CLC 2023 Judgments

2023 C L C 2152

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ

AKBAR KHAN----Petitioner

Versus

INAYAT AKBER and another----Respondents

Civil Revision No.73 of 2022, decided on 17th March, 2023.

Civil Procedure Code (V of 1908)---

----S.47---Execution proceedings---Objection petition---Executing Court, powers of---Scope---Objection petition filed by the petitioner /judgment-debtor was dismissed by the Executing Court, which order was maintained by the Appellate Court---Validity---Impugned order revealed that the Executing Court had dismissed the objections raised by the petitioner / judgment-debtor on the presumptions that he was violating the terms and conditions of the (consent) decree and was interfering in the property of the respondents / decree-holders, however in said connection, neither the Executing Court had recorded any evidence nor the Court had carried out a site inspection of the disputed property, without which the Executing Court could not come to a conclusion against the petitioner-judgment-debtor---According to the mandate of law, the Court was bound to record reasons for its order on the basis of evidence---Courts below had failed to apply their judicious mind and the impugned orders could not be termed as fair rather were passed in disregard to the provisions of law and had resulted into complete failure of justice---Chief Court set aside impugned orders passed by Executing Court and Appellate Court and remanded the matter to the Executing Court with directions to decide the execution petition afresh after inspection of the disputed site or recording of evidence regarding violation of terms and conditions of the decree---Revision was allowed, in circumstances.

Izhar Ahmed for Petitioner.

Atta Ullah Khan for Respondent.

2023 C L C 188

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

FAYYAZ AHMED ABBASI----Petitioner

Versus

DISTRICT JUDGE MUZAFFARABAD and 5 others----Respondents

Writ Petition No.2152 of 2021, decided on 10th May, 2022.

(a) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----S.14---Eviction of tenant---Auction of articles lying in rented premises---Scope---Tenant assailed order passed by Rent Controller whereby he had ordered for auction of the articles installed in rented premises by the tenant---District Judge dismissed the appeal---Validity---Petitioner had neither paid monthly rent nor had he vacated the rented premises---Time barred appeal against the decision of Rent Controller was dismissed and ultimately execution proceedings were initiated but the tenant despite service had not bothered to appear before the Rent Controller---Consequently, articles lying in the rented premises were confiscated---Decree against the tenant was yet to be satisfied---Remedy by way of writ was an extraordinary remedy, which could only be exercised in extraordinary circumstances which was always subject to conduct of the petitioner---No violation of law had been pointed out in the impugned orders, hence, interference was not warranted---Writ petition was dismissed.

(b) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----S.18---Appeal---Scope---Azad Jammu and Kashmir Rent Restriction Act, 1986, is a special law meant for summary disposal of the dispute that is why only one right of appeal is provided against the order/decision passed by the Rent Controller.

(c) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----S.14---Eviction of tenant---Execution of orders---Scope---If the order of Rent Controller is not complied with the punitive action can be pressed into service.

1994 SCR 235 ref.

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

----Art.44---Writ jurisdiction---Scope---High Court while exercising writ jurisdiction does not sit as Court of appeal upon the order passed by the subordinate Court or Tribunal.

2002 CLC 1186 ref.

Sardar Pervaiz Mughal for Petitioner.

Nemo for Respondents Nos.1 to 5.

2023 C L C 262

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

ABDUL RAZZAQ and another----Appellants

versus

MOHAMMAD SAGHEER and 2 others----Respondents

Civil Appeal No.172 of 2019, decided on 1st April, 2022.

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

----Ss.12, 8 & 54---Suit for specific performance, possession and perpetual injunction---Agreement to sell was executed by some of the defendants---Scope---Appellants filed a suit for specific performance, possession and perpetual injunction against respondents---Trial Court dismissed the suit to the extent of two respondents but decreed the same in terms that the appellants were entitled to receive the earnest amount and other miscellaneous expenses from one of the respondents---Validity---One of the respondents had not signed the agreement---Second respondent had alienated his share through gift deed and the same was not challenged by the appellants---Third respondent had agreed to transfer the land in excess of his share---No effective decree could be passed in favour of the appellants, hence, dismissal of suit to the extent of specific performance of contract and perpetual injunction was also justified from the record of the case---Appeal was dismissed.

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

----S.54---Transfer of title---Principle---One cannot transfer a title better than he himself owns.

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

----S.12---Suit for specific performance---Payment of entire sale consideration as earnest amount---Scope---Where plaintiffs had claimed that entire sale consideration amount was paid and nothing was left to be done in future; High Court observed that it was enjoined upon the plaintiffs to obtain sale deed forthwith and there was no explanation that which factor barred the execution of sale deeds in the light of agreement---Being a defective sale deed the same could not be ordered to be implemented.

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

----S.12---Suit for specific performance---Return of earnest amount---Quantum of damages---Scope---Where plaintiff claimed that in lieu of decree for specific performance he was entitled to be granted consideration amount as per recent market value of the land; High Court observed that the contention was without any substance because the plaintiff had not placed any evidence to prove market value of the land---Furthermore, it was also not mentioned in the agreement that if the sale deed was not executed the plaintiff would be entitled to receive consideration amount as per present market price of the land---Plaintiff could not proceed beyond the contents of the agreement on the basis of which he had filed the suit.

Ahsan ul Haq Shami for Appellants.

Sajjid Hussain Abbasi for Respondents Nos.1 and 2.

2023 C L C 944

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

Messrs NOUMAN CONSTRUCTION COMPANY----Appellant

Versus

Raja PERVAIZ HUSSAIN and 3 others----Respondents

Civil Appeal No.36 of 2020, decided on 9th January, 2023.

Civil Procedure Code (V of 1908)---

----O.VIII, Rr.1 & 10---Written statement---Procedure when party fails to present written statement called for by Court---Scope---Period of filing written statement shall not ordinarily exceed thirty days, however, under O.VIII, R.10, if the written statement is not filed within the time fixed by Court, the Court may pronounce judgment against the party, or pass an appropriate order in relation to the suit as it thinks fit.

Riaz-ul-Haq and others v. Muhammad Asghar and others 2017 SCMR 1841 and Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited, through General Manager, Rawalpindi and another 2020 SCMR 300 rel.

Nemo for Appellant.

Muhammad Naseer Abbasi for Respondent No.1.

2023 C L C 1290

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

GHAYOOR HUSSAIN SHAH and 3 others----Petitioners

Versus

DISTRICT JUDGE BAGH, DISTRICT BAGH, AZAD JAMMU AND KASHMIR and 42 others----Respondents

Writ Petition No.1530 of 2017, decided on 12th April, 2022.

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

----O.VII, R.11 & S.9---West Pakistan Land Revenue Act (XVII of 1967), S.53---Suit for declaratory decree by persons aggrieved by an entry in record---Rejection of plaint---Limitation---Inheritance mutation---Scope---Petitioners assailed the rejection of their plaint---Validity---Petitioners had categorically alleged in the plaint that entries in revenue record had been made by way of fraud and forgery---In order to determine cause of action, the fate of the case was to be looked into through the lens of averments made in the plaint and same would be accepted as correct, that too where fraud was alleged and attributed---Such factum could be resolved only after recording of evidence---Whether the entries and revenue record were based on fraud or otherwise was a question which could be answered only when some evidence was recorded to that effect---Suit filed by the plaintiff was triable by the Trial Court in view of S. 9 of C.P.C. and S.53 of the West Pakistan Land Revenue Act, 1967---Writ petition was accepted and the case was remanded to the Trial Court to proceed from the stage whereof it was discontinued on rejection of the plaint.

Muhammad Younis Arvi v. Muhammad Aslam and 16 others 2012 CLC 1445; Raja Gul Nawaz v. Kamran and 7 others 2016 MLD 1514; Khadim Hussain Khan and 9 others v. Mst. Sarwan Jan and 27 others 1999 MLD 824; Mst. Noor Bibi v. Mst. Mukarma Bibi 2014 YLR 1494; Muhammad Rahim v. Malik Daud Khan 2011 CLC 490; Mst. Bano v. Begum Dilshan 2001 CLC 88 and 2014 MLD 481 ref.

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

----O.VII, R.11---Rejection of plaint---Allegation of fraud---Recording of evidence---Scope---Fraud vitiates all solemn proceedings, therefore, such like stance where fabrication and manipulation of documents is claimed, as per principle of civil dispensation of justice lis is liable to be adjudicated on the basis of preponderance of probability of evidence (produced by the parties) and technical knockout is not warranted.

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

----O.VII, R.11---Rejection of plaint---Plaint cannot be rejected in piecemeal---Scope---While considering application under O.VII, R.11, C.P.C., contents of plaint are to be treated as true on its face value and plaint can only be rejected if from any statement in the plaint the same is found to be barred by any law---Where multiple prayers have been made and even one prayer is maintainable plaint cannot be rejected, particularly in case where rights pertaining to inheritance are involved.

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

----O.VII, R.11---Rejection of plaint---Limitation---Co-sharer---Scope---In case where one of the co-sharers claims share in the ancestral property, plaint cannot be rejected on the question of limitation without proper evidence after framing issues---Ordinary limitation does not apply amongst co-sharers though one of them be even out of possession.

1982 CLC 653 ref.

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

----Preamble---Rules framed in the Code of Civil Procedure are for the advancement of justice and should not so far as possible be allowed to operate so as to defeat the ends of justice.

Syed Sayyad Hussain Gardezi for Petitioners.

2023 C L C 59

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SECRETARY, MINISTRY OF HOUSING AND WORKS and others----Appellants

Versus

AKHTAR HUSSAIN and others----Respondents

R.F.A. No.629 of 2021, decided on 25th August, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Contractual liability---Terms and conditions of contract---Tentative price quoted in a brochure---Respondents/plaintiffs assailed letter issued by defendant Pakistan Housing Authority (PHA) raising extra demand towards final consideration amount of houses in question---Trial Court decreed the suit in favour of respondents / plaintiffs and directed defendant / Authority to hand over possession to respondents / plaintiffs without payment of extra money--- Validity--- Relationship between appellant / PHA and respondents / plaintiffs was contractual in nature---Provisions of brochure issued by PHA and terms and conditions attached with application forms were of binding contractual force on the parties---Court could not alter terms of contract or rewrite contract or create a new contract between the parties---Contract was to be read as a whole and not be dissected---Terms of contract were to be construed strictly without altering nature of the contract---Respondents / plaintiffs were put on notice that prices quoted in brochure were tentative and were liable to be revised--- Respondents / plaintiffs applied for apartments under the Project, entered contractual realm and could not then make a grievance of revised rates--- Appellant / PHA had a responsibility to act fairly and reasonably while fixing price for sale of apartments belonging to it--- Direction given by Trial Court to appellant / PHA to give possession of apartments to respondents / plaintiffs without demanding additional cost had effect of directing PHA to sell them at a price that could result in a loss to it--- Demand of appellant / Authority was not something contrary to contract between parties and was envisaged by terms and conditions of the brochure---High Court set aside judgment and decree passed by Trial Court---Appeal was allowed, in circumstances.

Abdul Waheed v. Additional District Judge PLD 2021 Lah. 453; Pakistan Real Estate Investment and Management Company (Pvt.) Ltd. v. Sky Blue Builders 2021 CLD 518; Pakk U.K. Association (Pvt.) Ltd. v. The Hashemite Kingdom of Jordan 2017 CLC 599; Montage Design Build v. The Republic of Tajikistan 2015 CLD 8; Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited 1997 CLC 302; PAEC Foundation Housing Scheme v. Sharf-ul-Islam 2017 MLD 1023; Bareilly Development Authority v. Ajai Pal Singh AIR 1989 SC 1076 and T.N. Housing Board v. Service Society 2011 (11) SCC 13 ref.

Hazrat Wali Khattak for Appellants.

Raja Muhammad Khan and Ahtesham Aslam Khan for Respondents Nos.1, 5, 11, 17, 24, 25 and 26.

Hafiz Farman Ullah for Respondents Nos.21, 22 and 24.

2023 C L C 110

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Mst. BISMA NOUREEN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and 11 others----Respondents

Writ Petition No.3585 of 2021, decided on 28th March, 2022.

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

----S.114 & O.XLVII, R.1---Review jurisdiction---Scope---Petitioner filed a suit for permanent injunction and recovery of Rs.2.000 billion on account of malicious prosecution---Trial Court rejected the plaint under O.VII, R.11, C.P.C---Petitioner filed an application for review of judgement before Trial Court, which was dismissed---Held, that petitioner did not file any appeal against the judgement, and the same had attained finality---Instead of filing appeal, petitioner filed a review petition before Trial Court which was dismissed---Petitioner was unable to mention some mistake or error apparent on the face of the record, or any sufficient reason for review of the decree passed or order made against her---Appeal was provided under S.96 of the C.P.C against judgment and decree, whereby plaint was rejected under O.VII R.7 of the C.P.C---Petitioner did not file any appeal rather file a review petition---Scope of review is very limited---Review jurisdiction is confined to the patent error or mistake floating on the surface of the record----Petitioner in person had failed to point out as to how impugned order passed by Trial Court was the consequence of error of law or without jurisdiction or in excess of jurisdiction---Constitutional petition was dismissed in limine.

Government of Punjab and others v. Aamir Zahoor ul Haq and others PLD 2016 SC 421; Majid Mahmood v. Muhammad Shafi 2008 SCMR 54; Ali Ahmed v. Muhammad Iqbal 2009 SCMR 394; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049; Sh. Mehdi Hassan v. Province of Punjab through Member Board of Revenue 2007 SCMR 755; PLD 2020 SC 227; 2002 SCMR 1336; 2017 MLD 937; 2017 MLD 1049; 2020 CLC 1273 and 2017 CLC (Note) 192 rel.

(b) Constitution of Pakistan---

----Art.199---Writ of certiorari---Scope---Certiorari was available to quash a decision for an error of law; it can also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice---High Court while issuing a writ of certiorari acts 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; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

2023 C L C 134

[Islamabad]

Before Aamer Farooq, J

JAMMU AND KASHMIR COOPERATIVE HOUSING SOCIETY----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.2413 of 2017, decided on 14th March, 2022.

Islamabad Capital Territory (Administration) Order (P.O. No.18 of 1980)---

----Art.2---Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O. 1 of 1983), Art.21---Wafaqi Mohtasib, jurisdiction of---Islamabad Capital Territory, status of province---Petitioner was a Housing Society who was aggrieved of order passed by Wafaqi Mohtasib (Ombudsman) who treated petitioner as agency and passed an order during pendency of dispute before Cooperative authorities---Plea raised by petitioner was that Wafaqi Mohtasib did not have any jurisdiction in the matter---Validity---Housing societies which were registered under Provincial Law formed subject matter of Province and were not regarded as Federal entity, therefore, petitioner society was not an agency---Lis was already pending before authorities by way of review and jurisdiction of Ombudsman was ousted under Islamabad Capital Territory (Administration) Order, 1980 [as amended]---Nojurisdiction was vested either with Federal Government or Wafaqi Mohtasib to issue direction to any Tribunal or Court---High Court set aside the decision passed by authorities---Constitutional petition was allowed accordingly.

Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 99; Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121 and (W.P. No.2406/2021) Shuja Hussain Kiyani v. Director, FIA Islamabad and others ref.

Abdul Wahid Qureshi for Petitioner No.7.

2023 C L C 207

[Islamabad]

Before Mohsin Akhtar Kayani, J

Miss MEMOONA ZAINAB KAZMI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE (MCAC) ISLAMABAD WEST, ISLAMABAD and 2 others----Respondents

Writ Petition No.1631 of 2022, decided on 20th May, 2022.

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

----Ss.16A & 17---Mediation Council, procedure of---"Good will"---Scope---Automatic increase of rent---Scope---Respondent/landlord filed eviction application alleging that lease agreement had expired; that petitioner/tenant had defaulted in payment of rent on due dates; that he handed over post-dated cheques against the rent which were dishonored due to insufficient balance---Eviction petition was allowed on ground of expiry of lease, whereas the petitioner's appeal was dismissed by appellate Court on ground of default in payment of tentative rent---Petitioner contended that the first Appellate Court had not considered the rate of monthly rent though the complete rent had already been deposited; that every case had to be referred to the Mediation Council for settlement of the dispute amongst the landlord and tenant and that eviction order was passed without adverting to the said procedure which was illegal/liable to be set aside---Held, that the lease period was already expired which fact had not been denied by the petitioner before High Court---Term "goodwill" was quite alien in case of lease agreement of a residential building where tenant was neither businessman nor the building was commercial specified for running some business---Section 10 of the Ordinance, 2001, provided an automatic increase at the end of every one year of tenancy by 10% of the rent---Petitioner was obliged to deposit the rent with enhanced rate notwithstanding passing of any order by the Rent Controller or on the claim of the landlord---Petitioner was deemed to be a defaulter due to the fact that he failed to pay the amount of rent automatically enhanced after the lapse of one year of tenancy agreement within stipulated period---Record showed that an FIR under S.489-F, Penal Code, 1860 had been lodged against the petitioner by the landlord for dishonestly issuing cheque on account of the rent, in which case the compromise took place between the parties and the petitioner had paid a sum---Said aspect would clearly demonstrate that the petitioner tenant was in default on different occasions and such aspect had not been denied by the petitioner---Recording of evidence was not requirement of law when admitted facts in the inquiry clarified the grounds of eviction under S.17 of the Ordinance, 2001---Constitutional petition was dismissed accordingly.

Waqar Zafar Bakhtawari v. Haji Mazhar Hussain Shah PLD 2018 SC 81; Mumtaz Begum v. Wazir Begum PLD 1997 Lah. 99; Sanober Khan v. Muhammad Younis 1997 CLC 1658 Lahore; Utility Store Corporation of Pakistan (Pvt.) Ltd. v. Abdul Mahbood Khan 2000 CLC 1306 Lahore and Shuja Ahmad v. Additional District Judge and others 2019 MLD 590 Islamabad rel.

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

----S.17---Tenancy agreement, expiry of---Scope---Once the lease period was expired, there was no hindrance to proceed further by the Rent Controller in the eviction proceedings, except by passing the eviction order forthwith, unless the tenant prima facie produces any documentary evidence qua extension of lease period given by the landlord.

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

----Preamble---Constitution of Pakistan, Art. 38(A)---Alternate dispute resolution, mandatory nature of---Scope---Newly inserted provision of S.16A of the Islamabad Rent Restriction Ordinance, 2001, provides an alternative concept of mediation---Legislative intent had been expressed by using the word "shall", which conveyed a mandatory meaning in a specific direction to the Rent Controller to refer every case to the Mediation Council by all means in terms of S.16A---Statement of Objects/Reasons disclosed the emphasis upon Art.38(A) of the Constitution, which dealt with the principle of the State Policy , as to ensure equitable adjustment of rights between landlord and tenant.

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

----S.16A---Eviction---Tenant taking defense of goodwill---Terms "goodwill" and "pagri"---Definition and legal value of----Concept of goodwill had not been explained in the Islamabad Rent Restriction Ordinance, 2001 or the Islamabad Rent Restriction (Amendment) Act, 2021---Goodwill of a business was something such as its good reputation, which would increase the value of the business---Such was a business reputation/patronage/other intangible assets, which were considered when appraising the business, especially for purchase; the ability to earn income in excess of the income that would be expected from the business view as a mere collection of assets---Term "good will" had been equalized by the superior Courts with the term "Pagri" which was not recognized by law---Payment of Pagri not forming terms/conditions of tenancy and being contrary to public policy and any supra contractual arrangement, which negated tenancy could not affect maintainability of eviction proceedings---Landlord was not debarred from seeking eviction of the tenant despite receiving the goodwill or Pagri.

Collins Dictionary; Black's Law Dictionary, 8th Edition; Nargis Bano v. Rehman Bhai 1993 CLC 266; Saeed Muhammad v. Mehrullah PLD 1996 Quetta 48; Sheikh Muhammad Yousaf v. District Judge and others 1987 SCMR 307; M. Kassam Bros. v. Sharabat Khan 1992 MLD 1225 and Azizur Rehman v. Pervaiz Shah 1997 SCMR 1819 rel.

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

----Ss.5, 10, 16, 16A & 17---Tenancy agreement---Directions to the Rent Controllers and Mediation Council for adjudication upon rent disputes amongst the landlord and tenant:

Following are the directions to Rent Controllers and mediation council.

a) Every lease agreement should be registered compulsorily in terms of Section 5 of the IRRO, 2001 by the Rent Controller within 30 days of its execution and presentation by the landlord before the Controller, however in case any lease agreement has not been registered in terms of subsection (2) of Section 5 of IRRO, 2001 and proceedings under the law are initiated before the Rent Controller, he shall first pass an order for registration of the tenancy under the law and then proceed further within the period of three days.

b) The increase in rent of residential and non-residential building in terms of Section 10 of the IRRO, 2001 is automatic on yearly basis with 10% increase of the rent already being paid by the tenant. Such provision has to be applied notwithstanding the orders passed by the Rent Controller, rather it is the obligation of the tenant to pay enhanced rate on due date under the terms of agreement, failing which it has to be considered as a default and violation of the terms of lease agreement as well as of the law.

c) The Rent Controller shall refer every dispute between landlord and tenant to the Mediation Council in terms of Section 16A(2) of the IRRO, 2001, however the Mediation Council after receiving the reference shall proceed accordingly in terms of subsections 3, 4 and 5 of Section 16A, within the stipulated timeline envisaged thereunder, as such, in case any of the party is not in agreement with the mediation procedure or process, or refuses to participate in the mediation, the mediation proceedings would become ineffective and considered to be in failure, thereafter the matter shall continue with the Rent Controller from the stage where it was being suspended.

d) The landlord or tenant, as the case may be, has every authority to submit his/her refusal to agree with the Mediation Council mechanism provided in Section 16A on the first date of hearing after the reference of the issue by the Rent Controller to the Mediation Council as the mediation process is not binding upon the parties to compulsorily enter into a settlement, rather it is by a choice.

e) The Rent Controllers shall not refer those cases to Mediation Council under Section 16A where the default of rent is apparent or where the order for deposit of rent in terms of Section 17(8) of IRRO, 2001 has not been complied with or where lease agreement has already been expired.

f) Before transmitting the reference to Mediation Council by the Rent Controller, the Rent Controller should have passed the order for deposit of tentative rent as mediation procedure requires a completion of 30 days' time in terms of subsection (5) of Section 16A of the Ordinance.

g) The Mediation Council in no case can extend time period provided under the law for the purpose of mediation between the landlord and tenant, as such, in case the mediation proceedings are not concluded within the timeline referred above, a joint request of both the parties may be made to the Rent Controller for extension of time, otherwise the mediation proceedings will be considered non-conclusive and the Rent Controller shall proceed accordingly.

h) The Rent Controller while referring the matter to the Mediation Council in terms of Section 16A of the Ordinance may adjourn the matter only for one month and shall not disregard the provision of Section 25(3) of IRRO, 2001 in any manner and the guidelines provided in 2017 MLD 53 Islamabad (Muhammad Akbar Chohan v. Rent Controller, Islamabad)

i) The Rent Controller while referring the matter to Mediation Council under Section 16A of the Ordinance, transmit copy of eviction petition along with attached documents, including the lease agreement, if any, and shall not transmit the original record of the tribunal in any manner.

j) The President Chamber of Commerce, or any other office holder, who has been nominated by the former to act as a convener under Section 16A(1)(a) of the IRRO, 2001 is under obligation to arrange the mediation within its office in a systematic order while maintaining the register with details of representatives of tenant and landlord as well as of the proceedings thereof. The convener may call both the parties through telephone or any other mode recognized under the law and shall abide the legislative intent to mediate within the timeline prescribed under the law.

k) The mediation Council or the convener is under obligation to convey the results of mediation in a precise manner to the learned Rent Controller, who referred the matter to the Council, with his own signature and seal or may issue copy of the mediation to relevant parties for the official use before the learned Rent Controller.

l) The Federal Government shall notify the rules in the official gazette qua the Mediation Council for effective settlement of the dispute amongst the landlord and tenant, especially the tenant of the commercial buildings, but not in conflict with the mandate provided in Section 16A of the IRRO, 2001.

2023 C L C 267

[Islamabad]

Before Arbab Muhammad Tahir, J

ANSER MAHMOOD CHUGHTAI----Appellant

Versus

SHAHZADI FATIMA ALI----Respondent

R.F.A. No.24 of 2022, decided on 29th July, 2022.

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

----O.VII, R.11---Rejection of plaint---Pre-requisite---Admitted documents---Status---Court should examine statements in plaint prior to taking a decision---Contents of written statement are not to be taken into consideration nor to put the same in juxtaposition with that of plaint in order to gauge correctness or otherwise of anyone of the same---Such course can commence after it is determined that the suit is proceedable in normal course and held to undergo process of recording of evidence---Scope of jurisdiction made widen under the third category where if averments contained in plaint are to be rejected, the same course can be adopted on the basis of documents appended with the plaint or the one that retains status of "admitted documents" with an exception that the position beyond any doubt can also be taken into consideration in exercise of judicial power of appraisal of the plaint--- While dealing with an application under O.VII, R.11, C.P.C, Court can take into consideration plaint and documents annexed therewith besides admitted documents or admitted position.

(b) Constitution of Pakistan---

----Arts.4 & 9---Malicious prosecution---Effect---To subject a person to malicious prosecution not only causes interference in the right to liberty guaranteed under Art. 9 of the Constitution but also the right to dignity and to be treated in accordance with law articulated under Arts.4 & 9 of the Constitution--- Ultimate reasons that prompted a person to initiate legal action under malicious prosecution are having sustained financial hardship, litigation cost, mental anguish besides loss to reputation on account of false accusation.

Abdul Khameed v. Muhammad Shabbir and others PLD 2021 Isl. 405 rel.

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

----O.VII, R.11---Suit for malicious prosecution---Pre-conditions---Rejection of plaint---Plaintiff was aggrieved of order passed by Trial Court rejecting his plaint under O.VII, R.11, C.P.C.---Validity---Test to find an action for damages for malicious prosecution was based upon criminal proceedings---Test was not whether criminal proceedings instituted on false and frivolous allegation had reached the court rather would be that such proceedings had reached a stage at which damage to plaintiff resulted---High Court set-aside judgment and decree passed against plaintiff and remanded the case to Trial Court to decide the suit afresh after recording evidence of parties in accordance with law on the subject---Appeal was allowed accordingly.

PLD 2013 SC 255; PLD 2006 SC 432; 2021 MLD 354; PLD 2021 Sindh 388; 2021 MLD 683; AIR 1926 PC 46; 1995 CLC 1134; PLD 2019 Lah. 407; 2020 CLC 1331; 2016 MLD 139; 2017 MLD 666; 2013 CLC 456; 2021 CLC 1008; 2020 CLC 792; PLD 2013 Lah. 170 and Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247 ref.

Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 rel.

Rana Abid Nazir for Appellant.

Ms. Ambreen Nawaz Ch. for Respondent.

2023 C L C 304

[Islamabad]

Before Mohsin Akhtar Kayani, J

Mrs. SHAMSHAD BUTT----Petitioner

Versus

DEPUTY COMMISSIONER C.D.A., ISLAMABAD and 3 others----Respondents

Writ Petition No.1732 of 2019, decided on 24th June, 2022.

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

----S.49-C---Constitution of Pakistan, Art. 199---Constitutional petition---Non-conforming of use of building---Penalty, imposition of---Petitioner was owner of building in question and was aggrieved of penalty imposed on her for use of building by her lessee other than residential purpose---Validity---Petitioner landlady did not lease out the premises on commercial basis---Any such non-conforming of use was the sole act of lessee---No direct evidence was available on record and even Capital Development Authority (CDA) did not demonstrate as to why they had not taken action against subject premises by sealing the same by issuing notice to subject occupant--- Such a pick and choose exercise by CDA authorities was in violation of principle of fairness--- Orders passed by Deputy Commissioner CDA or by Estate Management, CDA were in excess of jurisdiction and passed in violation of principle of natural justice---High Court in exercise of remedial jurisdiction could not review findings of case rendered by lower forum---Factual aspect of the matter was not appreciated by Deputy Commissioner as well as CDA authorities under CDA By-laws---Authorities violated fundamental rights of petitioner and imposed a fine which was not proved under the principle of due process of law and fair trial---Findings of authorities are based upon no evidence---Orders passed by authorities could not be termed as fair rather passed in disregard to statutory provisions of law and resulted into complete failure of justice---High Court set aside orders passed by authorities and remanded the matter to Deputy Commissioner, CDA for decision afresh---Constitutional petition was allowed accordingly.

Mst. Amina v. Abdul Oadir and others 1984 SCMR 993; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Ahmad Dar v. Mian Abdul Majid 1979 CLC 732; Muhammad Iqbal v. Sardar Khan 2012 MLD 1487; Sheikh Wajaht Ali v. Government of Khyber Pakhtunkhwa, through Secretary Industries 2013 YLR 2132; Basant Singh and another v. Roman Catholic Mission AIR 2002 [SC] 3557; Pakistan State Oil Company Limited v. Sikandar A. Karim 2005 CLC 3; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; WAPDA v. Saeed Baddar PLD 1991 [SC] 660; Girdhari Lal B. Bhattia v. Saeed Ahmad Kazi 1986 MLD 396; Saiyyid Abul A'la Maudoodi v. The Government of West Pakistan PLD 1964 [SC] 673; Muhammad Khalid Javed and others v. Lahore Development Authority and others PLD 2021 Lah. 211; Muhammad Nawazish Ali v. Family Judge 2021 CLC 1841; Raja Zahoor Ahmad v. Capital Development Authority PLD 2022 Isl. 22; (Col. (R) Javed Agha v. Arshad Mahmud and 4 others 2017 MLD 627; Javed Agha v. Arshad Mahmud and others 2015 YLR 998; Shuja Ahmed v. Additional District Judge (West), Islamabad 2019 MLD 590; Ghulam Ahmad Qureshi v. Commissioner CDA, Islamabad and others 2021 CLC 1014;Bashir Ahmed v. Deputy Commissioner Islamabad 2017 CLC 143; M.Z. International v. The Assistant Commissioner Inland Revenue Audit-5 2016 PTD 358; Farzad Raza Naqvi v. Muhammad Din 2004 SMCR 400; Edulji Dinshaw Limited v. Income Tax Officer PLD 1990 SC 399 and Messrs Labels Franchise v. Capital Development Authority 2017 CLC 150 rel.

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

----S.49-C---Non-conforming use of building---Determination---Duties of Building Control Inspector---Report of Inspector---Necessary ingredients---Building Control Inspector who visits building / office / house, which is under non-conforming use, has to submit a written report clearly stating therein name, date, time when the building was visited as well as reasons on the basis of which he reaches to the conclusion that building is under non-conforming use---Report must contain timeline of non-conforming use tentatively to assess quantum of fine by Deputy Commissioner, Capital Development Authority (CDA) till removal of non-conforming use---Any visiting card, sign board, pictures, video evidences, letter head correspondence, which can be made basis of opinion of non-conforming use of the building may also be made part of the report including but not limited to statement of individuals who are occupant in the building, if any.

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

----S.49-C---Non-conforming use of building---Deputy Commissioner, duties and powers---Deputy Commissioner, Capital Development Authority (CDA) on the basis of such report may initiate proceedings in terms of section 49-C of Capital Development Authority Ordinance, 1960 read with relevant clauses of Islamabad Residential Sector Zoning (Building Control) Regulations, 2005, and issue notice to the occupant/allottee/owner accordingly---Deputy Commissioner, CDA after issuing notice to the occupant at the first instance, if comes to conclusion that building is continuously under non-conforming use and he has given due opportunity of hearing to the occupant, who whether joins proceedings or otherwise, may pass an-interim order of sealing of the premises by all means without final verdict---In case, occupant undertakes to remove subject non-conforming use within reasonable time, Deputy Commissioner, CDA may on undertaking give such opportunity for removal of the non-conforming use for a limited period, which can be verified after specified time line---In case, occupant has not removed property from non-conforming use, Deputy Commissioner, CDA may pass a final order of imposing penalty and sealing of premises---Deputy Commissioner, CDA issues notice to allottee along with report of Building Control Inspector conveying him non-conforming use of property---Deputy Commissioner, CDA has to ensure proper service of notice to occupant by way of Registered Post and also by Special Messenger and may even affix notice upon subject premises before taking action---Deputy Commissioner, CDA has to take report of Building Control Section, CDA and may put the same or confront to occupant or allottee for his input or rebuttal by way of affidavit and may also extend an opportunity to occupant/landlord/allottee to rebut the same---Deputy Commissioner, CDA while imposing fine upon occupant has to pass speaking order justifying his penal action against occupant/allottee.

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

----S.49-C---Non-conforming use of building---Cancellation of allotment---Estate Management Section of CDA---Duties and functions---Estate Management Section of Capital Development Authority (CDA) can only cancel allotment or conveyance deed of such premises under non-conforming use, if Deputy Commissioner, CDA reaches to the conclusion that owner is guilty/liable for non-conforming use under the law and even persistently using building in a similar manner, despite passing of the order---Estate Management Section, CDA has to independently issue a notice to allottee before cancellation of allotment on the basis of order of Deputy Commissioner, CDA if no plausible explanation has been rendered by allottee within prescribed time referred in the notice.

(e) Islamabad Sector Zoning Building Regulation, 2005---

----Regln.2.17.5---Non-conforming use of building---Sealing of premises---Procedure---In terms of Regln. 2.17.5 of Islamabad Sector Zoning Building Regulation 2005, building under non-conforming use may be sealed after expiry of 15 days of first notice issued by Building Control Directorate by Director Enforcement, CDA or any person empowered by the Authority in presence of Magistrate of Capital Development Authority (CDA) upon issuance of order for sealing of said premises by Director Building Control CDA.

Sardar Shabbir Hussain for Petitioner.

Ch. Kamil Hayat for Respondents Nos.1 to 3.

Respondent No.4 Ex-parte.

2023 C L C 350

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

NASIR MEHMOOD----Petitioner

Versus

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

Writ Petition No.1358 of 2021, decided on 2nd June, 2022.

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

----Ss.5, Sched. & 10---Suit for dissolution of marriage---Return of dower---Scope---Petitioner/husband assailed the order passed by courts below whereby respondent/wife was allowed to retain half of the dower and return the remaining half as consideration for 'khula'---Validity---Wife had admitted during the course of cross-examination that she herself had left her husband's house and that she had turned down the efforts of the husband and the mother for reconciliation---Reliance of Family Court on the 'reciprocal benefits' was an excessive exercise of jurisdiction bordering on largesse uncalled for in the circumstances of the case---Constitutional petition was allowed and the wife was directed to return the entire dower to the husband.

Tuharat Firdos v. Imtiaz Khan 2019 CLC 1562 and Aurangzeb v. Mst. Gulnaz PLD 2006 Kar. 563 distinguished.

Muhammad Saeed v. Additional District Judge and others 2019 CLC 1008 and Muhammad Kamran v. Mst. Samera Majeed and others 2018 YLR 1251 ref.

Shagufta Bibi v. Judge Family Court, Mailsi and others 2013 MLD 487 and Khurram Naseer v. Judge Family Court (West) and others 2016 MLD 1183 rel.

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

----S.10(4)---Khula---Return of dower---Scope---Mandatory for the wife to return the dower on the basis of 'khula' under S.10(4) of the Family Courts Act, 1964.

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

----S.5, Sched.---Suit for return of dowry articles---Failure to produce receipts of purchase---Scope---Dowry articles ordered to be returned by the Family Court is not to be interfered with by questioning the failure of the wife to produce receipts of purchase or a later objection of the husband to the dowery list.

Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393 rel.

Ch. Muhammad Shafqaat for Petitioner.

Muhammad Waqas Malik for Respondent No.3.

2023 C L C 421

[Islamabad]

Before Arbab Muhammad Tahir, J

USMAN SAAD----Petitioner

Versus

The ADDITIONAL DISTRICT JUDGE, ISLAMABAD (WEST) and 5 others----Respondents

Writ Petition No.1572 of 2022, decided on 12th September, 2022.

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

----O.XVI, R.1---Constitution of Pakistan, Art.10-A---Summons to attend to give evidence or produce documents---Scope---Fair trial---Scope---Petitioner through a civil suit assailed his release from contractual employment---Reason of petitioner's expulsion from the service as asserted by respondents was ill-behaviour, which was being hotly contested on the basis of a report, authored by the proposed witness, who statedly medically examined the petitioner and rendered her opinion with regard to mental health of the petitioner---Trial Court dismissed the petitioner's application for summoning the Psychologist as a witness for having failed to mention her name in the list of witnesses and for not furnishing a good cause---Validity---Law favoured adjudication on merits instead of technical knockout---When the respondents were relying upon the psychological assessment report authored by the Psychologist, it did not appeal to the reason as why the petitioner was being restrained to advance his case by producing the proposed witness to substantiate her medical assessment report---Such treatment, on the face of it, was against the spirit of natural justice and also offensive to right of fair trial envisaged in Art.10-A of the Constitution---Writ petition was allowed, impugned order was set aside and the petitioner was allowed to produce the witness himself and at his own cost, with right of cross-examination to the respondents.

Amjad Khan v. Muhammad Irshad (deceased) through LRs 2020 SCMR 2155; 2016 SCMR 1976; PLD 2013 SC 255; 2017 CLC 119; 2019 CLC 183; 2021 MLD 1395 and 2018 CLC 1937 ref.

President ZTBL Head office Islamabad v. Kishwar Khan and others 2022 SCMR 1598 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Held, High Court must not exercise constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffers from jurisdictional, factual or legal error---However, such interference would be justified incases where the impugned order had been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with law.

Mst. Mobeen Fatima v. Muhammad Yameen PLD 2006 SC 2014 and Nadira Shahzad v. Mubashar Ahmad 1995 SCMR 1419 ref.

Furqan Ahmad Mirza for Petitioner.

Shafiq-ur-Rehman Dab for Respondents.

2023 C L C 443

[Islamabad]

Before Babar Sattar, J

Messrs MUHAMMAD HANIF & CO. through Authorized representative and another----Petitioners

Versus

CHIEF ENGINEER NORTH, PAK PWD and 3 others----Respondents

Writ Petition No.2444 of 2021, decided on 16th November, 2022.

(a) Public Procurement Rules, 2004---

----Rr.4, 10, 13, 213, 28, 29, 30, 35 & 48---Mis-procurement---Evaluation reports, failure to announce---Petitioners assailed award to tender to respondent on the plea that authorities did not announce their evaluation reports---Contention of the respondents was that once procurement process culminated in contract, such contract could not be set aside even if Court had come to the conclusion that the contract was a product of mis-procurement---Validity---Work orders were issued by Authorities without waiting for a period of fifteen days after issuance of final evaluation report---Such work orders were issued merely four days after opening of financial bids without even informing all other bidders that their bids had been rejected---Petitioners did not receive any correspondence from authorities stating that their bids had been rejected---Procurement process was carried out by authorities in breach of Rr. 4, 10, 13, 23, 28, 29, 30, 35 and 48 of Public Procurement Rules, 2004---No sanctity attached to a contract, which was product of illegal procurement process---Award of contracts to respondents were in breach of Public Procurement Rules, 2004, in disregard of principles of transparency---Such procurement process was run in a manner so as to deny petitioners and other bidders any opportunity to contest their disqualification during technical evaluation process---High Court declared the award of contracts to respondents to be illegal---High Court directed Federal Government to initiate disciplinary proceedings against all individuals who oversaw procurement process starting from release of tender documents to acceptance of bid and issuance of work orders and contracts to respondents for undertaking process in breach of mandatory conditions of Public Procurement Rules, 2004---Constitutional petition was allowed accordingly.

M/s. Riaz & Sons through its Managing Director v. Chief Engineer (North) Pak. PWD, Islamabad and others (W.P No.1651/2021) and M/s Shabbir Ahmad v. Pakistan Public Works Department, Islamabad, through its Director General and others (Writ Petition No.52 of 2022) ref.

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

----Preamble---Object, purpose and scope---Object of Public Procurement Regulatory Authority Ordinance, 2002, was to improve transparency, accountability and quality of public procurement--- Principles of fairness, transparency, efficiency and economy lie at the heart of Public Procurement Regulatory Authority framework---Transparency requires clearly defined procurement parameters and prohibits opaqueness or secrecy in the process during bidding and evaluation stages of the process, which create opportunities for corruption and manipulation to confer benefits on favorites---Public Procurement Regulatory Authority framework requires that all prospective bidders should have equal and similar access to information related to tender and an equal opportunity to compete and submit their bids---Process has to be run in a manner that engenders maximum competition as opposed to favoring a particular bidder or class of bidders---Public Procurement Regulatory Authority Ordinance, 2002 and Public Procurement Rules, 2004 are inspired by recognition of restraints that apply to state authority vested in public officials while dealing with state largesse---In contrast to the role and actions of private citizens, state authority vested in public office holders is of a fiduciary nature, which is to be exercised as a trust for the benefit of citizens and not in an arbitrary manner.

Ramana Dayaram Shetty v. The International Airport Authority AIR 1979 SC 1628; Alleged Corruption in Rental Power Plants 2012 SCMR 773; Reliance Energy Limited v. Maharashtara State Road Development Corporation (2007) 8 SCC 1; Raja Mujahid Muzaffar v. Federation of Pakistan 2012 SCMR 1651; Molana Abdul Haq Baloch v. Government of Balochistan PLD 2013 SC 641; Messrs MIA Corporation (Pvt.) Ltd. v. Pakistan PWD PLD 2017 Isl. 29; Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283; Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. 1998 CLC 1890; Airport Support Services v. The Airport Manager, Quaid-i-Azam International Airport, Karachi 1998 SCMR 2268; Ittehad Cargo Service v. Syed Tasneem Hussain Naqvi PLD 2001 SC 116; Kay Bee International (Pvt.) Ltd. v. Secretary to the Government of Punjab PLD 2002 SC 1074 and Iqtedar Ali Khan v. Department of Mines and Minerals PLD 2004 SC 773 rel.

Barrister M. Saad Buttar, Tahir Hussain Anchan and Raja Abdul Qadeer Janjua for Petitioners.

Barrister Yousaf Khosa, Malik Omair Saleem and Shahzeb Jaffar, Raja Khalid Mehmood Khan, DAG and M. Khurshid, D.D. (legal) PPRA for Respondents.

2023 C L C 493

[Islamabad]

Before Babar Sattar, J

NATIONAL HIGHWAY AUTHORITY (NHA) through Chairman----Appellant

Versus

Messrs SARDAR MUHAMMAD ASHRAF D BALOCH (PVT.) LTD. and another----Respondents

F.A.O. No.76 of 2022, decided on 11th January, 2023.

Arbitration Act (X of 1940)---

----S.30---Arbitrator, powers of---Two possible interpretations of a clause in the contract---Where an Arbitrator interprets a certain clause in a reasoned manner, just because a Court of law might have reached a different interpretation of the provision of the contract is not a basis for the Court to interfere with the decision of the Arbitrator; it is for the Arbitrator to interpret provisions of the Contract to determine a dispute between the parties that they agreed to have their disputes and claims adjudicated---Neither the Trial Court nor the High Court can sit in judgment over the interpretation of a contractual provision rendered by the Arbitrator while determining whether or not the Arbitrator had misconducted himself.

Gerry's International Private Limited v. Aeroflot Russian International Airlines 2018 SCMR 662 ref.

Barrister Muhammad Hassan Alam for Appellant.

2023 C L C 588

[Islamabad]

Before Athar Minallah, CJ

SAMI ULLAH ABRAHAM----Petitioner

Versus

FAWAD AHMAD and 8 others----Respondents

Writ Petition No.3045 of 2019, heard on 23rd February, 2022.

Constitution of Pakistan---

----Arts.62(1)(f) & 199---Constitutional petition---Disqualification---Accountability in Majlis-e-Shoora (Parliament)---Disputed questions of fact---Petitioners sought disqualification of respondents who were elected Members of National Assembly---Validity---Power vested in High Court under Art. 199 of the Constitution was extraordinary and discretionary---Exercise of such power could be refused when High Court was satisfied that it would not be in public interest to do so---High Court declined to exercise its discretion under Art. 199 of the Constitution as petitioners belonged to political party that had considerable representation in Majlis-e-Shoora (Parliament)---Instead of involving judicial branch of State, petitioners had adequate remedy to evolve a mechanism of accountability in Majlis-e-Shoora (Parliament)---Supremacy of the Constitution and Majlis-e-Shoora (Parliament) could only be upheld if chosen representatives resolve to settle their disputes without involving judicial branch---Supremacy of Majlis-e-Shoora (Parliament) was undermined when controversies such as disqualification of chosen representatives were brought before High Court---High Court declined to exercise its extraordinary jurisdiction in favour of petitioners---Constitutional petition was dismissed in circumstances.

Muhammad Usman Dar v. Khawaja Mohammad Asif and others PLD 2018 Isl. 214; Khawaja Muhammad Asif v. Muhammad Usman Dar and others 2018 SCMR 2128 and Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others PLD 2015 SC 275 ref.

Muhammad Faisal Chaudhary for Petitioner (in W.P. No.420 of 2019).

Nemo for remaining Petitioners.

Syed Muhammad Tayyab, DAG and Imran Farooq, A.A.G. for Respondent.

Intazar Hussain Panjutha, Muhammad Faisal Chaudhary, Syed Ishfaq Hussain Naqvi, Malik Itaat Hussain Awan and Ali Ijaz Buttar for Respondents.

Zaigham Anees, Law Officer ECP.

2023 C L C 638

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ALLAMA IQBAL OPEN UNIVERSITY (AIOU) through Registrar----Petitioner

Versus

FEDERATION OF PAKISTAN through Director General Legal for President of Pakistan and 2 others----Respondents

Writ Petition No.1086 of 2021, decided on 22nd November, 2022.

(a) Jurisdiction---

----Assumption of---Principle---Where mandatory condition for exercise of jurisdiction by Court or Tribunal is not fulfilled, assumption of jurisdiction in such a matter is liable to be declared as without lawful authority--- Defect of jurisdiction goes to root of the matter and strikes at the very authority of Court or Tribunal to pass an order and the same cannot be cured by the consent or waiver of parties.

Executive District Officer, Schools and Literacy v. Qamar Dost Khan 2006 SCMR 1630; Mansab Ali v. Amir PLD 1971 SC 124 and Muhammad Sadiq v. Pakistan, through Collector, Rawalpindi 1988 CLC 123 rel.

(b) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art.10(3)---Federal Ombudsmen Institutional Reforms Act (XIV of 2013), S.13(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Review jurisdiction, exercise of---Limitation---Petitioner University was aggrieved of order passed by Federal Ombudsman in exercise of review jurisdiction which was maintained by appellate authority---Plea raised by petitioner University was that complaint filed by respondent was barred by limitation---Validity---Obligatory on Ombudsman to have first determined whether respondent had filed his complaint within limitation period provided in Art. 10(3) of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order,1983, regardless of whether or not petitioner University had taken an objection as to the complaint was time barred---Failure on the part of Ombudsman to do so rendered his order in question unsustainable---Ombudsman vide his earlier order closed investigation in complaint filed by respondent, specifically referring to Regln. 23(1)(b) of Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2013, which provided that investigation of complaint with approval of Mohtasib, was closed, when it was found that the agency was not at fault, as a particular procedure was to be adopted or formalities were to be followed by the complainant for redressal of his grievances---Respondent filed application for review of such order---Ombudsman in his subsequent order referred to the fact that earlier investigation in respondent's complaint was closed but did not give reasons as to why based on the same set of facts and documents he felt obliged to come to a conclusion contrary to the one taken earlier---Ombudsman in fact reheard the case in review jurisdiction and came to the conclusion that petitioner University had indulged in maladministration---Ombudsman on both the occasions was the same---Power of review was available to Ombudsman but it was not to be exercised in order to give the complainant another shot at the case---High Court set aside orders passed against petitioner University and matter was remanded to Ombudsman for decision afresh on review application of respondent---Constitutional petition was allowed accordingly.

The Bank of Punjab v. Messrs Super Trunk House PLD 2022 Lah. 564; Muhammad Khan Kurd v. Arbab Muhammad Hashim PLD 2020 Bal. 38; Nazia Fazal v. Pakistan International Airlines Corporation 2020 PLC 233; Muhammad Iqbal v. Muhammad Ahmed Ramzani 2014 CLC 1392; Central Exchange Bank Ltd v. Zaitoon Begum PLD 1968 SC 83; Mst. Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Nazir Begum v. Qamarunnissa 1982 CLC 2271; Capital Development Authority v. Zahid Iqbal PLD 2004 SC 99 and Lal Din Masih v. Sakina Jan 1985 SCMR 1972 rel.

(c) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----S.10(3)---Time barred complaint---Phrase "special circumstances which make it property for him to do so"---Scope---Ombudsman can entertain a time barred complaint and conduct an investigation but law requires him to state "special circumstances which make it proper for him to do so."

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

----S.128---Liability of guarantor---Word "co-extensive"---Scope---Liability of guarantor under S.128 of Contract Act, 1872, is co-extensive with that of principal debtor---Guarantor cannot be made to pay for principal debtor's liability which does not arise from contract of guarantee---Word "co-extensive" in S.128 of Contract Act, 1872 denotes extent of liability and can relate only to quantum of principal debt---Guarantor is liable to creditor for principal debtor's liability under an agreement or instrument referred to in the contract of guarantee.

United Bank Limited v. Pakistan Industrial Credit and Investment Corporation Ltd. PLD 2002 SC 1100 rel.

(e) Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2013---

----Regln. 23(1)---Investigation of complaints---Interpretation of law and contracts---Jurisdiction---Complaint that involves interpretation of law or clauses of a contract has to be left to be decided by a Court of plenary jurisdiction.

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

----S.13(1)---Civil Procedure Code (V of 1908), O. XLVII, R.1---Review---Power, exercise of---Ombudsman's discretion to exercise its power of review conferred by S.13(1) of Federal Ombudsmen Institutional Reforms Act, 2013 can be structured if he was to exercise that power only in cases where requirements contained in O. XLVII, R.1, C.P.C. are satisfied.

Sahib Rai v. Custodian of Evacuee Property, Karachi PLD 1957 SC 63 and Al-Qamar Recruiting Agency v. Government of Pakistan 1989 MLD 3335 rel.

Hafiz Arfat Ahmed Chaudhry, Kashifa Niaz Awan and Fazal-e-Rabbi D.R. (L) A.I.O.U. for Petitioner.

Asim Shehbaz Malik for Respondent No.3.

Dr. G.M. Chaudhry for Respondent No.2 (in W.P. No.1086 of 2021).

Malik Waheed Akhtar for Respondent No.2 (in W.P. No.3297 of 2021).

Malik Shaukat Nawaz, Assistant Attorney General.

2023 C L C 744

[Islamabad]

Before Mohsin Akhtar Kayani, J

YASSA KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of National Health Services Regulation and Coordination and another----Respondents

Writ Petition No.4242 of 2021, decided on 21st October, 2022.

(a) Prohibition of Smoking and Protection of Non-Smokers Health Ordinance (LXXIV of 2002)---

----Ss.2(c), 5 & 17---Prohibition of smoking and others tobacco use---"Place of public work or use"---Power to make rules---Scope---Smoking gadgets, sheesha or any other instruments are completely banned in places of public work or use as explained in S. 2(c) of the Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002---Smoking tobacco in any form whether in the form of cigarette, cigar or otherwise is also not permitted at public places---Any person who contravenes is liable for penalties in terms of S. 11 of the Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002---Any authorized officer or a police officer not below the rank of Sub-Inspector may eject any person from any place of public work or use who contravenes the provisions of the Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002---Answer to the question whether any such business of Sheesha or smoking gadgets pipes wrapper is permissible where an individual can use the specific space/place for the purposes of smoking can only be settled in terms of the powers contained in S. 17 of the Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002---High Court directed the Federal Government to notify the rules within six months---Chief Commissioner was directed to visit all those Sheesha bars and public places and stop the smoking activities in accordance with law till the rules were notified.

Olive Grill Restaurant v. Province of Punjab through Secretary Home Department PLD 2013 Lah. 689 rel.

(b) International law---

----International law unless in direct conflict with municipal law ought to be applied and respected by municipal courts in deciding matters arising therefrom.

Shehla Zia v. WAPDA PLD 1994 (SC) 693 ref.

Haji Lal Muhammad v. Federation of Pakistan through Secretary Ministry of Interior Division, Islamabad PLD 2014 Pesh. 199 rel.

Waheed-ur-Rehman Qureshi for Petitioner.

Mian Muhammad Faisal Irfan, D.A.G., Usman Rasool Ghuman, A.A.G., Ms. Khadija Ali, State Counsel, Imran Feroz Malik and Muhammad Mohsin Ahmad, Counsel for Respondent No.3.

Majid Khan, A.D. (Legal), Ministry of NHSRC.

2023 C L C 838

[Islamabad]

Before Saman Rafat Imtiaz, J

Mst. SHAHIDA PARVEEN through Legal Heirs and others----Appellants

Versus

SAEED AHMED and others----Respondents

Regular Second Appeal No.09, Civil Revisions Nos.272 and 273 of 2018, decided on 29th August, 2022.

Specific Relief Act (I of 1877)---

----Ss. 12, 39, 42 & 54---Suit for specific performance of agreement to sell, cancellation of document, declaration and injunction---Gift from husband to wife---Proof---Transfer of possession---There were three claims over suit plot, one by wife of the owner who alleged it to be gifted to her, second claim was of the husband who denied the gift, whereas the third claim was that of the buyer who claimed to have it purchased from husband---Trial Court consolidated all three suits and passed judgment and decree in favour of buyer, and remaining two suits were dismissed--- Lower Appellate Court maintained judgment and decree passed by Trial Court in favour of buyer---Validity---In relations between husband and wife or parent and child etc., requirement of delivery of possession could be dispensed with and delivery could be presumed if certain other factors existed such as registered gift deed (though not strictly required in case of gift from Muhammadan husband to wife or vice versa, however it still was a relevant factor); attestation of mutation; proof of gift through scribe and two marginal witnesses; and/or where facts otherwise showed that donor divested his possession of gifted property for example receipt of rent from tenants by the donee---Neither there was any registered deed or mutation in the name of wife nor scribe of subject gift deed was produced in the present case---Witness produced by wife did not depose as to factum of delivery of possession whereas second witness was not produced for cross-examination---Record produced by stamp vendor did not establish date of execution of subject gift deed---Suit plot was non-transferable on the date of purported execution of subject gift deed---Delivery of possession was not dispensed and all such factors were absent---Wife failed to point out that judgments and decrees were contrary to law or usage having the force of law or any material issue was not determined or there was any substantial error or defect in the proceedings---There were minor discrepancies regarding earnest money which were inconsequential in view of the admission of receipt of earnest money by husband in the written statement filed by him in suit for specific performance filed by the buyer against husband---There was no need to produce stamp vendor as execution of subject sale agreement was not denied by husband---High Court declined to interfere in judgments and decrees passed by two Courts below---Second appeal was dismissed, in circumstances.

Aslam Khan v. Khushdin Khan 2015 MLD 213; Mst. Bachoo v. Abdul Qayyum Khan alias Habib Ullah 2015 CLC 805; Mushtaq Ul Aarifin v. Mumtaz Muhammad 2022 SCMR 55; Federation of Pakistan v. Javed Iqbal ILR 2022 IHC 186; Muhammad Amin v. Mst. Shaista 2015 MLD 296; Muhammad Yousaf v. Allah Ditta 2021 SCMR 1241; Muhammad Riaz Hussain v. Zahoor Ul Hassan 2021 SCMR 431; Mudassar Ali v. M. Zafar Iqbal Pirzada ILR 2022 IHC 113; Aqeel Feroz v. Shahid Jamil Sethi 2020 MLD 1669; Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1; Sher Muhammad v. Muhammad Bakhsh 2017 YLR Note 296; Faiz Bukhsh v. Rab Nawaz 2017 YLR Note 352; Mst. Rehmat v. Mst. Zubaida Begum 2021 SCMR 1534; Bahar Shah v. Manzoor Ahmad 2022 SCMR 284; Manager, State Bank of Pakistan v. Ch. Muhammad Ikram 1999 PLC (C.S.) 1558; Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241; Mst. Umar Bibi v. Bashir Ahmad 1977 SCMR 154; Ma Mi and another v. Kallander Ammal AIR 1927 PC 22; Fakhur-Ud-Din v. Mst. Zohra Bi 1989 SCMR 2017; Abdul Mateen v. Mustakhia 2006 SCMR 50; Mst. Eidun Nisa Begum v. Member (Revenue), Board of Revenue, West Pakistan, Lahore PLD 1973 Pesh. 1; Jabbar Pramanik v. Nurjahan Bewa PLD 1960 Dacca 489; Shamshad Ali Shah v. Syed Hassan Shah PLD 1960 (Lahore) 300; Riaz Ullah Khan v. Asghar Ali 2004 SCMR 1701; Sikandar Hayat v. Ahmad Sher 2003 CLC 1006; Waheed Gul v. Mst. Saida Jan 1998 MLD 3; Mst. Waziran v. Kalu 1995 CLC 1532 and Muhammad Naeem Shafi v. Mst. Shamim Akhtar 2022 CLC 744 ref.

Asad Hussain Ghalib for Petitioners (in Regular Second Appeal No.09 of 2018, Civil Revision No.273 and 272 of 2018 for Respondents).

Zubair Aslam for Petitioner (in C.R. No.272 of 2018 and Respondent No.2 in R.S.A. No.09 of 2018 and C.R. No.273 of 2018).

Naved Malik for Respondent No.1 in all cases.

Ch. Abdur Rehman Nasir for Respondent No.4 in all cases.

2023 C L C 895

[Islamabad]

Before Babar Sattar, J

Syed ALI ASIM JAFFARI and 4 others----Petitioners

Versus

QAMAR ABBAS and 6 others----Respondents

Civil Revision No.67 of 2021, decided on 31st August, 2022.

Partition Act (IV of 1893)---

----S.8---Suit for partition---Preliminary decree---Execution---Mesne profits---Entitlement---Petitioners were aggrieved of refusal of respondent to vacate portion of suit property in her possession, in the light of preliminary decree passed by Trial Court---Plea raised by respondent was that she had retained possession in lieu of partition of agriculture land still to be partitioned---Trial Court and Lower Appellate Court declined to deliver possession to petitioners---Validity--- Fact that agriculture land remained to be partitioned or sold had no co-relation to settlement and distribution of shares in relation to other properties that had formed part of partition suit---Preliminary decree was a final decree in relation to properties in relation to which respective shares stood distributed between co-sharers---Merely because it was a preliminary decree in relation to agriculture land that remained to be distributed and/or sold did not make such decree a preliminary decree in relation to properties, the distribution of which had already taken place and constituted a matter that required no further adjudication---High Court directed the respondent to hand over possession to petitioner and set aside orders passed by Trial Court and Lower Appellate Court---High Court declared that petitioners were entitled to receive rent from respondent to be determined by Executing Court for the period respondent declined handing over of the possession till such possession would be handed over---Revision was allowed, in circumstances.

Adam Khan v. Mohammad Sultan PLD 1975 SC 9; Mst. Ilahi Noor v. Muhammad Din PLD 1977 SC 634; Muhammad Sualeheen v. Muhammad Siddiq Mazhar 1981 CLC 1039; Mst. Jamila Akhtar v. Custodian, Evacuee Property PLD 1996 Lah. 149; Shahid Ali v. Mrs. Aziz Fatima PLD 2010 SC 38; Muhammad Zulfiqar v. Additional District Judge (West), Islamabad PLD 2016 Isl. 91; re: Petition for letters of Administration of the property and assets of the late Syed Zahoor-Ul-Hasnain son of late Syed Amanat Hussain 1990 MLD 997; Ahmad Ali v. Noor Muhammad 1992 CLC 1921; Muqadar v. Mst. Roshan (2008 CLC 43 and Qamar Sultan v. Mst. Bibi Sufaidan 2012 SCMR 695 ref.

Raja M. Aleem Khan Abbasi and Ms. Azra Batool for Petitioners.

Ch. Muhammad Kashir Gujjar for Respondents.

2023 C L C 968

[Islamabad]

Before Babar Sattar, J

ZAFAR MEHMOOD and another----Petitioners

Versus

Mst. SHAHEEN BAIG and another----Respondents

Civil Revision No.97 of 2020, decided on 28th January, 2022.

Civil Procedure Code (V of 1908)---

----O. XIII, Rr.1, 2, O. VII, Rr. 14, 15, O. VIII, Rr. 2, 9 & O.V, R.7---Documentary evidence to be produced at first hearing---Significance---Effect of non-production of documents, stated.

Civil Procedure Code, 1908 (C.P.C.) prescribes a certain methodology for a trial to be conducted where a dispute that emerges between the parties is of a civil nature. The C.P.C. prescribes certain requirement that need to be fulfilled at each stage of the trial and Orders of C.P.C. suggest that there is a continuing focus within the mechanics of trial as prescribed by C.P.C. that the documents in possession of each party in support of its claim are produced at the earliest possible stage.

Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964; Fazal Muhammad v. Mr. Chohara 1992 SCMR 2182; Shaukat Ali Butt v. Islam ul Haq 2003 YLR 1814; Haji Baz Muhammad v. Mst. Humaira Mst. Humera alias Shireen Taj PLD 2003 Quetta 128 and Sher Baz Khan and others v. Malikani Sahibzadi Tiwana and others PLD 2003 SC 849 rel.

Right from the time of issuance of summons there is an emphasis of the C.P.C. on production of documents which form the basis of a plaint being made by one party against the other at the earliest and such requirement is built into the Orders regulating the filing of the plaint as well as filing of the written statement. The scheme of C.P.C. is that at the stage of the trial when the pleadings are to be completed each party is under an obligation to file all documents on which it relies and bases its claim and also provide a list of documents that it wishes to rely on in order to support its claim even if such documents are not in its possession. The purpose of such scheme is that the C.P.C. does not permit trial by ambush. The concept of fair trial of civil action requires that each party must reveal its claim or defence as well as the relevant documentary evidence on which it basis its case to the other party prior to commencement of the trial. The scheme of the C.P.C. does not permit springing a surprise on the other party in the midst of a trial but requires each party to play by rules in which all the cards are placed on the table face up. It is through the discovery of relevant material on the basis of which a claim is made that the party becomes aware of the strength of such claim and in view of the strength of the claim each party then has an opportunity to engage in amicable resolution of the dispute or settlement negotiations without investing time and resources in its adversarial resolution through trial.

Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964; Fazal Muhammad v. Mr. Chohara 1992 SCMR 2182; Shaukat Ali Butt v. Islam ul Haq 2003 YLR 1814; Haji Baz Muhammad v. Mst. Humaira Mst. Humera alias Shireen Taj PLD 2003 Quetta 128 and Sher Baz Khan and others v. Malikani Sahibzadi Tiwana and others PLD 2003 SC 849 rel.

It is for such purpose that Order XIII, mandates that the documents to be relied upon must be produced at the first hearing. This requirement is not a technicality. It is to ensure timely disclosure and discovery of documents to enable each party to prepare its case, come up with a trial strategy if pre-trial settlement fails, and determine the witnesses that ought to be produced in support of the claim. The purpose also is to encourage a resolution of the dispute and prevent unnecessary litigation in the event that settlement can be reached in view of all the facts, circumstances, and documentary evidence in possession of the parties. What Order XIII is also designed to prevent is a piecemeal trial of civil disputes. Once the pleadings of the parties are complete and all documentary evidence has been produced before the court, the court then allows the parties to adduce evidence followed by final arguments. Once a party had led its evidence and consequently produced before the Court all the documentary evidence as well as the oral testimony in support of its claim the other party cannot then be allowed to introduce fresh documents to fill any gaps in its defence or mount a fresh claim or defence in lieu of the entire body of evidence already adduced by the contesting party. Once the trial has entered into the stage of evidence it cannot be dragged back to the stage of discovery and completion of pleadings by allowing production of documents and then affording the other party an opportunity to counter such document. If such a scheme was allowed, it would result in trials dragging on without any end in sight. Thus, the requirements of Order XIII are meant to ensure that trial in a civil action is not trial by ambush. The said provisions of various Orders of C.P.C. are meant to ensure that the requirements to be complied with at each stage of a trial are complied with within the time prescribed. This is to ensure that the parties as prudent persons are encouraged to enter into settlement of claims without trial in view of the strength of their respective cases. And the scheme of C.P.C. is finally meant to ensure that in the event that trial commences, the right of no party is prejudiced by introduction of material and documents that were required to be revealed at the first hearing of the suit but were not either due to negligence or deliberately to surprise the other party at a later stage in the trial.

Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964; Fazal Muhammad v. Mr. Chohara 1992 SCMR 2182; Shaukat Ali Butt v. Islam ul Haq 2003 YLR 1814; Haji Baz Muhammad v. Mst. Humaira Mst. Humera alias Shireen Taj PLD 2003 Quetta 128 and Sher Baz Khan and others v. Malikani Sahibzadi Tiwana and others PLD 2003 SC 849 rel.

For such reasons the suggestion that Order XIII is a directory rule of practice that can be dispensed with by a Court in its discretion cannot be countenanced. Such approach would play havoc with the scheme of C.P.C. and not only prejudice the rights of parties to abide by requirements of procedural law but also preempt possibility of settlement of disputes without trial due to lack of discovery of crucial documents, apart from prolonging the length of trial and causing serious harm to public interest due to consumption of limited court time and resources thereby delaying the adjudication of disputes.

Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964; Fazal Muhammad v. Mr. Chohara 1992 SCMR 2182; Shaukat Ali Butt v. Islam ul Haq 2003 YLR 1814; Haji Baz Muhammad v. Mst. Humaira Mst. Humera alias Shireen Taj PLD 2003 Quetta 128 and Sher Baz Khan and others v. Malikani Sahibzadi Tiwana and others PLD 2003 SC 849 rel.

Raja Aamir Azad for Petitioner.

Muhammad Nazir Jawad for Respondent No.2.

2023 C L C 1059

[Islamabad]

Before Miangul Hassan Aurangzeb, J

IMRAN AMIR and another---Petitioners

Versus

Mst. ISMAT BIBI and another----Respondents

Writ Petition No.3900 of 2020, decided on 17th March, 2022.

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

----Ss.8, 4, 10 & 12---Constitution of Pakistan, Art.13---Constitutional petition---Ombudsperson to enquire into complaint---Procedure for holding inquiry---Provisions of the Act in addition to and not in derogation of any other law---Protection against double punishment and self-incrimination---Scope---Petitioners sought dismissal of complaint filed by respondent before the Ombudsperson for Protection against Harassment of Women at the Workplace on the ground that an FIR on similar allegations had already been filed against them---Validity---Ombudsperson while making a decision on a complaint could impose any of the minor or major penalties specified in S. 4(4) of the Protection against Harassment of Women at the Workplace Act, 2010---In the event the charge against the petitioners was proved in the trial pending before the Additional Sessions Judge, the Trial Court could convict the petitioners for offences under Ss.376, 509 and 511, P.P.C.---Sentences which the criminal court could award to the petitioners were dissimilar to the minor or major penalties that the Ombudsperson could impose on the petitioners if the allegations made by respondent against them were established---Moreover, S. 12 of the Protection against Harassment of Women at the Workplace Act, 2010, had made it clear that the provisions of the Act would be "in addition to" and not in derogation of any other law for the time being in force---Constitutional petition was dismissed.

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

----Ss.8, 4 & 10---Ombudsperson to enquire into complaint---Procedure for holding inquiry---Powers of the Ombudsperson---Scope---Object behind the enactment of Protection against Harassment of Women at the Workplace Act, 2010, is to protect a woman from being harassed at the workplace---Inquiry proceedings conducted by the Ombudsperson pursuant to a complaint filed by an employee under S.8(1) are not criminal proceedings---Section 8(3) of the Act provides that the Ombudsperson shall conduct an inquiry into the matter according to the rules made under the Act and conduct proceedings as the Ombudsperson deems proper---Under S.10(2), the Ombudsperson, while making a decision on a complaint, can impose any of the minor or major penalties specified in S. 4(4) of the Act.

(c) Civil service---

----Concurrent civil and criminal proceedings---Permissibility---Where an act or omission constitutes a criminal offence as well as a civil wrong, the mere fact that an accused has been acquitted from a criminal charge does not ipso facto mean that he stands absolved from civil liability---Criminal and departmental proceedings against an employee can go side by side and may even end in varying results---Departmental and criminal proceedings can be taken simultaneously and are independent of each other---Acquittal in a criminal case would not constitute a bar for the initiation of the disciplinary proceedings---Criminal proceedings and departmental proceedings against a civil servant are entirely different as one relates to the enforcement of criminal liability and the other is concerned with service discipline.

Amir Abdullah v. Superintendent of Police 1989 SCMR 333; Deputy Inspector General of Police v. Anisur Rehman PLD 1985 SC 134; Muhammad Ayub v. Chairman Electricity Board WAPDA, Peshawar PLD 1987 SC 195; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177; Rashid Mehmood v. Additional Inspector-General of Police 2002 SCMR 57; Khalid Dad v. Inspector General of Police 2004 SCMR 192; Syed Muhammad Iqbal Jafri v. Registrar Lahore High Court, Lahore 2004 SCMR 540; Muhammad Shafique v. Deputy Director Food 2005 SCMR 1067; Syed Aqleem Abbasi Jaffari v. Province of Punjab through Secretary, Irrigation Department 2005 SCMR 1901; Falak Sher v. Inspector-General of Police, Lahore 2005 SCMR 1020; Sami Ullah v. Inspector-General of Police 2006 SCMR 554 and Asif Mehmood Butt v. Regional CEO, NBP 2011 PLC (C.S.) 1462 ref.

(d) Administration of justice---

----Concurrent civil and criminal proceedings---Permissibility---There is no bar on the institution of civil proceedings on a cause which is also the subject matter of criminal proceedings because not only the object of proceedings is different but also the standard and onus of proof is different in the civil and criminal proceedings.

Seema Fareed v. State 2008 SCMR 839 rel.

Tufail Shahzad for Petitioner.

Muhammad Sadiq Khan for Respondent No.1.

2023 C L C 1107

[Islamabad]

Before Babar Sattar, J

MUHAMMAD TARIQ----Petitioner

Versus

Mrs. MARRIUM SIAL and another----Respondents

Civil Revision No.169 of 2015, decided on 21st October, 2022.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of agreement to sell---Agreement, proof of---Failure to produce two attesting witnesses---Effect---Suit filed by petitioner / plaintiff was decreed in his favour by Trial Court but Lower Appellate Court reversed the findings and dismissed the suit---Validity---Trial Court correctly appreciated the evidence and concluded that petitioner / plaintiff succeeded in establishing, on balance of probabilities, execution and content of the Agreement, payment of consideration amount as earnest money as well as illegal procurement of original Agreement by seller from petitioner / plaintiff---Lower Appellate Court without appreciating all aspects of evidence adduced and the standard of proof required in support of a civil claim (i.e. balance of probabilities), took a very technical view of provisions of Qanun-e-Shahadat, 1984, to conclude that the agreement had not been proved by the petitioner---Where an agreement was not witnessed by two male witnesses, Court could take into account secondary or corroborating evidence to determine whether or not there was an agreement between the parties to perform obligations stated in such agreement--- After taking into account primary evidence and secondary/corroborating evidence Court could determine whether on balance of probabilities claimant had established validity of his/her claim--- Lack of proof of an agreement in terms of Art. 79 of Qanun-e-Shahadat, 1984, where either two attesting witnesses were unavailable or could not be produced to testify, was not fatal to the claim of a party seeking performance of obligations under such agreement---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court and that passed by Lower Appellate Court was set aside---Revision was allowed, in circumstances.

Arbab Tasleem v. The State PLD 2010 SC 642; Mst. Zareena and 5 others v. Syeda Fatima Bi PLD 1995 Kar. 388; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Dawood Foundation through Chairman and another v. Ghulam Hasan and another 2016 CLC Note 25; Mst. Farida Bano v. Karachi Electric Supply Corporation through Managing Director 2008 MLD 62; Allah Dad v. S.M. Khan 1989 CLC 2287; Mohammad Mohsin Malik v. Mst. Qamar Jehan and 2 others 2009 YLR 289; Syed Shabbir Hussain Shah v. Asghar Hussain Shah and others 2007 SCMR 1884; Ghulam Ali Shah and others v. Mohammad Khalid and others 2017 SCMR 1849; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Shah Mohammad through L.Rs. and 4 others v. Nawab Din 2006 MLD 823; Imam Din and 4 others v. Meraj Din and others 2003 MLD 329; Ghulam Nazak v. ZTBL through Manager and another 2007 CLD 667; Mohammad Rafique and 7 others v. Noor Ahmad 2007 MLD 1554; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Province of Punjab through Secretary, Irrigation and Power Department, P.W.D., Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din & Co. through Proprietor 2003 CLC 504; Ghulam Nabi v. Mohammad Yusuf and 2 others 1993 CLC 314; State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Mst. Rasheeda Begum and others v. Mohammad Yousaf and others 2002 SCMR 1089; Mst. Sakina Bibi and another v. Mohammad Anwar alias Mujahid and others PLD 2007 Lah. 254; Rafaqat Ali and others v. Mst. Jamshed Bibi and others 2007 SCMR 1076; Ashiq Hussain and 5 others v. Anjuman Islamia, Kamalia Regd. through Mohammad Amin and others 2007 CLC 71 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

(b) Administration of justice---

----Trial Court---Duties, functions and obligations---Court is a neutral arbiter of law and facts in a dispute between contesting parties and is not a disinterested bystander---Court is under an obligation to play active role to determine truth of the matter brought before it while passing judgment on the validity of claim before it---To dispense justice in accordance with law is ultimately responsibility of a Court---Court cannot fill any lacuna in the claim of party or relax obligation of a party to discharge its burden of proof---Court is under an obligation to ascertain truth of claims made before it by contesting parties---Ample authority under Civil Procedure Code, 1908, as well as Qanun-e-Shahadat, 1984, has been vested in Court to require contesting parties to clarify their positions, to summon essential witnesses as Court witnesses and to seek expert opinion where required---Court sitting in judgment over rival claims ought to exercise such power proactively in order to determine truth in controversy before it and dispense justice in accordance with law---Role of Trial Court is not that of a disinterested bystander witnessing a trial---As adjudicator of claims between contesting parties role of Trial Court is that of a seeker of true facts underlying a controversy.

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

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

----O.XIII, R.4---Endorsement on document admitted in evidence---Scope---Only such documents can be read into evidence which have been duly exhibited before the Court.

(d) Evidence---

----Document---Endorsing "Mark" instead of "Exhibit"---Effect---It is for the Court to ensure that no document is included in case record as a marked document, if it does not fulfill requirements of being exhibited.

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

----Art. 72---Civil Procedure Code (V of 1908), O.XIII, R.4---Document, proof of---Procedure---Proof of a document is question of evidence---Manner in which document is to be placed on record as an exhibit and timing of such placement is a matter of procedure prescribed by C.P.C.---Procedure is guided by the need to ensure discovery and prevent surprises during adjudication of civil claims and not to limit production and exhibition of documents by a party in support of its claim.

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

----O.IX-A---Intermediate dates---Case management and scheduling conference---Scheme for conducting a trial under C.P.C. (especially Order IX-A) places Court in a controlling role in the middle---Provisions of C.P.C. imagine an adjudicatory process where contesting parties place their cards on the table face-up, and pursue their claims in view of the available evidence in relation to the claims and defences that all sides are aware of---Case management and scheduling conference is a mandatory step in trial process that cannot be ignored---After completion of service and once pleadings have been filed, the court must schedule this conference to draw out a plan for trial and way forward in consultation with counsel for parties.

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

----O.XIII, R.4---Documentary evidence---Admissibility and proof---Distinction---Court must not confuse admissibility of document into record for consideration during trial with proof of such document or weight and relevance to be attached to it in support of a claim---Proof of a document and weight to be accorded to it is to be determined by Court after recording of evidence while pronouncing judgment.

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

----O.IX, O. IX-A, O. XV & O.XV-A---Procedure of trial---Principle---Clearly marked stages in a trial have been prescribed in C.P.C.--- If such stages are ignored possibility of resolution of (i) disputes based on admissions, or (ii) through alternate means of dispute resolution (including compromise) or (iii) through summary judgment (without a trial of facts) dwindles--- Unless claims and material in support of such claims is laid bare for the benefit of all parties, no party is incentivized to enter into a compromise, the court is unable to determine in an educated manner the issues in controversy between the parties, and has no ability to decide the matter at the first hearing or through summary judgment---This renders provisions of O IX, O.IX-A, O.XV and O.XV-A, C.P.C. redundant and results in all suits brought to the court being subjected to trial, and populates Court dockets with matters that might be resolved without trial and without inordinate delay in cases finding a resolution.

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

----Art.132---Civil Procedure Code (V of 1908), O.V, O.VII & O.XIII---Documentary evidence---Document not relied upon---Producing document during examination-in-chief---Effect---Practice of allowing witnesses to adduce documentary evidence during their examination-in-chief as primary mode of producing documentary evidence is in breach of provisions of O.V, O.VII and O.XIII, C.P.C.---Such practice cannot be countenanced and it is only upon showing "good cause" for non-production of a document at the first instance (as required by O.V and O.VII C.P.C.) that the Court may allow production of such document at a later stage in accordance with O.XIII, R.2, C.P.C.

(j) Administration of justice---

----Practice and procedure---Courts of law have no authority to contrive a procedure for conduct of trials that is in contradiction with that prescribed by procedure.

Mohammad Nazir Jawad for Petitioner.

Attiq-ur-Rehman Kiani and Iman Ali Kayani for Respondent No.1.

Ms. Mehraj Tareen for CDA.

2023 C L C 1163

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs ZOHONGDING INTERNATIONAL ENGINEERING CO. LTD. through Authorized Representative----Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY and 2 others----Respondents

Writ Petition No.4907 of 2022, heard on 26th January, 2023.

Public Procurement Rules, 2004---

----R.48(7)---Redressal of Grievances Regulations, 2021, Regln. 7 & Schedule-II---Constitution of Pakistan, Art.199---Constitutional petition---Grievance Redressal Committee---Appeal, pendency of---Petitioner company was aggrieved of dismissal of its Grievance Redressal Complaint and non-deciding of appeal by Grievance Redressal Appellate forum---Validity---It was open to legislature to impose accompanying liability on a party on whom a right of appeal was conferred or to prescribe conditions for exercise of such right---Right of appeal was a creature of statute and there was no reason why the legislature while granting right would not impose conditions for exercise of such right, so long as the conditions were not so erroneous as to amount to unreasonable restrictions rendering the right almost illusory---Onerous and oppressive condition for depositing an appeal fee in the amount set out in Schedule II to Redressal of Grievances Regulations, 2021, had made the remedy of appeal under R.48(7) Public Procurement Rules, 2004, to be illusory---Authorities produced Grievance Redressal Committee's decision on the petitioners, complaint---Decision which set out the reasons for petitioner's disqualification were not provided earlier to the petitioner---Such reasons were brought before the Court and petitioner could consider suitably amending the petition---Respondent Authority's letter which was assailed in petition did not set out reasons for Grievance Redressal Committee but was simple intimation to rejection of its complaint by Grievance Redressal Committee---High Court declined to suspend operation of letter in question and declined to hold the tender bidding process---Petition was adjourned accordingly.

Eastern Rice Syndicate v. Central Board of Revenue PLD 1959 SC 364; Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore PLD 1996 Lah. 672; Hameed Ahmad Ayaz v. Government of Punjab PLD 1997 Lah. 434; Government of Andhra Pradesh v. P. Laxmi Devi AIR 2008 SC 1640 and Hardevi Asnahi v. State of Rajasthan 2011 (14) SCC 160 ref.

Irfan Farooq for Petitioner.

Ahmed Abbas for Respondents Nos.1 and 2/N.H.A.

Asim Khan, Director (Legal), N.H.A.

2023 C L C 1187

[Islamabad]

Before Mohsin Akhtar Kayani, J

RIAZ HANIF RAHI----Petitioner

Versus

GOVERNMENT OF PAKISTAN, through Secretary Ministry of Communication, Federal Secretariat, Islamabad and 5 others----Respondents

Writ Petition No. 1184 of 2019, decided on 29th March, 2023.

(a) Constitution of Pakistan---

----Art. 199---National Highway Authority Act (XI of 1991), S. 10---Constitutional petition---Power of the National Highway Authority---Scope---Petitioner assailed the act of the National Highway Authority (NHA) in entering into an agreement with the respondent (Frontier Works Organization) for the collection of toll tax on the motorway---Validity---Motorway in question was opened for traffic in 1997 and had since completed its design life---Most parts of the motorway were showing deterioration due to heavy traffic, as it was the busiest of all motorways---To address this issue without burdening the government, the NHA initiated efforts to save this vital segment of the motorway through a Public-Private Partnership on a Built-Operate-Transfer basis---Following all legal formalities and procedures a request for proposals was advertised in leading newspapers, and the respondent was declared successful by the NHA committee---After a detailed scrutiny and evaluation process, a Concession Agreement was signed between the NHA and the respondent---Project's scope included complete financing, design, construction, operation, and maintenance of the motorway for 20 years---Under the Concession Agreement, toll fees were allowed to be collected by the respondent at agreed rates between the NHA and the respondent---Amount collected through toll fees was to be spent on overlay and modernization of the motorway---Respondent did not have the prerogative to charge toll taxes according to its own discretion---Toll collection was governed by the agreed formula executed by the NHA---National Highway Authority had the legal authority to do so under S. 10(2)(ii),(vi),(vii) and (xiii) of the National Highway Authority Act, 1991---Said provisions had granted complete authority to the NHA to enter into contracts through legislative power---Furthermore, S.10(2)(xi) of the National Highway Authority Act, 1991, allowed the NHA to award negotiated contracts or undertake projects through private sector financing programs----Thus, the concept of the Concession Agreement was protected by law---In conclusion, the writ petition was dismissed.

Board of Intermediate and Secondary Education, D.G. Khan v. National Highway Authority, Islamabad 2018 YLR 754 rel.

(b) Constitution of Pakistan---

----Art. 199---Public interest litigation---Scope---It is obligatory for any person claiming a public interest to transparently demonstrate his complete bona fides---Petitioner must show that the litigation being undertaken is not driven by private or vested interests but is genuinely aimed at serving the public interest, good, or welfare.

Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others 2018 SCMR 365 rel.

(c) Constitution of Pakistan---

----Art.199---Public interest litigation---Scope---Jurisdiction under Art.199 of the Constitution is required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that block or suspend the performance of executive functionaries by the Government---Public interest litigation is termed as a strategic aim of the legal aid movement which is intended to bring justice within the reach of the poor masses.

7C'S Corporate Services v. Oil and Gas Development Company Limited and others PLD 2017 Isl. 115 rel.

(d) Constitution of Pakistan---

----Art.199---Public interest litigation---Scope---Public interest litigation is a type of litigation that serves the interest of the public at large---It involves legal actions or proceedings initiated to protect or enforce the rights of the general public---Such type of litigation aims to prevent the violation of constitutional or legal rights of a significant number of individuals who may be economically or socially disadvantaged, poor, or lacking in knowledge---It seeks to ensure that such violations do not go unnoticed and are appropriately addressed.

Muhammad Ahmad Pansota and others v. Federation of Pakistan and others PLD 2020 Lah. 229 rel.

Petitioner in person.

Usman Rasool Ghumman, A.A.G.

Ms. Raheema Khan, Saad Javid Satti and Muhammad Sanan Khan for Respondent No.2.

Ummar Zia ud Din and Raza ur Rehman Asad for Respondent No.5./F.W.O.

2023 C L C 1245

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Dr. NOOR-US-SABA----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Health Services and others----Respondents

Writ Petition No.2691 of 2019, decided on 13th March, 2023.

Drug Regulatory Agency of Pakistan Ordinance (I of 2012)---

----Ss.2(n) & 3---Rules of Business, 1973, R.15(2)---Summary for Prime Minister---Term "stake holder"---Scope---Petitioner assailed notification issued by Federal Government repatriating her to her parent department which was based on summary forwarded to Prime Minister---Validity---Summary must give sufficient background / history and should explain proposal comprehensively to enable the Cabinet to make an informed decision--- Wherever required, views of stakeholders and response of sponsoring Division was to be presented---Term "stakeholders" could not be confined to other Government departments but was to include persons whose rights or interests were to be adversely affected by the decision solicited by the Ministry submitting summary---Summary in question sought Prime Minister's earlier decision regarding regularization of petitioner and her subsequent placement in DRAP as Director (BS-20) to be reviewed---Petitioner was a stakeholder whose views should have been mentioned and presented in summary in question---Historical background, especially pertaining to joint efforts made by two departments to defend petitioner's regularization and placement as Director (BS-20) in DRAP in proceedings before High Court in an earlier Constitutional petition was a relevant fact which should have been mentioned in the summary to Prime Minister---Administrative control over Project in question was shifted to Cabinet Division on 30-06-2011 and Drug Regulatory Agency of Pakistan Ordinance, 2012, was promulgated on 16-02-2012---Drug Regulatory Agency of Pakistan was established under section 3 of Drug Regulatory Agency of Pakistan Ordinance, 2012---"Therapeutic goods" under S.2(n) of Drug Regulatory Agency of Pakistan Ordinance, 2012, included drugs and medicine or medical devices or biologicals or other related things as could be notified by the Agency---Office Memorandum dated 08-05-2012 issued by the Cabinet Division showed that administrative control over Drug Regulatory Agency of Pakistan was transferred from Cabinet Division to National Regulation and Services Division vide the Cabinet Division's memorandum dated 03-04-2012---Subject of "National Control Laboratory for Biologicals" was transferred to Drug Regulatory Agency of Pakistan vide Drug Regulatory Agency of Pakistan Ordinance, 2012, which Ordinance was repealed and replaced by Drug Regulatory Authority of Pakistan Act, 2012, which was enacted on 13-11-2012--- Prime Minister's decision dated 06-05-2013 caused petitioner to be "regularized" in DRAP which had administrative control over subject of "National Control Laboratory for Biologicals."---Petitioner could not have been regularized in a project post, she was regularized in the Authority which had administrative control over the subject for the strengthening of which the Project was established---High Court set aside notification dated 15-07-2019 (which was based on the Prime Minister's decision dated 27-11-2018 which in turn was based on the Ministry of NHSR&C's summary dated 15-05-2018) and directed that the Prime Minister would take a decision afresh on the basis of a summary which should include petitioner's position and be submitted strictly in accordance with the requirements of R.15(2) of the Rules of Business, 1973, read with the Cabinet Division's instructions / guidelines dated 24-01-2018 for the submission of cases to the Cabinet / Cabinet Committees---Constitutional petition was allowed accordingly.

Ms. Moona Hussain along with petitioner in-person

Arshid Mehmood Kiani, Deputy Attorney-General.

Rana Umer Farooq, Deputy Director and G. Shafi, Legal Officer, Ministry of NHSR&C.

Shahzaib Ali, DDA, NIH

Barrister Adnan Saboor Rohaila and Asif Nazir, Advocate for DRAP.

Hafiz Bilal Bin Akbar, Deputy Director (Legal Affairs), DRAP.

2023 C L C 1315

[Islamabad]

Before Arbab Muhammad Tahir, J

MUHAMMAD MOINUDDIN KHAN----Petitioner

Versus

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

Writ Petition No.712 of 2019, decided on 2nd February, 2023.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 35(1)(i)---Constitution of Pakistan, Art.199---Constitutional petition--- False and vexatious litigation---Cost of litigation, awarding of---Petitioner filed ejectment petition claiming himself as owner of suit property, which was decreed ex-parte in favour of petitioner--- Respondent claimed to be owner of suit property and had filed application under S.12(2), C.P.C. against ex-parte order which order was set aside and was maintained by Lower Appellate Court---Validity---Previous owner entered appearance and had authenticated transfer of suit property in the name of respondent---Original owner too was burdened with frivolous litigation and an injury to his valuable property on the basis of false and vexatious litigation was caused---Respondent had to file an application under S.12(2), C.P.C., for getting ex-parte eviction order set aside and also contest revision petition filed by the petitioner and present Constitutional petition---Respondent was unnecessarily dragged in litigation by petitioner---Petitioner repeatedly abused Courts in order to fulfill his evil design of grabbing valuable property of respondent---Petitioner repeatedly filed vexatious and frivolous claims in various Courts and had wasted precious time of Courts---Petitioner caused anguish and pain which was brought to other party by unnecessary, unfair and prolonged litigation---Respondents filed their respective costs of litigation statements in terms of S.35 (1)(i), C.P.C.---High Court declined to interfere in concurrent findings of two Courts below and had awarded cost of litigation to respondents against petitioner---Constitutional petition was dismissed accordingly.

Qazi Naveed ul Islam v. District Judge Gujrat and others (C.P. No. 3127/2020) and Edwin Coe LLP v. Naseim Ahmed Sarfraz 2022 CLC 1064 rel.

Haseeb Shakoor Paracha for Petitioner.

Riasat Ali Azad for Respondent No.3.

Mian Abdul Razaq for Respondent No.5.

2023 C L C 1357

[Islamabad]

Before Tariq Mehmood Jahangiri, J

SOHAIL MAJEED BHATTI----Appellant

Versus

MUHAMMAD ASHRAF (Late) through Legal Heirs and others----Respondents

Regular First Appeal No.428 of 2021, decided on 6th February, 2023.

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

----O. XXIII, R. 1---Withdrawal of suit or abandonment of part of claim---Scope---There are certain conditions for withdrawal of the suit---First, if the Court is satisfied that a suit must fail by reason of some formal defect; second if, there are other sufficient grounds for allowing plaintiff to institute a fresh suit for the subject matter of a suit or a part of a claim---Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of claim---Without passing formal order for permission to file fresh suit by the Trial Court in terms of O.XXIII, R.1(2)(b), C.P.C., it cannot be presumed mechanically that permission to file fresh suit has been granted by merely mentioning in the petition filed for withdrawal of suit---Trial Court is required to pass specific order granting permission to the plaintiff for filing the fresh suit after being satisfied in terms of O.XXIII, C.P.C.---If suit is withdrawn without the permission referred to in sub-rule (2) of R.1 of O.XXIII, C.P.C., the plaintiff shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit.

Bashir Ahmed and Sons (Pvt.) Ltd. v. Messrs Martrade Shipping and Transport and others PLD 2021 SC 373 ref.

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

----Ss. 12 & 22---Suit for specific performance of agreement to sell---Agreement not enforceable---Scope---Execution of sale agreement on the basis of expected allotment of plot is void.

Saeed Ullah Khan v. Muhammad Khalid and 3 others 2018 CLC 648 ref.

Jamil Ahmed Abbasi for Appellant.

Nemo. for Respondents Nos.1-a to 1-h.

Ch. Shafique Ahmad Ramay for Respondent No.2./CDA.

Ch. Abdul Majeed for Respondent No.3.

Malik Talat Hussain for Respondent No.4.

2023 C L C 1372

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NATIONAL HIGHWAY AUTHORITY (NHA) through Chairman---Petitioner

Versus

Messrs SAMBU CONSTRUCTION CO. LIMITED and 2 others---Respondents

C.R. No. 233 of 2016, decided on 7th February, 2023.

Arbitration Act (X of 1940)---

----Ss. 30, 33 & 39---Rules of Procedure for the Functions of the Disputes Review Expert, R. 9(c), (d)---Civil Procedure Code (V of 1908), S. 115---Arbitration---Revisional jurisdiction---Concurrent findings of Courts below---Petitioner Authority awarded contract to respondent company---Dispute between the parties was decided by an arbitrator---Objections against award announced by arbitrator were dismissed by Trial Court as well as Lower Appellate Court and award was made rule of the Court---Validity---If on reappraisal of evidence, a different view is possible, High Court cannot substitute its own view and upset findings of fact concurrently arrived at by the Courts below---Such findings can only be interfered with if the Courts below had misread the evidence or had committed a jurisdictional error--- Dispute between the parties could not be resolved without the assistance of Dispute Review Expert (DRE)---It was for such reason that respondent company referred the dispute to DRE under specific clause of the Conditions of Particular Application---Just like rule 9(c) of Rules of Procedure for the Functions of the Disputes Review Expert, the provision of R. 9(d) of Rules of Procedure for the Functions of the Disputes Review Expert also does not prescribe any time limit within which a party can refer a dispute to DRE---Contractual provisions which placed a time limit on a party's right to initiate a dispute resolution process had to be strictly construed--- Reference of dispute to DRE did not offend any provision of Conditions of Particular Application read with Rules and Procedures for the Functions of the Disputes Review Expert---High Court in exercise of revisional jurisdiction declined to interfere in the award made rule of the Court---Revision was dismissed, in circumstances.

Universal Insurance Company v. Karim Gul 2021 CLD 1189; Co-operators Life Insurance Co. v. Gibbons [2009] 3 SCR 605; Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 and Abdul Hakeem v. Habibullah 1997 SCMR 1139 rel.

Barrister Asghar Khan, Ali Roshan Gillani and Atif Waheed for Petitioner.

Barrister Muhammad Mumtaz Ali for Respondent No. 1.

2023 C L C 1435

[Islamabad]

Before Miangul Hassan Aurangzeb, J

FAKHAR-E-AZAM WAZIR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.3120 of 2022, decided on 2nd March, 2023.

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

----S.20---Election Rules, 2017, Rr. 10(5) & 10(4), proviso---Delimitation of constituencies---Pre-condition---Patwar Circle (PC)---Importance---Choice of candidates---Petitioners were aggrieved of dismissal of objections filed against preliminary report of Delimitation Committee---Validity---For delimitation of constituencies, PC is the basic unit and cannot be broken under any circumstances---Such is the explicit mandate of first proviso to R.10(4) of Election Rules, 2017---Interference with preliminary report of Delimitation Committee or order of Election Commission of Pakistan could not be made at the instance of former elected representatives on the ground that new delimitation would make his or her winning prospects bleak in elections or that an area where he or she was popular was no longer a part of the constituency from which he or she wanted to contest the elections---Delimitation of constituencies was to be carried strictly in accordance with the provisions of Chapter-III in Elections Act, 2017 as well as Chapter-III of Election Rules, 2017---Boundaries of electoral constituencies could not be altered at the whims of politicians---High Court declined to interfere in the matter as essential prerequisites for issuing a writ of certiorari did not appear to be satisfied---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199 (1)(a)(ii)---Certiorari, writ of---Scope---High Court, while judicially reviewing proceedings and judgments of inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals---Such writ lies where inferior Court or Tribunal has exceeded its jurisdiction or has not proceeded in accordance with essential requirements of law which they are meant to administer---Such writ is also issued when inferior Court or Tribunal acts illegally in exercise of its jurisdiction like deciding without giving any opportunity to parties to be heard or violates principles of natural justice---High Court, while issuing a writ of certiorari, acts in exercise of a supervisory and not appellate jurisdiction---High Court does not judicially review findings of fact reached by an inferior Court or a Tribunal unless there is a manifest error apparent on the face of proceedings, or where such findings are based on disregard of the provisions of law.

Pir Hameed Ullah Shah and Muhammad Umair Baloch for petitioner (in W.P. No.3120/2022).

Shazib Jaffer for Petitioner (in W.P. No.3122/2022).

Dr. Babar Awan and Abdullah Babar Awan, for Petitioner (in W.P. No.3157/2022).

Inayat ullah Khan for Petitioner (in W.P. No.3266/2022).

Naeem Bukhari and M. Imad Khan for interveners / applicants (in C.M. Nos.4753/2022, 4755/2022 and 4757/2022).

Saad Hassan, along with Aziz Bahadar, Regional Election Commissioner (Hazara Division), Shahid Iqbal, ADG (ER), Bushra Rasheed Ch., Sr. Law Officer and Zaigham Anees, Law Officer, E.C.P.

Imran Feroze Malik for (in Respondents Nos.6 and 13 in W.P. No.3120/2022, Respondents Nos.4 and 6 in W.P. No.3122/2022, Respondent No.4 in W.P. No.3157/2022 and Respondents Nos.4 and 7 in W.P. No.3266/2022).

Sher Afzal Khan Marwat and Ch. Usama Tariq for Respondent No.10 in W.P. No.3120/2022, W.P. No.3122/2022 and for Respondent No.11 in W.P. No.3266/2022).

Respondent No.15 in W.P. No.3120/2022 and Respondent No.13 in W.P. No.3266/2022 in person.

2023 C L C 1457

[Islamabad]

Before Babar Sattar, J

TABISH BADAR through Special Power of Attorney----Petitioner

Versus

PAKISTAN, through Secretary, Ministry of Interior and 2 others----Respondents

Writ Petition No.490 of 2021, decided on 31st March, 2023.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Employer-employee relationship---Non-statutory rules---Effect---Non-statutory rules are deemed to be for internal regulation of an entity and do not have status of law---High Court can take cognizance under Art. 199 of the Constitution---Under such non-statutory rules what statutory authority cannot do is claim and seek to exercise power that interferes with statutory or constitutional rights of a person.

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

----S.20A---Notification in official gazette---Effect---To be granted status of law, a legal instrument must be published and available to citizens so that they can organize their lives in view of the requirements of such law---Where a statutory organization is allowed to frame rules and regulations for internal consideration and such rules and regulations are not afforded status of law and are not required to be published in official gazette, provisions of such non-statutory rules cannot be implied to interfere with or undermine fundamental rights of persons whether or not they are subject to such rules and regulations.

Province of East Pakistan v. Hasan Askary PLD 1971 SC 82; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; Deputy Controller of Customs (Valuation) and others v. Messrs Abdul Shakoor Ismail Kaloodi 2006 PTD 2142; Government of the Punjab, Food Department through Secretary Food and another v. United Sugar Mills Ltd. 2008 SCMR 1148; Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717 and Government of Sindh through Secretary Agriculture and Livestock Department v. Khan Ginners (Private) Limited PLD 2011 SC 347 rel.

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

----S.2---Exit from Pakistan (Control) Rules, 2010, R. 2---Constitution of Pakistan, Arts. 9, 15 & 199---Constitutional petition---Exit Control List---Removal of name---Citizen residing abroad---Re-entry to Pakistan, restraining of---Petitioner was residing abroad who had violated terms of contract whereby after completing his PhD from abroad he was to serve for two years in Pakistan---Authorities terminated services of petitioner and his name was included in Exit Control List---Validity---Memorandum in question was coram non judice for not having been issued under the authority of Federal Cabinet---Such Memorandum was liable to be set-aside as it was illegal and irrational and was not supported by provisions of Exit from Pakistan (Control) Ordinance, 1981 read with Exit from Pakistan (Control) Rules, 2010---Federal Government was not vested with authority under Exit from Pakistan (Control) Ordinance, 1981, to place name of a citizen on ECL with full knowledge that such citizen was abroad and effect of placement of his name on ECL would be to prohibit his re-entry in Pakistan---Officials of the office of petitioner were vested with no authority to direct that name of any employee or former employee was placed on ECL---Any recommendation for such purpose was to be considered by Federal Government within the scope of provisions of Exit from Pakistan (Control) Ordinance, 1981, and Exit from Pakistan (Control) Rules, 2010---Order to such effect was to be passed by Federal Cabinet through an independent application of mind in view of material placed before Federal Cabinet on the basis of grounds mentioned in R.2 of the Exit from Pakistan (Control) Rules, 2010---Reasons were to be recorded for the exercise of such power after affording a citizen an opportunity to be heard, given that the effect of such order was to fetter right of a citizen to liberty and freedom to travel guaranteed by Arts. 9 and 15 of the Constitution---High Court directed the authorities to remove petitioner's name from ECL---Constitutional petition was allowed, in circumstances.

Pakistan Muslim League (N) v. Federation of Pakistan and others PLD 2007 SC 642; Mustafa Impex and others v. The Government of Pakistan and others PLD 2016 SC 808; Dr. Joseph Wilson v. Federation of Pakistan 2017 PCr.LJ 1569 and Waqas Rafi Awan v. National Engineering and Scientific Commission, Islamabad 2021 PLC (C.S.) 1309 ref.

Sardar Jahanzeb Khan for Petitioner.

Ahmer Bilal Soofi, Usman Jillani, Majid Bashir, Ms. Fatima Midrar and Raja Sajid for Respondents.

Muhammad Usman Warraich and Mian Nasim Saqlain, A.A.G.

2023 C L C 1481

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NATIONAL TELECOMMUNICATION CORPORATION (NTC)----Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY (PTA) and others---Respondents

F.A.O. No.12 of 2014, decided on 20th April, 2023.

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

----Ss.7(1), 21 (3) & 41(3)---Telecommunication services---Exclusive rights---Non-exclusive telecom licence---Scope---Appellant corporation was aggrieved of order passed by Pakistan Telecommunication Authority holding that there was no bar on designated customers of appellant corporation from acquiring services from private telecom operators---Validity---Non-exclusive telecom licence is a type of license granted by government or regulatory authority that allows a telecom operator to provide communication services without any exclusivity---Other operators may also be granted a licence to operate in the same area and to provide similar services to customers whether governmental or non-governmental---Non-exclusive telecom license is typically granted to promote competition and prevent a single operator from monopolizing the market--- It allows multiple operators to provide services to customers which can lead to better quality, pricing and innovation in the market---Only way that desire of appellant corporation or National Telecommunication and Information Technology Security Board (N.T.I.S.B.), that it should have the exclusive right to provide telecom services to Government organizations or that the Government organizations could obtain telecom or internet services from private telecom service providers only after obtaining a N.O.C. from appellant corporation could be fulfilled if Ss.21(3) and 41(3) of Pakistan Telecommunication (Re-organization) Act, 1996 were amended so as to give the appellant corporation the exclusive right to provide telecom or internet services to Government organizations--- Such desire could not be achieved by issuing a policy directive as it would be inconsistent with the provisions of Pakistan Telecommunication (Re-organization) Act, 1996--- Decision taken by Pakistan Telecommunication Authority that there was no bar on the designated customers of appellant corporation to acquire telecom services from private operators was in conformity with and not in derogation of Ss.21(3) & 41(3) of Pakistan Telecommunication (Re-organization) Act, 1996---High Court declined to interfere in the decision of the Authority, as there was no legal or jurisdictional infirmity in it---Appeal was dismissed, in circumstances.

Sikandar ul Mulk v. Capital Development Authority PLD 2019 Isl. 365; Abdullah v. Province of Balochistan 2021 PLC (C.S.) 272; Muhammad Iqbal v. Government of the Punjab 2020 PLC (C.S.) 747; Mohsin Shahzad v. Secretary, Food Department, Government of the Punjab 2017 PLC (C.S.) 730 and Shahmir Transport Co Ltd. v. Member (Colonies and Transport) Board of Revenue PLD 1964 Lah. 710 ref.

Syed Husnain Ibrahim Kazmi, Saleem Iqbal Janjua and Muhammad Akram Shaheen for Appellant.

Salman Mansoor, Barrister Qasim Duggal, Shahmeer Shahid along with Muhammad Naeem Ashraf, Director (Lit.) and Ch. Adil Javed, Assistant Director (Lit.) on behalf of P.T.A./ Respondent No.1.

Ms. Zainab Janjua for Respondent No.3.

Rashid Hanif and Muhammad Bilal for Respondent No.5.

Arshid Mehmood Kiani, Deputy Attorney-General.

Lt. Col. (Retd.) Muhammad Naveed, Deputy Secretary, Cabinet Division.

2023 C L C 1657

[Islamabad]

Before Miangul Hassan Aurangzeb, J

JOINT VENTURE OF MESSRS KAMAL NASIR KHAN (PVT.) LTD and another through authorized Representative ----Petitioners

Versus

NATIONAL HIGHWAY AUTHORITY through Chairman and others ---Respondents

Writ Petition No.1632 of 2022, decided on 30th December, 2022.

Public Procurement Regulatory Authority Rules, 2004---

----Rr.5 & 48---Foreign funded project---Redressal of grievance---Petitioners as joint venture participated in award of contract for the project funded by Asian Development Bank ('A.D.B.') and had assailed rejecting of their technical bids as non-responsive---Plea raised by petitioners was that the authorities did not disclose reasons for rejection of their bids---Petitioners sought setting aside of procurement process---Validity---Project in question was funded by A.D.B. pursuant to loan agreement executed between Pakistan and A.D.B., therefore, R. 5 of Public Procurement Regulatory Authority Rules, 2004, had come into operation--- Provisions of loan agreement prevailed over those of Public Procurement Regulatory Authority Rules, 2004, but only to the extent of conflict between them--- Mere fact that tender of bidding process was initiated by a procuring agency in Pakistan for award of contract which was funded by an international financial institution like A.D.B. did not ipso facto lead to a complete ouster of the provisions of Public Procurement Regulatory Authority Rules, 2004---Where loan agreement executed with international financial institution did not provide for a bidders' grievance redressal mechanism either expressly or by reference, provision of R.48 of Public Procurement Regulatory Authority Rules, 2004 continued to be enforced--- In cases where loan agreement provided for such a mechanism but its mode was different from the one envisaged by R.48 of Public Procurement Regulatory Authority Rules, 2004, the parties were left to resort to the mechanism provided for in the loan agreement---Petitioners had already voiced their grievance against their ouster from bidding process and had sought an opportunity to place certain facts on the record---After a delay of eight months, authorities disclosed reasons for disqualification of petitioners and it was incumbent on them to refer petitioners' bidding-related complaint for resolution in terms of relevant clause of the Instructions To Bidders read with S.2 of Bid Data Sheet---It was for the forum designated in S. 2 of Bid Data Sheet to determine whether or not petitioners had filed taking over certificate along with their bid and whether such certificate along with accompanying documents fulfilled requirement stipulated in relevant clause of Evaluation and Qualification Criteria of Instructions To Bidders---Provisions of Instructions To Bidders provided adequate alterative remedy albeit different from the one envisaged by R.48 of Public Procurement Regulatory Authority Rules, 2004---High Court declined to interfere in the bidding process---Constitutional petition was dismissed in circumstances.

National High Speed Rail Corporation Limited v. Montecarlo Limited AIR 2022 SC 866; Sardar Muhammad Ashraf D. Baloch Private Limited v. Punjab Irrigation Department 2020 CLC 1303; LAC (Pvt.) Ltd. v. Government of Punjab 2020 CLC 693 and Tezgas (Private) Limited v. Oil and Gas Regulatory Authority PLD 2017 Lah. 111 ref.

Babbar Ali Khan and Jawad Rahim Malik for Petitioners.

Barrister Asghar Khan, Ali Roshan Gillani and Atif Waheed for N.H.A.

Naseem Bukhari and Muhammad Imad Khan for Applicant (in C.M. No.3997 of 2022).

2023 C L C 1860

[Islamabad]

Before Arbab Muhammad Tahir, J

Mst. NAZEER BIBI and another----Petitioners

Versus

HIGHER EDUCATION COMMISSION, ISLAMABAD and another----Respondents

Writ Petition No.1494 of 2021, decided on 2nd September, 2022.

Higher Education Commission Ordinance (LIII of 2002)---

----S.10(i)(r)---Higher Education Commission---Scholarship agreement---Recovery of money---Policy decision---Retrospective applicability---Relief not claimed---Effect---Petitioner / defendant / student availed scholarship under Ph.D. fellowship program---Respondent / plaintiff / Higher Education Commission filed suit for recovery of Rs.1,033,854/- against petitioners / defendants---Trial Court decreed the suit in favour of respondent / plaintiff---Validity---At the time of award of fellowship in question, there was no limit for a maximum number of students that a Supervisor could enroll with himself---Circular dated 10-03-2006 was issued only when petitioner / defendant / student had already been enrolled with the Supervisor---It was not petitioner / respondent / student's fault to give a go-bye to his ongoing scholarship/Ph.D studies, rather it was the University and/or the Higher Education Commission (HEC) which compelled him to quit his studies---Retrospective application of such policy decision of Advance Studies and Research Board on petitioner / defendant / surety was not only unjust, unreasonable but also something beyond any understanding---Higher Education Commission Supervisors were authorized to supervise Ph.D scholars/students---Higher Education Commission on its own adjudged the amount of expenditure spent on petitioner / defendant / student---There was no mention of actual amount in the plaint spent on petitioner / defendant / student's scholarship---There was also nothing on the record which would show that the funds released by HEC were actually utilized by the university on petitioner / defendant / student's scholarship---Trial Court decreed HEC's suit with 25% increase at the rate of prevailing bank mark-up of decretal amount i.e. Rs. 1,033,854/- from the date of the institution of the suit till realization of the actual amount---No such prayer was made by HEC in the suit regarding bank mark-up---No issue with respect to mark-up was framed by Trial Court but Trial Court exceeded its jurisdiction and granted the relief, which had in fact, not been sought for in the plaint---Suit was decreed as prayed for in addition to 25% bank mark-up and Trial Court should not have decreed the suit in its entirety---At best, Trial Court could have decreed the suit only to the extent of amount/expenditures spent on petitioner / defendant / student during his studies under the supervision---High Court set aside judgments and decrees passed by the two Courts below, which suffered from material irregularity---Constitutional petition was allowed accordingly.

Pakistan Railways through Chairman, Railway Board, Railways Headquarter, Lahore and 2 others v. Messrs Caltex Oil (Pakistan) Ltd., Karachi and 2 others 2008 CLC 1003 rel.

Ms. Komal Malik Joyia for Petitioner.

Binyamin Abbasi for Respondent No.1.

2023 C L C 1916

[Islamabad]

Before Babar Sattar, J

Malik MOHAMMAD RAFIQ and 2 others----Appellants

Versus

PUBLIC AT LARGE and others----Respondents

R.F.A. No.620 of 2022, decided on 8th November, 2022.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Adoption---Legal character---Scope---Appellants / plaintiffs claimed to be adoptive parents of male child---Suit was resisted by respondents / defendants who were biological parents of the child---Suit filed by appellants / plaintiffs was dismissed by Trial Court---Validity---Adoption constituted "legal character" for purposes of S. 42 of Specific Relief Act, 1877; a declaration of such legal character could be sought by an adoptive parent or an adopted child---Appellants / plaintiffs could not seek a mere declaration where they were able to seek further relief contingent upon such declaration---It was due to lack of evidence regarding child having lived his life as the adopted son of appellants / plaintiffs that the Trial Court concluded that the suit was of collusive nature---High Court declined to interfere in judgment and decree passed by Trial Court as the same did not suffer from any legal infirmity---Appeal was dismissed, in circumstances.

Rabia Khatoon v. Aziz-ud-Din Biswas PLD 1965 SC 665; Miss Nancy Ruth Baney v. District Judge, Islamabad PLD 2011 Isl. 6; Miss Fauzia Iqbal v. Farhat Jahan PLD 2015 Lah. 401; Mariam Bibi through Abida Parveen v. Naseer Ahmad PLD 2015 Lah. 336; Miss Laila Qayyum v. Fawad Qayyum PLD 2019 SC 449; Abdur Rehman Mobashir v. Aamir Ali Shah Bokhari PLD 1978 Lah. 113; Ali Mohammad v. Mohammad Bashir 2012 SCMR 930; Mohammad Akram v. Mst. Noor Begum PLD 2019 SC 599; Nasir Ali v. Mohammad Asghar 2022 SCMR 1054; Rehman v. Yara through L.Rs and others 2004 SCMR 1502 and Arif Zaman v. Pir Dost Ali Shah through Legal Heirs and others 2005 MLD 98 rel.

Raheema Khan, Mohammad Sanaullah, Mohammad Sannan Khan and Saad Javed Satti for Appellants.

Raja Rehan (Legal Assistant)

Dr. Yaser Aman Khan on behalf of Professor Dr. Mohammad Munir (Amicus Curiae)

Ex-parte for Respondents.

2023 C L C 49

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

SHAFI MUHAMMAD (DECEASED) through L.Rs. and others----Applicants

Versus

Mst. JANAT through L.Rs. and others----Respondents

Civil Revision Applications Nos.S-29 and S-30 of 2000, decided on 28th January, 2022.

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

----S.11---Respondents filed suit for declaration against petitioners in 1994 claiming that suit property was held in the name of deceased father/husband of the petitioners as benamidar---Petitioners filed suit for possession, mesne profits and permanent injunction against respondents in 1996---Respondents' suit was concurrently decreed and petitioners' suit was dismissed concurrently---Petitioners contended that suit land was not an evacuee property; that the same was a resumed property and was then granted by the Land Commissioner, therefore, reliance on the original allotment in favour of deceased father/husband of respondents was of no consequence; that suit property was allotted and was always in the name of the father of the petitioners; that respondents fraudulently got mutated in their names by showing themselves as legal heirs of their father and concealing the true facts which was then rectified/corrected at petitioners' request by Assistant Commissioner in 1994; and that respondents suit was barred under S.11 of the Sindh Land Revenue Act, 1967---Validity---Held, it was gone unexplained as to why applicants approached the Assistant Commissioner in 1994 for change of Foti Khata badal when admittedly their father had expired in 1978; and as to why they never filed any civil suit in 1996 (after two years of respondents' suit) and claimed the possession of the land---Transfer of the suit land in favour of respondents was done in 1980---Evidence led on behalf of the petitioners was neither confidence inspiring, nor convincing so as to believe their version---Respondents had led evidence to establish that they were always in possession of the land and produced all original documents, receipts of payments and also original affidavit of the petitioners' father submitted to Assistant Commissioner and stating therein that land was held in his name for the only reason that father/husband of respondents had expired when his children were minors---Evidence led by the respondents was convincing and had not been shaken in cross-examination---Order passed by the Assistant Commissioner was non-speaking, without any independent reasoning, without jurisdiction, without showing whether the aggrieved parties were heard or not; and comprising over two lines only accepting the contention of the petitioners---Petitioners kept silent as for a long time and even after getting knowledge regarding the affidavit of their father in favour of respondent, neither challenged the same nor did they lead any evidence to disprove it---Revision petition was dismissed accordingly.

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

----S.115---Revisional jurisdiction of High Court---Concurrent finding loaded with reasons---Scope---Even if the provisions of O.XX, R.5 and O.XLI, R.31 of the Civil Procedure Code, 1908, had not been complied with stricto sensu, concurrent findings of the Courts below can only be reversed if the judgments were without reasons and had not dealt with all the issues/controversies.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings---Scope---Mere fact that another view was possible on appraisal of evidence, concurrent findings of the fact in revisionary jurisdiction would not be disturbed.

A.R. Faruq Pirzada for Applicants.

Kalander Bakhsh Phulpoto for Respondents.

2023 C L C 100

[Sindh]

Before Muhammad Faisal Kamal Alam, J

ATIF SHABBIR----Plaintiff

Versus

RIZWAN RIAZ and 10 others----Defendants

Suit No.1886 of 2019, decided on 1st February, 2021.

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

----S.56---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Penal Code (XLV of 1860), S.489-F---Injunction to initiate judicial proceedings---Interim injunction, refusal of---Injunction when refused---Dishonestly issuing a cheque---Civil and criminal proceedings---Scope---Petitioner seeks ad-interim injunction restraining initiation of proceedings against him in respect of several cheques which have allegedly been stolen by defendant and handed over to others/interveners---First Information Reports have also been lodged against the plaintiff---Validity---Criminal proceedings and other civil litigation between the parties hereto relating the dishonouring of cheques is sub judice---Complaints about alleged fraud and cheating against plaintiff cannot justify that a restraining order be granted to plaintiff as it would have an adverse influence on any pending or future proceedings---Case of plaintiff is not confined to a cheque or few cheques given in pursuance of some undisputed transaction, which can justify a restraining order, in order to forestall further complications in the matter or multiplicity of the proceedings---Numerous cheques in question are in possession of different persons regarding which plaintiff has taken different stance, which require a proper trial---Interlocutory order cannot be extended even indirectly to those and to such matters which are not before the court---Ad-interim injunction cannot be extended to the dishonoured cheques---Application stands dismissed.

Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Digri Sugar Mills Limited, Karachi and 2 others v. Mian Kamran Ilahi through L.Rs. and 8 others PLD 2020 Sindh 678; Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Muhammad Hussain and 6 others v. Farzand Ali and 3 others PLD 1976 Lah. 1173; Messrs A.R. Bhuiyan & Co. Ltd. v. Messrs Centrotex Foreign Trading Corporation PLD 1968 Dacca 779 and Mistri Muhammad Ramzan v. Noor Muhammad and 2 others PLD 1995 Quetta 5 distinguished.

Saifullah Khan v. VIIth Additional District and Sessions Judge (East), Karachi and 7 others 2018 PCr.LJ 145; Khurram Naseemuddin v. Federation of Pakistan through Director General FIA Islamabad and 2 others PLD 2014 Sindh 264; Syed Ali Firdausi and 3 others v. Naveed Jahangir 2011 CLC 124; Imran Ullah Khan v. Station House Officer and 2 others 2010 YLR 1819 and Shalimar Soap Factory through Managing Partner v. Zulfeqar Industries Limited through Managing Director 2010 CLC 1285 ref.

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

----S.56---Injunction when refused---Scope---No absolute restriction on the Court in terms of S.56 of Specific Relief Act, 1877, for not granting injunction in respect of cheques and negotiable instruments where the circumstances so permit.

Muhammad Nouman Jamali for Plaintiff.

Khawaja Shams-ul-Islam and Shehzad Mehmood for Defendants Nos.10 and 11.

Maria Tahir and Waqar Ali for Defendant No.1.

Ghulam Ali Khan for Defendant No.2.

Iftikhar Hussain and Ms. Tania Alam for Defendant No.7.

Ms. Saima Imdad Mangi, Assistant Advocate General, Sindh for Defendant No.9.

Nemo for Defendants Nos.3 to 6 and 8.

2023 C L C 129

[Sindh]

Before Nadeem Akhtar, J

ADAM KHAN----Petitioner

Versus

GHULAM RASOOL and another----Respondents

Constitutional Petition No.S-30 of 2014, decided on 19th September, 2022.

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

----S.15---Eviction petition---Relationship of landlord and tenant, denial of---Dismissal of suit for specific performance---Scope---Landlord sought eviction of his tenant on the grounds of personal need and default in payment of monthly rent---Rent Controller directed the tenant to deposit arrears of rent and also the future rent---On failure of tenant to comply with the tentative rent order his defense was struck off and he was directed to handover possession of the premises---Appellate Court set aside the eviction order by holding that the issue regarding the relationship of landlord and tenant between the parties had not been decided by the Rent Controller---Validity---Tenant had failed to establish his alleged title in respect of the demised premises as suit for declaration and specific performance filed by him was dismissed, which dismissal had attained finality---Tenant had no locus standi to question or challenge the title of the landlord in the rent case especially when he himself had admitted in his counter affidavit that he had agreed to purchase the demised premises from the landlord and had paid substantial part of the alleged sale consideration---Judgment passed by Appellate Court was set aside and the order of eviction passed by Rent Controller was restored.

Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs PLD 2007 SC 504 ref.

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

----S.15---Specific Relief Act (I of 1877), S.12---Eviction petition---Suit for specific performance---Scope---If the tenant asserts that he is no more a tenant as he had purchased the rented premises, even then he has to vacate the premises and file a suit for specific performance of sale agreement; he would be entitled to possession of the premises in accordance with law only if he succeeds in his suit; till the time the civil court passes a decree against the landlord in a suit for specific performance, the landlord would be entitled to recover rent; and, till the time that the tenant is able to establish his claim for specific performance on the basis of sale agreement, the landlord would continue to enjoy the status of being owner and landlord of the premises, and till such time the relations between the parties would be regulated by the terms of the tenancy.

Haji Jumma Khan v Haji Zarin Khan PLD 1999 SC 1101; Kassim and another v. S. Rahim Shah 1990 SCMR 647; Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396; Syed Imran Ahmed v. Bilal and another PLD 2009 SC 546 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 ref.

M. Muzaffar Ayub Rana for Petitioner.

Ghulam Rasool Respondent No.1 (called absent).

District Judge Karachi East, Respondent No.2.

2023 C L C 149

[Sindh]

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

TARIQ PERVAIZ and others----Petitioners

Versus

DIRECTOR CIVIL AVIATION AUTHORITY and others----Respondents

Constitution Petitions Nos.D-3863 and D-4459 of 2021, decided on 10h December, 2021.

Civil Aviation Ordinance (XXXII of 1960)---

----Preamble---Constitution of Pakistan, Art.10-A---Settlement of dues---Due process of law---Applicability---Seizing of vehicles---Petitioners were owners of cars which were seized by Civil Aviation Authority in the wake of dispute arising with respondent company who had provided car rental services---Vehicles were summarily seized and taken into custody by functionaries of the Authority---Validity---Even if any such power existed with Civil Aviation Authority, its exercise for such an oblique purpose would tantamount to an abuse thereof---High Court directed the Authority to release subject vehicles forthwith to registered owners or their duly authorized representatives---High Court further directed that aggrieved parties could prefer their claims for compensation/damages before competent Court of civil jurisdiction---Constitutional petition was allowed, in circumstances.

Khawaja Muhammad Azeem for Petitioners (in C.P. No.D-3863 of 2021).

Ahteshamullah Khan for Petitioner (in C.P. No.D-4459 of 2021).

Blosch Ahmed Junejo for Civil Aviation Authority along with Muhammad Farooq Afzal, Joint Director (Legal), CAA (in both Petitions).

Khaleeque Ahmed, DAG.

Abdul Jaleel Zubedi, Assistant Advocate General, Sindh along with Ms. Shabana Pervez, Director Excise (Admin/MVR) and Adil Umer, AETO, M.R Wing, Karachi.

2023 C L C 176

[Sindh]

Before Aqeel Ahmed Abbasi and Rashida Asad, JJ

MASOOD AHMED KHAN----Appellant

Versus

KHALID ANWAR KHAN and 2 others----Respondents

High Court Appeal No.157 of 2015, decided on 17th January, 2022.

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

----Arts. 30, 79, 95, 117 & 118---Specific Relief Act (I of 1877), S.12---Suit for specific performance was filed by appellant/plaintiff claiming that he purchased the land from respondent No. 1 "A" vide agreement to sell; that out of total consideration, i.e. Rs.23,375,000/- appellant had paid amount of Rs.20,875,000/- and only Rs.2,500,000/- was remaining; that he approached several times to "A" but he did not execute the agreement; that "A" was trying to further sale the subject property---Respondent "B" being private limited company filed written statement admitting that it had sold the land including the subject property to "A" through sale agreement and execution of two General Powers of Attorney whereafter, "A" became the sole owner of the land---Appellant further asserted that after filing of the present suit, "A" admitted the appellant's claim and had executed a General Sub-Power of Attorney duly attested by foreign embassy---Suit was dismissed by the Trial Court---Appellant contended that in ex-parte proceedings, contents of the plaint were to be treated as true/correct; that in suits of specific performance attestation by two witnesses was not required; that no issue of fact/law was framed by the Trial Court, hence the appellant was not required to give evidence regarding existence/non-existence of execution of sale agreement---Validity---Proposition that in suit for specific performance burden would always lie upon the plaintiff to prove the factum of the sale agreement---Documents filed by the appellant remained un-rebutted/unchallenged as "A" chose to remain absent hence no denial/dispute regarding execution of sale agreement had been brought on record---Article 79 of Qanun-e-Shahadat, 1984 was not applicable in the present case---Findings of Trial Court that Sub-Power of Attorney which was executed by "A" was not brought to the notice of "A" were not tenable---Sub-Power of Attorney was properly executed by "A" before Consulate and the same was an undisputed document and could be relied upon even if it was not brought on file---Appellant was holding original document, i.e. sale agreement, payment receipts and sub-power of attorney---Appeal was allowed accordingly.

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

----Art.79---Two marginal witnesses, requirement of---Essentials---Provisions of Art. 79 of Qanun-e-Shahadat, 1984, are only applicable in cases where execution of a document is disputed between maker of document and the person in whose favour purportedly the same is executed only then such document is to be proved by producing two marginal witnesses.

Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others 2021 SCMR 415 rel.

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

----Art.95---Power of Attorney---Presumption as to genuineness---Scope---Presumption as to authenticity/genuineness of power of attorney has been attached to a document that was purporting to be a power of attorney and have been executed before and authenticated by a Notary Public/Court / Judge/Magistrate/Consulate/representative of Federal Government, was so executed/authenticated---Article 95 is mandatory in nature and Court is required to presume that all necessary requirements for the proper execution of the Power of Attorney have been duly fulfilled.

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

----Art.95---Power of Attorney, authentication of---Scope---Such authentication was not merely attestation, rather it also included the meaning that the person authenticating had assumed himself of the identity of the person who had signed the instrument as well as the fact of execution---Power of attorney bearing the authentication of Notary Public or an authority mentioned in Art.95 of Qanun-e-Shahadat, 1984 was taken as "sufficient", evidence of the execution of the instrument by the person, who appeared to be the prima facie executant.

Abbas Rasheed Rizvi, Nabeel Ahmed Khan and Shoaib Khatian for Appellant.

Nemo for Respondent No.1.

G.N. Qureshi for Respondent No.2.

None appeared for Respondent No.3.

2023 C L C 198

[Sindh]

Before Nadeem Akhtar, J

Mst. NADRA JAMIL SIDDIQUI----Petitioner

Versus

MUNIR AHMED and 2 others----Respondents

Constitution Petition No.S-431 of 2019, decided on 14th September, 2022.

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

----S.21---Limitation Act (IX of 1908), S. 5---Appeal---Limitation---Condonation of delay---Scope---Petitioner/Landlady filed rent case against the tenant for his eviction on the grounds of personal need and default in payment of monthly rent, which was dismissed---Appeal was also dismissed as being barred by limitation---Contention of petitioner was that she had filed an application under S. 5 of the Limitation Act, 1908, for condoning the delay in filing the appeal but the same was not considered---Validity---Provisions of S.5 of the Limitation Act, 1908, did not apply to the appeals filed under the Sindh Rented Premises Ordinance, 1979, wherein the limitation of filing the appeal was specifically prescribed in S.21 of the Limitation Act, 1908---Impugned order did not suffer from any illegality or infirmity and as such did not require any interference by the High Court in its constitutional jurisdiction---Petition was dismissed.

Mst. Rehana Begum v. Mst. Shagufta 1995 SCMR 323 distinguished.

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot 2006 SCMR 1248 and Allah Dino v. Haji Ahmed through Legal Heirs and 3 others PLD 2006 Kar. 148 rel.

(b) Constitution of Pakistan---

----Art.189---Decisions of Supreme Court binding on other Courts---Scope---Any decision rendered on a question of law or enunciation of principle of law laid down by Supreme Court is binding on all other Courts in Pakistan under Art.189 of the Constitution.

Muhammad Sajjad Abbasi for Petitioner.

Manzoor Hameed Arain for Respondent No.1.

2023 C L C 237

[Sindh]

Before Muhammad Shafi Siddiqui, J

LIAQUAT DAWOOD KUKDA----Plaintiff

Versus

Syed HASHIM RAZA and 2 others----Defendants

Suit No.1068 of 2018, decided on 12th October, 2022.

Civil Procedure Code (V of 1908)---

----O.VII, R. 11 & S.11---Rejection of plaint---Res judicata---Scope---Bank filed a suit against present plaintiff for recovery of certain amount---Suit was decreed and an execution petition was filed---Thereafter, a tripartite agreement was executed between plaintiff, defendant and Bank in execution of which documents were handed over to the defendant upon receipt of decretal amount---Plaintiff, thereafter, entered into an agreement with the defendant whereby defendant was obliged to keep the documents as surety for the payment he had made to the Bank---Banking Court, irrespective of any arrangement between plaintiff and defendant, directed for execution of conveyance deed in favour of defendant---Plaintiff filed present suit with the claim that the defendant was only entitled to keep the documents as surety till he was re-paid by the plaintiff---Defendant filed an application under O.VII, R.11, C.P.C., for rejection of plaint on the ground of res judicata---Validity---Res judicata did not apply as the only question arising out of the case was performance of subsequent agreement---Section 11, C.P.C., did not come in the way as it talked about the "competent Court" and the "relief claimed" in the suit---Banking Court was neither a competent Court to adjudicate upon performance of subsequent agreement nor was the subsequent agreement a subject matter of banking suit before Banking Court---Application under O. VII, R. 11, C.P.C. was dismissed.

Muhammad Ali Lakhani for Plaintiff.

Abdul Shakoor for Defendant No.1.

2023 C L C 284

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

MUHAMMAD UMAR (DECEASED) through Legal Heirs----Appellants

Versus

SIKANDAR ALI and 2 others----Respondents

2nd Civil Appeal No.S-02 of 2018, decided on 18th May, 2021.

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

----S.100---Second appeal---Scope---Second appeal under S.100, C.P.C, has very limited scope---Second appeal can be filed only on question of law or on question of mis-reading or nonreading of evidence or when decision of courts below was contrary to law or usage having force of law; or when some material issue of law had not been decided and when there was substantial error or procedural defect which had resulted in erroneous or defective decision.

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

----Ss.39, 42 & 54---Civil Procedure Code (V of 1908), S.100---Second appeal---Misreading and non-reading of evidence---Concurrent findings of facts by two Courts below---Appellant /defendant was aggrieved of judgments and decrees passed by two Courts below in favour of respondent / plaintiff---Validity---Decisions of Courts below were neither contrary to law nor any usage having force of law---Both the Courts in their judgments did not omit to decide "some material issue of law or usage having the force of law"---Not all instances of a Court's failure to decide an issue could suffer for the purpose of allowing an appeal---Only a failure to decide material issues existed which could enable an aggrieved party to invoke jurisdiction of an appellate Court---Question of materiality of an issue depended upon whether ultimate decision of Lower Appellate Court would have been different, if omitted issue was determined by it---In order to succeed in second appeal on ground mentioned in S.100 (1)(b), C.P.C., an appellant was to show that Lower Appellate Court would have reached a different conclusion, had it not failed to decide issue of law or usage specified in ground so mentioned---For consideration of ground mentioned in S.100(1)(c), C.P.C., it required an appeal, to show firstly that there was a substantial error or defect in procedure and secondly that such substantial error could have resulted in erroneous or defective decision of the case---High Court declined to interfere in judgments and decrees passed by two Courts below as no such substantial error had arisen---Second appeal was dismissed, in circumstances.

Ghulam Dastagir A. Shahani for Appellants.

Shakeel Ahmed Abro for Respondent No.1.

Liaquat Ali Shar, Additional Advocate General Sindh for Respondents Nos.2 and 3.

2023 C L C 344

[Sindh]

Before Nadeem Akhtar, J

ABDUL HAMEED ASGHAR (through L.Rs.) and others----Petitioners

Versus

Vth ADDITIONAL DISTRICT JUDGE-EAST and others----Respondents

Constitutional Petitions Nos.S-607, S-608 and S-609 of 2019, decided on 27th October, 2022.

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

----S.15---Eviction application---Trust property---Scope---Eviction applications were filed by respondent in his own name and not on behalf of the trust by pleading therein that he was "the lawful attorney of the owner" of the demised premises; it was not disclosed or pleaded by him that the demised premises were owned by the Trust or he was the landlord and the name of the Trust was not even mentioned anywhere in the applications---Question whether or not respondent had authority to file eviction applications on behalf of the trust was not discussed by the Rent Controller---Indeed an additional issue could be framed at the appellate stage and the parties could be allowed by the appellate court to adduce additional evidence in appeal, but such an exercise could be undertaken by the appellate court and not by the High Court in the petition under Art.199 of the Constitution---Impugned judgments were set aside and the cases were remanded to the Rent Controller with direction to frame a point for determination regarding maintainability of the eviction applications in view of the preliminary legal objections raised by the petitioners---Constitutional petitions were disposed of accordingly.

Yousaf and another v. Muhammad Zubair and another PLD 1986 SC 154, Standard Vacuum Oil company v. Mir Laik Ali and others PLD 1962 (W.P.) Karachi 727; The Darul Uloom Naieemia Trust v. Munir Ahmed 1984 CLC 3483 and Okhai Memon Jamia Masjid Trust and another v. IIIrd A.D.J. Karachi (Central) and others 2007 YLR 2083 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---High Court in its constitutional jurisdiction can look into the legality or otherwise of the proceedings before lower courts and the orders and judgments pronounced by them or any jurisdictional defect therein.

Syed Muhammad Yahya along with Mrs. Rukhsana Yahya for Petitioners.

2023 C L C 372

[Sindh]

Before Muhammad Shafi Siddiqui, J

SHARIF ULLAH KHAN----Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINES LIMITED through Chairman and 2 others----Defendants

Suit No.3084 of 2021 and C.M.A. No.22824 of 2021, decided on 10th January, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss. 21 & 56---Easements Act (V of 1882), Ss. 60 & 62---Contracts not specifically enforceable---Injunction when refused---Licence when revocable---Licence when deemed revoked---Temporary injunction, refusal of---Scope---Petitioner sought an injunction restraining the defendant to re-auction the right of lifting of garbage in view of his agreement with the defendant---Validity---Agreement provided that the same was effective for a year unless the owner/defendant terminated the same---Defendant had "acquired" right under the agreement to terminate it without assigning any reasons specifically in relation to the agreement which was in the shape of a permissible right which could only be granted as a licence agreement---Status of the agreement was of a licence, therefore, no vested right could accrue in favour of petitioner---In terms of Ss. 60 & 62 of the Easements Act, 1882 it was not vested right of a licensee to enforce the terms of such agreement which in its present form only presented permissible rights i.e. terms of agreement as stated therein which could be withdrawn, even without notice in case of a licence---Petitioner's right was not matured to enforce rest of the agreed obligation including the tenure of one year---Petitioner had already secured his right by way of the suit in the shape of recovering damages---Section 21(d) of the Specific Relief Act, 1877, provided that the agreement could not be enforced which in its nature was revocable---Section 56(f) of the Specific Relief Act, 1877, provided that an injunction could not be granted to prevent the breach of a contract, the performance of which could not be specifically enforced---No case of any injunctive order had been made out---Injunction application was dismissed.

Muhammad Safdar for Plaintiff.

Agha Zafar Ahmed for Defendant No.1.

2023 C L C 398

[Sindh]

Before Kausar Sultana Hussain, J

Messrs LABBAIK (PVT.) LTD.----Appellant

Versus

FEDERATION OF PAKISTAN and 2 others----Respondents

M.A. No.04 of 2021, decided on 25th October, 2021.

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

----S.13 [as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)]---Delegation of power---Word 'suspend'---Scope---Legislature omitted word 'suspend' making its intent lucid that such power could be delegated, leaving no ambiguity---Such delegation cannot be termed as quasi-judicial or non-delegable.

(b) Constitution of Pakistan---

----Arts. 19 &19-A---Freedom of speech, expression and information---Principle---Constitution while guarantee freedom of speech also put some restraints over such right which has been clearly articulated in it which also include but not limited to contempt of Court---Similarly rights enshrined through Art. 19-A of the Constitution, regarding access to information in all matters of public importance are also subject to regulations and reasonable restrictions imposed by law---Such restrictions and certain enactments are neither uncommon nor distinctive from rest of the world.

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

----Ss. 13, 29, 30 & 30-A [as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)]---Appeal---Delegation of power---Proof---Imposing of fine---Appellant company was engaged in television broadcasting and Pakistan Electronic Media Regulatory Authority suspended its broadcast for thirty days with imposing of fine of Rupees One Million for airing content leveling personal allegations against higher judiciary---Plea raised by appellant was that the punishment was imposed without hearing the appellant and without having any authority delegated to Chairman Pakistan Electronic Media Regulatory Authority---Validity---Decision of suspension of broadcast passed by Chairman Pakistan Electronic Media Regulatory Authority under S.30(1) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, in exercise of delegation of authority vested in him under S.13 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---High Court set aside the order passed by the Authority suspending broadcast in the wake of absence of rules as necessitated in such behalf---Authority was at liberty to take up the issue again by itself in accordance with S.30 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, or by the Chairman subject to the condition that rules were framed by competent authority under S. 13 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and de novo proceedings could be adopted by the Chairman in accordance with law and rules so framed---High Court set aside decision of imposing fine under S.29 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, as no evidence had come on record regarding lawful delegation of such powers to the Chairman Pakistan Electronic Media Regulatory Authority by the Authority under S.13 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Authority was at liberty to take up the issue again by itself in accordance with S.29(6) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 or by the Chairman subject to rules---Appeal was disposed of accordingly.

MFMY Industries Ltd. v. Federation of Pakistan and 2015 SCMR 1550; PLD 2020 Sindh 733; PLD 2019 Lah. 486; PLD 2016 SC 637; 2020 SCMR 1822; B. Morphy v. Boston Herald, Inc. and another decided on 7th May, 2007; PLD 2019 SC 1; PLD 2016 SC 37; 2013 SCMR 1159; 2009 CLD 1498; 2017 SCMR 1179; 2020 CLC 534; 2013 CLC 1376; PLD 2020 Sindh 204; PLD 2020 Isl. 343; 2016 SCMR 943; 1998 SCMR 1863; PLD 1999 SC 1126; PLD 2020 Kar.733; 2005 SCMR 678; 2009 SCMR 1407; PLD 2019 SC 190; 2015 SCMR 630; 2010 SCMR 1301; 2009 SCMR 1354; PLD 1991 SC 14; PLD 2005 SC 193; PLD 2019 SC 318; 2019 PTD 1922; PLD 2017 Lah. 709; PLD 2016 SC 692; 1993 SCMR 1533; 2017 SCMR 1249; 2018 SCMR 1820; PLD 2018 SC 773; 2018 PCr.LJ 899; 2019 SCMR 542; 2019 YLR 574; PLD 2017 Lah. 545; 2000 SCMR 1305; 2012 SCMR 268; 1974 SCMR 123; 2016 SCMR 808; 2000 SCMR 1305; 2019 SCMR 846; PLD 1993 SC 129 and 2018 YLR 169 rel.

Abid S. Zuberi and Ayan Mustafa Memon for Appellant.

Mohammad Ahmed, Asstt. Attorney General for Respondents Nos.1 and 2.

Kashif Hanif for Respondents Nos.2 and 3.

2023 C L C 456

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Mrs. TARANUM SABIH----Plaintiff

Versus

SINDH BUILDING CONTROL AUTHORITY through Director and 8 others---Defendants

Suit No.1202 of 2005, decided on 13th September, 2022.

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

----S.7-A---Specific Relief Act (I of 1877), S.54---Suit for injunction and recovery of damages---Un-authorized construction---Demolishing---Notice, non-issuance of---Plaintiff was aggrieved of demolishing of her construction by officials of Sindh Building Control Authority (SBCA), over plot lawfully owned by her---Validity---Plaintiff started raising construction on suit plot after approval of building plan and it was illegally demolished by defendants---Construction was not raised in violation of approved plan---Defendant / SBCA failed to prove that prior notice was served on plaintiff before taking demolition action---Defendant / SBCA, should have effected service of notice prior to taking demolition action under S.7-A of Sindh Building Control Ordinance, 1979, so also Building and Town Planning Regulations---Not sufficient for defendants to merely "issue" a notice before taking any action---Plaintiff was owner of suit plot and was continuously deprived of her right to use and enjoy the same, for the past eighteen years---Defendants / SBCA and its officials were unable to prove that subject lease was cancelled after due process of law---Ownership right was a fundamental right guaranteed under the Constitution and its breach should be remedied forthwith---Official defendants instead of addressing genuine grievance of plaintiff, opted to contest litigation that too on flimsy grounds---Plaintiff was entitled for her claim of damages, that was, of Rs.110,600,00/- payable by defendants, jointly and severally---High Court directed the defendants to pay damages to the tune of Rs.110,600,00/- to plaintiff with 10% markup from the date of institution of suit till realization of said amount---High Court further directed that plaintiff was also entitled for the costs of litigation---Suit was decreed accordingly.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; PLD 2010 SC 759; In the matter of: Human Rights Case Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010; Muhammad Faisal through General Power of Sub-Attorney and others v. The Cantonment Board Faisal, Karachi through Cantonment Executive Officer and 2 others PLD 2020 Sindh 427; Asif Majeed and 3 others v. Karachi Metropolitan Corporation through Mayor, Karachi 2020 MLD 1810; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101; Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6 and Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737 ref.

Ahmed Ali Hussain, Zorain Khan and Aman Aftab for Plaintiff.

Afsheen Aman and Muzaffar Ali for Defendant No.1.

Khurram Ghayasuddin for S.B.C.A.

Naseer Ahmed for Defendant No.2.

Pervez Ahmed Mastoi, Assistant Advocate General Sindh for Defendants Nos.3 - 9.

2023 C L C 499

[Sindh]

Before Muhammad Faisal Kamal Alam, J

WESTERN TEXTILE INDUSTRIES and another----Plaintiffs

Versus

THE FEDERATION OF PAKISTAN and others----Defendants

Suits Nos.611 and 610 of 2022, decided on 31st August, 2022.

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

----Ss.11 & 43---Complaint Resolution Procedure (Natural Gas, Liquefied Petroleum Gas [LPG], Compressed Natural Gas [CNG] and Refined Oil Products) Regulations, 2003---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---Gas connection---Category---Civil Court, jurisdiction of---Plaintiff companies were licensed as Export Oriented Units who claimed enhanced supply of natural gas for consumption of their units---Validity---Oil and Gas Regulatory Authority, under Oil and Gas Regulatory Authority Ordinance, 2002, had ample powers to determine any nature of dispute between a licensee and the Customer / Consumer (present Plaintiffs) hence suits are not maintainable---Provision of S.43 of Oil and Gas Regulatory Authority Ordinance, 2002 had an overriding effect---Jurisdiction of Civil Court plenary in nature was not specifically ousted, yet exclusive jurisdiction vested in concerned Authority and provisions of Oil and Gas Regulatory Authority Ordinance, 2002, had barred jurisdiction of a Civil Court---Even an injunctive relief could be granted by the Authority under Complaint Resolution Procedure (Natural Gas, Liquefied Petroleum Gas [LPG], Compressed Natural Gas [CNG] and Refined Oil Products) Regulations, 2003---High Court declined injunctive relief as gas connections were restored and Industrial Units of plaintiffs were running---High Court directed the Authority to formulate and implement a Policy, which should not result in closure of businesses of consumers, including present plaintiffs, as the same would be violative of Arts.18 & 24 of the Constitution, relating to trade, business and proprietary rights---Plaintiffs were at liberty to invoke jurisdiction of Oil and Gas Regulatory Authority, in accordance with Oil and Gas Regulatory Authority Ordinance, 2002, and other Regulations---Application was dismissed accordingly.

Government of Pakistan v. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others 1992 SCMR 1852; Security Organizing System Pakistan (Pvt.) Ltd. through Chief Operating Officer v. National Bank of Pakistan through President and 6 others 2021 MLD 1049; General Manager, SNGPL, Peshawar v. Qamar Zaman and others 2021 SCMR 2094; Oil and Gas Regulatory Authority through Secretary v. Sui Southern Gas Company Limited and others 2018 SCMR 1012; Muhammad Azam Khan Niazi v. General Manager, SNGPL, Islamabad 2019 CLC 1998; Sahibzada Nisar Ahmad Jan v. Suit Northern Gas Pipeline Ltd., through General Manager 2021 CLC 851 and Messrs Sui Southern Gas Company Limited through Attorney v. Oil and Gas Regulatory Authority through Chairperson and 2 others PLD 2021 Isl. 378 ref.

Ali Nawaz Khuhawar for Plaintiffs.

Ghulam Mohiuddin, Assistant Attorney General for Pakistan for Defendant No.1.

Ameer Nusherwan Adil and Ghazi Khan Khalil along with Bilal Farooq Alvi, Senior Legal Counsel, SSGCL Department and Nadra Tabassum, Deputy Manager, SSGCL for Defendant No.2.

2023 C L C 538

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio and Zulfiqar Ali Sangi, JJ

MUHAMMAD QASIM----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 7 others----Respondents

Constitution Petition No.D-2308 of 2022, decided on 6th July, 2022.

Elections Act (XXXIII of 2017)---

----S.60(2)(a)---Constitution of Pakistan, Art.63(1)(o)---Local Government Election---Seat of General Councilor---Disqualification---Defaulter of utility dues---Failure to declare assets---Petitioner assailed nomination papers filed by respondent on the plea that he did not declare vehicles while declaring his assets and was also defaulter of Electric supply company---Validity---Respondent at the time of filing his nomination papers was a defaulter of Electric Supply Company, so also he concealed assets and did not declare / disclose the same in Declaration of Assets Form attached with nomination papers---Respondent was not eligible to contest election and orders passed by Returning Officer and Election Appellate Authority, accepting nomination papers of respondent were set aside---High Court rejected nomination papers of respondent---Constitutional petition was allowed accordingly.

Saeed Ahmed and others (C.P. No. D-633 and others of 2022) rel.

Murtaza Lund for Petitioner.

Allah Bachayo Soomro, Addl. A.G. Sindh along with Abdul Hafeez Nizamani Commissioner RTO IR Hyderabad and Muhammad Ibrahim R.O. 6 Taluka Jhando Mari Tando Allahyar ADC-I Tando Allahyar.

Fayyaz Ahmed Leghari/HESCO files statement along with photostat copies of Electricity Consumption Charges Bills; taken on record.

Ashfaque Nabi Qazi, Assistant Attorney General for Pakistan.

Zaheer Abbass Advocate / Law Officer, ECP.

Pervaiz Tariq Tagar Advocate files Vakalatnama for private respondent No.8, and statement along with documents; taken on record.

2023 C L C 560

[Sindh]

Before Syed Hasan Azhar Rizvi, J

DIGITAL BRIDGE (PRIVATE) LIMITED through authorized representative----Plaintiff

Versus

FEDERATION OF PAKISTAN through Ministry of Information Technology and Telecom and 6 others----Defendants

Suit No.985 of 2020, decided on 3rd November, 2021.

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

----S.7---Civil Procedure Code (V of 1908), S.9, O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Interim injunction, refusal of---Prima facie case and balance of convenience---Proof---Right of appeal, non-availing of---Plaintiff company was awarded 'License to Establish, Maintain and Operate as Third Party Service Provider for financial and applications in Pakistan---Plaintiff company assailed commercial launching of Assan Mobile Account Scheme by the defendant---Validity---Any decision of Pakistan Telecommunication Authority ('Authority') defendant in respect of certificate of commencement of business was appealable under S.7 of Pakistan Telecommunication (Re-organization) Act, 1996, even then suit could be filed before High Court in presence of such exclusive remedy---Alternate remedy of appeal was available to aggrieved party which could lie against decision or order of the Authority---Civil Court under S.9, C.P.C. had jurisdiction to entertain any suit in relation to any civil matter except when the same was expressly or impliedly barred by law---Civil Court to examine orders passed by Authority could not be ousted if action itself was tainted with mala fide---High Court had jurisdiction to examine orders of an authority as valid or not---Plaintiff had no connection with defendant nor any of its grievances were justified against the Authority---Any such actual or perceived grievance could not in any manner be used as a justification for restraining defendant from operating its business--- High Court declined to grant interim injunction as plaintiff failed to make out a prima facie case nor balance of convenience was in its favour---Application was dismissed in circumstances.

Mian Sultan Ali Nanghiana v. Mian Nur Husain PLD 1949 Lah. 301; H.H. Ahmed v. Pakistan through Secretary Ministry of Rehabilitation and Works PLD 1972 Kar. 366; Syed Mushtaque Hussain Shah v. Riaz Muhammad Hazarvi and another PLD 1978 Kar. 612; Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and 4 others PLD 2008 Kar. 458; Muhammad Azam Khan Niazi v. General Manager SNGPL Islamabad 2019 CLC 1998; Administrator Thal Development v. Ali Muhammad 2012 SCMR 730; Trustees of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 197; East and West Steamship Company v. Government of Pakistan and 2 others PLD 1958 SC 41; A.R. Khan & Sons (Pvt.) Ltd. v. Federation of Pakistan 2010 CLD 1648 and Let-Gen (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 ref.

Haider Waheed for Petitioner.

Muhammad Ahmer, Assistant Attorney General.

Wasif Riaz for Defendant No.2/PTA along with Ali Akbar Sahito, Deputy Director (Law) and Amir Qureshi, Assistant Director (Law).

Ijaz Ahmed Zahid and Niaz Brohi for Respondent No.3.

2023 C L C 592

[Sindh]

Before Kausar Sultana Hussain, J

ABDUL WAHEED----Applicant

Versus

Syed AKBAR HUSSAIN WASTI----Respondent

Civil Revision Application No.116 of 2017, decided on 28th February, 2022.

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

----Arts.59 & 84---Suit for specific performance and injunction---Respondent alleged in his plaint that he purchased the suit property through written agreement to sell (consisting two shops and a house) for total consideration of Rs.12,00,000/-; that he paid Rs.400,000/- as earnest money and the remaining amount of Rs.800,000/- was agreed to be paid at the time of execution of registered sale deed---Respondent's suit, in the first round of litigation, was remanded by appellate Court directing the Trial Court to re-examine two documents i.e. sale agreement and receipt of payment after verification of disputed signatures of the applicant---Suit was concurrently decreed in second round of litigation---Appellant categorically denied the execution of any agreement and questioned the genuineness of the signature on the said agreement---Validity---Trial Court had received opinion of the qualified hand writing expert and later summoned him to record his evidence---Expert appeared as witness and was examined and cross-examined---Hand writing expert stated in his report that there was no similarity between the signatures appeared on the sale agreement/receipt as compared to the other admitted signatures of the appellant---Handwriting Expert, in cross-examination, vehemently denied the genuineness of the signatures---Respondent/plaintiff had produced one of the witnesses of alleged sale agreement before the Trial Court---Appellant had failed to produce a single witness in support of his version that the alleged sale agreement/receipt were forged documents---Categorical denial by the appellant of his alleged signatures supported by the Expert opinion/oral evidence of the hand-writing expert, no doubt, was relevant evidence to understand that the same documents were suspected ones and that the documents could not be treated as signed by the applicant unless proved contrary---Courts below could also have to express their opinion on the disputed signatures of the applicant on the documents by making comparison thereof with his admitted signatures---Both the Courts below did not adopt such method in order to decide the matter with all clarity---High Court examined the general characteristics, formation of letters, fixed pan habits and discern the identity of the writer---High Court found the style of writing Urdu alphabets in his signature on admitted documents were similar while were dissimilar with the Urdu alphabets of his signatures on disputed documents---High Court had exercised due care/caution at the time of determining the genuineness of alleged signatures of applicant and decided that the same were not genuine and the documents in question were fake---Revision application was dismissed accordingly.

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

---Art.59---Jurisdiction of High Court---Concurrent findings of fact---Scope---Concurrent findings of facts by the Courts below could not be disturbed by the High Court in exercise of its judgment under S.100 or S.115 of the Civil Procedure Code, 1908; unless the Courts below while recording the finding of facts had either misread the evidence or have ignored any material piece of evidence on record or finding of the facts recorded by the two Courts below was perverse.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

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

----Art.59---Handwriting Expert was not a witness of fact---Expert's evidence was of advisory character and he could depose but could not decide---Expert's evidence was opinion evidence and the same could not take the place of substantive evidence.

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

----Arts. 59 & 84---Report of Hand-writing Expert was not binding on the Court nor would it have to be relied upon straightaway unless there is supportive /corroborative evidence---Such report is just opinion evidence and the Court could, on its own, examine the documents and determine for itself whether the hand-writing was identifiable as that of the person concerned or not.

Muhammad Mustafa and Younus for Applicant.

Syed Ehsan Raza for Respondent.

2023 C L C 630

[Sindh]

Before Muhammad Faisal Kamal Alam, J

WASIM IQBAL----Plaintiff

Versus

Messrs KARWAN-E-ISLAMI INTERNATIONAL through Proprietor/Chief Executive/Owner/Partner and 3 others----Defendants

Suit No.1008 of 2007, decided on 14th September, 2022.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration and recovery of damages---Professional incompetence---Unethical behaviour---Plaintiff claimed damages from defendants on the plea that despite payment of initial charges and all required documents, defendants could not take him to perform Umrah---Contention of defendants was that due to change in Umrah Policy of Saudia Arabia, plaintiff could not visit to perform Umrah---Validity---Defendants claimed to be well known and reputable tour operators for Haj and Umarah---Defendants were required to know policies of governments at the relevant time in order to avoid inconvenience to genuine applicants---If there was a policy of government that an individual below the age of 40 years could not perform Umrah without being accompanied by his family, then defendants in the first place should have refused to accept the documents, passport and initial payment from plaintiff but they did not---Defendants accepted documents and through their conduct, made the plaintiff believed that he would be traveling to perform Umrah---Any individual or entity engaged in business of tour operators and that too for Hajj, Umrah and Ziaraat, was expected to demonstrate higher standard of business ethics without compromising their principles for commercial consideration---Plaintiff was entitled to general damages and defendants were jointly and severally liable to pay damages to plaintiff---Suit was decreed accordingly.

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

Ch. Muhammad Iqbal for Petitioner.

Nemo. for Defendants Nos.1, 2 and 3.

Jameel Ahmed Shah, Assistant Attorney General for Defendant No.4.

2023 C L C 695

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

FARAZ ALI and 5 others----Petitioners

Versus

PROVINCE OF SINDH through Secretary to Governor and 5 others----Respondents

C.P. No.D-2561 of 2019, decided on 15th March, 2021.

(a) Educational institution---

----Right to appear in examination---Scope---Petitioners sought direction to the educational institution to let them appear in the ongoing examination of BBA (Hons)---Validity---Petitioners did not meet the eligibility criteria for getting admission in BBA (Hons) being offered by the educational institution---Since the educational institution, also a degree awarding authority, was disputing the very admission of the petitioners, therefore, the petitioners could not claim to have acquired a vested right to appear in the examination and continue with their studies in the BBA (Hons)---High Court observed that since the educational institution was instrumental in providing admission to the petitioners in BBA (Hons) despite their lacking eligibility criteria, as such, it was liable to refund the fee so far collected from the petitioners and/or provide them benefit in the shape of credit hours for the period that they had studied, if the law/rules/regulations/policy so permitted---Constitutional petition was dismissed.

(b) Educational institution---

----Policy, disciplinary and administrative matters of an educational institution---Interference by Courts---Scope---Prospectus, rules and regulations framed by the public educational institution are meant as administrative policy of the respective institute, which are recognized and made applicable to all the candidates without any discrimination---In academic matters the University authorities are the best judges to interpret their Rules and Regulations---Normally courts are reluctant to interpret the same unless a case of grave injustice is made out otherwise it would become difficult for the universities to run their affairs.

Fakharyar v. Agriculture University Peshawar PLD 2016 Pesh. 266 ref.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

(c) Educational institution---

----Policy, disciplinary and administrative matters of an educational institution---Interference by Courts---Scope---Educational institutions are bound by the policy laid down in their prospectus---Students are also required to follow the policy---High Court in exercise of its constitutional jurisdiction does not interfere in the matters of examinations and/or admissions to the educational institutions as the authorities concerned are sole judges of the criteria laid down by the institutions in their prospectus and/or calendar unless an ex-facie case of jurisdictional error is pointed out.

Muhammad Abdullah Riaz v. University of Health Sciences (UHS) Lahore and another PLD 2011 Lah. 555; Sahiba Dost v. Chairman Admission Board/Vice-Chancellor, UHS, Lahore PLD 2011 Lah. 605 and Usman Tariq v. Punjab Public Service Commission and others 2013 PLC (C.S.) 1183 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the framework of Constitution and this extraordinary jurisdiction of High Court may be invoked to encounter and collide with extraordinary situation and non-availability of any alternate remedy under the law where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts---Mandatory and obligatory for a party invoking the constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy.

Muhammad Dilawar Qureshi for Petitioners.

Allah Bachayo Soomro for Respondent No.1.

Najab Din Rajpar for Respondents Nos.2 to 5.

2023 C L C 723

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio and Zulfiqar Ali Sangi, JJ

ZAKIR HUSSAIN KHOKHAR----Petitioner

Versus

ASSISTANT COMMISSIONER TANDO ALLAHYAR and 2 others----Respondents

Constitution Petition No.D-2647 of 2022, decided on 21st July, 2022.

Elections Act (XXXIII of 2017)---

----Ss.60 & 225---Sindh Local Government Act (XLII of 2013), Ss.36(f)(g) & 152---Income Tax Ordinance (XLIX of 2001), Ss. 114(4), 121 & 182---Constitution of Pakistan, Arts. 62, 63 & 199---Constitutional petition---Disqualification---Nomination papers, acceptance of---Petitioner was aggrieved of acceptance of nomination papers of respondent by Election Authorities---Plea raised by petitioner was that criminal cases were registered against respondent, who was defaulter of utility dues and income tax authorities---Validity---Petitioner did not produce any bill of utility authorities which could suggest that respondent at the time of filing his nomination papers was a defaulter over six months, and amount was over Rs. 10,000/- nor any of the utility authorities objected to nomination forms of respondent on such ground---Respondent submitted certificates of different Banks along with his nomination papers which reflected that he was not a defaulter of any of the Banks nor had obtained any loan facility---No evidence was available that any criminal case arising out of F.I.Rs. produced by petitioner was pending before any Court against respondent---Even the person who was convicted had challenged his conviction whose appeal was not decided finally by Appellate Court--- After notice by Federal Board of Revenue if any person had not filed returns within time, then he was to be proceeded under S.121 of Income Tax Ordinance, 2001 and was liable to be penalized under S.182 of Income Tax Ordinance, 2001 who had also a remedy to challenge such decision of authority under S.127 of Income Tax Ordinance, 2001---No such proceedings were initiated against respondent by Federal Board of Revenue, therefore, he could not be declared as defaulter of income tax department---High Court declined to interfere in acceptance of nomination papers by Election Authorities---Constitutional petition was dismissed, in circumstances.

Murad Bux v. Kareem Bux and others 2016 SCMR 2042; Saeed Ahmed and others, Constitutional Petition No. D-622 of 2022; Sikandar Hayat Khan Bosan v. Syed Yousaf Raza Gillani and another 2008 CLC 240 and Muhammad Arshad v. Returning Officer and others 2006 YLR 48 ref.

Barrister Jawad Ahmed Qureshi and Osama Yousuf Parhyar for Petitioner.

Allah Bachayo Soomro, Addl. A.G. Sindh, Ashfaque Nabi Qazi, Assistant Attorney General for Pakistan and Zaheer Abbas Advocate/Law Officer, ECP for Respondents Nos.1 and 3.

Nemo for Respondent No.2.

2023 C L C 776

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ABDUL HAFEEZ----Applicant

Versus

FEDERATION OF PAKISTAN through Chairman NADRA and another----Respondents

Civil Revision Application No.92 of 2022, decided on 26th May, 2022.

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

----S.42---Correction of date of birth---Burden of proof---Applicant filed suit for declaration and mandatory injunction against the respondents for the correction of his date of birth---Trial Court dismissed the suit and appeal thereagainst was also dismissed by the Appellate Court---Held, that as to the burden of proof in respect of issue laid upon the applicant and he in support of his version examined himself and his brother---Applicant deposed that his actual date of birth was 13.09.1996---Applicant applied for issuance of CNIC mentioning his date of birth as 13.09.1996 but NADRA authorities mentioned it incorrectly in CNIC as 01.01.1989 instead of 13.09.1996---Applicant further deposed that against such a mistake in his CNIC, he approached NADRA but they refused and asked to bring a Court decree, therefore, applicant filed present suit---During cross examination, applicant admitted that he knew that CNIC was issued at the age of 18 years---Applicant also admitted that if his date of birth was counted from 1996 then till 2010, when he applied for CNIC, his age was 14 years---Applicant also admitted that his educational documents had been issued seven years later after the issuance of his CNIC---In support of his contention, applicant also examined his brother, who deposed that the actual date of birth of the applicant was 13.09.1996---Respondents examined Assistant Superintendent, NADRA Office, who deposed that in the year 2010 applicant applied for obtaining his CNIC and submitted a CNIC form showing his date of birth as 01.01.1989 and not 13.09.1996 and on the information provided by the applicant, NADRA authorities issued CNIC to the applicant---In his deposition, said witness also clarified that if the date of birth of the applicant was considered as 13.09.1996, the age of the applicant was just 14 years when he applied for CNIC, which was against the registration policy---In cross-examination the material substance in respect of the date of birth of the applicant could not be shattered---Applicant himself failed to get his date of birth corrected by filling up the required form timely when he originally applied for his CNIC, which request after ten years of the issuance of the said CNIC could not be allowed---Applicant himself applied for the issuance of Smart Card in the year 2010 when he himself declared his date of birth as 01.01.1989 which showed that at the time of issuance of CNIC, he was 21 years old---Applicant definitely would have used his CNIC for ten years, and thereafter filed the present suit in the year 2021---Applicant did not produce any educational documents as to when he obtained his first CNIC---All the documents were issued later than the issuance of CNIC---Hence, authenticity and legitimacy of the documents were highly questionable---Applicant had failed to produce his B-Form, FRC, Birth Certificate or any documentary proof to show that there was any difference of the age inter se with his other family members---Before the Trial Court, applicant appeared in the witness box being not aware regarding the spelling of the word "Metric" (the exams he claimed to have passed) which showed that he was probably still an uneducated person and both the education and birth related documents were managed---Revision application was dismissed.

Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 rel.

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----S.40---Specific Relief Act (I of 1877), S.42---Suit for correction in date of birth---Bar to file suit---As per CNIC applicant was resident of District 'K' and in his CNIC, permanent and temporary both addresses were that of District 'K', but the applicant filed suit before the Trial Court in District 'H' without mentioning any reason that why he had not filed suit before Trial Court at District 'K' where he was settled---Furthermore, no suit, prosecution or other legal proceedings could be instituted against Federal Government or Provincial Government or Local Authority, any Registration Officer or any other person exercising any power or performing any function under the NADRA Ordinance, 2000, for anything which was done in good faith---Revision application was dismissed.

Muhammad Kaleemullah Memon for Applicant.

Nemo for Respondents.

2023 C L C 800

[Sindh]

Before Zafar Ahmed Rajput and Muhammad Faisal Kamal Alam, JJ

Syed RAFAT ABBAS JAFFERI----Petitioner

Versus

SIKANDER AHMED GHOURI and 6 others----Respondents

Constitution Petition No.D-2363 of 2009, decided on 14th September, 2022.

Constitution of Pakistan---

----Art.199---Constitutional petition---Collateral proceeding, rule of---Applicability---Suppression of facts---Petitioner assailed award issued by Registrar Cooperative Societies in favour of respondent regarding property in question---Validity---Award was subsequent in time in which petitioner was not made party, though it was observed in the award itself that notices were issued to petitioner being a necessary party, but she never came forward---Civil court had plenary jurisdiction to decide matters and judgment and decree passed in civil suit was not nullity in the eyes of law for the reason that it decided the matter on the basis of documentary evidence---Consequence and effect of judgment and decree could not be directly or indirectly diluted in subsequent proceedings before Registrar under Cooperative Societies Act, 1925, especially when two registered instruments, i.e. lease deed and conveyance deed were also available in record in favour of first allotee---Rule of collateral proceeding was applicable to the case of petitioner who impleaded responded in her litigation, whereas respondent did not implead petitioner in subsequent proceedings before Registrar---Such subsequent proceeding before Registrar were tainted with mala fide and consequently award could not override a Civil Court decree---High Court set aside award passed by Registrar Cooperative Societies and writ of possession issued by him was quashed---Constitutional petition was allowed accordingly.

Abdul Haq v. Thakumal and 4 others 2017 YLR 1816 rel.

Mubarak Hussain Siddiqui and another v. Sajjad Hussain Khan and another PLD 1992 Kar. 167; Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others PLD 1995 Kar. 399; Shahul Hamid v. Tahir Ali 1980 SCMR 596; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others 1989 SCMR 949 distinguished.

Ms. Naila Kausar for Petitioner.

Shahenshah Hussain and Younus Sayeed for Respondent No.1.

Nemo for Respondents Nos.2 to 7.

2023 C L C 812

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

SAJJAD ALI and others----Applicants

Versus

ABDUL HAMEED and others----Respondents

Civil Revisions Nos.124 and 125 of 2006, decided on 15th October, 2021.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of agreement to sell---Sale consideration---Proof---Scribe of document---Status---Applicants/plaintiffs sought specific performance of agreement to sell regarding suit property in their favour---Suit and appeal were concurrently dismissed by two Courts below---Validity---Onus was on applicants/plaintiffs to prove sale transaction in respect of suit property, which they had failed to prove---Plea of applicants/plaintiffs that scribe of document was also witness to entire proceedings had no force---Mandatory requirement as envisaged in Arts.17 & 79 of Qanun-e-Shahadat, 1984, were not complied with--- No sale consideration was given as claimed by respondents/defendants, disproving claim of applicants/plaintiffs---Suit filed by applicants/plaintiffs for specific performance was a frivolous litigation and was also barred by limitation---High Court in exercise of revision jurisdiction declined to interfere in judgments and decrees passed by two Courts below as there was no material irregularity and illegality existed in judgment of Lower Appellate Court---Revision was dismissed in circumstances.

Sikandar Ali and 2 others v. Baddar-u-Din and 4 others 2019 CLC 1046; Muhammad Bashir v. Muhammad Sarwar and 2 others 2016 MLD 594; Muhammad Sher v. Maula Bakhsh 2014 CLC 1745; Muhammad Rafiq v. Muhammad Zahur Nasir and others PLD 1956 Lah. 354; Muhammad Sharif and another v. Malik Abdul Razzaq and others 2011 MLD 736; Dr. Major Abdul Ahad Khan through his Legal Representatives v. Muhammad Iqbal through his Legal Representatives PLD 1989 Kar. 102; Miss. Shama Ahsan v. Province of Sindh and 6 others PLD 1984 Kar. 195; Government of N.W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 and Hakim-ud-Din through LRs and others v. Faiz Bakhsh and others 2007 SCMR 870 ref.

Kalandar Bakhsh M. Phulpoto for Applicants (in Civil Revision No.124 of 2006).

A.M. Mobeen Khan for Respondents Nos.1 to 8 (in Civil Revision No.124 of 2006).

Nemo for Respondent No.9 (in Civil Revision No.124 of 2006).

Kalandar Bakhsh M. Phulpoto for Applicants (in Civil Revision No.125 of 2006).

A.M. Mobeen Khan for Respondents Nos.1 to 8 (in Civil Revision No.125 of 2006).

Nemo for Respondent No.9 (in Civil Revision No.125 of 2006).

2023 C L C 861

[Sindh]

Before Zulfiqar Ahmad Khan, J

GUL BANO----Plaintiff

Versus

SHAHNAZ BANO and others----Defendants

Suit No.318 of 2016, decided on 19th September, 2022.

Civil Procedure Code (V of 1908)---

----S.2(12) & O.XX, R.12---Suit for partition of property and recovery of mesne profits---Co-owner---Possession, deprivation of---Plaintiff sought partition of suit property and recovery of mesne profit on the plea that she was co-owner of suit property which was in possession of defendants---Validity---Mesne profit is damage or compensation recoverable from a person, who has been in wrongful possession of an immovable property---Wrongful possession is the very essence of claim for mesne profit---For seeking mesne profit, a person must be owner of captioned property or having right to its possession---Term "mesne profit" under S.2(12), C.P.C., means to include those profits, which a person in wrongful possession of such property actually received (or with the ordinary diligence) have received therefrom--- Person becomes entitled to mesne profit only when he has right to obtain possession from another person whose possession is unauthorized and who keeps the former deprived of such a possession--- First and foremost condition for awarding mesne profit is unlawful possession of the occupant of property---High Court apportioned decree under O.XX, R.12, C.P.C., in the manner that the defendants were held liable to pay share of rental value calculated for the duration when defendants took over the possession as mesne profit to plaintiff---Suit was decreed accordingly.

Muhammad Akram and another v. Mst. Farida Bibi 2007 SCMR 1719; Faqir Mohammad v. Abdul Momin PLD 2003 SC 594; M. Anwar v. Dr. Gohar Ali 2007 CLC 621 and Mahmood Ali Khan v. Hamid Ali and others (CPLA No.83-K of 2014) rel.

Ms. Uzma Rafiq along with Falak Mutahir for Plaintiffs

Nemo for Defendants.

2023 C L C 887

[Sindh]

Before Muhammad Faisal Kamal Alam, J

SADIA SIDDIQUI and others----Applicants

Versus

ADNAN ANDALAIB SIDDIQUI and others----Respondents

C.M.A. No.9825 of 2021 (in Suit No.1188 of 2021) and C.M.A. No.9822 of 2021 (in Suit No.1189 of 2021), decided on 24th October, 2022.

Contract Act (IX of 1872)---

----S.202---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Rejection of plaint, application for---Irrevocable power of attorney---Effect---Termination of agency having interest of agent in subject-matter--- Plaintiff and defendant / claimant were respectively son and mother inter se--- Plaintiff claimed to be owner of house in question on the basis of oral gift supported by general power of attorney executed by defendant / claimant in his favour---Defendant / claimant sought rejection of plaint on the plea that she had cancelled power of attorney and was the exclusive owner of suit property---Validity---Both parties and their families had been residing in suit property since decades---Although lease was in the name of defendant / claimant yet it was to be determined through a proper trial that whether suit property was given to defendant / claimant as her exclusive property or the same was the compensation given to family of deceased through his widow (defendant / claimant), as plaintiff and other children of the deceased were minors at the relevant time---Close relationship existed between parties and plaintiff was real son of defendant / claimant---Conclusion could be arrived at only after the parties had led the evidence, which was still to be done---High Court declined to reject the plaint as onus was on defendant / claimant to show that irrevocable general power of attorney was properly revoked and all subsequent acts and deeds of plaintiff were void ab initio which she had failed to show---Application was dismissed, in circumstances.

Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Muhammad Altaf and others v. Abdur Rehman Khan and others 2001 SCMR 953; Shahzad and another v. IVth Additional District Judge, Karachi (East) and 5 others PLD 2016 Sindh 26; Munawar Ali and others v. Umar Daraz and others 2022 CLC 920; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Mst. Naila Kausar and another v. Sardar Muhammad Bakhs and others 2016 SCMR 1781; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi and another PLD 1998 Kar. 291; Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Abdul Waheed v. Mst. Ramzanu and others 2006 SCMR 489; Mst. Hussan Jamala and another v. Government of Khyber Pakhtunkhwa through Secretary, Home and Tribal Affairs, Peshawar PLD 2013 Pesh. 1; Ijaz Bashir Qureshi v. Sham-un-Nisa Qureshi and others 2021 SCMR 1298; Ali Gohar and another v. Abdullah Mallah and 5 others 2021 CLC 1102; Rana Imran and another v. Fahad Noor Khan and 2 others 2011 YLR 1473; Aamir Hameed and another v. Messrs Aloo and Manocher Dinshaw Charitable Trust, through one of the four trustees and 14 others 2019 YLR 1055; Syed Ahmad v. Ali Akbar and others 2021 SCMR 743 and Black's Law Dictionary [Ninth Edition] by Bryan A. Garner Editor in chief ref.

Unreported Order dated 15.09.2021 passed by the Honourable Supreme Court of Pakistan in Civil Appeal No.221 of 2018; Unreported Judgment dated 02.03.2022 passed by the Honourable Supreme Court of Pakistan in Civil Petition No.1998 of 2018; Erum v. Mst. Ameena and 5 others PLD 2015 Sindh 360; Muhammad Khalid v. Muhammad Adnan Qureshi 2018 CLC 585; Mian Farooq Ahmad Sh. and others v. Privatization Commission and others 2006 CLD 1; Trustees of the Port of Karachi v. Karachi International Container Terminal Limited, (K.I.C.T.) 2010 CLC 1666; Federal Government of Pakistan v. Public at Large PLD 1991 SC 731; Ijaz Bashir Qureshi v. Shams-un-Nisa Qureshi and others 2021 SCMR 1298; Mrs. Naveen Irfan Puri through Attorney v. Mst. Shama Parveen and 3 others 2019 YLR 1700 and Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 distinguished.

Arshad Tayebally and Farjad Ali Khan for Plaintiffs (in Suit No.1188 of 2021).

Muhammad Haseeb Jamali, Usman Tariq, Muzzamil Hussain Jalbani, Ahmed Khan Khaskheli and Sajid Ali for Defendant No.1 (in Suit No.1188 of 2021).

Muhammad Ali Lakhani and Mujtaba Sohail Raja for Defendant No.2 (in Suit No.1188 of 2021).

Muhammad Haseeb Jamali, Usman Tariq, Muzzamil Hussain Jalbani, Ahmed Khan Khaskheli and Sajid Ali for Plaintiffs (in Suit No.1189 of 2021).

Muhammad Ali Lakhani and Mujtaba Sohail Raja for Defendant No.1 (in Suit No.1189 of 2021).

Mehran Khan, Assistant Advocate General Sindh for Official Defendants.

2023 C L C 935

[Sindh]

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

MUHAMMAD AZHAR ----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad and 3 others----Respondents

C.P. No.D-3977 of 2021, decided on 30th September, 2021.

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

----Ss.20, 27 & 29---General Clauses Act (X of 1897), S.6---National Licensing Examination---House job---Licensing---Effect of repeal---Scope---Petitioner invoked the constitutional jurisdiction of the High Court seeking a declaration that passing the National Licensing Examination (NLE), as prescribed under S.20 of the Pakistan Medical Commission Act, 2020, was not applicable in his case and could not be a condition imposed on him by the Pakistan Medical Commission (PMC) for obtaining a full license to practice medicine---Petitioner argued that he was entitled to a full license after successfully completing the five professional examinations and one-year compulsory house job under the Pakistan Medical and Dental Council Ordinance, 1962, which was in force when he commenced the MBBS program---Petitioner contended that the mandatory requirement of passing the NLE was introduced subsequently through the Pakistan Medical Commission Act, 2020, which would not operate retrospectively and that he had a vested right to a full license upon meeting the requirements prescribed under the erstwhile statutory framework---Validity---Petitioner's argument was flawed, and there was no legal basis for it---Even under the earlier dispensation, i.e. Admission in MBBS and BDS course and Housejob/Internship/Foundation Years Regulation, 2013 the right to a full license crystalized only upon satisfactory completion of the housejob and clearance of the assessment exam---Thus, neither the Regulations of 2013 admitted any vested right accruing to an aspirant at the outset of the MBBS program---Benefit of S.6 of the General Clauses Act, 1897, did not extend to a student who was in the midst of the MBBS program at the time of enactment of the Pakistan Medical Commission Act, 2020, and had not even embarked upon his one-year housejob---Petitioner's case for a full license was governed by the Pakistan Medical Commission Act, 2020, which was the statute in force when the petitioner had completed his medical education---Petitioner could not be heard to say that his case for a full license should be governed under the erstwhile Ordinance---Accordingly, the constitutional petition was dismissed.

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

----S.6---Effect of repeal---Scope---What is preserved by S. 6 is a right which already stands accrued, whereas the mere hope that one would acquire a right or would be at liberty to apply for a right or take benefit of a certain provision does not qualify as such.

AIR 1955 SC 84; (1985) 1 SCC 436; (1971) 3 SCR 815; AIR 1989 SC 1614; AIR 1997 SC 412; (1895) AC 425 and (1969) 1 All ER 121 ref.

(c) Words and phrases---

----Vested rights---Meaning.

Black's Law Dictionary (Sixth Edition) rel.

Shahenshah Hussain for Petitioner.

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

Zeeshan Abdullah for Respondent No.3.

2023 C L C 954

[Sindh]

Before Zulfiqar Ahmad Khan, J

Mrs. ZULEKHA and another----Plaintiffs

Versus

PROVINCE OF SINDH through Secretary Education and 5 others----Defendants

Suit No.1056 of 2022, decided on 13th September, 2022.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction---Necessary ingredients---Scope---Three essential ingredients must be present together for a favorable order---Absence of any one of the three ingredients does not warrant grant of injunction---Court at such stage is to make a tentative assessment of the case for enabling itself to see whether three requisites are met or not---Relief of injunction is known to be discretionary and it is to be granted following sound legal principles and ex-debito justiae---Term "prima facie case" is not specifically defined in Civil Procedure Code, 1908, but the consensus is that in order to satisfy about existence of a prima facie case, pleadings must contain facts constituting existence of right of plaintiff and its infringement at the hands of opposite party--- Balance of convenience is that if an injunction is not granted and suit is ultimately decided in favour of plaintiff, the inconvenience caused to plaintiff would be greater than that would be caused to defendant, if the injunction is granted---It is for the plaintiff to show that inconvenience caused to plaintiff would be greater than that which may be caused to defendant---Irreparable loss is held to mean to be the loss, which is incapable of being calculated on the yardstick of money.

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

----Ss.42 & 54---Karachi Building and Town Planning Regulations, 2002, Regln. 25.5.2---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Master plan, violation of---Educational institution in a residential building---Pre-condition---Plaintiffs were aggrieved of running an educational institution by defendants in a residential area in a residential accommodation---Plaintiffs sought interim injunction against defendants from running the school---Validity---Residential accommodation per regulation 25 5.2 of Karachi Building and Town Planning Regulations, 2002, could only be used for educational purposes if width of road upon which residential accommodation was located was not less than 100 feet wide, as well as plot size must not be less than 1500 square yards---None of the two exceptions applied as the property did not face a 100 feet wide road and neither was converted to an amenity otherwise---Property in question could not be put to education purposes due to the road-width requirement---Onus was upon defendants to prove that in order to run college in a residential neighborhood, they had complied with all codal formalities envisaged under the statute---Defendants did not comply with statutory prescriptions as far as building byelaws and Master Plan was concerned---Right of education was indispensably a fundamental right enshrined under the Constitution but it did not lead to or give rise to any particular right to the defendants to establish an institution in a residential house---Prior permission from Master Plan Department as well as objections of inhabitants of surrounding area were not considered---Neither the Constitution nor any statute conferred or vested any right in the defendants that they could be given any special treatment allowing them to run a College for profit in complete defiance/disregard of Karachi Building and Town Planning Regulations, 2002---Plaintiffs made out a prima facie case, balance of convenience also laid in their favor and acts of defendants were calculated to cause irreparable loss to plaintiffs---High Court confirmed interim injunction in favour of plaintiffs---Application was allowed, in circumstances.

Dr. Shahzad Alam and others v. Beacon Light Academy 2011 CLC 1866; 2020 CLD 505; AIR 2003 SC 578; AIR 1980 Gauhati 70; 1997 PLC 57; 2019 CLC 1081; 2018 SCMR 76; PLD 1993 Kar. 631; PLD 2010 Kar. 236; 2002 MLD 1410; Adeel-ur-Rehman and others v. Federation of Pakistan and others 2005 SCMR 1; Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 and Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354 ref.

Khawaja Shams ul Islam, Ahmed Ali Hussain, Saif Suhail Younus, Syeda Falak Mutahir and Samil Malik Khan for Plaintiffs.

Ghulam Akbar Lashari for defendant No.3 along with Muhammad Altaf and Muhammad Usman Ahmed.

Amel Khan Kasi, Sameer Tayebaly and Marina Ali for Defendants Nos.4 to 6.

2023 C L C 991

[Sindh]

Before Aftab Ahmed Gorar, J

NAJAM-UR-REHMAN----Petitioner

Versus

MASOOMA HASSAN and 2 others----Respondents

Constitution Petition No.S-573 of 2020, decided on 15th October, 2021.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Khula---Maintenance for wife---Wedlock as well as the fact that rukhsati did not take place were admitted, however, the only dispute between the parties was of maintenance charges---Plea of misreading and non-reading of evidence was raised but could not be referred or showed---Petitioner (husband) in his written statement admitted that he initially started sending maintenance charges to the respondent (wife) for some period during which he kept the respondent on hopes to arrange for her to travel abroad to live together but he failed---Since the respondent was ready to join/live with the petitioner but the petitioner in his written statement admitted that he could not arrange a visa for the respondent to live with him, therefore, he left her with no option but to seek Kula as a girl could not be made to sit for hopes of rukhsati for indefinite period---Bare reading of Ayat No.48 of Surah-Ahzab of the Holy Quran reflects that despite of wedlock if the husband has not touched the wife even then he is directed to release the wife handsomely---Concurrent findings of two Courts below did not require any interference, hence this petition was dismissed.

Junaid Alam Khan for Petitioner.

Respondent No.1 present in person.

2023 C L C 1008

[Sindh]

Before Zulfiqar Ahmad Khan, J

Mst. BASHIRA BIBI---Plaintiff

Versus

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

Suit No.858 of 2008, decided on 30th November, 2022.

(a) Administration of justice---

----Civil liability---Acquittal in criminal case---Effect---Exoneration from charge in a criminal case is not of any relevance while determining civil liability in civil case.

Deputy Inspector-General of Police, Lahore v. Anis-ur-Rehman Khan PLD 1985 SC 134 rel.

(b) Fatal Accidents Act (XIII of 1855)---

----S.1---Suit for recovery of damages---Fatal accident---Expectancy of life---Quantum---Determining factors---Plaintiffs sought recovery of damages for the death of their predecessor-in-interest caused due to rash and negligent driving of a vehicle driven and owned by defendants---Validity---Factum of death of predecessor-in-interest of plaintiffs was admitted fact---Liability of such gross wrongful act fell on defendants---Claim of damages was maintainable under Fatal Accidents Act, 1855---Deceased was 52 years old man, his nature of business was business of "dates" and simultaneously indulging in business of import/export of "dates"---Longevity in family of deceased had established life expectancy of 75 years---Deceased could also have lived for another 23 years approximately, therefore, the claim of awarding damages of Rupees 1,25,00,000/- was justifiable and the same was granted---Suit was decree accordingly.

Muhammad Yaseen v. Medicare Clinic Ltd., 1988 CLC 139; Punjab Road Transport Corporation Lahore v. J.V. Gardner and 2 others 1998 CLC 199; Mst. Zainab Bibi v. Mst. Bilqees Bibi PLD 1981 SC 56; Karachi Transport Corporation v. Muhammad Hanif 2009 SCMR 1005; Mazhar Ali v. Avenue Owners/Occupants Welfare Association 2020 MLD 257; Rahim Ali Palari v. Government of Sindh through Secretary, Ministry of Transport 2020 MLD 1393; Dr. Naheed Fatima v. Pakistan International Air Corporation (PIAC) 2019 MLD 606; Mst. Muqaddas v. Karachi Electric Supply Corporation Ltd. 2018 MLD 1054; Mohammad Sarwar v. Government of Sindh 2018 PLD 360; Mst. Anila Jalees v. Driver Shakurullah 2018 MLD 1299; Muhammad Razi v. Karachi Electric Supply Corporation 2017 PLD 634; Haq Nawaz v. Malik Muhammad Sher 2017 CLC N 152; Shama Norin v. Karachi Transport Corporation 2017 YLR N 451; Hina Ghori v. National Logistic Cell 2016 YLR 1797; Islamic Republic Of Pakistan through Secretary Ministry of Defence v. Numair Ahmed 2015 MLD 1401; National Logistic Cell v. Irfan Khan 2015 SCMR 1406; Punjab Road Transport Corporation v. Zahid Afzal and others 2006 SCMR 207 and a decision of a learned Division Bench of this Court in Ehteshamuddin Qureshi v. Pakistan Steel Mills 2004 MLD 361 ref.

(c) Fatal Accidents Act (XIII of 1855)---

----S.1---Recovery of damages---Vicarious liability---Employer, responsibility of---Scope--- Employer is always vicariously liable for acts of its employees performed in the course of duties.

Karachi Transport Corporation v. Muhammad Hanif 2009 SCMR 1005 rel.

(d) Fatal Accidents Act (XIII of 1855)---

----Preamble---Damages---Object, purpose and scope---Loss of human life cannot be measured in terms of coins, however, Fatal Accidents Act, 1855 was enacted to provide compensation to bereaved families for loss occasioned by the death of a person caused by an actionable wrong.

Farrukh Usman and Ms Shanzeh Junaid for Plaintiff.

Ghulam Mohiuddin, Assistant Attorney General along with Lt. Cdr. M. Hussain and Lt. Arshad from Pakistan Navi are also present for Defendants.

2023 C L C 1039

[Sindh]

Before Zulfiqar Ahmad Khan, J

ANWAR KHAN and others---Plaintiffs

Versus

FOZIA KHAN and another----Defendants

Suit No.1265 of 2005, decided on 13th September, 2022.

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

----Arts.91 & 120---Specific Relief Act (I of 1877), Ss.8, 39, 42 & 54---Suit for recovery of possession, cancellation of agreement, declaration and injunction---Limitation---Dishonest intervention by legal heirs---Plaintiffs claimed that their predecessor-in-interest purchased suit shop and were lawful owners by way of inheritance--- Defendant claimed her right on the basis of a sale agreement only executed between predecessors-in-interest of parties on 28-06-1974, who had paid full consideration amount---Plea raised by defendant was that suit was barred by limitation---Contention of plaintiffs was that the suit was to be dealt under Art. 120 of Limitation Act, 1908 ---Validity---Provision of Art.120 of Limitation Act, 1908, was a residuary article for the suits for which no period of limitation had been provided elsewhere in the Schedule of Limitation Act, 1908 and limitation of six years would begin when the right to sue accrued---Relief claimed in the suit for cancellation of sale agreement came within the ambit and scope of Art. 91 of Limitation Act, 1908---Suit filed by plaintiffs was time barred under Art. 91 of Limitation Act, 1908 and was not maintainable---All brothers and sisters of plaintiffs did not come forward and such absentees chose to honour the agreement made by their predecessors-in-interest---High Court declined to hand over suit shop to plaintiffs just because they happened to be sons of earlier owners, (since deceased) who never claimed title or possession of the shop in their life time--- Where original owners had chosen not to challenge possession in their life time but their legal heirs attempted to do so, such interventions were dishonest---Legitimacy of possession of suit shop was proved by defendants---Suit was dismissed, in circumstances.

2017 SCMR 367; 1994 MLD 1267; 2017 YLR 1323; 2002 MLD 1901; Ilyas Ahmed v. Muhammad Munir and others PLD 2012 Sindh 92; Muhammad Bakhsh through Representatives v. Muhammad Jameel 2005 YLR 2464; Muhammad Shafiq Ullah v. Allah Bakhsh (Deceased) reported as 2021 SCMR 763; Harvard Law Review, Dec., 1917, Vol. 31, No.2 (Dec., 1917), pp.271-287 and Holt v. Holt [1 EQ. Abridgment] ref.

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

----S. 42---Declaration, seeking of---Principle---Provision of S. 42 of Specific Relief Act, 1877 does not permit an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure of parties---Such right is strictly limited--- Suit for mere declaration aliunde is not permissible under the law, except in the circumstances mentioned in S.42 of Specific Relief Act, 1877.

Shabana Ishaque and S.K. Lodhi for Plaintiff.

Mian Ashfaq Ahmed along with Muhammad Usman Ahmed for Defendants.

2023 C L C 1086

[Sindh]

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

ABDUL QADIR----Petitioner

Versus

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

C.P. No.D-5363 of 2022, decided on 16th September, 2022.

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

----Ss. 15 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Admission for treatment (in psychiatric facility)---Application by whom to be presented---Scope---Petitioner was seeking the constitution of a Medical Board by the Secretary of the Health Department to examine the private respondent's mental fitness as a precursor to confinement in a mental facility---Petitioner had not taken any steps to seek appropriate relief under the Sindh Mental Health Act, 2013---Constitutional petition was not maintainable, as recourse to Art.199 would not be available under the given circumstances---Petition stood dismissed.

2023 C L C 1098

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL REHMAN----Plaintiff

Versus

NOMAN ABID and another----Defendants

Suit No.1357 of 2020, decided on 8th September, 2022.

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

----O.III, R.2---Recognized agent---Fast track policy defined in Circular No.G-AZ/XII.Z.14(HC)(i), dated 16-10-2012---Scope---Plaintiff moved an application to treat the suit under fast track policy---Fast track policy was framed for the benefit of litigants who had crossed the age of 65 years---However, for the purpose of the policy, the litigant does not include the attorney who is contesting on behalf of the person litigating under such status, on a private arrangement---Attorney might may have crossed the age of 65 but the litigant had not---Spirit of the policy is for original litigants and not for attorneys---Order III, R.2, C.P.C., is for recognizing an agent of a party by whom such appearances, applications and acts may be made or done---Such concession, however, is not extendable to the attorneys pursuing matters on behalf of litigants---If the interpretation of the applicant was accepted, then virtually all files would be converted into red files under fast track policy as everyone would then engage an attorney having the age of 65 or above---Application was dismissed.

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

----O.III, R.2---Recognized agents---Scope---According to O.III, R.2 of the C.P.C., an agent of a party can be recognized for the purpose of making appearances, applications, and acts on behalf of the party---Such agents may include individuals who hold a power of attorney and those who conduct trade or business in the name of parties that are not resident within the local limits of the jurisdiction.

2023 C L C 1128

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ALI NAWAZ through L.Rs. and others----Applicants

Versus

Mst. ZAINAB through L.Rs. and others----Respondents

Revision Application No.242 of 2011, decided on 11th April, 2022.

Civil Procedure Code (V of 1908)---

----S.115---Revision petition---Concurrent findings---Scope---Revision application filed against concurrent findings of courts below and that too against execution application has extremely narrow scope.

Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81; Mst. Samina Zaheer Abbas v. Hassan S. Akhtar and 3 others 2014 YLR 2331 and Pakistan State Oil Company (Pvt.) Ltd. v. Zulekha Khanum and 6 others 2016 CLC 1850 ref.

Pirbhulal U. Goklani for Applicants.

2023 C L C 1136

[Sindh]

Before Syed Hasan Azhar Rizvi and Rashida Asad, JJ

Messrs POWER CEMENT LTD. through Company Secretary----Petitioners

Versus

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

Constitution Petitions Nos.D-1370 of 2020 and D-5270 of 2021, decided on 22nd March, 2022.

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

----S.31---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R.17---Quarterly Tariff Adjustment---Scope---Objective of Quarterly Tariff Adjustment is to ensure that all pass-through costs are factored into the tariff as per the requirement of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998---Distribution companies do not have to bear such costs and are entitled to recover all prudently incurred costs quarterly or bi-annually.

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

----Ss.12-G & 31---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, Rr. 17---Quarterly Tariff Adjustment---Objections, non-filing of---Petitioner companies were electricity consumers and aggrieved of imposing Quarterly Tariff Adjustment in their electricity bills---Held, that before making any determination with respect to Quarterly Tariff Adjustment on the request of Distribution Companies, objections were invited from general public---Advertisement was also made in widely circulated newspapers so that in case of any objection to grant of any adjustment including Quarterly Tariff Adjustment, grievance of general public or of any stake holder could be addressed---Petitioners chose to remain silent and did not participate in any of the proceedings of determination and then after lapse of period of limitation challenged the same under Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, before High Court to disturb findings of the Authority which had attained finality---High Court declined to interfere in charging of Quarterly Tariff Adjustment by authorities---Constitutional petition was dismissed accordingly.

Sohail Ahmed and others v. Province of Sindh and 2 others 2017 PLC (C.S) 510; Messrs Farooqui Ice Factory, Gambat and 24 others v. Revenue Officer SEPCO (WAPDA), Ranipur and 14 others PLD 2014 Sindh 443; Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717; Mustafa Impex and others v. Government of Pakistan and others PLD 2016 SC 808; Government of the Punjab and others v. Messrs United Sugar Mills Ltd. and others 2008 SCMR 1148; Government of Sindh and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347; Amreli Steel v. Federation of Pakistan and others (C.P. No.D-431 of 2020); 2012 SCMR 773; Ghani Global Glass Limited v. Federation of Pakistan and others PLD 2020 Lah. 167; Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Nasrullah Khan and others v. Mukhtarul Hassan and others 2013 PLD SC 478; Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another 2016 PLD SC 358; Pakistan Refinery Limited v. Maskatiya Industries (Pvt.) Limited 2011 CLD 550; Dr. Muhammad Anwar Kurd and others v. The State 2003 YLR 2016; Pakistan Test Foundation v. Government of Pakistan and other 1997 CLC 1379; Mst. Jameela v. Province of Sindh and others 2020 PLC (C.S) 176 and Muhammad Iqbal and others Khair Din through LRs and others 2014 SCMR 33 rel.

Jaffer Raza and Asad Iftikhar for Petitioners.

Khursheed Javed, Assistant Attorney General for Respondents Nos.1 and 2.

Kashif Hanif and Zafar Iqbal along with Riaz Ahmed, Chief Engineer, HESCO for Respondent No.3.

2023 C L C 1256

[Sindh]

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

Mst. ZARIA BEGUM----Petitioner

Versus

ZAFAR IQBAL and 7 others----Respondents

C.P. D-2847 of 2012, decided on 25th November, 2022.

Civil Procedure Code (V of 1908)---

----O.XXI, Rr.26 & 58---Transfer of Property Act (IV of 1882), S. 54---Execution proceedings, stay of---Possession as part performance of agreement---Investigation---Petitioner sought stay of execution proceedings on the plea that she was owner of property intended to be sold in execution of decree---Both the Courts below dismissed application of petitioner without investigating her claim to the property---Validity---Order made by Revisional Court contained no discussion in that regard but merely endorsed the view of lower forum that no investigation was required in terms of O.XXI, R.58, C.P.C. as purported sale agreement did not serve to create any right or interest in the property in favour of petitioner---Orders of the fora below were predicated in that respect squarely on S.54 of Transfer of Property Act, 1882, which clarified that a contract for sale of immovable property could not of itself had created any interest in or charge on such property---Both the lower forums failed to consider the provisions of S.53-A of Transfer of Property Act, 1882,which served to shield possession of property obtained in part performance of a contract of sale---Courts below adopted an overly restricted approach on the touchstone of S.54 of Transfer of Property Act, 1882, while failing to consider the principles otherwise laid down by Courts---High Court in exercise of Constitutional jurisdiction set aside the orders passed by two Courts below and remanded the matter to Executing Court for decision afresh on the application of petitioner---Constitutional petition was allowed accordingly.

Syed Athar Hussain Shah v. Haji Muhammad Riaz and another 2022 SCMR 778; Gokarakonda Audinarayudu v. Surapureddi Mangamma AIR 1943 Mad 706; Vannarakkal Kallalathil v. Chandramaath Balakrishnan 1990 SCC (3) 291; Kancherla Lakshminarayana v. Mattaparthi Syamala and others (2008) 14SCC 258 and Ramaswami Goundan and Ors. v. Karuppa Mudali AIR 1928 Madras 163 rel.

Nadeem Akhtar for Petitioner.

Imran Raza for Respondent No.1.

Nemo. for Respondents Nos.2 to 8.

2023 C L C 1279

[Sindh]

Before Nadeem Akhtar, J

Dr. SUNIL ANAND HOTWANI----Petitioner

Versus

ABDUL WAKEEL and 2 others----Respondents

Constitutional Petition No.S-824 of 2018, decided on 12th September, 2022.

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

----S.13---Eviction---Non-compliance of tentative rent order---Statutory tenant---Enhancement of rent under expired contract---Scope---Tenant assailed an order whereby his defense was struck off due to non-payment of tentative rent and consequently he was directed to vacate the demised premises---Contention of tenant was that the Rent Controller did not have jurisdiction to add 10% increase in the monthly rent and that the original tenancy agreement wherein the enhancement was contemplated had expired---Validity---Pleadings of the parties were sufficient to draw a tentative conclusion upon a summary inquiry that there was a specific stipulation in the agreement regarding 10% increase in the monthly rent at the time of each renewal---Upon expiration of the agreement the status of the tenant became that of a statutory tenant and the parties were bound by the terms and conditions of the agreement---Contention of the tenant was not tenable---Tentative rent order passed by Rent Controller was not without jurisdiction or illegal---Constitutional petition was dismissed, in circumstances.

Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs PLD 2007 SC 504 ref.

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

----S.16---Arrears of rent---Expression "summary inquiry"---Scope---When a case for eviction of a tenant is filed, the Rent Controller is required to determine the arrears of rent payable by the tenant upon an application filed by the landlord---Rent Controller is required to conduct a summary inquiry and then direct the tenant to deposit the specified arrears of rent within a specified period---Additionally, the Rent Controller is also required to direct the tenant to deposit the monthly rent regularly on or before the tenth day of each month until the final disposal of the case---Phrase "summary inquiry" used in S.16 holds significance as it indicates that the Rent Controller, in order to issue a tentative rent order under the section, is required to examine only the material presented before him, without conducting an in-depth inquiry.

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

----S.13---Statutory tenant---Scope---Tenant becomes a statutory tenant if the agreement between him and the landlord expires but he still continues to retain the possession of the rented premises even after expiration of the agreement---In such an event, the rights and obligations of the parties would be governed on the same terms and conditions as stipulated in the expired agreement.

Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 and Abdul Latif and another v. Messrs Parmacie Plus 2019 SCMR 627 rel.

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

----Ss. 7, 8 & 9---Higher rent not chargeable---Fair rent---Limit of fair rent---Scope---Section 7 provides that no landlord shall charge or receive rent of the rented premises at the rate higher than that mutually agreed upon by the parties or the fair rent determined by the Rent Controller, as the case may be---Under S.8, the Rent Controller, on the application of the landlord or the tenant, has the power to determine fair rent of the rented premises after taking into consideration the factors specified in the said Section---Subsection (1) of S.9 provides that where the fair rent of any premises has been fixed no further increase therein shall be effected unless a period of three years has elapsed from the date of such fixation---Subsection (2) of S.9 provides that the increase in rent shall not, in any case, exceed ten percent (10%) per annum on the existing rate---Provisions of S.9 clearly show that the fair rent determined by the Rent Controller cannot be increased before three years, but in any other case the rent can be increased up to ten percent (10%) per annum as permitted by and envisaged in subsection (2).

Iftikhar Jawaid Qazi for Petitioners.

Mohsin Qadir Shahwani for Respondent No.1.

2023 C L C 1296

[Sindh]

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

Khawaja IZHAR-UL-HASSAN and 3 others----Petitioners

Versus

PROVINCE OF SINDH and 8 others----Respondents

Constitution Petition No.D-3016 of 2019, decided on 22nd May, 2023.

Sindh Permanent Residence Certificate Rules, 1971---

----R.8---Constitutional petition---Appeal against refusal or grant of Permanent Residence Certificate---Scope---Petitioners sought direction to the respondents to follow the legal course for issuance of Domicile and Permanent Residence Certificates (PRCs) and a direction to constitute a committee for scrutinizing the alleged fake domicile and PCRs issued since 2008 till date---Validity---Chief Secretary had constituted the Sindh PRC and Domicile Appellate Committee in terms of R.8(2) of Sindh Permanent Residence Certificate Rules, 1971, empowering it to receive the application/reference from the aggrieved persons/Divisional Scrutiny Committee, call for record and relevant persons to ascertain facts about residence or otherwise of any person and to decide the matter in accordance with law---Constitutional petition was dismissed, leaving it open to those persons who might be aggrieved to approach the relevant forum for redressal of their grievances, if so advised.

Petitioner No.1 present in person.

Barrister Sandeep Malani, A.A.G.

Khaleeq Ahmed D.A.G.

Ch. Muhammad Farooq along with Ms. Samina Maqsood for Respondent No.10.

Muhammad Rafiq Kalwar and Muhammad Yasir for intervenor, Sindh Vision.

Amanullah Shaikh for Intervenor Mumtaz Ali.

2023 C L C 1323

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar, J

DILMURAD----Applicant

Versus

PROVINCE OF SINDH through Deputy Commissioner, Nawabshah and 4 others----Respondents

Civil Revision Application No.190 of 2016, decided on 26th April, 2023.

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

----Ss. 42, 39 & 54---Transfer of Property Act (IV of 1882), S. 58---Suit for declaration, cancellation and injunction---Transfer of mortgaged property---Scope---Applicant filed a suit for declaration, cancellation and injunction with the claim that his property had been transferred by private respondent through fraudulent means---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Applicant had challenged the sale deed, allegedly executed by him, by asserting that he never executed the same and claimed that the same was a fabricated document---By producing evidence on oath, which evidence was in line with his pleadings, the applicant had discharged his burden whereafter the burden had shifted upon private respondent to prove the contrary---However, the private respondent admittedly never appeared before the Trial Court to dispute the allegations made by the applicant or to controvert the statements made on oath by his witnesses, nor did he produce any evidence of his own---Suit property was lying mortgaged with the bank at the relevant time---Revision petition was allowed, and the suit was decreed as prayed for.

Abdul Rashid v Muhammad Yasin and another 2010 SCMR 1871 ref.

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

----Ss. 42, 39 & 54---Limitation Act (IX of 1908), Art. 91---Suit for declaration, cancellation and injunction---Limitation---Plaintiff's evidence qua date of knowledge remaining unrebutted---Effect---Sale deed executed and registered in the year 1997 was challenged by the plaintiff thirteen years later, and consequently, the suit was declared to be barred under Art. 91 of the Limitation Act, 1908---High Court observed that the lower courts, in their analysis, failed to acknowledge the plaintiff's pleadings and evidence concerning the date of his knowledge regarding defendant's claim of title over the suit property based on the disputed sale deed----Plaintiff had claimed that he became aware of the sale deed only a week prior to filing the suit, when defendant attempted to dispossess him from the property---Importantly, these facts presented by the plaintiff remained unchallenged and unrebutted---In given circumstances, there was no justifiable reason for the lower courts to doubt the plaintiff's credibility, particularly without discussing and recording the reasons for disbelieving him---Revision Application was allowed.

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

----S.58---Mortgage of immovable property---Scope---Type of mortgages---Under S.58(a) of the Transfer of Property Act, 1882, a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability---Transferor is called a "mortgagor" and the transferee a "mortgagee", and the principal money and interest/profit thereon, the payment whereof is secured, is called "mortgage money"---All the said terms are defined in S.58(a) of the Act, but the term "mortgaged property" has not been defined therein although it has been used in almost every section of Chapter IV (Of Mortgages of Immovable Property and Charges) of the Act---Plain reading of S.58(a) implies that mortgaged property is that specific immovable property the interest wherein is transferred by the mortgagor in favour of the mortgagee in consideration of the purpose mentioned in the said section---Section 58(f) provides that where a person delivers to a creditor or to his agent documents of title of an immovable property with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds---This type of mortgage is also called an equitable mortgage---Transfer of an interest in the mortgaged property under S.58(a) of the Act in favour of the mortgagee creates a right in rem in favour of the mortgagee in respect of the mortgaged property that remains intact till the entire mortgage money is paid by the mortgagor to the mortgagee; during the subsistence of mortgage although the mortgagor remains the lawful owner of the mortgaged property, however, his proprietary rights in relation thereto are subject to the mortgagee's rights and interest therein, and they remain suspended till the entire mortgage money is paid by him to the mortgagee and the mortgaged property is redeemed by him in accordance with law; and, during such period, the mortgagor cannot transfer, alienate, sell or encumber the mortgaged property without the consent of the mortgagee, and any such action taken by him without the mortgagee's consent to defeat the mortgagee's rights and interest in the mortgaged property, would be illegal and would be subject to the rights and interest of the mortgagee in the mortgaged property.

National Bank of Pakistan through Attorney and another v. Paradise Trading Company and others 2015 SCMR 319 and Citibank N.A. through Manager v. Muhammad Akbar and 3 others 2005 MLD 384 rel.

Kamaluddin for Applicant.

Allah Bachayo Soomro, Additional Advocate General Sindh for Respondents Nos.1 to 4.

Respondent No.5 called absent.

2023 C L C 1361

[Sindh]

Before Muhammad Shafi Siddiqui, J

Syed FARRUKH GHANI----Plaintiff

Versus

BANK OF PUNJAB through Chairman and 3 others---- Defendants

Suit No.(S)-775 of 2021, decided on 23rd January, 2023.

Civil Procedure Code (V of 1908)---

----S.20 & O.VII, R.10---Suits to be instituted where defendants reside or cause of action arises---Return of plaint---Scope---Dismissal from service---Territorial jurisdiction---Plaintiff through the instant suit challenged his dismissal from service---Validity---Pursuant to enquiry proceedings, the plaintiff had "surrendered" before the enquiry committee whereby enquiry was conducted and the enquiry was admittedly beyond the territorial limits and jurisdiction of the High Court and hence the ultimate order---All the defendants arrayed in the memo of plaint hailed from District 'L'---Jurisdiction could not be conferred on mere desire of the plaintiff who claimed to have received the information of his dismissal at District 'K', where he resided---It was the ultimate cause which gave birth to a jurisdiction under normal circumstances and that was dismissal at District 'L' where he surrendered---Since the court lacked territorial jurisdiction, therefore, the plaint was returned with the observation that the plaintiff might pursue his remedy before the court/forum having jurisdiction.

Muhammad Umar Lakhani for Plaintiff.

Behzad Haidar for Defendants.

2023 C L C 1383

[Sindh (Larkana Bench)]

Before Adnan Iqbal Chaudhry, J

E.D.O. (Now Superintending Engineer) Road District Kashmore @ Kandhkot and 5 others----Applicants

Versus

ABDUL HAFEEZ CHACHAR and 3 others----Respondents

Civil Revision Application No.S-46 of 2012, decided on 30th January, 2023.

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

----S. 42---Civil Procedure Code (V of 1908), O. VII, R. 7---Suit for declaration---Acquisition of land without compensation---Moulding the relief---Scope---Government officials constructed a road on the plaintiffs' land without following the procedure under the Land Acquisition Act, 1894---Both the Trial Court and the Appellate Court issued a verdict concurrently, ruling in favor of the plaintiffs and directing the government officials to compensate them---Validity---Road had indeed been constructed on the land belonging to the plaintiffs and not on government-owned land---No proof was provided to indicate that the road was constructed on government property, and even if a rough pathway existed before, that did not imply it was on government land---Trial Court determined that the road was nearly complete and therefore did not grant the request to return the land since this would have required the road's removal, which was serving a public purpose---Instead, Trial Court granted compensation for the land, exercising its discretion judiciously, which did not require interference---Consequently, the revision application was dismissed.

Akhtar Sultana v. Muzaffar Khan Malik PLD 2021 SC 715 and then in Muhammad Farooq v. Javed Khan PLD 2022 SC 73 rel.

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

----Ss. 79 & 80---Suits by or against the Government---Scope---Requirement of S.79 of the C.P.C. is only that the Provincial Government is sued as "the Province"---Said requirement was met in the present case by suing the Province as "Province of Sindh, Revenue Department/DCO, District Government, Kashmore"---Fact that the Province had been sued through the District Coordination Officer had to do with the notice provisions of S.80 of C.P.C. and not with S.79---Section 80 states that in the event of a lawsuit against the Provincial Government, notice must be given to the Secretary of the Government or the Collector of the District---District Coordination Officer had been designated as "Collector" for the purpose of the C.P.C.---In the present case there was no flaw in suing the Province---Revision application was dismissed

Abdul Aziz v. Government of Balochistan 1999 SCMR 16 distinguished.

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

----O.VII, R.13---Where rejection of plaint does not preclude presentation of fresh plaint---Scope---In a previous case, the plaintiff's plaint regarding the same issue was dismissed under O.VII, R.11, C.P.C., because he owned two survey numbers, while the other two survey numbers that were the subject of the suit were owned by someone else---However, later on, the owners of the other survey numbers granted the plaintiff power of attorney and he filed a new case on behalf of all the plaintiffs involved---According to O.VII, R.13, C.P.C., this new plaint on the same issue was maintainable---Revision application was dismissed.

Abdul Hamid Bhurgri, Additional A.G. Sindh for Applicants.

Ashique Illahi Sundrani for Respondents.

2023 C L C 1422

[Sindh]

Before Muhammad Shafi Siddiqui, J

GUNVOR SINGAPORE PTE, LTD. through authorized signatory---Plaintiff

Versus

PAKISTAN LNG LIMITED through Chief Executive Officer and another---Defendant

Civil Suit No.116 of 2021, decided on 13th February, 2023.

Contract Act (IX of 1872)---

----S.74---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Interim injunction, refusal of---Compensation for breach of contract---Bid bond, encashment of---Plaintiff company was aggrieved of encashing bid bond by defendant authority which bond was filed for supply of Liquified Natural Gas (LNG)---Validity---LNG Procurement was designed, keeping in mind that defendant authority would have to either pay a higher amount to another bidder or have to resort to re-procurement---For subject procurement call of bid bond was neither unconscionable nor unrealistic, as it would permit defendant authority to offset its losses faced on such withdrawal, nor it amounted to unjust enrichment---Plaintiff company was conscious and experienced enough to understand terms of such contract---It was in accordance with the bid documents that could be safely adjudged that defendant authority had every right, in the event the most advantageous bidder reneged of their obligation, to accept the next offer available and thus called upon plaintiff company to perform its obligation as per its offer and in the event of plaintiff company reneged on its obligation, as per its bid, to call upon plaintiff company's bid bond---Plaintiff company did not have a prima facie case which would entitle it to injunct the encashment of the bid bond---Up to 11-01-2021

defendant company had a right to accept plaintiff company's bid, which it did on 07-01-2021---Having accepted plaintiff company's bid, it ought to have provided performance guarantee; rather it reneged on its obligations to provide a performance guarantee and apparently sold the cargo elsewhere---Calling of a bid bond was legitimate in absence of such evidence of sale, and proof of losses would not come in the way---Provision of S.74 of Contract Act, 1872 is required to be read with its exception, which did not provide a room in view of limits provided by the exception clause for the withdrawal of Bid bond---In respect of balance of inconvenience and irreparable loss, defendant authority would have to either pay a higher amount to another bidder or have to resort to re-procurement; both factors were in favour of defendant authority to permit encashment of bid bond---It was national commitments, which were infringed, causing irreparable loss and inconvenience for the nation---High Court declined to interfere in process of encashing of bid bond---Application was dismissed, in circumstances.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works PLD 2003 SC 191 and Pakistan Engineering Consultants v. PIA 1993 CLC 1926 ref.

Mayhar Mustafa Qazi along with Shahbakht for Plaintiff.

Abdul Rehman for Defendant No.1.

None for Defendant No.2.

2023 C L C 1495

[Sindh]

Before Kausar Sultana Hussain, J

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY----Plaintiff

Versus

Mst. GUL RUKH SAMINA BUTT and others----Respondents

Execution No.81 of 2001 and Suit No.112 of 2006 and Suit No.B-137 of 2000, decided on 28th November, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.27---Suit for declaration and injunction---Rejection of plaint---Res-judicata, principle of---Applicability---Plaintiff / DHA claimed that allotment of plot in question in the name of original allotee and then its transfer by him in the names of his sons by way of Gift (Hiba) was done in violation of Bye-Laws of predecessor society of plaintiff / DHA, which plot was cancelled and subject allotment and then transfer of plot in the names of his sons was based on forged documents, fraud and in contravention of Bye-Laws of the Society---Defendant / Bank sought rejection of plaint on the plea that there was no cause of action and principle of res-judicata was applicable---Validity---Although, cancellation of plot by plaintiff / DHA was set-aside by High Court in earlier proceedings but in compliance of High Court's order plaintiff/DHA after adopting legal formalities again cancelled it---Plaintiff/DHA thereafter filed instant suit in order to seek declaration of validity of cancellation order passed by it subsequently---Plaintiff/DHA had cause of action to file the instant suit---Earlier suit whereby first cancellation of plot's order passed by plaintiff/DHA was challenged, was dismissed for non-prosecution---Present suit filed by plaintiff/DHA was for seeking declaration in respect of validity of cancellation of plot order of plaintiff/DHA, injunction and cancellation of mortgaged documents deposited by defendant / allottee in defendant / Bank at the time of borrowing amount and it had no nexus with a previous suit filed by Bank of recovery of amount as that suit was between Bank and borrower for recovery of amount and the documents which were mortgaged had already been cancelled even before creation of mortgage of documents of plot in question---Such fact was not liable to be considered for rejection of plaint---Plea of res-judicata under S.11, C.P.C., was also not applicable as High Court in its earlier order quashed initial cancellation order but in the same order plaintiff / DHA was set at liberty to initiate any other action against defendants under the law and to decide it after hearing all the concerned parties---High Court declined to reject the suit---Application was dismissed, in circumstances.

1986 MLD 1398; 1988 CLC 606; 2003 YLR 1760; 2000 MLD 421; PLD 1992 Kar. 304 and H.M. Saya and others v. Wazir Ali Industries Limited PLD 1969 SC 65 ref.

Abdul Haleem Siddiqui for Plaintiff (in Suit No.112 of 2006).

Ms. Lubna Aman for Decree Holder (in Execution No.81 of 2001) and for Defendant No.4 (in Suit No.112 of 2006).

2023 C L C 1523

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar, J

ALI NAWAZ----Petitioner

Versus

SAHABUDDIN----Respondent

Constitutional Petition No.S-307 of 2022, decided on 18th March, 2023.

Sindh Rented Premises Ordinance (XVII of 1979)--

----S.16---Arrears of monthly rent---Statutory tenant---Petitioner / tenant was aggrieved of order passed by Rent Controller directing him to deposit monthly rent and arrears of rent---Order passed by Rent Controller was maintained by Lower Appellate Court---Validity---Tenant becomes a statutory tenant if agreement between him and landlord expires but he still continues to retain possession of rented premises even after expiration of the agreement---Rights and obligations of parties are governed on same terms and conditions as stipulated in the agreement---Upon expiration of rent agreement, status of petitioner / tenant became that of a statutory tenant and parties were bound by the terms and conditions of rent agreement---Periodical increase in monthly rent was not unilateral and not in conflict with any of the provisions of Sindh Rented Premises Ordinance, 1979---Periodical increase in rent was in line with S. 9(2) of Sindh Rented Premises Ordinance, 1979 and admitted rent agreement was to be regulated as rent determined by rent agreement between parties and was enforceable--- Tentative rent order passed by Rent Controller was not illegal or without lawful jurisdiction--- High Court in exercise of Constitutional jurisdiction declined to interfere in order passed by Rent Controller, as petitioner / tenant failed to point out any illegality or infirmity in concurrent findings of two Courts below---Constitutional petition was dismissed, in circumstances.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Kassim and another v. S. Rahim Shah 1990 SCMR 647; In Muhammad Iqbal Haider and another v. Vth Rent Controller / Senior Civil Judge, Karachi Central and others 2009 SCMR 1396; Syed Imran Ahmed v. Bilal and another PLD 2009 SC 546; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 and Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs PLD 2007 SC 504 ref.

Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 and Abdul Latif and another v. Messrs Parmacie Plus 2019 SCMR 627 rel.

Ahmed Murtaza A. Arab for Petitioner along with Ghulamullah Chang.

2023 C L C 1684

[Sindh]

Before Irfan Saadat Khan and Sana Akram Minhas, JJ

Messrs NINA INDUSTRIES LTD.----Appellant

Versus

Messrs E.F.U. GENERAL INSURANCE LIMITED----Respondent

High Court Appeal 104 of 2015, decided on 12th May, 2023.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 2---Suit for recovery of money---Leave to defend suit, grant of---Dishonored cheques---Conditional leave---Principle---Appellant/defendant was not granted leave to defend the suit and suit was decreed in favour of respondent/plaintiff---Validity---Defence set up by appellant/defendant was neither fake nor without any material to support or just bald allegations without any substance---At worst, even if appellant's/defendant's defence was treated as vague or unsatisfactory or there was a doubt as to its genuineness or it appeared to be very weak or a sham one, then leave to defend should have been granted conditionally putting him on terms to either furnish security or deposit the amount claimed by respondent / plaintiff in summary suit---Factual premise on which Judge in Chambers of High Court predicated his judgment was fallacious on account of misreading and non-reading of pleadings and/or documentary record---Plausible defence was made out by appellant / defendant and triable issues had been raised which required determination by Trial Court---Facts narrated and documents produced in summary suit by appellant / defendant showed that there was a substantive dispute which merited deeper enquiry and required grant of leave so that the relevant material could come on the record through process of evidence---Granting of leave to defend application did not mean that respondent / plaintiff was being non-suited---Non-granting of leave to defend application was fatal for appellant / defendant who would be left with no recourse to establish its case---Division Bench of High Court set aside judgment and decree passed by Judge in Chambers of High Court, granted conditional leave to defend the suit and remanded the matter for trial in accordance with law---Appeal was allowed accordingly.

Zubair Ahmad v. Shahid Mirza 2004 SCMR 1747; Rab Nawaz Khan v. Javed Khan Swati 2021 CLD 1261; Mashooq Ali Rajpar v. Abdul Hameed 2001 CLD 783; Saeed Abbas v. Agar International (Pvt.) Ltd. 2011 CLD 1757 and S.M. Abdullah & Sons v. Crescent Star Insurance Co. 1993 MLD 1239 distinguished.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 and Rafique Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1996 SC 749 rel.

Mujahid Bhatti for Appellant.

Naved Ahmad for Respondent.

2023 C L C 1739

[Sindh]

Before Syed Hasan Azhar Rizvi, J

UNIVERSAL TRACK (PVT.) LTD. through authorized Representative and others----Petitioners

Versus

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

Suit No.40 of 2021 along with Suit No.56 of 2021, decided on 21st July, 2021.

Civil Procedure Code (V of 1908)---

----O.II, R.2 & O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Interim injunction, refusal of---Omitting a relief---Non-assailing of circular---Plaintiffs were engaged in business of GPS vehicle tracking services and were aggrieved of directions issued by Pakistan State Oil to oil tankers on the basis of Circular dated 30-11-2020 to seek GPS tracking facilities from defendant companies---Validity---Plaintiff companies were aware of Logistic Circular dated 30-11-2020, but neither challenged that Circular nor sought any relief in relation to it---If a party omitted to include a claim or relief, then such claim or relief would be deemed to be relinquished and the party would be barred from reagitating the same under O.II R.2, C.P.C.---Plaintiffs had relinquished their claim in relation to the Logistic Circular dated 30-11-2020, hence were barred from raising any claim in relation to the Logistic Circular in the suit---Pakistan State Oil did not own any of the trucks or tankers but entered into contract with various contractors who provided their vehicles for logistic purposes---Cost of tracking services was borne by the contractors and not by Pakistan State Oil---Tracking companies such as plaintiffs or defendants were paid for their services by the contractors and not by Pakistan State Oil---Plaintiffs had no good prima facie case and even no irreparable loss could be caused to them if relief sought in the injunction application was refused---Balance of inconvenience did not lie in injunction application of plaintiffs---High Court declined to grant interim injunction to plaintiffs---Application was dismissed, in circumstances.

PLD 2010 SC 731; PLD 2006 SC 66; PLD 1999 Kar. 472; PLD 2017 Isl. 29; 1993 MLD 1308; 1999 YLR 1634; 2012 CLD 1445; 2015 MLD 1251; PLD 1989 Kar. 404; 2013 SCMR 526; PLD 2019 Lah. 206; 2020 CLC 323; 2019 CLC 994; 2018 YLR 1206; 2019 CLD 920; PLD 2003 Kar. 222; 2002 CLD 120; 2003 YLR 1442; 2018 CLD 48; 2014 MLD 874; 2012 SCMR 280; 2013 CLC 702; 2013 SCMR 238 and 2012 SCMR 930 ref.

Muhammad Ali Lakhani and Muneer Iqbal for Plaintiff (in both the suits).

Abraiz Ali Khan for Defendant No.2/Pakistan State Oil Company Ltd. (in both the suits).

Muhammad Vawda for Defendants Nos.3 and 4 respectively (in both the suits).

Nasir Hussain Abro for Defendant No.5 (in Suit No.56 of 2021).

Muhammad Ahmer and Khilji Bilal Aziz, Assistant Attorney General.

2023 C L C 1761

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar, J

TEHREEK JADEED ANJUMAN AHMEDIA through Special Attorney----Applicant

Versus

MUHAMMAD ISHAQUE through Legal Heirs and 4 others----Respondents

Civil Revision Application No.57 of 2020, decided on 19th May, 2023.

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

----Arts. 117 & 120---Gift deed, non-execution of---Onus to prove---If gift is challenged by donor then burden to prove its genuineness shifts upon its beneficiary / donee.

Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Rab Nawaz and others v. Ghulam Rasul 2014 SCMR 1181; Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080 and Mst. Kalsoom Begum v. Peran Ditta and others 2022 SCMR 1352 rel.

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

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.79, 117 & 120---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and injunction---Gift, proof of---Onus to prove---Concurrent findings of facts by two Courts below---Respondent / plaintiff assailed gift deed executed in favour of applicant / defendant on the plea of fraud and collusion, as he was confined in Central Prison on the date when gift deed was alleged to have been signed by him---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by applicant / defendant---Validity---Statement of Revenue Officer who went to Central Prison was silent with regard to obtaining signatures of two attesting witnesses of Gift deed---Such gift under Art. 79 of Qanun-e-Shahadat, 1984 could not be proved in absence of two testing witnesses---Not only the names of attesting witnesses of gift in question were missing in "In and Out Register" of Central Prison but name of alleged donee was also missing therein---Alleged donee was not present at the time of execution of gift deed, which could not be made or executed in absence of donee, who was required to accept the gift---In absence of mandatory condition of acceptance of gift by donee, which was one of the three mandatory conditions to constitute a valid gift and to make it enforceable and binding on the parties there too, strict compliance of such mandatory condition was not satisfied---Applicant / defendant's own evidence did not prove making or execution of gift in question by respondent / plaintiff and finding to such effect by both the courts below was correct and justified---Jurisdiction of High Court under S.115, C.P.C. was narrower as concurrent findings of fact could not be disturbed in revisional jurisdiction unless Courts below while recording findings of fact had either misread the evidence or had ignored any material piece of evidence or the findings were perverse and had reflected some jurisdictional error---High Court declined to interfere in concurrent findings of facts by two Courts below which were well reasoned, balanced and in accord with pleadings and evidence of parties and law---Revision was dismissed, in circumstances.

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

----S. 3---Fraud and collusion---Limitation---Where fraud and collusion are alleged and established, question of limitation does not and cannot help beneficiary of such fraud and collusion---Fraud vitiates even the most solemn transactions---Any transaction that is based upon fraud, is void and notwithstanding the bar of limitation---Courts cannot act as helpless bystanders and allow fraud to perpetuate.

Ayatullah Khuwaja for Applicant.

Ihsan Ali Arif and Nazim Khokhar for Respondents Nos.1 and 2.

Allah Bachayo Soomro, Additional Advocate General Sindh for Respondents Nos.3 to 5.

2023 C L C 1795

[Sindh]

Before Muhammad Shafi Siddiqui, J

SAJID HUSSAIN----Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORTION and 3 others--- Respondents

Suit No.855 of 2015, decided on 27th September, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Dismissal from service---Suit for declaration, injunction and recovery of damages---Amendment in pleadings---Complexion of suit, change of---Cause of action, absence of---Plaintiff filed suit against show cause notice issued by defendant/employer---During pendency, plaintiff was dismissed from service---Plaintiff assailed his dismissal order and sought its suspension---Validity---Scope of suit was confined to a show cause which met logical end i.e. dismissal from service---Such event of dismissal was a fresh cause triggered belatedly when plaintiff was dismissed from service---Neither scope of suit could be extended nor any amendment could be a logical solution as amendment would change complexion of suit altogether---Initially suit was against a show cause, which too was not maintainable and fresh cause of dismissal was different altogether---Complexion of suit could not be changed---Against any adverse order such as dismissal plaintiff could avail statutory remedy under service regulations---Nothing was left in the suit to adjudicate; show-cause had served its purpose; claim of damages was immature and without cause which was raised to avail pecuniary jurisdiction of High Court---Suit was dismissed in circumstances.

Commissioner Inland Revenue v. Jahangir Khan Tareen 2022 SCMR 92 rel.

2023 C L C 1805

[Sindh]

Before Irfan Saadat Khan and Arshad Hussain Khan, JJ

HASSAN ALI & CO. COTTON (PVT.) LTD.----Appellant

Versus

TRADING CORPORATION OF PAKISTAN and another----Respondents

H.C.A. No.331 of 2016, decided on 9th February, 2023.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S. 3---High Court Appeal---Limitation---Scope---Appellant filed a High Court Appeal against order dated 08-08-2016, which was numbered as 319/2016 (first appeal)---During pendency of the first appeal, the appellant filed yet another appeal against order dated 08-08-2016 (second appeal), which was numbered as 313/2016---Thereafter, first appeal was withdrawn---Office had raised objection regarding maintainability of the first appeal on the point of limitation---Record transpired that certified copy of order dated 08-08-2016 which was annexed with the first appeal was applied in the office of High Court on 16-08-2016; copy was ready for delivery on 25-08-2016, however, the appeal was filed on 17-09-2016, seemingly it was barred by two days---In second appeal, the certified copy of order dated 08-08-2016 annexed with the appeal revealed that it was applied on 16-08-2016; the copy was ready for delivery on 21-09-2016 and thereafter the appeal was filed on 06-10-2016---It appeared that the appellant had obtained another certified copy having different date of issuance and filed the second appeal---Appellant in order to bring the case within the time limit had obtained second certified copy on the same application on the basis of which he had already obtained a certified copy, which under the law he was not entitled to---Appeal was dismissed with costs.

Muhammad Ali Waris Lari for Appellant.

2023 C L C 1817

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD HAZIQ ALI KHAN and 2 others----Petitioners

Versus

IXth ADDITIONAL DISTRICT JUDGE, HYDERABAD and 2 others---Respondents

Constitutional Petition No.S-6 of 2022, decided on 8th April, 2022.

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

----Ss.2(f), 2(j) & 15---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.9---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Landlord and tenant relationship, denial of---Effect---General jurisdiction of Civil Courts---Scope---Petitioners / landlords sought eviction of respondent / tenant from demised premises---Respondent / tenant denied relationship on the plea that he was owner of the premises---Rent Controller and Lower Appellate Court dismissed ejectment petition and appeal respectively filed by petitioners / landlords---Validity---Special jurisdiction under Sindh Rented Premises Ordinance, 1979, could not exclude general jurisdiction of Civil Court under Specific Relief Act, 1877---When a tenant denied title of landlord, first he had to vacate the premises and contest the right before competent Court of law---If tenant himself was claimant and he objected title of owners, he could not put his own feet in another's shoes but in any case, he had to vacate rented premises---Judgments of courts below were against Ss. 2(f) & 2(j) of Sindh Rented Premises Ordinance, 1979, which clearly stated that owner of property was landlord and person in possession was deemed as tenant---Judgments passed by two Courts below were outcome of misreading and non-reading of evidence---Petitioners / landlords were owners of property in question---Respondent / tenant who was occupying the subject property could not occupy it in any capacity other than as a tenant, as determined in civil suit between the parties---Respondent / tenant also filed a civil suit claiming that he had purchased the subject property but his plaint was rejected under O.VII, R.11, C.P.C.---High Court set aside judgments passed by Rent Controller and Lower Appellate Court dismissing application under S. 15 of Sindh Rented Premises Ordinance, 1979, filed by petitioners/ landlords against respondent / tenant---High Court directed the respondent / tenant to vacate demised premises in his possession forthwith as sufficient time had already been given to him---Constitutional petition was allowed, in circumstances.

Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549; Rab Nawaz v. Haji Muhammad Iqbal 2003 SCMR 1476; Abdul Hamid and others v. Syed Abdul Qadir and others PLD 2001 SC 49; Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

Muhammad Nauman Jaffar for Petitioners.

Attorney of Respondent No.3 present in person.

2023 C L C 1906

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD SAMI alias SHABRATI----Petitioner

Versus

MODEL CIVIL APPELLATE COURT and others----Respondents

Constitution Petition No.S-443 of 2022, decided on 30th November, 2022.

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

----S.15---Constitution of Pakistan, Art. 199---Writ of certiorari---Eviction of tenant---Petitioner/tenant invoked constitutional jurisdiction of the High Court to assail concurrent findings passed against him---Validity---High Court, normally, does not operate as a Court of appeal in rent matters, rather its jurisdiction is limited to disturbing those findings which, prima facie, appear to have resulted in some glaring illegalities resulting into miscarriage of justice---Finality in rent hierarchy is attached to the Appellate Court, and when there are concurrent findings of both the rent authorities the scope becomes rather tight---Petition falls within writ of certiorari against the judgments passed by both the Courts below in rent jurisdiction, which cannot be disturbed until and unless it is proved that the same is result of mis-reading and non-reading of evidence---No illegality or infirmity was noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition was dismissed in limine, in circumstances.

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

----S.15---Eviction of tenant---Willful default in payment of rent---Bona fide personal need---Relationship of landlord and tenant, denial of---Goodwill/Pagri---Scope---It was second round of litigation after being remanded, when the concurrent findings were passed against the tenant---Contention of the petitioner/tenant was that the demised premises (shops) were obtained on goodwill/Pagri, which was paid by him to the original owner (father of the respondents), hence a right had been created---Validity---Record revealed that in the first round of litigation no plea of goodwill/Pagri was taken by the petitioner before Rent Controller or Appellate Tribunal and such ground was taken after remand of the case---If it was presumed in the present case that the Goodwill amount was paid in respect of demised premises, even then it would not debar the respondent / landlord to seek eviction of the petitioner on the ground of personal bona fide need---Petitioner / tenant, during the cross-examination, had admitted that he had not paid rent since July, 2013 , and that no money order was ever transmitted to any respondent (legal-heir of the original owner) which was refused---Thus, default in payment of monthly rent stood proved---Two respondents (sons of the original owner) not only filed affidavits but appeared in the witness-box stating that, being unemployed, the demised premises were required by to them for starting their business ; and their evidence remained unshaken and could not be shattered during cross-examination---No documentary proof had been brought on record by the petitioner / tenant to establish that their (respondents') demand was not in good faith---Statement of landlord on oath being consistent with pleadings and not shaken in cross-examination, was sufficient to prove that requirement of landlord was bonafide---No illegality or infirmity was noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Sheikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307 and Mohammad Sharif v. Iftikhar Hussain Khan 1996 MLD 1505 ref.

Choudhry Muhammad Iqbal for Petitioner.

Abdul Ghaffar Kalwar and Irshad Ahmed Shaikh for Respondent Nos.3 to 16.

2023 C L C 1933

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

PEER BUX alias PEERAL through Legal Heirs and others----Applicants

Versus

MUSHTAQUE AHMAD and through Legal Heirs and others----Respondents

Civil Revision No.S-108 of 2009, decided on 18th April, 2022.

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

----Ss. 39, 54 & 55---Suit for cancellation of document, mandatory and permanent injunction---Plaintiff filed a suit seeking the cancellation of a registered deed, revenue entries, damages, and both mandatory and permanent injunctions---Claim was based on the plaintiff's assertion of ownership over the suit property and the contention that the revenue entries in favor of the defendants were illegal---Plaintiff's case was based on the fact that his grandfather had sold his share of the land to them, which was recorded through a statement before the Mukhtiarkar and entered into the revenue record---Both the Trial Court and the Appellate Court decreed in favor of the plaintiff---Validity---Tapedar presented the entire record of the suit land dating back to 1952, showing that it had been recorded in the name of the defendants' vendor since that time---Subsequently, the vendor sold the suit land to the defendants in equal shares through a registered sale deed, and the necessary entries were recorded in Form VII-B---Tapedar further stated that there was no entry in the revenue record regarding the acquisition of the suit land by the plaintiff's grandfather---Courts below failed to properly appreciate the presented evidence, leading to a misreading and non-reading of the evidence presented by both parties---Therefore, it was deemed necessary for the High Court to intervene and exercise its revisional jurisdiction under S. 115, C.P.C---As a result, the impugned judgments and decrees were set aside, the suit was dismissed, and the revision application was allowed.

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 ref.

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

----Art.133---Cross-examination---Evidence has to be read as a whole and especially when it has been passed through the test of cross-examination---Cross-examination of a witness affirms what he has stated in this examination-in-chief and when in his cross-examination he cannot defend his examination-in-chief, then the Court cannot rely upon his examination-in-chief, but has to see and decide the matter on the basis of his cross-examination.

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

----Arts.132 & 133---Examination and cross-examination of witness---Evidence of a witness has to be looked into as a whole, especially the cross-examination so as to ascertain the veracity and truth of his assertion in his examination-in-chief---This is the only way the Court can appreciate the evidence of a witness, and if not, then every witness will take benefit of his examination-in-chief, which at times would not depict the true facts which can only come through his cross-examination---Court has to adopt the proper way while appreciating the evidence of a witness---Picking and choosing of minor portion of a statement does not amount to pragmatic and positive inference and approach---Court is supposed to draw a conclusion keeping in view the substance of entire deposition of witness and one sentence cannot be torn out of context---While considering the evidence as a whole and arriving at a certain conclusion on the basis thereof, there are three things which are kept in view; the volume of evidence, the weight of the evidence and the probability of evidence---It is the cumulative effect of all the three aspects of the evidence that finally determines a certain question of fact.

2016 CLC Note 73 and Riaz Ahmad v. Fazal Hussain and Fatima Bai v. Shaikh Muhammad Zaki 1990 CLC 1064 ref.

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

----Art.133---Cross-examination---Scope and purpose---Documents either filed with the evidence or relied upon in the written statement cannot be taken into consideration unless the witness enters into the witness box and is tested with the rigors of cross-examination and only then the said piece of material or evidence can be relied upon or looked into---Purpose of cross-examination of a witness is to test the veracity of the statement of the witness made out in examination-in-chief---Therefore, equal importance should be attached by the court to the cross-examination of a witness during evaluation of the evidence of such witness.

(e) Evidence---

----Court must make every attempt to separate falsehood from the truth---It should only be in exceptional circumstances, when it is entirely impossible to distinguish the grain from the chaff and when both are inextricably intertwined, that the entire evidence of such a witness can be relied upon or, for that matter, be discarded.

(f) Evidence---

----Court, while determining the veracity of a witness's deposition, may take into account his conduct---This assessment is crucial to ascertain the reliability of the witness's testimony.

Sardar Akbar F. Ujjan for Applicants.

Safdar Ali Kanasero for Respondents.

Mehboob Ali Wassan, Assistant A.G. along with Salahuddin Avesi, Mukhtiarkar (Revenue), Gambat.

2023 C L C 1955

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD RAEES and another----Petitioners

Versus

MUHAMMAD ASLAM and 8 others----Respondents

Constitution Petition D-1965 of 2011 and C.M.A. No.88 of 2020, decided on 29th November, 2022.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review jurisdiction---Evidence, non-consideration of---Principle---Petitioner sought review of order on the plea that there were certain errors of law in order under review---Validity---One of the most essential requirements for invoking review jurisdiction of a Court is that important evidence having a material bearing upon merits of case and decision thereof was subsequently discovered, which was neither in the possession nor in the knowledge of aggrieved party before passing of judgment / order sought to be reviewed and further that important evidence referred to was in existence when the judgment / order was made---Power of review can only be exercised when an error or mistake is manifestly shown to float on the surface of record, which is so patent that if it allowed to remain intact, would perpetuate illegality and gross injustice---Review cannot be allowed on discovery of some new material if such material was available at the time of trial, appeal or revision, as the case may be---Matter cannot be reopened under the garb of review application---High Court in exercise of review jurisdiction declined to interfere in order under review---Application was dismissed, in circumstances.

Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 and Ali Ahmad v. Muhammad Iqbal 2009 SCMR 394 rel.

Muhammad Tasneem for Petitioners.

2023 C L C 2038

[Sindh]

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

BISMA NAUREEN/AMEER JEHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance Pakistan, Islamabad and others----Respondents

C.P. No.D-1228 of 2023, decided on 3rd March, 2023.

(a) Constitution of Pakistan---

----Arts. 15, 16, 17, 19, 25 & 199---Right to freedom of movement, assembly, association, speech and equality before the law---"Aurat March" (literally translating to Women's March), holding of---Fundamental rights of women---Petitioner/lady invoked constitutional jurisdiction of the High Court seeking that "Aurat" /Women's March be banned---Contention of the petitioner was that certain slogans , like "mera jism, meri marzi" , raised by the participants of the Women's March would run contrary to socio-cultural norms---Held, that there was nothing objectionable in the particular slogan cited by the petitioner , as the same merely sought to convey the sense of agency and self-efficacy that a woman was entitled to have and exercise over her person and actions, for whilst "feminism" and feminists might sometimes be viewed with opprobrium by those of a patriarchal or conservative bent of mind, for women' rights were human rights, and in a country based on democratic values, women were entitled to and need to be extended the full measure of freedoms enshrined under the law and Constitution---Articles 15, 16, 17 and 19 of the Constitution guaranteed the fundamental rights to freedom of movement, assembly, association and speech to all citizens, while Art. 25 of the Constitution ensured equality before the law and equal protection of the law by stipulating, inter alia, that there could be no discrimination on the basis of sex alone---Whilst said rights were subject to reasonable restrictions, as qualified in each case, it was axiomatic that the same ought to normally be given as expansive interpretation as possible in terms of the relevant Articles---In the event of a restriction being imposed by the State, the same would fall to be tested by the Court so as to ensure that the restriction was "reasonable" in the true sense---However, in the absence of any curb or constraint imposed by the State, it did not fall to the Court to itself take on that function through proceedings under Art. 199 of the Constitution, especially when no fundamental right of a petitioner was being curtailed---Petition did not disclose any valid cause of action and appeared to be nothing more than an attempt to seek publicity---Constitutional petition was dismissed in limine with costs, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Aggrieved person---Public interest litigation---Scope---"Aurat March" (literally translating to Women's March), holding of---Fundamental rights of women---Petitioner/lady, being a citizen, invoked constitutional jurisdiction of the High Court seeking that "Aurat"/Women's March be banned---Validity---Petitioner did not qualify as an "aggrieved person" in terms of Art. 199 of the Constitution---Petitioner , nonetheless, sought to project the matter as warranting action in the public interest, however in such cases, the Court was required to distinguish between genuine public interest litigation as opposed to litigation motivated by a desire to seek publicity or serve a private agenda---Present petition did not disclose any valid cause of action and appeared to be nothing more than an attempt to seek publicity---Constitutional petition was dismissed in limine with costs, in circumstances.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 ref.

Petitioner in person.

2023 C L C 2119

[Sindh]

Before Muhammad Shafi Siddiqui, J

PAKISTAN INTERNATIONAL CONTAINER TERMINAL LIMITED through authorized representative----Plaintiff

Versus

FEDERATION OF PAKISTAN through Federal Secretary Ministry of Maritime Affairs and others----Respondents

Suit No.2933 of 2021, decided on 2nd March, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---Plaintiff company was listed container terminal of Pakistan and had been operating as a terminal operator in pursuance of an Implementation Agreement since 18-06-2002---Defendants were regulators of the licensed ports, marine services and facilities and the management of vessels traffic at ports---Defendants intended to terminate Implementation Agreement with the plaintiff and invited proposals for design, finance, construction and development operation and transfer of container terminal Karachi Port on Build, Operate and Transfer (BOT) basis---Validity---Assets were to be transferred to defendant Karachi Port Trust ('KPT') and plaintiff could not rely on such assets as defense---On expiry of the Agreement, no right for plaintiff survived to occupy, except that it could match the bid to re-commence operation and on such defense, possession could not be retained---Defendant KPT had a right to decide then or any time after the invitation of bids and during the process of conclusion of bids, that the Port would operate the terminal itself---No justification existed for plaintiff to compel defendants to offer plaintiff to operate the terminal till new assignment was executed or decision was made---Plaintiff had no legal justification to continue its operation after the conclusion of agreed period under the Implementation Agreement---Plaintiff was in no position to succeed on the strength of investment made by it as it was on Build Operate and Transfer (BOT) basis---Plaintiff built and operated it for 21 years and then it stood transferred at the conclusion of Agreement---Plaintiff had a right to exercise its right of first refusal to match the bid of a successful bidder, if so declared by defendant KPT to the satisfaction of the defendant---Defendant KPT could exercise their right to reject any bid before offering right of refusal to plaintiff if deemed fit and proper, subject to law---In case defendants desired to operate the terminal on their own, the plaintiff could not compel the defendants for the extension or renewal of any agreement for operating the terminal---Plaintiff as licensee would complete its period as stipulated in the agreement---Plaintiff did not succeed for renewal/extension on the strength of the investments so made---Plaintiff had no legal justification to continue occupying the terminal beyond 17-06-2023---In case right of refusal was exercised by plaintiff, it would be re-occupation and re-commencement of such fresh terms as agreed---Application was dismissed, in circumstances.

Arshad Tayebaly, Omer Memon and Aitzaz Manzoor Memon for Plaintiff.

Ayan Mustafa Memon for Defendant No.2.

2023 C L C 2162

[Sindh]

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

Messrs DOLMEN REAL ESTATE MANAGEMENT (PVT.) LTD.----Petitioner

Versus

PROVINCE OF SINDH through Board of Revenue and others----Respondents

C.Ps. Nos.D-1763 to D-1766 of 2022, decided on 26th August, 2022.

Stamp Act (II of 1899)---

----Ss. 29, & 62, Sched. 1---Execution of instrument---Payment of stamp duty---Liability, determination of---Stamp duty, deficiency of---Penalty, imposition of---Chief Inspector of Stamps while declaring the duty qua lease agreement as deficient, demanded not only payment of said duty but also imposed penalty upon both the parties (lessors and lessees), which order was maintained by the Chief Revenue Authority---Petitioner (lessor/company) invoked constitutional jurisdiction of the High Court contenting that in terms of specific clause of agreement between the parties, only the lessee was liable to pay the amount of requisite duty and penalty, who had already paid the same---Contention of the respondents / Authorities was that all executants of lease agreement were liable to fulfill order of payment---Held, that the contention of the respondents (authorities) was misconceived and contrary to the provisions of S. 29 as well as S. 62 of the Stamp Act, 1899, as both the said sections could not be read in isolation and the same were required to be read together for being complimentary to each other---Provisions of S. 29 of Stamp Act, 1899, were charging provisions, which created liability upon a person to pay stamp duty on instrument as described in any of Arts. of Sched. 1 to the Stamp Act, 1899; and unless any person was liable to pay stamp duty under section 29 of the Stamp Duty Act, 1899, he could not be held liable to penalty for default of any other person, who was otherwise liable to pay such amount of stamp duty in terms of S. 29 of Stamp Act, 1899 and the agreement executed between the parties contrary to provision of S. 29 of the Stamp Act, 1899---Even the provisions of the Stamp Act, 1899, did not provide for imposition of penalty on all the executants parties of an instrument chargeable with duty---Term "any person" referred to any of the executant, other than a witness of an instrument chargeable with duty, subject to his liability to pay stamp duty in terms of S. 29 of the Stamp Duty Act, 1899---Intention of the Legislature in said regard was clear from the plain language of the said provisions as instead of using the words "any person", the words "every person" could have been used to make all the executants of instrument liable to pay penalty under S. 29 of the Stamp Act, 1899---It was liability of lessee/tenant who had already paid the amount of duty as well as penalty imposed by the respondents---High Court set-aside impugned orders and judgments passed by the respondents/authorities , requiring the petitioner/lessor to pay duty/penalty---Constitutional petition was allowed, in circumstances.

Syed Zaeem Haider for Petitioner (in all Petitions).

Zeeshan Adhi, Additional Advocate-General, Sindh for Respondent.

2023 C L C 1

[Lahore]

Before Shahid Karim, J

HAROON FAROOQ----Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 9 others----Respondents

Writ Petition No.227807 of 2018, decided on 9th September, 2021.

(a) Interpretation of Constitution---

----Constitution is a social compact between the State and the people, and it contains rights which the State is under an obligation to enforce.

(b) Constitution of Pakistan---

----Art.3---Climate justice---Scope---Environmental degradation---Elimination of exploitation---Under Art.3 of the Constitution the State has to ensure elimination of all forms of exploitation and gradual fulfilment of fundamental principles---From each according to his ability and to each according to his work---Such concept of elimination of exploitation can only be fulfilled if the State takes meaningful measures for control of environmental degradation and for climate justice to be enforced so that basic principle enshrined in Art.3 of the Constitution can be achieved.

(c) Constitution of Pakistan---

----Arts.9 & 38---Right to life---Environmental degradation and climate justice---Scope---Provision of Art.9 of the Constitution includes life which is free from hazards caused by environmental pollution in order to nurture healthy and robust life for the people of Pakistan--- Principles of policy under Art. 38 of the Constitution oblige the State to secure well-being of people to provide basic necessities of life such as food, clothing, housing, education and medical relief, irrespective of sex, caste, creed or race--- Such goal can only be achieved by the State by ensuring minimum standards comprised in the term 'life' and to prevent climate crisis so that human activity can be carried on without harmful effects of severe weather events which are caused by climate change---Concept of penumbras has been employed to enlarge meaning of life and if climate crisis triggers life-changing events, then the right conferred by Art.9 is in serious jeopardy.

(d) Constitution of Pakistan---

----Arts.153, 155 & 199---Environmental degradation and climate justice---Preservation of water resources---Mitigation and adaptation---Council of Common Interests---Complaints with respect to water supplies---High Courts, jurisdiction of---Petitioner was aggrieved of climate change and under social action powers of High Court assailed steps taken by Federal Government and Provincial Government which were contended to be insufficient---Validity---Constitution mandated that interest of a Province or any of the inhabitants should not be affected prejudicially by failure of any authority to exercise any of its powers with respect to use and distribution or control of water from any natural source of supply---As such it was made one of the subject matters to be taken cognizance of by Council of Common Interests upon a complaint in such regard---Alternatively, such complaint could also give rise to litigation to be brought before Courts for redressal of those grievances and for climate justice to be enforced by Courts--- Directions issued by High Court in the matter were related to very basic and rudimentary knowledge of area of water management and aimed at effective reduction in wastage, non-revenue water allocation and metering---Sources of water, surface as well as underground, should be diligently protected from contamination and always maintained in a healthy state---In order to address adverse impacts associated with global warming, a key goal of climate justice was to put across the effects of mitigation and adaptation in order to promote greater climate equity---High Court had issued large number of judicial directions in the present case relating to mitigation and adaptation measures particularly those aimed at water conservation---Climate change engendered adaptation needs which, in turn, had fed adaptation policies and options which could reduce risks to natural ecosystems by its restoration, to health, livelihoods, food and water with efficient irrigation, green infrastructure, sustainable land use and water management---Twin themes of mitigation and adaptation had to be at the heart of any climate litigation---High Court observed that present matter involved an ongoing supervisory jurisdiction with judicial directions, thus present petitions could not be brought to an end for now; that there was an overriding public interest which had justified issuance of Constitutional remedies to compel executive action to achieve climate goals; that much had been gained and in order to sustain and entrench it, further supervision would have to continue---Constitutional petition was adjourned accordingly.

State of the Netherlands (Ministry of Economic Affairs and Climate v. Ugenda Foundation (Case NO.00135, unreported); 2020 PLC 20; Jegheli v. Georgia (38342/05), unreported, 13 July, 2017) and D.G Khan Cement Company Ltd. v. Government of Punjab through Chief Secretary, Lahore and others 2021 SCMR 834 rel.

Abu Zar Salman Khan Niazi, Faiz Ullah Khan Niazi, Zain Sheikh, Syed Ghazanfar Shah, Shahzad Ahmad Cheema, Amina Ali for Petitioner.

Syed Kamal Ali Haider for Judicial Water Commission.

Ahmad Rafay Alam, M. Azhar Siddique, Naila Iqbal, Sheraz Zaka and M. Yasin Hatif for Petitioners (in connected petitions).

Altafur Rehman Khan, Ishfaq Amir Hussain, M. Jawwad Khan Lodhi and Syed Samir Sohail for DHA, Multan.

Barrister Osama Zafar for Applicant (in C.M.No.04/2021).

Amer Riaz Amir Minhas for Respondent (in C.M.No.04/2021).

Mansoor Usman Awan and Barrister Hamza Shehram Sarwar (in C.M.No.06/2021).

Mian Irfan Akram (in C.M.No.08/2021).

Qadeer Kalyar for Applicant (in C.M. No.8/2020).

Ms. Scheherzade Sherhyar (in C.M. No.10/2020).

Farooq Amjad Mir (in C.M.No.32/2020).

Ashtar Ausaf Ali, Nimra Arshad and Faiz-e-Azhar for Applicants (in C.Ms. Nos.34 and 36 of 2020).

Sahibzada Muzaffar Ali and Hannan Masood for LDA.

Nadeem Ahmad Sheikh, Jahanzeb Sukhera and Osama Qamar for RUDA.

Ashtar Ausaf (in C.M.No.34/2020).

Sardar Balakh Sher Khosa for Cantonment Board.

Arslan Riaz for Respondent-PEPSI.

Mirza Nasar Ahmad, Addl. Attorney General, Tahir Mehmood Khokhar, D.A.G and Rao Javed Khurshid, Assistant Attorney General.

Anis Ali Hashmi, Addl.A.G.

2023 C L C 86

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MUHAMMAD YASIN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BUREWALA and 6 others----Respondents

Writ Petition No.4785 of 2018, heard on 7th October, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss.5 & 15---Oral tenancy---Eviction---Right to produce evidence was closed---Constitutional petition---Respondent alleged that suit premises/shop was given on rent to the petitioner being close relative; that petitioner allowed hawkers to use the front of the rented premises; that petitioner stopped making payment of rent to respondent---Petitioner, in his leave to contest, denied the relationship of landlord and tenant---Premises was sold by predecessor-in-interest of the respondents to the petitioner through an oral agreement---Rent Tribunal closed the right of petitioner to produce evidence and finally accepted the eviction petition while determining the rent due---Appeals filed by both parties, were dismissed by appellate Court---Validity---Petitioner submitted that matters had to be decided on merit rather than technicalities; that Rent Tribunal acted harshly while closing his right to produce evidence; that he also filed a suit for specific performance of an oral agreement to sell in respect of the suit shop---Respondent contended that the title could not be determined in ejectment proceedings; that at the time of allowing the eviction petition, rate of rent was erroneously fixed; that interim rent was fixed but the arrears of the rent recoverable had been settled---High Court observed that even today the rented premises was, admittedly, in the name of predecessor-in-interest of the respondents as owner---Suit for specific performance filed by the petitioner was concurrently dismissed by both the Courts below and now the matter was pending adjudication before High Court---Petitioner filed suit for specific performance after the date when notice for eviction/recovery of rent was sent by predecessor-in-interest of the respondents to the petitioner---Suit was apparently filed as a counterblast to circumvent the eviction proceedings---Right to produce evidence was closed after providing multiple opportunities to the petitioner to produce the evidence with an explicit warning about the consequences of failure to adduce the same---Recovery of arrears of rent per month was not justified and was much below the amount on which fine had been received by the landlord or the tentative rent, which Rent Tribunal itself determined---Predecessor-in-interest of the respondents made averments in his eviction notice that under oral tenancy, petitioner was occupying the rented premises at the said rate per month, hence the respondents' claim for enhancement of rent was unjustified---Since the hawkers were not using the rented premises rather putting their carts on the public road, the respondents were not entitled to enhance rent on that account---Both the Constitutional petitions were dismissed accordingly.

(b) Punjab Rented Premises Act (VII of 2009)---

----S.15---Eviction proceedings, separate character of---Agreement to sell or a suit for specific performance instituted on the basis of the same does not debar the eviction in accordance with law.

(c) Punjab Rented Premises Act (VII of 2009)---

----Preamble & S.26---Tribunal, extent of the power of---Dispute regarding the title of the property cannot be determined in eviction proceedings.

Fareed-ud-Din Masood v. Additional District Judge Bahawalpur 2019 SCMR 842 rel.

(d) Punjab Rented Premises Act (VII of 2009)---

----Ss.25 &27---Right to produce evidence, closure of---Special law, preference over Civil Procedure Code, 1908---Punjab Rented Premises Act, 2009, is a special law which mandates its conclusion within a stipulated period of time, i.e., 4 months---Only two opportunities are to be given to each side to adduce the evidence.

(e) Punjab Rented Premises Act (VII of 2009)---

----S.9---Tentative rent, nature of calculation of---Rate of rent tentatively calculated under S.9 of Punjab Rented Premises Act, 2009 for determination of amount of fine is not to be considered as rent agreed between the landlord and the tenant---Final rate of rent can be lesser or greater than the rent tentatively determined as the latter is make-shift arrangement till the final determination is made by Rent Tribunal by passing the final order.

(f) Punjab Rented Premises Act (VII of 2009)---

----S.5---Oral tenancy, validity of---If the tenancy is not in writing, the owner of the premises will be presumed to be the landlord and occupier thereof as the tenant unless the contesting tenant like the petitioner can come up with a declaration to the contrary from the court of a competent jurisdiction.

Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 and Mrs. Azra Riaz v. Additional District Judge and others 2021 CLC 623 ref.

Mehr Irshad Ahmad Arain for Petitioner.

Sh. Muhammad Hanif for Respondents.

2023 C L C 122

[Lahore]

Before Faisal Zaman Khan, J

GHULAM RAZA and another----Petitioners

Versus

MUREED ABBAS and others----Respondents

Civil Revision No.2517 of 2014, heard on 27th January, 2022.

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

----Ss.122 & 123--Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Oral gift translated into written registered deed proved through marginal witnesses---Evidential value---Suit for declaration and perpetual injunction was filed by the petitioners alleging that their grandfather/deceased had orally gifted them the suit property; that gift deed was also executed; that mutation of inheritance sanctioned was illegal---Petitioners' suit was concurrently dismissed---Petitioners contended that since the oral transaction of gift was translated into a written gift deed, which had been proved by the petitioners by way of producing its marginal witnesses, thus, the Courts below erred in law in deciding against the petitioners---Validity---Petitioners were supposed to prove both of the two segments of the alleged gift transactions separately; i.e. firstly oral gift and written/registered gift deed---Petitioners being beneficiaries of the oral gift had to discharge burden to prove such transactions separately---Mandatory for the petitioners/beneficiaries to highlight in their plaint the complete details of the oral transaction mentioned, but no such details had been mentioned in the plaint---Petitioners failed to prove the oral transaction---In order to fill the lacunae left by the petitioners in the pleadings, one of the witnesses stated the names of the persons in presence of whom oral gift was made, however, such stipulation was clearly beyond the scope of pleadings, thus, the same could not be relied upon---Written gift deed did not show that the land in dispute at the outset was orally gifted to the petitioners by the deceased---Since the original transaction of oral gift could not be proved by the petitioners, the whole superstructure/edifice built thereon through subsequent written deed would fall on the ground---Petitioners failed to prove the necessary ingredients of the gift through unequivocal and clear evidence, i.e. (a) proposal by the donor; (b) acceptance by the donee; and (c) delivery of possession to the donee---Revision petition was dismissed accordingly.

Islam ud Din (deceased) through L.Rs. and others v. Mst. Noor Jahan (deceased) through L.Rs. and others PLJ 2016 SC 616; Phull Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Ibrahim Kamal v. Mst. Malooka Bibi and others 2012 SCMR 1; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370; Muhammad Rafique and another v. Syed Warand Ali Shah and others 2021 SCMR 1068; Abdul Razaq v. Abdul Ghaffar and others 2020 SCMR 202; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Messrs Essa Engineering Company (Pvt.) Ltd. andanother 2014 SCMR 922; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 295; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Muhammad Hussain v. Khushi Muhammad through L.Rs. and 5 others 2003 CLC 478; Moulana Atta ur Rehman v. Al Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 rel.

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

----Arts.117 & 118---Oral gift---Burden upon the beneficiary---Mandatory for a beneficiary of an oral transaction to prove through positive evidence the day, the venue, the persons/witnesses in whose presence the alleged transaction was made, the time thereof, the month and year and even the consideration and in order to prove this at the outset all these details are to be mentioned in the pleadings.

Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Saddaruddin (since deceased) through L.Rs. v. Sultan Khan (since deceased) through L.Rs. and others 2021 SCMR 642; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her L.Rs. and others 2021 SCMR 73; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Jubilee General Insurance Co. Ltd. Karachi v. Ravi Steel Company, Lahore PLD 2020 SC 324; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417 and Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1360 rel.

M. Ramzan Ch. for Petitioners.

Junaid Shehzad Tarar for Respondents Nos.1 to 4, 7 and 8.

Sultan Haider Ali Malik for Respondent No.5.

2023 C L C 138

[Lahore]

Before Asim Hafeez, J

ILYAS AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and 7 others----Respondents

Civil Revision No.1122 of 2011, decided on 3rd February, 2022.

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

----Arts. 76, 77 & 129(g)---Civil Procedure Code (V of 1908), O.XIII, R.4---Subsequent/bona fide purchaser---Petitioner purchased suit property from seller/occupant having ownership based on acquisition amount/zar-e-malkana paid---Respondents filed suit for declaration claiming ownership on basis of decision of Tehsildar in favour of their predecessors and mutation incorporated in revenue record by order of revenue hierarchy---Respondent's suit was concurrently decreed---Petitioner contended that no right could be claimed on basis of order lacking legitimacy as the same was never implemented, and otherwise details whereof were not found in the revenue record and no change therein was made on its basis; that consideration amount was paid/accepted and record was accordingly changed, registering ownership rights of the legal heirs of seller/occupant and the same were transferred to the petitioner; that petitioner had acquired rights with consideration and in good faith; that original copy of order was not produced; that uncertified copy of the said order placed on record was inadmissible and could not be referred/relied for determining rights claimed thereunder---Respondents contended that no objection as to inadmissibility was raised during the trial and that petitioner was aware of the rights of the respondents who were in possession of the suit land---Decisions of both the Courts below fortified reasoning by referring to the observations recorded in orders of the revenue hierarchy---Original/certified copy of order was not filed---Respondent claim was not proved through primary or secondary evidence---Photocopy of the said order was produced without making any effort to summon the official record for producing original order---Fact that such original was lost in order to legitimize the production of secondary evidence, was not established---Said order, despite being relevant, was inadmissibleas the same was placed on record without fulfilling essential requirements---Order was not recorded in the revenue record which amounted to a secret well-kept for over 80 years and the same was not produced in original without fulfilling the conditions prescribed for producing secondary evidence---Respondents withheld their best evidence---Just because the said order was repeatedly referred in the orders would not absolve respondents from their obligation of satisfying the test of admissibility---Revision petition was allowed and the case was remanded to the appellate Court to decide the appeal afresh.

Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 and Amirzada Khan and others v. Ahmad Noor and others PLD 2003 SC 410 rel.

Dawood Iqbal Qureshi assisted by Zeeshan Afzaal Hashmi and Muhammad Nouman Shams Qazi for Petitioner.

2023 C L C 161

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir and Muhammad Raza Qureshi, JJ

AMIR SOHAIL----Appellant

Versus

JUDGE FAMILY COURT and others----Respondents

I.C.A. No.439 of 2021 in Writ Petition No.19490 of 2021, decided on 30th December, 2021.

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

----S.10 & Sched.---Limitation Act (IX of 1908), Art.120---Guardians and Wards Act (VIII of 1890), S.25---Minor/son filed suit for maintenance against the appellant/father and appellant filed suit for custody of minor against mother and grandmother of the minor---Appellant filed constitutional petition and High Court issued direction to the Family Court for expeditious disposal to the extent of guardianship matter pending before it---Appellant contended that High Court did not mention anything as to his prayer against past maintenance allowance of the minor which had been allowed for previous period of four years, two months and six days prior to filing of suit; that Court could not grant past maintenance allowance beyond three years period prior to the date of filing of suit for recovery of maintenance---Validity---Court may presume that judicial/official acts have been regularly performed, although such presumption is rebuttable---Appellant never objected to the passing of impugned order at the stage when the same had been dictated nor any objection to the same was raised by filing any review application before the judge to assert that consent had not been given for passing the said order---Impugned order was a consent order for the entire matter that was decided in Chambers, which could not be called in question through Intra-Court Appeal---Minor in plaint claimed that the appellant was earning more than Rs.50,000/- which claim was denied by the appellant---Maintenance was allowed from the date when the mother of the minor was divorced and the minor had since been living with her---Neither the respondent/minor nor the appellant led any cogent evidence relating to income/financial status of the appellant---Trial Court was justified to determine the quantum of maintenance allowance on the basis of tentative assessment of available record---Such assessment was a finding of fact which could not be ordinarily interfered with in constitutional jurisdiction of High Court unless shown to be suffering from some illegality, misreading/non-reading of record or suffering from some jurisdictional defect---Past maintenance allowance could be allowed for a period more than three years but not more than six years---Family Court had to adjust the interim maintenance allowance paid during the pendency of the suit according to the amount determined in the final decree---Intra Court Appeal was disposed of accordingly.

Ghulam Sarwar (Deceased) through LRs and others v. Ghulam Sakina 2019 SCMR 567; Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457; Malik Sultan Khan v. Mst. Azra Yasmeen and others 2004 YLR 933 rel.

Naseer Ahmad v. Sheikh Gulzar Ahmad and 10 others 2006 MLD 1945 distinguished.

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

----Art.129(e)---Presumption of regularity was attached to all judicial and official acts, which include orders of courts.

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

----S.10 & 17---Minor could not be burdened with onus to prove the financial status/capacity of his father to be held entitled to maintenance allowance, rather it is for the father to prove his financial sources which if he failed to prove, inference would be drawn against him.

Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819 ref.

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

----S.17---Income status of father of minor, non-disclosure of---Adverse inference---Case of maintenance of minor/child---In case of father's non-disclosure of his income/paying capacity, an adverse inference could be drawn against him.

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

----Art.120---Family Court---Past maintenance of minor---Suit for recovery of maintenance allowance falls within the residuary Art.120 of the Limitation Act, 1908, providing six years limitation.

Jalal Badar Qureshi for Appellant.

2023 C L C 182

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Messrs ASKAR OIL SERVICES (PVT.) LTD. through Director----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy (Petroleum Division) Islamabad and 2 others----Respondents

F.A.O. No.3110 of 2022, decided on 17th October, 2022.

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

----S.22---Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules 2016, R.35(2)---Constitution of Pakistan, Art.25---Licence, issuance of---Discrimination---Similarly placed persons---Appellant was Oil Marketing Company (OMC) and aggrieved of refusal of authorities to grant extension in time before revoking of its licence---Validity---While granting extension to other OMCs, certain time was also granted to them to complete their work program / storage, which would be followed by third party inspection---Direction passed by High Court was not complied with by authorities vis-a-vis discriminatory aspect---High Court set aside order in question and remanded the matter to authorities to reconsider and finalize the case of appellant after providing opportunity of hearing---Appeal was allowed accordingly.

Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342; Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178; Ch. Ahmed Nadeem v. Abdul Qayyum and another PLD 2016 Isl. 98 and Muhammad Khalid Javed and others v. Lahore Development Authority and others PLD 2021 Lah. 211 ref.

(b) Constitution of Pakistan---

----Arts.4 & 10-A---Equal treatment under law---Right to fair trial---Scope---Every citizen and every person for the time being in Pakistan enjoys protection of laws of land---Such laws and Constitution are like a protective shield guarding life, liberty, reputation, body and property of persons within Pakistan---Any action adverse to rights of a person must therefore be through the mechanism or in accordance with laws which protect such persons---To be treated in accordance with law is to proceed against a person strictly under the law which provides protection to the persons in the first place---Right to fair trial under Art.10-A of the Constitution further buttresses Art.4 of the Constitution---Right to fair trial provides for determination or civil rights and obligations of a person through a fair trial and due process---Executive action, instructions or policy, no matter how well-intentioned, cannot hold ground unless those are backed by law.

FLEX-O-SIGN through Managing Director v. Liaqat Chaudhry and another 2006 CLC 1534; Ch. Muhammad Nazir Cheema v. Mujahid Sher Dil Chairman, District Task Force Sialkot and 3 others 2012 CLC 764 and MCA (Pvt.) Ltd. Franchisee of Pizza Hut v. Multan Development Authority and others 2021 CLD 639 rel.

(c) Administration of justice---

----Subsequent events---Principle---High Court can take notice of events which take place during pendency of proceedings---Where due to subsequent events original relief sought becomes inappropriate for deciding the controversy, amendment can be allowed to shorten litigation.

Muhammad Ahsan Bhoon, Barrister Muhammad Umar Riaz and Barrister Chaudhry Abu-Bakar for Appellant.

Muhammad Zain Qazi, Assistant Attorney General.

2023 C L C 193

[Lahore]

Before Masud Abid Naqvi, J

SHAUKAT IQBAL----Appellant

Versus

MUHAMMAD SHUMAIL AKRAM----Respondent

R.F.A. No.1693 of 2014, heard on 19th May, 2022.

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

----O.XXXVII, Rr.1 & 2----Negotiable Instruments Act (XXVI of 1881), S.56---Suit for recovery---Expression "sum of amount undertaken or ordered to be paid to payee"---Interpretation---Respondent/plaintiff filed suit for recovery under O.XXXVII, C.P.C against appellant/defendant with averment that respondent paid amount as loan in presence of witnesses and appellant/defendant handed over to respondent/plaintiff a cheque and said cheque was dishonoured due to insufficient funds---Appellant /defendant denied the receipt of loan from respondent with the claim that disputed cheque was handed over to respondent as zar-e-zamanat and furthermore some amount was returned by him to respondent after the initiation of criminal proceedings against appellant/defendant ---Trial Court decreed the suit----Held, that there was no denial of fact that disputed cheque was issued, suit was instituted on the basis of cheque amount and respondent/plaintiff admittedly received said some amount from appellant/defendant before filing suit---While appearing as witness, respondent/plaintiff conceded about the part-payment in cross-examination but by concealing the fact intentionally failed to plead that fact in his plaint and simply filed a suit for recovery of cheque amount---Question was as to what the term "sum of amount undertaken or ordered to be paid to payee" meant in a case where the admitted liability of the drawer of the cheque got reduced, on account of part-payment made by him, after issuing the cheque---Expression "sum of amount undertaken or ordered to be paid to payee" would mean the amount of the cheque alone in case the amount payable by the drawer but, could it be said the expression "sum of amount undertaken or ordered to be paid to payee" would mean the amount of cheque, even if the actual liability of the drawer of the cheque had got reduced on account of some payment(s) made by him towards discharge of the debt or liability in consideration of which cheque in question was issued---If it was held that the expression "sum of amount undertaken or ordered to be paid to payee" would necessarily mean the amount of cheque in every case ,the drawer of the cheque would be required to make arrangements for more than the cheque amount payable by him to the payee of the cheque in case of part-payment by the drawer of cheque to the payee and obviously that could not have been the intention of the legislature to make a person liable to pay more amount than amount payable through cheque ---If the drawer of the cheque was made to pay more than the amount actually payable by him, the inevitable result would be that he would have to chase the payee of the cheque to recover the excess amount paid by him---Even if the admitted liability of the drawer of the cheque had been got reduced, on account of certain payment(s) made after issuance of cheque, the payee would not be entitled to present the cheque for the whole of the amount to the banker for encashment or in such a case, if cheque was dishonoured for want of funds, a cause of action compulsorily would arise to file a suit for recovery of cheque amount under O.XXXVII, C.P.C---High Court observed, the drawer of cheque could make part-payment of the amount of the cheque, but that could easily be avoided by payee of the cheque, either by taking new cheque of the reduced amount from the drawer or by making an endorsement through a note on the cheque by the drawer acknowledging the part-payment and then presenting the cheque for encashment of only the balance amount due and payable to him----Appeal was allowed with direction to Trial Court to return the plaint to respondent for filing the same before an ordinary civil court of plenary jurisdiction.

Khalid Mahmood v. Tandlianwala Sugar Mills Ltd through Manager, Personnel and Administration Faisalabad PLD 2011 Lah. 52 rel.

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

----S.56----Civil Procedure Code (V of 1908), O.XXXVII, Rr. 1 & 2---Recovery suit on the basis of negotiable instrument----Part Performance---Section 56 of Negotiable Instruments Act, 1881 specifically provided for an endorsement on a negotiable instrument with regard to part-payment and the instrument could thereafter be negotiated for the balance amount---If the drawer and payee of cheque adopt the procedure given in S. 56 of the Negotiable Instruments Act, 1881 then it would be open to the payee of the cheque to present the cheque for the payment of only that much endorsed balance amount which was due to him---After the receipt of admitted part-payment from the amount of cheque before filing the suit, the payee could neither present the cheque for encashment without adopting procedure under S.56 of the Negotiable Instruments Act, 1881, nor could file suit for recovery of cheque amount while invoking special jurisdiction under O.XXXVII, C.P.C., in new circumstances which is a subsequent agreement rather would file a suit for recovery of balance amount of cheque before an ordinary civil court of plenary jurisdiction---Order XXXVII, C.P.C. does not restrict person(s)/plaintiff(s) from filing an ordinary suit for recovery of cheque amount before an ordinary civil court of plenary jurisdiction rather provided discretion to either institute a suit by invoking special jurisdiction under O.XXXVII, C.P.C. or to file the same under ordinary procedure before ordinary civil court of plenary jurisdiction and there existed no legal compulsion to restrict the choice of person(s)/plaintiff(s).

Khalid Mahmood v. Tandlianwala Sugar Mills Ltd through Manager, Personnel and Administration Faisalabad PLD 2011 Lah. 52 rel.

Mehram Ali Bali for Appellant.

The respondent/plaintiff was proceeded against ex-parte on 19-5-2022.

2023 C L C 201

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

NISAR AHMED----Petitioner

Versus

Haji FAZAL DAD----Respondent

Civil Revision No.856-D of 2015, decided on 13th September, 2021.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss.13, 30 & 31---Civil Procedure Code (V of 1908), O.VII, R.11 & O.VI, R.17---Suit for pre-emption, institution of---Limitation---Notice to the petitioner/public at large---Petitioner averred in plaint that he got knowledge about the sale on 17/06/2014 and that sale was effected through mutation on 31/05/2014---Respondent objected in written statement that suit was barred by time as the sale took place on 24/09/2013 through registered deed and also moved application for rejection of plaint---Petitioner's application seeking amendment in plaint as to the nature/date of sale was dismissed by Civil Court and the plaint was also rejected---Concurrent dismissal---Validity---In case of sale through registered sale deed, limitation for institution of suit for pre-emption was four months from the date of registration of the sale deed---Limitation for instituting a suit for pre-emption could not be commanded/controlled by S.31 of the Punjab Pre-emption Act, 1991---Suit was, undoubtedly, barred by time---Revision petition was dismissed accordingly.

Mst. Kausar Parveen v. Muhammad Iqbal PLD 2012 SC 760 rel.

Shaukat Hayat v. Liaquat Khan 2005 YLR 60 contra rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.30---Pre-emption suit---Limitation---Section 30 of Punjab Pre-emption Act, 1991, provided four eventualities to compute the limitation for instituting a suit for pre-emption---All the four were independent and contemplating different events for the purpose of calculating the limitation for a suit to enforce a right of pre-emption---Clause (d) of S.30 was not an exception to the provision, rather it was a residual provision and would only come into play if none of the preceding clauses were applicable/attracted---Where a case was covered by any specific clauses from (a), (b) and (c), clause (d) could not be resorted to.

(c) Punjab Pre-emption Act (IX of 1991)---

----Ss.30 & 31---Pre-emption suit---Limitation---Scope---Sections 30 & 31 of Punjab Pre-emption Act, 1991, were independent in their nature---Both the said provisions were having no effect/impact on each other---Had it been the intent of Legislature to make the period of limitation under S.30 of the Act, as a subservient to the requirement of S.31, it would have clearly indicated such intention by use of appropriate expression/words in either of the two sections.

Sard Ali Khan and others v. Badshah Khan PLD 2013 SC 369 rel.

Muhammad Nasrullah Malik for Petitioner.

Nemo for Respondent.

2023 C L C 219

[Lahore (Rawalpindi Bench)]

Before Shahid Jamil Khan, J

RASHEED AHMED KHAN and others----Petitioners

Versus

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

Writ Petitions Nos.2147, 2282, 2283, 2493 and 2841 of 2020, heard on 23rd December, 2020.

(a) Constitution of Pakistan---

----Art.140-A [as inserted by Constitution (Eighteenth Amendment) Act (X of 2010)]---Local Government System---Scope---After insertion of Art.140-A in the Constitution, obligation under Constitutional policy has turned into an inalienable Constitutional duty.

Raja Rab Nawaz v. Federation of Pakistan and others 2014 SCMR 101 rel.

(b) Cantonments Act (II of 1924)---

----Ss.13-A, 14 & 15-E (1) proviso---Constitution of Pakistan, Arts.140-A & 199---Constitutional petition---Local government---Cantonment Board---Varying constitution of Board---Principle---Petitioners assailed notification of nomination of members of Cantonment Board on the plea that such power could not be invoked on expiry of election tenure and elected members could not be dislodged who were to continue under S.15-E of Cantonments Act, 1924---Validity---Power once devolved under Art. 140-A of the Constitution, and assumed by elected representatives, could not be withdrawn through any administrative or legislative action unless tenure for which they were elected was over---Notification was not issued in consonance of valid principles and conditions---After insertion of Art.140-A in the Constitution, elected members, as envisaged in S.13-A of Cantonments Act, 1924, could only be replaced by members to be nominated under S.14 of Cantonments Act, 1924---Such nomination could only be made if Federal Government was satisfied that reasons or circumstances existed, which were prejudicial to or were hampering basic purpose of the statute to quarter the Regular Forces---High Court set aside notification issued under S.14 of Cantonments Act, 1924, as the same was issued without lawful authority---High Court directed that members already notified under S.13-A of Cantonments Act, 1924, would continue to hold their respective offices under proviso to S. 15-E(1) of Cantonments Act, 1924---High Court directed Federal Government to ensure elections of Cantonment Boards throughout the country expeditiously---Constitutional petition was allowed accordingly.

Ghulam Habib Rana and another v. Pakistan and others 1996 CLC 293; Cantonment Board, Rawalpindi through its Executive Officer and another v. Ghulam Habib Rana and 12 others 1997 CLC 374; Haji Muhammad Ijaz v. Government of Pakistan through Secretary, Ministry of Defence and others 2004 YLR 782; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Raja Rab Nawaz v. Federation of Pakistan and others 2014 SCMR 101; Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629; Hyderabad Cantonment Board v. Raj Kumar and others 2015 SCMR 1385; Election Commission of Pakistan through Secretary v. Province of Punjab through Chief Secretary and others PLD 2014 SC 668; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Cantonment Board, Rawalpindi and another v. Ghulam Habib Rana and others 1997 SCMR 1 and Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

Razzaq A. Mirza for Petitioner.

Ajmal Raza Bhatti for Petitioners (in connected Petitions).

Tahir Malik, Assistant Attorney General for Pakistan.

Ch. Muhammad Yaqoob and Waqar ul Haq Sheikh along with Muhammad Ali, ADG for Cantonment Board.

Amjad Ali along with Zafar Iqbal Hussain, Special Secretary and Muhammad Arshad, Director General Law, for Election Commission of Pakistan.

2023 C L C 239

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

IMRAN AHMED KHAN NIAZI----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.2604 of 2022, decided on 21st September, 2022.

Constitution of Pakistan---

----Arts.204, 175 & 218---Elections Act (XXXIII of 2017), Ss. 10 & 2(ix)---Constitutional petition---Power to punish for contempt---Jurisdiction of Election Commission---Scope---Petitioner assailed notices issued by Election Commission for contempt of Chief Election Commissioner---Contention of petitioner was that under the Elections Act, 2017, the Election Commission had no jurisdiction to punish any person for contempt of Court rather such powers were vested with the Supreme Court or the High Court under Art.175(2) & 204 of the Constitution; that such powers could not be conferred to the Election Commission through subordinate legislation; that the wording used in Art. 204 of the Constitution only referred to a Court which meant the Supreme Court or the High Court excluding all other quasi-judicial authorities and the executive as such impugned notices were contrary to the provisions of the Constitution; that under R.4(4) of the Elections Rules, 2017, only the Commission was empowered to issue notice to the petitioner whereas the first notice was issued by Secretary and the subsequent notice was issued by Director General Law of the Election Commission and that the Commission was defined under S.2(ix) of the Elections Act, 2017, read with Art.218(2) of the Constitution, which meant that the Commission consisted of the Commissioner who shall be Chairman of the Commission and four members---High Court issued notice to the respondents and directed that the proceedings might continue but no final order would be passed till outcome of the Constitutional petition.

Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; Dr. Raja Aamer Zaman v. Omar Ayub Khan and others 2015 SCMR 1303; Reliance Commodities Pvt. Ltd v. Federation of Pakistan (Secretary Revenue) and others PLD 2020 Lah. 632; Tariq Iqbal v. Election Commission of Pakistan and others PLD 2022 Lah. 607; Messrs Muslim Commercial Bank Ltd. v. Federation of Pakistan and 2 others PLD 2019 Sindh 624 and Federation of Pakistan through Secretary, Ministry of Energy (Power Division), Islamabad and others v. Shafiq ul Hassan and others 2020 SCMR 2119 ref.

Faisal Fareed, Advocate Supreme Court for Petitioner.

2023 C L C 252

[Lahore]

Before Shahid Karim and Rasaal Hasan Syed, JJ

Mst. ERUM LATIF----Appellant/Plaintiff

Versus

IMTIAZ KHAN and others----Respondents/Defendants

Regular First Appeal No.86 of 2017, decided on 7th December, 2021.

(a) Registration Act (XVI of 1908)---

----S.17---Registration of document---Principle---When document creates an interest in property, such document requires compulsory registration.

Bank of Oman Limited through Attorney v. M.Y. Malik & Co. and 2 others 2004 CLD 490 and Messrs Eagle Star Insurance Co. Ltd v. Messers Usman Sons Ltd. and others PLD 1969 Kar. 123 rel.

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

----S.12---Suit for specific performance of agreement to sell---Title passing of---Pre-condition---Such suit if decreed, passes no title to decree holder till such time that a registered sale deed is executed in implementation of decree.

Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909 rel.

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

----Ss.39, 42 & 54---Suit for cancellation of document, declaration and injunction---Limitation---Fraud, knowledge of---Proof---Appellant / plaintiff sought cancellation of registered sale deed executed in favour of respondent / defendant on the plea that it was not executed by her mother and was a result of fraud---Suit was filed 23 years after registration of sale deed and that too after the death of mother of appellant / plaintiff---Validity---Mother of appellant / plaintiff sold the property during her lifetime, number of alienations took place thereafter which she never challenged despite having knowledge of the transactions---Mother of appellant / plaintiff was fully conscious that property was lawfully sold by her in favour of respondent / defendant who subsequently lawfully sold it in favour of other buyers thereafter---Appellant / plaintiff as an heir had no locus standi to file the suit as transactions and documents were not challenged by her mother during lifetime---Suit instituted after 23 years was time barred and that the yarn spun by appellant / plaintiff to lay explanation for late institution was proved to be false---Trial Court analyzed the evidence in proper perspective---High Court declined to interfere in judgment and decree passed by Trial Court as findings recorded did not suffer from misreading and non-reading of evidence or from any error of law or jurisdiction---Appeal was dismissed, in circumstances.

Abdul Haq and another v. Mst. Surraya Begum and others 2002 SCMR 1330; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Noor Din and another v. Additional District Judge Lahore and others 2014 SCMR 513; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594; Hakim Ud Din through L.R.s and others v. Faiz Bakhsh and others 2007 SCMR 870 and Messrs United Bank Ltd. v. Messers Interior Decoration and Design Association and others 1983 CLC 244 ref.

Shahzad Mahmood Butt for Appellant.

Malik Muhammad Asif Awan for Respondent No.1.

Mirza Anees Baig for Respondent No.2.

Hafiz Naimat Ullah for Respondents Nos.3 and 4.

2023 C L C 301

[Lahore]

Before Safdar Saleem Shahid, J

SURIYA NAFEES----Petitioner

Versus

MUHAMMAD RAMZAN SHAHID and 2 others----Respondents

Writ Petition No.9545 of 2016, heard on 18th January, 2022.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Suit for recovery of articles belonging to wife---Maintainability---Scope---Question before High Court was whether Family Court had jurisdiction to entertain the suit where contention of the wife was that the articles purchased by her during marriage were retained by her husband at the time of separation---Held; as per Schedule attached to the Family Courts Act, 1964, the Family Court was empowered to hear such suits but those were also subject to proof---Both the courts below had erred in law and had committed illegality while dismissing the suit---Petitioner could not be ousted on the point of jurisdiction---Constitutional petition was accepted, impugned orders were set aside and the suit was remanded for decision on merits.

Khalil Ahmad Maan, Rana Naveed Khalil and Ch. Saif Ullah Khata for Petitioner.

Respondent No.1: Proceeded against ex-parte vide order dated 31-5-2018.

2023 C L C 324

[Lahore]

Before Shahid Karim, J

GHAZI FABRICS INTERNATIONAL LTD. and 3 others----Petitioners

Versus

FEDERATION OF PAKISTAN and 6 others----Respondents

Writ Petition No.67112 and other connected petitions of 2021, heard on 11th October, 2022.

(a) Constitution of Pakistan---

----Art.199---Judicial review---Factual issue---Scope---If matter relates to undisputed facts and has wider implications which relates to economic life of a nation in general, High Court cannot shirk its duty to exercise judicial review in the matter.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Public law---Natural gas sale price---Determination---Zero rated sector---Petitioners were aggrieved of additional security imposed by Sui Northern Gas Pipelines Limited (SNGPL) as Oil and Gas Regulatory Authority revised sale prices and tariff for zero rated industry operated on indigenous gas---Validity---Issue did not merely pit one consumer against SNGPL but an entire industry was in tension with SNGPL---Acts set in motion by SNGPL had a spiral effect not only on the petitioners but also on economy in general as petitioners were export oriented industries and were a major source of earning of foreign exchange---Any impact on petitioners would affect public purse and trickle down to the general public---There was a public law element inviting High Court to a searching inquiry and High Court could not sit in a state of judicial inertia---SNGPL exercised sovereign function of State---There was a monopoly so far as half of the country was concerned---SNGPL was a State owned public utility company and its actions were justiceable by High Court---Judicial review could be applied in certain circumstances to exercise of public contractual power---Public law principles were to be applied to executive agencies such as SNGPL as it was not formally separate from its sponsoring department and also because it was engaged in public service delivery---Test that was to be applied by courts was that the process might have a sufficient public law element irrespective of any connection with a statute or policy---Regarding contractual powers, preponderant approach was to regard contracts made by public authorities as subject to judicial review if there was a sufficiently "public law element" to the matter---Issue raised by petitioners was not purely contractual but related to rule of law and was to be judged on the basis of principles of administrative law such as irrationality and impropriety---High Court set aside the notices issued by authorities to petitioners---Constitutional petition was allowed, in circumstances.

Shadman Cotton Mills Ltd. and others v. Sui Northern Gas Pipelines Ltd. and others (W.P. No.61458 of 2017) ref.

Administrative Law by Paul Craig (Ninth edition) and Messrs Ramna Pipe and General Mills (Pvt.) Limited. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274 rel.

Salman Akram Raja, Arslan Riaz, Malik Bashir Ahmad Khalid, Khalil ur Rehman, Mian Mehmood Rashid, Mrs. Roohi Saleh, Moiz Tariq, Kashif Rafiq Rajwana, Shakeel Ahmad Basra, Haider Ali Chohan, Majid Ali, Ch. Umer Hayat Kamran Rajoka, Muhammad Saqib Badar, Muhammad Naveed Amjad, Mian Zulfiqar Ali, Nadeem Shehzad Hashmi, Islam Khan, Usman Ali Bhoon, Riasat Noor Zaman, M.A. Rizwan Kamboh, Muhammad Usman Sheikh, Ashiq Ali Rana, Mustafa Kamal, Syed Alamdar Hussain, Hamida Haq, Malik Zahid Manzoor Awan, Ch. Babar Waheed, Faisal Anwar Minhas, Rana Sajid Rasool and Syed Kamal Ali Haider for Petitioners.

Haris Azmat and Maryam Hayat for SNGPL.

Ahmad Pervaiz and Schehrazade Shahryar for OGRA.

Asad Ali Bajwa, Deputy Attorney General for Pakistan with Imran Javed, Deputy Chief Officer Law, SNGPL.

2023 C L C 355

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

GHULAM FARID and others----Petitioners

Versus

AHMAD KHAN and others---Respondents

Civil Revision No.213-D of 2004, decided on 25th October, 2021.

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

----S.4---Inheritance---Petitioners/grandchildren of deceased filed suit for declaration claiming entitlement of 7/128 share in his total legacy being legal heirs of pre-deceased daughter of deceased/propositus---Trial Court decreed the suit---Appellate Court allowed appeal of respondents/defendants---Petitioners contented that appellate Court wrongly held that mother of petitioners was predeceased from her father (i.e. in 1950) before enforcement of Muslim Family Laws Ordinance 1961, hence, petitioners were not entitled to the share of inheritance of their grandfather; and that inheritance would open the moment the person died and deceased/propositus died in 1970 after promulgation of Ordinance, 1961---Held, that undeniably, under Islamic Sharia, predeceased children were not entitled to any inheritance as only the survivors to a deceased were entitled to inheritance---By virtue of S.4 of Muslim Family Laws Ordinance, 1961 (promulgated on 15/07/1961), legal heirs of pre-deceased son/daughter of propositus would be entitled to inheritance on re-opening of the succession---Said S. 4 was declared un-Islamic by judgement of Federal Shariat Court in Allah Rakha's Case (PLD 2000 FSC 1) which judgement had been challenged by Government---Section 4 of the Ordinance, would remain in field till the decision of appeal by Shariat Appellate Bench of Supreme Court of Pakistan---Proposition that S.4 of the Ordinance, had no retrospective effect---Petitioners' right of succession came into existence only on the death of propositus as at that time the Ordinance, was already in field and operative---Only requirement of S.4 was that succession should open after the Ordinance was brought into effect---Section 4 was made applicable when succession of propositus opened and it was an established principle of Islamic Law that the succession of a Muslim would open the moment he/she died---Limitation would not preclude a person to get his share from inheritance---Revision petition was allowed and suit of petitioners was decreed accordingly.

Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480; Sakhi Muhammad v. Ahmad Khan and 3 others 1980 CLC 1006; Ibrahim and 3 others v. Nehmat Bi and 5 others PLD 1988 Lah. 186 and Kamal Khan alias Kamala v. Zainab Bibi PLD 1983 Lah. 546 rel.

Muhammad Khalid Khan Sikhani for Petitioners.

Muhammad Salman Bashir and Syed Jahanzeb Bukhari for Respondents Nos.1, 3-a and 5.

Syed Jaffar Tayyar Bukhari for Respondent No.4.

Rest of Respondent : Ex parte vide order dated 21-11-2021.

2023 C L C 380

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

SAKHI MUHAMMAD and others----Petitioners

Versus

HAJI AHMED and others----Respondents

Civil Revision No.190-D of 2012, heard on 14th September, 2021.

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

----Ss.135 & 147---Partial partition---Maintainability---Respondents/plaintiffs claimed that the suit property had attained the residential character which was joint inter se parties and that the petitioners were intending to alienate the property---Trial Court passed preliminary decree and appeal of the petitioners was dismissed---Petitioners contended that respondents/plaintiffs did not include the whole land in the suit and as such the suit was hit by partial partition---Respondents contended that petitioner did not bring any cogent material on record to establish the question of private partition; that private partition would have no impact unless compliance of S.147 of the Punjab Land Revenue Act, 1967, was made; that suit Khasra was the only Khasra which had attained the urban nature---Validity---Admittedly parties to suit were co-owners---Respondents' witness deposed that in terms of private settlement, the petitioners were in possession of the property falling in their share and that other co-owners were also holding their respective possession as per their entitlement---No written instrument was produced to establish private partition---Petitioners failed to lead any cogent evidence with regard to private partition---Suit property was part of a Khewat which consisted of 11 Khasra numbers and property falling therein was joint inter se parties and the suit property was not separable from the property situated in other Khasra numbers of the same Khewat---Respondents initially moved an application under S.135 of the Punjab Land Revenue Act, 1967, seeking partition before Tehsildar/Assistant Collector which was declined and appeal was dismissed by District Collector---Suit for partial partition was not proceedable---Revision petition was dismissed accordingly.

Muhammad Mukhtar and others v. Muhammad Sharif and others 2007 SCMR 1867; Mst. Walayat Begum and 3 others v. Muhammad Afsar and 3 others 2014 CLC 1103; Abdul Ghafoor v. Muhammad Shaffi and others 2019 CLC 1343; Ghulam Rasool v. Muhammad Khalid and 2 others 2006 YLR 2289 and Muhammad Alam and 6 others v. Senior Member Board of Revenue and 28 others PLD 2020 Pesh. 101 rel.

Muhammad Ayaz and others v. Malik Zareef Khan and others PLD 2016 Pesh. 8 distinguished.

(b) Administration of Justice---

----Election doctrine of---Pleadings, estoppel and res-judicata, relation with---Scope---Choice to initiate/pursue one out of host of available concurrent/co-existent proceedings/actions/remedies from a forum of competent jurisdiction vested with the party, but once choice was exercised and election was made then such party was precluded from launching another proceedings to seek a relief/remedy contrary to what would be claimed/achieved by adopting other proceedings/actions/remedies, which in legal parlance was recognized as "doctrine of election"---Edifice of the said doctrine was structured/founded by the courts of law from the well-recognized principles of waiver and/or abandonment of a known right/claim/privilege/relief as contained in O.II, R.2 of Civil Procedure Code, principle of estoppel, res-judicata.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 and Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore PLD 2020 SC 324 rel.

Muhammad Ilyas Sheikh for Petitioners.

Muhammad Amir Butt for Respondent Nos.1 to 4.

Nemo. for Respondents Nos.5 to 34.

2023 C L C 430

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

ATIA KAUSAR----Petitioner

Versus

NASREEN GUL and others----Respondents

Writ Petition No.2248 of 2022, heard on 29th August, 2022.

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

----Ss.135 & 161---Application for partition---Appeal---Improvements / construction during pendency of appeal---Scope---Petitioner was aggrieved of the observation given by the Additional District Judge to the extent of allowing subsequent construction by the respondents on the property in dispute at their own risk and cost---Validity---Parties were co-sharers and construction over the suit property was not disputed by them---Only contention of the petitioner was that the respondents could not raise construction over the joint land as it was yet to be partitioned---Final decree of partition had been passed by Assistant Commissioner, however, the decree had already been assailed through an appeal under S. 161 of the Punjab Land Revenue Act, 1967---Right of petitioner had already been safeguarded---In case the appeal filed in revenue hierarchy was decided in favour of petitioner, then the respondents would not be able to claim any compensation for the construction or improvements made by them on the spot---Constitutional petition was dismissed.

Walid alias Khan Sheerin and others v. Muhammad Niaz Khan and others 2011 MLD 1548 and Zahir Shah v. Shahzeb 2015 YLR 1505 ref.

Muhammad Ibrahim and others v. Muhammad Ismail and others 2005 SCMR 1335; Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999; Babar Ali v. Arshad Mehmood and 15 others 2012 MLD 1667; Muhammad Ali v. Mahnga Khan 2004 SCMR 1111; Fazal Begum and others v. Sh. Ijaz Ahmed and others 1985 SCMR 1928; Malik Manzoor Hussain v. Muhammad Bashir and others 1980 SCMR 366 and Mst. Feroz Begum v. Mst. Amtul Farooq 1974 SCMR 105 distinguished.

Ch. Umar Hayat for Petitioner.

Mojeeb-ur-Rehman Kiayani for Respondent.

2023 C L C 471

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD AFZAL and others----Petitioners

Versus

SHAHID IQBAL and 8 others----Respondents

Writ Petition No.33270 of 2016, heard on 20th April, 2021.

(a) 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) Registration Act (XVI of 1908)---

----S.28---Registration of document of sale deed of land---Territorial jurisdiction---Registration authority is not competent to register sale deed of any property beyond its territorial jurisdiction---Such sale deed is devoid of any legality.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and Muhammad Mushtaq and another v. Bashir Ahmad Chaudhary and another PLD 1991 Lah. 400 rel.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss.22 & 25---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.41---Evacuee property---Civil Court, jurisdiction of---Fraudulent transaction---Concurrent findings of two Courts below---Dispute between the parties was with regard to evacuee land---Revenue hierarchy passed concurrent findings against petitioner declaring mutation in question as bogus / fictitious document---Validity---Parties were venturing to obtain evacuee land and any dispute regarding such property / land could only be adjudicated or settled exclusively at the forum of Settlement Department---Civil Court had no jurisdiction to intrude into the jurisdictional realm of revenue department under S.41 of Pakistan (Administration of Evacuee Property) Act, 1957 and Displaced Persons (Land Settlement) Act, 1958---Even if Civil Court had passed any decree that was without jurisdiction and nullity in the eyes of law or void ab initio and same was in-executable---Both the parties failed to prove title of that person from whom they allegedly derived their title---High Court directed Settlement Authorities to retrieve possession of land in question---Constitutional petition was dismissed accordingly.

Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Amna Rani and others v. Ashfaq Ahmad and others 2008 SCMR 805; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Muhammad Sadiq (deed) through L.Rs and others v. Mushtaq and others 2011 SCMR 239; Ghulam Rasul and 5 others v. Jannat Bibi and 11 others 1990 SCMR 744; Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468 and Allah Rakha (deceased) through LRs and others v. Additional Commissioner (Revenue) Gujranwala and others 2020 SCMR 502 ref.

Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Province of the Punjab through Member Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through LRs and others PLD 1993 SC 147; Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965; Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115 and Muhammad Siddique (Deceased) through L.Rs. and others v. Mst. Noor Bibi (Deceased) through L.Rs. and others 2020 SCMR 483 rel.

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

----O.I, R.10---Necessary party---Scope---In absence of necessary party, no effective decree or order can be passed.

Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd. (MBCL) and another 2021 SCMR 305 rel.

Javed Sultan Chaudhry for Petitioners.

Muhammad Iqbal Ahmad Dhudhi for Respondents.

2023 C L C 504

[Lahore (Rawalpindi Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD AYUB (DECEASED) through L.Rs.----Petitioner

Versus

HASHIM KHAN (DECEASED) through L.Rs. and others----Respondents

Civil Revision No.180 of 2006, heard on 12th January, 2022.

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

----S.8---Qanun-e-Shahadat (10 of 1984), Arts. 47 & 75---Specific performance of sale contract---Subject land was transferred by predecessor of respondents (admitted/original vendor) to predecessor of petitioners (subsequent transferees) through oral sale mutation---Respondents instituted declaratory suit for confirmation of his sale contract of 1967 and cancellation of oral sale mutation of 1990---Petitioners filed suit on 10/06/1991 for recovery of possession through ejectment against respondents---Respondents' suit was dismissed and petitioners' suit was decreed---Respondents filed two appeals against both judgments, yet withdrew his suit with liberty to file fresh one; whereas the other appeal was dismissed which stood final---Pursuant to order of the Court respondents filed the present "fresh suit" which was concurrently decreed---Petitioners contended that the alleged sale contract was executed in favour of the respondents; that via oral sale mutation, the subject land was alienated to the subsequent transferee, thus at the most cause of action stood accrued immediately on its attestation; that respondents' suit was filed promptly but the same was dismissed; that during the appeal, respondent withdrew their suit subject to filing of fresh one, but the present "fresh suit" was instituted after more than three decades of the execution of alleged sale contract of 1967; that present suit was instituted more than 3 years of the withdrawal of earlier lis, hence the same was time barred; that decree for possession had already been granted to the petitioners and declaration of title was inbuilt, which attained finality and subsequent decree could not be passed in favour of the plaintiff; and that no piece of direct/affirmative evidence was produced by petitioner as to prove the sale transaction detailed in sale contract---Basic onus to prove sale contract was upon the respondents---Two marginal witnesses having already passed away were not available to be produced and two witnesses produced were admittedly not the signatories---Courts below had relied upon copies of statements made in earlier suit on behalf of deceased marginal witnesses by which earlier suit was dismissed by Civil Court and was also dismissed by Appellate Court as withdrawn with permission to file afresh---Said copies of statements were tendered in statement of the counsel without any prior request to lead secondary evidence and the same could not be relied upon until/unless those were confronted to its maker---Since the petitioners were granted decree for possession, the alleged sale agreement was rendered as nugatory/redundant because the title of subsequent vendee had to be valued on the basis of the judicial verdict/decree and the alleged agreement had not been a hindrance in his way---Mutation was not only approved in earlier suit, rather on its basis decree for possession was already passed in favour of petitioners, thus the onus was successfully discharged---Respondent was granted leave to bring fresh suit, which was filed on the same cause of action and limitation was to be reckoned from the date of commencement of earlier proceedings as once limitation started on same cause of action, then it could not stop running---First suit might be filed within time, but the subsequent was instituted even after three years of the withdrawal of first suit, which definitely was beyond the prescribed period of limitation---Institution of present suit beyond 3 years of the withdrawal of earlier suit was again time barred---Revision petition was dismissed accordingly.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Abdul Hakeem v. Abdullah and 11 others 1997 SCMR 1139 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

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

----Arts.47 & 75---Evidence of deceased person---Discarded in prior judicial proceeding---Scope---Copies of statements of the deceased witnesses were submitted in earlier suit which suit was dismissed by Civil Court and thereafter was also dismissed by Appellate Court as withdrawn---Evidence discarded by Court of competent jurisdiction could not be made basis for success of a subsequent lis.

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

----Arts.47 & 75---Evidence of deceased in prior judicial proceedings---Copies of statements of the deceased witnesses were submitted in earlier suit which suit was dismissed by Civil Court and thereafter was also dismissed by Appellate Court as withdrawn---Civil Court after scanning of entire evidence had rejected claim of the plaintiff in earlier suit and thereafter simple withdrawal thereof in appeal would not frustrate/wash away the well-reasoned determination made by Court---Assumption could be that such suit would have never been instituted, but the moment it was decided then the effect of final culmination could not be disregarded in the days to come---If the witness whose statement was recorded in such suit, died, copies of his statement could beheld admissible as secondary evidence but only following the procedure as such.

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

----S.8---Ownership and possession, relationship between---In suit for possession, the declaration of ownership was an inbuilt relief granted to the decree-holder---Once he was found to be entitled to the possession, it would mean that he had been declared to be title-holder.

Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380 ref.

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

----S.14---Principle---Time span consumed in proceedings of the earlier suit cannot be condoned, as it is not fulfilling the essential conditions laid down in S.14 of the Limitation Act, 1908.

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

----S.3---Compliance of statutory period within which a right had to be exercised/enforced was mandatory and the Court could not ignore period stipulated in the Limitation Act, 1908 even if no objection was raised by the opposite party in that regard.

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

----S.5---Delay, condonation of---Law of limitation imposed embargo in filing the suits/appeals/other remedies to save the parties from endless litigation---Such embargo could only be condoned, if the circumstances so detailed in this behalf were found to be beyond control of litigants and some plausible reason had been assigned.

(h) Administration of Justice---

----Responsibility of court---Court could not pass an order of its liking, solely on the basis of its vision/wisdom, rather it was bound/obligated to render decisions in accordance with law and the law alone.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court could only decide the cases in which the interference was warranted---Judgments/decrees, which were found to be illegal , unlawful and perverse being the result of misreading/non-reading of the evidence on the record and surely suffered from excess of jurisdiction exercised by the Courts below, which was exceptionable by High Court in the exercise of its revisional jurisdiction.

Zaheer Ahmed Qadri for Petitioners.

Malik Amjad Ali for Respondent No.1.

2023 C L C 543

[Lahore]

Before Shahid Bilal Hassan, J

Mst. NIGHAT WAHEED and others----Appellants

Versus

ARIF LATIF----Respondent

R.S.A. No.33740 of 2019, decided on 21st April, 2022.

(a) Gift ---

----Proof---Essential ingredients---Basic ingredients for a valid gift are, offer, acceptance and delivery of possession.

Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698 and Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986 ref.

(b) Gift---

----Proof---Essential ingredients to prove the oral gift missing---Perusal of the plaint reveled that it did not provide description of making of offer and acceptance of the same by the plaintiff/alleged donee as well as names of witnesses, in whose presence such transaction took place, which were necessary to be pleaded and proved---Furthermore, submission of contesting written statement on behalf of the alleged donor along with the other defendants negating the making of alleged oral gift as well as execution of acknowledgment deed put a heavy burden upon the plaintiff/alleged done to prove the same by producing strong and unimpeachable evidence but he miserably failed to do so---In addition to this, the alleged oral gift was with regards to 8-Kanals 12-Sq.Ft. of the land but the acknowledgment deed of the gift mentioned only 8-Kanals---Moreover, the possession of the disputed property was also not with the alleged plaintiff/alleged donee---Appeal was allowed and suit filed by plaintiff/alleged donee was dismissed.

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

----O.VI, R.7---Pleadings, departure from---Party cannot lead any evidence beyond its pleadings.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Limited v. Wali Bhai and others PLD 2016 SC 730 and Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others 2021 SCMR 642 ref.

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

----O.VI, R.7---Gift---Proof---Alleged witnesses to the oral gift not pleaded in the plaint---Names of two witnesses of the alleged gift deposed during evidence would be considered beyond pleadings---Even otherwise, in the present case the said two witnesses had not been produced in the witness box and it had been deposed that both of them had expired but no proof in the shape of their death certificates had been brought on record by the plaintiff/alleged done---Even if they had appeared in the witness box, non-pleading of their names in the plaint would have come in their way and would have caused impediment in recording their depositions as witnesses---So far as the execution of acknowledgment deed (of the alleged oral gift) was concerned, its witnesses were the same two witnesses of the alleged oral gift --- When the said two witnesses had not been produced in the witness box along with the revenue officer, who allegedly recorded statement of alleged donor, a serious dent with regards to authenticity of the acknowledgment deed had been caused---Appeal was allowed and suit filed by plaintiff/alleged donee was dismissed.

(e) Gift---

----Proof---When the validity and correctness of a gift transaction is challenged, it becomes mandatory and essential for the beneficiary to prove the valid execution of the same.

(f) Gift---

----Proof---Oral gift allegedly made from inheritable property to the exclusion of other legal heirs---In such a case the donee is under heavy burden to prove valid execution of oral gift and subsequent acknowledgement deed, because he cannot take benefit of the shortcomings in the evidence of defendants, rather he has to stand on his own legs.

Mushtaq Ul Aarifin and others v. Mumtaz Muhammad and others 2022 SCMR 55; Mst. Parveen (deceased) through LRs. v. Muhammad Pervaiz and others 2022 SCMR 64 and Mst. Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13 ref.

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

----S.100---Second appeal---Concurrent findings of courts below based on misreading of evidence of the parties---When the position is such, the High Court is vested with authority to set aside such concurrent findings.

Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

Khalid Ishaque, Usman Nassir Awan, Rahil Riaz, Wajahat Ali, Danyal Akbar, Nouman Ihsan and Faizan Ahmad for Appellants.

Aurangzeb Daha and Muhammad Ashfaq Jutt for Respondents.

2023 C L C 582

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD RAMZAN----Petitioner

Versus

HAQ NAWAZ (DECEASED) through L.Rs. and others----Respondents

Civil Revision No.1908 of 2012, heard on 30th April, 2021.

Arbitration Act (X of 1940)---

----Ss.17 & 30---Civil Procedure Code (V of 1908), S.115---Award making rule of Court---Principle---Non-filing of objections---Effect---Concurrent findings of facts by two Courts below---Revisional jurisdiction of High Court---Scope---Petitioner was aggrieved of not making award as rule of Court by Trial Court as well as Lower Appellate Court---Plea raised by petitioner was that when objections were never preferred for annulment of award, the Courts below were bound to make the same rule of the Court---Validity---When previous litigation before Court of law stood already culminated in favour of , it could not be believed by a prudent mind that he would have agreed for referring the same ispute for resolution through arbitration---Petitioner failed to prove construction or execution of reference deed---Power vested in Court to make an Award rule of Court was judicial and not ministerial---Absence of objections to an Award did not absolve the Court of its responsibility to scrutinize it---High Court declined to interfere in judgments passed by two Courts below, as the same did not suffer from any jurisdictional defect nor any of the exceptions detailed under S.115, C.P.C. were attracted--- Scope of exercise of revisional jurisdiction was narrower and restricted only to the extent of correcting errors of law as well as facts, if were found to have been committed by subordinate Court in discharge of its judicial functions--- Revision was dismissed in circumstances.

Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division 1992 SCMR 65; Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 and Qutubuddin Khan v. Chief Mill Wala Dredging Co. (Pvt.) Limited 2014 SCMR 1268 rel.

Ch. Muhammad Amin Javed for Petitioner.

Ms. Saba Saeed Sheikh for Respondent No.1.

Tahir Mehmood Mughal, Mian Shahzad Siraj Chaby and Naila Farheen Rana for Respondents Nos.2 and 3.

2023 C L C 616

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Abid Aziz Sheikh, JJ

A.M. CONSTRUCTION COMPANY (PRIVATE) LIMITED----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Communication and Works Department and others----Respondents

Intra Court Appeal No.18231 of 2021 in Writ Petition No.17122 of 2021, heard on 30th September, 2021.

(a) Interpretation of statutes---

----Litera Legis, rule of--- Applicability--- When Court is called upon to interpret any provision of statue, such Court needs to ascertain intention of law makers from words used which may receive their literal, natural and ordinary meaning--- Such has been known as rule of litera legis---Where words of statute are clear and unambiguous, the provision should be given its plain and normal meaning without adding or rejecting any words--- Departure from literal rule by making structural changes or substituted words in a clear statutory provision under the guise of interpretation can pose a great risk as changes may not be what the legislature intended or desired.

(b) Punjab Procurement Rules, 2014---

----Rr.35, 55 & 56---Terms "lowest bidder" and "successful bidder"---Difference---"Successful bidder" is a post acceptance of bid status of the bidder---Acceptance of bid leads to the stage where concluded contracts come into force either by signatures on contracts or where signatures are not required by placing work orders to bidders---Mere lowest bid does not inevitably usher in its immediate acceptance unless the contract comes in force after examining that the bid satisfied all terms and conditions of bidding document and not in conflict with any other law as provided in R.55 of Punjab Procurement Rules, 2014---Procuring agency under R.35 of Punjab Procurement Rules, 2014 may reject all bids or proposals at any time prior to acceptance of a bid or proposal---Where a bid is accepted and procurement contract is awarded, then rights are created in favour of a successful bidder under procurement contract.

Messrs Bio-Labs Private Ltd. v. Province of Punjab and others PLD 2020 Lah. 565; Ahmad Shah v. District Council, Sargodha through Administrator, District Council, Sargodha 2003 MLD 1108; Babu Javed Ahmad, Tehsil Nazim and 2 others v. Abdul Hafeez 2005 YLR 1443 and Messrs Reliance Consultancy and Engineering Works Private Limited v. Federation of Pakistan and 2 others 2010 CLC 1046 rel.

(c) Interpretation of documents---

----Bidding documents---Principle---When document itself is unambiguous, then putting upon its language a speculative opinion or using surrounding circumstances in order to portray instrument as different in nature is not permissible in law---In construing bidding document, words "are" to be taken in their literal, plain and ordinary meaning---Where plain and ordinary meaning may lead to inconsistency with other expressions used in the document, then such plain and ordinary meaning can be modified to avoid absurdity or inconsistency.

Mst. Ishrat Bano v. Noor Hussain and 2 others 2010 YLR 2452 and Province of the Punjab through the Secretary to Government of the Punjab, Communication and Works Department and another v. Malik Muhammad Ilyas and 2 others 1994 MLD 476 rel.

(d) Punjab Procurement Rules, 2014---

----Rr.35, 55 & 56---Constitution of Pakistan, Art.199---Constitutional petition---Bidding document---Additional performance security---Lowest bidder and successful bidder, rights of---Petitioner was aggrieved of demand of additional performance security raised by procuring agency---Validity----Demand of additional performance security under General Directions was not violative of R.56 of Punjab Procurement Rules, 2014---Where the lowest bidder did not become successful bidder, performance security or additional performance security under General Directions could be demanded in terms thereof and R.56 of Punjab Procurement Rules, 2014 had no bearing on such performance/additional performance securities--- If the lower bidder acquired status of a successful bidder, then performance security or even additional performance security would be governed by R.56 of Punjab Procurement Rules, 2014 and no payment of performance security or additional performance security could be demanded beyond the limit of 10% of the "contract price" prescribed in R.56 of Punjab Procurement Rules, 2014---In case no performance security or additional performance security as per General Directions was provided by the lowest bidder, procuring agency was within its right to the bid under General Directions read with R.35 of Punjab Procurement Rules, 2014---Constitutional petition was disposed of accordingly.

Waris Ali and 5 others v. The State 2017 SCMR 1572; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260; Pakistan Sugar Mills Association (PSMA), Islamabad through Secretary General and authorized Attorney and 10 others v. Federation of Pakistan through Secretary Cabinet Division, Islamabad and 9 others PLD 2021 Isl. 55; Commissioner of Income Tax (Legal), Islamabad v. Messrs Askari Commercial Bank Limited, Rawalpindi 2018 PTD 1089 and Commissioner Inland Revenue v. Messrs Azgard Nine Ltd. 2015 PTD 1068 Lah. ref.

Mian Muhammad Kashif, Rawal Hussain Kazmi, Barrister Amar Saeed Sheikh, Riaz Karim Qureshi, Ch. Muhammad Ibraheem, Ch. Muhammad Yaqoob, Mian Abdul Ghaffar, Pervaiz Khalid, Mian Shah Behram Sukhera and Naseer Ahmad Ch. for Petitioners.

Junaid Razzaq, Assistant Advocate General Punjab along with Noman Baig SDO Irrigation Department, Abdul Hakeem, SDO Building and Younas Kamal, Sub-Engineer Narowal, Mian Zahid, Legal Advisor Finance Department and Zahid Shah, Legal Advisor C&W Department for Respondents.

2023 C L C 673

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Mst. SHARIFAN BIBI (DECEASED) through L.Rs. and others----Petitioners

Versus

Mst. IRSHAD BIBI and others----Respondents

Civil Revision No.13-D of 2009, decided on 6th September, 2021.

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

----Ss.19, 19A, 20, 30 & 36---Civil Procedure Code (V of 1908), S.9---Inheritance mutation---Suit for declaration with permanent injunction was filed by respondent being daughter of the deceased ("H") claiming that mutations in favour of the brother ("J") of her deceased father was illegal/based on fraud; that "H" was allotted the land in 1934 but died before the grant of proprietary rights; that as the sole daughter of "H", she was entitled to grant of proprietary rights; that "J" got the inheritance mutation sanctioned in his favour in 1952 when respondent was aged 2 years; that petitioner/defendant was widow of both "H" and "J" as she contracted second marriage with "J" after death of "H"---Suit was concurrently decreed---Petitioner contended that after death of "H", "J" had paid all the dues regarding he land; that conveyance deed was also issued by the Government in favour of "J"; that respondent's suit was barred by the time as the same was filed after more than 6 years; that respondent admitted that she had the knowledge of all the transactions of property for the last 35 years; that under S.36 of the Colonization of Government Lands (Punjab) Act, 1912 the jurisdiction of Civil Court was barred; that at the time of opening of the inheritance of "H" in 1948, amended S.19A of the Colony Act was not available; that "J" was allotted the land under the order of the Collector which order was not challenged and the same was not even brought on record; that Trial Court had not given any finding on the said point despite the fact that specific issue was framed in that regard; that against grant of proprietary rights and Pata-Malkiyat, specific remedy was available under Section 30 of the Act, 1912---Validity---Land was originally owned by the Provincial Government and by notification, the same was allotted to "H" who cultivated the same till his death---Admittedly, after the death of "H", "J" had been cultivating the land---"H" had not been paying the dues/rent, the allotment might have been cancelled by the Government/District Collector which was not the fact---Under Act, 1912, the tenancy shall devolve upon the heirs in accordance with the Islamic Law---Section 19A of the Act, 1912, was enacted in 1951, that is why, the same was not applicable at the time of death of "H"---"J" died after a long time of the death of "H"---After the death of "H", the property was to devolve upon his widow and daughter under S.20 of the Act, 1912, until she would die/remarry/lose---After the death of "H", the land was to be devolved under S.20 of the Act, 1912, to the widow (respondent) and the daughter (petitioner) of the deceased/allottee till their entitlement---Neither the District Collector made any inquiry before issuance of Pata Malkiyator grant of proprietary rights as required under the Act, 1912, nor the predecessor-in-interest of the petitioners disclosed the fact that under which capacity he was claiming the proprietary rights---At the time of sanctioning of mutation, "J" being predecessor-in-interest of the parties concealed regarding the legal heirs available at the time of death of "H"---Civil Court was competent to hear the matter where the title was involved and the inheritance was specifically agitated because the revenue authorities were not having jurisdiction to decide the matter of inheritance---Collector had no discretion to grant proprietary rights to any other person in presence of the legal heir---Collector's order confirming the proprietary rights of "J" and sanctioning mutation was rightly declared null and void by the courts below---Revision petition was dismissed accordingly.

Saeed-ud-Din and others v. Hafeez Begum and others 2013 SCMR 1133; Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Manzoor Ahmad v. Mst. Salaman Bibi and others 1998 SCMR 388; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Mst. Noor Begum and 6 others v. Muhammad Akram and 17 others 2013 MLD 1323 distinguished.

(b) Inheritance---

----Mutation---Limitation---Applicability of---Scope---In case of inheritance mutation, the limitation would not run, especially when there was an evidence that the same was sanctioned by concealment or the other side had been compensating the legal heir with the produce or in shape of money.

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

----S.115---Revisional jurisdiction of High Court---Scope---Jurisdiction of High Court is narrow under S.115 of Civil Procedure Code and the concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording the findings of fact has either misread the evidence or has ignored any material piece of evidence or those were perverse and reflect some jurisdictional error.

Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 rel.

Muhammad Naveed Farhan for Petitioners.

Rao Nasir Mehmood Khan for Respondents Nos.1, 2(c), (d), and (f).

Mirza Ahmad Nadeem Asif for Respondent No.2(e).

Ex-parte through order daed 20-4-2021 for Respondents Nos.2(b-i) to 2(b-ix).

2023 C L C 702

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

MUHAMMAD AKRAM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 5 others----Respondents

Writ Petition No.10469 of 2022, heard on 17th October, 2022.

Civil Procedure Code (V of 1908)---

----S.145---Family Courts Act (XXXV of 1964), S.17A---Enforcement of liability of surety---Scope---Order of family court discharging the surety from further liability was set aside by the appellate court---Decree passed by the family court provided for payment of certain amount per month from the institution of the suit till their legal entitlement---Wording of decree had no uncertainty contained therein---Surety bond was tendered upon filing of the first execution petition and by then liability was of Rs.78,000/-, however, second part of the surety bond was also not ambiguous and its plain reading lead to no other meaning but that the petitioner (surety) held himself responsible for the entire decreed amount and offered his property, mentioned in the surety bond, to be sold/auctioned, in case of default of the decree by judgment-debtor---No ambiguity was found in the undertaking given in the surety bond that might be required to be resolved in favour of the petitioner or needed any benefit to be given to the petitioner---Stipulation(s) and / or words in surety-bond must be read in their ordinary meaning and when words contained therein are unambiguous, there is no reason to apply any other to its construction---Constitutional petition was dismissed, in circumstances.

Chaganti Veerasalingam v. Mallampalli Subbarayudu and others AIR 1937 Madras 229; Firm Mukat Behari Lal Tejpal v. Khushi Ram and others AIR 1935 Lah. 21; Karimbhai v. Hatimbhai PLD 1994 Kar. 311 and Manik v. Haji Lakhano PLD 1967 Kar. 155 ref.

Muhammad Masood Bilal for Petitioner.

Aasia Khan Malezai for Respondents Nos.3 to 6.

2023 C L C 713

[Lahore (Bahawalpur Bench)]

Before Ahmad Nadeem Arshad, J

MUHAMMAD ARIF and others----Petitioners

Versus

AZIZ-UR-REHMAN and others----Respondents

Writ Petition No.4348 of 2011, decided on 14th April, 2022.

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

----O.VII, R.14 & O.XIII, Rr. 1, 2, 3, 4---Qanun-e-Shahadat (10 of 1984), Arts.78 & 85(3)---Judicial proceeding--Presumption of due course and correctness---List of documents relied upon---Predecessor of petitioners filed suit for declaration before Trial Court---Respondents contested the suit through written statement---Respondents moved an application for rejection/de-exhibit of documents produced by petitioners---Trial Court accepted the application and de-exhibited the documents---Predecessor of the petitioners filed civil revision before Appellate Court---Appellate Court dismissed the civil revision of predecessor of petitioners---Held, that counsel for the predecessor of the petitioners produced documentary evidence in presence of counsel for respondents, which was got exhibited---Presence of counsels for the parties was marked by the Trial Court---No affidavit of counsel for the respondents was available to the effect that on the fateful date ,he was not present at the time of producing the documentary evidence from the petitioner's side---Presumption of due course and correctness was attached to the proceedings of the Court which was official record---Such presumption was rebuttable, but vague and meager evidence could not rebut such presumption---Strong and un impeachable evidence would be needed to rebut such presumption ---Giving preference to mere bald assertions or affidavit over judicial proceedings recorded by a Presiding Officer, if adopted, would lead to a large number of complications---In case in hand, it was evident from perusal of list of relied documents that predecessor of the petitioners relied upon certified copies of record of rights from the year 1946-47 to 1985-86 certified copy of record of right for the year 1993-94 and some other important documents---Meaning thereby, the predecessor of the petitioners had relied upon the documents---Constitutional petition was allowed, impugned judgments/orders of Trial Court and Appellate Court were set aside and documents produced by predecessor of the petitioners were deemed to be the part of the record with the direction that respondents/defendants were at liberty to rebut these documents by producing evidence on their turn.

Haq Nawaz v. Shera and others 1985 MLD 494 and Fayyaz Hussain v. Akbar Hussain and another 2004 SCMR 964 rel.

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

----O.VII, R. 14 & O.XIII, Rr. 1, 2, 3, 4---Qanun-e-Shahadat (10 of 1984), Art.78 & 85(3)---Power of court to receive documentary evidence at subsequent stage---Scope and principle---De-exhibiting of document---If a party relied upon a document, he should have filed the documents with the plaint, and if he relied upon on any other documents, whether or not in his possession or power, as evidence in support of his claim then such documents were required to be entered in a list to be added or annexed to the plaint as provided in R.14 of O.VII of the C.P.C---Otherwise party should have produced all the documentary evidence of every description in his possession or power at the first hearing of the suit on which he intended to rely as required under O.XIII, R.1 of the C.P.C---As far as non-filing of documents along with the plaint or at the first hearing of the suit, it had never been considered fatal in view of provision of the O.XIII, R.2 of the C.P.C which empowered the Court to receive documentary evidence at subsequent stage of trial---No documentary evidence in possession or powers of any party which could have been but had not been produced in accordance with the requirements of R.1 of O.XIII of the C.P.C could be received at any stage of the proceedings unless good cause was shown to the satisfaction of the Court for non- production thereof and the Court receiving any such evidence could record the reasons for doing so---Object of O.XIII R.2 of the C.P.C was not to penalize the parties for not producing the documents in time but to provide opportunity to produce evidence which party for some good cause could not produce well within time---Evidence could not be shut-out to exclude the documents generally except where they were apparently suspicious, forged or fabricated , so as to prevent the fraud---Two relevant stages relating to bringing the documents on record were; first stage was to produce or file a document at the time of filing of the plaint and the second when it was tendered in evidence---Discretion was, therefore, vested in the Trial Court to extend the time for producing documents even after the first hearing; there was also no requirement for filing a formal application so as to seek leave of the Court in order to produce a document---Expression of de-exhibit was not defined nor mentioned in the C.P.C, although R.3 of O.XIII of the C.P.C empowered the Court that it could reject irrelevant or inadmissible documents but it was not the intention of legislation to remove the documents from the record after they had been received and marked as exhibit---Party filing the document was entitled to receive it back as provided under O.XIII, R.4, C.P.C.---Provision of O.XIII, R.4 of the C.P.C was mandatory and if not complied with, the document could not be considered in evidence.

Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Rab Nawaz and 8 others v. Muhammad Amir and another 1999 SCMR 951; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 and Malik Riazullah v. Mst. Dilnasheen and others 2018 CLC 1569 rel.

(c) Administration of justice---

----Case should be decided on merit---Scope---Prime object of the Courts was to do justice among the parties and not deny the relief to the parties on technicalities, which otherwise they were entitled---Technicalities have to be avoided for proper administration of justice un-less it would be essential to comply with them on the ground of public policy---Mere technicalities could not be the basis for penalizing a party as law always favour the decision of the case on merits.

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

----Arts. 78 & 85(3)---Civil Procedure Code (V of 1908), O.VII, R.14 & O.XIII, Rr.1, 2, 3 & 4---Exhibition of document---Public documents---Waiver of objection---Courts were vested with authority and jurisdiction to ascertain the genuineness and authenticity of any document in order to arrive at just and fair conclusion---Respondents/defendants in the present case failed to raise any objection before the Trial Court at the time of exhibition of documents---Documents having been marked as exhibited became admissible in evidence---When a document had been exhibited in evidence without any objection and was allowed to be brought on record by the Court the same could be deemed as proved in all respect---Party not objecting for production of such documents in Court would be presumed to have waived such objection---Court was not prevented from adjudicating the nature of document whether it was valid or not, whether document was fake or not---Admittedly, documents produced by predecessor of the petitioners were certified copies of the revenue record which fell within the scope of the expression "Public documents" and mere non-mentioning of said documents in the list of relied documents could not be ground for de-exhibiting said documents.

Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704 and Muhammad Farooq v. Abdul Hameed Siddique and others 2014 SCMR 630 rel.

Ehsan-ul-Haq Tanveer for Petitioners.

Ex Parte for Respondents.

2023 C L C 738

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Rana MUHAMMAD AHMAD TAHIR----Appellant

Versus

Mian MUHAMMAD ZIA----Respondent

S.A.O. No.77924 of 2019, heard on 13th October, 2022.

(a) Punjab Urban Rent Restriction Ordinance (VI of 1959) [since repealed]---

----S.13(2)(i)---Eviction of tenant---Willful default in payment of rent---Appellate court upheld the eviction order on ground of willful default---No regular payment was made by the appellant, especially for the period highlighted by the courts below, and nor was the requisite enhancement made since the existence of relationship of landlord and tenant between the parties----Tenant was bound to increase rent after every three years, failure whereof would entail consequences of willful default---Arrears of rent becoming due provided that if tenant had not paid or tendered rent due within stipulation provided therein, court might pass eviction order---Finding of the courts below were found to be in conformity with the applicable law---No exception could be taken to the impugned findings---Appeals were dismissed, in circumstances.

(b) Punjab Urban Rent Restriction Ordinance (VI of 1959) [since repealed]---

----S.5-A---Statutory increase in rent---Scope---Specific and separate notice for payment of increased rent was not necessary to be served upon a tenant and default would not to be presumed on lapse thereafter, rather a tenant must be conscious of the fact that increase was duly provided in the statute and he was bound to obey the dictates of law---Service of notice under S. 5-A of the Punjab Urban Rent Restriction Ordinance, 1959 by a landlord to a tenant was not a condition precedent to invoke the jurisdiction of the court---Filing of ejectment petition could be considered as notice for eviction and the tenant was under legal obligation to make payment of the rent accordingly.

Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207; Sikandar Hayat v. Hasina Sheikh PLD 2010 SC 19; Mian Shahid Iqbal v. Sheikh Tariq Mehmood 2010 SCMR 1 and Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan and others 2012 SCMR 91 ref.

Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751; Pakistan National Shipping Corporation v. Messrs General Service Corporation 1992 SCMR 871 and Akhtar Saleem v. Additional District Judge 2013 MLD 209 rel.

(c) Appeal---

----Appeal is continuation of proceedings wherein entire proceedings are again left open for consideration by the Appellate Court and these powers are co-extensive with the powers and obligations conferred upon the original jurisdiction in respect of petitions/suits---Appellate Court may also pass an order in favour of a party, even if no appeal or cross objections are filed, to secure the ends of justice---Ground raised and not pressed which relates to fundamental question can be considered by the (Appellate) Court---In such situation two courses are available with the Court: one to decide the matter on the basis of admitted facts and applicable law, and the other to remand the case to the lower forum to consider said aspect which earlier escaped the notice of Courts below---In the present case that parties had been in litigation for the last 16-years and remand in such cases would result into further delay, wastage of time of the Courts and enhance hardships of respondent---Appeals were dismissed.

Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933; Mushtaq ul Aarifin and others v. Mumtaz Muhammad and others 2022 SCMR 55; Muhammad Bashir v. Muhammad Hussain and 16 others 2009 SCMR 1256; World Call Cable (Pvt.) Ltd. through Chief Executive Officer v. Federation of Pakistan through Secretary and another 2020 CLC 534 and Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597 ref.

Syed Muhammad Shah for Appellant.

Ch. Abdul Hafeez for Respondent.

2023 C L C 756

[Lahore]

Before Asim Hafeez, J

Rao TALIB ALI KHAN----Petitioner

Versus

Peer SALEEM-UD-DIN and others----Respondents

Civil Revision No.1415 of 2013, decided on 3rd March, 2022.

Civil Procedure Code (V of 1908)---

----O.XXI, R.53---Execution proceedings---Money decree, attachment of---Auction, fairness of---Respondent filed execution petition but withdrew the same on account of settlement with the petitioner---Respondent filed second execution petition alleging non-performance of conditions of settlement---Decree was attached; properties were ordered to be sold by auction---Respondent was declared as higher bidder---Objection petition and an application under S.12(2) of the C.P.C. were filed against the attachment order which were concurrently dismissed---Petitioner contended that settlement was fulfilled and properties (agricultural land and residential house) committed therein were transferred; that execution could not proceed in wake of implementation of settlement; that not only the money decree dated 28/03/1998 was satisfied but another decree dated 23/06/1993 was also satisfied; that requirements of O.XXI, R.53 of the C.P.C., were not fulfilled; that attached decree was not saleable through auction; that subject property of attached decree was sold at throw away price---Failure of the petitioner to transfer/alienate 81-Kanal and 16-Marlas of land tantamount to failure to fulfil conditions of settlement qua the money decree of Rs.21,09,000/-, which entitled the respondent to seek resurrection and enforcement of the money decree, hence the money decree was executable---All requirements of attachment of a non-money decree were fulfilled---Money decree could not be sold in execution, however, once such decree was attached the procedure provided under sub-rule (2) of R.53, O.XXI of the C.P.C. had to be followed---Fixed reserve price showed absence of conscious effort, causing prejudice to the petitioner---Conduct of auction at much discounted price coupled with the fact that respondent himself participated in the bidding process and claimed set-off defied fairness/manifested arbitrary exercise/overlooking legal requirements for determining reserve price of the attached decree---Attached decree could have fetched more price, adequate to satisfy the money decree in full and leaving some balance to the benefit of the petitioner---Revision petition was partly allowed.

Sudarsan Poddar v. Manindra Chandra Pal AIR 1932 Calcutta 80 and Domi Lal Sahu and others v. Bijoy Prasad Singh and others AIR 1932 PAT 349 rel.

Rao Kashif Iqrar and Mian Irfan for Petitioner.

Naveed Anjum and Sardar Nadeem Abbas Dogar for Respondents Nos.1 to 3.

Mian Muhammad Hussain, Chotya for Respondent No.4.

2023 C L C 768

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

LIAQAT HUSSAIN----Petitioner

Versus

MOHAMMAD ASHIQ----Respondent

Civil Revision No.681-D of 2015, heard on 28th December, 2022.

Civil Procedure Code (V of 1908)---

----O.IX, R.13---Limitation Act (IX of 1908), Art.164---Ex-parte decree---Setting aside of---Limitation---Petitioner / defendant was proceeded ex-parte and suit filed by respondent / plaintiff was decreed---Trial Court and Lower Appellate Court declined to set aside ex-parte decree---Validity---Petitioner / defendant was duly served with summons to which he responded and not only joined proceedings before Trial Court but also filed his written statement---Petitioner / defendant continued to participate in trial until he failed to attend the hearing and as a consequence of which order of ex-parte proceedings was passed and case was fixed for hearing---Trial Court proceeded to pass ex-parte judgment and decree after recording evidence of respondent / plaintiff---High Court decline to interfere in the matter as petitioner / defendant failed to make out any case against concurrent findings of two Courts below---Revision was dismissed in circumstances.

Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21; Mst. Sardar Begum and others v. Mst. Chiragh Bibi 1989 CLC 825; Muhammad Hussain and 2 others v. Mst. Zarina Akbar and 6 others 2017 CLC 1426; Mst. Tameezan and others v. Muhammad Sharif 2021 CLC 25; Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through LRs and others 2013 SCMR 1300; Honda Atlas Cars (Pakistan) Ltd v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609; Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandiar Khan 2008 SCMR 287 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 ref.

Haji Muhammad Tariq Aziz Khokhar for Petitioner.

Mian Nasir Mehmood for Respondent.

2023 C L C 782

[Lahore]

Before Raheel Kamran, J

MUHAMMAD SHAREEF (DECEASED) through LRs and others----Petitioners

Versus

MUHAMMAD RAMZAN (DECEASED) through LRs and others----Respondents

Civil Revision No.192 of 2014, decided on 13th February, 2023.

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

----S.12(2), (3)---Decree challenged on ground of fraud and misrepresentation---Conversion of suit into application under S.12(2), C.P.C.---Trial Court dismissed the suit of the petitioners being time barred while Appellate court allowed the appeal and remanded the case with direction to frame issues, record evidence and decide the case on merits---Validity---Cursory reading of the plaint showed that the decree impugned was obtained by fraud and the same could not deprive the Court of its jurisdiction to decide it as an application under S.12(2) of the C.P.C. if otherwise such jurisdiction was available to the court under the law---It was not mandatory in every case to frame issue and record evidence for disposal of such an application---Subsection (3) of S.12 of the C.P.C. governs the procedure to be adopted by the Court while disposing of the application under S.12(2) of C.P.C. and without first allowing an opportunity to the civil court in that regard, the direction issued by the Appellate Court was unwarranted by law---Revision was partly allowed with the direction to Trial Court to proceed with the application of the respondents in accordance with subsection (3) of S.12 of C.P.C.---Revision was allowed, in circumstances.

Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 and Sheikh Haroon-u-Rehman v. Muhammad Rafique and others 2022 CLC 167 rel.

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

----Art.181 & S. 18---Effect of fraud---Computation of time limit for instituting a suit or making an application---While dismissing suit of the respondents, the trial court did not at all consider application of S.18 of the Limitation Act, 1908 and dismissed claim of the respondents in a cursory and slipshod manner which rendered the same unsustainable in law---Revision was partly allowed.

Bashir Ahmed through Legal Representatives and others v. Muhammad Hussain and others PLD 2019 SC 504 ref.

(c) Administration of justice---

----Procedural laws are meant for advancing the cause of justice and they cannot be made a vehicle of oppression to suppress the remedies---Courts always lean in favour of adjudication on merit rather than stifling proceedings on technicalities.

Barrister Haris Azmat for Petitioner.

Umer Hameed Khan for Respondents Nos.11 to 15.

2023 C L C 796

[Lahore]

Before Shams Mehmood Mirza, J

MUHAMMAD KALEEM----Petitioner

Versus

ARSLAN ASLAM and others----Respondents

Writ Petition No.81136 of 2022, decided on 3rd January, 2023.

Civil Procedure Code (V of 1908)---

----S.51 & O.XXI, Rr. 37, 40---Execution proceedings---Arrest and detention of judgment debtor in civil prison---Pre-requisites and scope---Before passing an order for the issuance of warrants for arrest and detention or passing an order for detention/arrest, the court needs to issue a show cause notice (to the judgment-debtor); needs to satisfy itself through an inquiry, and should allow opportunity of evidence to the parties---Unless such preconditions are proved the order for arrest and detention of judgment-debtor cannot be passed.

Examination of the provisions of O.XXI, Rr.37 and 40, C.P.C. reveals that where an application for the arrest and detention is made, the court instead of issuing warrant for arrest, may issue a notice calling upon the judgment-debtor to appear on a date specified in the notice and show cause as to why he should not be detained in prison. Where the judgment-debtor appears in the court in pursuance of the notice or is brought before the court after being arrested, the court shall hear the decree-holder, take all such evidence as may be produced by him in support of his application and shall then give judgment-debtor an opportunity of showing cause why he should not be detained in prison. Pending conclusion of inquiry, the court, in its discretion, may order to release the judgment-debtor on furnishing of security to the satisfaction of the court for his appearance, when required, and that on conclusion of inquiry, the court can subject to the satisfaction of provisions of section 51, C.P.C., make an order in respect of detaining the judgment-debtor in prison.

Muhammad Arif v. Standard Chartered Bank of (Pakistan) Limited (W.P. No.74940 of 2019); Muhammad Mubeen v. A.B.N. Amro Bank Ltd. through Manager 2015 CLD 1904; Dr. Rauf Ahmed Azhar v. Banking Court No.11, Lahore and 6 others 2007 CLD 964; Aftab Saleem Choudhary and another v. Soneri Bank Limited through Attorneys 2005 CLD 401 and Precision Engineering Ltd. and others v. The Grays Leasing Limited PLD 2000 Lah. 290 ref.

Before passing an order for arrest and detention of judgment-debtor, the court shall after due inquiry and affording opportunity of evidence to parties determine that the pre-conditions for the issuance of such directive have been satisfied by the decree-holder. [p. 799] B

Messrs 3-A Trade Impex through Partner and 2 others v. Askari Commercial Bank Ltd., through Branch Manager 2005 CLD 1379 and Abdul Basit Zahid v. Modaraba Al-Tijarah through Chief Executive and 2 others PLD 2000 Kar. 322 ref.

Usama Ahmad for Petitioner.

2023 C L C 806

[Lahore (Multan Bench)]

Before Shahid Jamil Khan, J

SAJJAD HUSSAIN (DECEASED) through Legal Heirs and others----Petitioners

Versus

Mst. MUMTAZ MAI and others----Respondents

C.M. Nos.310 and 311 of 2016 in Civil Revision No.540 of 2004, decided on 14th December, 2022.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), Ss. 12 (2) & 115---Suit for declaration---Audi alteram partem, principle of---Applicability---Judgment and decree, setting aside of---Dismissal of suit---High Court, jurisdiction of---Applicants/plaintiffs were aggrieved of dismissal of their suits by High Court while allowing revision petition against dismissal of application under S.12(2) C.P.C.---Validity---High Court dismissed the suits on findings that respondent lady was legal heir and consent decree could not be passed in her absence---Principle of audi alteram partem, entrenched in due process doctrine, was offended to the extent of applicants / plaintiffs who were not heard while deciding Civil Revision--- Applicants / plaintiffs were deprived of an opportunity to defend against findings of connivance with brothers of respondent lady and their right of decision on merits in appeals, if consent was defective, had not been protected---High Court modified its judgment passed earlier as the Court did not have jurisdiction to dismiss suits after allowing Civil Revisions against consolidated order for dismissal of applications under S.12(2), C.P.C.---High Court remanded the matter to Lower Appellate Court to decide appeal afresh which were deemed to be pending and application under S.12(2) C.P.C. were allowed---Application was allowed accordingly.

Mst. Mumtaz Mai v. Sajjad Hussain and others 2017 CLC Note 61, p-70 and Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 ref.

Manzoor Hussain Bhutta for Petitioners.

Muhammad Mudassar Hassan Samra for Respondent No.1.

2023 C L C 825

[Lahore]

Before Abid Aziz Sheikh and Sultan Tanvir Ahmad, JJ

AHSAN KHAN----Appellant

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

I.C.A. No.71340 of 2021, heard on 31st October, 2022.

(a) Interpretation of statutes---

----Delegated legislation---Legality---Court, duty of---When Court is required to determine legality of delegated legislation, the same can only be declared ultra vires or illegal if they are found repugnant to Act, violative of the object and reasons of the enactment or lack of sanction etc.

Khawaja Ahmad Hassaan v. Government of Punjab and others PLD 2004 SC 694 and Commissioner Inland Revenue, Lahore v. Coca Cola Pakistan Limited, Lahore 2022 PTD 1400 rel.

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

----S.36---Punjab Land Revenue Rules, 1968, R.36---Village headman---Appointment---Rules, framing of---Pre-condition---Lawmaker has empowered Board of Revenue to make rules to regulate appointments and other affairs mentioned in S.36 of Punjab Land Revenue Act, 1967---Only condition imposed by Legislature, on Board of Revenue, is obtaining prior approval by the Government.

(c) Interpretation of statutes---

----Guiding principles---Courts to avoid any such interpretation of an enactment or rule that flouts common sense and results into absurdity---Court to always give effect to the same by interpreting it in accordance with judicially presumed parliamentary concern for common sense and justice.

Maryon-Wilson's Will Trusts, Blofield v. ST. Hill 1966 M. No.4666 (1968 Ch. 268); Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 and Muhammad Afzal v. Member (Revenue), Board of Revenue, Punjab, Lahore and 3 others 1992 MLD 1418 rel.

(d) Punjab Land Revenue Rules, 1968---

----Rr.17(1) & 36---Village headman---Appointment---Hereditary claim---Additional marks---Appellant was aggrieved of additional 15 marks awarded to respondent towards credentials and eligibility criteria, for having hereditary claim in terms of R.17(1)(a) of Punjab Land Revenue Rules, 1968---Validity---Purpose of legislature, while delegating powers in S. 36 of Punjab Land Revenue Act, 1967, was to make rules vis-à-vis appointment of village headman to create a link for discharge of duties by revenue authorities and not to create any vested rights amongst Citizens or villagers to be appointed as a headman--- Such appointment was essentially an administrative function, which vested exclusively in the domain of revenue authorities, who by virtue of experience and training were in the better position to make suitable choice than the Courts having general jurisdiction---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court as the same was based on correct interpretation of law---Intra Court Appeal was dismissed, in circumstances.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484; Muhammad Younus v. The Member (Judicial I), Board of Revenue, Punjab, Lahore and others 1994 MLD 1480; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Subedar (Rtd.) Muhammad Ali v. Muhammad Anwar and 3 others 1985 CLC 668; Nazir Ahmad v. Nazir Ahmad and another 2010 MLD 176; Rana Khalil Ahmad v. Member (Judicial-II), Board of Revenue, Lahore and others PLD 2013 Lah. 23; Muhammad Saleem v. Member (Judicial-V) Board of Revenue, Punjab Lahore and others 2007 MLD 349; Muhammad Hanif v. Muhammad Ali and 3 others PLJ 2015 Lah. 222 and Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864 ref.

Abdul Ghafoor v. The Member (Revenue) Board of Revenue and another 1982 SCMR 202; Ghulam Qadir Khan and 12 others v. The Multan Central Co-operative Bank Ltd. 1986 SCMR 1386; Muhammad Warrayam v. Member, Board of Revenue, Punjab, Lahore and 3 others 1972 SCMR 354; Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another 1971 SCMR 719; Muhammad Yousaf v. Member, Board of Revenue and 4 others 1996 SCMR 1581 and Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 1972 SCMR 253 rel.

Talha Yaseen Qureshi, Muhammad Akbar Hayat Awan and Muhammad Irshad Ch. for Appellants.

Shahid Farooq Gondal for Respondent.

Rana Abu Huraria, Jahanzaib Ahmad, Ch. Naveed Akhtar Bajwa, Malik Noor Muhammad Awan, Madam Saima Hanif, Malik Muhammad Usman Awan, Muhammad Ayub Aheer, Jahanzaib Ahmad, Muhammad Mumtaz Faridi, Ch. M. Saleem Kambo, Ch. Hasham Hayat Wathra, Sumair Ijaz Zahid, Ghulam Farid Sanotra, and Rana Rashid Akram for Petitioners.

Akhtar Masood Khan Awais, Sheikh Usman Kareem Ul Din, Rana Tauqeer Ahmad, Basharat Ahmad, Mian Tariq Ahmad, Rana Qaiser Ali Khan, Tauqeer Khalil, Asif Ali Kahloon, Mian Iftikhar Rasool, Rao Imtiaz Ahmad Khan, Malik Noor Muhammad Awan and Madam Saima Hanif for Respondents.

Zafar Zulqarnain Sahi, Additional Advocate General, Barrister Tayeeb Jan, Assistant Advocate General for the Province.

2023 C L C 854

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

NAEEM HUSSAIN and another----Petitioners

Versus

RAFIQUE AHMAD and others----Respondents

Civil Revision No.1623 of 2018, decided on 12th November, 2021.

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

----Ss. 196, 197 & 199---Power of attorney---Authority express or implied---Ratification of acts not expressed---Scope---Suit for possession and perpetual injunction filed by special attorney on behalf of petitioners/principals was decreed by Trial Court---Appeal of respondents was allowed mainly on ground that special attorney had no authority on behalf of plaintiff to institute the suit; that he was not recognized agent of plaintiff that after framing of issues one plaintiff had not attended the Court nor produced any person having authority on his behalf to prove contents of plaint and also failed to appear in witness box---Validity---After institution of suit, respondents filed application for rejection of plaint contending that plaint did not disclose cause of action which was dismissed---Right of respondents to produce documentary evidence was closed due to their continuous absence and they were proceeded ex-parte and Trial Court also decreed the suit ex-parte---Respondents challenged the decree and also moved application for setting aside ex-parte proceedings/decree---Appellate Court allowed appeal and granted the right of hearing to respondents---Respondents moved application for amendment of written statement and sought to introduce new plea to the effect that plaintiff did not give any authority to the special attorney to institute the fresh suit and that he was given authority only to the extent of pending suits which was dismissed by Trial Court---Such objection had not been raised by respondents in their earlier written statement---Respondents had not agitated that plaintiff did not give any power of attorney to said special attorney, so no specific issue was framed in that regard---Said attorney appeared as witness and produced/exhibited special power of attorney which was brought on record without any objection from respondents---Special power of attorney showed that by giving authority to his agent with regard to pending suits, plaintiff also empowered him to initiate any legal proceedings---Plaintiff never objected to the action taken by his special attorney---Such a long silence of plaintiff for such a considerable time amounted to ratification of the acts which had been taken by his agent---Revision petition was allowed accordingly.

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

----Ss. 196, 197 & 199---Power of attorney---Authority express or implied---Ratification of acts not expressed---Scope---Power of attorney had to be construed strictly as giving only such authority as was conferred expressly or by necessary implication---Power of attorney would only give that power which was specifically mentioned therein and would operate prospectively and not retrospectively---Provisions of Ss. 196, 197 and 199 of the Contract Act, 1872, were an exception to said general rule wherein the principal had been given an option to ratify an act not expressly conferred on the agent and such ratification might be either express or implied---Incidental action of such attorney/agent was binding on the principal only when he would accept, acknowledge or undertake by ratifying the same---Ratification could either be expressed or implied and such (incidental) acts of the agents were ratified by the principal, same would be validated for all legal purposes and would bind the principal and would have the same effect as done/performed by the principal himself---Principal may elect to ratify or to disown such (incidental) acts---Unless the principal gave notice of his dissent to the unauthorized act of the agent within a reasonable time, it would raise the presumption of ratification---When despite having objections relating to the authority of an attorney, the principal continued to recognize the authority of the agent to institute the suit, the same would amount to ratification and the suit would still be a validly instituted suit---Defect in the authority of an agent was a mere irregularity which could be cured.

Qadir Bakhsh and 10 others v. Kh. Nazam-ud-Din Khan and 4 others 2001 SCMR 1091; Messrs First Dawood Investment Bank Limited Through Authorized Officer/Attonrey v. Mst. Anjum Saleem and 3 others 2016 CLD 920; Sahibzada Anwar Hamid v. Messrs Topworth Investments (MACAU) Ltd., through Chairman and 5 others 2003 YLR 2843; Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275; Sana Ullah and 17 others v. Muhammad Rafique and 10 others 2003 CLC 138; Ramasay Chatty v. Karuppan Chetty and others AIR 1916 Mad. 1133; Muhammad Munshi and another v. Mst. Rakiya Bi 1990 CLC 301 and Abdul Momin through General Attorney v. Mst. Haleema Saadia and 2 others 2007 CLC 760 rel.

Malik Muhammad Fayyaz ul Haq for Petitioners.

Ch. Mushtaq Ahmad Sindhu for Respondent No.1.

2023 C L C 880

[Lahore (Bahawalpur Bench)]

Before Sultan Tanvir Ahmad, J

Mian EJAZ AMIR----Petitioner

Versus

Haji MUHAMMAD IBRAHIM----Respondent

Civil Revision No.170 of 2022/BWP, heard on 17th May, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 3---Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Condition, imposition of---Principle---Denial of negotiable instrument---Petitioner/defendant was aggrieved of grant of conditional leave to defend the suit by Trial Court---Plea raised by petitioner/defendant was that when issuance of bank cheque was denied leave would have been granted unconditional---Validity---Imposition of condition or granting unconditional leave was within the discretion of Trial Court---When statute conferred such discretion, exercise of same should not be ordinarily interfered---Discretion was required to be exercised in careful manner and same should be based on logical and legally sustainable reasoning--- While granting leave to defend the suit, Trial Court imposed condition mainly on the basis of unilateral statement of respondent/plaintiff without even considering any dispute raised in leave application---Exercise of discretion by Trial Court, conferred under Civil Procedure Code, 1908 was based on some misunderstanding of principles governing exercise of such discretion---High Court set aside leave granting order and remanded the matter to Trial Court for decision afresh--- Revision was allowed accordingly.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70 distinguished.

Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Mukhtar Ahmad Gondal v. Government of the Punjab through Secretary Health, Civil Secretariat, Lahore and 2 others 2000 YLR 4 and Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 ref.

Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 SCMR 1747; Province of Punjab through Special Secretary, Specialized Healthcare and Medical Education Department, Lahore and Others v. Khadim Hussain Abbasi 2021 SCMR 1419; Habib Bank Limited, Circle Office, Multan v. Al-Qaim Traders and another 1990 SCMR 686 and Santosh Kumar v. Bhai Mool Singh AIR 1958 SC 321 rel.

Rana Rizwan Ahmed for Petitioner.

A.R. Aurangzeb for Respondent.

2023 C L C 905

[Lahore (Bahawalpur)]

Before Sultan Tanvir Ahmad, J

ALLAH DITTA----Petitioner

Versus

ZULFIQAR----Respondent

Civil Revision No.82-D of 2022, decided on 21st June, 2022.

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

----S.4---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Promissory note---Proof of execution of document required by law to be attested---Competence and number of witnesses---Scope---Article 79 provides that a document cannot be used as evidence until two witnesses at least are called to prove execution, however, this requirement applies only if that particular document is required by law to be attested---Article 17(2) specifies that such requirement of attestation does not apply when contrary is provided in any special law---Section 4 of the Negotiable Instruments Act, 1881, provides that promissory note, which is an unconditional undertaking, is only required to be signed by maker---Negotiable Instruments Act, 1881, which is a special law, does not require attestation by witnesses or provides for any bearing of attestation or non-attestation on the instrument---Combined reading of the above provisions of law makes it clear that neither any attestation is required on the promissory note nor there is any requirement of calling the witnesses to prove its execution.

Khawar Pervaiz Butt v. Muhammad Tahir Qasim Awan PLD 2017 Lah. 45; Aziz Ahmad v. Akbar Shamsher PLD 2016 Laho. 502 and Ali Muhammad Shah v. Ijaz Hussain 2007 CLD 1084 ref.

Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam 2014 SCMR 1562 rel.

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

----S.118---Presumptions as to negotiable instruments---Scope---Section 118 of the Negotiable Instruments Act, 1881, clearly raises the presumption that negotiable instruments, when made or drawn, are for consideration---Section 118, starts with "until contrary is proved", which indicates that once a negotiable instrument is successfully brought on record and its execution is proved, presumption as to valid consideration arises in favour of the instrument and it remains attached to the instrument until contrary is proved by the one who is disputing the consideration---In view of the above presumption and in the absence of rebuttal of the presumption, it is quite unnecessary to bring on record or to prove an independent document to establish consideration---There is no necessity in law that this instrument must be backed up by separate receipt.

Manyam Janakalakshmi v. Manyam Madhava Rao and others AIR 1973 Andhra Pradesh 103 and Haji Karim and another v. Zikar Abdullah 1973 SCMR 100 rel.

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

----S.118---Presumptions as to negotiable instruments---Scope---Consideration is to be presumed until the Court believes that consideration does not exist or considers its non-existence is so probable that a prudent man ought, under the circumstances of the particular case, to act upon supposition that consideration does not exist.

Heerachand v. Jeevraja and another AIR 1959 Rajasthan 1 (V-46 C 1) rel.

Hafiz Muhammad Asghar Bhatti and Muhammad Ahmad Balouch for Petitioner.

Mirza Muhammad Nadeem Asif for Respondent.

2023 C L C 926

[Lahore]

Before Shahid Waheed and Faisal Zaman Khan, JJ

KHAIRAT ALI----Appellant

Versus

SAQIB ASHFAQ and others----Respondents

R.F.A. No.7934 of 2020, heard on 31st January, 2022.

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

----S.24---Agreement to sell---Non-deposit of balance sale consideration despite direction of court---Effect---Appellant/vendee filed suit for possession through specific performance of agreement to sell against respondents for non-performance of the same---Appellant was directed by the Trial Court to deposit the remaining sale consideration, who failed to comply with such direction despite availing numerous opportunities including a last opportunity---Trial Court dismissed appellant's suit---Appellant contended that he was ready to make the requisite payment and that it was in the best interest of justice if one opportunity be granted to the appellant---Validity---Wisdom behind ordering a vendee to deposit the remaining sale consideration was not only to see the vendee's bona fides/seriousness about fulfilling his contractual obligation but also to safeguard the rights of the vendor, therefore, any such order of deposit would definitely allure to the benefit of both the parties---Perusal of the record transpired that appellant from the very beginning had been applying delaying tactics in order to obviate the deposit of remaining sale consideration---Trial Court passed an order of deposit of remaining sale consideration in view of the Hamood Mehmood's case (2017 SCMR 2022) whereafter, successive opportunities were granted to the appellant to do the needful including last opportunity but even then he did not bother to do the needful---Appeal was dismissed accordingly.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Inayatullah Khan and others v. Shabbir Ahmad Khan 2021 SCMR 686; Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241; Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534 and Mst. Waris Jan and another v. Liaqat Ali and others PLD 2019 Lahore 333 rel.

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

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

----S.24---Remaining sale consideration---Last opportunity to deposit---Once last opportunity was given to a litigant for doing a certain act and he fails to do the same, the penal provision had to be invoked, otherwise, same would amount to making mockery of law.

Moon Enterpriser CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another 2020 SCMR 300 rel.

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

----S.22---Jurisdiction, equitable nature of---Scope---Jurisdiction to issue a decree of specific performance was discretionary in nature as it was an equitable relief, thus, the court was not bound to grant such relief merely because it was lawful to do so.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Sirbaland v. Allah Loke and others 1996 SCMR 575; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Shakeel Ahmed v. Mst. ShaheenKousar2010 SCMR 1507; Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506; Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Mrs. Zakia Hussain and another v. Syed Farooq Hussain PLD 2020 SC 401 rel.

Ahmad Yar Chawli and Maher Muhammad Waqas for Appellant.

Nemo. for Respondents.

2023 C L C 948

[Lahore]

Before Asim Hafeez, J

Messrs 3N-LIFEMED PHARMACEUTICALS----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Primary and Secondary Healthcare Department and others----Respondents

Writ Petition No.65575 of 2021, decided on 1st November, 2021.

Constitution of Pakistan---

----Arts. 18 & 199---Constitutional petition---Judicial review---Right to do business / trade---Policy matters---Wednesbury, principle of---Applicability---Ill-will / mal-intent---Proof---Petitioner assailed conditions of pre-qualification in procurement process prescribing fiscal limits and financial capability---Validity---Incorporation of conditions of pre-qualification, prescribing fiscal limits for prospective firms / bidders to ascertain their financial capability to honor potential commitments undertaken were not unreasonable--- Placement of condition of showing strong financial position, meeting desired business / financial turnover benchmarks was otherwise not violative of Art. 18 of the Constitution, which too permitted lawful qualifications upon conduct of trade or business---Condition imposed was a policy decision, relevance, rationality, and effectiveness thereof could not be reviewed or adjudged by invoking judicial review jurisdiction, unless it was shown that policy decision was or conditions prescribed infringed any of the Constitutionally provided fundamental rights found deficient in meeting legislative competence test or manifested erroneous assumption and exercise of powers---Judicial review jurisdiction could not be stretched to delve into the adjudged policy decisions / administrative policies to ascertain their validity, relevancy and rationality---Conditions prescribed, requiring approval / certifications and ascertaining requisite financial capacity and unwarranted assumption and exercise of jurisdiction had social, political and fiscal costs--- Allegation of ill will and mal-intent to oust local manufacturers was convenient to attribute but difficult to substantiate--- No such evidence / material was referred nor enclosed--- Conditions assailed satisfied test of reasonability examined in the context of Wednesbury Principle--- In absence of any illegality, legislative incompetence and jurisdictional deficiency, High Court declined to proceed to determine and adjudge questions touching relevancy, rationality, objectivity and efficacy of pre-qualification conditions assuming role of a procuring agency---Constitutional petition was dismissed, in circumstances.

Silver Surgical Complex (Pvt.) Ltd. v. Province of Punjab and others (W.P. No.58412/2019); Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Cutting of Trees for Canal Widening Project, Lahore: in the matter of Suo Motu Case No. 25 of 2009 decided on 15th September 2011 (2011 SCMR 1743); Chief Executive Officer, Multan Electric Power Company Ltd., Khanewal Road, Multan v. Muhammad Ilyas and others 2021 SCMR 775; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167 and Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1947) 2 All ER 680 rel.

Muhammad Faizan Saleem for Petitioner.

2023 C L C 963

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

KHALID IQBAL and others----Petitioners

Versus

Mst. YASEEN and others----Respondents

Civil Revision No.1705 of 2015, decided on 19th September, 2022.

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

----O.IX, R.8 & O.XVII, R.2---Suit was dismissed for non-appearance---When entire evidence is available with the court to make final decision after going through the same---At such stage while attracting provisions of O. IX, C.P.C., the dismissal of suit for default is not justified.

Muhammad Haleem and others v. H.H Muhammad Naim and others PLD 1969 SC 270; Khan Ali Ahmad Khan Lodhi v. Tabarak Ahmad Khan and others PLD 1960 (W.P) Lahore 129; M/s Shafiq Cloth House and others v. Muslim Commercial Bank Limited 1976 Law Notes (SC) 677; Mst. Shamshad Begum alias Sharam Khatoon v. District and Sessions Judge, Dadu through Presiding Officer and others 1998 CLC 1128; Muhammad Hussain and 17 others v. Abdul Hameed and 4 others PLD 2019 Bal. 106; Allah Rakha and others v. Muhammad Yousuf and others PLD 1991 SC 601 and Mst. Shahida Zareem v. Iqrar Ahmad Siddiqui 2010 SCMR 1119 ref.

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

----Art.181---Application for restoration of suit---Limitation---Question of limitation in respect of application seeking restoration of suit is only relevant, if dismissal itself is proper---In the present case the order of dismissed in default was null and void, the appropriate Art. 181, of the First Schedule to the Limitation Act, 1908, and in this view of matter, the application for re-admission of suit could not have been treated time barred---Nothing wrong was committed on the part of petitioners that their suit could be dismissed for default, but for a below definitely committed material irregularity---Above circumstances the impugned concurrent order being coram non judice/ultra vires, besides suffering from jurisdictional defect neither can be protected nor perpetuated--- Consequently petition is allowed, order impugned herein were set aside and application for restoration of main suit succeeds resulting in its re-admission---The parties are directed to appeared before court of competent jurisdiction for further proceedings.

Abdul Latif and another v. Aqeel Ahmad 2006 SCMR 789; Mst. Suraya Parveen v. Mst. Rukhsana Hanif and others 2012 SCMR 656 and Messrs Transglobe Shipping Service v. WAPDA and others 2016 SCMR 2023 ref.

Tahir Mahmood Khokhar for Petitioner.

2023 C L C 981

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

MUHAMMAD IQBAL----Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Revenue, Federal Secretariat, Islamabad and others----Respondents

Civil Revision No.225-D of 2007, decided on 10th October, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Limitation Act (IX of 1908), S. 19 & Art. 148---Suit for declaration, injunction and redemption of mortgage---Limitation---Acknowledgment of liability---Scope---Mortgagor, right of--- Petitioner / Plaintiff sought redemption of suit property claiming that according to revenue record (Missal Haqeeqat) pertaining to year 1872 it was mortgaged in favour of the person who shifted to India during partition---After partition, suit property was allotted to predecessor-in-interest of respondents / defendants who stood in the shoes of evacuee mortgagee---Both the Courts below concurrently dismissed suit and appeal filed by petitioner / plaintiff--- Validity--- To obtain benefit of S.19 of Limitation Act, 1908 it was incumbent upon petitioner / plaintiff to show from record that his right was acknowledged in writing and signed before expiry of original limitation---Mortgage rights were created in favor of evacuee mortgagee somewhere in the year 1872---Period of limitation of 60 years expired much prior to year 1947---Suit was silent as to any discharge of liability or acknowledgement, from year 1872 till next 60 years by the one against whom such property or right was claimed---Upon creation of mortgage the subsequent purchaser had purchased or acquired rights subject to mortgage---Charge of mortgage kept travelling and even the suit land was further sold or it was exchanged---Existence of mortgage could only come to end on payment of mortgage money by the consent of parties or by operation of law---Upon expiry of limitation, mortgage matured into ownership---High Court declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed, in circumstances.

Ghulam Muhammad and 3 others v. Member, Board of Revenue Punjab, Lahore and 16 others PLD 2005 Lah. 119; Muhammad Hanif and another v. Ghulam Rasool through L.Rs and others 2005 SCMR 1004; Abdul Haq v. Ali Akbar and others 1999 SCMR 2531; Samar Gul v. Central Government and others PLD 1986 SC 35; Allah Ditta and others v. Sardar Khan and others PLD 1997 Lah. 716 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 distinguished.

Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 and Firm Sriniwas Ram Kumar v. Mahabir Prasad and others AIR (38) 1951 SC 177 ref.

Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524; Udhavji Anandji Ladha and others v. Bapudas Ramdas Darbar AIR (37) 1950 Bombay 94; Allah Dawaya and others v. Ghulam Mustafa and others 1990 CLC 1990; Nazeef v. Abdul Ghaffar and others PLD 1966 SC 267 and Kata Mir and others v. Mst. SHO Begum and others 2003 SCMR 589 rel.

Muhammad Yafis Naveed Hashmi for Petitioner.

Muhammad Imran Yousaf Goraya, Assistant Attorney General for Respondent No.1.

Syed Naveed ul Hassan Bukhari, Assistant Advocate General for Respondents Nos.2 and 3.

Sardar Tariq Sher Khan for Respondents Nos.4 to 15, 24 to 27.

2023 C L C 999

[Lahore]

Before Asim Hafeez, J

IJAZ AHMED----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government and others----Respondents

Writ Petition No.81474 of 2021, decided on 28th February, 2022.

(a) Punjab Agricultural Marketing Regulatory Authority Act (XXIX of 2018)---

----S.12-A---Punjab Local Government Act (XIII of 2019), S. 259---Constitution of Pakistan, Art.140-A---Constitutional petition---Establishment of private market---Land use planning and land use permissions---Scope---Petitioner was required, according to the impugned order, to obtain approval for the building plan from the District Council regarding private market project and pay a certain conversion fee---Petitioner contended that approval for the private sector market had been granted by the Chairman of the Punjab Agricultural Marketing Regulatory Authority under S.12-A, therefore, permission to raise a commercial building or a private market project did not require approval from the District Council or the payment of a conversion fee---Petitioner also argued that S.12-A, being a special law, excluded the applicability of any other law---Validity---Section 12-A merely acknowledged the entitlement for the establishment of the facility and exclusivity was only extended to the extent of granting licensing rights for the establishment of a private market---Exclusion of any other law had to be read in the context of the privilege of a license to establish a private market and not otherwise---It was a misconception to assume that the Punjab Agricultural Marketing Regulatory Authority had replaced the functions and powers of the Local Government, as catered for in terms of Art.140A of the Constitution---No illegality was found in the impugned order---Constitutional petition was dismissed.

(b) Punjab Agricultural Marketing Regulatory Authority Act (XXIX of 2018)---

----S.12-A---Establishment of private market---Scope---Private market is a facility established and managed under the Punjab Agricultural Marketing Regulatory Authority Act, 2018---It is owned by private individuals, entities, or groups for the purpose of purchasing or selling agricultural produce---Section 12-A of the Act confers eligibility on any person to establish a private market in accordance with the provisions of the Punjab Agricultural Marketing Regulatory Authority Act, 2018, and in the manner prescribed---Section 12-A merely grants the right to seek a license for establishing a facility - specifically a private sector fruit and vegetable market.

Faisal Toqeer Sial assisted by Zeeshan Afzaal Hashmi, Farhan Tawakal Virk and M. Nouman Shams Qazi for Petitioner.

Zafar Rahim Sukhera, Assistant Advocate General.

2023 C L C 1021

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Raheel Kamran, JJ

WASIF ALI and another----Petitioners

Versus

Mrs. FAKHRA JABEEN and others----Respondents

Writ Petitions Nos.2111 of 2013 and 2716 of 2019, decided on 13th December, 2021.

(a) Interpretation of document---

----Deed of contract---Principle---In construing a document, one has to read the same as a whole and not by picking and choosing a particular paragraph or portion thereof---Deed of contract has to be construed strictly and literally without deviating or implying anything which was not supported by the intention of parties and language of the document---Nothing can be implied in a contract, which was inconsistent with its expressed terms---Intent and purpose of a document should be inferred from the language employed and its ordinary meanings should be adhered to and given preference rather than the far-fetched meanings---Primary object of interpretation of any contract is to find out intention of parties to agreement---By looking to words used one has to construe intention which persuaded the parties to enter into the agreement---Cardinal presumption is that parties have intended what they have in fact said, so that their words must be construed as they stand---Meaning of document or of a particular part of it is to be sought in the document itself---One must consider meaning of words used, not what one may guess to be intention of the parties---No contract is made in a vacuum, in construing the documents, Court may resolve an ambiguity by looking at its commercial/social purpose and factual background against which it was made.

Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division Islamabad and 13 others 1995 SCMR 1505 and House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 rel.

(b) Muslim Family Laws Rules, 1961---

----R.8, Form II, Cls. 13, 14, 15 & 16---Dower amount---Object, purpose and scope---Marriage is a civil contract, which has for its object, the procreation and legalizing of children---Dower or "Mehr" is the sum of money or other property which wife is entitled from husband in consideration of marriage---It is an obligation imposed upon a husband as a mark of respect to wife and where a claim is made under a contract of dower, Court should, unless it is provided by any legislative enactment, award entire sum provided in the contract---Dower may be prompt or deferred---Prompt dower is payable immediately on demand---Where part of dower is described as Mu'wajjal i.e. deferred but no time limit is fixed for its payment, time of such payment is either death or divorce---Dower may be in any form of property, tangible or intangible---Parties to marriage contract i.e. bride and the bridegroom have freedom of contract to negotiate and settle terms of marriage including dower---Dower is the only corollary for a valid marriage.

and rel.

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

----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.5---Muslim Family Laws Rules, 1961, R.8, Form II, Cls. 13, 14, 15 & 16---Dower, recovery of---Dispute was with regard to payment of dower and transfer of house as stated in entries in columns Nos. 13 to 16 of Naikahnama registered under S. 5 of Muslim Family Laws Ordinance, 1961---Validity---Entry in column No.13 was rider to entries in columns Nos.14, 15 and 16, of Nikahnama---Respondent / wife in the first instance could lay her claim with regard to Rs.500,000/- as dower mentioned in column No.13 of Nikahnama and if due to any reason, dower was not paid to her then she would become entitled to the property mentioned in column No.16 of Nikahnama in lieu thereof--- House in question was owned by father of petitioner / bridegroom who was neither signatory to the Nikahnama nor he had given any consent for the transfer of house in favour of his daughter-in-law, i.e. respondent / wife, who was precluded to claim said house---High Court declined to interfere in judgment by Lower Appellate Court as there was no legal infirmity in it---High Court directed that in order to avoid such problems in future, Nikah Registrars must ensure compliance of Rr. 7 to 13 of Muslim Family Laws Rules, 1961, while recording entries in Nikahnama---High Court further directed Nikah Registrars to avoid from incorporating any entry other than allowed in Nikahnama and to take special care while making entries in columns Nos.13 to 16 of Nikahnama---Further that Nikah Registrars should only record entry of dower in column No.13 of Nikahnama whatever was fixed by the parties as dower---High Court directed Federal Government as well as Provincial Government to prescribe minimum educational qualification for the grant of licence to Nikah Registrar in pursuance of R.5(2) of Muslim Family Laws Rules, 1961 and make arrangement for their proper training---High Court also directed the authorities that till such time Nikahnama Form prescribed under R.8 of Muslim Family Laws Rules, 1961---Parties desirous to fix some other beneficial condition in addition to dower, they should execute an independent instrument to that effect instead of intermingling the same with the dower---Constitutional petition was disposed of accordingly.

Mst. Iram Shahzadi v. Muhammad Imran-ul-Haq and others 2019 MLD 112; Attorney General v. Mst. Amna-Tuz-Zahra 2011 CLC 726; Mst. Razia Begum v. Jang Baz and 3 others 2012 CLC 105; Muhammad Anwar Khan v. Sabia Khanam and another PLD 2010 Lah. 119; Fawad Ishaq and others v. Mst. Mehreen Mansoor and others PLD 2020 SC 269; Muhammad Imran v. Additional District Judge, Multan and 3 others PLD 2018 Lah. 429; Mst. Mithan v. Additional District Judge, Jatoi and 7 others 2017 MLD 1101 and Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538; Mst. Shumaila Bibi v. Zahir Khan and 3 others PLD 2015 Pesh. 182 and Gul Akbar and another v. Jameela Afridi and 4 others PLD 2016 Pesh. 109 rel.

Kh. Shahid Rasool Siddiqui and Muhammad Ishaq Shah for Petitioners.

Ghufran Khurshid Imtiaz for Respondents Nos.1 and 2.

2023 C L C 1055

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

WAJID ALI----Petitioner

Versus

JUDICIAL MAGISTRATE, OKARA and 2 others----Respondents

Writ Petition No.12205 of 2021, decided on 21st November, 2022.

Punjab Food Authority Act (XVI of 2011)---

----Ss. 13(1)(c), 18 & 31(2)---Constitution of Pakistan, Arts. 18, 23 & 25---Powers of Food Safety Officer (FSO) to seal premises under S.13(1)(c) of the Punjab Food Authority Act, 2011 ('the 2011 Act') ---Constitutionality and legality---Held, that nowhere has S.13(1)(c) of the Act, 2011 provided when the sealing power could be invoked---Further, the act of "sealing" is not supported by a remedial mechanism as in the case of seizure of food , therefore, there is no legal remedy available to a food operator/business after the premises has been sealed---There was also no provision for de-sealing under the Act 2011---Similar powers actually have been vested in the FSO under S.18 of the Act 2011 for passing emergency prohibition orders whereby a food operator could be restrained from carrying on food business---Difference was that within twenty-four hours the aggrieved party could approach the Food authority for its redressal against such order i.e. under S.18(2) of the Act, 2011---So-called sealing power under S.13(1)(c) amounted to frustrating section 18 as well as the scheme of the Act, 2011---In the absence of any legislative policy/guidelines clearly spelling out when the sealing could take place and there being no remedial process provided against sealing, the power of sealing in the hands of the FSO could easily be applied arbitrarily which could not be permitted under constitutional scheme, as any such act would offend fundamental rights under Arts. 18, 23 & 25 of the Constitution---Power of sealing of premises by the FSO , in its present form, was therefore ex-facie discriminatory---High Court set-aside the proceedings made by the respondent/FSO declaring the same as ultra vires, illegal and without any legal effect and directed the (FSO) to hand-over seized bags of Whey Powder being animal feed to the petitioner---Constitutional petition was allowed, in circumstances.

Messrs Lung Fung Chinese Restaurant, Lahore and others v. Punjab Food Authority and others PLD 2021 SC 684 ref.

Akhtar Hussain Bhatti for Petitioner.

2023 C L C 1070

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD NAZEER----Petitioner

Versus

GHULAM HUSSAIN and another----Respondents

Writ Petition No.3843 of 2021, decided on 19th January, 2023.

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

----S.17(8)---Eviction petition---Relationship of landlord and tenant, denial of---Tentative rent order---Scope---Rent Controller, powers of---Petitioner, in reply to eviction petition filed by the respondent, categorically denied the relationship of landlord and tenant between the parties---Validity---Purpose and object of the Cantonments Rent Restriction Act, 1963 (Act of 1963) was to control and regulate the matters inter se tenant and landlord---Rent Controller, thus, could not travel beyond the ambit of the Act of 1963---In order to exercise the jurisdiction under the Act of 1963, the existence of relationship of landlord and tenant inter se parties was sine qua non---Once the respondent in eviction petition denied the existence of relationship of landlord and tenant, it became obligatory for Rent Controller to frame preliminary issue to that effect so as to determine the relationship inter se parties at the first instance---If by virtue of deliberation of said issue, ultimately the tenancy was established, the matter would not be further adjudicated and the respondent would be confronted straight away with an ejectment order---High Court set aside impugned tentative rent order and directed the Rent Controller to determine first the relationship between the parties by framing preliminary issue---Constitutional petition was allowed, in circumstances.

Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186 and Ashiq Hussain and another v. Jamia Masjid Hanfia Ghousia through President PLD 2007 Lah. 283 ref.

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

----S.17(8)---Constitution of Pakistan, Art. 199---Eviction petition---Interim/Interlocutory order---Constitutional jurisdiction of the High Court---Scope---Respondent of eviction petition denied existence of relationship of landlord and tenant, but Rent Controller passed a tentative rent order against him---Held, that though in ordinary course, the constitutional jurisdiction should not be exercised against an interlocutory or interim order but when such order, at the face of it, was patently perverse and appeared to be suffering with illegalities, the constitutional jurisdiction could not be abdicated or abridged---High Court could not sit as a silent spectator to perpetuate a void order---High Court set aside impugned tentative rent order and directed the Rent Controller to determine first the relationship between the parties by framing a preliminary issue---Constitutional petition was allowed, in circumstances.

Muhammad Sumak Malik and another v. Muhammad Asif Khan and 3 others 2020 CLC 768 and Mst. Zahida Perveen v. Iftikhar Hussain and 2 others 2019 YLR 474 ref.

Khawaja Hassan Riaz for Petitioner.

Syed Abbas Hussain Shah for Respondent No.1.

2023 C L C 1087

[Lahore]

Before Raheel Kamran, J

YOUNAS RASHEED----Petitioner

Versus

MUHAMMAD KASHIF IQBAL and another----Respondents

Writ Petition No.75857 of 2022, decided on 27th January, 2023.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss.16(4), 21(1), (2), (4) & 22---Constitution of Pakistan, Art.10-A---Eviction petition---Leave to contest---Scope---Fair trial and due process---Rent Controller dismissed application of petitioner/tenant to set-aside ex-parte proceeding and leave to contest---Held, that S.16 of Punjab Rented Premises Act, 2009 ("the Act 2009) conferred exclusive jurisdiction over a case under the Act 2009 and S.22 restricted the right of a respondent to defend himself in a eviction petition unless he obtained leave to contest from the Rent Tribunal within prescribed time---However, the fundamental right embodied in Art.10-A of the Constitution guaranteed that for determination of his civil rights and obligations, a person was entitled to a fair trial and due process---High Court allowed application of petitioner/tenant to set-aside ex-parte proceedings and directed that his application for the grant of leave to contest would be deemed to be pending before the Rent Tribunal---Constitutional petition was allowed, in circumstances.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 ref.

(b) Punjab Rented Premises Act (VII of 2009)---

----S.21---Qanun-e-Shahadat (10 of 1984), Art. 129---General Clauses Act (X of 1897), S. 27---Eviction petition---No order to serve notice through courier service---Scope and effect---Rent Controller dismissed application of petitioner/tenant to set-aside ex-parte proceeding and leave to contest---Record revealed that although the notice was issued to the petitioner/tenant through registered post acknowledgment due, yet there was no mention that the acknowledgement due was received back with endorsement of the petitioner or his refusal recorded by the postal authorities, which was necessary to raise presumption of service under Art. 129 of Qanun-e-Shahadat Order read with S.27 of General Clauses Act, 1897---High Court allowed application of petitioner/tenant to set-aside ex-parte proceedings and directed that his application for the grant of leave to contest would be deemed to be pending before the Rent Tribunal---Constitutional petition was allowed, in circumstances.

Mst. Bibi Fatima v. Muhammad Sarwar 2022 SCMR 870 ref.

Imran Muhammad Sarwar for Petitioner.

Muhammad Asif Mughal for Respondent No.1.

2023 C L C 1100

[Lahore]

Before Raheel Kamran, J

ASIM JAMSHAID----Appellant

Versus

SHAHZAD IQBAL MALIK and others----Respondents

R.S.A No.64508 of 2022, decided on 28th March, 2023.

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

----Ss. 12, 19 & 22---Suit for specific performance of agreement to sell immoveable property (plot)---Performance of contract---Specific enforceability---Court, discretion of---Conduct of the party---Time as essence of contract---Effect---Agreement was made between the parties with respect to a plot in which purchaser (appellant/plaintiff) paid only 8% of total sale consideration as earnest money and remaining amount was to be paid to the seller (respondent/defendant) in 5 days or so---Condition specified in relevant clause of the agreement made between the parties was that the seller shall pay double the earnest money if he backed out from the sale and if purchaser did so, his advance money would not to be refunded---Trial Court refused specific performance of agreement to sell to appellant/plaintiff, however, the respondent /defendant was directed to pay double the earnest money and remaining amount deposited in the Court was also to be returned to the appellant /plaintiff ---Appellate Court modified judgment and decree to the extent of adding profit to the paid earnest money at the bank rate since date of its payment---Contention of the appellant/plaintiff was that the Courts below were bound to decree his suit qua specific performance notwithstanding having a clause in agreement providing for payment of double the earnest money in case of refusal by the seller (respondent/defendant)---Held, that S.19 of the Specific Relief Act, 1877 ("the Act, 1877 ") gave right to claim compensation to the person suing for specific performance of contract in addition to or in substitution for its breach---Relinquishment of right to seek specific performance of contract was to be decided keeping in view the conduct of the parties and evidence led in said respect---Short date was fixed, in present case, for performance of the contract meaning thereby that time was essence of the contract---Record revealed contradictions in the statements of the witnesses of the appellant/plaintiff regarding offering of balance sale consideration by the plaintiff to the respondent/defendant---No bank statements showing balance to pay remaining consideration was produced in evidence --- Suit was instituted after 18 months of the date specified for performance of contract; and, after a month, remaining sale consideration was deposited in the Court and that too on direction of the Court--- Having the balance money in hand then, did not mean that the appellant/plaintiff had the same on the date specified for performance of contract---Appellant/plaintiff failed to show his primary responsibility to show his readiness and willingness to perform his part of obligation---Respondent/defendant, after five months of purchasing suit-plot, bargained to sell suit-plot at a price which was Rs. 350,000/- more than its purchase price---Only a few (5) days time was provided to the appellant for payment of the balance sale consideration in the agreement, which was actually deposited in the Court after more than one and half years---Agreement-in-question could not be construed to infer consent of respondent / defendant to sell the suit-property with all its potential for rapid increase in value of suit-plot---Such a construction would give an unfair advantage to the appellant over his rival which could not be countenanced in law---High Court maintained that discretionary relief of specific performance could not be extended to the appellant/plaintiff---Appeal was dismissed, in circumstances.

Mrs. Mussarat Shaukat Ali v. Mst. Safia Khatoon and others 1994 SCMR 2189 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 ref.

Muhammad Latif Khokhar v. Abdul Latif Khan and another 2018 CLC Note 40 and Mrs. Mussarat Shaukat Ali v. Mst. Safia Khatoon and others 1994 SCMR 2189 distinguished.

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

----Ss. 12 & 22---Suit for specific performance of agreement to sell immoveable property (plot)---Performance of Contract---Specific enforceability---Court, discretion of---Agreement between the parties with respect to a plot in which only 8% of total sale consideration was paid as earnest money and remaining amount was to be paid in 5 days or so---Contention of the appellant/plaintiff was that Courts below were bound to decree his suit qua specific performance notwithstanding a clause in agreement providing for payment of double the earnest money in case of refusal by the seller (respondent/defendant)---Held, that the grant of relief of specific performance of contract was discretionary in nature which could not be exercised arbitrarily---Courts were not bound to grant relief of specific performance of contract merely because it was lawful to do so---It was essentially an equitable relief and could be declined if the Court reached the conclusion that the same was unjust and inequitable---Appeal was dismissed.

Sh. Naveed Shahryar for Appellant.

Nemo for Respondent No.1.

Wasim Ahmad for Respondents Nos.2 and 3.

2023 C L C 1131

[Lahore]

Before Safdar Saleem Shahid, J

SALEEM MEHMOOD----Appellant

Versus

Ch. SAEED ASGHAR----Respondent

R.F.A. No.74319 of 2021, heard on 9th March, 2022.

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

----O.XXXVII Rr.1, 2 & Form IV of Appendix B----Limitation Act (IX of 1908), Art.159---Services, when properly effected---Limitation, commencement of----Copy of plaint----Purpose---Duty of Court--- Respondent /plaintiff filed suit for recovery of amount on basis of cheque before Trial Court---Appellant/defendant filed leave to defend---Trial Court rejected the said application for leave to defend---Validity---Suit filed by the respondent being summary in nature under O.XXXVII of the C.P.C., summonses were required to be issued on Form IV of Appendix B ,C.P.C and it was imperative that copy of the plaint and all the annexures should be sent to the defendant along with the summons and without fulfillment of that requirement, it could not be held that services was properly effected---Even if the defendant had been served with summons, without copy of plaint, and he had been appearing before the Court, the limitation would not run till the time he was supplied with a copy of the plaint for the reason that only on provision of copy of plaint he would gain knowledge as to what nature of suit was pending against him---Appellant/defendant, could not be served through summons, but he was served through publication of notice in the newspaper---Even on appellant's appearance before the Court, through his counsel, appellant was not provided a copy of the plaint and annexures; it was the responsibility of the plaintiff/respondent to provide copy of the plaint along with annexures to the defendant/appellant and not that of defendant/appellant to demand a copy thereof---Purpose behind issuance of summons along with copy of the plaint and the annexures was that the defendant/appellant should have gained knowledge of pendency and nature of suit against him ---Appeal was allowed and the case was remanded for decision afresh, after affording opportunity of hearing to the both parties in accordance with law.

Khushi Muhammad v. Muzammal Khatoon and 10 others 2014 YLR 1779 and Abdul Karim v. Nazir Ahmad PLD 1998 Lah. 163 rel.

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

----Art.159---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1&2---Suit for recovery of amount on basis of cheque---Leave to appear and defend--Limitation---Limitation for filing application for leave to appear and defend, suit under O.XXXVII of C.P.C was ten days which started from the date of service---Defendant/appellant appeared before the Court through counsel and requested time to file leave to defend---On the next hearing another request for adjournment for the said purpose was made and the Court adjourned the case for filing the application for leave to defend---Record did not show that even till that time defendant was provided copy of the plaint---In case it is considered that limitation was to run from the date of appearance of the appellant before the Court on 25.09.2020, even then it had to be noted that Court itself allowed appellant to file the application for leave to defend on 07.10.2020 and appellant filed the same on that very day---Since the application for leave to defend was filed within the time granted by the Court, the observation made by Trial Court regarding non-filing of application for condonation of delay was misconceived---When a request for adjournment is made, the Court should keep in mind the period of limitation while granting time for filing the leave to defend---Since the Court itself granted time till 07.10.2020, the said delay and default was not attributable to the appellant.

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

----O.XXXVII Rr.1,2 & Form IV of Appendix B---Leave to appear and defend---Duty of Court---Difference between suit under O.XXXVII and ordinary suit---Duty of the Court is not only to issue summons but the Court is also obliged to issue summons according to the Form IV, so that the defendant should attend the Court proceedings with a prepared mind, as intended by the summary trial under O. XXXVII of the C.P.C---Unless the defendant was informed regarding the pendency of the case in the required mode and manner, no delay or default could have been attributed to him regarding filing of the application for leave to defend within the limitation provided by the law---Special intention behind it is that suit under O.XXXVII of the C.P.C is differentiated from the ordinary suit and summary procedure has been specially formulated, wherein not only a plaint must have been attached in order to notify the defendant about pendency of the case but also inform him through Form IV that he has only limited period to approach the Court and get permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto---Unless, the defendant was handed over copy of plaint for filing of leave to defend as required by law, no delay or default could be attributed to him.

Muhammad Yasin v. Sheikh Muhammad Pervaiz 2012 CLC 1141 rel.

(d) Administration of justice---

----Actus Curiae Neminem Gravabit (Act of the Court shall prejudice no man)-----Where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner, then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the Court---Fault in such cases did not lies with the court and not with the litigants and no litigants should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law.

Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. 2016 SCMR 834 ref.

Muhammad Ahsan Bhoon, Hamid Iftikhar Pannu, Azmat Bashir Tarar, Khalid Pervaiz Warraich and Ch. Numan Mustafa Bajwa for Appellant.

Sh. Naveed Shahryar, Humera Bashir, Saira Tufail, Safina Safdar Bhatti and Zubaira Bashir Chaudhry for Respondent.

2023 C L C 1157

[Lahore]

Before Mirza Viqas Rauf, J

GULZAR HUSSAIN and others----Petitioners

Versus

ABDUR RASOOL and others----Respondents

Civil Revision No.1038 of 2014, decided on 20th February, 2023.

(a) Limitation---

----Inheritance mutations---Fraud and misrepresentation---Ancestral property---Entitlement of daughter---Plaintiffs (legal heirs of daughter of predecessor-in-interest of parties) claimed of having no knowledge of inheritance mutations---Held, that averments in the plaint were not seriously denied by the petitioners/defendants---No one could be deprived of his/her ancestral property on the basis of fraud merely on account of limitation---Even one of the respondents/defendants deposed that plaintiffs initially had no knowledge of inheritance mutations ---Limitation could not be pleaded as hurdle in way of respondents/plaintiffs, thus the question of limitation was rightly decided by both the Courts below---Civil revision was dismissed, in circumstances.

(b) West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)---

----S.2-A---Inheritance mutations---Entitlement of daughter---Prevalent customs---Applicability---Petitioners/defendants while resisting the claim of plaintiffs had justified impugned inheritance mutations before the Courts below on the ground that plaintiff's mother was not daughter of their predecessor-in-interest---Held, that it was never the petitioners' case that the impugned mutations were sanctioned in the light of prevailing customs---Petitioners were thus estopped to take a somersault to say that impugned mutations were protected under S.2-A of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983---It was only an attempt to defend impugned mutations at any cost---Daughter could not be deprived of her share in the legacy---Revision petition was dismissed, in circumstances.

Mst. Janntan and others v. Mst. Taggi through L.Rs. and others PLD 2006 SC 322 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings---Scope---Revisional jurisdiction was not meant to unearth another possible view from evidence which was contra to the findings rendered by two Courts of competent jurisdiction---There could be no interference with concurrent findings unless some patent illegality or material irregularity crept up on the record.

Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 and Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 ref.

Sh. Naveed Shahryar, Zubaira Bashir and Unaiza Siddique for Petitioners.

Rai Ikram Ullah Bhatti for Respondents.

2023 C L C 1171

[Lahore]

Before Ch. Muhammad Iqbal, J

Mst. RASOOLAN BIBI----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Revision No.24767 of 2017, heard on 12th April, 2023.

(a) Gift---

----Oral gift---Proof---Disentitling a daughter from her share in inheritance through a fraudulent oral gift---When the petitioner-lady had categorically stated that fraud has been committed with her to deny her inheritance share in her father's estate, onus was shifted upon the beneficiaries/ respondents/ defendants to prove validity of oral gift as well as the gift mutation by describing meticulously details of day, date, time, venue, presence of witnesses as well as making of gift, offer and acceptance and delivery of possession in the pleadings (written statement) whereafter such asserted fact should have been necessarily proved through corroborative, affirmative and trustworthy evidence---Perusal of the written statement showed that the respondents / defendants neither furnished the requisite details in their defence regarding date, time, place of gift nor proved the making of any offer of gift and acceptance of the same by them or on their behalf, as such they had failed to prove the oral gift transaction of the suit land as well as the valid incorporation of the impugned oral gift mutation in the revenue record---Such material flaw dismantled the very foundation of the stance of the respondents/defendants---Respondents /defendants tried to deprive the petitioner from her legal share in the estate of her deceased father by committing fraud and got entered the alleged gift mutation in their favour---Revision petition was allowed and suit for declaration filed by the petitioner-lady was decreed.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Amjad Ikram v. Mst. Asia Kausar and 2 others 2015 SCMR 1; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941; Abdul Sattar and others v. Muhammad Ashraf and others 2008 SCMR 1318; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others 2021 SCMR 73; Syed Ahmad v. Ali Akbar and others 2021 SCMR 743; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179 ref.

(b) Gift---

----Oral gift---Proof---Pre-requisites---Three important prerequisites for a valid (oral) gift are an explicit offer of gift by donor; acceptance of the gift by the donee; and voluntary delivery of possession to the donee under the very oral gift transaction---Said ingredients are mandatory in nature and absence of proof of any ingredient renders the very gift transaction as invalid.

Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095 and Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276 ref.

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

----Arts. 17, 79 & 129(g)---Oral gift---Proof---Attesting witnesses, non-production of---Effect---Neither the attesting witnesses of the oral gift mutation in question nor the Revenue Officers (Patwari and Tehsildar) who entered / sanctioned the said gift mutation were produced in evidence to prove the alleged oral gift mutation---Under Arts. 17 & 79 of the Qanun-e-Shahadat Order 1984, it is mandatory for the beneficiary / respondents to produce the requisite number of the witnesses of the very oral gift transaction as well as gift mutation but the respondents had failed to produce the witnesses of the oral gift mutation---Non-production of the required witnesses was blatant non-compliance of the mandatory provisions of law which was considered fatal for the case of the respondents---Furthermore failure to produce the witnesses of oral gift mutation i.e. Patwari and Tehsildar who entered and sanctioned the impugned oral gift mutation without any convincing reason amounted to withholding of material evidence and it would be legally presumed that had the said witnesses been produced in evidence, they would have deposed against the respondents, as such presumption under Art. 129 (g) of Qanun-e-Shahadat, 1984 clearly operated against them---Revision petition was allowed and suit for declaration filed by the petitioner-lady was decreed.

Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farzand another v. Khuda Bakhsh and others PLD 2015 SC 187; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 and Jehangir v. Mst. Shams Sultana and others 2022 SCMR 309 ref.

(d) Islamic law---

----Inheritance---Limitation---Female heirs deprived of their share in inheritance---In such inheritance matters no limitation runs against the (female) heir.

Ghulam Qasim and others v. Mst. Razia Begum and others (PLD 2021 SC 812; Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Shabla others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352 and Faiz Ullah and others v. Dilawar Hussain and others 2022 SCMR 1647 ref.

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

----S.42---Gift mutation---Scope---Mere sanctioning of gift mutation does not create any right until and unless the basic transaction of the gift is proved through corroborative and trustworthy evidence.

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

----Arts. 72, 117 & 120---Document---Proof---Producing of document in statement of counsel---Legality---In the present case the relevant Jamabandi, copy of khasra gurdawari, copy of application as well as impugned gift mutation were produced in the statement of counsel for the beneficiaries/ respondents, as such the same was considered as an invalid mode of tendering documents in evidence---Documents relied upon or on the basis of which the case has been filed should be produced in the evidence by party itself giving a fair opportunity to the other party to cross-examine the same---As such the documents produced by the respondents' counsel could not be relied upon as valid evidence and such documents could not be taken into consideration---Revision petition was allowed and suit for declaration filed by the petitioner-lady was decreed.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 and Rustam aand others v. Jehangir (deceased) through LRs. 2023 SCMR 730 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope---Interference in concurrent findings of Trial Court and Appellate Court---High Court is well within its jurisdiction to reverse illegal and perverse concurrent findings of the lower fora in its revisional jurisdiction under S.115, C.P.C.

Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 ref.

Mian Tariq Hussain for Petitioner.

Raja Muhammad Arif, Addl. Advocate General for Respondents Nos.1 to 3.

Ch. M. Lehrasib Khan Gondal for Respondent No.4.

2023 C L C 1193

[Lahore]

Before Shujaat Ali Khan and Jawad Hassan, JJ

ABDULLAH MALIK----Petitioner

Versus

PROVINCE OF THE PUNJAB and others----Respondents

I.C.A No.80658 of 2022, decided on 31st January, 2023.

(a) Punjab Destitute and Neglected Children Act (XVIII of 2004)---

----Ss.6 & 7---Punjab Government Rules of Business, 2011, Seventh Sched., Pt. A, Item No. 14---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Chairperson, office of---Pleasure post---Scope---Intra-court appeal---Writ of Quo Warranto---Appellant assailed the dismissal of his constitutional petition whereby he had challenged the appointment of the private respondent as non-official Member and Chairperson of the Board of Governors, Child Protection and Welfare Bureau---Validity---Appointment of the Chairperson of the Board of Governors of the Bureau is regulated under S.6 of the Punjab Destitute and Neglected Children Act, 2004, which provides that the Government shall appoint the Chairperson of the Board from amongst the members---Chairperson holds office during the pleasure of the Government and may resign from his office---Similarly, S.7 of the Act provides that a Member holds office during the pleasure of the Government---Said provisions indicate that the positions of member of the Board and the Chairperson of the Board are purely pleasure posts and appointments to these positions are made by the Chief Minister at his discretion---There is no requirement for advertisement before making such appointments---To invoke the constitutional jurisdiction of the High Court, one must establish that his legal or fundamental rights have been violated and he must have a locus standi or be an aggrieved party---Appellant in this case was neither aggrieved nor had a locus standi to invoke the constitutional jurisdiction of the court as the appointment process was conducted in compliance with the provisions of the Act---Intra-court appeal was dismissed.

Pakistan Pharmacists Association Case 2018 PLC (C.S.) 1063 ref.

Malik Muhammad Bashir Lakhesar Case PLD 2019 Lah. 1 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Locus standi---Scope---To invoke the constitutional jurisdiction of the High Court, the petitioner must establish that his legal or fundamental rights have been violated.

Pakistan Pharmacists Association Case 2018 PLC (C.S.) 1063 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Writ of certiorari---Writ of quo warranto---Locus standi---Scope---There is a significant difference between writs under Art.199(1)(a)(ii), (b)(ii) of the Constitution in terms of the aggrieved person---Writ of certiorari can only be moved by an aggrieved person who is competent to seek a declaration, whereas for a writ of quo warranto, there is no such restriction, and any person, whether aggrieved or not, can move a writ of quo warranto---For the maintainability of writs of certiorari and/or prohibition, it is necessary that the right sought to be enforced should ordinarily be a personal or individual right of the individual person.

Dr. Farzana Bari v. Ministry of Law, Justice and Human Rights through Secretary and 3 others PLD 2018 Isl. 127 ref.

Appellant in person.

Muhammad Siddique Chaudhry for Respondent No.7.

Ali Imran Gondal, S.O. Home Department.

2023 C L C 1201

[Lahore]

Before Tariq Saleem Sheikh, J

MAZHAR RASOOL HASHMI----Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

Writ Petition No.81608 of 2022, decided on 23rd December, 2022.

Constitution of Pakistan---

----Arts. 140 & 193---Appointment of Advocate General for the Province---Challenge to---Petitioner filed constitutional petition in the nature of public interest litigation challenging the appointment of Advocate General claiming that Governor could appoint only such person as Advocate General who was qualified to serve as Judge of High Court, whose age of retirement was 62 years and respondent was ineligible for such position since he was 73 years of age---Validity---Positions of the High Court Judge and the Advocate General were distinct---Separate mechanism existed for appointment, remuneration, tenure, and removal from these said two posts; their responsibilities differed as well---If the framers of the Constitution intended to prescribe the upper age limit for the appointment of Advocate General or to set the age of retirement for him, they would have specifically said so---No exception could be made to the appointment of the respondent as Advocate General---Impugned notification was valid---Courts should reject mischievous public interest litigation petitions which try to dispute lawful executive actions for oblique motives or to gain cheap popularity---Such petitions consume the Court's valuable time and hamper the decision of other cases---Petition lacked bona fides, therefore, same was dismissed with costs.

G.D. Karkare v. T.L. Shevde and others AIR 1952 Nagpur 330; Atlas Cycle Industries Ltd., Sonepat v. Their Workmen 1962 Supp.(3) SCR 89: AIR 1962 SC 1100; State of Uttaranchal v. Balwant Singh Chaufal and others AIR 2010 SC 2550; Malik Hamid Sarfraz v. Federation of Pakistan PLD 1979 SC 991; Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of the Punjab, and others v. Muhammad Ashraf Khan and others PLD 2011 SC 7; Syed Aziz-ud-Din Kakakhel v. Governor Khyber Pakhtunkhwa through Principal Secretary, and others PLD 2019 Pesh. 145; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Muhammad Shafique Khan Sawati v. Federation of Pakistan 2015 SCMR 851; Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others 2018 SCMR 365; Holicow Pictures (Pvt.) Ltd. v. Prem Chandra Mishra and others AIR 2008 SC 913; Gurpal Singh v. State of Punjab and others (2005) 5 SCC 136; Sanjeev Bhatnagar v. Union of India and others AIR 2005 SC 2841 and Dattaraj Nathuji Thaware v. State of Maharashtra and others 2005 (1) RCR (Civil) 232: (2005) 1 SCC 590 rel.

Afzal A. Haider for Petitioner.

Mukhtar Ahmad Ranjha, Additional Advocate General and Ahwar Tufail Warriach, Assistant Advocate General for Respondents.

2023 C L C 1217

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

SALEEM KHAN----Petitioner

Versus

Mst. ZEENAT and others----Respondents

Civil Revision No.1078-D of 2019, decided on 7th June, 2021.

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

----S.115---Limitation Act (IX of 1908), Ss. 5 & 29 (2)---Revision---Limitation---Condonation of delay---Principle---In the light of S.29(2) of Limitation Act, 1908, provision of S.5 of Limitation Act, 1908, is not applicable, as S.115, C.P.C. itself prescribes 90 days for filing a revision petition.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358; City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582 and Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

(b) High Court (Lahore) Rules and Orders---

----Vol.V, Chapter 1, part A, Rr. 6, 7 & 9---Civil revision application---Limitation---Office objection---Where certain objections are raised by office, it should be held to be time barred unless objections/deficiency pointed out by office are made good or removed within time specified by office---If office objections are not removed within the given period and in the meanwhile limitation expires, the petition would become barred by time.

Asad Ali and 9 others v. The Bank of Punjab and others PLD 2020 SC 736 rel.

(c) Gift---

----Oral gift---Onus to prove---Pardahnashin, illiterate ladies---Respondents/plaintiffs claimed to be owners of suit property and alleged that mutation on the basis of oral gift made by them in favour of petitioner/defendant was result of fraud---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondents/plaintiffs---Validity---In case of oral gift, onus was always on donee to prove through cogent and concrete evidence that donor made gift to him voluntarily, without duress and with all senses, he had accepted the same and possession was delivered to him towards completion of that transaction---If any of such ingredients/component was missing, claim of gift was rejected--- When respondents/plaintiffs deposed that they did not appear before revenue officer for attestation of mutation and gift was not made by them, onus was shifted upon petitioner/defendant as beneficiary to prove attestation of mutation as well as transaction reflected therein---Respondents/plaintiffs were Pardahnashin, illiterate, advanced aged, simpleton village ladies and their valuable rights in suit property were going to be transferred---Extraordinary precautions and special care was to be taken to safe guard rights of a weaker limb of the society---Petitioner/defendant was beneficiary of mutation in question and he was bound to prove gift transaction through trust worthy, believable, unimpeachable affirmative evidence but he failed to dislodge such mandatory burden---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Daud Khan v. Aurangzeb and others PLD 1968 SC 54; Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Bahadur Khan v. Mst. Niamat Khatoon and another 1987 SCMR 1492; Noor Hussain and others v. Mst. Hussain Bibi and others 2007 SCMR 378; Muhammad Latif v. Muhammad Nawaz and another PLD 1960 (W.P) Lah. 130; Haji Ghulam Qasim v. WAPDA Through its Chairman and 2 others PLD 1989 Lah. 476; Pakistan Tobacco Company v. Pakistan Chest Foundation and others PLD 1998 Lah. 100; Lever Brothers Pakistan Limited v. Qazi Muhammad Atique 1992 CLC 1062; Mian Ghulam Rasool Bodla v. Deputy Commissioner, Bahawalpur and another 1999 SCMR 1307; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Muhammad Anur through L.Rs. v. Muhammad Sher and others 2006 SCMR 185; Abdul Rehman v. Mst. Majeeda Bibi alias Majeeda 2017 SCMR 1110; Province of Punjab and others v. Ghulam Shabbir 2004 YLR 10; Muhammad Iqbal v. Mst. Bilqees Faiz and 2 others 2003 YLR 2677; Syed Muhammad Zubair Shamshad v. Mukhtiarkar Salehpat and 3 others 2014 MLD 471; Allah Wassaya v. Mst. Halima Mai and 12 others 2016 MLD 1535; Isfiaan Haider v. Muhammad Hussain and 2 others 2017 CLC 352; Tahira Bibi v. Muhammad Khan and others PLD 2018 Lah. 803 ref.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Muhammad Ejaz v. Khalida Awan 2010 SCMR 342; Muhammad Idrees v. Zeenat Bibi 2005 SCMR 1690; Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Rabnawaz v. Ghulam Rasul 2014 SCMR 1181; Rashida Bibi v. Mukhtar Ahmad 2008 SCMR 1384 = NLR 2008 Revenue 97; Aurangzeb v. Muhammad Jaffar 2007 SCMR 236; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her L.Rs and others 2021 SCMR 73; Mst. Hameedan Bibi and another v. Muhammad Sharif 2017 YLR 399; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Muhammad Yaqoob through Legal Heirs v. Feroze Khan and others 2003 SCMR 41; Baja through L.Rs., and others v. Mst. Bakhan and others 2015 SCMR 1704; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 and Ghulam Farid and another v. Sher Rehman though L.Rs. 2016 SCMR 862 rel.

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

----Art. 80---Attesting witness not traceable---Proof--- Simple oral assertion is not enough to prove factum of death of attesting witness and does not discharge the burden to locate and produce such witness.

Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538 and Ghulam Sarwar (deceased) through L.Rs., and others v. Ghulam Sakine 2019 SCMR 567 rel.

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

----S.3---Fraud---Effect---Fraud vitiates even the most solemn transaction---Any transaction based upon fraud would be void---Limitation does not run against void transaction---Mere efflux of time does not extinguish right of any party.

Peer Bukhsh and others v. Mst. Khanzadi and others 2016 SCMR 1417; Muhammad Iqbal v. Mukhtar Ahmad 2008 SCMR 855; Mst. Raj Bibi and others v. Province of Punjab and others 2001 SCMR 1591 and Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832 rel.

Mumtaz Hussain Malik for Petitioner.

Muhammad Tariq Ijaz Joyia for Respondents Nos.3 and 4.

2023 C L C 1266

[Lahore (Multan Bench)]

Before Shahid Jamil Khan and Raheel Kamran, JJ

MULTAN ELECTRIC POWER COMPANY and another----Appellants

Versus

Messrs GRIT (PVT.) LIMITED and another----Respondents

Intra Court Appeal No.281 of 2022, decided on 13th December, 2022.

Public Procurement Rules, 2004---

----Rr.2(e), 26 & 49---Public procurement---Valid contract---Bid validity---Bidding process---Remedy of arbitration---Appellant authority was aggrieved of order passed by Judge in Chambers of High Court directing release of pay orders deposited by respondent bidder in relation to tender in question---Validity---Respondent bidder conditionally agreed to extension in bid validity period that proposed to change substance of its bid which was impermissible under R.26(4)(b) of Public Procurement Rules, 2004---Condition proposed by respondent bidder for extension of bid validity period was not accepted by appellant authority---Letter of intent issued by appellant authority did not form an agreement for extension of bid validity period under R.26 of Public Procurement Rules, 2004---Division Bench of High Court declined to interfere in order passed by Judge in Chambers of High Court as the same was in consonance with the letter and spirit of R.26(4)(c) of Public Procurement Rules, 2004---Suit instituted by respondent bidder related to another tender and recourse to remedy of suit in that transaction did not stand in the way of respondent bidder to assail letter of intent, as the same was issued without lawful authority and was of no legal effect---Remedy of arbitration visualized under R.49 of Public Procurement Rules, 2004, which provided for resolution of disputes between parties to the contract was not available in the present case as there was no contract as defined in R.2(e) of Public Procurement Rule, 2004, inter se the appellant authorities and respondent bidder---Dispute was essentially related to extension of bid validity period under R.26 of Public Procurement Rules, 2004---Intra Court Appeal was dismissed, in circumstances.

Malik Muhammad Tariq Rajwana for Appellants.

Shahzad Rabbani for Respondent No.1.

2023 C L C 1285

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD SUQRAT----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.2827 of 2016, decided on 2nd March, 2023.

Family Courts Act (XXXV of 1964)---

----Ss.13 & 10(4)---Family Courts Rules, 1965, Rr. 16 & 17---Return/recovery of dower---Execution petition---Maintainability---Scope---Suit for dissolution of marriage on the basis of Khula was decreed subject to return of dower---Four tolas of gold ornaments was fixed as dower duly entered in Column of Nikah Nama---Executing Court turned down the objection of respondent/ex-wife that execution petition for recovery of Zar-e-Khulla was not maintainable---Appellate Court accepted the version/objection of respondent by allowing her revision petition---Held, that the decision of dissolution of marriage in terms of S.10(4) of the Family Courts Act, 1964, was compound, which on the one hand dissolved the marriage inter se parties and, on the other, said dissolution was made subject to return of dower---Manner and form of decree was prescribed in Rr. 16 and 17 of the Family Courts Rules, 1965, in light of which dissolution of marriage, on the basis of Khula subject to return of dower was a decree for all intent and purposes under S.13 of the Family Courts Act, 1964, and thus was executable---High Court set aside impugned judgment passed by the Appellate Court---Constitutional petition was allowed, in circumstances.

Mst. Nadia Bibi v. Additional District Judge and others

PLD 2013 Lah. 41 distinguished.

Malik Faisal Sardar for Petitioner.

Shahbaz Ahmad Rajpoot and Nusrat Naureen for Respondent No.3.

2023 C L C 1300

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan, Mirza Viqas Rauf and Ch. Abdul Aziz, JJ

Mst. AMMAN GUL----Petitioner

Versus

JUDGE FAMILY COURT, RAWALPINDI and 2 others----Respondents

Transfer Application No. 31 of 2022, decided on 15th February, 2023.

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

----Ss.10. 11 & 17---Provision of Civil Procedure Code, 1908---Applicability---All provisions of Code of Civil Procedure, 1908 except Ss.10 & 11, C.P.C. have been ousted to the proceedings before Family Court in terms of S.17 of Family Courts Act, 1964, but this was only for the prime purpose to avoid procedural formalities, which may operate as hurdle in speedy and swift decision of disputes brought before the Court under Family Courts Act, 1964---There is no impediment in the way of Family Court to adopt procedure provided in Civil Procedure Code, 1908, to foster the justice.

Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321 and Mst. Shabnam Bibi and 3 others v. Khan Badshah and 3 others 2012 MLD 1795 rel.

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

----O.XXI---Execution proceedings---Scope---Execution proceedings are not synonymous to original proceedings where Court has to make an adjudication of the respective rights of parties, which ultimately culminates into decree--- In the former case Executing Court ordinarily is not required to involve itself in determination of intricate questions of fact or law but to proceed in terms of decree for its satisfaction.

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

----Ss.13 & 25-A---Civil Procedure Code (V of 1908), S.38---Execution of decree---Transfer of proceedings---Dispute was with regard to transfer of proceedings to another Court to execute decree passed by Family Court---Validity---Detailed mechanism for execution of decree has not been provided in section 13 of Family Courts Act, 1964, nor it caters for all eventualities arising from execution proceedings--- Family Court and the Civil Court under S.13(4) of Family Courts Act, 1964, have been placed at the same pedestal for the purpose of execution of decree---In such capacity a Court "Family" or "Civil" enjoys all powers of Executing Court vested in Part II as well as O.XXI,C.P.C.---Provision of S.39, C.P.C., deals with transfer of decree which empowers the Court which passed a decree to send it for execution to another Court, on the application of decree holder---Once decree was passed by Family Court that had become executable in terms of S. 13 of Family Courts Act, 1964 and in case of any hindrance to the same, the Executing Court could adopt any of the mode provided for execution of decree in C.P.C.---High Court directed the applicants to move respective Executing Courts for transfer of execution proceedings / petitions---Application was allowed accordingly.

Mian Muhammad Arshad v. Saba Gul and 5 others 2022 MLD 1280; Sawera Ikram v. Amir Naveed PLD 2022 Lah. 600; Mst. Samrana Nawaz and others v. M.C.B. Bank Ltd. and others PLD 2021 SC 581; Mst. Kulsoom Rasheed v. Noman Aslam PLD 2021 SC 579 and Muhammad Khalil v. Mst. Zahida Perveen and others PLD 1991 Lah. 51 ref.

Majad Ali, Butt for Applicant (in Transfer Application No.31 of 2022).

Ex-parte for Respondents (in Transfer Application No.31 of 2022).

Muhammad Shoaib for Applicant (in Transfer Application No.10 of 2022).

Nemo. for Respondent (in Transfer Application No.10 of 2022).

Amir Akhtar for Applicant (in Transfer Application No.26 of 2022).

Nemo. for Respondents (in Transfer Application No.26 of 2022).

Amir Shahzad Raja for Applicant (in Transfer Application No.27 of 2022).

Ex-parte. for Respondent (in Transfer Application No.27 of 2022).

Mudassar Bashir Awan for Applicants (in Transfer Application No.29 of 2022).

Nemo. for Respondent (in Transfer Application No.29 of 2022).

Raja Mohsin Riaz for Applicants (in Transfer Application No.30 of 2022).

Ex-parte for Respondent (in Transfer Application No.30 of 2022).

Syed Amir Hussain Shah for Applicant (in Transfer Application No.32 of 2022).

Nemo. for Respondent (in Transfer Application No.32 of 2022).

Qazi Hafeez ur Rehman for Applicants (in Transfer Application No.33 of 2022).

Nemo. for Respondents (in Transfer Application No.33 of 2022).

Syed Mansoor Hussain Bukhari for Applicants (in Transfer Application No.34 of 2022).

Nemo. for Respondent (in Transfer Application No.34 of 2022).

Ajam Naz Malik, Farhana Ambreen, Sidra Sheikh and Tayyab Bilal for Applicants (in Transfer Application No.35 of 2022).

Nemo. for Respondents (in Transfer Application No.35 of 2022).

Applicant No.1 in person (in Transfer Application No.43-C of 2022).

Nemo. for Respondents (in Transfer Application No.43-C of 2022).

Applicant in person (in Transfer Application No.46 of 2022).

Nemo. for Respondents (in Transfer Application No.46 of 2022).

Syed Aun Muhammad Rizvi and Aneeque Zia for Applicant (in Transfer Application No.47 of 2022).

Nemo. for Respondents (in Transfer Application No.47 of 2022).

Mansoor Azam for Applicants (in Transfer Application No.51 of 2022).

Nemo. for Respondents (in Transfer Application No.51 of 2022).

Muhammad Tanveer Mughal for Applicants (in Transfer Application No.52 of 2022).

Nemo. for Respondents (in Transfer Application No.52 of 2022).

Anwar ul Haq Shah and Nauman Qadir for Applicant (in Transfer Application No.53 of 2022).

Nemo. for Respondent (in Transfer Application No.53 of 2022).

Syed Bilal ud Din Bukhari and Bilal Akbar Laghari for Applicants (in Transfer Application No.54 of 2022).

Nemo. for Respondents (in Transfer Application No.54 of 2022).

Syed Wajid Hussain Shah and Syed Muhammad Mushtaq Naqvi for Applicants (in Transfer Application No.57 of 2022).

Nemo. for Respondent (in Transfer Application No.57 of 2022).

Ch. Muhammad Alam Bhangoo for Applicant (in Transfer Application No.58 of 2022).

Nemo. for Respondent (in Transfer Application No.58 of 2022).

Osama Shahid Khawaja for Applicants (in Transfer Application No.03-C of 2023).

Nemo. for Respondent (in Transfer Application No.03-C of 2023).

Ms. Rabia Ishaque Hanjra for Applicants (in Transfer Application No.08-C of 2023).

Nemo. for Respondent (in Transfer Application No.08-C of 2023).

2023 C L C 1331

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

PUNJAB PROVINCIAL COOPERATIVE BANK LIMITED through Branch Manager Burewala District Vehari----Petitioner

Versus

MEMBER (COLONIES) BOARD OF REVENUE PUNJAB, LAHORE and 5 others----Respondents

Writ Petition No.681 of 2020, decided on 22nd February, 2021.

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

----S.10---Issue of statements of conditions of tenancies---Cancellation of lease---Scope---Petitioner-Bank challenged the order passed by Member (Colonies), Board of Revenue, whereby the land in question was resumed in favour of the State and the order whereby its' review application was also dismissed---Contention of petitioner was that the suit land was leased out to it for 99 years for construction of godowns, which lease period had not yet expired---Validity---Suit land was leased out to the petitioner for a specific purpose i.e. for construction of wheat bins and permission was also granted to rent it out to the Food Department and others for preservation of wheat---But the petitioner without getting the permission from the competent authority, sublet the state land to a private person (sub-lessee) who used the same for commercial purposes---Such sub-letting and utilization for other purposes was violative to the stipulation of the agreement---Member (Colonies) had rightly cancelled the lease agreement in favour of the petitioner---Writ petition filed by petitioner-bank was dismissed.

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

----S.10---Civil Procedure Code (V of 1908), S. 47---Qanun-e-Shahadat (10 of 1984), Art. 115---Estoppel of tenant and of licensee of person in possession---Scope---Sub-lessee assailed the order passed by Executing Court whereby his objection petition challenging the title of the bank (original lessee) to the suit land was dismissed---Validity---Once a tenant was always a tenant, and he could not challenge the title---Even otherwise, the question of title of demised premises could not be settled in execution proceedings as the Executing Court could not go behind the decree rather it was bound to execute the decree in letter and spirit---Writ petition filed by sub-lessee was dismissed.

Syed Riaz Ahmad Shan and another v. Dayal Singh College Trust Society and another 1972 SCMR 237; Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Mst.Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481 and Allied Bank Limited v. Messrs Fazal Vegetable Ghee Mills and others 2019 CLD 441 rel.

Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 ref.

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

----S.10---Punjab Rented Premises Act (VII of 2009), S. 11---Issue of statements of conditions of tenancies---Cancellation of lease---Sub-letting---Arrears of rent, entitlement to---Scope---Special Judge (Rent) on the application of the bank (original lessee) had directed eviction of the sub-lessee and had ordered for payment of arrears of rent---Provincial Government claiming to real owner/landlord of the suit land and being entitled to the arrears of rent filed an appeal against the order of Special Judge (Rent) before the Additional District Judge---Appeal was dismissed being time barred vide impugned order---Validity---Original lessee had violated the terms and conditions of the lease agreement---Sub-lessee had used the state land for commercial purpose in connivance with the officials of the original lessee whereas the land was actually reserved for agricultural purposes, as such, instead of the original lessee, the Provincial Government was entitled to recover the amount of arrears of rent from the sub-lessee---Order passed by Appellate Court was set aside---Writ petition filed by Provincial Government was allowed.

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

----S.10---Issue of statements of conditions of tenancies---Scope---No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed by the Collector and the lessee has taken possession of the land with the permission of the authority.

(e) Constitution of Pakistan---

----Art. 5---Obedience to Constitution and law---Public functionaries---Scope---All the affairs of the state are managed and run by the instrument of written Constitution as well as laws---Functions and business of each and every department is to be carried out under the well described manifest written jurisdiction and each portfolio has to exercise its powers with the described precincts of its jurisdiction and any transgression whereof would be considered as illegal.

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

----S.23---What considerations and objects are lawful and what not---Scope---If any order is passed by any authority beyond its jurisdiction and against the public policy, such order in its inception is nullity in the eyes of law and can never convey any absolute title in favour of the beneficiary.

Hameedullah and 9 others v. Headmistress, Government Girls School Chokara, District Karak and 5 others 1997 SCMR 855; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641 and Muhammad Arshad Khakwani v. I.U.B. and another 2011 MLD 322 rel.

Ch. Khalid Mehmood Arain for Petitioner.

Nadeem Ahmad Gehla, Assistant Advocate General for Respondents.

2023 C L C 1349

[Lahore (Multan Bench)]

Before Muhammad Raza Qureshi, J

Mst. KISHWAR SULTANA----Petitioner

Versus

NIZAM-UD-DIN (DECEASED), through Legal Heirs and others----Respondents

Civil Revision No.216 of 2022, decided on 28th February, 2022.

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

----S.12(2) & O.IX, Rr.2, 3 & 4---Fraud, misrepresentation and want of jurisdiction---Second application filed under S.12(2) of the Civil Procedure Code, 1908, maintainability of ---Doctrine of election of remedies---Scope---Petitioner/lady moved application under S.12(2), C.P.C., which was dismissed on account of non-deposit of process fee; then after 11 months of said dismissal, she filed application for its restoration which was dismissed on the ground of limitation---Petitioner, instead of assailing order rejecting the restoration, moved second application under S.12(2), C.P.C.---Civil Court dismissed second application of the petitioner, which order was maintained by the Appellate Court---Held, that O.IX, R.4 of the Civil Procedure Code, 1908, provided remedies to an aggrieved person i.e. either to bring a fresh suit/application or apply for an order to set the dismissal aside---Once a litigant exhausted either of the remedies being unsuccessful, he was not permitted to have an attempt to go for second remedy---As under the doctrine of election of remedies once aggrieved person had acted and exhausted either of the two remedies he was deemed to have given up and forfeited his right to the other remedy; he could pursue the remedy which was initiated and exhausted first or earlier in point of time---Petitioner, in the present case, had elected and exhausted her remedy by filing restoration application against dismissal of first application under S. 12(2), C.P.C , therefore, her second application was not maintainable---Civil revision was dismissed in limine, in circumstances.

Tanveer Jamshed and another v. Raja Ghulam Haider 1992 SCMR 917 and Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 ref.

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

----O.IX, Rr. 2 & 4---Dismissal under O.IX, R.2 of the Civil Procedure Code, 1908---Remedy---Order IX, R.4 of Civil Procedure Code, 1908, is one of very few exceptions envisaged by the provisions of the C.P.C., which provides that even in case of dismissal of a suit/application, the law equips the plaintiff/applicant to either initiate fresh proceedings or seek setting aside of dismissal order under O.IX, R.2, C.P.C.

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

----S.3---Civil Procedure Code (V of 1908), S.12(2) & O.IX, Rr. 2 & 4---Fraud, misrepresentation and want of jurisdiction---Second application filed under S.12(2), of the Civil Procedure Code, 1908---Limitation---Scope---Petitioner/lady moved application under S.12(2), C.P.C., which was dismissed on account of non-deposit of process fee; then after 11 months of said dismissal, she filed application for restoration which was dismissed on the ground of limitation---Petitioner, instead of assailing order rejecting the restoration, moved second application under S.12(2), C.P.C.---Civil Court dismissed second application of the petitioner which order was maintained by the Appellate Court---Held, that an application under S.12(2), C.P.C., was to be filed within a period of three years---Period of three years , in present case, commenced from the date of knowledge when the petitioner filed her first application under S.12(2), C.P.C.---Second application under S.12(2), C.P.C, was filed by the petitioner after more than four years of said date of knowledge --- Conditions precedent for re-filing the same was subject to limitation, available to the petitioner under O. IX, R. 4, C.P.C.---If the second suit/application was not filed within period of limitation, then such proceedings would be hit by provisions of S. 3 of Limitation Act, 1908---Second application of the petitioner was time barred---Civil revision was dismissed in limine, in circumstance.

(d) Limitation---

----Principles---Hurdles of the limitation could not be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court---Ignorance, negligence, mistake, hardship or even poverty of the parties did not save from limitation---Law of limitation was a statute of repose, designed to quieten title; and to bar stale and waterlogged disputes; and was to be strictly complied with---Statutes of limitation by their very nature were strict and inflexible, which did not confer any right but only regulated the rights of the parties---Such a regulatory enactment could not be allowed to extinguish vested rights or curtail remedies , unless all conditions for extinguishment of rights and curtailment of remedies were fully complied with in letter and spirit---There was no scope in law of limitation for any equitable or ethical construction to get over them---Justice, equity and good conscience did not override the laws of limitation as their object was to prevent stale demands and so they ought to be construed strictly.

Khushi Muhammad through L.Rs and others v. Mst.Fazal Bibi and others PLD 2016 SC 872; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

2023 C L C 1368

[Lahore]

Before Faisal Zaman Khan, J

Malik ZARIN KHAN----Petitioner

Versus

ADNAN ALI MALIK and 2 others----Respondents

Civi Revision No.3659 of 2016, heard on 30th November, 2022.

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

----O. XXIII, R. 1(3) & O. VII, R. 11---Withdrawal of first suit for specific performance after filing the subsequent one---Application under O. VII, R. 11, CPC, filed by the petitioner in subsequent suit was dismissed---Validity---During the pendency of the suit for specific performance of agreement, the respondent filed another suit for specific performance in which an application under order O. VII, R.11, C.P.C., was filed by the petitioner---Moot point was whether the subsequent suit instituted by the respondent was hit by the bar contained in O.XXIII, R. 1(3), C.P.C.---Order XXIII, R. 1(3), C.P.C., did not preclude a plaintiff from filing multiple suits on the same subject matter as it merely placed an embargo on a plaintiff to file a suit on the subject matter, which he had already withdrawn/abandoned without seeking permission of the court to reagitate the same---If during the pendency of a suit, without withdrawing the same, on the same subject matter, a subsequent suit is filed, the subsequent suit will be maintainable and by no means will be hit by the bar contained in O.XXIII, R. 1(3), C.P.C.---No jurisdictional defect or procedural impropriety was pointed out, petition was dismissed, in circumstance.

(b) Res judicata, principle of---

----If a suit is not decided on merits, the same would not constitute or operate a res judicata.

A.D. Bhatti for Petitioner.

Sardar Ahmad Gull Khan for Respondents Nos.1 and 2.

Nemo. for Respondent No.3.

2023 C L C 1387

[Lahore]

Before Shahid Karim, J

NASIR ABDULLAH----Petitioner

Versus

PROVINCIAL QUALITY CONTROL BOARD and another----Respondents

Writ Petition No.258103 of 2018, decided on 24th October, 2022.

Medical Devices Board Rules, 2017---

----R.59---Drugs Act (XXXI of 1976), S.18---Misbranding a medical device---Jurisdiction of Medical Device Board---Powers of inspectors---Scope---Drug Inspector took samples of certain contraceptives for the purpose of testing and analysis and their inspection revealed that they contained an allopathic ingredient---Following the issuance of a show cause notice to the petitioner and providing an opportunity for a hearing, the District Quality Control Board recommended granting permission for prosecution---In response, the petitioner challenged the jurisdiction of the Drug Inspector through present constitutional petition---Validity---Contention that since the product contained an allopathic ingredient, it fell within the jurisdiction of Drug Inspector and the District Quality Control Board, was fallacious---Petitioner's product was regulated by the Medical Device Board, and therefore, any disputes relating to such products should be adjudicated and decided by the Board established under the Medical Devices Rules of 2017---Said rules not only outlined the procedure for granting establishment licenses but also approved the conditions of the establishment license---Medical Device Board was responsible for the enlistment or registration of medical devices and related matters---In cases of breach or non-compliance, the Medical Device Board was empowered to assign responsibility for the offenses and refer the case to court for determination---Rule 59 of the Medical Devices Rules, 2017, specifically delineated such powers of the Board---Allegations against the petitioner involved the misbranding of a medical device, which fell squarely within the responsibilities and duties of the Medical Device Board---Jurisdiction of the Drug Inspector was ousted in all matters pertaining to the responsibilities of the Board---Consequently, the constitutional petition was allowed and both the impugned order and preceding orders were set aside.

Haroon Dugal and Ali Raza for Petitioner.

2023 C L C 1399

[Lahore]

Before Ch. Muhammad Iqbal, J

ZAHID IQBAL----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others----Respondents

Writ Petition No.58430 of 2019, decided on 6th October, 2021.

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

----S.12(2)---Framing of issue and recording of evidence---Respondent filed suit for specific performance against another respondent---Compromise decree was passed and sale deed was accordingly executed in favour of respondent---Petitioner filed application under S.12(2) of Civil Procedure Code, 1908 which was accepted by Trial Court---Revision petition was accepted and case was remanded to the Trial Court to decide petitioner's application after recording evidence---Petitioner contended that he had a prior in time agreement to sell with respondent than that between the other respondents; and that subsequent agreement, suit for specific performance, compromise decree, registration of sale deed in favour of respondent were result of fraud/inter se collusivity between the respondents---Validity---To determine factual controversy that which agreement was prior in time could only be decided after framing of relevant issue and recording evidence of respective parties---Summary determination by Trial Court on application under S.12(2) of Civil Procedure Code, 1908 had no backing of law and Trial Court in an indecent haste had proceeded to allow the application under S. 12(2), C.P.C.---Such kind of non-observance of principle of law vitiated the sanctity/validity of the order of Trial Court---Trial Court committed error while deciding said application without framing issues/recording evidence---One respondent claimed his ownership on the basis of Provisional Transfer Order issued by Settlement Department, thus Province of the Punjab through Chief Settlement Commissioner/Member (Residual Properties)/Notified Officer, Punjab was necessary party, thus, he be impleaded as necessary party---Constitutional petition was dismissed accordingly.

Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Lahore Development Authority through Director-General v. Arif Manzoor Qureshi and others 2006 SCMR 1530; Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 and Abdul Razzaq Muhammad Islam and 3 others 1986 CLC 1052 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Case remanded---No final disposal of case---Scope---Revisional Court had merely remanded the matter to the Trial Court and had not finally decided the issue on merits---Ordinarily Constitutional petition was not maintainable against remand order.

Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251; Allah Ditta and others v. Member (Judicial) Board of Revenue and others 2008 SCMR 1177; Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and another PLD 1963 (WP) Lah. 461; Akbar Ali and 18 others v. Mukhtar Ahmad and 14 others 2007 CLC 768 and Ghulam Ahmad v. Member Board of Revenue, Punjab, Lahore and others 2010 CLC 1921 rel.

Hamid Iftikhar Pannu for Petitioner.

Ch. A.D. Bhatti for Respondents.

2023 C L C 1411

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Lt. Col. (R) MUHAMMAD ZUBAIR----Appellant

Versus

Mst. SUGHRAN BEGUM and another----Respondents

Regular Second Appeal No.03 of 2012, decided on 16th December, 2022.

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

----S.12---Suit for specific performance of agreement to sell---Execution of agreement---Admission---In order to prove the agreement to sell the respondent examined her special attorney and one of the attesting witnesses of the agreement to sell as witnesses----In addition thereto, the respondent tendered in evidence certain documents as well---Contrary to this, the appellant examined his attorney as the sole witness to rebut the evidence led by the respondent, who in his statement conceded the execution of agreement to sell---Thus, after the admission of this material fact, the respondent successfully discharged the onus of proof with regard to the execution of agreement, as admitted facts need not to be proved---Record showed that there was no hurdle in the way of the appellant to execute the sale deed in favour of respondent in furtherance of the agreement to sell---Second appeal was dismissed, in circumstances.

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

----Ss.20, 22 & 12---Suit for specific performance of agreement to sell---Penalty clause---Suit of the respondent was decreed to the extent of double of the amount paid by her to the appellant but in appeal the suit was allowed holding her entitled to the decree for specific performance---Held, that only resistance to the suit was rested on the fact that there was a penalty clause in the agreement to sell that in case of failure by the appellant to abide the terms of the agreement, he would pay double of the amount received at the market value to the respondent, so the respondent was precluded to ask for specific performance of agreement to sell---Relief of specific performance is a discretionary relief in terms of S.22 of the Specific Relief Act, 1877 but such discretion cannot be exercised arbitrarily and the court while exercising the discretion is bound to follow the well settled principle that discretion shall always be structured on reasoning and fairness---In the facts and circumstances of the case, S. 20 of the Specific Relief Act, 1877, would come into play, which provided that even if there is a stipulation in agreement that in case of its breach a penalty would be the outcome, this by itself would not impede the specific performance of the agreement---First Appellate Court was justified in forming the opinion that the respondent was entitled for the decree of specific performance, in the circumstances---Second appeal was dismissed, in circumstance.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Gulzar Ahmad and others v. Muhammad Aslam and others 2022 SMCR 1433 and Sh. Muhammad Riaz Diwana through His Legal Heirs v. Sh. Muhammad Sharif and others 1989 MLD 3663 rel.

(c) Civil Procedure Code (V of1908)---

----S.100---Second Appeal---Regular second appeal has a very limited scope as provided under S.100 of C.P.C.---Where there is divergence of views in both the Courts below, ordinarily preference should be given to the judgment of first appellate Court unless it offends any law---Judgment of appellate Court cannot be interfered with unless some procedural defect materially affecting such findings is pointed out by the appellant---There is a marked distinction between the revisional jurisdiction and appellate jurisdiction in terms of S.100 of C.P.C.

Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 rel.

Muhammad Ilyas Sheikh for Appellant.

Mohsin Farooq Sheikh for Respondent No.1.

Ex-parte for Respondent No.2.

2023 C L C 1453

[Lahore (Multan Bench)]

Before Raheel Kamran, J

MUHAMMAD RAMZAN and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.9406 of 2022, decided on 16th June, 2022.

Civil Procedure Code (V of 1908)---

----O.VIII, Rr.1, 1A, 10---Right to file written-statement, striking off---Powers of the Court---Scope---Right of the petitioners /defendants to file written-statement was closed by the Trial Court---Appellate Court maintained the said order---Held, that the Rr. 1 & 1A of O.XIII, Civil Procedure Code, 1908 ('C.P.C., 1908') manifested that the period of thirty (30) days and not more than two opportunities had been provided to a defendant to file written-statement---Consequences of failure to present the written-statement within the time fixed by the Code were provided in R.10 of O. XIII, of the C.P.C., 1908 in terms of empowering the Court to pronounce judgment against him or making such order in relation to the suit as it thinking fit---Record revealed that petitioners/defendants, after their first appearance before the Court, availed ten opportunities spanning over eight months in submitting their written-statement without showing any just and sufficient cause, therefore, their indolence/negligence was patent---Court, in the present case, could even proceed to pronounce the judgment while treating the contents of the plaint in terms of R. 1A of O. XIII, C.P.C., 1908, however, the Court only struck off the right of the petitioners/defendants to file written-statement---Petitioners / defendants still had a right to cross-examine the witnesses and impugned order by all means was less penal than the pronouncement of judgment against them---No interference by the High Court was made in the orders and judgments passed by both the Courts below---Constitutional petition was dismissed in limine.

2023 C L C 1477

[Lahore]

Before Muzamil Akhtar Shabir and Ch. Muhammad Iqbal, JJ

FALAK SHER----Petitioner

Versus

The FEDERAL LAND COMMISSIONER, ISLAMABAD and others----Respondents

Writ Petition No.9535 of 2008, decided on 25th January, 2023.

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

----O.I, R.10---Necessary party---Scope---In the absence of a necessary party, no effective decree or order can be passed.

Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Muhammad Siddique (Deceased) through L.Rs. and others v. Mst. Noor Bibi (Deceased) through L.Rs. and others 2020 SCMR 483 and Province of Punjab through Secretary Excise and taxation Department, Lahore and others v. Murree Brewery Company Ltd. (MBCL) and another 2021 SCMR 305 ref.

(b) Constitution of Pakistan---

----Art.10A---Right to fair trial---Scope---No one should be condemned unheard and if any adverse order is passed without affording an opportunity of hearing to the opposing party, such an order is deemed illegal and passed in violation of the principle of "due process of law" enshrined in Art. 10-A of the Constitution.

Mrs. Shagufta Shaheen and others v. The State through D.G. NAB, Khyber Pakhtunkhwa another 2019 SCMR 1106 and Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2022 SC 119 ref.

Malik Rab Nawaz for Petitioner.

Ch. Tanvir Akhtar, Additional Advocate General.

Malik Abdul Wahid, Muhammad Yasin Chughtai, Iftikhar Ahmad Chohan, Sh. Usman Karim-ud-Din and Muhammad Anwar Khan for Respondents.

2023 C L C 1507

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD YASEEN----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY and another----Respondents

Writ Petition No.78275 of 2022, decided on 8th March, 2023.

(a) Lahore Development Authority Building and Zoning Regulations, 2019---

----Reglns.10.7.1 & 10.8.3---National Accountability Ordinance (XVIII of 1999), S.23---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Sanctioned plan--- Extension of building period---Petitioner sought direction to extend building period---Objection raised by Lahore Development Authority was that without impleading National Accountability Bureau (NAB), the petition was not maintainable---Validity---Extension in building period was to be granted by Lahore Development Authority and NAB had nothing to do with such issue---High Court spurned the objection raised by Lahore Development Authority--- Constitutional petition was maintainable, in circumstances.

(b) Lahore Development Authority Building and Zoning Regulations, 2019---

---Reglns.10.7.1 & 10.8.3---National Accountability Ordinance (XVIII of 1999), S. 23--- Constitution of Pakistan, Art. 199---Constitutional petition---Sanctioned plan---Extension of period---Pendency of inquiry / investigation--- Petitioner sought direction to extend building period--- Contention of Lahore Development Authority was that due to pendency of inquiry / investigation with National Accountability Bureau (NAB) building period was not extended---Validity---Any action of a government functionary during pendency of inquiry / investigation by NAB in a matter entailed series consequences but the same could not be used until and unless NAB had restrained the authority concerned to do a particular act---Mere extension in building period did not permit petitioner to further alienate that property and if request of petitioner was not exceeded to, he would be burdened with penalty for delay in applying for extension in building period---Inaction on the part of Lahore Development Authority to extend building period of petitioner was illegal and unlawful--- High court directed the Authority to entertain request of petitioner for extension in building period and proceed therewith---Constitutional petition was allowed, in circumstances.

Muhammad Zain Qazi for Petitioner.

Sahibzada Muzaffar Ali for Respondent.

2023 C L C 1516

[Lahore]

Before Shams Mehmood Mirza, J

SUI NORTHERN OFFICERS COOPERATIVE HOUSING SOCIETY through Secretary General ----Petitioner

Versus

SHABBIR AHMAD and 4 others----Respondents

Writ Petition No.16758 of 2021, decided on 21st June, 2021.

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

----S.54---Arbitration---Expression "touching the business of a society" as contained in S.54 Co-operative Societies Act, 1925---Scope---Matters between society and employee---Scope---Petitioner Co-operative Society called in question the order passed by Registrar of Co-operative Societies whereby order of the petitioner terminating the services of Incharge Parks and Horticulture Authority was set aside and also challenged the jurisdiction of the Registrar to entertain the application for arbitration under S.54 of the Co-operative Societies Act, 1925---Validity---Expression "touching the business of a society" as contained in S.54 of the Co-operative Societies Act, 1925, did not cover the service matters between the employee and the cooperative society---Petition under S.54 of the Co-operative Societies Act, 1925, filed by employee before the Registrar of Co-operative Societies was not maintainable---Constitutional petition was allowed and all the orders passed in the proceedings initiated pursuant to the said petition were declared to be nullity in the eyes of law and were accordingly set aside.

Ch. Nazir Ahmad v. Agha Ahmed Raza Khan and others 1971 SCMR 305 foll.

Umer Sharif for Petitioner.

2023 C L C 1535

[Lahore]

Before Abid Hussain Chattha, J

PUBLIC INTEREST LAW ASSOCIATION OF PAKISTAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and 8 others----Respondents

Writ Petitions Nos.20906, 20457, 27115, 28283 and 23256 of 2023, decided on 21st June, 2023.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court---Pre-conditions---Scope---In order to invoke jurisdiction of High Court under Art. 199(1)(a) and (c) of the Constitution, petitioners are required to cross caveats of 'aggrieved person' or 'locus standi' and absence of 'adequate remedy' provided by law.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Locus standi, rule of---Applicability---Such rule is discretionary and no hard and fast rule can be laid down with respect to determination of locus standi of a person to knock the door of High Court under Art.199 of the Constitution---Discretion is exercised on the basis of sound and established judicial principles depending on facts and circumstances of each case in the light of nature, substance and gravity of the issues raised vis-à-vis their implications upon the rights and interests of the people.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---State property, protection of---Right of citizens---Scope and mandate of Art. 199 of the Constitution is discretionary, extraordinary and equitable---Rights accruing to citizens of the State may be in the nature of their personal or collective rights---Initiative may come from a concerned citizen regarding enforcement of a collective right of society, which of course, is also his own personal right being a member and part of the society.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Aggrieved person---Scope---If there is any abuse of trust or violation of law, it confers a right upon any member of the general public as an 'aggrieved person' to invoke Constitutional jurisdiction of High Court, subject to fulfilling other requirements under Art. 199 of the Constitution.

(e) Constitution of Pakistan---

----Arts. 29 & 199---Constitutional petition---Policy making---Judicial review---Scope---Policy making is an executive function and is not amenable to judicial review by High Courts unless the policy falls in any of the exceptions to the general rule---Exceptions include if a policy is shown to be in violation of fundamental rights, inconsistent to Constitutional and statutory provisions, or demonstrably arbitrary, capricious, mala fide, discriminatory or unreasonable or opposed to public policy.

Human Rights Case No. 11827-S of 2018: In the matter regarding Selling of National Assets including PIA at Throwaway Price 2019 SCMR 1952; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 PLC (C.S.) 1142; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and Mrs. Ifrah Murtaza and another v. Government of Pakistan and others PLD 2019 Lah. 565 rel.

(f) Constitution of Pakistan---

----Arts. 224 & 224-A---Caretaker government---Object, purpose and scope---Caretaker government is generally established during the time of uncertainty when either elected or legitimate or stable government, for any reason, is not in place---By its inherent nature, caretaker government is temporary in character to be replaced with elected or legitimate or stable government---There are limitations and restrictions with respect to any caretaker government in terms of its powers, functions and duties---Normal rule is that a caretaker government limits itself to routine business of the State and in principle, must refrain from making policy decisions---Caretaker government under Arts. 224 and 224-A of the Constitution is meant only for an interregnum between elections in accordance with the Constitution primarily as neutral set-up to political stakeholders taking part in elections and to provide for continuity to business of State.

Dictionary of Politics and Government (Third Addition), P.H. Collin (P-33) and A Dictionary of Australian Politics, Robert Corcoran and Jackie Dickenson (P-29) rel.

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

----S.10(2)---Term 'no person shall be deemed as a tenant'---Scope---Intentional use of word 'tenant' in S.10(2) of Colonization of Government Lands (Punjab) Act, 1912, is clarified by the Legislature by using the term 'no person shall be deemed as a tenant' employed in S.10(4) of Colonization of Government Lands (Punjab) Act, 1912, leaving no doubt that land can only be granted under S.10(2) of Colonization of Government Lands (Punjab) Act, 1912, to 'tenants' only and 'person' in terms of Ss. 10(3) & 10(4) of Colonization of Government Lands (Punjab) Act, 1912, is no one else but a 'tenant'.

Abdur Rehman v. Secretary to the Government of West Pakistan Colony Department and others 1980 CLC 1042 and Menghay Khan and others v. Karam Din and others PLD 1978 Rev. 66 rel.

(h) Interpretation of statutes---

----Charging or controlling section---Scope---Word or subject used in charging or controlling section controls the word or subject used in procedural or subservient provisions.

(i) Partnership Act (IX of 1932)---

----S.4---Partnership and joint venture---Distinction---Partnership and joint ventureare distinguished from each other in terms that former is an arrangement based on profit and loss sharing between two or more persons within one firm, whereas, a joint venture is a combination of two or more natural or juristic persons, as such, distinct legal entities that seek development of single enterprise or project for profit, sharing the risks associated with its development---As a corporate model, it is generally used between two or more entities when they wish to combine such resources which they may not possess separately but deem it necessary for the success of the project.

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

----S. 10---Elections Act (XXXIII of 2017), S. 230---Constitution of Pakistan, Arts. 29, 199, 224, 224A, 245 & Third Schedule---Constitutional petition---Allotment of land---Partnership and joint venture with Government---Scope---Caretaker government, powers and duties of---Petitioners were citizens of Pakistan who were aggrieved of transfer of more than one million acres of State land by Caretaker Government to Pakistan Army on partnership and joint venture basis for the purposes of Corporate Agriculture Farming---Petitioners assailed notification issued by Government of Punjab transferring the land in favour of Pakistan Army---Validity---Joint venture on profit-sharing basis was beyond the scope of S.10(2) of Colonization of Government Lands (Punjab) Act, 1912 as its mandate was limited to creation of tenancy---In order to forcibly bring transaction in question within the scope of controlling provision of S.10(2) of Colonization of Government Lands (Punjab) Act, 1912, several provisions were incorporated in notification in question---Statement of Conditions executed between the two parties could not travel beyond the scope of controlling provision and Colonization of Government Lands (Punjab) Act, 1912 as a whole---Definition of 'lessee' was inserted in Statement of Conditions to include any person to whom State land was leased---This was done to assign a nomenclature of 'lessee' to Pakistan Army as a joint venture partner to circumvent limited mandate of S.10(2) of Colonization of Government Lands (Punjab) Act, 1912---Lease through single source was regarded a 'lease' under the Statement of Conditions yet it was subjected to a profit-sharing formula in contrast to a lease through open auction which was based on a rental model---Incorporation of two separate models in Statement of Conditions itself testified that provisions of Notification in question travelled beyond the scope of S.10 of Colonization of Government Lands (Punjab) Act, 1912 as the parent Statute---Such arrangement was ultra vires and unlawful---Venture of Corporate Agriculture Farming by Pakistan Army was not approved by Federal Government as there was no approval of Federal Cabinet---There was also no approval of Chief of Army Staff authorizing to undertake Corporate Agriculture Farming initiative---Even if there was any such approval, the same was without approval of Federal Government and was unconstitutional and unlawful---Policy of Corporate Agriculture Farming was inherently in violation of the guiding principles---State land comprising more than one million acres was reserved for one particular entity, thereby, concentrating holding in one hand, whereas, it was possible and equitable to frame a policy that could call for inclusion of maximum number of persons to ensure that they would earn their livelihood by taking State land on lease---Through policy in question, the cultivators of State land would become employees instead of being direct lessees which would reduce their earnings and means of livelihood---Objective of Corporate Agriculture Farming initiative could be well achieved by fixing a ceiling and making a transparent competitive policy so that State land could be divested as lease to maximum beneficiaries who could get benefit from transfer of technology and collaborate with foreign entities willing to invest in the sector---This was precisely the model which was being considered by previous Elected Government---Equally important policy consideration was that State property was to be disposed of in a manner that could fetch maximum return to the State because the property belonged to the nation as a whole and not to a few beneficiaries of a particular scheme---Superior Courts had repeatedly emphasized competitive, published, open and transparent processes to fetch maximum price---Profit-sharing model envisaged by Caretaker Cabinet with inherent risk of loss was against such dictates---Policy in question did not adhere to the guiding Principles of Policy enshrined in the Constitution---Caretaker Government lacked Constitutional and legal mandate to take any decision regarding Corporate Agriculture Farming initiative and policy in any manner whatsoever, in terms of S.230 of Election Act, 2017---Future elected government could resume Corporative Agriculture Farming initiative after the stage of its conditional approval by previous Elected Cabinet and would proceed in accordance with law---Armed Forces including Pakistan Army and / or its subordinate or attached Departments / offices lacked Constitutional and legal mandate to indulge and participate in Corporate Agriculture Farming initiative and policy in terms of Art.245 of the Constitution---Transaction in question consisting of the decisions taken and approval accorded to Statement of Conditions in caretaker Ministerial Committee's Meetings, the Notification issued under S.10 of Colonization of Government Lands (Punjab) Act 1912, Joint Venture Agreement and all subsequent developments including sanction or transfer of State land in favour of Pakistan Army were unlawful and of no legal effect and were accordingly set aside---High Court directed that all State land shall stand reverted to Government of Punjab, the Departments and persons as per its previous status; that Board of Revenue shall ensure compliance by amending revenue record, if required, and submit compliance report to the Deputy Registrar (Judicial) of High Court; that office shall transmit certified copy of present Judgment to Federal Government through Secretary Cabinet Division; Secretary, Ministry of Defence; the Chairman, Joint Chiefs of Staff Committee; the COAS; the Chief of the Naval Staff; and the Chief of the Air Staff---High Court expected from Federation of Pakistan in concert with the afore-mentioned officers to evaluate all activities and projects of Armed Forces and if required, to take appropriate and necessary remedial steps to ensure that those were in conformity with the Constitutional and legal mandate of the Armed Forces---High Court also directed to take further necessary steps to sensitize each member of Armed Forces regarding the Constitutional and legal mandate of Armed Forces in the light of prescribed Oath in the Constitution and consequences arising from possible violations thereof, under the Constitution and law---Constitutional petition was allowed accordingly.

Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others PLD 2010 Lah. 605; Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510; Ch. Munir Ahmad v. Government of Punjab through Chief Secretary, Punjab Lahore and others PLD 2022 Lah. 384; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Government of Balochistan through Secretary Services and General Administration Department and others v. Abdul Rauf and 6 others 2021 PLC (C.S.) 519; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Sindh High Court Bar Association through its Secretary v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1; Prof. Zahid Baig Mirza v. Capital Development Authority through Chairman and others PLD 2022 Isl. 398; Mrs. Zeenat Salim v. Pakistan Naval Farms and others PLD 2021 Isl. 138; Cutting of Trees for Canal Widening Project, Lahore: In the matter of Suo Motu Case No. 25 of 2009 (2011 SCMR 1743); Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited and others 2005 CLC 424; Muhammad Tariq Abbasi and others v. Defence Housing Authority and others 2007 CLC 1358; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others 2014 SCMR 1611; Suo Motu Case No. 13 of 2009: In the matter of Action on press clipping from the Daily "Patriot, Islamabad dated 04.07.2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11, Islamabad) PLD 2011 SC 619; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another 2022 SCMR 201; Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83; 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; Ashok Kumar Pandey v. The State of West Bengal AIR 2004 SC 280; Ministry of Information Technology and Telecommunications, Islamabad and another v. C.M. PAK (Pvt.) Ltd., Islamabad and another PLD 2020 SC 551; Miss Mahnum Hussain and others v. British Council Pakistan and others 2021 CLC 1583; Shoaib Asghar Gujjar v. Commissioner Sargodha Division and others 2023 PLC (C.S.) 415; 7C'S Corporate Services v. Oil and Gas Development Company Limited and others PLD 2017 Isl. 115; Muhammad Shafique Khan Sawati v. Federation of Pakistan through Secretary Ministry of Water and Power, Islamabad and others 2015 SCMR 851; Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Muntizma Committee, Al-Mustafa Colony (Regd.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others PLD 1992 Kar. 54; S.P. Gupta and others v. President of India and others AIR 1982 (SC) 149; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Balochistan Medical Association through President v. Government of Balochistan through Secretary Health and others 2017 CLC 1195; Sheikh Ahsan-ud-Din and 2 others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2018 Isl. 182; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Bank of Punjab through Group Head of its Special Projects v. Accountability Court No.1, Lahore and 2 others PLD 2014 Lah. 92; M. Ghulam Nabi Awan, Advocate v. Government of Pakistan and 3 others 2003 MLD 90; Peshawar University Teacher's Association (PUTA) through General Secretary and 3 others v. Government of Khyber Pakhtunkhwa through Chief Secretary and 4 others 2015 CLC 265; Aftab Ali v. The State and 2 others PLD 1978 Kar. 807; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Regarding enormous increase in the price of Flour: In the matter of Constitutional Petition No. 52 of 2013 2014 SCMR 329; Nestle Pakistan v. Director PESSI and others PLD 2019 Lah. 515; Hafiz Awais Zafar v. Judge Family Court, Lahore and 2 others PLD 2022 Lah. 756; JS Bank Limited, Karachi and others v. Province of Punjab through Secretary Food, Lahore and others 2021 SCMR 1617; Dr. Tariq Iqbal and 8 others v. Government of Khyber Pakhtunkhwa through Secretary Administration Peshawar and others 2019 SCMR 859; Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; Messrs Sui Southern Gas Company Limited through Attorney v. Oil and Gas Regulatory Authority through Chairperson and 2 others PLD 2021 Isl. 378; Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others PLD 1998 Lah. 90; Seaford Court Estates, Ltd. v. Asher 1949 All E.L.R. 155 (Vol.2); Winchester Court Ltd. v. Miller 1944 All E.L.R. Annotated 106 (Vol.2); Tirath Singh v. Bachittar Singh and others AIR 1955 (SC) 830; Commissioner of Income-Tax, Central Calcutta v. National Taj Traders AIR 1980 SC 485; Rai Sahib Ram Jawaya Kapur and others v. State of Punjab AIR 1955 (SC) 549 rel.

(k) Administration of justice---

----Practice and procedure---When a law requires a thing to be done in a particular manner, it should be done in that manner, or not done at all.

(l) Constitution of Pakistan---

----Preamble---State, concept of---Scope---State as a modern political construction emerged in early modern Europe and has been replicated in all other parts of the world---Most important and distinct aspect of the State that separates it from other forms of political associations is its abstract quality that it is an overarching and exclusive corporate entity in a defined territory on which it exercises internal and external sovereignty with respect to a permanent population by establishing a Government having the capacity to maintain internal order and enter into relations with other sovereign States---State consists, most broadly, upon the agreement of individuals on the means, whereby, resources are employed in the interest of people to achieve their will and disputes are settled in the form of laws---Such agreement is a social contract between the people backed by their will and sanction.

https://www.britannica.com/topic/state-sovereign-political-entity. For various aspects of statehood, also see, International Law, 4th Edition by Malcolm N. Shaw. rel.

(m) Constitution of Pakistan---

----Arts.90, 91, 243 & 245---Armed Forces, institution of---Role, command and control---Scope---Institution of Armed Forces was created by the Constitution itself under the control and command of Federal Government---Realizing the importance of the Armed Forces with respect to its foremost duty regarding protection of citizens against external aggression or internal disturbances, the supreme command was vested in the institution of the President who is the symbol of unity of the State, though the executive authority of Federation of Pakistan is exercised through Prime Minister and the Federal Cabinet in terms of Arts. 90 & 91 of the Constitution---Armed Forces are always subject to the Constitution and law and directions of Federal Government.

(n) Pakistan Army Act (XXXIX of 1952)---

----Preamble---Constitution of Pakistan, Art. 245---Functions of Armed Forces---Scope---For the effective operation and functioning of Pakistan Army, Pakistan Army Act, 1952 has been promulgated to run the institution---There is no provision therein which allows Pakistan Army to undertake any function beyond the prescribed Constitutional mandate in Art. 245 of the Constitution---Members of Armed Forces as a principle should not be assigned any permanent civilian role which allows their interaction with civilian population or with civil administration of the State to avoid disputes and differences which are inherent in any civilian disposition so that each member of the Armed Forces can function beyond political divide and perform his duties in a neutral and non-partisan manner---Such is the importance of this rule that Art. 245(3) of the Constitution even ousts jurisdiction of High Court under Art. 199 of the Constitution in relation to any area in which Armed Forces of Pakistan, for the time being, are acting in aid of civil power in pursuance of Art. 245 of the Constitution---Institution of Armed Forces of Pakistan as an institution of the State is to be kept in segregation or oblivion to all other civil institutions of the State so that it can focus upon its primary responsibility of defending Pakistan and protecting its people without being involved in any kind of political, social or economic divide which may erode its professional capability, neutrality, prestige and pride.

(o) Constitution of Pakistan---

----Art. 199---Constitutional petition---Judicial review---Scope---Real purpose of Judicial review by High Courts is not limited to examining a transaction but it affords an opportunity to every institution or functionary whose acts and actions are under scrutiny to redress its transgressions through effective steps and reforms to ensure that such violations are prevented in future leading to an illuminated way forward in conformity with the Constitution and law.

Ahmad Rafay Alam, Fahad Malik, Zohaib Babar, Muhammad Asad Manzoor Butt and Afzaal Hussain Hashmi for Petitioner (in connected W. P. No. 27115 / 2023).

Mian Khadim Hussain and Anwar-ul-Haq for Petitioner (in connected W. P. No. 20457 / 2023).

Shahid Shahood Randhawa-Petitioner in person (in connected W. P. No. 23256 / 2023).

Malik Yasir Abbas Khokhar for Petitioner (in connected W. P. No. 28283 / 2023).

Mirza Nasar Ahmad, Additional Attorney General for Pakistan.

Ali Jaffer Khan, Assistant Attorney General for Pakistan.

Khawaja Aurangzeb Alamgir, Assistant Attorney General for Pakistan.

Muhammad Osman Khan, Assistant Advocate General assisted by Sikandar Nisar Saroya, Assistant Advocate General, Javed Iqbal, Law Officer, Zafar Iqbal, Dy. Director, Hafiz Muhammad Ijaz, Section Officer (Extension), Agriculture Department; Farrukh Tufail, D.S. Colonies, Qamar Abbas, Consultant, Colonies Department; Abid Hussain Bhatti, Senior Law Officer, Anwaar-ul-Haq, Conservator of Forests (RM), Nadeem Ashraf, Divisional Forest Officer and Muhammad Javed Gill, Chief Conservator of Forest (CZ), Forestry, Wildlife and Fisheries Department; Dr. Syed Nadeem Badar, D.G. (Planning); Dr. Muhammad Asim, AS (Planning), Muhammad Badar, Departmental Representative, office of Director General Planning; Hassan Ashfaq and Sehar Ch., Law Officers, Irrigation Department.

2023 C L C 1673

[Lahore]

Before Abid Aziz Sheikh, J

LIAQAT ALI----Petitioner

Versus

CHIEF OFFICER, MUNICIPAL COMMITTEE, GOJRA and 2 others---Respondent

Writ Petition No.70550 of 2021, heard on 19th October, 2022.

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

----Ss.5 & 21 (3)(b)---Muslim Family Laws Ordinance (VIII of 1961), S.7(3)---Constitution of Pakistan, Arts. 199 & 230---Constitutional petition---Khula---Effectiveness of divorce---Issuance of certificate---Council of Islamic Ideology, role of---Petitioner's real brother since deceased was married to respondent, which relationship ended in divorce on the basis of Khula---Petitioner sought issuance of Divorce Effectiveness Certificate but authorities referred the matter to Council of Islamic Ideology---Contention of respondent was that she had reconciled with her husband during his life time therefore, decree of divorce was not effective on her rights---Validity---Decree for dissolution of marriage did not become ineffective merely because copy to Chairman was not sent by Court within prescribed period---Effectiveness would be reckoned from the date of due service and efflux of requisite period---It was not shown that decree was sent by Court within 3 days, however, as copy of decree was received by Union Council on 27-8-2016, therefore, period of 90 days was to commence therefrom---Presence of word "revoke" in S. 7(3) of Muslim Family Laws Ordinance, 1961 and its conspicuous absence in S.21(3)(b) of Family Courts Act, 1964, left no manner of doubt that decree of Khula could only become ineffective if within 90 days a reconciliation had been affected between the spouses on the basis of mutual or bilateral arrangement---Unless there was mutuality, reconciliation had not been effected between the parties and decree did not become ineffective for the purpose of S.21(3)(b) of Family Courts Act, 1964---Composition, functions and procedure of Council of Islamic Ideology and its role in terms of Art.230 of the Constitution was of advisory nature---Primary object of Council of Islamic Ideology was to advise Parliament, Provincial Assembly, President or Governor to ensure conformity of laws with the Injunctions of Islam---Matter was between private individuals and it could not have been referred to Council of Islamic Ideology---High Court directed the authorities to issue Divorce Effectiveness Certificate and set aside order passed by the authorities---Constitutional petition was allowed accordingly.

Mst. Farida Parveen v. Qadeeruddin Ahmad Siddiqi PLD 1971 Kar. 118; Abdul Sattar v. Zahida Parveen 1991 MLD 403; Muhammad Ishaque v. Ch. Ahsan Ahmad and others PLD 1975 Lah. 1118; Muhammad Afzal Khan v. Chairman Arbitration Council and another 2018 CLC 1125; Mst. Gul Zameeran and others v. Mst. Aasia 2017 CLC 1431 and Almas Mubashar v. Mubashar Hanif PLD 2014 Lah. 494 rel.

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

----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.7---Talaq and Khula---Distinction---Divorce by way of Khula is equal to right of Talaq available to husband---Two divorces are fundamentally different---In case of Khula, divorce is not by wife rather Court acts as a substitute for husband and decree for dissolution of marriage virtually partakes character of pronouncement of divorce---To dissolve marriage by way of Khula although husband's consent is not needed yet wife has to satisfy Court in order to get decree for dissolution of marriage---Husband has right to revoke divorce whereas wife has no authority to revoke decree for dissolution of marriage unilaterally---Revocation can only take place through reconciliation with mutual consent of the parties---Wife has right to remarry her husband again after solemnizing Nikkah without the intervention of third person, as pronouncement of Khula by Court would amount to a single divorce.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Manzoor v. Allah Wasaya PLD 1973 Baghdad-ul-Jadid 36; Mst. Huma Hafeez v. Shaukat Javaid and others 1993 CLC 855; Major Qamar Zaman Qadir v. Judge Family Court, Jehlum and others PLD 2013 Lah. 88; Danish v. Mst. Fozia Danish and another PLD 2013 Sindh 209; Muhammad Ayub Khan v. Mst. Shehla Rasheed and another PLD 2010 Kar. 131; Fazli-E-Subhan v. Mst. Sabereen and 3 others PLD 2003 Pesh. 169; Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447 and Mst. Nawab Bibi and 14 others v. Mst. Anwar Bibi and 6 others PLD 1970 Lah. 1 rel.

(c) Islamic Law---

----Khula---Form of Talaq---Re-union---Principle---Such kind of dissolution of marriage is known as "Talaq-ul-Baayen", and in such like case, intervening marriage (Halala) is not a condition precedent for re-union of spouses, however, only condition is to perform fresh nikah.

Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 Federal Shariat Court 43 and Attiq Ahmed Khan v. Noor-ul-Saba and another 2011 CLC 1211 rel.

Abid Saqi and Mudassar Farooq for Petitioner.

Akhtar Abbas Rizvi for Respondent No.3.

Rana Zain Tahir, A.A.G. along with Sh. Muhammad Javed, Advocate/Legal Advisor of Municipal Committee, Gojra, Ishtiaque Ahmad Gondal, Chief Officer, Municipal Committee, Gojra and Muhammad Hafeez ur Rehman, Legal Assistant, Municipal Committee, Gojra for Respondents Nos.1 and 2.

Khawaja Isaam Bin Haris as Amicus Curiae.

2023 C L C 1713

[Lahore]

Before Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ

MOHSIN RASOOL----Appellant

Versus

FEDERATION OF PAKISTAN through Federal Government, Cabinet Secretariat, Establishment Division, Islamabad and 2 others----Respondents

I.C.A. 68367 of 2022 in Writ Petition No.66264 of 2022, decided on 1st November, 2022.

Constitution of Pakistan---

----Art. 199---Writ of mandamus and quo-warranto---Locus standi---Aggrieved person---Scope---Appellant assailed action of Provincial Government defying notification of posting of respondent issued by Federal Government---Judge in Chambers of High Court declined to interfere in the matter as petitioner did not have any locus standi to invoke Constitutional jurisdiction of High Court under Art.199 of the Constitution---Plea raised by appellant was that petition filed by him was in the nature of quo warranto---Validity---Petition of appellant was not in the nature of quo warranto, rather he was seeking a direction in the nature of mandamus against Provincial Government to relieve respondent official to join his place of posting with Establishment Division---For such purpose petitioner was required to show that he was an aggrieved party in the matter, which appellant failed to demonstrate---Judge in Chambers of High Court was justified to hold that appellant did not have any locus standi to file petition resulting in dismissal of his petition---Division Bench of High Court declined to interfere in judgment passed by Judge in Chambers of High Court, which order did not suffer from any illegality or jurisdictional defect---Intra Court Appeal was dismissed, in circumstances.

Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534; Bank of Punjab through Group Head of its Special Projects v. Accountability Court No.1, Lahore and 2 others PLD 2014 Lah. 92; Dr. Farzana Bari v. Ministry of Law, Justice and Human Rights through Secretary and 3 others PLD 2018 Isl. 127; Peshawar University Teachers' Association (PUTA) through General Secretary and 3 others v. Government of Khyber Pakhtunkhwa through Chief Secretary and 4 others 2015 CLC 265; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 and Sharafuddin v. The Executive Engineer and 6 others 2017 CLC Note 227 rel.

Shehzada Mazhar, Jawwad Khan Lodhi and Syed Samir Sohail for Appellant.

2023 C L C 1725

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ANWAR JAWED----Petitioner

Versus

GHULAM MUHAMMAD and others----Respondents

Civil Revision No.58436 of 2022, decided on 28th September, 2022.

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

----S.115 & O.VII, R.11---Revisional jurisdiction---Scope---Rejection of plaint---During the course of exercise of revisional jurisdiction the Court could pass any order needed in the circumstances of the case including rejection of plaint, if the same was required on the touchstone of the provision of O.VII, R.11, C.P.C.---Where the suit was apparently found to be time barred, the Court was bound to reject the plaint in exercise of visitorial/corrective powers under revisional jurisdiction---Revision was dismissed and the plaint was rejected under O.VII, R.11, C.P.C.

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

----O.XXIII, R.2---Limitation Act (IX of 1908), S.9---Limitation law not affected by first suit---Continuous running of time---Scope---Mere withdrawal of the previous suit to the extent of institution of present one even with permission of the Court neither provided fresh cause of action nor extended point of limitation---In case of withdrawal of first suit, plaintiff(s) was/were bound by law of limitation to proceed with his/their subsequent suit, as if the first one was never filed---Time once starts running, no subsequent event can stop the same.

Muhammad Saeed Bacha and another v. Late Badshah Amir and others 2011 SCMR 345 and Syed Athar Hussain Shah v. Haji Muhammad Riaz and another 2022 SCMR 778 ref.

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

----S.3---Dismissal of suit, etc instituted, etc. after period of the limitation---Scope---Court is to scrutinize the plaint, application and appeal on the point of limitation regardless of the fact that said issue had been agitated by either party or not---Law of limitation was not merely a technicality, rather said statute furnishes certainty/regularity to the human affairs, matters and dealings---Law helps the vigilant and not indolent, whereas after expiry of prescribed limitation, a vested right always accrues in favour of the rival party---Where the proceedings are launched beyond the scope of limitation Court cannot assume jurisdiction---Law of limitation being statute of repose was designed to quit title as well as to bar, stale water logged disputes, which must be strictly complied with.

See Muhammad Nawaz and 3 others v. Mst. Saina Bibi and 3 others 1974 SCMR 223 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 ref.

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

----S.42---Limitation Act (IX of 1908), S.3 & Art.113---Discretion of Court as to declaration of status or right---Scope---Petitioner had sought decree for declaration of title on the basis of alleged agreement to sell dated 21.05.1984 from a non-title holder, which even did not create any right, title or interest in the property---Court could mold the alternate relief, but in the present case the petitioner possessed no cause of action to claim for specific performance of the purported agreement even beyond the scope of three years provided under Art.113 of the Limitation Act, 1908, as present suit was filed after more than thirty-eight years of its execution, which too was bound to fail on that score alone---Revision was dismissed.

Muhammad Yousaf v. Munawar Hussain and 5 others 2000 SCMR 204 ref.

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

----O.VII, R.11---Rejection of plaint---Scope---As soon as Court comes to the conclusion that suit is barred by law, the plaint is to be straightaway rejected to relieve the defendant(s) of vexatious litigation---Such power can be exercised at any stage and even by the Appellate or Revisional Court---Court is also empowered to reject the plaint suo motu without there being any application filed by rival party, when it comes to the conclusion that it does not disclose any cause of action or is barred by time/law.

Muhammad Shafi and 5 others v. Amanat Ali and 5 others

2005 MLD 559; wherein while relying upon series of judgments cited as Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; H.M. Saya and Co. Karachi v. Wazir Ali Industries Limited, Karachi and another PLD 1969 SC 65; Municipal Committee Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506; Muhammad Salim and others v. D.C.O and others 1994 MLD 295 and Muhammad Saleem and another v. Mst. Zarina Begum and 4 others 1996 MLD 1959 ref.

Ms. Najma Parveen for Petitioner.

2023 C L C 1750

[Lahore]

Before Muzamil Akhtar Shabir, J

MUHAMMAD RASHID KHAN----Petitioner

Versus

MUHAMMAD WAJAHAT AMEER KHAN and others----Respondents

Civil Revision No.211857 of 2018, decided on 30th May, 2022.

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

----S.12(2)---Family Court Act (XXXV of 1964), S.5, Sched.---Application under S.12(2) of the C.P.C.---Maintainability---Petitioner claimed to be owner in possession of the property in question by virtue of registered gift deed executed in petitioner favour by his mother/respondent and mutation of the same was also sanctioned by reveune authorities---Petitioner claimed that he had constructed "Khothi" on the property prior to its transfer when it was joint khata, however, after execution of gift deed whole ownership of property vested with petitioner and petitioner was residing there as absolute owner with his family members---Property in question was not the subject matter of the suit for maintenance allowance decreed in favour of respondents and was transferred in favour of petitioner's mother/respondent prior to announcement of judgment/decree of the suit for the recovery of maintenance allowance, hence, executing court rightly dismissed the application for setting aside the transfer, which order had been set aside as per claim of petitioner without appreciating real controversy in issue by not impleading him as party through the impugned order against which application under S.12(2) of the C.P.C had been dismissed without appreciating that petitioner had not been impleaded as party----Held, that grounds raised by petitioner were not sufficient for setting aside the impugned order through application under S.12(2) of the C.P.C because for that purpose the applicant in addition to above mentioned grounds including ground of not being impleaded as a party was also required to establish that petitioner was not impleaded fraudulently, by misrepresentation or Court lacked jurisdiction in the matter as provided under S. 12(2) of the C.P.C which had not been done in the present case---No fraud or misrepresentation on behalf of the respondent had been pointed out from the record of case in hand, therefore, there was no reason for High Court to exercise its jurisdiction under S.12(2) of the C.P.C to set aside the impugned orders and the application merited to be dismissed and had rightly been dismissed by Appellant Court---Petitioner had failed to point out any illegality or jurisdictional defect in the orders passed by the Appellant Court---Civil revision being devoid of merit was dismissed.

Subedar Sardar Khan through Legal Heirs and another v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591 rel.

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

----S.5, Sched.---Execution of decree for maintenance allowance---Transfer of Property in husband's name---Cancellation of---Sham Transaction---Meaning---Transaction whereby property was sold or transferred by the husband judgment debtor to his close relatives in order to avoid payment of maintenance allowance against decree passed in favour of his wife and children, was a sham transaction and the said transaction and any superstructure built on the same could not be sustained---Where basic transaction was declared as sham superstructure built on the same was also not sustainable and should collapse.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128 rel.

Tazheer Shahzad Tarar for Petitioner.

2023 C L C 1777

[Lahore]

Before Muhammad Raza Qureshi, J

RIAZ AHMAD----Petitioner

Versus

NASIR AHMAD----Respondent

Civil Revision No.2597 of 2014, heard on 23rd June, 2022.

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

----Arts.117 & 129 (g)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Benami transaction---Ingredients---Burden of proof---Motive---Scope---Plaintiff/petitioner (government school teacher) sought declaration that his brother (defendant/respondent) be declared as 'benamidar' contending that he was the actual purchaser/owner of suit-property---Motive expressed by the plaintiff/petitioner was that he, being a government servant, could not hold property in his name and also that he had litigation with his wife---Validity---In order to ascertain if the transaction was 'benami' or otherwise, there were important ingredients which needed proof or disproof---Said ingredients were motive; source of money with which the property was purchased; the possession of the property ; the conduct of the parties as to how the property was dealt with; and possession of the original title document---Initial burden of proof was on the party who alleged that ostensible owner was a 'benamidar' for him---Burden of proof could shift from one party to the other during the course of trial of suit but that burden could only be shifted once the initial burden was discharged by the plaintiff---No evidence was on record that consideration paid emanated from any monetary source of the petitioner---Petitioner had only produced certified copies of the title in favour of the respondent, which could hardly be considered to the test as from whose custody the original documents came in evidence---None of the friends of the petitioner/plaintiff appeared to support his version---Petitioner had also failed to satisfy as to why the possession was handed over to the respondent which throughout remained with him---Petitioner/plaintiff was bound to seek strength from his own case---School teacher was not such a sensitive post that the petitioner could not purchase the property in his own name---Having a dispute with his wife would give no justification or reason to the petitioner to purchase the property in the name of his (plaintiff') brother as 'benamidar', therefore, the said story seemed to be concocted and not reliable---Even no documentary proof was produced to justify the motive---No illegality or infirmity was found in the both the decree and judgment passed by the Courts below---Civil revision was dismissed, in circumstances.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Muhammad Sarwar v. Mumtaz Bibi 2020 SCMR 276; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Mushtaq ul Aarfin v. Mumtaz Muhammad 2022 SCMR 55; Muhammad Sajjad Hussain v. Muhammad Anwaar Hussain 1991 SCMR 703 and Malik Muhammad Zubair and 02 others v. Malik Muhammad Anwar and 02 others PLD 2004 Lah. 515 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope--Interference in revisional jurisdiction could be made only in the cases in which the order or judgment rendered by a subordinate Courts was found to be perverse or suffered from a jurisdictional error or the defect of mis-reading or non-reading of evidence and the conclusion drawn was contrary to law.

Hadayat Ullah v. Murad Ali PLD 1972 SC 69; Noor Muhammad and others v. Mst.Azmat-e-Bibi 2012 SCMR 1373; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Sardar Muhammad Kamal-ud-Din Khan v. Syed Munir Syed and others 2022 SCMR 806 ref.

Sardar M. Asim Javid for Petitioner.

Sh. Usman Karim ud Din for Respondent.

2023 C L C 1789

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan, J

ABDUL HUSSAIN (Deceased) through L.Rs. and others----Petitioners

Versus

AFSAR JAN (Deceased) through L.Rs. and others----Respondents

Civil Revision No.115 of 2007, heard on 15th February, 2022.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Termination of limited estate under Customary Law---Scope---Plaintiffs filed a suit for declaration with the assertion that widow of last male owner of the suit property being limited owner could not have alienated suit property in excess to her sharai share (1/8) and remaining share i.e. 7/8 of the suit property should be reverted to the plaintiffs being collaterals and to the only daughter of the last male owner of suit property by virtue of S. 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Trial Court decreed the suit whereas Appellate Court dismissed the same---Validity---Rights of the widow qua the suit property being limited owner had been terminated in the year 1963 by operation of law whereafter she was only owner of 1/8th share of the suit property under Sharai law being widow of deceased---Remaining property devolved upon the petitioners being collaterals and the only daughter of the deceased---Widow being not owner of whole suit property in the year 1978 was not competent to alienate it through registered sale and gift deeds---Mutations mentioned in the plaint were cancelled being void to the extent of the transactions excessive to her Sharai share (1/8)---Civil revision was allowed, judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss.3 & 5---Termination of limited estate under Customary Law---Devolution of property on the termination of life estate and certain wills---Limitation---Scope---Legal fiction has been created by the combined effect of Ss. 3 & 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Although the last male owner may have died long back in the past, yet he is deemed to have died on the date of enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and succession would be deemed to have opened to his estate on such date---It is recognized principle of Muslim Law that immediately upon the death of a Muslim proprietor, his estate devolves on his legal heirs irrespective of any mutation of inheritance---Rightful owner of the property cannot be deprived of his share unless precluded to claim the same due to conscious abandonment or relinquishment---Limitation cannot run against such a co-sharer in such an eventuality.

Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Muhammad Shamim through Legal Heirs v. Mst. Nisar Fatima through Legal Heirs and others 2010 SCMR 18 and Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869 ref.

Aziz Ahmad Sheikh for Petitioners.

Sheikh Zameer Hussain for Respondents.

Raja Mehfooz Ali Satti for Respondents Nos.14 and 15.

2023 C L C 1798

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

NATIONAL HIGHWAY AUTHORITY----Appellant

Versus

SENIOR CIVIL JUDGE, (REFEREE COURT), LODHRAN----Respondent

Regular First Appeal No.47 of 2012, heard on 21st June, 2022.

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

----Ss.3 (b) & 18(3)---Reference, filing of---Reference filed by the acquirer (National Highways Authority)---Maintainability---Record revealed that although the reference-in-question was addressed to the Land Acquisition Collector, but the same was directly filed before the Referee Court---Subsection (3) of the S.18 of the Land Acquisition Act, 1894 (' the Act 1894') was amended by Land Acquisition (6th Amendment) Ordinance (VI of 1992), whereby for the words "Provincial Government", the words "Federal Government", "Provincial Government" a "Company" or "Local Authority" had been substituted---Thus, under S. 18(3) of the Act 1894, the appellant (National Highway Authority) having been constituted by the Federal Government , could file a reference---Sections 18 and 3(b) of the Act 1894 conjunctively stipulated that any "interested person" other than Government, not accepting the award, by written application to the Collector could require that the matter be referred by the Collector for the determination of the Court, however, if the award was not acknowledged by the Government (Provincial or Federal), Company or Local Authority constituted under the Government, in such eventuality the Reference could be made directly , without the agency of the Land Acquisition Collector under subsection (3) of S.18 of the Act 1894.

Government of West Pakistan v. Land Acquisition Collector PLD 1979 Lah. 54 and The Addl. Chief Secretary v. Assistant Commissioner and 05 others 1993 MLD 635 ref.

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

----S. 18---Civil Procedure Code (V of 1908), O. VII, R.11---Reference, filing of---Limitation---Referee Court, powers of---Instead of the landowners, the acquirer (National Highways Authority) challenged the award by filing reference but after twelve years of passing the award---Respondents / landowners moved the Referee Court with an application under O. VII, R. 11 of the Civil Procedure Code, 1908 on the point of limitation---Referee Court dismissed the reference as barred by limitation---Contention of the appellant was that the Referee Court was not competent to determine the question of limitation---Validity---Reference was filed by the appellant (National Highway Authority), being a Authority constituted under the Federal Government, directly in the Court under the mandate of S.18(3) of the Land Acquisition Act, 1894, which provided a maximum period of six months to call into question an award---Referee Court was competent to look into question of limitation on the Reference filed by the appellant---Appellant brought the reference with a considerable delay of almost twelve (12) years---No plausible explanation was available on record to suggest that the appellant remained ignorant of the award for such a long period---No illegality or irregularity was noticed in impugned judgment and decree passed by the Referee/Trial Court dismissing the Reference filed by the appellant (National Highway Authority) as barred by time---Regular first appeal was dismissed, in circumstances.

Land Acquisition Collector and others v. Mst. Fareeena Shaukat and others 2005 MLD 1530 ref.

Nazar Muhammad Khan v. Collector NLR 1980 Revenue Lahore 36 distinguished.

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

----Ss.12(2) & 18---Reference, filing of---Situations where notice is served or not served upon interested persons---Limitation as per classification---Scope---Validity---Section 12(2) of the Land Acquisition Act, 1894 (' the Act 1894') stipulates issuance of notice upon persons interested; and S.18(2) of the Act 1894 thereof prescribes the limitation for making application for reference and also contemplates the situation where no notice at all has been served---Proviso (b) to S. 18 of the Act 1894 covers both situations, i.e. where a notice has been served and where no notice has been served---In fact, the Legislature while drafting the Act 1894 made a conscious effort to remove hindrance from a person who has not been given a notice by giving him an extra-ordinary period of six months for making application for reference---Under S.18 (2)(b) of the Act 1894 , the limitation begins to run as soon as the award is made---In case where a notice has been served, the limitation expires after six weeks of the date of service and in case where the notice has not been served, it comes to an end after six months---Words "shall first expire" as occurring in clause (b) of S.18 of the Act 1894 leaves no room for doubt that the period of six months is the utmost time within which an application for reference can be made by a person dissatisfied with the award---Section 18(3) of the Act 1894 stipulates limitation of six months for the Government---Thus, the Act 1894 has prescribed three different periods of limitation; six weeks limitation from the date of award if the applicant was present either personally or through recognized agent at the time when the award was made---In case the applicant was not present, either personally or through his agent, then a six weeks time from the date of the notice received under S. 12(2) of the Act 1894; or, if no notice was served then six months from the date of award.

Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Atta Muhammad v. Assistant Commissioner PLD 1961 BJ 69; Province of Punjab v. Sher Muhammad and another PLD 1983 Lah. 578; Muhammad Afzal and others v. Government of Sindh 1993 MLD 414; Port Qasim Authority through Secretary v. Executive District Officer (Revenue) Karachi and others 2017 YLR Note 14 and Abdul Malik and others v. Province of the Punjab and others 2019 MLD 39 ref.

Mian Muhammad Ashfaq Hassan for Appellant.

Muhammad Maalik Khan Langah for Respondents Nos.4 and 5.

2023 C L C 1811

[Lahore]

Before Faisal Zaman Khan, J

MUHAMMAD INAM BHATTI----Petitioner

Versus

Syed MUHAMMAD SIBTAIN----Respondent

Civil Revision No.52637 of 2020, heard on 4th October, 2022.

Civil Procedure Code (V of 1908)---

----S.151---Restoration of execution petition under inherent power of Court---Scope---Whether the executing Court is invested with the power to restore an execution petition, which was dismissed for non-prosecution---If there was no provision available for seeking restoration of the execution petition, the court is invested with inherent power under S.151, C.P.C for passing appropriate orders in order to meet the ends of justice---When an execution petition is dismissed for non-prosecution, the executing Court can restore the same in exercise of its inherent power vested in it under S.151, C.P.C.---Said provision is an enabling provision and caters for an ostensible impossible situation where no express provision of law is attracted and since there is no prohibition for exercising such jurisdiction of a court from passing an order so as to advance and meet the ends of justice---Executing court fell in error in not exercising the jurisdiction vested in it under S.151, C.P.C, qua restoration of the execution petition---Civil revision was allowed, as a sequel to which impugned orders were set aside.

Messrs United Bank Limited through attorneys and 2 others v. Messrs Plastic Pack (Pvt.) Limited 2012 CLC 229; Raja Bajrang Bahadur Singh v. Thakur Suraj Narain Singh and others AIR (32) 1943 Oudh 210; Radha Kissen Chamria and others v. Keshardeo Chamria AIR (33) 1946 Calcutta 488; North-West Frontier Province Government, Peshawar through Collector, Abbotabad and others v. Abdul Gahafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 ref.

Ghulam Haider Alvi for Petitioner.

Respondent: ex parte.

2023 C L C 1826

[Lahore (Rawalpindi Bench)]

Before Sohail Nasir, J

USMAN GHANI and 2 others----Petitioners

Versus

RAWALPINDI METROPOLITIAN through Chief Officer and 7 others----Respondents

Writ Petition No.2046 of 2022, decided on 23rd July, 2022.

Punjab Water Act (XXI of 2019)---

----S.3---Pakistan Electronic Media Regulatory Authority Rules, 2009, R.9 (2) & Schedule-C, Srl. No.9---Constitution of Pakistan, Art. 199---Constitutional petition---Water resources---Supply of water---Public awareness---Petitioners were aggrieved of failure of authorities to meet shortage of water supply in city and illegal fixing of hydrants by respondents---Held, that sources of water supply to Metropolitan Rawalpindi (excluding the Cantonment) were from Rawal Dam, Khanpur Dam and Tube-Wells controlled, regulated and managed by Water and Sanitation Authority (WASA)---Against demand of 68 million gallons per day (MGD) supply was of 51 MGD with a shortage of 17 MGD---WASA had no solution to cover the shortfall between demand and supply---Private hydrants business had a mushroom growth and there was no effective mechanism for restraining such illegal activities---There was no proper legislation to bring such acts under any legal framework, consequently making the mafia stronger and influential day by day---Such issue was also triggering underground water level to go further down and residents of Rawalpindi Metropolitan were facing serious challenges for getting water, which they were compelled to purchase from private hydrants on exorbitant prices---High Court directed Deputy Commissioner and M.D. WASA, to provide to Chairman/D.G. PEMRA, contents/explainer videos of prescribed duration for education of public pertaining to ongoing water crises and duties of citizens to meet the challenge---High Court directed Chairman/ D.G. PEMRA that on receipt of material, the broadcasters would be asked to broadcast the contents in terms of condition No.9 of 'General Terms and Conditions of License' as set out in Schedule-C of Pakistan Electronic Media Regulatory Authority Rules, 2009---High Court directed Chairman/D.G. PEMRA to require broadcasters to play their roles for awareness programmes by involving experts at their ends---High Court directed Deputy Commissioner and M.D. WASA to launch a campaign to educate public by quoting verses of the Holy Qur'an and Hadith on importance of water by displaying on billboards, streamers and banners in Mosques, all educational institutions (Schools, Colleges and Universities), and Government Offices in addition to conspicuous places of the city---High Court further directed Deputy Commissioner to also ask representatives of Chamber of Commerce, Rawalpindi, to use their forum for the campaign by inviting trade unions and other sectors of the society---High Court also directed District Education Officer to ensure that all educational institutions of the city (Government and private) would carry out effective awareness programmes through short term lectures on alternate days in a week by inviting volunteers relevant to the subject as well as by hosting debate competitions---High Court directed District Education Officer to require all educational institutions to hold a competition, asking students to produce short duration explainer videos on the issue and for further encouragement the best videos would be awarded---High Court was mindful of the great impact that such activities could have, therefore, directed District Education Officer to ensure such methodology became a norm---High Court highlighted the significance of digital outputs and further directed District Education Officer and Deputy Commissioner to launch a YouTube Channel solely dedicated to the issue on which all videos irrespective of rewards produced by students would be uploaded---High Court also directed that targeted content would be posted, displayed and uploaded by using other platforms, such as Facebook, Instagram and Twitter---Constitutional petition was disposed of accordingly.

Chapter 29 Verse 30 of Surah Al-Mulk and Barrister Zafarullah Khan and others v. Federation of Pakistan and others 2018 SCMR 2001 rel.

Muhammad Ilyas Siddiqi for Petitioners.

Razzaq A. Mirza, Additional Advocate General and Sardar Tariq Anees, Assistant Advocate General for Respondents Nos.2 to 4.

Rauf Ahmad Khan Niazi for Respondent No.1.

Raja Mohsin Abbas for WASA.

Hafiz Mohsin Ali Khizar, Law Officer for Commissioner Rawalpindi Division.

Munawwar Iqbal Douggal for PEMRA.

Tahir Farooq, Deputy Commissioner Rawalpindi.

Muhammad Tanveer, M.D., Aziz Ullah Khan and Akmal Yaseen, Deputy Directors WASA.

Muhammad Tahir, D.G Operations Broadcast PEMRA.

Mohsin Hameed Dogar, Director Regulation PEMRA.

Malik Tahir Mehboob, SP (CIA) Rawalpindi.

Ms. Shazia Fazil, DSP (Legal) Rawalpindi.

Rana Amjad Iqbal, DEO Rawalpindi.

2023 C L C 1846

[Lahore]

Before Shujaat Ali Khan, J

ABDUL RASHEED----Petitioner

Versus

PROVINCE OF THE PUNJAB and others----Respondents

Civil Revision No.237171 of 2018, decided on 16th November, 2022.

Specific Relief Act (I of 1877)---

----Ss.8 & 42---Suit for recovery of immovable property---Judgment at variance---Effect---Local Commission, report of---Significance---Petitioner / plaintiff claimed to be owner of suit land and remained successful against predecessor-in-interest of respondents / defendants up to Board of Revenue---Trial Court decreed the suit in favour of petitioner / plaintiff but Lower Appellate Court reversed the findings of Trial Court and allowed appeal filed by respondents / defendants---Contention of petitioner / plaintiff was that Lower Appellate Court decided the matter only on the basis of report of Local Commission---Validity---Local Commission was appointed for aid of Court to arrive at a just conclusion and authenticity of report submitted by Local Commission could not lightly be ruled out especially when parties concerned failed to assail its validity by filing substantial objections convincing the Court to discard report of Local Commission---When verdicts of Courts below were at variance, preference was to be given to findings of Lower Appellate Court---To fortify its findings, Lower Appellate Court referred to specific portions of statement of the petitioner / plaintiff recorded as witness during evidence---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as contention urged by petitioner / plaintiff carried no weight---Petitioner / plaintiff was at liberty to institute proceedings before appropriate forum to get demarcated the suit land---If respondents / defendants would raise any construction impeding access of petitioner / plaintiff to suit land, he was within his right to approach the forum concerned for redressal of his grievance---Revision was dismissed, in circumstances.

Rana Shamshad Ali Khan v. Province of Punjab through Collector, Multan (now Collector, Lodhran) and 4 others 1993 SCMR 1473; Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16; General Manager, Azad Kashmir Logging and Sawmills Corporation, Muzaffarabad v. Abdul Rehman and 2 others 2013 CLC 1473; Iqbal M. Hamzah v. Gillette Pakistan Ltd. 2011 YLR 277; Sher Muhammad and others v. Muhammad Afzal and others PLD 2011 Lah. 412; Hussain and others v. Faiz Muhammad and others 1989 MLD 3651; Bhai Khan and others v. Shakeel and others 2009 SCMR 594; Wazir Hussain Shah and 7 others v. Ali Shah and 3 others PLD 2011 SC (AJ&K) 25; Mst. Lalan v. Noor Muhammad and 12 others 1994 SCMR 1771 and Abdullah and 5 others v. Abdur Rehman and 9 others 2004 YLR 295 ref.

Biladar Khan v. Faridoon Khan and others PLD 2003 Pesh. 23; Uttam Kumar Das and another v. Ajgar Ali Meah and others PLD 1995 Dacca 15; Zaheer-ur-Din and others v. Mst. Khurshida Begum 1996 CLC 580; Sultan Eraj Zaman Khan and another v. The Collector, Land Acquisition, Khanpur Dam and another 1996 CLC 287; Messrs Kausar & Co. v. Messrs Universal Insurance Co. (Pvt.) Ltd. 1991 MLD 1774 and Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others 2007 SCMR 870 rel.

Shahid Mehmood Khan Khilji for Petitioner.

Rana Shamshad Khan, Additional Advocate General for Respondent No.1.

Muhammad Osama Asif for Respondents Nos.2 to 7.

2023 C L C 1875

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan, J

ZIA-UD-DIN and others----Petitioners

Versus

Malik HAMAYUN IRFAN and others----Respondents

Civil Revision Nos.364-D of 2010 and 531 of 2009, heard on 27th September, 2022.

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

----S.2(2) & O.XX, R.18---Preliminary decree in suit for partition of immovable property---Scope---Preliminary decree determines the rights/shares of as many parties as interested in the property---However, the question, as to whether a property is joint one, is to be determined prior to preliminary decree---Preliminary decree only comes out as a consequence of determination of substantive rights of the parties---Preliminary decree without determination of the shares of the parties being defective one is neither sustainable nor executable.

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

----O.XXVI, R.14---Local Commission---Powers and liability---Suit for partition of immovable property---Local Commission has no power to determine the right/share of any party to suit for partition of immovable property---Commission is appointed only to prepare the mode of partition at the spot in view of the shares determined by the Court in preliminary decree---Commission cannot assume the role of the Court, rather only can propose the allotment of specified share to the parties determined in preliminary decree.

(c) Evidence---

----Marked document---Evidentiary value---Document which has not been produced and proved in evidence but only marked cannot be taken into account as a legal evidence of fact by the Courts.

(d) Judgment---

----When basic order/judgment/decree is found illegal or void then the entire superstructure built on it falls on the ground.

Muhammad Ilyas Sheikh for Petitioner (in C.R. No.364-D of 2010).

Sheikh Zameer Hussain for Petitioner (in C.R. No.531 of 2009).

Malik Itaat Hussain Awan for Respondents.

2023 C L C 1892

[Lahore]

Before Raheel Kamran, J

MUHAMMAD ALI HOUSING SCHEME and others----Petitioners

Versus

KAMRAN LATIF and others----Respondents

Civil Revision No.76121 of 2022, decided on 30th May, 2023.

Contract Act (IX of 1872)---

----S.74---Specific Relief Act (I of 1877), Ss.12 & 24 (b)---Suit for specific performance of agreement to sell---Late payment charges---Entitlement and quantum---Petitioners / defendants established a housing scheme and respondent / plaintiff purchased a plot therein---Contention of petitioners / defendants was that respondent / plaintiff committed default in payment of last two installments therefore, he was liable to pay late payment charges---Validity---Petitioners / defendants were entitled to reasonable late payment charges for the period of default in the payment of installments in question---Amount of compensation specified in relevant clause of the agreement was oppressive and penal in the facts and circumstances and the same could not be allowed to petitioners / defendants---Respondent / plaintiff paid well in time the first six installments and delay was in relation to remaining two installments constituting 25% of the sale consideration for which late payment charges at the rate of Rs.1000/- per day per annum) were manifestly extortionate---No other reasonable amount of compensation was claimed in written statement nor established by petitioners / defendants---High Court deemed it appropriate to hold petitioners / defendants entitled to compensation in total of Rs.150,000/- for delay in the payment of last two installments, as there was no determination by the Courts below of reasonable compensation---Figure of compensation determined by High Court was an approximation arrived at by taking into account the State Bank of Pakistan's interest rates at the relevant time---High Court maintained judgment and decree of specific performance passed by lower Appellate Court in favour of respondent / plaintiff with the modification that the decree was subject to payment of compensation of late payment charges by respondent / plaintiff to petitioners / defendants---Revision was disposed of accordingly.

Muhammad Farooq Azam v. Bank Al-Falah Limited and others 2015 CLD 1439; Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270; Province of West Pakistan v. Mistri Patel and Co. PLD 1969 SC 80 and Khanzada Muhammad Abdul Haq Khan Khatak and Co. v. WAPDA 1991 SCMR 1436 ref.

Imran Ali for Petitioners.

Malik Liaqat Ali Raj for Respondents.

2023 C L C 1926

[Lahore]

Before Safdar Saleem Shahid, J

RASHEED AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

Writ Petition No.27152 of 2013, heard on 25th January, 2022.

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

----S.5, Sched.---Family Courts---Non-applicability of provisions of C.P.C and Qanun-e-Shahadat, 1984---Presumption of truth attached to Nikahnama---Wife filed two suits, one for recovery of dowry articles, gold ornaments and maintenance allowance and the other for recovery of dower in shape of gold ornaments and pocket money per month as mentioned in Nikahnama---Trial Court dismissed the suit of wife for recovery of dower and partially decreed the suit for recovery of dowry articles---Appellate Court dismissed the appeal filed by husband and partially accepted the appeal of wife----Held, that the Family Courts Act, 1964, has been enforced to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family matters and for matters connected therewith---Provisions of C.P.C and Qanun-e-Shahadat, 1984 have not been strictly made applicable to the family cases, rather the powers have been vested to the Family Courts to perform their functions---Section 15 of the Act, 1964, provides the Family Courts the power to summon witnesses whereas S.16 of the Act, 1964, enables the Family Courts to proceed with the contempt matters---Family Court has the power to adopt any procedure under the Act, for summoning of the witnesses or exhibiting the documents---Procedure, however, provided in C.P.C and Qanun-e-Shahadat, 1984, are not applicable in stricto sensu---Wisdom behind the scheme is to avoid the technicalities so that the matters could be resolved expeditiously and justice could be provided within very short span of time---In case in hand, admittedly, the Nikah was performed between the parties, photocopy of Nikah Nama was admitted by husband and wife and there was no objection from any side regarding its execution----Husband had admitted that Nikah Form was written in his presence and he signed over the same but he further stated that the impugned conditions were not written---Husband, however, had not challenged those conditions independently before any forum---Neither husband had filed an application before the concerned union council for the correction of the entries if they were wrongly filled in column 17 nor brought any suit before the competent Court to get the entries corrected, meaning thereby that Nikah Nama was an admitted document by husband---Presumption of truth is attached to the Nikah Nama, but at the same time, if the entries thereof are denied the same can be challenged and the party challenging the entries is under obligation to prove that those entries were not settled between the parties at the time of Nikah----In case in hand, there was no evidence regarding challenging the Nikah Nama---Nikah was performed in the Majlis and all the persons whose names were appearing on the Nikah Nama including the petitioner signed over the same---Keeping in view the sequence of the scheme of Nikah Form, its column 17 was condition of dower which can be interpreted as the property belonging to the wife after marriage and under S. 5 of the Family Courts Act, 1964, personal property and belonging of the wife can be claimed by her at any time and the matter is triable by the Family Court----In case in hand, since this property/amount had not been fixed with any condition by the husband, therefore that would be taken as the personal property belonging of the wife---Constitutional petition was dismissed and the judgement and decree passed by the Appellate Court upheld were, in circumstances.

Jehangir Khan through Attorney v. Mst. Saeeda Begum and 2 others 2020 YLR 2350 and Mst. Shehnaz Mai v. Ghulam Abbas and 2 others 2018 CLC Note 104 distinguished.

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

----S.5, Sched.---Jurisdiction and purpose of Family Courts----Section 5 of the Family Courts Act, 1964 provides "subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule"---Prior to the introduction of the Act, 1964, some of the matters relating to the family affairs were subject to the Civil Courts and the Civil Court being the ultimate Court of jurisdiction had the power to entertain those matters, but keeping in view the fact that the procedure before the Civil Court was very lengthy and painful, all the matters relating to family affairs were made subject to the Family Courts---Judges of the Family Courts have been given vast power to regulate the proceedings of the family cases with the wisdom that the Family Courts can initiate to bring about compromise/settlement between the spouses for their reunion and for their living together, therefore during the proceedings of the case twice the provision of reconciliation have been inducted in the Family Court proceedings---Purpose behind the whole exercise is to make efforts for the reunion of the spouses so to have a peaceful and good family future which is not only beneficial for the families but this will also help to build a healthy and beautiful society.

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

----S.5, Sched.---Interpretation, of columns of Nikahnama---With the introduction of the Family Courts Act, 1964, the Nikah Form has attained a very vital importance regarding the resolution of the disputes between the spouses---Nikah Form otherwise is a very important document---Unfortunately most of the Nikahkhwan/Nikah Registrars have no understanding of the spirit of the columns of the Nikah Form especially in the rural areas where the literacy rate is otherwise very low and people do not understand the meaning of some special terms----Nikahkhwan/Nikah Registrars while filling Nikah Forms do not keep in mind the purpose of the columns thereof that ultimately creates problems for the spouses in case any dispute arises between them---In some matters it is very difficult for the Family Court to see the exact intention of the spouses regarding those columns at the time of Nikah---If Nikah Form is perused, its columns have very systematic sequence---From Columns 1 to 6, it relates to the place of the Nikah with the details of the spouses regarding their names, parentage, age and their matrimonial status, bachelor or married, whereas Columns 7 to 11 are regarding the requirements of a valid Nikah, wherein names of the witnesses and the name of the wakeel on the behalf of the spouses, if any appointed, are mentioned---Column 12 is regarding the date of Nikah and Columns 13 to 17 relate to the fixation of dower----Fixation of dower has been detailed in four different columns and every column has its own significance---While filling up these columns normally the person filling up does not care for the wisdom behind the said columns, which are clear in their meanings---Column 17 is regarding ---Scheme of the Form reflects that this is a part of the dower and the conditions if imposed, regarding the dower---Column 17 cannot be interpreted to mean that it is regarding the conditions after the divorce or in case of divorce, because Nikah Form clearly shows that Column 18 starts from the subject of divorce and all the conditions regarding the divorce have been separately mentioned in two different columns.

Muhammad Iftikhar Ullah Dhilon for Petitioner.

Shan Saeed Ghumman for Respondent No.3.

2023 C L C 1947

[Lahore]

Before Shahid Jamil Khan, J

JUDICIAL ACTIVISM PANEL and others----Petitioners

Versus

The FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.26651 of 2023, decided on 8th June, 2023.

Pakistan Medical and Dental Council Act, 2022 (IV of 2023)---

----S.20---Medical and Dental Undergraduate Education (Admission, Curriculum and Conduct) Regulations, 2021, Regln. 9---Constitution of Pakistan, Art. 251---Constitutional petition---Tuition fee, enhancement of---Scope---National language, arrangements of---Petitioners were students of medical college, who assailed enhancement of tuition fee---Validity---Decision or policy of prohibiting enhancement in tuition fee and other charges were protected---Decision taken by or under Medical and Dental Undergraduate Education (Admission, Curriculum and Conduct) Regulations, 2021, were saved unless the contrary was expressly shown in S.20(7) of Pakistan Medical and Dental Council Act, 2022, and the same could not be undone through a Regulation---High Court declared the challans of enhanced fee without lawful authority---High Court directed Pakistan Medical and Dental Council to ensure that all Medical and Dental Colleges were charging tuition fee and other charges as were publicly declared at the time of admission of Session starting in year, 2022---High Court following constitutional command and for a common literate citizen to understand a judgment determining his rights directed Registrar of High Court to make a summary with proposal to create or enhance capacity of translating judgments of High Court into Urdu and place that summary before Chief Justice of High Court for further process---Constitutional petition was allowed accordingly.

Taza Khan and others v. Ahmad Khan and others 1992 SCMR 1371; Matli Town Committee v. Abdul Majeed and others 1991 SCMR 878; Hamid Mir and another v. Federation of Pakistan and others (2013 SCMR 1880; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 and Muhammad Kowkab Iqbal v. Government of Pakistan through Secretary Cabinet Division, Islamabad PLD 2015 SC 1210 rel.

Ms. Salma Riaz for Petitioner No.1.

Rana Rashid Akram Khan and Mian Sheraz Javed for Petitioners Nos.2 and 3.

Syed Sajjad Haider Rizvi, Assistant Attorney General for Pakistan.

Waqqas Ahmad Mir, Ahmad Hassan and Momina Taufeq for Respondent No.4 (Pak Red Crescent Medical and Dental College).

M. Imran Sarwar for Respondent No.3/UHS.

Iftikhar Ahmad Samdani for Applicant/proforma Respondents (in C.M. No.3 of 2023).

Dr. Habib Ullah, Deputy Registrar, PMDC.

2023 C L C 1962

[Lahore]

Before Shahid Bilal Hassan, J

ASIF NAEEM----Petitioner

Versus

Mst. BILQEES FATIMA and 3 others----Respondents

Civil Revision No.60443 of 2022, decided on 4th October, 2022.

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

----O.XXIII, R.3---Compromise of suit---Consent decree---Scope---Impugned order, judgment and decrees had been passed when the petitioner conceded the claim of the respondents; meaning thereby the same was a consent decree against which no appeal lies except certain exceptions which had not been agitated rather the petitioner contented before the appellate court that he was ready to transfer the same land in favour of the respondents while the whole corpus of land according to the gift mutation did not exist on the spot---Trial Court as well as appellate court had rightly adjudicated upon the matter in hand and had not committed any illegality or irregularity warranting interference by this court---Petition stood dismissed in limine.

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

----O.XXIII, R.3---Consent decree---Appeal---Exceptions where consent decree is appealable listed.

Following are the exceptions where consent decree was appealable:

l An appeal by a person who was not a party to the compromise;

l Where it is alleged that decree is not a decree passed with the consent of parties;

l Where the consent decree is alleged to be invalid as for instance where court did not have jurisdiction over the subject matter;

l Where there is a dispute regarding the nature of compromise;

l Where the decree travels beyond the agreement;

l Where the consent is given under mistake of fact or obtained by practicing fraud upon the court;

l Where there was no compromise at all;

l Where the strict requirements of O.XXIII, Rule 3, Code of Civil Procedure, 1908 are not satisfied.

2023 C L C 1974

[Lahore (Bahawalpur Bench)]

Before Sultan Tanvir Ahmad, J

MUHAMMAD ABBAS----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

Writ Petition No.337 of 2022/BWP, decided on 3rd August, 2022.

Civil Procedure Code (V of 1908)---

----O.XXI, Rr. 1 & 2---Modes of paying money under decree---Payment out of Court to decree-holder---Scope---Order XXI, R.1(1)(b) of the Code permits out of Court payment by the judgment-debtor through (i) bank or (ii) postal money order or (iii) payment which is evidenced in writing and signed by the decree-holder or his authorized agent---Order XXI, Rule 2(1) of the Code makes it obligatory upon the decree holder to certify such payment or adjustment before the Court whose duty is to execute the decree---However, under O. XXI, R. 2(2) of the Code judgment debtor can also inform the Court and apply the Court to issue notice to the decree-holder as to show cause as to why such payment or adjustment should not be recorded as certified---There is no requirement in O. XXI, R. 1(1)(b) of the Code that the acknowledgment must bear the revenue stamps ---In this regard aforesaid rule merely requires that the out of Court payment should be evidenced in writing and signed by the decree-holder or his authorized agent---Furthermore, the legislature has used the word 'may' in R. 2(2), when allowing the judgment-debtor to apply or inform the Court regarding out of Court payment made to decree-holder---Relevant provisions do not provide any consequence for not informing or applying the concerned Court after such payment through permissible mode, either.

Muhammad Tariq v. Mst. Fazeelat alias Fareelat Bibi PLD 1997 Lah. 128 and Dr. Major Abdul Ahad Khan through his Legal Representatives v. Muhammad Iqbal through his Legal Representatives PLD 1989 Kar. 102 rel.

Asghar Ali v. Additional Sessions Judge, Kasur and others 2015 MLD 353 ref.

Muhammad Saleem Khan Balouch for Petitioner.

Ms. Imbesat Mehar for Respondent No.3.

2023 C L C 1980

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

SA-RA ENERGY CONSTRUCTION TRADE AND INDUSTRY INC. TURKEY, LOCAL OFFICE AT LAHORE and another----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy (Power Division), Pak Secretariat, Islamabad and others----Respondents

Writ Petition No.12053 of 2023, decided on 30th March, 2023.

(a) Constitution of Pakistan---

----Art. 199(4)---Constitutional petition---Maintainability---'Person'---World Bank---Scope---World Bank is not a person as defined in Art.199(4) of the Constitution, therefore, it cannot be subject to Constitutional jurisdiction of High Court.

(b) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Public policy---International contract---Interference in bidding process---Petitioner company was aggrieved of bidding process conducted by authorities in a project funded by World Bank---Validity---High Court could not interfere in the decisions of authorities endorsed by World Bank, to pre-qualification of respondent company---Such decision fell within the realm of public policy and Court in exercise of its powers of judicial review, ordinarily could not interfere therewith and exercise judicial restraint---In high cost projects, the financial institutions like World Bank (International Bank for Reconstruction and Development and International Development Association) granting huge loans always insisted that any project for which loan had been sanctioned must be carried out in accordance with the specification and within the scheduled time and procedure for granting the award must be adhered to---In such procurements Pakistani Law did not prevail---High Court declined to interfere in the bidding process---Constitutional petition was dismissed, in circumstances.

Cutting of Trees for Canal Widening Projects, Lahore: In the matter of Suo Motu Case No.25 of 2009 (2011 SCMR 1743); Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Messrs Power Construction Corporation of China Ltd. through Authorised Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83; Messrs Sardar Mohammad Ashraf D. Baloch Private Limited through Authorized Representative v. Puniab Irrigation Department through Project Director and 6 others 2020 CLC 1303 and Messrs SPARCO Construction Company v. Province of Punjab and others 2021 CLC 515 rel.

Imtiaz Rashid Siddiqui, Barrister Sheharyar Kasuri, Raza Imtiaz Siddiqui, Jamshed Alam and Fasih-ur-Rehman for Petitioners.

Muhammad Zain Qazi, Assistant Attorney General.

Muhammad Shoaib Rashid and Hassan Pervaiz for Respondents Nos.2 to 4.

2023 C L C 1995

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

TEMOOR SHIKOH----Petitioner

Versus

MEMBER (JUDICIAL-III), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others----Respondents

Writ Petition No.13222 of 2017, heard on 16th November, 2022.

Punjab Land Revenue Rules, 1968---

----R.18---Lamberdar, dismissal of---After twenty four years of unblemished service as lamberdar (petitioner), an application for his removal was moved, asserting that he was involved in various criminal cases and had lost confidence of the landowners, and besides that he was unable to perform his obligations---Said application was accepted by Revenue Hierarchy---Scope---All three Revenue Authorities removed the petitioner just for mere registration of criminal cases, whereas he was never convicted or sentenced against any offence and was not even nominated in some of the FIRs, whereas in rest of the cases, he had been acquitted---Presently not a single criminal case was pending adjudication against the petitioner, rather he had already been exonerated or acquitted in all those matters---Removal of the petitioner was not backed by any of the grounds provided in relevant Rules---Operation of removal orders, passed by the Revenue Hierarchy against petitioner, was suspended by the High Court which order was still operative when the brother of respondent was appointed as lamberdar---Such act being illegal, unlawful, coram non judice/ultra vires as well as contumacious could not be validated or supported---Selection of respondent as lamberdar was declared to be of no legal effect---Petitioner was restored to his post---Orders impugned were set aside and Constitutional petitions were allowed.

Syed Muhammad Najmul Saqib Mumtaz for Petitioner.

Rana Muhammad Arif Kamal Noon, Additional Advocate-General for Respondents Nos.1 to 3.

Ch. Muhammad Riaz Jahania for Respondent No.4.

2023 C L C 2010

[Lahore]

Before Muzamil Akhtar Shabir, J

BAKHTIAR MAHMUD KASURI----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.68931 of 2022, decided on 20th February, 2023.

Elections Act (XXXIII of 2017)---

----Ss.20 & 22---Election Rules, 2017, R.10 (7)---Delimitation of constituency---Homogeneity, principle of---Necessary ingredients---Factual controversy---Petitioner was aggrieved of delimitation of constituencies in question by Election Commission for upcoming general elections---Validity---Delimitation of constituencies, under S.20 of Elections Act, 2017, had to be made with regard to distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facility of communication and public convenience and other cognate factors to ensure homogeneity in creation of constituencies---Constituencies in question were originally proposed to be delimited through Form-5, whereafter when final list of delimitation / Form 7 was issued the proposed plan was disrupted---Final list was not in accordance with the principles of delimitation of constituencies provided in S. 20 of Elections Act, 2017---High Court set aside final delimitation of constituencies and remanded the matter to Election Commission for decision afresh---Petitions were allowed, in circumstances.

Sardar Abdul Jabbar Tibbi and Ahsan Amjad for Petitioner.

Sardar Qasim Farooq Ali for Petitioner (in W.P. No.77636 of 2022).

Shamail Arif, vice counsel for Petitioner (in W.P. No.72527 of 2022).

Mudassar Farooq for Petitioner (in W.P. No.61013 of 2022).

Hafiz Muhammad Saleem, Imran Arif Ranjha, Hafiz Adeel Ashraf and Ch. Umer Hayat, Legal Advisors of Election Commission of Pakistan.

2023 C L C 2025

[Lahore]

Before Shahid Bilal Hassan, J

Dr. HASSAN SHAHRYAR----Petitioner

Versus

SANA WAQAR through authorized attorney and 2 others----Respondents

Civil Revision No.13538 of 2020, decided on 25th October, 2022.

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

----Ss. 2 (b) & 7---Rules under the Muslim Family Laws Ordinance, 1961, R. 3 (b)---Notification S.R.O.No.1086(K)61, dated 09-11-1961---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Divorce proceedings---Jurisdiction---Parties had settled in USA, after their marriage in Lahore but relations became strained and divorce proceedings were initiated before authorities in USA---Petitioner / defendant / husband initiated divorce proceedings under S.7 of Muslim Family Laws Ordinance, 1961, before Union Council concerned in Lahore, Pakistan---Respondent / plaintiff / wife invoked jurisdiction of Civil Court and got injunction against divorce proceedings before Union Council concerned---Suit filed by respondent / plaintiff was rejected---Lower Appellate Court allowed appeal and remanded the matter to Trial Court for decision afresh---Validity---Union Council and/or Chairman, which would have jurisdiction in the matter would be the Union Council and/or the Chairman within whose territorial jurisdiction respondent / plaintiff / wife was residing at the time of pronouncement of divorce---Wife was residing abroad during such time---As per notification S.R.O.No. 1086(K)61 dated 09-11-1961, officers of Pakistan Mission abroad were authorized to discharge functions of Chairman under Muslim Family Laws Ordinance, 1961---Chairman, Union Council at Lahore had no authority to exercise such authority which he had exercised---High Court in exercise of revisional jurisdiction declined to interfere in the matter---Revision was dismissed, in circumstances.

Muhammad Akram Nadeem v. Chairman, Arbitration Council/ADLG, Islamabad and 2 others 2021 CLC 1947; A.M. Kamal through Legal Heirs and others v. Lahore Improvement Trust 1997 CLC 121; Messrs Sandal Dye Stuff Industries Ltd. v. Federation of Pakistan through Secretary Finance, Pakistan Secretariat, Islamabad and 5 others 2000 CLC 661; Shafqat Ullah and 2 others v. Land Acquisition Collector (D.C.), Haripur and 2 others 2006 CLC 1555; Allah Dad v. Mukhtar and another 1992 SCMR 1273; Mst. Shahida Shaheen and another v. The State and another 1994 SCMR 2098; Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; Farah Khan v. Tahir Hamid Khan and another 1998 MLD 85; Muhammad Talat Iqbal Khan through General Attorney v. Tanvir Batool through Wasim Iqbal and 2 others 2005 CLC 481; Sanya Saud v. Khawaja Saud Masud and others 2013 CLC 108; Mst. Lala Rukh Bukhari v. Syed Waqar Ul Hassan Shah Bokhari and others 2018 YLR 273; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Ahmad Nadeem v. Assia Bibi and another PLD 1993 Lah. 249; Mst. Khurshid Mai v. The Additional District Judge, Multan and 2 others 1994 MLD 1255; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 and Messrs Mardan Ways SNG Station v. General Manager SNGPL and others 2020 SCMR 584 ref.

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

----S.7---Notification S.R.O.No.1086(K)61, dated 09-11-1961---Constitution of Pakistan, Art. 201---Decision of High Court---Binding effect---Principle---Plea raised by petitioner was that Notification S.R.O.No.1086(K)61, dated 09-11-1961 was not applicable as it had been struck down by Islamabad High Court---Validity---No verdict as such was passed by Lahore High Court, therefore, Notification S.R.O.No.1086(K)61, dated 09-11-1961, was fully in vogue in Punjab---Relief could not go beyond provincial boundary to affect any other province or Area or its people.

Hassan Shahjehan v. FPSC through Chairman and others PLD 2017 Lah. 665 rel.

Mustafa Ramday, Saad Sibghat-Ullah, Mahnoor Ahmed, Asfand Mir and Abdul Moiz Khan for Petitioner.

Muhammad Ahmed Qayyum (ASC), Shamil Arif and Zahir Abbas for Respondent No.1.

2023 C L C 2042

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Messrs BEST WAY CEMENT LTD. through Duly Authorized Representative----Petitioner

Versus

YASIR SALEEM and 2 others----Respondents

Writ Petition No.1645 of 2021, decided on 8th September, 2022.

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

----O. XXIII, Rr. 1&2---Withdrawal of suit---Formal defect---Instances of formed defect are (i) Misjoinder of parties or causes of action which will result in the failure of the suit, (ii) erroneous valuation of the subject matter; (iii) insufficient description of the property involved in the suit; (iv) failure to disclose a cause of action; (v) material document not properly stamped; (vi) non-impleading of necessary party and (vii) form of suit.

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

----O. XXIII, Rr. 1&2---Withdrawal of suit---Formal defect, non-disclosure of---Plaintiff moved an application seeking withdrawal of suit with permission to file afresh---Trial Court dismissed said application---Appellate Court allowed revision moved by the plaintiffs against which judgment the defendant invoked constitutional jurisdiction of the High Court contending that the application for withdrawal of suit did not disclose any formal defect---Validity---Expression formal defect must be given a liberal meaning and should be of nature as to entail dismissal of the suit but every kind of defect not going to the root of the case or not affecting the merits of the case---Plaintiff could only be allowed to withdraw his suit or abandon part of his claim if he succeeded to establish that suit must fail by reason of some formal defect---For the purpose of seeking permission of withdrawal of suit in order to file afresh, plaintiff on the one hand was bound to disclose some formal defect and on the other, Court was also obliged to satisfy itself that formal defect was of such a nature that suit must fail---It was thus incumbent upon the plaintiff to point out a formal defect on the pliant justifying withdrawal of his suit with permission to file afresh---Said permission could not be allowed in a mechanical and haphazard manner---Court was also duty bound to examine the contents of the application seeking such permission---From the perusal of the application moved by the respondent it was clearly evident that the sane was bereft of any content disclosing formal defect in the plaint---Civil Court was justified to refuse the application seeking permission to withdraw the suit in order to file afresh whereas the Revisional Court had clearly transgressed its powers and as such impugned judgment was illegal and unlawful ---Constitutional petition was allowed, in circumstances.

Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148; Muhammad Yousaf and others v. Nazeer Ahmed Khan (deceased) through LRs and others 2021 SCMR 1775; Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others 2013 SCMR 464 and Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979 ref.

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

----O. XXIII, Rr. 1 & 2---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Withdrawal of suit---Formal defect, non-disclosure of---Plaintiff moved an application seeking withdrawal of suit with permission to file afresh---Trial Court dismissed said application---Revisional Court allowed revision moved by the plaintiffs against which judgment the defendant invoked constitutional jurisdiction of the High Court contending that the application for withdrawal of suit did not disclose any formal defect---Validity---Constitutional jurisdiction of the High Court was though discretionary and used in rare and extra-ordinary circumstances but the present case was a classic one for exercise of such jurisdiction in terms of Art. 199 of the Constitution---In absence of disclosure of formal defect, the Civil Court was justified to refuse the application seeking permission to withdraw the suit in order to file afresh whereas the Revisional Court, had clearly transgressed its powers and as such impugned judgment was illegal and unlawful---High Court set aside impugned order passed by the Appellate Court and consequently order passed by the Trial Court, dismissing an application for restoration of suit filed by the respondents/plaintiffs, stood maintained---Constitutional petition was allowed, in circumstances.

Abdul Rehman Qadar for Petitioner.

Syed Amir Hussain Kazmi for Respondent No.1.

2023 C L C 2071

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Syed AMJAD HUSSAIN JAFFRI and others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.8993 of 2012, decided on 27th June, 2022.

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

----O.XIV, R.5---Power to amend and strike out issues---Application of the petitioner for framing of additional issues and permission to produce copy of mutation was dismissed concurrently---Validity---Suit for declaration and permanent injunction was filed by petitioner claiming that originally the suit land was owned by a local owner and he sold out the land in favour of a lady but land was transferred in her name by reducing her ownership due to cut formula enshrined in paragraph No.4 of the press note during the year 1952 by the Governor of Punjab---However, the said land was alienated to the mother of present petitioners---After her death, her inheritance mutation was sanctioned in favour of petitioners/plaintiffs---By narrating said facts, petitioners pleaded in their plaint that original lady purchaser purchased land as "Adna Malkiat" through sale deed and said "Adna Malkiat" was exempted from said cut formula---Petitioners specifically pleaded said facts in the plaint---Respondents in their respective written statements denied the said facts---In presence of such controversy, proper issue with regard to said controversy had not been framed by the Trial Court---Petitioners specifically raised material proposition of facts and law in their plaint which was denied by the respondents in their written statements---Said controversy should be formulated in shape of specific issue in order to conclude the rights of the parties---Already framed issues did not cover such controversy---Courts below failed to exercise their jurisdiction correctly and the failure of the Courts below to determine material issues amounted to exercise of jurisdiction illegally or with material irregularity---Thus, the impugned orders were not sustainable in the eye of law and were liable to be struck down---Petitioners also sought permission for production of mutation by stating that the same could not be traced out inspite of making hectic efforts and its production was essential for just decision of the case---Both the Courts below failed to consider such part of the application while rendering its judgments/orders which also made the impugned judgments/orders nullity in the eye of law---Constitutional petition was allowed accordingly.

Makhdoom Muhammad Ahsan v. Pathana and 21 others PLD 1975 SC 369 rel.

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

----O. XIV, Rr. 1 & 5---Additional issues, framing of---Scope---Framing of issues is one of the most important stage of the trial---On the basis of material, the Court is to frame issues in respect of those material propositions of fact or law alleged by one party and denied or not admitted by the other party---Power vested in a Court under O.XIV, R.5, C.P.C. can be exercised at any stage prior to the final disposal of the case---Even the appellate Court can exercise power under O.XIV R.5, C.P.C., where the case cannot be disposed of on the basis of issues as already framed---Although, it is the duty of the parties to point out framing of necessary issues, yet the Court is equally bound to frame correct issues, which are necessary for determination of real controversy between the parties---Merely because the parties have not pointed out such issue, Court is not absolved from performing its legal and statutory duty---Action or inaction on the part of the Court cannot prejudice a party to litigation---Even if a point not raised in the pleadings, nonetheless comes to the notice of the Court during the course of evidence, Court will frame issue in that regard, in order to resolve the controversy between the parties.

Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 722 and Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 rel.

Syed Tajammul Hussain Bukhari for Petitioners.

Javed Sultan Ch. for Respondents.

Malik Masroor Haider Usman, Assistant Advocate General, Punjab for Respondents Nos.3 to 5 and 15.

2023 C L C 2090

[Lahore]

Before Asim Hafeez, J

EVACUEE TRUST PROPERTY BOARD and others----Petitioners

Versus

MUHAMMAD TUFAIL and others----Respondents

Civil Revision No.552 of 2010, decided on 3rd March, 2022.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss.10, 14, 16 & 17---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Evacuee Trust Property---Status, determination of---Jurisdiction of Civil Court---Plea of bona fide purchaser---Scope---Petitioner / defendant was Evacuee Trust Property Board and was aggrieved of judgment and decree passed by Lower Appellate Court in favour of respondents / plaintiffs setting aside order passed by Chairman Evacuee Trust Property Board determining suit property as Evacuee Trust Property---Validity---Determination carried out by the Chairman Evacuee Trust Property Board was not challengeable before Civil Court, in terms of S. 14 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Powers were exercised by the Chairman under S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Remedy of respondents against order in question was available either under sections 16 or 17 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Plea of bona fide purchase by respondents / plaintiffs, from alleged allottees, extended no protection when allotment of alleged allottees, to whom Permanent Transfer Deeds were issued after June 1968 and their matter had been decided in terms of orders passed by Chairman, which orders were intact and had otherwise attained finality---High Court set aside judgments and decrees passed by Lower Appellate Court and restored that of Trial Court---Trial Court had rightly held that Civil Court lacked jurisdiction to entertain and adjudicate suits filed by respondents / plaintiffs---Revision was dismissed, in circumstances.

Evacuee Trust Property Board v. Ali Bahadur PLD 2011 SC 126; Khurshid Ahmad and others v. Rana Mumtaz Ahmad and others 2016 SCMR 679; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Member BOR Punjab and others v. Mst. Siddiqan and others 2015 SCMR 1721; Chairman Evacuee Trust Property Board v. Saleem Khan and others 2021 CLC 468; Shamim Akhter v. Chairman Evacuee Trust Property Board 2017 YLR 851; Muhammad Abdullah v. Evacuee Trust Property and others 2019 YLR 2737; Assistant Administrator Evacuee Trust Property v. Sadaullah Khan 2012 MLD 787 and Evacuee Trust Property Board v. Sheikh Abdul Sattar and another 2009 SCMR 1223 ref.

Evacuee Trust Property Board v. Zakia Begum 1992 SCMR 1313 rel.

Usman Nasir Awan for Petitioners.

Salah-ud-Din Shaharyar Khan for Respondents.

2023 C L C 2110

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

SHAHID WAZEER----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others----Respondents

Writ Petition No.17366 of 2021, heard on 6th October, 2022.

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

----Ss. 12 & 25---Custody of minors---Visitation schedule---Welfare of minor---Scope---While deciding a guardian petition, including chalking of a visitation schedule, it is the 'welfare of the minor' which is of paramount consideration---Limited hours of meeting within the Court premises is the policy generally adopted by the Courts which is certainly not an appropriate solution inasmuch as it only enable a minor to identify his relation with the non-custodial parent without developing any bonding due to the lack of proper interaction between the minors and such non-custodial parent because of non-conducive environment of the Court premises---As a natural corollary, there is great chance that the minor will turn against such non-custodial parent---Thus, the Courts are to consider the impact that the proposed visitation schedule may have on the child---Failure to protect the development of healthy and secure attachment of a minor with non-custodial parent can have long-term negative effects on the development of the minor, hence, the basic consideration while chalking out the visitation schedule is to ensure that the minor will not turn against one parent because of inadequacy of time given to the non-custodial parent---Petition was allowed.

Umer Farooq v. Khushbakht Mirza PLD 2008 Lah. 527 rel.

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

----Ss. 12 & 25---Custody of minors---Visitation schedule---Modification of earlier visitation schedule chalked out by the Guardian Court---Mother contracting second marriage---Over night stay of minor with non-custodial parent, importance of---Perusal of the visitation schedule revealed that the Trial Court had granted fortnightly overnight stay of the minor with the petitioner/father being non-custodial parent which had been converted by the Appellate Court into day stay in the Court premises---Similarly, the trial Court had granted overnight stay on the second day of both Eid-ul-Fitr and Eid-ul-Azha which had also been converted into second day stay on both Eids---Per Trial Court, the fortnightly overnight stay of the minor would continue during summer and winter vacations till the minor turned 7 years of age whereafter subject to the pleasure of the minor, the same would extend to 03 days---On the other hand, as per the Appellate Court, the minor would stay first two days of winter holidays with the father and first 7 days with the father during summer vacations---Admittedly, the mother had remarried having a child from the second marriage whereas the father was still unmarried---Similarly, the minor was residing with the maternal grandparents and maternal uncle, which fact had been asserted by the petitioners side and same had not been denied by the respondents---Most crucial aspect of the case was that the minor was residing without the supervision and control of both the parents under the custody of the maternal grandparents and maternal uncle---In the absence of overnight stay with the father (petitioner), it could have an extremely detrimental impact on the well-being and welfare of the minor as he would lead his life without both the parents which aspect had been overlooked by the Appellate Court---Since the mother had contracted second marriage and left the minor behind with her father and brother, therefore, the plea of the petitioner (father) being non-custodial parent, to have more access to the minor was not only tenable but also in the interest and welfare of the minor---Denial of overnight stay with the father in such like situation was likely to result in social estrangement of the minor and it was also unjustified to deprive the petitioner of overnight stay of his son particularly when the minor was not even residing with the mother/custodial parent---Case of the petitioner (father) in the present case was on better footing as the minor was not residing with the mother rather with his maternal grand-parents and maternal uncle---Said fact made it imperative that the petitioner (father) being non-custodial parent who had already relinquished his right to custody as a good-will gesture got more time to spend with his son in order to develop fatherly bond and intimacy---Petition was allowed accordingly.

Memoona Ilyas v. Additional District Judge and others 2017 CLC 1747 and Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 ref.

Abdul Rehman Khan Laskani for Petitioner along with.

Haji Muhammad Tariq Aziz Khokhar, along with Fatima Yousaf for (Respondent No.3), Muhammad Yousaf (father of Respondent No.3) and minor Shayan Wazeer for Respondent No.3.

2023 C L C 2125

[Lahore]

Before Shams Mehmood Mirza and Muhammad Raza Qureshi, JJ

Messrs HONDA ATLAS CARS (PAKISTAN) LIMITED----Applicant

Versus

ADDITIONAL COLLECTOR, LEGAL LTU, LAHORE and others----Respondents

S.T.R. No.93 of 2010 and S.T.R. No.85 of 2011, heard on 20th June, 2023.

Sale of Goods Act (III of 1930)---

----S.12---Sales Tax Act (VII of 1990), Ss.3 & 47---Goods under warranty---Taxable supply---Taxpayer was aggrieved of charging sales tax by authorities with regard to replacement of auto parts under warranty free of charge---Validity---Warranty assured customers of replacement of defective parts within the agreed period or mileage, free of charge---Such fact could not be rejected in the orders of all the forums---Contract of such sale related to composite supply of vehicle and service for replacement of defective parts, both bundled in one contract---Auto parts were supplied free of charge to customers by taxpayer under warranty and at the time of such replacement no separate consideration was charged for the reason that consideration of such parts formed an integral part of price of the contract which was received at the time of sale---Sales tax charged and paid on contractual consideration at the time of supply of motor vehicle included such tax on auto parts to be replaced under warranty---Cost of warranty replacements was incorporated in price of motor vehicle on which sales tax had already been paid---Absent consideration in such transaction, it did not fall under the definition of 'supply' as contained in Sales Tax Act, 1990, at relevant time---High Court answered all questions in affirmative and set aside orders / judgments of Tribunal and forums below, as replacement of auto parts covered by a manufacturer's warranty were not taxable at the relevant time---Reference was allowed, in circumstances.

Khalid Ishaq, Abid Hussain Sayyal and Wajahat Ali for Applicant.

Malik Abdullah Raza for Respondents.

2023 C L C 2140

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

MISTARY SHAHID KARIM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.10461 of 2022, decided on 20th July, 2022.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 19 & 22---Eviction of tenant---Landlord and tenant, relationship of---Proof---Petitioner/tenant assailed eviction order on the plea that no relationship between the parties as landlord and tenant existed---Validity---Record showed the respondents as owner in the khata where the rented premises was situated---Petitioner in his application for leave to contest admitted the stance of the respondents that their predecessor filed an ejectment petition against him which was concluded in shape of compromise---Courts below while deciding the ejectment petition based their findings upon said proceedings and concluded that relationship of landlord and tenant existed between the parties---From perusal of record it appeared that predecessor of respondents filed an ejectment petition against the petitioner whereby, he claimed that petitioner got the rented premises through a lease agreement---From perusal of ejectment petition, lease agreement and rough site plan it appeared that the same description of the rented premises was given against which present ejectment petition had been filed---Petitioner filed contesting written reply and predecessor of the respondents filed replication---During the proceedings of said ejectment petition, parties of said ejectment petition arrived at a compromise which was brought on record---In the light of said compromise, ejectment petition was disposed of---In compromise deed, petitioner accepted the relationship of landlord and tenant with predecessor of the respondents---Petitioner got recorded his statement and during cross-examination admitted that the ejectment petition of respondents was with regard to the same property against which predecessor of the respondents filed ejectment petition---Petitioner also admitted that he did not purchase any portion from the rented premises from predecessor of the respondents or from respondents---From scanning of said evidence it was established that relationship of landlord and tenant existed between petitioner and the predecessor of respondents---After demise of predecessor, the respondents stepped into his shoes and became landlord of the petitioner---Once petitioner acknowledged himself to be tenant of the appellant in the suit shop the principle of estoppel would come into play debarring the tenant/respondent to deny the title of his landlord---Courts below keeping in view the evidence available on the record had rightly concluded that relationship of landlord and tenant existed between the parties---Writ petition having no merits was dismissed.

Mrs. Azra Riaz v. Additional District Judge and others 2021 CLC 623 and Naveed Akhtar v. Special Judge (Rent), Sialkot and 2 others 2021 CLC 952 ref.

Rehmat Ghani v. Taimur Khan and 6 others 2018 CLC Note 109; Ghulam Mustafa and another v. Mst. Muhammadi Begum and another 1990 CLC 246 and Habib Khan v. Haji Haroon-ur-Rashid 1989 CLC 783 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 19 & 22---Qanun-e-Shahadat (10 of 1984), Art. 115---Transfer of Property Act (IV of 1882), S. 111(g)(2)---Ejectment proceedings---Rule of estoppel---Where a person enters upon a premises as a tenant under one of the co-sharer of the property, he continues to be a tenant till such time either the tenancy is terminated by an express agreement between the landlord and tenant or he surrenders the possession---However, if during the subsistence of tenancy, a tenant purchases a share from a co-owner, his status as a tenant does not cease to exist---Tenant during subsistence of tenancy, cannot question title of landlord as it stood at commencement of tenancy---If tenant desires to question, he must first surrender possession to landlord and then dispute his title---Person entering premises as tenant can not be permitted to deny that status as estoppel under Art. 115 of Qanun-e-Shahadat, 1984, would operate and principle "once a tenant always a tenant" would apply---Once relationship of tenancy was proved, at once Art. 115 of Qanun-e-Shahadat Order, 1984 would come into play.

Kalimullah v. Amin Hazin and others 1976 SCMR 77; Province of Punjab though Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913; Ghulam Mustafa and others v. Mst. Muhammad Begum and others 1991 SCMR 432; Madrissa Darul Uloom Al-Baqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another PLD 1992 SC 401; Irshad Ahmad and others v. Allah Ditta and others 1998 SCMR 948; Amin and others v. Hafiz Ghulam Muhammad PLD 2006 SC 549; Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs. 2006 SCMR 1068; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Syed Izhar-ul-Hassan Rizvi v. Mian Abdul Rehman and 2 others 1989 CLC 2144; Khawaja Masood Ahmad and another v. Sajjad Sarwar and 2 others 2002 MLD 434 and Muhammad Arshad v. Farooq Ahmad 2010 YLR 1374 rel.

Malik Javed Akhtar Wains and Muhammad Irfan Wyne for Petitioners.

Syed Tajammul Hussain Bukhari and Malik Muhammad Fayyaz ul Haq Arain for Respondents Nos.3 to 5.

2023 C L C 2156

[Lahore]

Before Raheel Kamran, J

SARWAR TAJ----Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

Writ Petition No.56980 of 2023, decided on 13th October, 2023.

(a) Constitution of Pakistan---

----Art. 199(1)(a)(i)---Writ of mandamus---Scope---Writ in the nature of mandamus in terms of Art. 199(1)(a)(i) of the Constitution visualizes issuance of direction, inter alia, to a person performing functions in connections with affairs of the Federation, a Province or a Local Government to do what law requires him to do---Jurisdiction of the High Court under the said provision is limited to ensuring that the state functionaries do what they are required by law to do---Unless an act or omission of the state functionary falls within the said parameter, High Court would be overstepping its jurisdiction in issuing any direction.

The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124 ref.

(b) Poisons Act (XII of 1919)---

----Ss. 4, 5 & 8---Punjab Drugs Rules, 2007, R. 20---DrugRegulatory Authority of Pakistan Act (XXI of 2012), Ss. 2(ii), 2(xxxvi), 27 & Sched. II, Section B---Penal Code (XLV of 1860), Ss. 284 & 336A---Constitution of Pakistan, Art. 199(1)(a)(i)---Experiment with a poisonous substance---Permission sought from High Court to conduct the experiment in a public place---Petitioner contended that in his experiment, if he died, no one would be responsible for his death; that if he remained alive, the Government be directed to follow his prescription to cure cancer patients to avoid exorbitant medical costs for the treatment and cure of such patients---Validity---Petitioner failed to point out any provision in law conferring authority upon the Provincial Government or the District Administration to grant the permission for experiment sought by him---High Court cannot issue a direction sought where the same carries potential risk of commission of any offence in the statute book---What the petitioner seeks in relief in the instant case is surely a public representation of his act of consumption of a substance that he believes would not cause his death but may cure and recover cancer patients---Relief sought by the petitioner, if allowed, is not only likely to be in violation of the prohibitions in Drug Regulatory Authority of Pakistan Act, 2012 constituting offences but could perpetuate anarchy in the field of drugs---Issuance of the direction prayed for by the petitioner may also have the effect of undermining the role and authority of the regulator under the Poisons Act, 1919 and Punjab Drugs Rules, 2007---Petitioner confirmed that he was not himself a cancer patient, therefore, it is not a case of euthanasia---When the petitioner is not a terminally ill patient and the permission is not being sought to limit his experience of great pain and suffering rather for the purpose of life risking experiment to create a public spectacle, no direction for the grant of such permission is warranted by law---Such permission, if issued, may disturb public order and encourage others to indulge in such unlawful practice---It would be inappropriate for the High Court to issue any direction to the Provincial Government and District administration to allow the petitioner relief qua publicly consuming any substance which is not registered with the Drug Regulatory Authority of Pakistan after trials and evaluation of its safety and efficacy when the same not only constitutes violation of law but criminal offences---Present petition appears to be more of a publicity stunt behind the veil of public interest, which cannot be entertained and is liable to be dismissed outrightly---Constitutional petition was dismissed accordingly.

Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Discretionary remedy---Exercise of jurisdiction under Art. 199 of the Constitution is discretionary.

Rehmatullah v. Hameeda Begum 1986 SCMR 1561 and Member (S & R) / Chief Settlement Commissioner, Board of Revenue Punjab, Lahore and another v. Syed Ashfaque Ali and another PLD 2003 SC 132 ref.

Petitioner in person.

2023 C L C 2169

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

GHULAM SHABBIR----Petitioner

Versus

Mst. TANZEELA NUSRAT and others----Respondents

Writ Petition No.2669 of 2023, decided on 12th September, 2023.

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

----S. 145---Contract Act (IX of 1872), S. 128---Execution of decree---Decretal amount, non-payment of---Liability of surety, enforcement of---Section 145 of the Civil Procedure Code, 1908, stipulates that when a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of the Court in any suit or proceedings, the decree can be executed against him to the extent for which surety has rendered himself personal lyliable in the manners provided therein---After default has occurred there is no reason to absolve the surety from his liability to pay the agreed amount which has become due against him in view of principles laid down in S.128 of the Contract Act, 1872 and S. 145 of the Civil procedure Code, 1908.

Muhammad Muzamal Riaz v. Additional District Judge, Shorkot, District Jhang and 6 others 2020 CLC 970 ref.

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

----S. 145---Contract Act (IX of 1872), S. 128---Family Courts Act (XXXV of 1964), S. 13---Execution of decree passed by Family Court---Decretal amount not paid by judgment-debtor---Liability of surety, enforcement of---Proceedings against the surety---Contention of the petitioner /surety was that he stood surety only for a certain amount and not for entire satisfaction of decree, while said /certain amount had already been paid by him during execution proceedings, therefore, he was liable to be released and his property de-attached---Validity---Record revealed that the judgment-debtor was sent to civil prison due to non-payment of decretal amount and thereafter, the petitioner, being surety, was summoned to satisfy the decree---It was also evident from the contents of the surety bond as well as the statement recorded before the Court by the petitioner/surety, that he himself had made him liable to pay the decretal amount in place of the judgment-debtor on his failure to satisfy the decree, thus, the petitioner later could not wriggle out of his own undertaking---However, High Court directed the Executing Court to decide the pending objection petition of surety after framing of issues and recording of evidence of parties regarding the amount paid or to be paid by the petitioner/surety to the decree-holder---Constitutional petition was disposed of accordingly.

Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and othe`rs 2006 SCMR 619; Shafiullah v. Saifullah and 7 others PLD 2017 Pesh. 203 and Ahmad Ali and another v. Sheikh Amman Elahi 2015 CLC 1704 ref.

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

----S. 145---Contract Act (IX of 1872), S. 128---Family Courts Act (XXXV of 1964), S. 13---Constitution of Pakistan, Art. 199---Execution of decree passed by Family Court---Non-payment by the judgment-debtor---Proceedings against the surety---Concurrent findings---Constitutional jurisdiction of the High Court---Scope---Contention of the petitioner/surety was that he stood surety only for a certain amount, and not for entire satisfaction of decree, while said /certain amount had already been paid by him during execution proceedings, therefore, he was liable to be released and his property de-attached---Validity---High court could not interfere with the findings recorded by the Family Court which later were concurred with by the Appellate Court, and both were in accordance with the law/evidence---In the present case, neither any jurisdictional error of the Courts below had been challenged nor conduct of proceedings by the Courts below had been called in question---No illegality was found in the impugned concurrent judgments of the Courts below, which could not be interfered with especially when the same were based upon substantial evidence which the petitioner had not been able to controvert during the proceedings before the Courts below---Both the Courts had recorded findings of facts assigning cogent and sound reasoning which did not warrant any interference by the High Court---Constitutional petition was dismissed, in circumstances.

Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 246; M. Hamad Hassan v. Mst. Isma Bukhari and 2 others 2023 SCMR 1434; Mst. Nusrat and others v. Dr. Cap. Shahzad Riaz and others 2011 SCMR 1325 and Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243 ref.

Shahid Mehmood Abbasi, ASC for Petitioner.

Mirza Asif Abbas for Respondent.

Arshad Mehmood Malik, Assistant Attorney General.

2023 C L C 69

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

ISMAIL----Petitioner

Versus

NAZREEN and others----Respondents

Civil Revision No.1005 of 2009, decided on 26th May, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Art.129, illustration (g)---Suit for declaration and injunction---Concurrent findings of facts by two Courts below---Withholding of evidence---Effect---Petitioner / plaintiff claimed to be owner of suit land on the basis of registered sale deed executed by predecessor-in-interest of respondents / defendants---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by petitioner / plaintiff---Validity---No independent person representing predecessor-in-interest of respondents / defendants either at the time of execution or registration of sale deed was produced by petitioner / plaintiff before Trial Court as witness---Statement of alleged attorney was also not recorded by petitioner / plaintiff and an adverse inference was drawn that had such person been produced, he would not have supported petitioner / plaintiff---High Court declined to interfere in concurrent judgments and decrees passed by two courts below, as both the Courts had properly appraised evidence of parties---Petitioner / plaintiff was not able to point out any illegality, irregularity or jurisdictional defect in the judgments and decrees passed by two Courts below---Revision was dismissed, in circumstances.

Sardar Ali v. Khan 2005 SCMR 1583; Muhammad Rasheed Khan's case 2009 SCMR 740; Ghulam Mustafa v. Muhammad Yahya 2013 SCMR 684; Mst. Hajyane Bar Bibi PLD 2014 SC 794; Mst. Moiz Abas's case 2019 SCMR 74; Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582; Ibadullah and others v. Sher Afzal 2006 CLC 666 and Wali Muhammad v. Noor Muhammad through Legal Heirs and 2 others 2017 YLR Note 419 ref.

Barrister Dr. Adnan Khan for Petitioner.

Shah Salam Khan for Respondents.

2023 C L C 96

[Peshawar]

Before S.M. Attique Shah and Shahid Khan, JJ

SUI NORTHERN GAS PIPELINE through Incharge Sui Gas Office, Charsadda and 2 others----Petitioners

Versus

GUL HAKEEM and another----Respondents

Writ Petition No.2752-P of 2022, decided on 24th August, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.VIII, R.10---Defence, striking off---Written statement, non-filing of---Petitioner / defendant despite availing of repeated opportunity failed to file written statement---Trial Court in exercise of powers under O.VIII, R.10, C.P.C. struck off right of defence---Validity---When record did not speak of copy of notice under O.VIII R.10, C.P.C. to petitioner / defendant through its counsel or representative, presumption was in favour of petitioner / defendant that notice under O.VIII, R.10, C.P.C. was not served---Proceedings of Trial Court got presumption of truth but when in order of Trial Court it was highlighted that notice was given orally without specific name and designation of person or particulars of counsel or representative were highlighted, such situation favoured petitioner / defendant---Penal consequences against petitioner / defendant in such situation would not meet the ends of justice---High Court set aside the order passed by Trial Court subject to payment of cost to respondent/plaintiff---Constitutional petition was allowed, in circumstances.

PLD 2001 Lah. 143 and PLD 1994 Pesh. 161 rel.

Yasir Saleem for Petitioners.

Aftab Ahmad Durrani for Respondent.

2023 C L C 155

[Peshawar]

Before Lal Jan Khattak and Kamran Hayat Miankhel, JJ

Messrs RIAZ & SONS through Director Operations----Petitioner

Versus

SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and 5 others----Respondents

Writ Petitions Nos. 350-P and 351-P of 2022, decided on 17th February, 2022.

(a) Khyber Pakhtunkhwa Public Procurement Regulatory Authority Act (XI of 2012)---

----S.35---Khyber Pakhtunkhwa Public Procurement Grievance Redressal Rules, 2017, R.6---Grievance petition---Limitation---Petitioner company was aggrieved of bidding process and order passed by Grievance Redressal Committee dismissing the complaint---Validity---If a procuring entity failed to decide complaint within the stipulated time period, which was eight days as envisaged in R.6 of Khyber Pakhtunkhwa Public Procurement Grievance Redressal Rules, 2017, an aggrieved bidder could file appeal with the Authority--- Petitioner filed appeal after more than 3 months and 23 days, which appeal was rejected by Competent Authority---Appeal filed by petitioner was barred by time without any cogent and convincing reason for condonation of delay---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046 and Khushi Muhammad through L.Rs. and others v. Mst Fazal Bibi and others PLD 2016 SC 872 rel.

(b) Limitation---

----Void order---Person who wants to impugn any order must do so within the limitation period and even if the order is void, he has to plead his knowledge and then prove the same through cogent and reliable evidence, so as to legally justify his claim.

Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046 rel.

Barrister Qamar Hussain Sabzwari for Petitioner.

Muhammad Sohail, A.A.G. for Respondents Nos.1 to 4.

Aamir Javed for Respondent No.5.

2023 C L C 244

[Peshawar (Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

Mst. SAFINA NOOR----Petitioner

Versus

MUHAMMAD AYUB and 2 others----Respondents

Writ Petition No.1259-A of 2019, decided on 25th April, 2022.

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

----S.5, Sched.--- Dower---Burden to prove---Photo copy of Nikahnama---Wife filed suit for recovery of dowered property, gold ornaments, past maintenance for herself and minor daughter and recovery of dowry articles before the Family Court---Husband appeared and filed written statement and also prayed for restitution of conjugal rights ---Family Court decreed the suit of wife---Appellate Court partially allowed both appeals filed by wife and husband against decree of Family Court---Validity----Wife's claim was that her marriage with the husband was solemnized and her dower was fixed as 04 tolas gold ornaments, 10 marlas plot and a constructed house by husband---Wife failed to produce original Nikahnama---Wife neither produced Nikah Khawan nor Nikah Registrar nor any witness of the Nikahnama to substantiate her claim---Copy of Nikahnama was never exhibited but was marked, because it was a photocopy---Witnesses produced by the wife after recording their examination-in-chief had absented themselves and were never cross-examined, due to that reason their evidence could not be looked into---Wife never applied to produce secondary evidence in order to prove Nikahnama----Husband in his cross-examination stated that 04 tolas gold ornaments were fixed as dower and the same had been paid to wife and he also admitted that one house was also given to wife for residence---Husband stated that house was meant for residence purposes---Further in cross-examination he had stated that he was ready to take his wife along with him as he loved her very much---Wife had proved the dower in shape of house whereas failed to prove through evidence about dower in shape of 10 marals---Constitutional petition was dismissed.

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

----S.5, Sched.---Snatching of gold----Burden to prove---Refusal to take special oath---Payment of 04 tolas gold ornaments of dower had not been disputed---Petitioner(wife) appeared as witness and also in her plaint admitted the delivery of gold ornaments which she wore at the time of her marriage but failed to prove the snatching of the same---In her cross-examination she refused to accept the proposal of special oath about snatching of gold ornaments---In her cross-examination petitioner stated that there was no evidence regarding snatching of gold ornaments---Petitioner had failed to prove the snatching of gold ornaments, in circumstances.

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

----S.5, Sched.---Past maintenance for wife---Refusal of wife to rehabilitate with husband----Self desertion by wife---Wife as well as her minor daughter claimed past maintenance and recovery of dowry articles as per list annexed with the plaint or its market value-Wife in her plaint averred that gold ornaments were snatched by her husband and she was ousted in her wearing apparel but she failed to substantiate her claim and also failed to produce any witness in that regard---Wife failed to produce evidence regarding beating and ousting her from the house of husband---Wife had also failed to prove the cruelty on behalf of husband, while husband had stated the date his wife left his house---Husband himself appeared as witness and produced three witness in support of his version---One of the witnesses who was paternal uncle of husband and wife, stated that he went to wife for the purpose of reconciliation/rehabilitation but she was not ready ---Another witness from husband side stated that for the purpose of rehabilitation of wife, husband accepted all the conditions of his wife in order to rehabilitate but later on she refused to live with husband---Third witness who was also neighbour of the wife stated that he was part of Jirga, which went to the house of wife for reconciliation; that certain conditions came forward from wife's side, which were accepted by husband but even then the wife was not ready to live with husband---All the three witnesses were cross-examined but nothing came out which favoured the wife---Wife during her cross-examination admitted the sending of Jirga by husband; she had also stated that Jirga sent by husband was not accepted by her---Version of husband regarding self desertion of wife was proved---Husband was bound to maintain his wife as per his resource but wife must fulfil her obligation towards her husband---Wife was not willing to fulfil her obligations towards her husband without any lawful justification, so she was not entitled for past maintenance.

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

----S.5, Sched.---Past maintenance for minor daughter---Obligations of the father---Scope---Father is bound to maintain his minor daughter until she is married---Father is bound to maintain their progeny---In the Quran much stress has been laid on the obligation of the parents toward their children---Father is bound to maintain his minor daughter.

Surah Nisaa Verse No.11 ref.

Hafiq Bakhtiar Ahmad Awan for Petitioner.

Ms. Uzma Munawar for Respondent.

2023 C L C 277

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

SHER AFZAL KHAN----Petitioner

Versus

NOOR ISLAM and others----Respondents

Writ Petition No.534-M of 2020, decided on 27th June, 2022.

(a) Khyber Pakhtunkhwa Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Reconstruction of rented premises---Permission for reconstruction obtained after decision on ejectment petition---Effect---Landlord filed an application for ejectment of tenants under S.13(2)(vi) of the Urban Rent Restriction Ordinance, 1959---Rent Controller dismissed the ejectment application---Appellate Court dismissed the appeal---Validity---Landlord was granted permission for reconstruction much after the decision of the Appellate Court---Case of the landlord did not fall within the ambit of S.13(2)(vi) of the Ordinance---Approval of building plan was neither placed before the Rent Controller nor before the Appellate Court in order to substantiate the contention of the landlord for reconstruction or erection of a new building and the petition under Article 199 of the Constitution could not be held to be continuation of the ejectment application filed before the Rent Controller---Application of landlord was premature, as such, it was rightly dismissed by both the lower fora---Order of ejectment on the ground of reconstruction and good faith could only be passed after holding proper inquiry/trial---Writ petition was dismissed.

Muhammad Hussain v. Muhammad Siddique and 2 others PLD 1988 SC 731 ref.

(b) Khyber Pakhtunkhwa Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Reconstruction of rented premises---Scope---No restriction exists for seeking the eviction of the tenant on the ground of reconstruction of the demised premises subject to the conditions as provided in S.13(2)(vi) of the Rent Restriction Ordinance, 1959---No requirement of the law for the landlord to establish that the demised premises are in dilapidated or in dangerous condition because the landlord has a right to improve his property despite the building may not be in dilapidated condition, however, S. 13(2)(vi) has provided a mechanism which manifests that the building or rented land is reasonably and in good faith required by the landlord for reconstruction or erection of a building on the site, and the landlord has obtained necessary sanction for the said reconstruction from the concerned authority for the area where such building or rented land is situated---Section 13(2)(vi) makes it obligatory for the landlord to obtain necessary sanction of reconstruction or erection of new building from relevant authorities at the time of filing of ejection/eviction application or even during its pendency but said provision does not require it to be renewed again and again before starting the actual process of reconstruction.

Qamar Din v. Mst. K.Taleh Begum 1980 SCMR 516 rel.

(c) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.4---Fair rent, determination of---Scope---Section 4 pertains to determination of the fair rent, where the Rent Controller on the application of landlord or tenant of any rented premises fixes the fair rent after holding an inquiry, as he thinks fit, however, in no way, the Rent Controller can enhance the rent more than 25% of the rent of building being paid by the tenant on the date of filing of the application under subsection (1) of S. 4---Proviso to subsection (4) of S. 4 is not only lucid, self-explanatory, intelligible, unambiguous but also open to only one interpretation that the jurisdiction of the Rent Controller in enhancement of the agreed rent is only to the extent of 25% and the Rent Controller, in no circumstance, can enhance the rent exceeding 25% of the agreed rent or rent being paid by the tenant on the date of filing of the application---When the legislature has provided the ceiling limit for enhancement/increase of the rent, Rent Controller will have to follow the same and in no case can enhance the rent more than 25% of the rent being paid by tenant on the date of filing of the application.

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; Ajmir Shah, Ex-Sepoy v. The Inspector General, Frontier Corps Khyber Pakhtunkhwa and another 2020 SCMR 2129; Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Limited PLD 2016 SC 995 and Human Rights Cases Nos.4668 of 2006 and others PLD 2010 SC 759 ref.

(d) Administration of justice---

----When a thing is required to be done in a particular manner, it must be made in that manner and not otherwise.

Abdul Halim Khan for Petitioner.

Nemo. for Respondents.

2023 C L C 320

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

AURANGZEB JEHANGIRI and 8 others----Petitioners

Versus

TEHSIL MUNICIPAL ADMINISTRATION MANSEHRA through Tehsil Municipal Officer and others----Respondents

Civil Revision No.577-A of 2009, decided on 27th October, 2022.

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

----Ss.42, 54 & 8---Civil Procedure Code (V of 1908), O.I, R.8---Suit for declaration, permanent injunction and possession---One person may sue or defend on behalf of all in same interest---Shamilat deh property---Scope---Petitioners filed a suit seeking declaration, permanent injunction and possession by way of removing building material from the shamilat deh (property)---Petitioners were granted permission for filing representative suit but list of all the persons having interest in the suit property was not furnished and therefore, no notice was issued to them hence, the basic condition for filing suit in representative capacity was not complied---Record showed that some of the co-owners of shamilat were impleaded and the Appellate Court being vigilant had passed the order wherein it was held that the suit land would not be occupied exclusively nor would the parties use it for their own benefit without express consent and permission of other co-owners---Plaint seemed to oust all other co-owners of suit land---Order passed by Appellate Court in no way damaged the rights of petitioners rather the right to use or for deriving benefit of the suit land it was made conditional to get the express consent and permission of other co-owners---Revision petition was dismissed.

Muhammad Azam and 2 others v. Muhammad Hussain and 2 others 2014 MLD 1155 rel.

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

----O.I, R.8---One person may sue or defend on behalf of all in same interest---Scope---Order I, R.8, C.P.C. requires compliance of certain conditions to be fulfilled before filing suit, which includes firstly that there must be numerous persons, secondly, the said persons must have the same interest and thirdly, that permission for filing such suit is obtained from the Court---Court has to serve notice of filing of such suit on behalf of all the persons having interest in the suit, therefore, plaintiff shall file complete list of the co-owners interested in the property---Such notice is either to be served personally or by publication through advertisement and that too at plaintiff's expense.

Sajjad Ahmad Ramz for Petitioners.

Junaid Anwar Khan for Respondents.

2023 C L C 363

[Peshawar]

Before Mohammad Ibrahim Khan and Shakeel Ahmad, JJ

Messrs CEMTECH - JIANGSU JV through Authorized Representative /Signatory----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 5 others----Respondents

Writ Petition No.4887-P of 2020, decided on 27th October, 2022.

Khyber Pakhtunkhwa Public Procurement Regulatory Authority Act (XI of 2012)---

----S.30---Khyber Pakhtunkhwa Public Procurement of Goods, Works and Services Rules, 2014, R.47---Public Procurement---Bidding process---Legitimate expectation, principle of---Applicability---Lowest bidder---Vested right---Scope---Petitioner company assailed bidding process on the plea that it was the lowest bidder and its bid could not be declined---Validity---Procurement entity never agreed to award contract for operation and maintenance services to petitioner company---Government, its agency or procurement entity possessed power to reject offer of the lowest bidder---Procurement entity even could change its policy but before confirmation of bid---Principle of legitimate expectation would arise in a case where petitioner was denied an opportunity of being heard in a case where he had got a right of hearing or the practice had been that before a decision was taken the affected parties would generally be heard---Bid of petitioner company was canceled / rejected and it was informed of the same and there was no procedural illegality---High Court declined to interfere in the matter for the reason that petitioner company was the lowest bidder and there was no valid ground for rejecting bid offered by it---Petitioner company had no right that its bids should be accepted---Constitutional petition was dismissed, in circumstances.

Nilgine Contractors Society v. The State of Orissa AIR 1975 Orissa 33; Messrs Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd. 1990 (3) SCC 280 and CCSU v. Minister for the Civil Service 1984 ER 954 ref.

Isaac Ali Qazi for Petitioner.

2023 C L C 427

[Peshawar]

Before Qaiser Rashid Khan, CJ and S M Attique Shah, J

Mst. ROZEENA----Petitioner

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Government of Khyber Pakhtunkhwa and 6 others----Respondents

Writ Petition No.2675-P of 2020, decided on 17th May, 2022.

Constitution of Pakistan---

----Art.199---Constitutional petition---Prime Ministers Assistance package---Applicability---Petitioner was widow of a civil servant, who went missing on 18-3-2014---Petitioner was extended benefit of Prime Minister package---Validity---Husband of petitioner went missing since 18-03-2014, which fact was affirmed by Federal Government/Cabinet Division vide notification dated 29-12-2015---In the light of subsequent office memorandum dated 8-9-2017 of Federal Government / Establishment Division, missing Federal Government employees, were to be treated at par with deceased Federal Government employees---Status of husband of petitioner was converted from missing to that of deceased---Petitioner was entitled for grant of Prime Minister's Assistance package of year 2014, notified by Federal Government / Establishment Division vide Office Memorandum No.8/10/2013-E2 dated 20-10-2014---High Court directed Federal Government to extend such benefit to petitioner, who in turn would surrender amount on account of salaries of her husband which she received pursuant to the letter bearing No.FD(PRC)1-1/2016 dated 2-12-2016 of Finance Division, Khyber Pakhtunkhwa---Constitutional petition was allowed accordingly.

Ali Gohar Durrani for Petitioner.

Muhammad Taufique Qureshi, DAG for Respondents.

Ms. Sophia Noreen, A.A.G. for Provincial Government.

2023 C L C 487

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

ABDUL QADOOS and others----Petitioners

Versus

P.H.A. and others----Respondents

Writ Petition No.217-A of 2014, decided on 22nd September, 2022.

Land Acquisition Act (I of 1894)---

----Ss.4, 11 & 17---Acquisition of land---Non-publishing notification in official gazette---Petitioners assailed award issued under S.11 of Land Acquisition Act, 1894 and sought the same to be illegal, unlawful and void, and also sought its cancellation for it was in gross violation of law---Validity---Non-issuance of notification under S.4 of Land Acquisition Act, 1894 and its non-publication in official gazette was violation of statutory provision laid down in S.4(1) of Land Acquisition Act, 1894--- Issuance of award under S. 11 or 17 of Land Acquisition Act, 1894, was without jurisdiction and of the legal effect---High Court set aside order passed by authorities and cancelled award in question---High Court directed land owners who received compensation in lieu of award in question to return the same to concerned authority---Constitutional petition was allowed in circumstances.

Dilshad and 2 others v. Senior Superintendent of Police and 2 others PLD 2007 Kar. 330; Umar Farooq v. Acquisition Collector, Bannu and 4 others PLD 1975 Pesh. 103; 2019 CLC 654; 2020 CLC 442 and 2018 CLC 449 ref.

Saleem Awan for Petitioners.

Sardar Ali Raza, A.A.G. for Respondents Nos.1, 4 and 5.

Atif Raheem Barki for Respondents Nos.2 and 3.

2023 C L C 515

[Peshawar]

Before Shakeel Ahmad, J

FAZL-E-KHALIQ----Petitioner

Versus

Dr. NELOOFAR YOUSAFZAI----Respondent

Civil Revision No.140-P of 2021, decided on 6th October, 2022.

Civil Procedure Code (V of 1908)---

----S.12(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Fraud and misrepresentation---Effect---Ubis jus ibi remedium, doctrine of---Applicability---Petitioner/plaintiff claimed to be owner of suit property and Trial Court decreed the suit in his favour---Appeal filed on behalf of respondent/defendant was withdrawn by her counsel---Lower Appellate Court on application of respondent/defendant restored appeal in exercise of jurisdiction under S.12(2), C.P.C.---Validity---Fraud could not be directly proved it had to be inferred from surrounding circumstances---Fraud vitiated the most solemn proceedings---Respondent / defendant filed her appeal by appointing counsel who withdrew it without consent and authorization, which gave undue advantage to petitioner / plaintiff who had become the sole beneficiary on the withdrawal of appeal---All essential ingredients of collision, were proved and verdict of Trial Court in favour of petitioner / plaintiff remained intact due to withdrawal of appeal by the counsel of respondent / defendant unilaterally and making false statement that he was under instruction of respondent / defendant to withdraw the same---Withdrawal application was accepted by Trial Court in violation of ground realities existed on the spot---Such was sufficient to establish that petitioner / plaintiff was a beneficiary and secured order of withdrawal in connivance with counsel of respondent / defendant--- Doctrine of ubi jus ibi remedium, was rightly pressed into service to hold that order of withdrawal of appeal of respondent / defendant by her counsel was without authorization, consent and the same was the result of fraud, misrepresentation and collision with petitioner---High court declined to interfere in order passed by Lower Appellate Court as there was no illegality, irregularity or jurisdictional defect in order passed by Lower Appellate Court---Revision was dismissed in circumstances.

Mst. Izat Begum and another v. Kadir Bux PLD 1959 Kar. 221; Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Black's Law Dictionary Ninth Edition; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others PLD 1984 Lah. 396; Munir Ahmad Khan v. Sameeullah Khan and 7 others 1986 CLC 2655; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Messrs Wallia Steel Industries PLC v. Messrs SAGA Shipping and Trading Corporation Ltd. and others PLD 2019 Sindh 22 and Shukar Din v. Inamullah and another PLD 1992 SC 67 rel.

Qazi Jawad Ehsanullah for Petitioner.

Wasiullah for Respondent.

2023 C L C 549

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

GUL REHMAN and others----Petitioners

Versus

KHAN BAHADAR and others----Respondents

Civil Revision No.739 of 2007, decided on 28th March, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Art.100---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Thirty years old document---Presumption---Judgment at variance---Suit filed by petitioners / plaintiffs was based upon more than thirty years old deed of possession, original of which was not produced during trial---Lower Appellate Court reversed findings of Trial Court and dismissed the suit---Validity---Mere 30 years age of document did not provide any justification for its proof unless document was proved in accordance with Qanun-e-Shahadat, 1984---When document was questioned, sole ground of age of document as 30 years could not be taken as gospel truth as genuineness of document was disputed---Duty of Trial Court to determine question of its genuineness and correctness, because age of document alone did not amount to a proof but the correct contents of such document---If genuineness of document was susceptible to suspicion, Court could refuse to raise presumption and ask for proof of its contents---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as petitioners / plaintiffs could not point out any illegality, irregularity or jurisdictional defect in findings of Lower Appellate Court---Revision was dismissed in circumstances.

Hashim Khan v. National Bank of Pakistan, Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta PLD 2001 SC 325; Ch. Ghulam Rasool's PLD 2008 SC 146; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Mst. Naseem Fatima's case PLD 2005 SC 455; Nadir Khan and 5 others v. Muqadar Khan and others 2017 CLC 277 and Mazloom Hussain v. Abid Hussain PLD 2008 SC 571 rel.

Adil Khan Tahirkheli for Petitioners.

Asghar Ali for Respondents.

2023 C L C 613

[Peshawar]

Before Kamran Hayat Miankhel, J

MUHAMMAD SAJID----Petitioner

Versus

IBRAR GUL----Respondent

Civil Revision No.220-A of 2022, decided on 21st July, 2022.

Civil Procedure Code (V of 1908)---

----S.115, O.XVIII, R.17, O.XXXVII, Rr.2 & 3--- Suit for recovery of money on the basis of pro-note---Re-summoning of witness---Principle---Petitioner / plaintiff sought re-summoning of a witness which permission was denied by Trial Court---Validity---Provision of O.XVIII, R.17, C.P.C. was not meant and not designed for the purpose of enabling a party to fill up omissions in evidence of a witness who was already examined---Purpose, nature and scope of power available to Court under O.XVIII, R.17 C.P.C. was to enable Court to seek clarification on any issue or to have a doubt cleared in statement of that witness which if left outstanding would be difficult for the court to take a right decision---Case set out by petitioner / plaintiff for re-summoning of witness under O. XVIII, R.17, C.P.C. did not qualify the test---Whole proceedings took place before Trial Court who had rightly dismissed application filed by petitioner /plaintiff---High Court declined to interfere in order passed by Trial Court as there was no illegality or irregularity committed by Trial Court---Revision was dismissed in circumstances

2023 C L C 663

[Peshawar]

Before Shakeel Ahmad, J

Mst. HUSSAN ARA (WIDOW)----Petitioner

Versus

Mst. SURAYYA BEGUM DECEASED (through Legal Heirs) and others----Respondents

Writ Petition No.4812-P of 2019, decided on 1st December, 2022.

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

-----Ss.53 & 172---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Registered document, cancellation of---Fraud and misrepresentation---Revenue authorities, jurisdiction of---Petitioners were aggrieved of cancellation of registered general power of attorney and mutation of transfer of land by revenue authorities on the plea of fraud and misrepresentation---Validity---Cancellation of general power of attorney and mutation on the ground of fraud and misrepresentation could only be challenged before competent Court of civil jurisdiction by invoking provisions of Ss. 39 & 42 of Specific Relief Act, 1877, through a suit for declaration for cancellation of instrument declaring the same to be void or voidable---Registered document could not be cancelled without intervention of a civil Court of competent jurisdiction---Revenue officer or revenue Court could not examine authenticity of a registered instrument in exercise of powers, conferred under the provisions of Khyber Pakhtunkhwa Land Revenue Act, 1967, in view of the provisions contained in S.39 of Specific Relief Act, 1877---Revenue Official exceeded his power by declaring registered general power of attorney and mutation in question as executed by practicing fraud and misrepresentation---Scope of S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967 was entirely different, it only excluded jurisdiction of civil Court for taking in hand functions assigned to revenue officers or revenue Courts under S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967, including correction of any entry in record of rights, periodical record or register of mutations---High court in exercise of Constitutional jurisdiction set aside orders passed by revenue authorities and question to the genuineness, authenticity and legality of general power of attorney and mutation in question was to be determined by competent civil Court---Constitutional petition was allowed accordingly.

Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31 and Ali Azim Afridi, Advocate High Court, Peshawar v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 03 others PLD 2020 Pesh. 105 distinguished.

Muhammad Ali Sabtain and 4 others v. Mst. Shah Jehan Bibi and 9 others 2004 YLR 1201; Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334; Aurang Zaib v. M/s. Al-Haider Construction Company through Managing Partner and 4 others PLD 1993 Kar. 397; Ghausbox v. Altaf Hussain and others PLD 1993 Kar. 410 and Mst. Gul Pari alias Gulbaro v. Zarin Khan and others PLD 1994 Pesh. 249 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Concurrent findings of facts by Courts below---Scope---High Court while exercising jurisdiction under article 199 of the Constitution ordinarily and normally does not interfere with concurrent findings of Courts below or lower fora---If allegation of lack of jurisdiction or mala fide or patent illegality is attributed to the tribunal or authority passing order in question, the same can be set aside in exercise of provisions conferred under Art.199 of the Constitution, by issuing a writ of certiorari.

Abdul Sattar Khan for Petitioner.

Khalid Mehmood for Respondents.

2023 C L C 690

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

LAJBAR KHAN and others----Petitioners

Versus

KAMIN KHAN and others----Respondents

Civil Revision No.54-M of 2022, decided on 16th June, 2022.

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

----S.12---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), Ss.135 & 147---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of private partition agreement---Partition of agricultural land---Rejection of plaint---Concurrent findings of facts by two Courts below---Petitioners / plaintiffs sought partition of agriculture land but plaint was rejected by Trial Court and Lower Appellate Court---Validity---Revenue hierarchy under S.135 of Khyber Pakhtunkhwa Land Revenue Act, 1967, as well as all other enabling provisions was bound to make official partition among co-sharers--- During such process, if there was any private arrangement / private partition among the parties the same could be entertained and acted upon in view of S.147 of Khyber Pakhtunkhwa Land Revenue Act, 1967---Such private partition could only be entered and acted upon if all stakeholders were agreed to the same but the moment private arrangement / private partition was denied or disputed or controverted by a co-sharer, then he could not be compelled for the same and in such eventuality, revenue hierarchy was bound to proceed with official partition---High Court declined to interfere in the matter as petitioners / plaintiffs failed to point out any illegality / irregularity committed by two Courts below while passing their judgements and decrees, which were correct and in accordance with the relevant law on the subject---Revision was dismissed in circumstances.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Ali Gohar and another v. Abdullah Mallah and 5 others 2021 CLC 1102; Ameer Abbas Sial v. Province of Punjab 2020 CLC 792 and Bakht Zada v. Shah Tamash Khan and 5 others 2016 YLR 2337 rel.

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

----S.9---Civil Court, jurisdiction of---Determining factors---Jurisdiction of Civil Courts to try civil cases can be classified into (a) territorial jurisdiction; (b) pecuniary jurisdiction; and (c) jurisdiction over subject matter---Jurisdiction over subject matter of suit of civil nature is most pivotal and determinative as regard assumption and exercise of jurisdiction by any Civil Court, such jurisdiction is through special enactments and statutes.

Malik Khan Muhammad Tareen v. Messrs Nasir and Brother Coal Company through Proprietor and others 2018 SCMR 2121 rel.

Alim-ur-Rehman for Petitioners.

2023 C L C 708

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

SAFAIDULLAH and others----Petitioners

Versus

GUL DAD----Respondent

Civil Revision No.564-A of 2010, decided on 28th September, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 9---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.52---Suit for declaration, permanent injunction and possession---Presumption in favour of entries in records of rights and periodical records---Scope---Plaintiffs filed a suit for declaration, permanent injunction and possession to the effect that they were owners in possession of 3/4th share in the suit property whereas the defendants were owners of 4th share and therefore, entries of 2/4th share in favour of defendants were wrong, illegal and were a result of fraud---Trial Court and Appellate Court decreed the suit---Validity---Revenue record revealed variation in the share of plaintiffs from 3/4th to 4th in spite of the fact that there was neither any transaction or alienation from them, nor said variations were made through Court decree---Plaintiffs had convincingly discharged the onus of proving wrong entries in the revenue record---Presumption of correctness was attached to the very first entry in revenue record incorporated through settlement---Defendants in their written statement had not specially taken any plea, however, they had contended that suit was filed to counter partition petition filed by them, however, during their evidence they took the ground of a Sharai Jirga---Defendants gave up earlier stance and contended to have purchased the land---Since the defendants through their evidence had pleaded entirely different case, hence, the evidence beyond pleadings could not be entertained---Courts below had rightly declared the plaintiffs to be entitled to their share originally recorded in the Misl-e-Haqiat---Revision petition was dismissed.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 and Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 rel.

Junaid Anwar Khan for Petitioner.

Hamayun Khan for Respondent.

2023 C L C 731

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

Dr. AMJAD ALI----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others----Respondents

Writ Petition No.1015-M of 2021, decided on 18th May, 2022.

Land Acquisition Act (I of 1894)---

----S.4---Acquisition of land---Selection of land---Jurisdiction---Petitioners were aggrieved of acquisition of land by authorities for the purpose of graveyard---Plea raised by petitioners was that authorities should have acquired baren land instead of agriculture land---Validity---Such was consideration of acquiring agency keeping in view nature of public purpose, for which they proposed a particular site, process was completed and ultimately award was issued---Neither petitioner nor residents of the area or anyone else approached authorities concerned for redressal of their grievance---Neither petitioners nor added respondents who were supporting petitioners' contention were able to establish violation of law, infringement of their fundamental rights or contravention of statutory provision i.e. Land Acquisition Act, 1894 and Khyber Pakhtunkhwa Land Acquisition Rules, 2020---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Muhammad Rahim Shah and Malak Sarwar for Petitioner.

Razauddin Khan, A.A.G. for Official Respondents.

Faisal Khan for Respondent/TMA.

2023 C L C 763

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

Mst. BAKHT BEGUM----Petitioner

Versus

AFARIN KHAN and 12 others----Respondents

Civil Revision Petition No.429-M of 2018, decided on 30th June, 2022.

Civil Procedure Code (V of 1908)---

----O.XLI, R.27---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Additional evidence, non-recording of---Concurrent findings of facts by two Courts below---Petitioner / plaintiff was aggrieved of judgments and decrees passed by Trial Court and Lower Appellate Court, dismissing her suit and appeal respectively---Plea raised by petitioner / plaintiff was that Trial Court did not decide her application to produce evidence and Lower Appellate Court did not allow recording of that evidence---Validity---Object of allowing parties to lead evidence at appellate stage was to enable the Court to decide controversies finally and necessities for such evidence should be felt by the Court---Parties to appeal had no right to lead additional evidence if no such request was made before Trial Court---Lower Appellate Court considered almost all contentions of petitioner / plaintiff in its judgment---Simply on such ground that application remained undecided and matter could not be remanded when petitioner could not prove a case through rest of the evidence as produced by her before Trial Court---Held, High Court could not interfere in findings of fact on the ground that on reappraisal of evidence it was possible to reach a different conclusion, unless it was shown that such finding by Lower Appellate Court suffered from misreading or nonreading of evidence, which had affected findings on merits---High Court declined to interfere in concurrent findings of facts by two Courts below, as petitioner / plaintiff could not point out any illegality, perversity or jurisdiction defect in judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Sikandar Hayat and another v. Sughran Bibi and 06 others 2020 SCMR 214; Muhammad Faisal Sultan and another v. Muhammad Ajmal through his Legal Heirs 2018 CLC 1782; Mst. Imtiaz Begum v. Mst. Sultan Jan and others 2008 SCMR 1259; Muhammad Zamin Mian and 04 others v. Shamshad and 16 others 2014 MLD 1384 and Abdul Jabbar Shahid and others v. National Bank of Pakistan and others PLD 2019 Lah. 76 ref.

Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760 rel.

2023 C L C 871

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

NOOR RAHMAN----Petitioner

Versus

SHER AFZAL and 2 others----Respondents

Writ Petition No.721-M of 2022 converted R.S.A. No.02-M 2017, decided on 27th June, 2022.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Deposit of rent through money order---Proof---Tenant contested the court orders directing his eviction---Tenant argued that when the landlord refused to accept the monthly rent, he sent it via money orders---However, this argument was not valid because the tenant did not plead this aspect in his written reply, nor did he present receipts as evidence---Additionally, the tenant did not produce any official from the post office to support his claim about payment through money orders or the landlord's refusal to accept it---Evidence presented by the tenant was not convincing and did not support his submission---Consequently, the petition was dismissed.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Sub-letting---Personal need of landlord---Scope---Tenant challenged the court orders that directed his eviction---Validity---Tenant's witness admitted that the tenant was living abroad to earn a livelihood and that he was running a business in the rented premises---Witness also stated that he took possession of the rented premises from the tenant, who had occupied it for only 2-3 months---Landlord's claim that he was in personal need of the rented premises to establish a business for his sons, who had acquired shops on rent in another market, was also admitted by the witness---Landlord was successful in establishing a case for the tenant's eviction, and the petition was dismissed.

Muhammad Aslam and others v. Hanif Abdullah and Brothers through Proprietor 2003 SCMR 1667 and Mst. Sas Bano and 3 others v. Mst. Mahmooda Sabir 2002 SCMR 412 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Expiry of tenancy agreement---Scope---Tenant challenged the court orders that directed his eviction---Validity---Tenancy period had expired and no rent agreement was executed between the parties---As a result, the tenant's possession was subject to the landlord's discretion---Therefore, when the landlord demanded possession of the rented premises, the tenant was obligated to surrender it---Since the tenancy period had ended, there was no justification for the tenant to retain possession of the rented premises without the landlord's consent---Constitutional petition was dismissed.

Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 and Arshad Ali v. Mst. Zubaidah Bibi and 2 others 2008 SCMR 1457 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Payment of rent---Scope---Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, stipulates that if the tenancy relationship is undisputed, the Rent Controller will direct the tenant to deposit all rent payments due and require regular deposits until the final decision of the case---Tenant must deposit the monthly rent payment before the fifteenth of each month---Rent payment becomes due on the last day of the preceding month, and the Rent Controller has no power to extend the payment deadline---Tenant is also not allowed to deposit the rent at his discretion.

Khawaja Muhammad Mughees's case 2001 SCMR 2020 rel.

Rukhsana Begum v. TNT express Worldwide Pakistan (Pvt.) Ltd. 2005 SCMR 1398 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Expiry of tenancy agreement---Scope---After expiry of tenancy when no further tenancy agreement is executed, tenancy between the parties is to be considered on month-to-month basis, and after expiry of tenancy period the tenant loses his right to continue his possession as a tenant over the rented premises.

Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 and Arshad Ali v. Mst. Zubaidah Bibi and 2 others 2008 SCMR 1457 ref.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Payment of security---Scope---Plea of payment of pagri/security does not disentitle the landlord form filing the ejectment proceedings against the tenant on the ground of personal bona fide need---Payment of security cannot operate as an obstacle against the right of landlord to use his own property when genuinely required.

Akhtar Munir Khan for Petitioner.

Iqbal Hussain for Respondent No.1.

2023 C L C 916

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

Malik KHURSHEED----Petitioner

Versus

Mst. TEHSEEN BIBI and 2 others----Respondents

Writ Petition No.897-A of 2021, decided on 17th October, 2022.

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

----Ss. 5, Sched. & 10(5)---Suit for dissolution of marriage---Return of dower---Scope---Husband challenged the lower courts' decision for not ordering the return of Zar-e-Khula---Issue of the payment of dower, which was 16 tolas of gold ornaments, was resolved by the Family Court, which determined that the dower had been paid to the wife at the time of marriage---Although the Appellate Court agreed that the dower had been paid, it concluded that the husband had subsequently taken it back---Validity---Wife had consistently claimed that the dower had been taken back and sold and her position was not challenged in cross-examination or disproved---Appellate Court's findings were correct and no order for the return of the dower was necessary since the husband had already taken it back---Constitutional petition was dismissed.

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

----S.5, Sched.---Suit for dissolution of marriage---Scope---Institution of marriage is considered a divine command and the Holy Quran describes the relationship between spouses as "they are like garments, unto you as you are like garments unto them"---Such divine command can only be fulfilled when the relationship between a husband and wife is based on essential virtues such as love, care, trust, sympathy, devotion, and a sense of responsibility---Without these standards of behavior, the desire for a happy marital union between the spouses cannot be fulfilled---In situations where the relationship between a husband and wife has deteriorated to such an extent that forcing them to remain together would violate Allah's commands, the dissolution of marriage on the grounds of Khula can be ordered.

Al-Qur'an Surah 2 187. foll.

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

----S.25---Custody of minors---Scope---Petitioner (father) challenged the orders of the lower courts granting custody of minors to the respondent (mother)---Petitioner was an irresponsible and unreliable person with no independent source of income---Additionally, the evidence presented showed that he had been involved in criminal cases and had absconded for a long period of time---On the other hand, the respondent had been a loyal mother who provided education and basic necessities to the minors---Therefore, she was the best choice for custody of the minors---Constitutional petition was dismissed.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope--- High Court does not generally review factual aspects decided by lower courts.

Jehangir Elahi and Zafar Iqbal for Petitioners.

Riaz Ahmed for Respondent.

2023 C L C 1066

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

TEHSIL MUNICIPAL ADMINISTRATION (TMA) through Tehsil Municipal Officer TMA, Haripur---Appellant

Versus

RAJA KHAN and another----Respondents

F.A.O. No.37-A of 2021, along with C.M. 5-A of 2023, decided on 27th February, 2023.

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

----O.VIII, R.10---Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977), S. 12---Suit for declaration and permanent injunction---Rights of the defendant, striking off---Sufficient opportunities---Scope---Appellant / defendant, despite successive adjournments and specific order (of last opportunity), failed to file written statement and reply to the application for temporary injunction---Tribunal struck off the right of the appellant/defendant to the extent of filing written statement and reply to the application for temporary injunction---Tribunal confirmed the status quo order in favour of the plaintiff/respondent---Held, that sufficient opportunities for compliance of Court's direction to file written statement and reply were granted which were not availed, thus on merit no justification or sufficient cause was shown by the appellant/defendant for setting aside the impugned order ---Appeal was dismissed, in circumstances.

(b) Appeal---

----No right of appeal under the statute---Other remedies, availing of---Right of appeal was creation of statute---Such right could be available to a litigant when the law specifically conferred any right of appeal, however, when the statute by itself did not provide the right of appeal, then other remedies available under the general law or Constitution could be pressed into service.

(c) Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----Ss. 11, 12, 13, 14(1) & 14(2)---Khyber Pakhtunkhwa Public Property (Removal of Encroachment ) Rules, 1981, R. 9---Civil Procedure Code (V of 1908), O.VIII, R.10---Dispute/controversy brought before the Tribunal established under the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ("the Act, 1977")---Jurisdiction and Procedure---Scope---Tribunal, powers of---Right of the defendant to file written statement, struck off---Appeal, right of---Scope---Held, that when the order in writing directing a person to vacate a public property and to remove structure within specified period was passed, an aggrieved person could file a suit before the Tribunal established under S.12 of the Act, 1977 as per procedure laid down under R.9 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment ) Rules, 1981---Section 13 of the Act, 1977 had conferred exclusive jurisdiction upon the Tribunal for determination of dispute that any property was a public property or otherwise---Whereas S.11 of the Act, 1977 barred the jurisdiction of Civil Courts in such matters---Tribunal had to decide the suit or application as per prescribed procedure by virtue of S.14(1) of the Act, 1977, whereas subsection (2) of S.14 of the Act, 1977 gave finality to the orders passed by the Tribunal in respect of the controversy under the Act, 1977---Section 14(2) of the Act, 1977 stipulated that any orders passed by the Tribunal which conclusively had decided the rights of the parties with regard to all or any matters in controversy under the Act, 1977 would be final and binding upon the parties---Act of 1977 had not provided any right of appeal against the orders conclusively deciding the controversy or any other matter relevant thereto, hence no right of appeal was available to the appellant/defendant and, therefore, appeal filed against the order of striking down the right of filing written statement was not maintainable---Appeal, being not maintainable, was dismissed, in circumstances.

Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others PLD 2021 SC 391 ref.

Raja Yasir Ayas Kiyani for Appellants.

Chaudhry Muhammad Younas and Shahbaz Khan for Respondents.

2023 C L C 1093

[Peshawar (Abbottabad Bench))]

Before Fazal Subhan, J

MUNEER AHMED----Petitioner

Versus

GALYAT DEVELOPMENT AUTHORITY and another----Respondents

Writ Petition No.814-A of 2019, decided on 2nd February, 2023.

Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----Ss.3, 4 & 11---Encroachment, removal of---Petitioner was aggrieved of interference of authorities in his possession over suit plot---Petitioner approached Civil Court but his plaint was returned to approach competent forum---Validity---Provisions of S. 4 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, could only be pressed into service when order under S. 3 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, was served upon an aggrieved person, who in addition to right of review could also file a suit or application before the Tribunal under S.14 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977---If Petitioner had any grievance against officials of respondent Authority for interference in his possession, he had remedy before Civil Court, which had plenary jurisdiction in the matter--- Petitioner had already filed a suit for redressal of his grievance but his earlier suit was returned for want of jurisdiction---Petitioner was technically knocked out and was left high and dry which was not the essence of law---Petitioner had a valid case before Civil Court unless he was ordered to remove encroachment if any, under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977---High Court declined to interfere in the matter, as petitioner could competently have recourse to Civil Court in case of non-observance of legal formalities under S.3 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977---Constitutional petition was disposed of accordingly.

Muhammad Farid and others v. Municipal Committee, Abbottabad through Administrator and others PLD 1999 SC 41 rel.

Haji Ghulam Basit for Petitioner.

Rashid ul Haq Qazi for Respondents.

2023 C L C 1208

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

AMIR ZADA----Petitioner

Versus

Mir DILAWAR and others----Respondents

Civil Revision No.1282-P of 2007, decided on 30th January, 2023.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss.13 & 20---Civil Procedure Code (V of 1908), S.115---Suit for possession through pre-emption---Talb-i-Muwathibat---Pre-emptor not appearing in witness box---Effect---Suits filed by rival pre-emptors were dismissed by Trial Court but Lower Appellate Court allowed the appeals and decreed the suits under the provisions of S.20 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Validity---Power of attorney did not reflect a valid reason which could be considered as a justification for appearing of attorney for pre-emptors instead of their personal appearance in witness box---No plausible reason or explanation was mentioned in power of attorney---Attorney was allegedly witness of Majlis where first Talb was made by pre-emptors and said attorney could depose to substantiate contentions of pre-emptors---Without any valid reason or justification attorney could not appear as witness to prove Talb-i-Muwathibat by pre-emptors---Both pre-emptors did not explain in plaint that who made Talb-i-Muwathibat first followed by the latter---Pre-emptors were required to make a specific reference pertaining to date, time and place of their Talb---Due to non-appearance of pre-emptors personally in witness box and that too without any valid reason/justification, they failed to make Talb-i-Muwathibat, which was root for suit of pre-emption---High Court in exercise of revisional jurisdiction set aside findings of Lower Appellate Court as the same were result of misreading and non-reading of record/evidence and misapplication of law and dismissed the suits filed by respondents/pre-emptors---Revision was allowed, in circumstances.

Abdul Qayum v. Muhammad Sadiq 2007 SCMR 957; Mst. Dilshad Begum v. Nisar Akhtar 2012 SCMR 1106; Malik Muhammad Afzal Khan v. Mir Hawas Khan and 8 others 2009 MLD 535; Allah Ditta through L.Rs and others v. Muhammad Anwar 2013 SCMR 866; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakash PLD 2003 SC 315; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Rehmat Ali through Legal Representatives v. Muhammad Younis and others PLD 2014 SC 680 and Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Rival claims---Counsel and client---Conflict of interest---Same advocate filed two suits for rival pre-emptors against each other---Effect---There was conflict of interest of both the pre-emptors---Witnesses in both rival suits were cross-examined by same advocate---Rival pre-emptors could not engage one and the same counsel keeping in view their clash of interest--- Pre-emptors failed to prove their respective cases in consonance with law---Suits filed by pre-emptors were dismissed---Revision was allowed.

Abdul Halim Khan for Petitioner.

Ihsanullah for Respondents Nos.1, 2 and 7.

Nemo for others Respondents.

2023 C L C 1344

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

SAYYAB KHAN----Petitioner

Versus

Mst. TAYYABA BIBI and 2 others----Respondents

Writ Petition No.584-A of 2022, decided on 6th December, 2022.

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

----Ss.5, Sched. & 10(3)---Suit for recovery of dower (gold ornaments)---Recording of statements of the parties during pre-trial reconciliation proceedings---Scope---Decree was passed in favour of respondent/wife for recovery of dower prayed for---Plea of the petitioner/husband was that the Court had recorded his statement at pre-trial proceedings and then wrongly relied on said statement while passing decree regarding dower---Held, that though it was not incumbent upon the Court to record statements, however, S.10(3) of Family Courts Act, 1964 ('the Act 1964') prescribed a procedure to narrow down the controversy between the parties---Words "Court shall ascertain the point at issue between the parties" as envisaged in S.10(3) of the Family Courts Act, 1964, had a much wide implication, therefore, Family Court could adopt any procedure to find out the actual dispute involved in the case---Family Court had to make all-out efforts to effect compromise between the parties to meet the very purpose of expeditious disposal of matrimonial affairs as enumerated in the preamble of the Act 1964---As a result of such efforts if a possibility of amicable solution to the dispute was expected , then Family Court could record the statement of the parties---On the other hand, if such efforts ended in failure the Court would have a clear vision of the controversy---Petitioner/husband made a clean breast of it during statements at reconciliation proceedings that three tolas gold ornaments given as dower were lying with him and after his admission subsequent denial had become meaningless, therefore, the decree of three tolas gold ornaments was rightly awarded against him---Constitutional petition was dismissed, in circumstances.

Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another PLD 2009 Pesh. 92 ref.

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

----S.5, Sched.---Suit for recovery of dowry articles---Dowry articles, claim of---Proof---Decree was passed in favour of respondent/wife for such (dowery) articles also that she alleged were missing from dowry articles under possession of the petitioner/husband---Held, that in her statement respondent/wife failed to mention anything about the list of articles nor produced /exhibited any list of dowry articles---Bailiff, on the directions of the Court, prepared a list of dowry articles which the wife alleged were missing---Respondent/wife was required to convincingly prove the preparation of those articles, by producing the relevant receipts or the shopkeepers concerned but the record was silent in said regard---Respondent could not establish the missing of any articles, therefore, in absence of any proof she could not be held entitled to the alleged missing dowry articles---High Court set-aside the judgment and decree passed in favour of respondent/wife to the extent of the alleged missing dowry articles---Constitutional petition was partially allowed, in circumstances.

Aqeel-ur-Rehman for Petitioner.

Munib-ur-Rehman for Respondent.

2023 C L C 1363

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

JAVED IMRAN----Petitioner

Versus

MUHAMMAD ARIF----Respondent

Civil Revision No.90-D of 2021 with C.M. No.119-D of 2021, decided on 23rd June, 2022.

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

----S. 12---Contract Act (IX of 1872), S. 37---Suit for specific performance of agreement to sell---Obligation of parties to contract---Scope---Plaintiff is required to be and should continue to be ready and willing to perform his part of the agreement to sell---Willingness to pay entire sale consideration under an agreement to sell pertains to the financial capacity of a buyer to make payment of the balance consideration---Plaintiff has to show that he had necessary financial capacity to pay the balance sale consideration at all points of time after the agreement to sell was entered into---Readiness to pay the sale consideration by plaintiff to perform his part of the contract is because of the fact that specific performance is a discretionary relief and to get such relief, the payment of balance amount is an obligation of plaintiff within the contemplation of S.37 of the Contract Act, 1872, which enumerates that the parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of the Contract Act, 1872 or of any other law---Deposit of balance amount in the Court is the pre-requisite for a plaintiff at the time of filing suit seeking enforcement of agreement to sell.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 and Inayatullah Khan and others v. Shabir Ahmad Khan 2021 SCMR 686 rel.

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

----S.22---Discretion as to decreeing specific performance---Scope---Grant of decree for specific performance of the agreement is a discretionary relief which discretion is not to be exercised arbitrarily but reasonably guided by judicial principles capable of correction by a Court of appeal.

Muhammad Waheed Anjum for Petitioner.

Sajid Nawaz Saddozai and Shakil Ahmad Katti Khel for Respondent.

2023 C L C 1406

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

ANWAR KHAN----Petitioner

Versus

ASSISTANT COMMISSIONER, TEHSIL ALPURAI, DISTRICT SHANGLA and others----Respondents

Writ Petition No.390-M of 2022 with Interim Relief (N), decided on 10th January, 2023.

Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----S.3---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Temporary injunction, ingredients of---Discretionary relief---Prima facie case---Good arguable case, test of---Suit for declaration/permanent injunctions was filed against the respondent/defendant (concerned Assistant Commissioner) who served the petitioner/plaintiff with notices directing him to remove superstructure over suit property---Application of plaintiff/petitioner for grant of temporary injunction in his favour, having been moved along with suit for declaration, was declined by the Tribunal---Plaintiff/petitioner asserted himself as owner-in- possession, however, he was not recorded as an owner in the relevant record---Contention of the petitioner/plaintiff was that he had purchased suit-property about 35 years ago (from two private respondents); and had constructed five-storey building and shops over the time, for which the official respondent never raised any objection before---Petitioner/plaintiff invoked constitutional jurisdiction of the High Court against rejection of temporary injunction---Held, that in order to win discretionary relief , a plaintiff had to show the co-existence of three ingredients i.e. prima facie case, balance of convenience and irreparable loss---Temporary injunction could be granted notwithstanding of the fact that the said three ingredients did not co-exist where circumstances made out a good arguable case on the strength of a prima facie case only---Possession and construction of the petitioner/plaintiff, in the present case, suggested a prima facie case, rather " a good arguable case"---If on the one hand, the temporary injunction was not to be granted and the official respondent would demolish his construction ; and on the other, if he would be able to win his case before the Tribunal, he would suffer materially as compared to the respondent---In event of dismissal of the suit of petitioner/plaintiff, official respondent would demolish the built-up property, thus, a good arguable case existed in favour of petitioner/plaintiff which offered the High Court a threshold for exercising its jurisdiction---Good arguable case was made out in favour of the petitioner/plaintiff---High Court granted temporary injunction in favour of the petitioner/plaintiff for a period of 45 days during which the Tribunal would decide the case ---Constitutional petition was allowed, in circumstances.

Muhammad Yaqoob v. Mohsin 2000 CLC 1556; Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1943 Kar. 387; Browonlie v. Four Seasons Holding Incorporated by the UK Court Appeal (Civil Division) [2015] EWCA Civ 665 and Four Seasons holding Inc. v. Browlie [2017] UKSC 80, at p 5 ref.

Asghar Ali for Petitioner.

Haq Nawaz, Assistant A.G for official Respondents.

2023 C L C 1468

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

MUHAMMAD NASIR----Petitioner

Versus

Mst. TAJ MINA and others----Respondents

Civil Revision No.219-M of 2014, decided on 4th October, 2022.

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

----S.42---Suit for declaration---Claim of inheritance---Plaintiffs filed suits for a declaration, claiming their entitlement to the Shari share in the legacy of their respective fathers---Contention of the defendant was that the plaintiffs' share in the legacy had been given by way of a cash amount and gold ornaments at the time of their respective marriages---Trial Court and Appellate Court concurrently decreed the suit---Validity---Defendant failed to establish his plea of disinheritance, as he only made bald assertions---Moreover, the defendant did not provide any iota of evidence to support his case---It remained a mystery as to how much cash amount and how much gold was handed over to the plaintiffs by their predecessor-in-interest---Additionally, there was no record or witnesses to establish that the cash amount and gold ornaments were handed over to the plaintiffs as their share in the legacy---Therefore, the defendant's plea could not be entertained---Two courts below, based on the available evidence, recorded their findings of facts and law, which the High Court found to be perfectly in accordance with evidence.

Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Shabla and others v. Mst. Jahan Afroz Khilat and others 2020 SCMR 352; Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 rel.

(b) Islamic Law---

----Claim of inheritance---Scope---In cases of inheritance, the plaintiff seeking a share in the legacy of his predecessor must prove two facts---Firstly, he needs to establish his relationship with the common predecessor of the parties---Secondly, he must demonstrate that the suit property is indeed the legacy of their common predecessor---On the other hand, if the defendant concedes to the relationship and legacy without raising any independent or exclusive plea, then the Court is required to pass a decree in favor of the plaintiff immediately---However, if the defendant puts forth a specific plea claiming disinheritance based on a particular argument, then the defendant is obligated to provide positive, convincing, and trustworthy evidence to support his claim and exclude the plaintiff from the inheritance---Moreover, any legal heir who claims disinheritance on the basis of any mode of transaction or any other plea, then he is under heavy burden to prove the same as the plea of disinheritance goes squarely against the law of the land as well as the command of Allah Almighty---Therefore, the law places a weighty responsibility on such individuals to substantiate their claim.

Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Shabla and others v. Mst. Jahan Afroz Khilat and others 2020 SCMR 352 and Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64 rel.

(c) Islamic Law---

----Claim of inheritance---Scope---Moment a Muslim dies, his legacy devolves to all his legal heirs as per their respective prescribed shares and if any person disputes or controverts these prescribed shares, then a heavy burden of proof lies on him to prove those exceptional circumstances through a reliable, confidence inspiring and legally admissible evidence.

Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Shabla and others v. Mst. Jahan Afroz Khilat and others 2020 SCMR 352 and Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64 rel.

Musa Khan and Fida Muhammad for Petitioner.

Altaf Ahmad and Ishaq Khan for Respondents.

2023 C L C 1518

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

Mst. ADALAT BIBI----Petitioner

Versus

Mst. SOCHA BIBI and others----Respondents

Writ Petition No.1288-M of 2022 with Interim Relief, decided on 14th November, 2022.

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

----Arts. 59, 72 & 117---Specific Relief Act (I of 1877), Ss.42 & 39---Suit for declaration for share in legacy of father and cancellation of document---Expert's opinion---Scope---Document, genuineness of---Proof---Direct evidence---Deed (Tamleek Deed/Hiba Nama) was allegedly executed by the plaintiff in favour of defendants---Civil Court allowed an application, moved by the defendants, for sending the deed to Forensic Science Laboratory (FSL) for comparison of thumb impression of the plaintiff---Appellate Court maintained the order of the Civil Court---Objection of the petitioner/plaintiff was that respondents/defendants were required to establish the authenticity of the deed through direct evidence---Held, that the objection of the petitioner/plaintiff was misconceived as it was the direct evidence as well as confirmatory evidence or any other material/evidence which could help the Court in reaching correct decision---No interference was made out in impugned orders and judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Anwar Khan v. Fazal Manan 2010 SCMR 973 ref.

(b) Specific Relief Act (I of 1877)

----Ss.42 & 39---Constitution of Pakistan, Art.199---Qanun-e-Shahadat (10 of 1984), Arts. 59, 72 & 117---Suit for declaration for share in legacy of father and cancellation of document---Tamleek Deed/Hiba Nama ('the deed')---Writ of certiorari, issuance of---Scope---Authenticity and genuineness of document---Proof---Direct evidence ---Deed was allegedly executed by the plaintiff in favour of defendants---Civil Court allowed an application, moved by the defendants, for sending the deed to Forensic Science Laboratory (FSL) for comparison of thumb impression of the plaintiff---Appellate Court maintained the order of the Civil Court---Petitioner/plaintiff invoked constitutional jurisdiction of the High Court contending that respondents/defendants were required to establish the authenticity of the deed through direct evidence---Validity---Petitioner/plaintiff, for issuance of writ of certiorari to declare the impugned orders and judgments of Courts below as illegal or unlawful, was bound to establish that the Courts had exceeded their jurisdiction or they had not properly exercised their jurisdiction or they were not having jurisdiction, however, she could not point out any such legally recognized ground for issuance of the desired writ of certiorari---No interference was made out in impugned orders and judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Amjad Khan v. Muhammad Irshad (deceased) through LRs. 2020 SCMR 2155; Chief Executive Mepo and others v. Muhammad Fazil and others 2019 SCMR 919 and Chairman NAB v. Muhammad Usman and others PLD 2018 SC 28 ref.

Nouman for Petitioner.

Respondents are not represented being a motion case.

2023 C L C 1699

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

SAMSON GROUP OF COMPANIES----Petitioner

Versus

PUBLIC PRIVATE PARTNESHIP and others----Respondents

Writ Petition No.803-A of 2021, decided on 28th September, 2022.

(a) Khyber Pakhtunkhwa Galiyat Development Authority Act (XII of 2016)---

----Ss. 3, 4, 6 & 14 [as amended by Khyber Pakhtunkhwa Galiyat Development Authority (Amendment) Act (XVII of 2020)]---Khyber Pakhtunkhwa Public Private Partnership Act (XLII of 2020), Ss.4, 11, 12 & 29---Development of Galiyat---Award of contract---Legal regime applicable---Scope---Petitioner company was aggrieved of not following provisions of Khyber Pakhtunkhwa Public Private Partnership Act, 2020, in awarding of contract to respondent company---Validity---Having overwhelming powers for dealing with its own properties, the only way of harmonious interpretation of Khyber Pakhtunkhwa Galiyat Development Authority Act, 2016, with Khyber Pakhtunkhwa Public Private Partnership Act, 2020, was to hold that it was optional for fully autonomous bodies to have resort to Public Private Partnership or to enter into such contract under its own legal regime---It was up to Galiyat Development Authority as contracting authority to enter into mechanism provided under Khyber Pakhtunkhwa Public Private Partnership Act, 2020---If Galiyat Development Authority did not make recourse to Khyber Pakhtunkhwa Public Private Partnership Act, 2020, it had its own powers under Khyber Pakhtunkhwa Galiyat Development Authority Act, 2016, and Regulations framed thereunder to enter into Public Private Partnership for leasing out its property---Such act of Galiyat Development Authority, in not entering into Public Private Partnership, as provided in Khyber Pakhtunkhwa Public Private Partnership Act, 2020, did not suffer from illegality or want of lawful authority--- It was optional for the contracting authority i.e. Galiyat Development Authority as well as Provincial Government to have opted for undertaking the project under the provisions of Khyber Pakhtunkhwa Public Private Partnership Act, 2020 but if neither of the two had opted thereof, and rather had undertaken the project under Khyber Pakhtunkhwa Galiyat Development Authority Act, 2016, read with Galiyat Development Authority Auction Regulations, 2019, their decisions were not invalid and unlawful or lacking lawful authority---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Oxford University Press v. Commissioner of Income-Tax 2001 PTD 2484; Shahzada Colonel Sharif-ud-Din and others v. The Settlement Officer District Upper and Lower Chitral and others 2021 CLC 1968; Market Committee, Khudian v. Town Committee, 1992 SCMR 1403; Lahore Development Authority v. Ms. Imrana Taiwana 2015 SCMR 1739; Messrs Pakland Cement Limited through Director v. Shamim Mushtaq Siddiqui 2002 CLD 1392; Travel Agents Association of Pakistan v. Pak Travel Agency (Pvt.) Ltd. 1999 CLC 1962; Rashidah Begum v. Deputy Settlement Commissioner, Circle-II Lahore 1986 MLD 1941 and Inayatullah Hassan v. Bashirunnisa 1984 CLC Kar. 2463 ref.

(b) Khyber Pakhtunkhwa Galiyat Development Authority Act (XII of 2016)---

----Ss. 3, 4, 6 & 14 [as amended by Khyber Pakhtunkhwa Galiyat Development Authority (Amendment) Act (XVII of 2020)]---Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act (I of 2015), S.29---Pakistan Environmental Protection Act (XXXIV of 1997), S.12---National Park---Accessibility to public---Recreation, education and research purposes---Scope---Petitioner was aggrieved of award of contract by authorities to respondent company---Validity---Provisions of Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015 did not aim at obviating all such activities in a National Park---For the purposes of recreation, education and research, under S.29 of Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015, National Park was to be accessible to public subject to such restrictions as Government might impose---Provision of access roads to and construction of rest houses, hostels and other buildings along with amenities for public under S.29(3) of Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015, were to be made in such a way, as not to impair the object of establishment of National Park---Facilities so provided were to be in conformity with the recommendations of environmental impact assessment or initial environmental examination within the meaning of Pakistan Environmental Protection Act, 1997---Construction of public amenities and necessary roads were not totally banned but were regulated---Regulating powers of concerned Authority would apply to the subject project with full force---High Court did not declare contract in question as illegal in toto---High Court declared that all its provisions were to be read in accordance with and subject to all the prevalent laws of the land applicable in the area---Constitutional petition was disposed of accordingly.

Shin Satellite Public Co. Ltd. v. Jain Studios Limited AIR 2006 SC 963 ref.

Sardar Nasir Aslam Khan, Sardar Aman Khan and Khalid Mehmood for Petitioners.

Khurram Ghias Khan, Rasheed-ul-Haq Qazi, Barrister Syed Muddassar Ameer, Muhammad Tariq Afridi and Sardar Ali Raza, A.A.G. along with Syed Ali Raza, Director G.D.A. and Junaid Alam S.D.F.O. for Respondents.

2023 C L C 1732

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Dr. Khurshid Iqbal, JJ

AMIR SOHAIL----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others----Respondents

Writ Petition No.688-D of 2022 with C.M. No.839-D of 2022, decided on 11th May, 2023.

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

----S.12 & O.XXIII, Rr.1, 2---Constitution of Pakistan, Art. 199---Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011), S. 3---Constitutional petition---Withdrawal simpliciter---Bar to institute a fresh one---Scope---Petitioner (candidate) earlier filed constitution petition for his alleged right of appointment as Primary School Teacher (PST) under Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, ('the Act 2011')---Petitioner withdrew earlier instituted constitutional petition which was dismissed---Later on the same subject-matter, the petitioner invoked constitutional jurisdiction of the High Court again---Contention of the petitioner was that he had withdrawn earlier constitutional petition upon assurance of the respondents (authorities) to redress his grievance, but as they did not comply with their commitment, hence second (present) constitutional petition was being filed---Validity---Petitioner had disclosed his contention/fact in the contents of present petition, however, the relevant order of withdrawal did not support his contention as the same (order) showed that the (earlier) petition had been dismissed being not pressed after request for withdrawal under the instructions of client(petitioner)---Constitutional petition was procedurally governed under the Civil Procedure Code, 1908 ('C.P.C., 1908'), thus provisions regarding withdrawal simpliciter and bar on institution of fresh suit under S.12 and O.XXIII of the C.P.C., 1908, were relevant in the present case---Words "Dismissed as withdrawn " were used by the Court in the said withdrawal order---Court would emphasize that there must be a request for permission to bring a fresh suit; in other words, where no such request was made the withdrawal would be simpliciter alone with no room for implied permission, whereas in the present case the petitioner did not withdraw his earlier constitutional petition with permission to bring a fresh one---Petitioner was precluded from instituting the present/fresh petition in respect of the same subject matter (appointment as a PST); thus, present petition filed by the petitioner was not maintainable---Constitutional petition was dismissed, in circumstances.

Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 and Muhammad Yar v. Muhammad Amin 2013 SCMR 464 ref.

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

----S.12 & O.XXIII, Rr. 1 & 2---Suit, withdrawal of---Permission of the Court, seeking of or otherwise---Powers of the Court---Scope---Fresh suit, filing of---Conditions---Firstly, if a request for permission to file a fresh suit is accompanied with a request for withdrawal or abandonment of claim or a part thereof, the Court has authority either to decline such request or allow the permission---Secondly, in the event of refusal, the dismissal simpliciter should not be ordered, but the request for permission alone should be declined , which would mean that the suit shall continue---Thirdly and more importantly, it would be problematic if the request is not declined in express and clear words , yet the suit is 'dismissed as withdrawn' without recording any reason---Such an order would be bad for being silent on giving reasons and would be more amenable to be put at naught if assailed; though would become final if not challenged---Fourthly and finally, for the sake of safe administration of justice, in regard to such an order it would be deemed and implied that the Court has found it fit for permission to file a fresh suit---There must be a request for permission to bring a fresh suit; in other words , where no such request was made, the withdrawal would be simpliciter alone, with no room for implied permission---In the present case, the petitioner did not withdraw his constitutional petition with permission to bring a fresh one---Petitioner was precluded from instituting the (present) fresh petition in respect of the same subject matter (appointment as a school teacher); thus, present petition filed by the petitioner was not maintainable---Constitutional petition was dismissed, in circumstances.

S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933; Tehsil Council Rajanpur through Nazim v. Additional District Judge Rajanpur and 11 others 2005 MLD 1597 and Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141 ref.

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

----O.VII, R.11 & O.XXII, Rr. 1, 2---Constitution of Pakistan, Art.199---Constitutional petition---Withdrawal simpliciter---Bar to institute a fresh one---Scope---It is the bounden duty of the Court to reject the plaint if it is liable to be rejected including, most particularly, being barred by law under O.VII, R.11 of the Civil Procedure Code, 1908---In the present case the petitioner did not withdraw his earlier constitutional petition with permission to bring a fresh one---Petitioner was precluded from instituting the present/fresh petition in respect of the same subject matter; thus, present petition filed by the petitioner was not maintainable---Constitutional petition was dismissed, in circumstances.

Burmah Eastern Ltd. v. Burmah Eastern Employees' Union PLD 1976 Dacca 190 and Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 ref.

Malik Hidayatullah Mallana for Petitioner.

Malik Muhammad Asad, Addl: A.G. for Respondents.

2023 C L C 1770

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

MUHAMMAD RAMZAN and another----Petitioners

Versus

Mian MUHAMMAD WAQAS and others----Respondents

Writ Petition No.656-D of 2019 with C.M. No.766-D of 2019, decided on 5th April, 2022.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of the tenant---Personal bona fide need of the landlord---Scope and proof---Rent Tribunal dismissed the eviction application of the respondent/ landlord ,however, Appellate Court accepted the appeal and ordered eviction on the basis of personal bona fide need---Contention of the petitioners / tenants was that the suit-shops were actually not required by the landlord for his personal bona fide need, instead he had an inclination to re-let the shops to other persons which amounted to infringement of statutory safeguard to original tenants---Validity---Landlord could not seek eviction on whims and desire only and his need should be bona fide, but , at the same time, bona fide need should not be so absolute and compelling which if not fulfilled , the landlord would suffer misery or irreparable loss; the bona fide need of the landlord laid somewhere in between---It was the landlord who was the best judge to really assess such need and make his planning while applying eviction before the Court---If respondent/ landlord was of the opinion that the suit-shops would be required for the bona fide need of his own, or his children or grand-children in future, then his solitary statement was sufficient in said regard---It was to be left to the choice of the landlord to determine suitability of the premises although he might be owner of other premises as well---Landlord had complete option to choose from one of the several tenements occupied by tenant to avail the personal requirement and the said discretion was not assailable, exception being the rarest cases of bad faith---Proof of the bona fide need of the landlord stood discharged the moment he had , while appearing in the witness-box, made such statement on oath or in the form of an affidavit-in-evidence as prescribed by law , if the same remained un-shattered in cross-examination as well as un-rebutted in the evidence adduced by the opposing party ---No illegality or infirmity was found in the impugned judgment passed by the appellate Court directing eviction of the petitioners /tenants on the basis of personal bona fide need of the respondent / landlord--- Constitutional petition was dismissed, in circumstances .

S.M. Nooruddin, and 9 others v. SAGA Printers 1998 SCMR 2119; Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCMR 593 and Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(2)(iv), 13(3)(a)(i), (ii) & 13(4)---Eviction of the tenant---Personal bona fide need of the landlord---Restoration of the evicted tenant---Scope---Contention of the petitioners/tenants was that the suit-shops were actually not required by the landlord for his personal bona fide need, instead he had an inclination to re-let to other persons which amounted to infringement of statutory safeguard to original tenants---Validity---Section 13(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 ('the Ordinance 1959') stipulated a statutory safeguard in case(s) where a landlord having secured possession of premises for the purpose of his own occupation or his family's use subsequently did not do the same---Section 13(4) of the Ordinance 1959 had entitled the tenant to move the Rent Controller for restoration to him and on being satisfied of the requirement of said provision, the Rent Controller was obliged to make an order accordingly---Although the provisions envisaged in section 13 of the Ordinance 1959 stipulated eviction of tenant on various grounds , however, the eviction ordered under clause (iv) of the subsection (2) or under sub-paragraphs (i) and (ii) of paragraph (a) of subsection (3) to said S.13 was reversible if the condition which had led to the said eviction, were not satisfied within the prescribed time---If the tenant was dispossessed on the ground that the landlord or his children required the rented premises for his or their occupation whereas he or they did not occupy the said premises or after having occupied the same re-let the same within two months of taking over the possession thereof, then Rent Controller , on being approached, could straight away direct that the evicted tenant be put back into possession of the property-in-question---No illegality or infirmity was found in the impugned judgment passed by the appellate Court directing eviction of the petitioners /tenants on the basis of personal bona fide need of the respondent/landlord---Constitutional petition was dismissed, in circumstances.

Mahboob Elahi and others v. Mst. Hamida Begum and others PLD 2010 SC 709 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art. 199---Eviction proceedings---Well reasoned judgment passed by the Appellate Court---Constitutional jurisdiction of the High Court, invoking of---Scope---Appellate Court had declared the bona fide need of the landlord / respondent as genuine after taking into consideration sufficient reasons---Such findings of the Appellate Court were based upon elaborate, careful and correct appraisal of evidence and did not suffer from any mis-reading of evidence---Findings of the Appellate Court without any illegality or infirmity could not warrant interference by the High Court in its constitutional jurisdiction---It was not the mandate of the High Court in constitutional jurisdiction to substitute its own findings for the findings recorded by the Appellate Court after due appraisal of evidence---Party approaching the High Court under its constitutional jurisdiction had to demonstrate gross mis-reading or non-reading of evidence or any jurisdictional defect floating on the surface , but in the present case said pre-conditions were missing---No illegality or infirmity was found in the impugned judgment passed by the Appellate Court directing eviction of the petitioners/tenants on the basis of personal bona fide need of the respondent/landlord---Constitutional petition was dismissed, in circumstances.

Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081; Syed Jan Muhammad and another v. Syed Abdul Khair 2001 SCMR 1287 and Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1607 ref.

(d) West Pakistan Urban Rent restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art. 199---Eviction proceedings---Factual controversy, determination of---Constitutional jurisdiction of the High Court---Scope---While exercising constitutional jurisdiction, High Court will not enter into factual controversies which have already been dealt by a competent Court of law vested with statutory powers, particularly when there is no jurisdictional error or other legal infirmities such as arbitrariness and others in the order assailed before the High Court ---No illegality or infirmity was found in the impugned judgment passed by the Appellate Court directing eviction of the petitioners/tenants on the basis of personal bona fide need of the respondent/landlord---Constitutional petition was dismissed, in circumstances.

Syed Mastan Ali Zaidi and Muhammad Mohsin Ali for Petitioners.

Akbar Ali Barakzai for Respondent.

2023 C L C 1839

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

ABDUL MANAN and others----Petitioners

Versus

BAKHTI ALI and others----Respondents

Civil Revision No.13-M of 2017, decided on 15th May, 2023.

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

----Ss.54 & 55---Suit for mandatory and perpetual injunction---Encroachment on public property---Privacy of residence---Scope---Petitioners filed a suit for mandatory and perpetual injunction, claiming that the disputed road was a public thoroughfare and that they had every right to use it---Trial Court and the Appellate Court concurrently dismissed the suit---Validity---Once the respondents had admitted that the road was a public path/road, the petitioners could not be restrained from using it---Similarly, the respondents had no authority to restrain anyone else from using the road, regardless of whether it passed by their houses or through the middle of the abadi---It was the responsibility of the respondents to make arrangements for their own privacy---If the road had indeed been a private path leading to the houses of the respondents, their actions could have been justified---However, since it was a public path/thoroughfare, anyone, including the petitioners, had an equal right of passage just as the respondents did---Courts below failed to properly appreciate the evidence in its true perspective; and their findings were based on misreading and non-reading of the record---Concurrent findings not only went against the law but also against the factual information present in the record---Revision petition was allowed, judgments and decrees of both lower courts were set aside, and the suit filed by the petitioners was decreed, in circumstances.

Raees Khan and others v. Samar Ali Shah and others 1997 CLC 349 rel.

Saghir Ahmad v. The State of Uttar Pardesh and others AIR 1954 SC 728 and 1955 SCR 707 ref.

(b) Constitution of Pakistan---

----Art. 15---Freedom of movement---Preserving unobstructed access to public property---Scope---No one can be allowed to create any hindrance in public property, street, road, thoroughfare or footpath or to obstruct anyone from the use of it as passage---Any such act would amount to encroachment in the public property and shall be dealt in accordance with law.

C.M.A. No.209-K of 2014 in C.P. No.152-K of 2014 and Messrs Eastern Carpets (Pak) Limited v. Province of The Punjab and another 1994 MLD 558 rel.

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

----O. VII, R. 7---Relief to be specifically stated---"General or other relief", explained---Scope---It is duty of the Court to consider the prayer in juxtaposition with the contents of the plaint and to grant the relief in terms of the prayer clause irrespective of the fact that it was specifically mentioned therein or not.

(d) Administration of justice---

----Administration of justice requires that justice should not only be done but it should be seen to have been done.

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

----S.115---Revision petition---Concurrent findings---Scope---Erroneous concurrent findings based on misreading and non-reading of evidence are not sacrosanct from interference while invoking revisional jurisdiction under S. 115, C.P.C.

Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 rel.

Nazim ud Din and others v. Sh. Zia ul Qamar and others 2016 SCMR 24 ref.

Asghar Ali for Petitioners.

Miangul Wajih-ud-Din for Respondents.

2023 C L C 1882

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

FAZAL HADI and others----Petitioners

Versus

SHAH NAZAR KHAN and others----Respondents

Writ Petition No.2048-P of 2007, decided on 7th February, 2023.

(a) Interpretation of statutes---

----Plain ordinary meaning---Principle---When language of statute is clear then it's plain and ordinary meaning is to be given---Statue must be interpreted in such a manner so as to advance the cause of justice instead of defeating the same.

Government of Khyber Pakhtunkhwa through Chief Secretary Peshawar and others v. Intizar Ali and others 2022 SCMR 472; Government of Khyber Pakhtunkhwa and others v. Abdul Manan 2021 SCMR 1871 and J.S. Bank Limited v. Province of Punjab through Secretary, Food Lahore and others 2021 SCMR 1617 rel.

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

----S.137---Partition proceedings---Notices to parties, non-issuance of---Effect---Petitioners sought partition of land in question but their application was dismissed by Tehsildar/Assistant Commissioner mainly on the ground that all co-owners/co-sharers were not impleaded in the application---Order of Tehsildar/Assistant Commissioner was maintained by Board of Revenue---Validity---Revenue officer on receiving application for partition was to issue notice of the application which was to be served to all recorded co-sharers who were not joined as party in the application---Along with such notice, if Revenue Officer deemed it appropriate, he could issue a proclamation order---Even if petitioners / applicants did not include any co-sharer / co-owner, it was the statutory duty of Revenue Officer to issue notice to all the persons who were recorded as co-sharers in the property under partition and to those who had not been made as party---High Court set aside order passed by the forums below and remanded the matter to Tehsildar/Assistant Commissioner to proceed with partition application as per law---Constitutional petition was allowed accordingly.

(c) Constitution of Pakistan---

----Art. 199(1)(a)(ii)---Writ of certiorari---Scope---Writ of certiorari can be issued by High Court if orders and judgments assailed before the Court are result of improper or illegal exercise of jurisdiction.

Amjad Khan v. Muhammad Irshad (deceased) through LRs 2020 SCMR 2155; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919 and Chairman NAB v. Muhammad Usman others PLD 2018 SC 28 rel.

Altaf Hussain for Petitioners.

Muhammad Ikram Khan for Respondents.

2023 C L C 1898

[Peshawar]

Before Muhammad Faheem Wali and Shahid Khan, JJ

HAQ NAWAZ SHAH and another----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.463-D of 2022 with Interim Relief (and others connected petitions), decided on 16th February, 2023.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Judicial review---Scope---No provision of any law for the time being in force in Pakistan overrides Constitutional power of High Court to exercise judicial review of the matter, if High Court is of the view that order under challenge is illegal and outside four corners of law and no other alternate or efficacious remedy is provided by law.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 and Mrs. Shahida Zahir Abbasi and others v. President of Pakistan and others PLD 1996 SC 632 rel.

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

----Ss. 19, 20 & 21---Election Rules, 2017, R.10---Delimitation---Petitioners were aggrieved of Preliminary Delimitation Scheme for Constituencies of National and Provincial Assemblies elections---Validity---Petitioners did not point out any violation of the provision of Ss. 19, 20 & 21 of Elections Act, 2017 or Election Rules, 2017, to create any exception calling for interference of High Court by invoking Constitutional jurisdiction---Population census was to be carried out from time to time merely because fresh census was underway and no results had been gathered till then---This could not be a ground for stalling process of delimitations---Fair elections would mean fair representation and delimitation of constituencies was a foundational step towards that end---Election Commission had properly appreciated pros and cons including fundamentals of delimitation with assistance of Delimitation Committee---High Court declined to interfere in Preliminary Delimitation Scheme for Constituencies of National and Provincial Assemblies elections---Constitutional petition was dismissed, in circumstances.

State of Madhya Pradesh and others v. Devilal AIR 1986 SC 434 rel.

Ghulam Hur Khan Baloch and Syed Abid Hussain Bukhari for Petitioners.

Mohsin Kamran Siddiq with Aziz Bahadur, Regional Election Commissioner/Member Delimitation Committee (for Respondents Nos.1 to 3 on video link).

Salimullah Khan Ranazai for Respondents Nos.8 and 19.

2023 C L C 1942

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

ANJAM ALI KHAN----Appellant

Versus

MEHAR SHAH and 3 others----Respondents

R.F.A. No.472-M of 2020, decided on 20th March, 2023.

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

----O. XXXVII, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Art. 72---Suit for recovery of money on the basis of cheque---Execution proceedings---Auction---Objection petition---Document, proof of---Decree-holder (appellant) placed a house purportedly owned by the judgment-debtor for the purpose of auction for satisfaction of decree---Objection petition was moved by sons of the judgment debtor (respondents) with the contention that house-in-question was actually owned by their late mother by virtue of dower-deed and they being her legal heirs , were the owners of said house---Trial Court accepted the objection petition holding that the house-in-question was given as dower by the judgment-debtor/respondent to his wife---Validity---Record revealed that the house-in-question was the very property regarding which the respondent/judgment-debtor executed agreement to sell with the appellant/decree-holder and gave him post-dated cheque ; and later decree was passed on the basis of dishounoring of the said cheque---In the said agreement-to-sell, the respondent/judgment-debtor had declared that the house was free from all encumbrance including , most notably, dower, whereas, dower-deed bore a date only two years prior to execution of agreement-to-sell---Although the objectors/respondents had produced two witnesses in their evidence who asserted themselves as the marginal witnesses of dower-deed , however, they had expressed the age of the respondent/judgment-debtor as 60/70 years; which fact did not stand to reason as to why he transferred the house-in-question to his wife in lieu of dower after a long time of his marriage---Said witnesses had also admitted that all the respondents (judgment-debtor and his sons) were still living jointly in the same house---Said witnesses failed to recollect during evidence a few important facts like span of marriage, major particulars regarding dower-deed---Respondents did not produce the stamp vendor and the scribe of the dower-deed and mere copy of an extract from the register of the stamp vendor was produced and that there was over-writing/tampering on the relevant serial number, without any initial thereon---Even copy of the dower-deed did not show the number, the date of issuance and the person to whom the same was issued---Burden to prove the dower-deed was on the objectors/respondents who were required to prove that the transaction of dower had actually taken place, which burden they failed to discharge---Objectors/respondents had connived and colluded with the judgment-debtor/respondent in order to deprive the appellant/decree-holder from the fruits of the decree passed in his favour---High Court set-side the impugned judgment and order passed by the District Court---Appeal was allowed, in circumstances.

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

----Art. 72---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1& 2---Money decree on the basis of dishonoring of cheque---Cheque issued in consequence of agreement-to-sell regarding house---Execution proceedings---Auction---Objection petition---Document (dower-deed), proof of---Decree-holder (appellant) placed house-in-question for the purpose of auction for satisfaction of decree---Objection petition was moved by sons of the judgment debtor (respondents) with the contention that house-in-question was actually owned by their late mother by virtue of dower-deed and they being her legal heirs , were the owners of said house---Trial Court accepted the objection petition holding that the house-in-question was given as dower by the judgment-debtor/respondent to his wife---Validity---Firstly, the dower was in nature of debt, not a charge---Respondent/judgment-debtor, in the present case, by mentioning the house-in-question in the agreement-to-sell in fact showed the same as charge towards satisfaction of debt against him; secondly, the very transaction and for that matter the contents of dower-deed were not proved---High Court set-side the impugned judgment and order passed by the District Court ---Appeal was allowed, in circumstances.

Abdul Aziz v. Abdul Hameed (Deceased) through L.Rs. 2022 SCMR 842 and Mst. Rabivaz Bibi v. Matiur Rehman and others 2022 CLC 686 ref.

Nawaz Ali for Appellant.

Shams-ul-Hadi for Respondents.

2023 C L C 1959

[Peshawar (Bannu Bench)]

Before Fazal Subhan, J

FARMAN ULLAH----Petitioner

Versus

Mst. SHAHEEN AKHTAR and 2 others----Respondents

Writ Petition No.69-B of 2023, decided on 17th April, 2023.

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

----S.9---Family Courts Act (XXXV of 1964), S.5---Maintenance---Wife, entitlement of---Scope---Parties were husband and wife inter se who were living separately---Petitioner / husband was aggrieved of fixing of maintenance allowance for wife by two Courts below---Validity---It was incumbent upon petitioner / husband under S. 9 of Muslim Family Laws Ordinance, 1961, to provide maintenance to his wife during subsistence of marriage---It was undeniable right of a wife to be provided with maintenance, even if she was staying away from her husband due to just and valid reason---Suit filed by respondent / wife manifested that she did not come up with a prayer for dissolution of marriage which meant that she did not want to part ways with petitioner but intended to continue with the marriage but due to mistreatment and forcible ouster she had been living separately---Petitioner / husband was bound to provide maintenance to respondent / wife---High Court declined to interfere in concurrent findings of facts by both the Courts below who had properly evaluated the record and judgments rendered were based on correct appreciation of record/evidence---Constitutional petition was dismissed, in circumstances.

Mst. Farida Khanum v. Deputy Commissioner/Collector, Okara and others 2004 MLD 798 rel.

Haroon-ur-Rashid for Petitioner.

Malik Rahman Khattak for Respondent.

2023 C L C 1985

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

AFSAR ALI and others----Petitioners

Versus

KOHISTANAY through LRs and others----Respondents

Civil Revision No.166-M of 2019, decided on 10th October, 2022.

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

----Arts. 117 & 120---Plaint---Onus to prove---Plaintiff must prove his case on the strength of his own evidence; he cannot take benefit from weaknesses of defendant's case.

Qahaim Khan and 4 others v. Amar Khan and 2 others 2022 CLC 335 ; Muhammad Latif v. Bashir Ahmed and 7 others reported as 2004 CLC 1010 and Abdul Waheed v. Muhammad Bilal reported as PLD 2005 Peshawar 19 rel.

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

----S.3---Limitation---Determination---Court, duty of---It is duty of Court to adhere to question of limitation as S. 3 of Limitation Act, 1908 requires from a Court of law to address question of limitation, even if the same has not been taken as defense by a party.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Concurrent findings of two Courts below---Revisional jurisdiction of High Court---Scope---Petitioners / plaintiffs claimed to be owners in possession of suit property and had assailed entries made by authorities in favour of respondents / defendants---Suit and appeal filed by petitioners / plaintiffs were dismissed by Trial Court and Lower Appellate Court respectively---Validity---Powers under S.115, C.P.C. have been entrusted to High Court in order to secure effective exercise of its superintendence and visitorial powers of correction, unhindered by technicalities---Such power cannot be invoked against conclusion of law or fact, which does not in any way affect jurisdiction of High Court---Revisional powers are confined to the extent of misreading or non-reading of evidence, jurisdictional error, or an illegality of the nature in the judgment, which may have material effect on the result of the case, or the conclusion drawn therein is perverse, or contrary to the law---Interference for the mere fact that appraisal of evidence could suggest another view of the matter was not possible in revisional jurisdiction---Scope of appellate and revisional jurisdictions must not be mixed up---High court declined to interfere in concurrent findings of facts as judgements and decrees passed by two Courts below were neither result of misreading and non-reading of evidence, nor petitioners could point out any jurisdiction defect in the same---Revision was dismissed, in circumstances.

Haji Allah Bakhsh v. Abdullah Khan and others 2001 SCMR 363; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Faqir Muhammad Khurshid and others v. Chief Administrator Auqaf PLD 1987 SC 60; Makhdum Hasan Baksh v. Ilahi Bakhsh and others (1913) 48 P R 27; Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054; Salamat Ali and others v. Muhammad Din and others reported as PLD 2022 SC 353; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 rel.

Shah Dawran for Petitioners.

Muhammad Alam for Respondents.

2023 C L C 2002

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

NOOR SHAH ALI KHAN alias NAWARISH ALI KHAN----Petitioner

Versus

KHAN MOMIN and 6 others----Respondents

C.R. No.96-B of 2015, decided on 2nd February, 2022.

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

----Arts. 79, 100 & 126---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Presumption as to thirty years old documents---Execution of old gift-mutations---Proof---Plaintiff/sister instituted suit against the brother denying execution of gift-mutations through which ownership of her entire inherited property was transferred in his favour long time ago---Trial Court decreed her suit, and appeal preferred by the defendant/petitioner was dismissed by the Appellate Court---Contention of the petitioner/defendant was that the mutations-in-question, having been executed more than thirty years ago, were to be dealt with in consonance with provisions/protections under Arts. 100 & 126 of the Qanun-e-Shahadat, 1984---Validity---Alleged thumb impression of the plaintiff (alleged donor) on the mutations-in-question were compared by the Trial Court with admitted ones, but they were too faint for comparison--- Record revealed that alleged donor was not identified by her husband and sons---Ingredients of alleged gift were neither mentioned in the written-statement nor elaborated in the evidence adduced by the petitioner/defendant---Fact of offer of alleged gift, its acceptance, transfer of possession were not proved---Mere thirty years of a document would not provide any justification for its proof unless the document was proved in accordance with Art. 79 of Qanun-e-Shahadat, 1984, when it was questioned --- Sole ground that the age of the document was thirty years would not be taken as gospel truth when genuineness of the document was disputed---It was the duty of Court to determine the question of its genuineness and correctness because age of the document alone would not amount to be proof about the correct contents of such document---If genuineness of a document was susceptible to suspicion, the Court would refuse to raise presumption and could ask for the proof of its contents ---Respondent / plaintiff had proved her case whereas the petitioner / defendant had tried to grab her property and in doing so he succeeded as well, but when it was challenged, he remained unsuccessful to prove it--- No illegality or infirmity was noticed in the impugned decrees and judgments passed by both the Courts below---Revision was dismissed, in circumstances.

Muhammad Asghar and others v. Hakam Bibi throuirh L.Rs and others 2015 CLC 719; Khushi Muhammad v. Liaquat Ali PLD 2022 SC 581; Mst. Kalsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Ch. Muhammad Shaft v. Shamim Khanum 2007 SCMR 838 and Muhammad Naseem Fatima's case PLD 2005 SC 455 ref.

(b) Pleadings---

----Pleadings must contain only 'factum probanda' and not 'factum probantia'---Material facts on which the party relies for his claim are called factum probanda (material facts) and these must be stated in the pleadings---Fact(s) by means of which factum probanda are proved and which are in the nature of factum probantia (particulars or evidence) need not be set out in the pleadings; they are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

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

----S.115---Concurrent findings---Revisional jurisdiction of the High Court---Scope---Concurrent findings of facts, in absence of any illegality or any other error of jurisdiction, did not call for any interference by the High Court in its revisional jurisdiction.

2006 SCMR 1304; 2007 SCMR 926; PLD 2003 SC 155 and 2014 SCMR 1469 ref.

Haji Zafar Iqbal and Aslam Khan Michen Khel for Petitioner.

Faqir Mehbub-ul-Hameed and Kazim Raza for Respondents.

2023 C L C 2019

[Peshawar]

Before Syed Arshad Ali, J

SAHIB GUL and 3 others----Petitioners

Versus

SOUCHA GUL and others----Respondents

Civil Revision No.384-P of 2019 with C.M. NO.647-P of 2021, decided on 5th May, 2023.

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

----Ss. 12, 42 & 54---Transfer of Property Act (VI of 1882), S. 53-A---Suit for specific performance of agreement to sell, declaration and permanent injunction---Specific enforcement of an agreement to sell, grant of---Possession of suit-property having been delivered to the vendee/plaintiff---Effect---Balance consideration, non-payment of---Claim of the plaintiff was that part payment of consideration remained unpaid owing to absence of the vendors/defendants being involved in criminal case---Trial Court passed conditional decree in favour of the plaintiff by directing him to pay the balance amount, which judgment and decree were maintained by the Appellate Court---Contention of the petitioners/defendants was that the suit-property was given on rent to the respondent /plaintiff---Validity---There was no evidence` on record that petitioners / defendants had raised any objection or had filed any criminal proceedings against the respondent/plaintiff for usurping their property---Even otherwise, the contention of the petitioners/defendants was beyond their pleadings because the same was never asserted in the written-statement that the respondent/plaintiff was in possession of suit-property being their tenant---Grant of specific performance of an agreement to sell pertaining to immoveable property had always remained a discretionary relief and even in the cases where the agreement to sell was established before the Court, the relief of specific performance was refused on equitable consideration, however, the Court was not denuded of the authority to consider the conduct of parties to the agreement and balance of convenience and inconvenience of the parties while adjudicating the enforceability of an agreement, subject-matter of the lis---Plaintiff was in permissive possession of the suit-property and was running his ice-factory on the same---During the period when he was installing factory at the premises, the petitioners/defendants never objected---Balance consideration of the agreement, having been executed more than twenty years ago, had remained unpaid---High Court modified the decree to the extent of balance consideration by holding that respondent / plaintiff was bound to compensate the petitioners/ defendants by paying amount according to the present market value (of that portion of property for which the consideration remained unpaid); and that said amount would be ascertained by the Executing Court---Revision was disposed of accordingly.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 ref.

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

----Ss. 12, 42 & 54---Transfer of Property Act (VI of 1882), S. 53-A---Suit for specific performance of agreement to sell, declaration and permanent injunction---Consensus ad idem, element of---Possession of suit-property delivered to the vendee/plaintiff---Effect---Agreement not signed by vendors---Inconsequential---Trial Court passed conditional decree in favour of the plaintiff by directing him to pay the balance amount, which judgment and decree were maintained by the Appellate Court---Claim of the plaintiff was that part payment of consideration remained unpaid owing to absence of the vendors/defendants being involved in criminal case---Validity---Evidence adduced in the present case showed that agreement-in-question was not signed by the petitioners/defendants but facts and circumstances of the case , more particularly the transfer of possession of the suit-property to the respondent/plaintiff, installation of ice factory, obtaining of electricity connection etc by him (respondent/plaintiff), clearly showed that the said transaction (execution) was, although executed by someone else (defendant other than the petitioners) but with the approval of the petitioners---Even the respondent/ plaintiff was able to establish the part-payment to one of the petitioners by producing two marginal witnesses---In such circumstances, non-signing of agreement by all the petitioners/defendants was of no consequence when the respondent/plaintiff was able to establish 'consensus ad idem' between the parties being the basic inherit element relating to execution of agreement, thus there was clarity regarding the disputed property and its consideration---High Court modified the decree to the extent of balance consideration by holding that respondent/plaintiff was bound to compensate the petitioners/defendants by paying amount according to the present market value (of that portion of property for which the consideration remained unpaid more than twenty years ago); and that said amount would be ascertained by the Executing Court---Revision was disposed of accordingly.

Messrs Jamal Jute Baling & Co., Dacca v. Messrs M. Sarkies & Sons, Dacca PLD 1971 SC 784 ref.

Zia ur Rehman for Petitioners.

Abdul Hafeez for Respondents.

2023 C L C 2055

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

Mst. NADIA BIBI----Petitioner

Versus

ASAD KHAN and others----Respondents

Writ Petition No.494-M of 2020 with Interim Relief, decided on 15th February, 2023.

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

----S.5, Sched.---Suit for dissolution of marriage and return of dower (four tolas gold ornaments)---"Snatching" of gold ornaments by the husband---Connotation---Gold given by wife to the husband to pay off a debt---Interested witness---Contention of the plaintiff /wife was that the defendant / husband owned loan to someone for which he snatched from her gold ornaments, promising her that he would purchase them for her later on---Family Court dismissed the claim of the petitioner / plaintiff regarding snatching of gold ornaments and decreed dissolution of marriage and ordered that since decree was being passed on the basis of Khulla, she was liable to return dower (gold ornaments)---Appellate Court maintained the decree---Validity---Quantum of dower (four tolas gold ornament) and its payment was not disputed between the parties; the dispute was over what the petitioner contended as its " snatching" by the respondent for repayment of his debt while the respondent plainly denied the said allegation/contention---Record revealed that the petitioner and her two witnesses were not cross-examined by the respondent on said point/dispute, whereas the petitioner produced another witness, the man who had advanced the loan to the respondent, who happened to be her maternal uncle---Said witness deposed and also reiterated in cross-examination that , while repaying loan in cash, both the spouses (parties) told him that the gold ornaments were sold for repayment of loan---Said witness also stated that the counsel of the respondent / husband told him to give evidence; which fact did not seem to be a factor to throw away his evidence; had he said that the petitioner herself or her counsel 'advised' or 'tutored' him for giving evidence, then only it might have raised questions on his credibility---Similarly, mere fact that he (witness) was a close relative of the petitioner was not a sufficient ground to discard his evidence as an interested witness as no enmity or ill-will between him and the respondent was attributed---Above all, every witness after having entered the witness-box was administered oath and his evidence must be believed as true unless it was demonstrably shattered as unbelievable for being not cogent, solid and confidence inspiring and/or even false---Respondent himself did not appear as a witness to spell out his own contention and face cross-examination---Father of the respondent, as his (respondent's) special attorney and another witness had admitted advancing of loan in their respective deposition; and also admitted that that "usually people do sell gold ornaments of wives to repay their debt", suggesting an admission of the contention of the petitioner that she offered (though the respondent did not snatch) the gold ornaments to repay his loan---High Court viewed that the word "snatching" might not be understood in strictly literal sense in the circumstances of the case, most particularly when the testimony of the witness, who advanced the loan, was weighed holistically, which proved that the petitioner had given her gold ornaments to the respondent willingly to rescue him in a difficult time---In our social set-up, a wife would ordinarily offer her gold ornaments to her husband for sale in any moment of financial stringency, which was a relevant fact in family suits---High Court observed that the petitioner succeeded in proving that she had handed over to the respondent her gold ornaments, though snatching was not typically proved---While the petitioner discharged her burden of having given her gold ornaments to the respondent, he having admitted her stance in evidence, discernibly failed to prove that he returned the gold ornaments to her---High Court modified the impugned judgment passed by both the Courts to the effect that the petitioner was entitled to repayment of four tolas gold ornaments as her dower which the respondent sold for repayment of his debt, however, in the event of dissolution by marriage by Khula, the respondent was held entitled to be discharged from its (gold ornaments') repayment---Constitutional petition was disposed of accordingly.

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

----S.5, Sched.---Suit for dissolution of marriage and return of dower (four tolas gold ornaments)---Evidence in a Family Suit---Behavioral approach to be adopted by Family Court---Contention of the plaintiff /wife was that the defendant / husband owned loan to someone for which he snatched from her gold ornaments, promising her that he would purchase them for her later on---Family Court dismissed the claim of the petitioner / plaintiff regarding snatching of gold ornaments and decreed dissolution of marriage and ordered that since decree was being passed on the basis of Khulla, she was liable to return dower (gold ornaments)---Appellate Court maintained the decree---Validity---Spouses love to help each , rather always remain ready to sacrifice for each other as and when an opportunity arises---It is part of our social norms that the first thing a wife would offer to her husband in financial difficulty would be her gold ornaments---As for evidence of such events it is a significant aspect of our family law that there never is and can never be independent and impartial evidence for such purposes like the presence of close relatives like parents, siblings and even children---Many issues between the spouses , ranging from their individual likes and dislikes, to inter and intra family rivalries love and hate, pride and prejudice, envy and jealousy to consideration and decisions about clothing, housing, food, schooling and even financial matters, are seen, discussed and decided by spouses inside their residential room with regard for privacy and secrecy---It is for this reason that Family Courts are required to resolve, instead of to adjudicate, family disputes through a behavioral approach that involves psychological, social and contextual explanations of human behavior in matrimonial relationship---It is, again, for this reason that the formal laws of procedure and evidence are not applicable to family suits---High Court observed that the petitioner succeeded in proving that she had handed over the respondent her gold ornaments, though snatching was not typically proved---While the petitioner discharged her burden of having given her gold ornaments to the respondent, he having admitted her stance in evidence, discernibly failed to prove that he returned the gold ornaments to her---High Court modified the impugned judgment passed by both the Courts to the effect that the petitioner was entitled to repayment of four tolas gold ornaments as her dower which the respondent sold for repayment of his debt, however, in the event of dissolution of marriage by Khula, the respondent was held entitled to be discharged from its repayment---Constitutional petition was disposed of accordingly.

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

----S.5, Sched.---Suit for dissolution of marriage---Khula---Cruelty by in-laws---Family Court decreed suit for dissolution of marriage on the basis of Khulla/Appellate Court maintained the decree---Contention of the plaintiff /wife was that the decree of dissolution of marriage should have been passed on the basis of cruelty---Validity---Evidence having been adduced, in the present case, revealed that the respondent/ husband had never treated the petitioner/wife with cruelty, physically and/or mentally, however, she complained about the behavior of her in-laws while the respondent was living abroad, which had brought about negative psychological impact on her life---In spite of the respondents' love, unwillingness of the petitioner to live with him (respondent) might be seen in such background (cruel behavior of in-laws)---Wife, generally and in the absence of her husband particularly, would not simply expect but pins high hopes, and rightly so, on her in-laws to let her live with them in a conducive and congenial atmosphere within four corners of a house---Given our social norms, a wife would ordinarily do her best to live peacefully; she would most often show resilience in the face of uncouth and even cruel behavior of her husband and other in-laws for the sake of her own as well as for the honour and dignity of her parents ; she would only complain either in an extreme situation or not at all---High Court maintained the impugned judgment and decree of the dissolution of marriage passed on the basis of Khula---Constitutional petition was disposed of accordingly.

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

----S.5, Sched.---Suit for dissolution of marriage on the basis of Khula---Maintenance allowance of ex-wife during the period of iddat---Family Court decreed the dissolution of marriage on the basis of Khula , however, without granting the plaintiff/wife maintenance allowance for her iddat period of three months ; and the Appellate Court maintained the judgment of Family Court---Validity---Record revealed that the suit for dissolution of marriage was decreed on the basis of Khula, however, there could be no escaping from the fact that the husband was bound to maintain his wife till the conclusive end of his Nikah on the expiry of iddat period---Petitioner could not be deprived of her maintenance allowance during her iddat period---High Court modified the impugned judgment passed by both the Courts to the effect that the petitioner was entitled to maintenance allowance for three months of iddat period---Constitutional petition was disposed of accordingly.

Shafiq Ahmad for Petitioner.

Arshad Khan Khattak for Respondent No.1.

2023 C L C 2082

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

GHULAM HUSSAIN through Legal Heirs and others----Petitioners

Versus

GHULAM HASSAN and others----Respondents

Civil Revision No.96-D of 2021 with C.Ms. Nos.127, 130 and 149-D of 2021, decided on 23rd May, 2022.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Civil Procedure Code (V of 1908), O. VI, R. 4---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration---Limitation---Particulars to be given where necessary---Presumption as to documents thirty years old---Scope---Plaintiffs instituted a declaratory suit in 2012 wherein they challenged the authenticity of mutations entered and attested in the year 1950 by alleging the same as fraudulent---Validity---Presumption of truth was attached to the record of the year 1950 and legality of more than 60 years' old record could not be questioned on the basis of oral contention of the plaintiffs---Predecessor of plaintiffs had died somewhere in 1980-81 and she had not challenged the revenue entries during her lifetime, therefore, plaintiffs had no locus standi to challenge the same and there was nothing on record to indicate as to why they had not challenged the entries or inheritance mutations---Suit was hopelessly time-barred as the plaintiffs despite having knowledge did not file the suit within time---Plaintiffs had alleged fraud in the attestation of impugned mutations in their plaint, yet no particulars of fraud, required to be mentioned in the plaint in accordance with O.VI, R.4, C.P.C., were given---Impugned judgments and decrees were set aside and the suit of the plaintiffs was dismissed---Civil revision was allowed, in circumstances.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 and Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 ref.

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

----S. 3---Dismissal of suits instituted after period of limitation---Scope---Law of limitation is harsh law and the court cannot award any relaxation in this regard unless provided by the statute itself---Passage of time sets the law of limitation in operation.

Shad Muhammad through L.Rs. and others v. Mst. Sarwara 2015 MLD 582 rel.

Umer Baz Khan through Lifts v. Syed Jehanzeb and others PLD 2013 SC 268 and Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 ref.

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

----S. 19---Qanun-e-Shahadat (10 of 1984), Art. 118---Plea of fraud and misrepresentation---Burden of proof---Burden of proving fraud lies on the party alleging it---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence-inspiring evidence---Mere allegations in the pleadings cannot take place of proof required under the law.

Ahsan Ali v. District Judge PLD 1969 SC 167; Shamir v. Faiz Elahi 1993 SCMR 145 and Nasira Khatoon v. Mst. Aisha Bai 2003 SCMR 1050 ref.

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

----S. 19---Qanun-e-Shahadat (10 of 1984), Art. 118---Plea of fraud and misrepresentation---Proof---Fraud has to be asserted with clarity and has to be proved as a fact.

Noor Jehan v. Bostan 1976 SCMR 486 rel.

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

----S.19---Qanun-e-Shahadat (10 of 1984), Art. 118---Civil Procedure Code (V of 1908), O.VI, R.4---Plea of fraud and misrepresentation---Onus to prove---If a person charges another with fraud or misrepresentation, it is incumbent upon him to substantiate his allegations by making a statement on oath and by giving the other party an opportunity to cross-examine him---Pleadings of the parties are not evidence, and facts alleged in the pleadings must be proved through evidence adduced by or on behalf of the party who had claimed the existence of such facts---Mere averments and pleadings are of no value and cannot be relied upon unless proved through cogent evidence.

Punjab National Bank Limited v. Dr. A.B. Arora AIR 1933 Lah. 1024 rel.

(f) Maxim---

----'Secundum allegata et probata'---Scope---Plaintiff can succeed only by what he has alleged and proved.

Messrs SAZCO (Pvt.) Ltd. v. Askari Commercial Bank Limited 2021 SCMR 558 rel.

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

----S. 115---Revisional jurisdiction---Scope---Ordinarily the revisional court would not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there is misreading and non-reading of evidence on the record which is conspicuous, the revisional court shall interfere and can upset the concurrent findings, as well as where there is an error in the exercise of jurisdiction by the courts below and/or where the court has acted in the exercise of its jurisdiction illegally or with material irregularity.

Muhammad Waheed Anjum and Ahmad Shahbaz Alizai for Petitioner.

Abdul Qayyum Qureshi for Respondents.

2023 C L C 77

[Balochistan]

Before Gul Hassan Tareen, J

Dr. SARA JAFFER----Petitioner

Versus

ZARAK KHAN and another----Respondents

Civil Revision No.105 of 2022, decided on 10th August, 2022.

(a) Balochistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)---

----Ss.5 & 10---Civil Procedure Code (V of 1908), S.9---Eviction of unauthorized occupants---Jurisdiction of Civil Court barred---Scope---Jurisdiction of Civil Court is curtailed from passing temporary injunction or ad-interim injunctive order in any suit restraining the Government or any officer authorized by it from taking possession of any land or building under the Balochistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966, from a person found in an illegal and unauthorized possession of the government land or building---Words "no court shall" used in S. 10 of the Balochistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 places an embargo on the jurisdiction of Civil Courts in relation to grant of ad-interim or temporary injunction.

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

----O.XLIII, R.3---Notice before presentation of appeal---Scope---Sub-rule (1) of R.3 of O.XLIII, C.P.C., requires that the party preferring an appeal against any of the order prescribed by O.XLIII, R.1, C.P.C., made during pendency of the suit must give notice of such appeal to the respondent or his advocate before presenting the appeal by delivering a copy of memorandum of appeal along with a copy of order appealed against in order to satisfy the Appellate Court that R.3 of O.XLIII, C.P.C., has been complied with---Appellant should obtain acknowledgment receipt to the effect that copy of the appeal has, indeed, been received by the respondent or his advocate---Purpose of O.XLIII, R.3, C.P.C., is to avoid the delay that is occasioned in issuance of notice to the respondent and having service effected on the respondent in a case where the main suit is still pending adjudication and only the correctness of some interlocutory order is under question---Provisions of O.XLIII, R.3, C.P.C., are mandatory---Appeal preferred without compliance of this mandatory provision would not be maintainable and liable to rejection---In such case, the appellant may file appeal afresh, subject to limitation, after complying with the mandatory provision and fresh appeal is not barred.

Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693; Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others PLD 1988 Quetta 9 and Zulfiqar Ahmed Butt and another v. Asad Dar and 4 others 2006 CLC 787 rel.

Abdul Wahab Buledi for Petitioner.

Muhammad Ali Mughal and Naseer-ud-Din Mengal, Additional Advocate General for Respondent No.1.

2023 C L C 115

[Balochistan]

Before Sardar Ahmad Haleemi, J

REHMATULLAH and others----Petitioners

Versus

NASEER AHMED and others----Respondents

Civil Revision No.375 of 2021, decided on 16th August, 2022.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.2(9) & O.XX, R.5---Suit for declaration and permanent injunction---Court to state its decision on each issue---Scope---Petitioners filed a suit for declaration and permanent injunction against the respondents claiming therein that they were owners in possession of suit property but the respondents were interfering in their possession---Claim of respondents was that they were in possession of a part of property since the time of their ancestors; that they were regularly paying cesses of property and that their rights were protected under the Balochistan Tenancy Ordinance, 1978---Trial Court dismissed the suit---Appellate Court declared the petitioners as owner of property and respondents as possessor of property in question---Validity---Oral and documentary evidence produced by the petitioners was not taken into consideration by the Trial Court---Respondents had produced a private decision/document, which was not worth of a proof as per the law, but the decision was given outright weightage---Such evidence had no legal sanctity as per the law; thus as per S. 2(9) of C.P.C., the decision of Trial Court could not be termed as a "judgment" neither the mandatory provision of O.XX, R.5, C.P.C. was complied with by the Trial Court---Report prepared by revenue official was neither taken into consideration nor any findings were recorded in that respect---Appellate Court had not discharged its judicial responsibilities as per the provision of law---Revision petition was accepted and the matter was remanded to Trial Court for framing of additional issues and decision on merits.

Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726 rel.

Muhammad Idress v. Muhammad Pervaiz 2010 SCMR 5 and Nasreen Bibi v. Abdul Rashid 2012 MLD 642 ref.

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

----S.96 & O.XLI, R. 31---Appeal---Contents of judgment---Scope---Appellate Court, being a final court on facts, has to reappraise the entire oral and documentary evidence adduced by the parties issue-wise, and to record its independent findings on the question of facts and law raised by the parties.

Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726 rel.

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

----S.96 & O.XLI, R. 31---Appeal---Contents of judgment---Scope---Appeal is a valuable right of the parties---Entire case of the parties is open to analysis on the question of facts and law before the Appellate Court---Judgment of the Appellate Court must therefore reflect that its findings are supported by reasoning on all the points for determination---Merely agreeing with the findings recorded by the Trial Court shows that the Appellate Court has not recorded its own independent findings.

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

----O.XX, R. 5---Court to state its decision on each issue---Scope---In appealable case it is desirable that the court should as may be practical pronounce its opinion on all issues which were raised in a case.

Ghulam Mehdi v. Rajab Ali 2022 YLR 937 rel.

Ghulam Mohiuddin Sasoli for Petitioners.

Ahmed Ali Shahwani for Respondents.

2023 C L C 143

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

BEHZAD HUSSAIN----Petitioner

Versus

Bibi ANSA and 2 others----Respondents

Constitution Petition No.1183 of 2022, decided on 3rd August, 2022.

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

----S.5, Sched.---Suit for recovery of dowry articles---Scope---Petitioner assailed judgments and decrees passed by courts below whereby respondent's suit for recovery of dowry articles and maintenance was allowed---Validity---Fact that dowry articles were brought by respondent with her at the house of petitioner had been proved---Gold (Jewellery) receipts were produced and exhibited through representative of the jeweler's shop---Objection that gold receipts pertained to the date before the solemnization of the marriage was not worthy of credit as it was normal practice that often the parents purchased gold ornaments for their children early for upcoming marriage---Respondent had successfully proved the claim, entitling her for the relief sought pursuant to maintenance and dowry articles as concluded by the Family Judge, endorsed by the appellate court as well---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of certiorari---Scope---While adjudicating a constitutional petition of writ of certiorari, High Court shall exercise jurisdiction sparingly and seldom, particularly, when there are concurrent findings of facts rendered by the subordinate courts in original jurisdiction as well as exercising appellate jurisdiction.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Findings of fact---Scope---Constitutional jurisdiction is an extraordinary jurisdiction, thus, High Court can neither substitute the evidence recorded by the trial court nor can render opinion regarding quality and advocacy of the evidence as appraisal of the evidence is the task of the trial court, however, the appellate court may see and do reappraisal of the evidence, if the evidence is grossly mis-read, found to be inconsistent with the testimony of the other witnesses or the evidence is found to be shocking and contrary to the pleadings---If the trial and appellate courts after thrashing the factual controversy arrive at the conclusion, then the high Courts are always reluctant to interfere while exercising jurisdiction under Art.199 of the Constitution, unless compelling reasons are shown, such as mis-reading and non-reading of the evidence visible on record.

Haji Wajdad v. Provincial Government 2020 SCMR 2046 rel.

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

----S.17---Provisions of Qanun-e-Shahadat, 1984 and Code of Civil Procedure, 1908 not to apply---Scope---Bare reading of S.17 of the Family Courts Act, 1964, clearly heralds the bar contained under Qanun-e-Shahadat, 1984, in stircto sensu as the spirit and design of the Family Courts Act, 1964, is to expeditiously settle and dispose of the family disputes and redress the grievances of the spouse swiftly, avoiding unnecessary technicalities impeding the course of justice.

Shafiq Sultan v. Asma Firdous and others 2017 SCMR 393 rel.

Ajmal Khan Kakar for Petitioner.

2023 C L C 374

[Balochistan]

Before Muhammad Ejaz Swati, J

ALMAS MANDOKHAIL----Petitioner

Versus

AINUDDIN and others----Respondents

Civil Revision No.63 of 2016, decided on 12th March, 2021.

(a) Registration Act (XVI of 1908)---

----Ss.17 & 49---Transfer of Property Act (IV of 1882), S.54---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Suit for declaration---Contract for sale---Documents of which registration is compulsory---Effect of non-registration of documents---Scope---Plaintiff filed a suit for declaration, cancellation and permanent injunction on the basis of an agreement---Trial Court decreed the suit whereas Appellate Court dismissed the suit---Validity---Unregistered agreements allegedly executed by one of the defendants in favour of another defendant and that defendant in favour of the father of plaintiff did not per se create any interest in the property much less any title to it---Agreement did not create right of ownership in the suit land rather it only created right to seek specific performance of the terms and conditions of the agreement---Sections 17 & 49 of the Registration Act, 1908, required that any document purporting to create any right, title or interest in a property of the value more than one hundred rupees required compulsory registration---Transfer of immovable property by way of sale could only be through a deed of conveyance (duly stamped and registered as required by law)---Contract of sale which was not registered deed of conveyance (deed of sale) fell short of the requirement of Ss.54 & 55 of Transfer of Property Act, 1882 and did not confer any title, nor transfer any interest in the immovable property---Claim of plaintiff was based on an unregistered sale deed, which did not confer any title in the suit property---Suit for declaration of title on the basis of purported agreements filed by the plaintiff was not maintainable---Judgment and decree passed by Appellate Court warranted no interference---Revision petition was dismissed.

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

----Ss.54, 5 & 53-A---"Sale" defined---Sale how made---Contract for sale---"Transfer of property"---Part performance---Scope---Section 54 of the Transfer of Property Act, 1882, provides that a contract for sale of immovable property is a contract that a sale of such property shall take place---Word "convey" in S. 5 of the Transfer of Property Act, 1882 is used in the wider sense of ownership---Ownership passes from one person to another only after execution of conveyance---Protection provided under S. 53-A of the Transfer of Property Act, 1882 to proposed transfer is a shield only against the transferor in respect of cases falling under S.53-A of the Transfer of Property Act, 1882---Said section has nothing to do with ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee.

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

----S.54---Contract for sale---Sale how made---Scope---Transfer of immovable property by way of sale can only be through a deed of conveyance (duly stamped and registered as required by law)---Contract of sale which is not registered deed of conveyance (deed of sale) would fall short of the requirement of Ss. 54 & 55 of Transfer of Property Act, 1882 and will not confer any title nor transfer any interest in immovable property---Contract of sale, whether with possession or without possession, is not a conveyance as S. 54 of the Transfer of Property Act, 1882, provides that sale of immovable property can be made only by registered instrument.

Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 and Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367 ref.

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

----S.42---Suit for declaration---Scope---Section 42 of the Specific Relief Act, 1877, provides that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right of property.

Obaidullah Quresh for Petitioner.

Abdul Rasheed Awan for Respondent No.8.

Muhammad Ayub Khan, Assistant Advocate General for Official Respondent.

2023 C L C 433

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD YAR and others----Petitioners

Versus

BIBI GUL SEEMA and 10 others----Respondents

Civil Revision No.173 of 2018, decided on 29th March, 2021.

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

----Ss.42, 39 & 54---Suit for declaration, cancellation and permanent injunction---Gift mutation---Non-production of witnesses---Scope---Plaintiff filed suit for declaration, cancellation of mutations and permanent injunction before the trial court contending therein that she being daughter of the alleged donor was entitled for her share in the inheritance, but the defendants through fraud and by producing fake witness of gift had got transferred the properties in their names and had also sold out the same to different persons by ignoring and depriving plaintiff and female defendants/sisters of plaintiff of their shares---Contesting defendants filed joint written statement stating therein that the mutation of exchange and hiba entered into by the defendants was according to law---Trial Court decreed the suit, while the appeal was dismissed---Validity---Defendants had admitted that the gift mutation was without mentioning any date, month and names of witnesses---Nothing was available to record to prove that the donor had appeared before the revenue authority and confirmed the factum of oral gift---Signature of the donor was different in the transfers/mutations---Even the CNIC (Computerized National Identity Card) number of donor was not mentioned in the gift transfer---Defendants had not bothered to produce any witness of the gift acceptance and possession---Courts below had recorded concurrent findings of facts, which could not be interfered---Revision petition was dismissed, in circumstances.

Shabla v. Ms. Jahan Afroz Khilat 2020 SCMR 352 and Muhammad Nawaz v. Sakina Bibi 2020 SCMR 1021 rel.

(b) Islamic Law---

----Gift---Scope---Ingredients of a valid gift provided under the Islamic law are; declaration of gift by donor; acceptance of gift by donee; and delivery of possession.

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

----S.42---Suit for declaration---Oral gift---Burden of proof---Scope---Donee is/are bound to prove the factum of oral gift.

Chaudhry Muhammad Younas v. Muhammad Khursheed 2019 CLC 797 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope of revisional jurisdiction is limited---High Court while exercising revisional jurisdiction is not permitted to reopen or dilate upon merits, rather while exercising revisional jurisdiction under S. 115, C.P.C., High Court has to confine itself to the law points involved in the matter or any specific portion of evidence if omitted by courts below.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs 2000 SCMR 314 rel.

Abdul Zahir Kakar for Petitioners.

Ajmal Kasi for Respondent No.1.

2023 C L C 530

[Balochistan]

Before Abdullah Baloch, J

ABDUL GHAFFAR and others----Petitioners

Versus

SHINKO and others----Respondents

Civil Revision No.46 of 2012, decided on 23rd October, 2020.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Mutation---Fraud, allegation of---Plaintiffs/respondents averred that their owned land was exchanged with the father of certain (4) defendants which they took possession of---In exchange plaintiffs/respondents got possession of a suit property from father of said four defendants in whose name the same was registered---Other two defendants/petitioners with collaboration of revenue staff fraudulently transferred the suit property in their names through fake sale deed/documents---Trial Court dismissed the suit---Appeal was accepted by Appellate Court---Validity---Nothing was brought on record to suggest that the mutation entries in question had fraudulently been carried out by the petitioners in their favour---Attorney of plaintiffs deposed that plaintiffs along with said four defendants carried a subsequent agreement and admitted that their elders had exchanged the properties 30 to 35 years before---Perusal of oral/documentary evidence including the said agreement did not disclose any fraudulent transfer of property in question by petitioners---Said agreement was silent with regard to description/mutation numbers of property and did not disclose any cause of action---Plaintiffs/respondents had failed to discharge burden of proof---No question was put to defendants' witnesses with regard to fraudulent transfer---Suit property was not claimed by the predecessors in their life time despite remaining alive for more than 20 years after transfer, and plaintiffs and said four defendants kept mum since long time---Lacunas of defendants could not be extended in favour of plaintiffs---Revision petition was accepted and impugned judgment/decree of appellate Court was set aside.

Muhammad Rustam and others v. Mst. Makhan Jan and others 2013 SCMR 299 rel.

Shams-ud-Din Achakzai for Petitioner.

Masoom Khan Kakar for Respondent.

Saifullah Sanjarani, Assistant A.G. for the State.

2023 C L C 557

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

SAWAB DIN and others----Petitioners

Versus

CIVIL JUDGE DERA BUGTI AT SUI and others----Respondents

Constitution Petition No.(S)34 of 2019, decided on 3rd November, 2021.

Civil Procedure Code (V of 1908)---

----O.IX, R. 8---Procedure where defendant only appears---Scope---Date of hearing is a date on which court examines pleadings in order to comprehend pleadings of the parties or in a suit in which issues are to be framed---Such is not a date fixed merely for appearance of parties, or for filing written statement or replication or scrutiny of process---If there is a date fixed in a suit which is not "hearing" the plaintiff cannot be penalized for his absence on that date.

2016 SCMR 2009; 1992 SCMR 707; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; PLD 1991 SC 1104; Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733; 1990 CLC 1261; PLD 1971 Lah. 412; PLD 1954 Lah. 575 and PLD 1982 Kar. 355 ref.

Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733; Sher Muhammad and another v. Ahmed Khan and another 2004 CLC 1016; Abid Mahmood v. Abdul Aziz 2003 YLR 3196 and Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 rel.

Husnain Iqbal Minhas for Petitioner.

Anwar-ul-Haq Chaudhary for Private Respondents.

Naseer-ud-Din Mengal, A.A.G. for Official Respondents.

2023 C L C 600

[Balochistan]

Before Abdul Hameed Baloch, J

AZEEM KHAN----Petitioner

Versus

COMMISSIONER KALAT DIVISON AT KHUZDAR and others----Respondents

Civil Revisions Nos.209 and 210 of 2017, decided on 18th March, 2021.

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

----Ss.42 & 52---Entries in records-of-rights---Document of title---Scope---Mutation procedure is not designed for final determination of right / title---Revenue Officer is final Settlement Court, who cannot decide question of right over suit land---Civil Court alone is competent to determine right of a person---Mutation is not proof of title as the same is maintained for keeping the record right---Entries made in record-of-rights in accordance with law are entitled to rebut-able presumption of correctness---Mutation entries do not per se confer ownership but are in the nature of presumptive piece of evidence to establish title.

Muhammad Jameel v. Karam Khan 2002 YLR 1680 rel.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of facts by two Courts below---Principle---Scope of revision is limited and reappraisal of evidence is not function of High Court---Conclusion of law and fact do not in any way affect jurisdiction of Court, no matter how erroneous the decision may be on question of fact unless decision involves matter of jurisdiction---Power under S.115 C.P.C. cannot be involved---High Court while exercising revisional jurisdiction is not supposed to interfere in concurrent findings of Courts below without jurisdiction or with material illegality, irregularity resulting to miscarriage of justice.

Mst. Kulsoom Bibi's case 2005 SCMR 135 rel.

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

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.76, 117 & 118---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Concurrent findings of facts by two Courts below---Original documents, loss of---Onus to prove---Petitioners/plaintiffs were aggrieved of judgments passed by two Courts below dismissing their suit and appeal---Contention of petitioners/plaintiffs was that once a document was exhibited without any objection subsequent objection with regard to admissibility of documents could not be raised--- Validity---Onus was on petitioners/plaintiffs to prove loss or non-availability of original document as envisaged under Art.76 of Qanun-e-Shahadat, 1984---Any person who desired any Court to give judgment to any legal right or liability, under Arts. 117 & 118 of Qanun-e-Shahadat, 1984, such person must prove that said facts existed---Petitioners/plaintiffs alleged ownership through documents and they were required to prove the fact which they had asserted---High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two Court below as petitioners/plaintiffs failed to point out any illegality, irregularity, misreading or non-reading of evidence---Revision was dismissed in circumstances.

Mst. Rehmat Bibi v. Haji Allah Dewaya 2009 CLC 390; S.A.K Rehmani v. The State 2005 SCMR 364; Malik Din v. Muhammad Aslam 1968 SCMR 1102; Sheikh Muhammad Anwar v. Sheikh Muhammad Iqbal 1984 CLC 103 distinguished.

Feroz Din Khan v. Muhammad Latif Khan PLD 2012 (SC AJ&K) 13; Muhammad Haroon v. Mst. Razia Begum 2001 CLC 810; Abdul Rehman's case 2007 SCMR 61; Muhammad Azam v. Abdullah 1999 CLC 200; Aamir Ghous Hashmi v. Nusrat Hussain 2017 MLD 2057 and Khan Muhammad v. Muhammad Din 2010 SCMR 1351 rel.

Ahsan Rafiq Rana for Petitioner (in Civil Petition No.209 of 2017).

Shahid Baloch, Additional Advocate General and Habib-ur-Rehman for Private Respondents (in Civil Petition No.209 of 2017).

Ahsan Rafiq Rana and Habib-ur-Rehman for Petitioners (in Civil Revision No.210 of 2017).

Shahid Baloch, Additional Advocate General for Respondents (in Civil Revision No.210 of 2017).

2023 C L C 685

[Balochistan]

Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ

SHAHEEN ALAM and 3 others----Petitioners

Versus

Mst. BIBI SALMA (Widow) and 7 others----Respondents

C.P. No.1250 of 2022, decided on 31st August, 2022.

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

----S.10---Stay of suit---Difference in cause of action---Scope---Plaintiffs filed a suit for declaration and cancellation regarding suit property---Defendants filed an application under O.VII, R.11, C.P.C.---Application filed by defendants was dismissed, however, the Trial Court stayed the suit till disposal of earlier suit filed before High Court of Sindh regarding suit property---Revisional Court remanded the case back to the Trial Court with direction to proceed with the case in accordance with law---Validity---Suit filed by plaintiffs in the High Court of Sindh was an administrative suit filed under the provisions of Succession Act, 1925---Cause of action of that suit was of distribution, partition and equal apportionment of legal shares between the legal heirs---Suit filed by plaintiffs before the Civil Court was a regular suit for immovable property and it was alleged that the property was illegally transferred through forged and fake power of attorney---Cause of action of the present suit was quite different from the suit pending before the High Court of Sindh---Constitutional petition was dismissed.

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

----S.10---Stay of suit---Scope---Five conditions must be fulfilled in order to apply provisions of S. 10 of C.P.C., which are (i) the matter in issue in both the suits must be directly and substantially the same; (ii) the previously instituted suit must be pending in a court of competent jurisdiction; (iii) the court before which the previous suit is pending must be competent to grant the relief in the subsequent suit; (iv) both the suits must be between the same parties and (v) the parties must be litigating in both the suits under the same title.

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

----S.278---Petition for letters of administration---Scope---Administration suit in view of the Succession Act, 1925 includes the collection of assets of deceased, the payment of debts and distribution of residue to persons beneficially entitled under the will of the testator or on his intestacy.

Iftikhar Ahmed Langove for Petitioners.

2023 C L C 711

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

SHAH MUHAMMAD----Appellant

Versus

ALLAH BAKHSH----Respondent

R.F.A. No.01 of 2021, decided on 30th September, 2021.

(a) Limitation---

----Law of limitation cannot be considered merely a formality and the same is required to be observed and taken into consideration being mandatory in nature---Purpose of the law of limitation is to help the vigilant and not the indolent---Helping hand may not be extended to a litigant having gone into a deep slumber, or having become forgetful of his rights---However, the concerned person has to be made aware of the invasion of his interests and awareness has to be ascertained as a matter of fact.

(b) Limitation---

----Person seeking condonation of delay must explain the delay of each and every day to the satisfaction of the court and should also establish that delay has been caused due to reasons beyond his control.

None appeared for Appellant.

None appeared for Respondent.

2023 C L C 752

[Balochistan]

Before Muhammad Ejaz Swati and Sardar Ahmad Haleemi, JJ

The SECRETARY COMMUNICATION AND WORKS, GOVERNMENT OF BALOCHISTAN, QUETTA and another----Petitioners

Versus

MIRWAIS KHAN and 6 others----Respondents

Civil Miscellaneous Appeal No.11 of 2022, decided on 17th October, 2022.

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

----S.54---Limitation Act (IX of 1908) S.5---Appeal---Limitation---Condonation of delay---Scope---Appellants assailed judgment and decree passed by Trial Court---Appeal was filed after a delay of 05 months---Appellants had not been able to sufficiently explain the inordinate delay within the parameters of law and the only reason furnished by the appellants was that they had been unable to accord the necessary sanctions from law department timely---In the absence of any valid explanation of the delay for each and every day, the appeal was not maintainable---Appeal was dismissed.

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

----S.5---Dismissal of suit, instituted, after period of limitation---Scope---Where an appeal is not filed within stipulated period, it creates valuable rights in favour of the opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid grounds are shown for condoning the delay.

Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot 2006 SCMR 1248 and Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 rel.

Shahid Baloch, Additional A.G. for Appellants.

Rehmatullah Barrech and Ahsanullah Kakar for Respondents.

2023 C L C 788

[Balochistan]

Before Abdul Hameed Baloch, J

HABIB-UR-REHMAN----Petitioner

Versus

GHULAM MUHAMMAD (LATE) through Legal Heirs and others----Respondents

Civil Revision No.336 of 2014, decided on 20th August, 2021.

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

----S.52---Civil Procedure Code (V of 1908), O.VI, R. 1---Qanun-e-Shahadat (10 of 1984), Arts. 113 & 132---Suit for declaration, permanent injunction, correction of entries and partition was initially decreed ex-parte---On application of respondents/defendants ex-parte decree was concurrently set-aside---Validity---Record revealed that entries in record of rights was also effected in name of the petitioner/plaintiff---Settlement of Mouza was conducted in 1984 and plaintiff filed suit after 26 years of settlement---Petitioner himself working in revenue department of concerned District had not challenged the disputed mutation---Petitioner pleaded in plaint that suit land was inherited property---Such assertion if believed, how the entries were effected in name of petitioner---Petitioner had tried to cover up the question of limitation---Mere bald assertion was not enough that petitioner came to know about the settlement in 2008---Petitioner had failed to prove his contention through evidence---Question of limitation was a question of law and fact----Where party alleged that suit was within time, it should prove the same---Suit was barred by law---Despite repeated directions by the trial court for production of witnesses whose statement were recorded during ex-parte proceedings, petitioner failed to comply with the order---Opposite party had right to cross-examine the witnesses for extracting truth---On failure to produce witnesses for cross-examination, Court could draw an adverse inference against party from its conduct---Record of right carried presumption of truth and strong evidence was required to rebut the attestation---Mere verbal assertion was not enough to rebut the entries in record of right---Statement of petitioner on oath was not in consonance with the pleading---Purpose of framing issues was that parties were fully aware of subject matter in controversy and evidence was to be led by parties---Revision petition was dismissed accordingly.

Dogar Mal-Amir Chand v. P, a Pleader AIR 1930 Lah. 947; Bakhtiar v. Nasrullah 2015 CLC 385; Muhammad Amir v. Mst. Beevi 2007 SCMR 614; Hakim Ali v. Nazir Ahmed Lughmani 1992 SCMR 1832; Province of East Pakistan v. Major Nawab Khawaja Hassan Askari PLD 1971 SC 82 and Ajmad Ikram v. Mst. Asiya Kausar 2015 SCMR 1 rel.

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

----O.VI, R. 1---Qanun-e-Shahadat (10 of 1984), Art. 113---Party to abide by its pleadings---Principle---Statement beyond pleadings could not be taken into consideration---Party was bound by its pleadings and could not be permitted to make departure from pleadings.

Musarrat Begum v. Syed Iftikhar Hussain Gilllani 2016 CLC 1042 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---Court exercising revisional jurisdiction was not permitted to re-open/dilate upon merits of the case---High Court observed that High Court had to confine itself to the law point involved in the matter or any specific portion of evidence if omitted by the Courts below---Concurrent findings of fact cannot be interfered with by the High Court until grave/material illegality was proved.

Mst. Hussan Bano v. Mst. Asia Khatoon 2021 CLC 855 rel.

Shahid Jawed for Petitioner.

Manzoor Jadoon for Respondents Nos.1 and 2A to 2K.

Respondents Nos.17 and 18 in person.

Muhammad Ayub Tareen, Assistant Advocate General for Official Respondents.

2023 C L C 920

[Balochistan]

Before Gul Hassan Tareen, J

MADO KHAN----Petitioner

Versus

TALIB JAN and another----Respondents

Civil Revision No.298 of 2021, decided on 5th December, 2022.

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

----Arts. 57 & 114---Suit for recovery of money---Fact in issue / relevant fact---Estoppel, principle of---Applicability---Order by Criminal Court---Petitioner / Plaintiff sought recovery of damages and exile of respondents / defendants from village---Trial Court on the basis of an order passed by Criminal Court in the criminal proceedings against respondents / defendants for same set of facts dismissed the suit---Appeal filed by petitioner / plaintiff was also dismissed by Lower Appellate Court---Validity---Institution of suit by petitioner / plaintiff meant that he made a false statement before Criminal Court regarding forgiveness of respondents/defendants in the name of Almighty Allah---In civil suit, statement recorded by petitioner / plaintiff before Criminal Court was binding upon him under Art.114 of Qanun-e-Shahadat, 1984---Suit of petitioner / plaintiff was barred by estoppel---Presumption of genuineness was attached to statement of petitioner / plaintiff recorded by him before Criminal Court that he had forgiven respondents/ defendants without any monetary consideration--- Petitioner failed to rebut such mandatory presumption of law and fact---Suit instituted by petitioner was rightly dismissed by two Courts below, as order passed by Criminal Court was relevant in a civil case---Any judgment, order or decree which is a fact in issue or is relevant under some other provision of Qanun-e-Shahadat, 1984, was relevant in any other civil or criminal case under Art. 57 of Qanun-e-Shahadat, 1984---High court declined to interfere in concurrent findings of facts by two courts below as the same did not suffer from any illegality---Revision was dismissed, in circumstances.

Mrs. Nimmi Francis and 5 others v. Muhammad Saeed Qureshi and another 1982 CLC 1703 distinguished.

Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361 and Abdur Rehman v. Hamid Khan 1988 SCMR 1146 rel.

Mehboob Alam Mandokhail for Petitioner.

Amanullah Jaffar for Respondent.

2023 C L C 977

[Balochistan]

Before Abdullah Baloch, J

ABDUL RAZAQ and others----Appellants

Versus

HOOR JAN and others----Respondents

Succession Appeals Nos.03 and 04 of 2021, decided on 29th October, 2021.

Islamic Law---

----Inheritance---Tarka---Pension---Scope---Appellants claimed to be great distant legal heirs of the deceased who was issueless; thus, they sought their due share in his pensionary benefits---Widow of deceased had also filed an application for similar relief---Trial Court dismissed the application filed by appellants and allowed that of the widow---Validity---Pension of a deceased was not heritable property i.e. it did not constitute 'tarka' of the deceased, and its distribution was governed under the statute/rules that provided for such pension---Appellants were not entitled to receive any share from the pensionary benefits of deceased---Orders passed by Trial Court did not suffer from any material illegality or irregularity to warrant interference by the High Court---Appeals were dismissed.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 and Dr. Safdar Hussain and another v. Flt. Lt. Nadia Latif and others 2014 YLR 1553 rel.

Mrs. Hina Mumtaz Soomro and others vs. Abdul Sami Soomro and others PLD 2018 Sindh 671 foll.

Muhammad Ibrahim Lehri for Appellants.

Ghulam Mohyuddin Sasoli and Munawar Iqbal Sumalani for Respondent No.2.

2023 C L C 994

[Balochistan (Turbat Bench)]

Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ

REHMDIL----Petitioner

Versus

Mst. BIBI and 3 others----Respondents

C.P. No.(T) 22 of 2022, decided on 8th November, 2022.

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

----S.5, Sched.---Suit for recovery of dower and maintenance---Scope---Petitioner assailed ex-parte judgment and decree passed by Trial Court in a suit for recovery of dower and maintenance---Validity---Petitioner had appeared before the Trial Court, received the copy of suit along with annexures and engaged a counsel but subsequently when he did not appear he was proceeded against ex-parte---Appeal filed by petitioner under S. 14 of the Family Courts Act, 1964, was held to be time barred---Matter was decided by the Trial Court on the basis of available record---Constitutional petition was dismissed.

Muhammad Tabish Naeem Khan v. Additional District Judge Lahore 2014 SCMR 1365 rel.

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

----S. 17---Provisions of Evidence Act 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 this context---Legislature has intentionally kept the provisions of C.P.C. not applicable in the proceedings before the Family Courts in order to expedite the proceedings and for early disposal of cases so that the litigants before the Family Courts e.g. family members, husband or spouses should not suffer the agony of prolonged litigation.

Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361 rel.

Abdul Majeed Dashti for Petitioner.

Shakeel Ahmed Zamurani for Respondent.

2023 C L C 1079

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen, JJ

ABDUL SATTAR and others----Petitioners

Versus

ABDULLAH and others----Respondents

Regular First Appeals Nos.35 and 36 of 2016, decided on 23rd November, 2022.

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

----Arts. 17 & 79---Contract Act (IX of 1872), Ss.24 & 26---Specific Relief Act (I of 1877), S.12---Sale agreement---Proof---Vendee filed a suit for specific performance against the vendors on the basis of a contract of sale---During pendency of suit, two persons (plaintiffs of later suit) filed a suit for specific performance of oral contract against the vendors---Vendors denied the claim of vendee and admitted the claim of plaintiffs---Trial Court decreed the suit of vendee only to the extent of two vendors---Validity---Document was required by Art. 17 of the Qanun-e-Shahadat, 1984 to be attested by two witnesses and the execution thereof to be proved through the testimony of two marginal witnesses per Art.79 of the Qanun-e-Shahadat, 1984---However, the agreement between vendee and vendors in the present case was attested by six marginal witnesses and five of them were produced i.e. even beyond the requirement of law---Trial Court had rightly decreed the suit to the extent of two vendors because the two sisters and mother of the vendors were neither executants of the contract nor had they authorized the vendors to sell out their shares---So far as agreement between the plaintiffs and vendors was concerned, record revealed that the property was transferred in exchange of a certain price as well as in exchange for the daughter of one of the plaintiffs---Such an agreement was not only immoral and against public policy but also void under Ss.24 & 26 of the Contract Act, 1872---Vendors had malafidely supported the suit of the plaintiffs---Appeals filed by vendors and plaintiffs were dismissed, in circumstances.

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

----S.24---Agreements void, if considerations and objects unlawful in part---Scope---If a contract or promise is founded upon a legal and an illegal consideration; the illegal consideration cannot be separated from the legal consideration and rejected, the illegality of part vitiates the whole.

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

----S.54---"Sale" defined---Scope---Four ingredients of a sale are, the parties, the subject matter, the price and the conveyance---Word price means only "money"---Any consideration in sale without money or part money and part other thing, is not a sale.

Muhammad Akram Shah for Appellant (in R.F.A. No.35 of 2016).

Ms. Shakar Bibi Baloch for Respondents Nos.1 and 2 (in R.F.A. No.35 of 2016).

Shah Rasool Kakar for Respondent No.6 (in R.F.A. No.35 of 2016).

Ms. Shakar Bibi Baloch for Appellants (in R.F.A. No.36 of 2016).

Shah Rasool Kakar for Respondent No.1 (in R.F.A. No.36 of 2016).

2023 C L C 1198

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL SAMAD----Petitioner

Versus

HAYATULLAH and 5 others----Respondents

Civil Revision No.47 of 2022, decided on 22nd February, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1, 2 & O.XLIII, R.1(r)---Application for grant of interim injunction---Ex-parte interim injunction, challenge to---Scope---Plaintiff filed suit for declaration, preventive and prohibitory injunction and consequential relief---Along with the suit, the plaintiff also filed an application under O.XXXIX, Rr.1 & 2, C.P.C.---Trial Court accepted the application, granted ad-interim injunction and issued notice to the defendants---Defendants filed appeal under O.XLIII, R.1(r), C.P.C., before the Appellate Court and the appeal was accepted---Validity---Ex-parte interim injunction was different from an order of temporary injunction made at the final disposal of the application after providing both the parties an opportunity of being heard---Ex-parte interim injunction was merely a provisional order---Order passed by the Appellate Court was set aside and the Trial Court was directed to decide the application under O.XXXIX, Rr. 1 & 2, C.P.C., within seven days.

Messrs Parijatha and another v. Kamalaksha Nayak and others KLR 1984 Civil Cases 219 rel.

Muhammad Rafiq Dumar for Petitioner.

Noor-ud-Din for Respondents.

2023 C L C 1273

[Balochistan]

Before Zaheer-ud-Din Kakar and Sardar Ahmed Haleemi, JJ

Syed SHAKEEL AHMED----Appellant

Versus

RAJ KUMAR----Respondent

R.F.A. No.19 of 2020, decided on 2nd January, 2023.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & O.XIV, R.2---Defamation---Recovery of damages---Rejecting of plaint---Preliminary issue---Plaintiff was a government official who assailed defamatory statement made by defendant against him---Trial Court after hearing parties on legal issues, dismissed the suit---Validity---Where an issue of law and facts had arisen in plaint of the suit and Trial Court believed that case or part thereof on the issue of law only, Trial Court under the provision of O.XIV, R.2, C.P.C., could decide the issue related to (a) jurisdiction of the court or (b) a bar to the suit created by any law for the time being in force---To invoke provisions of O.VII, R.11(d), C.P.C., no evidence could be looked into and conclusion that the suit was barred under the law must be drawn from averments made in the plaint---Allegation of defamation was a mixed question of law and facts---Such issue could not be tried as a preliminary issue in other words, such issues could be those where no evidence was required and on the basis of plain reading of plaint of suit, it appeared that jurisdiction of Court was barred, then the Court could decide such issue of law at the first stance---High Court set aside judgment and decree passed by Trial Court and remanded the suit to Trial Court for decision afresh on merits---Appeal was allowed accordingly.

Sugandhi v. P Rajkumar AIR 2020 (10) SCC 706 rel.

Abdul Khair Achakzai and Asmat Khan Tareen for Appellant.

Mehta Rajesh Nath Kohli and Jalila Haider for Respondent.

2023 C L C 1391

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL NASIR and 2 others----Petitioners

Versus

BIBI HAJIRA and others----Respondents

Civil Revision No.280 of 2015, decided on 7th May, 2021.

Gift---

----Oral gift---Proof---Exclusion of daughters---Respondents/plaintiffs were daughters of deceased owner of suit property who assailed mutation attested in favour of petitioners/defendants which was attested on the basis of oral gift by their father--- Suit was decreed by Trial Court in favour of respondents/plaintiffs but Lower Appellate Court decreed the same---Validity---No evidence was available on record as to why father had deprived his daughters from legacy at the time of his extreme old age---No evidence existed on record that plaintiffs/daughters were unsound or disobedient to their father which had compelled him to deprive them from their share in inheritance--- Though donor was free to gift his whole or part of property to anyone of his choice but when some legal heirs were deprived, it was imperative upon the beneficiary to bring a motive for depriving them from their due share---Mere transfer mutation was not proof of valid gift, which had to be proved independently---No witness of oral gift was produced in whose presence property was orally gifted to petitioners/defendants---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court--- Revision was dismissed accordingly.

Khalil Ahmed v. Abdul Jabbar Khan 2005 SCMR 911; Ghulam Hussain v. Muhammad Bilal 2010 CLC 837; Rab Nawaz v. Ghulam Rasul 2014 SCMR 1181 and Raees Ahmad v. Jannat Bibi 2018 CLC Note 57 ref.

Naveed Akram v. Muhammad Anwar 2019 SCMR 1095; Barkat Ali through legal heirs v. Muhammad Ismail through legal heirs 2002 SCMR 1938; Allah Ditta v. Manak alias Muhammad Siddique 2017 SCMR 402; Wali Muhammad Khan v. Mst. Amina 2018 SCMR 2090 and Muhammad Nawaz v. Sakina Bibi 2020 SCMR 1021 rel.

Behlol Khan Kasi for Petitioners.

Habib-ur-Rehman and Ayub Tareen, A.A.G. for Respondents.

2023 C L C 1445

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

Messrs R.L. PAPER BOARD MILLS through Managerand others----Appellants

Versus

Messrs SUI SOUTHERN GAS COMPANY LIMITED----Respondent

R.F.As. Nos.37 to 39 of 2021 and Civil Miscellaneous Appeals Nos.49 and 50 of 2021, decided on 19th April, 2023.

Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss.6(4), 7(2), 13 & Appendix "B" Form No.4---Gas Utility Court---Suit for recovery of amounts---Leave to defend the suit---Non-issuance of summons in Form No.4 of Appendix "B"---Effect---Factual controversies, scrutiny of---Appellants / consumers were aggrieved of dismissal of their leave to defend the suits resulting into judgment and decree passed by Gas Utility Court in favour of respondent / authorities---Validity---On presentation of suit, notices were not issued in Form No. 4 of Appendix "B" as contemplated under Ss. 6(4) & 7 (2) of Gas (Theft Control and Recovery) Act, 2016---From the very inception of the suit, proceedings were not initiated in accordance with the provisions of Gas (Theft Control and Recovery) Act, 2016---Several factual controversies regarding installation, removal of fake meters as well as mis-calculation of sum dues erupted---Such controversies needed to be scrutinized as the same could not be decided merely on the basis of pleadings or disputed documents---Factual controversies could only be resolved through evidence and such aspect was not dilated upon by Gas Utility Court making judgments and decrees in question as erroneous---High Court set aside judgments and decrees passed by Gas Utility Court as material question of law and facts remained unattended---High Court remanded the matter to Gas Utility Court for decision afresh---Appeal was allowed accordingly.

Muhammad Riaz Ahmed and Bilal Ahmed for Appellant (in R.F.A. No.37 of 2021).

Syed Ayaz Zahoor along with Makhdoom-ur-Rehman, Law Officer SSGCL for Respondent (in R.F.A. No.37 of 2021).

Rizwan Ali Soomro for Appellant (in R.F.A. No.38 of 2021).

Syed Ayaz Zahoor along with Makhdoom-ur-Rehman, Law Officer SSGCL for Respondent (in R.F.A. No.38 of 2021).

Muhammad Riaz Ahmed and Bilal Ahmed for Appellant (in R.F.A. No.39 of 2021).

Syed Ayaz Zahoor for Respondent (in R.F.A. No.39 of 2021).

Ilahi Bakhsh Mengal for Appellant (in C.M.A. Nos.49 and 50 for 2021).

Syed Ayaz Zahoor along with Makhdoom-ur-Rehman, Law Officer SSGCL for Respondent (in C.M.As. Nos.49 and 50 of 2021).

2023 C L C 1489

[Balochistan (Turbat Bench)]

Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ

NAVEED AHMED----Petitioner

Versus

FAMILY JUDGE, PANJGUR and another----Respondents

Constitution Petition No.(T) 17 of 2023, decided on 2nd March, 2023.

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

----S.14---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Decree passed by Family Court---Execution---Remedy of appeal---"Decision given"---Scope---Petitioner assailed the order passed by Executing Court (Family Court) whereby it had allowed the execution application---Validity---Impugned order was not an interim order rather was an order which fell within the definition of word "decision" as prescribed by S. 14(1) of the Family Courts Act, 1964---Vide impugned order, the Executing Court had over-ruled the objections of the petitioner and had allowed the execution application made by the respondent---Executing Court had finally decided the execution application and objections of the petitioner, therefore, the petitioner was required to avail his remedy of appeal under S. 14 of the Family Courts Act, 1964---Section 14 of the Family Courts Act, 1964, prescribes an alternate, effective and exhaustive remedy in the form of a substantive right of appeal to a party who feels itself aggrieved from the decision or a decree passed by a Family Court---Remedy of appeal and the forum thereof had debarred the petitioner from directly approaching the High Court in constitutional jurisdiction---Section 14 of the Family Courts Act, 1964, apart from prescribing a statutory right of appeal, also provides a forum in the form of District Court---Such right of appeal is not without an adequate remedy---Jurisdiction, under S. 14 of the Family Courts Act, 1964 and under Article 199 of the Constitution are not concurrent, therefore, the petitioner should have availed the prescribed remedy of appeal before approaching the High Court under Article 199 of the Constitution---Constitutional petition was dismissed.

Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate remedy---Scope---High Court may, on the application of any aggrieved party, exercise its' constitutional jurisdiction under Art.199 of the Constitution, however, such exercise is subject to the Constitution, and if the Court is satisfied that no other adequate remedy is provided by law.

Indus Trading and Constructing Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842 rel.

Sohail Abid for Petitioner.

2023 C L C 1510

[Balochistan]

Before Abdul Hameed Baloch, J

HAFEEZULLAH and 2 others----Petitioners

Versus

Dr. MUNIR AHMED and another----Respondents

Civil Revision No.621 of 2019, decided on 25th June, 2021.

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

----Ss.42 & 39---Balochistan Land Revenue Act (XVII of 1967), S.52---Suit for declaration and cancellation of mutation---Presumption in favour of entries in record-of-rights and periodical records---Oral gift---Gift in favour of minor---Scope---Plaintiffs sought declaration and cancellation of mutation of oral gift allegedly executed by their father---Contention of defendant was that after the demise of his father, the father of plaintiffs had looked after him/brought him up and he had lived in his house being orphaned nephew---Validity---None of the witnesses of the plaintiffs stated how and when the fraud was committed by the defendant---Mutation entry was effected in the name of defendant in the year 1974---Witnesses examined by the plaintiffs were less than fifty years of age meaning thereby that the gift was effected either prior to their birth or in their childhood, as such fraud could not be proved---Father of plaintiffs had never challenged the gift in his lifetime and it could not be accepted that the minor had got mutated the suit property fraudulently---Mutation entry though could not create or extinguish title but it had evidentiary value---Under S.52 of the Balochistan Land Revenue Act, 1967, presumption of truth was attached with the record of rights---Revision petition was dismissed.

Sakhawat Ali v. Province of Punjab, 2002 YLR 2338 ref.

Shamsher v. Yar Muhammad Khan 2001 CLC 1007 rel.

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

----Arts.117 & 119---Burden of proof---Burden of proof as to particular fact---Scope---One who alleges something must prove the same through reliable, confidence inspiring and trustworthy evidence---Mere allegation of fraud without proof cannot absolve him from proving the allegation of fraud---Though the fraud vitiates solemn proceedings but the party alleging fraud should prove the factum of fraud.

(c) Islamic law---

----Gift---Oral gift---Gift in favour of minor---Scope---Gift in favour of minor is not invalid if physical possession is not given---Muslim can gift his property to any one with his free will---For gift, no writing is essential---Donor can gift orally.

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

----S.115---Revisional jurisdiction---Scope---Revisional jurisdiction of High Court is limited and while exercising revisional jurisdiction High Court is not permitted to re-open or dilate upon merits of the case unless and until grave injustice or illegality is proved on record.

Muhammad Idrees v. Muhammad Pervaiz 2010 SCMR 5 rel.

Abdul Sattar and Shahnaz Rana for Respondent No.1.

2023 C L C 1531

[Balochistan]

Before Abdul Hameed Baloch, J

ZAIBO and others----Applicants

Versus

HABIBULLAH and 2 others----Respondents

Civil Transfer Application No.04 of 2021, decided on 2nd July, 2021.

Civil Procedure Code (V of 1908)---

----S.24---Application for transfer of civil suit---Scope---Applicants sought transfer of civil suit from one district to another on the ground that the defendant had threatened them of dire consequences---Validity---Parties could not be allowed to seek transfer of the case from one court to another without any valid ground---Such practice would cause delay in the proceeding before the competent court of jurisdiction and inconvenience to other party---Applicants had failed to mention as to by what means the defendant had threatened them, in whose presence, the threat was made and on what date and month the defendant threatened them---Alleged allegation was not supported by any evidence---Even the applicants had not taken legal proceedings on such threat---Apprehension was no valid ground for transfer of the case to other court---Transfer application was dismissed, in circumstances.

Mst. Rukhsana v. Mian Imtiaz Aleem 2013 MLD 739 and Abdul Khaliq v. Muhammad Anwar Nasir 2021 MLD 1197 rel.

Attaullah Langove for Applicants.

Sadiq Kakar and Ayub Tareen, Additional Advocate General for Respondents.

2023 C L C 1721

[Balochistan]

Before Muhammad Hashim Khan Kakar and Iqbal Ahmed Kasi, JJ

MUHAMMAD SAEED----Petitioner

Versus

The CHAIRMAN, BALOCHISTAN PUBLIC SERVICE COMMISSION and 3 others----Respondents

Review Petition No.02 of 2023 in C.P. No.1942 of 2022, decided on 20th March, 2023.

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

----S. 114 & O. XLVII, R. 1---Review---Scope---Courts are vested with the powers to review the orders, judgments, and decrees with certain restrictions, limitations, conditions, being provided in S. 114 and O.XLVII, R. 1 of the C.P.C.---Court while reviewing judgment, order cannot sit as a Court of appeal as the grounds for appeal or review are totally different from each other---Clerical, arithmetical, accidental, typographical and a pencil slip mistake which is floating on the surface of record or, which apparently is against the law coverable under O.XLVII, R. 1 of C.P.C., can be reviewed.

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

----S.114 & O. XLVII, R.1---Review---Scope---Most important requirement of entertaining a review petition is that the order, review of which is sought, suffers 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 does not sit in appeal over its own order---Similarly, re-hearing of the matter is impermissible---Likewise, it constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered---Power of review can be exercised for correction of a mistake and not to substitute a view.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Factual controversy---Scope---High Court cannot engage in factual controversies, as the matters pertaining to factual controversies can only be resolved after thorough inquiry and recording of evidence in a Civil Court.

Abdul Wahab Buledi for Petitioner.

2023 C L C 1756

[Balochistan]

Before Zaheer-ud-Din Kakar and Gul Hassan Tareen, JJ

DUR BIBI and 2 others----Appellants

Versus

Syed SHAH MUHAMMAD and 7 others----Respondents

R.F.A. No.25 of 2022, decided on 8th May, 2023.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Transfer of Property Act (IV of 1882), S. 105---Civil Procedure Code (V of 1908), S. 17---Suit for declaration, possession, partition and perpetual injunction---Leased property---Heritable asset---Scope---Appellants initiated a lawsuit seeking a declaration, possession, partition, and perpetual injunction against the respondents---Trial Court observed that one of the properties i.e. the property in question was located outside its territorial jurisdiction and belonged to the respondent landlord/lessor, making it non-inheritable property---Validity---Late predecessor of the appellants held a leasehold interest in the shop under consideration---Leased property was not only heritable by the legal representatives of a deceased lessee but also subject to partition among them---Section 105 of the Transfer of Property Act, 1882, states that a lease of immovable property involves transferring the right to enjoy such property in exchange for a price paid or promised, or other forms of consideration---Interest of a deceased lessee was inheritable and subject to partition---Ownership of the leased property, whether it belonged to a private individual, the government, or an autonomous body, did not alter these principles---Suit property fell within the territorial jurisdiction of the Trial Court and the court had jurisdiction to adjudicate the appellants' case concerning the property under S.17 of the C.P.C., therefore, the Trial Court's judgment was rendered with material illegality---Appeal was allowed, the challenged judgment and decree were set aside and the Trial Court was instructed to decide the suit on its merits.

Abdul Habib and others v. Mst. Noor Bibi and others 2022 SCMR 1846 ref.

Sindh Industrial Trading Estate Ltd. through Secretary v. Muhammad Illyas and another 2005 SCMR 309 rel.

Sharjeel Haider for Appellants.

Syed Ayaz Zahoor, Changaiz Dashti, State counsel for Respondents Nos.9 and 10 and Shah Muhammad (Respondent No.1 well as attorney for Respondents Nos.2 to 5) in person.

2023 C L C 1784

[Balochistan]

Before Rozi Khan Barrech, J

ABDULLAH and another----Petitioners

Versus

NOOR-UD-DIN and others----Respondents

Civil Revision No.448 of 2022, decided on 22nd March, 2023.

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

----O.VII, R.11---Rejection of plaint---Averments made in the plaint---Cause of action, arising of---Powers of the Courts---Scope---In order to take up pleas under Order VII, Rule 11 of the Civil Procedure Code, 1908 ('the C.P.C, 1908'), the concerned party has to essentially take the averments made in the plaint as correct, and establish that their entirety appears to be barred by law or a suit on the basis of it was incompetent, or did not disclose cause of action---Court would take into consideration the plaint as a whole and the documents placed on record by the plaintiff---Party seeking relief must have " cause of action" not only when the alleged act is done but at the time of filing suit, the right to seek relief should be in existence---Question as to whether a suit is barred by limitation or right to seek relief exists or not, would therefore depend upon the facts and circumstances of each case---For the said purpose, only averment made in the plaint is relevant and at this stage Court would not consider the defence---Order VII, R.11 of the C.P.C, 1908 lays down an independent remedy to the defendant to challenge the maintainability of the suit instead of contesting the same on merit---Court can exercise power at any stage of the suit, before passing judgment , for deciding an application under O.VII, R. 11 of the C.P.C, 1908, relating to clauses (a) & (d)---Order VII, Rule 11 of the C.P.C, 1908, impliedly, casts a duty on the Court to perform its obligation when the same is hit by any of the clauses provided under O.VII, R.11 of the C.P.C, 1908---Even without the filing of application under O.VII, R. 11 of the C.P.C, 1908, by defendants or deciding such application, it is to be considered whether the plaint discloses a real cause of action or something purely illusory or imaginary or hollow has been stated within the meaning of O.VII, R.11 of the C.P.C, 1908---Thus, it is the plaint alone which is to be considered.

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

----Ss.42, 12 & 54---Transfer of Property Act (IV of 1882), S.54---Registration Act (XVI of 1908), S.49---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, possession, permanent injunction and mandatory injunction---Maintainability---Un-registered instrument---Entitlement---Scope---Cause of action, arising of---Petitioners/plaintiffs claimed to have purchased suit-property through agreement from the father of respondents/defendants who allegedly had further alienated the property---Respondents/defendants claimed that not only suit-property was an unsettled property but the alleged agreement was an un-registered document ; and even the suit was time-barred---Trial Court dismissed the suit declaring the same as not maintainable, which judgment was maintained by the Appellate Court---Validity---Record revealed that agreement-in-question was an un-registered document ---No right was accrued to the petitioners / plaintiffs on the basis of un-registered document as mere agreement to sell did not confer any right in favour of the buyer in view of "sale" as well as "sale how made" having been defined and stipulated in S.54 of the Transfer of Property Act, 1882 and S.49 of the Registration Act, 1908---Un-registered agreement would not create any title or interest in the suit-property, thus a declaratory suit under S. 42 of the Specific Relief Act, 1877, on the basis of deed-in-question was not maintainable---Even if the suit of the petitioners / plaintiffs was to be considered as one that of specific performance, then under law of limitation, the period of filing a suit for specific performance of a contract was three years, whereas they had filed present suit after the lapse of seven years, therefore, their suit was hopelessly time-barred especially when they had not uttered a single word in their plaint as to when they got the cause of action against the respondents / defendants---Both the parties even admitted that the property-in-question was a unsettled property ; the same was neither in the name of father of the respondents / defendants nor in the name of the petitioners/plaintiffs, thus a suit for the declaration was not permissible without any entitlement with property-in-question---No illegality or infirmity was found in the concurrent findings of both the Courts below declaring the suit instituted by the petitioners/plaintiffs as not maintainable---Revision petition was dismissed, in circumstances.

Syed Manzoor Ahmed Shah for Petitioners.

Ajmal Khan Lawoon for Respondents Nos.1 to 9.

Allauddin Kakar, A.A.G. for Respondent/State.

2023 C L C 1808

[Balochistan]

Before Rozi Khan Barrech and Muhammad Aamir Nawaz Rana, JJ

ABDUL JABBAR----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, FOREST AND WILDLIFE DEPARTMENT QUETTA, through Secretary and 4 others----Respondents

Constitution Petition No.96 of 2023, decided on 21st March, 2023.

Contract Act (IX of 1872)---

----S.23---Specific Relief Act (I of 1877), S. 21---Civil service---Contracts not specifically enforceable---Scope---Any agreement, which stipulates selling of public office posts in lieu of land would be illegal, void and shall not create any right---In case any such illegal contract has been concluded, apart from being void the same is also not enforceable in view of S. 21 of the Specific Relief Act, 1877---Intention of the legislature is very clear; where under a contract, the obligation is cast upon a person to perform continuously a particular duty for a period longer than 3 years from the date of agreement, the same cannot be specifically enforced---Appointments on public offices are to be made strictly on merits, and such public offices are not supposed to be sold under any pretext.

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

2023 C L C 1965

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shoukat Ali Rakhshani, JJ

Messrs SALAM INTERNATIONAL and others----Petitioners

Versus

SECRETARY MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT, QUETTA and others----Respondents

Constitution Petitions Nos.847, 890, 984, 986, 1058, 1064, 1707, 1717, 1792 of 2021, 31, 213, 905, 1812 of 2022, 793 and 794 of 2023, decided on 21st June, 2023.

Balochistan Development and Maintenance of Infrastructure Cess Act (IX of 2021)---

----Ss.3, 8, 9, 15, 16 & 18---Constitution of Pakistan, Art.142(b)---Constitutional petition---Cess, imposing of---Vires---Petitioners were aggrieved of Balochistan Development and Maintenance of Infrastructure Cess Act, 2021 and had sought its annulment---Plea raised by petitioners was that Provincial Legislature had transgressed Legislative dominion of Majlis-e-Shoora (Parliament) by enacting law for levy and Cess which squared within Federal Legislative List and no Provincial Assembly could do legislation except making laws in respect of criminal law, criminal procedure and law of evidence so enshrined under Art.142(b) of the Constitution---Petitioners also contended that structure and mechanism provided for collection of Cess was an additional customs duty on import of goods which squared out the power and mandate of Provincial Assembly to legislate---Respondent authorities contended that levy of Cess related to fee charged for the purpose of providing different services to importers and exporters by establishing infrastructure, therefore, Provincial Assembly had mandate to do legislation with regard to levy and collection of Cess for maintenance and development of infrastructure in order to provide facility to people of the Province---High Court found the contention of authorities worth consideration---High Court directed the authorities to levy and collect 50 % of the Cess in view of the services provided by Government of Balochistan so envisaged under Balochistan Development and Maintenance of Infrastructure Cess Act, 2021, subject to final decision of the Supreme Court in petitions wherein provisions/law similar to the Balochistan Development and Maintenance of Infrastructure Cess Act, 2021 was challenged---Constitutional petition was disposed of accordingly.

W.P. No.2293-P of 2016; C.P. No.2498 of 2019 and Messrs United Ghee Industries (Pvt.) Ltd. v. The Province of Khyber Pakhtunkhwa and others W.P. No.4029-P of 2019 rel.

C.P. No.4288 of 2021 fol.

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.847 of 2021).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.847 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No.847 of 2021).

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.984 of 2021).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.984 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No.984 of 2021).

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.1707 of 2021).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.1707 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No.1707 of 2021).

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.1792 of 2021).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.1792 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No.1792 of 2021).

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.31 of 2022).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.31 of 2022).

Jam Saka Dashti for BRA (in Constitution Petition No.31 of 2022).

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.213 of 2022).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.213 of 2022).

Jam Saka Dashti for BRA (in Constitution Petition No.213 of 2022).

Ms. Sofia Saeed Shah for Petitioner (in Constitution Petition No.905 of 2022).

Shaihaq Baloch, Additional Advocate General and Muhammad Rashid, Assistant Advocate General for Official Respondents (in Constitution Petition No.905 of 2022).

Jam Saka Dashti for BRA (in Constitution Petition No.905 of 2022).

Syed Tanveer for Petitioner (in Constitution Petition No.890 of 2021).

Shaihaq Baloch, Additional Advocate General for Official Respondents (in Constitution Petition No.890 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No.890 of 2021).

Barrister Zahoor Hassan Jamote for Official Respondents (in Constitution Petition No.1812 of 2022).

Shaihaq Baloch, Additional Advocate General for Official Respondents (in Constitution Petition No. 1812 of 2022).

Jam Saka Dashti for BRA (in Constitution Petition No. 1812 of 2022).

Mujeeb Ahmed Hashmi for Petitioner (in Constitution Petition No.986 of 2021).

Shaihaq Baloch, Additional Advocate General for Official Respondents (in Constitution Petition No. 986 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No. 986 of 2021).

Mujeeb Ahmed Hashmi for Petitioner (in Constitution Petition No.1058 of 2021).

Shaihaq Baloch, Additional Advocate General for Official Respondents (in Constitution Petition No. 1058 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No. 1058 of 2021).

Mujeeb Ahmed Hashmi for Petitioner (in Constitution Petition No.1064 of 2021).

Shaihaq Baloch, Additional Advocate General for Official Respondents (in Constitution Petition No. 1064 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No. 1064 of 2021).

Mujeeb Ahmed Hashmi for Petitioner (in Constitution Petition No.1717 of 2021).

Shaihaq Baloch, Additional Advocate General for Official Respondents (in Constitution Petition No. 1717 of 2021).

Jam Saka Dashti for BRA (in Constitution Petition No. 1717 of 2021).

Asad Ayaz for Petitioner (in Constitution Petition No. 793 of 2023).

Asad Ayaz for Petitioner (in Constitution Petition No. 794 of 2023).

2023 C L C 2050

[Balochistan]

Before Rozi Khan Barrech, J

ALAMZAIB KHAN----Petitioner

Versus

KASI BEHRIA TOWN MAIN JINNAH ROAD, QUETTA through CEO----Respondent

Civil Revision No.401 of 2022, decided on 20th March, 2023.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Object, purpose and scope---Temporary injection by its nature is a preventive remedy with the object of maintaining status quo and preventing irreparable damage or preserve subject matter of litigation until trial is concluded---In order to succeed in obtaining a temporary injunction, a plaintiff has to establish co-existence of three conditions or ingredients. (i) prima facie case, (ii) possibility of suffering an irreparable loss if temporary injunction is declined and (iii) balance of convenience leaning in his favor---Of such three conditions, existence of prima facie case is foundational and other two conditions are considered once plaintiff establishes a prima facie case in his favor---Words 'prima facie' means 'at first sight' or 'on first impression'---Existence of right of plaintiff is to be adjudged 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 rival contention of parties as contained in their pleadings---If Court is satisfied that case of plaintiff is on a better footing and on conclusion of trial relief may be granted to him in all likelihood, then Court can infer that plaintiff has a prima facie case---To ascertain whether a plaintiff has a prima facie case, Court tentatively examines not only pleadings of the parties but their affidavits, counter affidavits and documents appended with plaint and written statement.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement to sell, declaration and injunction---Interim injunction, grant of---Prima facie case---Petitioner / plaintiff sought specific performance of agreement to sell entered into with respondent / defendant regarding purchase of suit property for which he had already paid more than 50% of consideration amount---Trial Court and Lower Appellate Court declined to grant interim injunction in favour of petitioner / plaintiff---Validity---Petitioner / plaintiff purchased plot from respondent / defendant for total consideration amount of Rupees 800,000/- on monthly installment basis, out of which petitioner had paid advance amount of Rupees 40,000/- and monthly installments were fixed as Rs. 10,000/- per month and until December 2019, amount deposited had become around Rupees 380,000/- which was more than 50% of the total amount of the plot in question---Both the Court below while passing orders in question lost sight of such factual background and principles for grant of injunction---Petitioner had a good prima facie case and balance of convenience lied in his favor---If respondent / defendant further allotted plot in question to third party, loss would be caused to petitioner / plaintiff---Interim injunction was to avoid multiplicity of suits or inclusion of strangers to suit property---High Court did not find any justification before fora below to reject request of petitioner / plaintiff for grant of ad interim injunction, as he had made out a case in his favor---High Court set aside orders passed by two Courts below and interim injunction was granted in favor of petitioner / plaintiff---Application was allowed accordingly.

Taimoor Shah Kakar for Petitioner (Absent).

Mohibullah Kakar for Respondent (Absent).

2023 C L C 2063

[Balochistan]

Before Naeem Akhtar Afghan, CJ and Muhammad Aamir Nawaz Rana, J

SHER AFGHAN KHAN ZARKOON----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT, RURAL DEVELOPMENT AND AGROVILLES DEPARTMENT, QUETTA through Secretary and 6 others----Respondents

Constitution Petition No.66 of 2023, decided on 1st June, 2023.

Elections Act (XXXIII of 2017)---

----Ss. 8 & 9---Balochistan Local Government (Election) Rules, 2013, Rr.40 & 42---Constitution of Pakistan, Arts. 199 & 218 (3)---Constitutional petition---Election dispute---Rejecting of votes---Non-holding of inquiry---Effect---Presiding officer, conduct of---Petitioners were aggrieved of election conducted by authorities for the seat of Chairman Municipal Committee---Validity---Rival claims with regard to rejection of vote constituted factual controversy and such exercise was avoided by High Court in Constitutional jurisdiction under Art. 199 of the Constitution---Conduct of Presiding Officer, Municipal Committee, concerned was very relevant to ascertain fairness and transparency of election held for the seat of Chairman Municipal Committee---Provisions of Chapter VIII of Balochistan Local Government (Election) Rules, 2013, pertained to election of Chairman and Vice Chairman Municipal Committees---Controversy between the parties pertained to R.63 (6) of the Balochistan Local Government (Election) Rules, 2013---Presiding Officer of the Municipal Committee should have conducted summary inquiry at the spot to ascertain legality and validity of rejected vote, as apparently other marks were also put by some other pen on the disputed ballot papers---Voter himself could not have destroyed secrecy of his vote in order to provide benefit to petitioner---Election of Chairman Municipal Committee hinged upon the fate of such disputed votes, therefore, its rejection and subsequent conduct of Presiding Officer Municipal Committee by not holding summary inquiry at the spot had materially affected result of the election held for seat of Chairman Municipal Committee---High Court directed Election Commission to hold fresh elections and set-aside the result of election held for Chairman Municipal Committee, by declaring the same as void---Constitutional petition was allowed accordingly.

Kamran Murtaza, Adnan Ejaz Sheikh, Tahir Ali Baloch and Noor Jan Buledi for Petitioner.

Zahoor Ahmed Baloch, Additional Advocate General for Respondent No.1.

Shehzad Aslam, Law Officer, Election Commission of Pakistan (ECP) and Naseer Ahmed, Assistant Private Secretary ECP assisted by Jaffar Khan, Returning/Presiding Officer, Municipal Committee, Kohlu for Respondents Nos.2 to 6.

Jameel Ahmed Khan Babai and Bangul Khan Marri for Respondent No.7.

2023 C L C 2098

[Balochistan (Sibi Bench)]

Before Gul Hassan Tareen, J

GHAZI KHAN----Petitioner

Versus

MUHAMMAD YOUSAF and 2 others----Respondents

Civil Revision Petition No.33 of 2018, decided on 30th March, 2023.

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

----S.54---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(a), 79 & 129(g)---Registration Act (XVI of 1908), S. 17(1)(b)----Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of agreement and permanent injunction---Document (sale-agreement), execution of---Denial by the alleged executor---Burden of proof---Two marginal witnesses, non-production of---Sale-agreement, non- registration of---Suit filed by the plaintiff was dismissed by the Trial Court, which judgment was maintained by the Appellate Court---Claim of the petitioner / plaintiff was that he rented-out his allotted suit-shop to a defendant (possessor) who had connived with another defendant who (later) alleged himself as vendee by preparing forged document (Patta) allegedly issued by the concerned authority/defendant)---Contention of the respondents /defendants was that the plaintiff himself made application before the concerned authority (respondent) for the transfer of suit-shop in favour of alleged vendee (respondent), on which basis suit-shop was transferred vide document (i.e. Patta) duly issued by the concerned authority/respondent---Validity---Record revealed that the (private) respondents/ defendants through their common pleadings had not denied that shop was rented out to the possessor (respondent /defendant); and they had got exhibited the said document i.e. Patta ('document-in-question')---Burden of proof of the sale transaction vide document-in-question and transfer of shop on the application of the petitioner / plaintiff was on the respondent/vendee, who brought on record document-in-question through Notary Public---Document-in-question was though attested by two witnesses, however, respondent/vendee produced only one marginal witness---Document-in-question was a sale-agreement in respect of an immoveable property (shop) which was required to be attested by two witnesses under Art.17(2)(a) of Qanun-e-Shahadat, 1984 ('the Order 1984'); and such document must be proved by producing its two marginal witnesses under Art. 79 of the Order 1984---Second marginal witness of the document-in-question was withheld by the respondent/vendee without any legal reason---High Court could presume, under the provision of Art. 129(g) of the Order, 1984, that had the said witness been produced, he would have gone against him (respondent)---Respondent/vendee not only failed to prove execution of document-in-question but also failed to discharge the burden of proving that he had in fact purchased the shop from the petitioner---Document-in-question was a contract of sale which, according to S. 54 of the Transfer of Property Act, 1882, did not itself create any interest in or charge on an immoveable property unless the same was made a registered instrument under paragraph (2) of S. 54 of the Act, 1882 read with S.17(1)(b) of the Registration Act, 1908---High Court set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art.79---Document (sale-agreement, execution of---Proof---Marginal witness appearing as attorney of the party---Legality---Record revealed that the one marginal witness of the document-in-question appeared before the Trial Court as attorney of the respondents---Respondent/vendee should have examined him as his witness---Question was as to how the said witness could have appeared in dual capacities i.e. as an Attorney of the respondents and as a marginal witness of the document-in-question---Marginal witness merely testifies execution of a document by the parties thereto ; he is not deemed to become 'a party', and looses its character of a marginal witness---Testimony of the said witness was doubtful, questioning his impartiality and he appeared to be an interested witness, which supported the claim of the petitioner that document-in-question was indeed a forged document---Respondents had failed to prove the execution of document-in-question under Art. 79 of the Qanun-e-Shahadat, 1984---High Court set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

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

----O.VI, R. 4 & O.VIII, R.2---Evidence beyond pleadings---Record revealed that the respondent had not pleaded the price of the suit-property (shop) in his written statement and tried to establish, through his two witnesses, that the petitioner had sold out the shop in exchange for a price of Rs.15,00,000/=, but said evidence to such extent was departure from his pleadings---Evidence beyond pleadings was to be simply ignored and both the Courts below should have over-looked the same---High Court set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

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

----Arts. 17(2)(a) & 79---Document, execution of---Proof---Evidence of the Notary Public---Relevance---Evidence of a Notary Public was not relevant for proof of execution of a contract of sale/agreement as the same was not required by any law to be verified by a Notary Public.

Zafar Iqbal v. Sher Muhammad and 3 others 2003 YLR 673 ref.

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

----O. VII, R.7 & S. 115---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of agreement, permanent injunction---Certain relief (possession), not prayed for---Revisional jurisdiction of the High Court---Scope---Contention of the defendants/respondents was that the petitioner/ plaintiff had not sought possession of the suit-shop in prayer clause of his suit---Held, that record revealed that though the contention of the respondent was correct, however, the same could not be made a ground for non-suiting a party under the proviso to S. 42 of the Specific Relief Act, 1877---Under O. VII, R.7 of the Civil Procedure Code, 1908, Court was competent to grant an ancillary, general or additional relief to a plaintiff, though the same was not specifically asked---High Court at revisional stage could grant `relief of possession of the suit-shop to the petitioner/ plaintiff in exercise of power under O.VII, R.7 of the Civil procedure Code, 1908, subject to payment of additional court fees---High Court, while directing the petitioner/plaintiff to pay requisite court fee, set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

Ahmed Din v. Muhammad Shan and others PLD 1971 SC 762 ref.

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

----S. 18 & Art. 120---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of agreement, permanent injunction---Document, execution of---Proof---Limitation---Claim of the plaintiff was that he rented-out his allotted suit-shop to a defendant (possessor) who had connived with another defendant who (later) claimed himself as vendee by preparing forged document (Patta) allegedly issued by the concerned Authority/defendant)---Contention of the defendants/respondents was that the suit filed by the petitioner / plaintiff was time-barred---Validity---Contention of the respondents /defendants was of no legal force as in the relevant para of plaint of the petitioner / plaintiff , he averred that 03/04 months prior to institution of suit, he came to know that the respondent/defendant was trying to occupy his shop and on inspection of the record, forged document was revealed to him---Petitioner had sought declaration of the forged-document (which was later duly exhibited by the respondent / defendant )---Article 120 of Schedule-I of the Limitation Act, 1908 prescribed six years time limitation for instituting a suit for declaration that a document was void or fraudulent---Trial Court without framing issue on question of limitation, for the first time, held in the impugned judgment that the suit was barred by time---Respondent/authority had transferred the lease of suit-shop to the respondent at his (petitioner's) back, therefore, such transfer being void ab initio was governed by Art.120 of the Limitation Act, 1908---Limitation for declaring a document to be void started from the date of knowledge in view of section 18 of Limitation Act, 1908---Both the Courts below had overlooked said aspect of the case---High Court set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art. 79---Registration Act (XVI of 1908), S. 17(1)(b)---Civil Procedure Code (V of 1908), S.115(1)(a) & 115(1)(b)---Suit for declaration, cancellation of agreement and permanent injunction---Concurrent findings of dismissal of suit---Powers of the High Court under revisional jurisdiction---Scope---Document (sale-agreement), execution of---Denial by the alleged executor---Burden of proof---Two marginal witnesses, non-production of--- Sale-agreement, non-registration of---Rights---Scope---Claim of the petitioner/ plaintiff was that he rented-out his allotted suit-shop to a defendant (possessor) who had connived with another defendant who (later) claimed himself as vendee by preparing forged document (Patta) allegedly issued by the concerned authority/defendant)---Validity---There was no absolute rule that the concurrent judgments of the subordinates Courts could never be interfered with by the High Court---In the present case, the findings of the Trial Court on the issues (relating to execution of sale-agreement between the parties) and of Appellate Court on the points of determination were illegal as the respondents / defendants had failed to prove execution of (un-registered) sale-agreement in their favour through cogent and trustworthy evidence as required under the relevant laws, therefore, impugned judgments were outcome of error of jurisdiction and were suffered from material illegality; as such attracted the provisions of Ss.115(1)(a) & 115(1)(b) of the Civil Procedure Code, 1908---High Court set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

Alamdar Husain v. Nazin Hussain and others 2004 SCMR 595 ref.

Anwar-ul-Haq Chaudhry for Petitioner.

Ahsan Rafiq Rana for Respondents Nos.1 and 2.

Muhammad Aslam Jamali, Assistant Advocate General for Respondent No. 3.

2023 C L C 2134

[Balochistan]

Before Gul Hassan Tareen, J

Syed SALAH-UD-DIN----Petitioner

Versus

ALI JAN----Respondent

Civil Revision No.181 of 2022, decided on 12th May, 2023.

Civil Procedure Code (V of 1908)---

----Ss. 47, 115, O. XX, R.11 & O.XXXVII, R.2---Suit of recovery of money on the basis of dishonored cheque---Execution---Instalment of decretal amount---Principles---Petitioner / judgment debtor was aggrieved of dismissal of his application by Trial Court for recovery of decretal amount in instalments---Validity---Application made by petitioner / judgment debtor for allowing him to discharge liability of decretal amount through 36 equal monthly instalments was not competent under O.XX, R.11, C.P.C---According to O. XX, R. 11(1), C.P.C, for any sufficient reason at the time of passing the decree, Trial Court had a discretion to order that payment of the amount decreed would be made by defendant (judgment debtor) by installments---Executing Court under O. XX, R.11(2), C.P.C., had power of similar nature to make an order, on the application of judgment debtor that payment of the amount decreed would be made by installments but not without the consent of decree holder---High Court declined to interfere in the order passed by Trial Court as the same was well reasoned---Petitioner / judgment debtor failed to deposit decretal amount before the Executing Court and filed baseless petition to deprive respondent / decree holder from the fruits of decree---Revision was dismissed, in circumstances.

Mst. Shaheda and 2 others v. Imam-ud-Din PLD 1978 Kar. 472; Feroz Ahmed Khan v. Fasihullah Sheikh 2007 YLR 2377 and Mrs. Farida Hanif Motiwala v. Qais Mansoor Sheikh 2000 CLC 1328 rel.

Syed Muhammad Zahid for Petitioner.

Jamil Ahmed Khan Babai for Respondent.

2023 C L C 169

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan CJ and Kh. Muhammad Nasim, J

Alhaj Sardar MANZOOR HUSSAIN KHAN----Appellant

Versus

Mst. LAILA ASHIQ and 3 others----Respondents

Civil Appeal No.516 of 2020, decided on 9th November, 2021.

(On appeal from the judgment and decree of the High Court dated 21-9-2020 in Civil Appeal No.59 of 2018).

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

----Art.42---Appeal to Supreme Court---Limitation---Scope---Delay of each and every day has to be explained by the appellant for lodging the appeal after the prescribed period of limitation.

Chairman Azad Jammu and Kashmir Council v. Abdul Latif and 5 others 1997 MLD 2926; Faiz Akbar v. Mst. Nasim Begum and 8 others 2003 YLR 2729 and Dr. Muhammad Iqbal Qureshi v. Azad Government and others 1993 SCR 111 rel.

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

----Art.42---Appeal to Supreme Court---Scope---Direct appeal lies in the Supreme Court when the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied or set aside the impugned judgment or decree of the Court immediately below.

Azad Government and 3 others v. Muhammad Reshim Khan and 38 others (Civil Appeal No.236 of 2015) and WAPDA and others v. Taj Begum and others 2014 YLR 2649 rel.

Nasir Masood Mughal, Advocate for Appellant.

Sardar M.R. Khan, Advocate for Respondents.