant in earlier writ petition had sought allotment on the basis of ownership whereas in the present case appellant was seeking allotment on lease without auction---When the subject matter and the parties were same, mere change in the prayed relief did not prevent the attraction of res judicata---Even otherwise, R. 33 of the Azad Jammu and Kashmir Industrial Control and Establishments of Industrial Estates and Artisan Workshop Rules, 1980, did not provide for allotment on lease without auction---Same matter was involved in the previous round of litigation, therefore, the principle of res judicata was fully applicable---Appeal was dismissed.

Sakhi Muhammad and others v. Mst. Safeeda Begum and others 2018 SCR 522 ref.

Sardar Muhammad Khurshid Khan, Advocate for Appellant.

Raja Saadat Ali Kiani, Additional Advocate-General for Respondents.

2022 C L C 1253

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

ALIYA JABEEN----Appellant

Versus

MUHAMMAD ASHFAQ and another----Respondents

Civil Appeal No.184 of 2020, decided on 1st September, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 27-2-2020 in Family Appeals Nos.342, 343 and 344 of 2018).

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

----Ss.2, 5 & Sched.---Cruelty/physical and mental torture---Khula---Suits for dissolution of marriage, recovery of dowry articles, maintenance and dower (house)---Appellant/plaintiff (wife) alleged that defendant/respondent (husband) started torturing her physically/mentally after a month of marriage; that respondent was a psychological patient; that respondent often did not remain in his senses and used to abuse the appellant; that as a result of physical assault, the appellant had lost her ear; that respondent had finally deserted her after giving her beating; that she could not live with appellant within the limits ordained by Allah Almighty; that respondent had never paid any maintenance to appellant since marriage; that dower was not paid; that dowry articles were in possession of respondent---Respondent filed counter suit for restitution of conjugal rights---Trial Court consolidated all the suits and decreed suit for dissolution of marriage on ground of Khula; decreed suit for recovery of dowry articles; and dismissed suit for maintenance and dower for want of proof---Appellant filed appeal in Shariat Appellate Bench of High Court (AJ&K) which was dismissed---Appellant contended that statement of appellant and the maid who was present at the time of physical assault was sufficient for granting decree of dissolution on ground of cruelty; and that appellant claimed dissolution of marriage on ground of cruelty; and that appellant claimed dissolution of marriage on ground of cruelty instead of khula and proved the fact of cruelty---Validity---Courts below reached the conclusion that appellant failed to prove the factum of cruelty---Appellant had categorically stated in plaint that she had developed hatred towards her husband and she would not live with him at any cost rather would prefer death---After such statement it could not be said that dissolution was not claimed on the basis of khula---Respondent had specifically refuted the claim of appellant and stated that she was not ousted from the house by him rather she went out voluntarily, and record revealed the same---Appeal was dismissed accordingly.

(b) Islamic law---

----Maintenance---Faithful wife living with husband---Principle---Husband was duty bound to pay maintenance to wife when she was faithful to husband and lived with her---If wife would voluntarily leave the house of her husband, she was not entitled to maintenance charges.

Barrister Hamayun Nawaz Khan for Appellant.

Sajjad Ahmad Khan for Respondents.